Sykes v Hayden

[1995] HCATrans 281

TRANSCRIPT
OF PROCEEDINGS
AUSCRIPT
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IN THE HIGH COURT OF AUSTRALIA

MELBOURNE OFFICE OF THE REGISTRY

No. M300 of 1995

BETWEEN:  IAN GRANT SYKES

Plaintiff

- and -

HIS EXCELLENCY, MR   BILL HAYDEN, THE   GOVERNOR-GENERAL OF   AUSTRALIA

First Defendant

- and -

JUSTICE SIR WILLIAM
  DEANE, A.G.K.B.E.

Second Defendant

DAWSON J (In Chambers)

AT MELBOURNE, TUESDAY THE 26TH DAY OF SEPTEMBER 1995

HIS HONOUR:   Yes, Mr Sykes.

MR SYKES:   Your Honour, I have got - - -

HIS HONOUR:   Now, this is an application for leave to issue a Writ which you wish to have issued.

MR SYKES:   That is right, it is, your Honour.

HIS HONOUR:   Now, in accordance with the current practice, I intend to impose a limit of 20 minutes within which you may address me.

MR SYKES:   I will not be anything like that, your Honour; I will not even be three minutes, I do not think.  I wish to hand up two statements that are in writing, so I will do that now, thank you.

HIS HONOUR:   Thank you.  Well now, you want me to read these?

MR SYKES:   Yes, I do.

HIS HONOUR:   You sit down while I do that.

MR SYKES:   Thank you.

HIS HONOUR:   Well, I have read the first document, Mr Sykes.  You are not objecting to me sitting to hear this application?

MR SYKES:   Yes, I am, your Honour.

HIS HONOUR:   Why?

MR SYKES:   For the reasons given in the second document.

HIS HONOUR:   Well, I had better read that.  If you would sit down.

Yes, well, I have read those documents, Mr Sykes.  Is there anything else you wish to say about my sitting to hear this application?

MR SYKES:   Well, I have just made a clear objection to it, your Honour.

HIS HONOUR:   Yes.  And the basis of the objection is what is contained in those documents.

MR SYKES:   Yes, exactly right.

HIS HONOUR:   Yes, well, I propose to - your application is that I do not sit?   Yes, well, I propose to reject that application.

MR SYKES:   All right, your Honour.  Well then, I will have go on - - -

HIS HONOUR:   Now, if you would address the application on its merits.

MR SYKES:   Yes.  Well, your Honour, there is really nothing I can add except the affidavit that I have already put in, in view of my objection.

HIS HONOUR:   Yes.

MR SYKES:   I do object and therefore to go on would be inconsistent with my position.  Therefore, your Honour, I cannot proceed.

HIS HONOUR:   Well, do you wish to withdraw the application?

MR SYKES:   No, I do not, your Honour.

HIS HONOUR:   Well, is there anything you want to say in support of it?

MR SYKES:   No, I have given an affidavit in support and there is nothing further I wish to add to that and, seeing I wish not to go on in front of your Honour, I cannot therefore go on, having said that I wish not to do so.  That would be inconsistent and I cannot do that.

HIS HONOUR:   Very well.

MR SYKES:   So I have nothing more to say, your Honour, without trying to be impolite in any way, but that is my position.

HIS HONOUR:   You are never impolite, Mr Sykes.

MR SYKES:   Pardon?

HIS HONOUR:   You are never impolite.

MR SYKES:   Well, I try not to be but I am afraid I err sometimes.  But, your Honour, I have made the objection as strongly and as politely as I can, but it is a definite one and therefore, if our positions are so different that I will not sit before you and you feel you ought to sit in this matter, having regard to the High Court rules and various precedents, well that is just simply a matter of difference between the parties - - -

HIS HONOUR:   Then I propose now to rule on the application and then you can pursue what rights you have after that.

MR SYKES:   Well, I thank you, your Honour.

HIS HONOUR: The applicant is seeking to have issued a Writ of Summons directed to the Governor-General of the Commonwealth of Australia and a judge of this Court, Deane J, who is designated to be appointed Governor-General in 1996. On 21 August this year, pursuant to order 58 rule 4 sub-rule 3, I directed the Deputy Registrar to refuse to issue the Writ without leave of a Justice. The applicant now seeks leave to issue the Writ. The principles to be applied in determining whether to grant leave are well established. See Stats v The United States of America (1992) 66 ALJR 793; re Skyring (1985) 58 ALR 629; re Cusack (1986) 60 ALJR 302.

Leave may be refused to prevent the institution of frivolous or vexatious proceedings.  The limited time and facilities of this Court are not to be devoted to litigation which is futile and destined to lead only to expense and inconvenience - you should remain, Mr Sykes, while I am - - -

MR SYKES:   I do not wish to, your Honour.  I am sorry, I do not.  I have made my position clear and, however wrong it might be, I do not wish to stay.

HIS HONOUR:   Well, Mr Sykes, it would be discourteous for you to leave at this stage, if you do not mind.

MR SYKES:   But on the other hand it would be impossible for me to remain under the attitude I have taken.  You see, your Honour, my position is quite definitely I do not wish - - -

HIS HONOUR:   Stop for a moment, Mr Sykes.  It would not be impossible for you to remain.  If you wish to be discourteous to the Court, then that is a matter for you, but I am informing you it would be discourteous.

MR SYKES:   It may be, but I take that as the lesser penalty to going on with an inconsistent action.

HIS HONOUR:   Very well.

MR SYKES:   Thank you, your Honour.

HIS HONOUR: The limited time and facilities of this Court are not to be devoted to litigation which is futile and destined to lead only to expense and inconvenience for the parties. The applicant relies upon a statement of claim by which he seeks determination of a matter alleged to be in the original jurisdiction of the High Court because it arises under sections 1 to 6, 56 to 70, and 71 and 72 of the Constitution, or involves their interpretation. The applicant seeks a declaration that the appointment of Mr Hayden as Governor-General was unconstitutional. He alleges that it is a breach of the doctrine of separation of powers for the Legislature to agree to appoint one of its members to the executive.

The applicant further alleges that, as Mr Hayden was formerly a member of the Commonwealth Parliament, he still has "especial links" with the Legislature which may jeopardise the independence of the executive.  The applicant also seeks a declaration that it would be unconstitutional for Deane J to be appointed Governor-General.  He alleges that it is not possible for Parliament to appoint one of the Justices of the High Court to the position of Governor-General, as the executive would then retain links with the Judicature which would be incompatible with the impartiality of the office of the Governor-General.

In addition, the applicant alleges that the power to appoint the Governor-General resides in the Senate and not the House of Representatives.  That being so, he alleges that the appointment of Mr Hayden to the position of Governor-General and the designation of Deane J for the same position are unconstitutional.  Further, the application alleges that in any case the members of the House of Representatives did not vote on the question of who was to be Governor-General, but rather the decision was made by the Prime Minister or the Cabinet, which was also unconstitutional.  In my opinion the statement of claim discloses no arguable cause of action and the matters which it raises are frivolous or vexatious.

There is nothing which prevents a member of the Legislature or of the judiciary being appointed to the office of Governor-General.  That appointment is made by the Crown upon advice and is not made by either House of Parliament.  The affidavit in support of the application for leave to issue the Writ does not contain any material which would alter my view.  There is nothing in the material before me which indicates that there is any possibility of the action succeeding and accordingly leave to issue the Writ is refused.

AT 9.44 AM THE MATTER WAS ADJOURNED
INDEFINITELY