Thorpe v Cwealth of Aus

[1997] HCATrans 122

TRANSCRIPT
OF PROCEEDINGS
AUSCRIPT
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IN THE HIGH COURT OF AUSTRALIA

MELBOURNE OFFICE OF THE REGISTRY

No. M15 of 1997

BETWEEN:ROBERT ALAN THORPE

Plaintiff

- and -

COMMONWEALTH OF AUSTRALIA

Defendant

KIRBY J (in Chambers)

AT MELBOURNE, WEDNESDAY THE 21ST DAY OF MAY 1997

Continued from 29.4.97 in Canberra

HIS HONOUR:   Yes, Mr Thorpe.  You are appearing in your own interest, are you?

MR THORPE:   Yes, sir.

HIS HONOUR:   Do you have anybody to help you today?

MR THORPE:   No, sir.

HIS HONOUR:   Very well.  You appear, as before, for the Commonwealth, Mr Roberts?

MR ROBERTS:   With Mr Kennett this morning, yes, your Honour.

HIS HONOUR:   Yes, thank you very much.  Now, I understand that there is an application by Mrs King and Mrs Booth to intervene; is that correct?

MR THORPE:   Yes, that is right, sir.

HIS HONOUR:   Yes.  Which one is Mrs King?

MRS KING:   I am.

HIS HONOUR:   Would you mind standing up.  There is a reason for that.  It is easier to hear, and everybody can hear in the Court Room.

MRS KING:   Yes, I am Mrs King.

HIS HONOUR:   Yes, very well.  And are you Mrs Booth?

MRS BOOTH:   Yes.

HIS HONOUR:   I think your applications are very similar to those of Mr Thorpe; is that so?

MRS BOOTH:   Correct.

HIS HONOUR:   I have not studied them carefully, but I understand they say the same thing, and they have been filed in the Registry; is that right?

MRS BOOTH:   Correct.

HIS HONOUR:   Yes.  What is your attitude to this application, Mr Roberts?

MR ROBERTS:   We oppose leave to intervene in the strike out application.  As I understand it, Mrs King has filed a statement of claim in identical terms to that of Mr Thorpe.

HIS HONOUR:   Yes.

MR ROBERTS:   Mrs Booth, I do not think has filed any proceedings herself.

HIS HONOUR:   No.  I have only got a file in the case of Mrs King, and I had a quick look at her statement of claim, which seems to be in the same form as the plaintiff's.

MR ROBERTS:   Yes.  Your Honour, I suppose it would be convenient if we could deal with Mrs King's matter today, along with Mr Thorpe's, but unfortunately, because of the late filing, there has not been time to issue 78B notices.  So it would appear to be a problem in dealing with Mrs King's application.  I think either the Commonwealth has, or is about to file, a strike out application in her matter too. 

HIS HONOUR:   It is a little bit like Mrs Brown's matter in that respect, is it not, that was before me on the last occasion?

MR ROBERTS:   Yes.

HIS HONOUR:   That in a sense Mrs King's application, which is now before the Court, though not formally before me today, may be affected by what happens to Mr Thorpe's case.

MR ROBERTS:   Yes.

HIS HONOUR:   So that it could be convenient simply to allow her to say anything that Mr Thorpe forgets about, or overlooks, without, as it were, intervening in his case.  But as he is not represented I am inclined to bend the rules a little and to allow Mrs King to have a say.  But nothing I do today can really affect Mrs King's case.  It will just have to be dealt with on another day.

MR ROBERTS:   Well, that sounds a reasonable solution, if I may say so, your Honour, and we would not object.  As long as we are not going over the same ground, and yet further issues arose which would be ‑ ‑ ‑ 

HIS HONOUR:   Well, I do not think Mrs King will waste the time of the Court.  But if Mr Thorpe forgets anything or overlooks anything, then Mrs King can top it up with what she has to say, and her case may have to come back on another day just to be dealt with.

MR ROBERTS:   We would have no objection to that then, your Honour.

HIS HONOUR:   Yes, very well.  Are you content with that course, Mrs King, if we follow that course?

MRS KING:   I certainly am, your Honour.  Yes, I am quite pleased with ‑ ‑ ‑ 

HIS HONOUR:   Yes, very well.  Well, we will hear you to say anything that you feel that Mr Thorpe has omitted in defence of his position.  And his position may be in some ways different from yours, because I understand he is applying for an adjournment, and your case is not formally before the Court today, because though you have filed your statement of claim and writ, no proceedings are purported before me today.  But it may be in some indirect way affected by what happens to Mr Thorpe's case.  So that it is fair, I think, that you be heard, and you will be heard.

MRS KING:   Thank you very much.

HIS HONOUR:   Very well.  Yes, Mr Thorpe, you do not have the help of Mr Lindon today.  You are all on your own; is that correct?

MR THORPE:   That is right, your Honour.

HIS HONOUR:   Yes, very well.  Well, you just tell me what you want to say.  First of all, I think actually it is strictly speaking the Commonwealth's application to strike out your process, but I understand from the papers that you are making three preliminary applications.  First, that the proceedings be adjourned; secondly, that they be referred to a Full Court; and thirdly, that before you be called upon to answer the Commonwealth's claim, the Commonwealth should be required to plead; is that correct?

MR THORPE:   Sorry, I just missed that last part.

HIS HONOUR:   The last one - would you mind standing up, because it makes it easier for us to talk to each other.

MR THORPE:   Yes, sure.

HIS HONOUR:   The third one is, as I understand it, that you have in the nature of a preliminary objection.  You say that before there is any application to strike out your claim, the Commonwealth should - because of the nature of the claims that you make - should be required to put on its defence.

MR THORPE:   That is right.

HIS HONOUR:   Yes, very well.  I notice that there is a little red light in the lady who is sitting behind you.  I do not know if that is a recording.  Personally, I do not have any objection to recording in Court, but it is not the normal procedure, and I do not think it should be done without the permission of the Court.  Are you recording the proceedings?

..........:   Yes, I was, your Honour.

HIS HONOUR:   The transcript will be available.  Everything that is said is recorded, and you can have the transcript through Mr Thorpe later.  I think you should turn off the recording.

..........:   Yes.

HIS HONOUR:   There is a formal recording which is done by the Court.

..........:   Okay.

HIS HONOUR:   Yes.  Well, you are applying for an adjournment, and also that the matter be referred to a Full Court, and also that before you be required to answer the Commonwealth's strike out application, that the Commonwealth should be required to plead.  So you might develop those three submissions.

MR THORPE:   Okay.

HIS HONOUR:   What is the ground for your application for the adjournment?  I see that Mr Lindon has just arrived.

MR LINDON:   10.30, I thought, sir, but apparently it has been changed to 10.

HIS HONOUR:   I think that was the order that the Court made in Canberra.  Are you going to be helping Mr Thorpe today?

MR LINDON:   I was, sir, and I was just managing to get, for the convenience of the Court, a copy of two document books, and it is all page numbered, and is referred to in the matter.  So, as I say, I did not know it was starting at 10.

HIS HONOUR:   No, that is all right.  Well, do you want Mr Lindon to be of help to you during the proceedings, Mr Thorpe?

MR THORPE:   I think he might be, your Honour.

HIS HONOUR:   Yes.  Well, it may also save time.  Do you have any objection if Mr Lindon is there to help Mr Thorpe at some time during the day?

MR ROBERTS:   Not at all, your Honour, no.

HIS HONOUR:   I think it may save a little time.  I wonder, Mrs King, if you would mind if you moved along and we found another chair and put Mr Lindon - if Mr Lindon likes to take his overcoat off.  It is not such a cold Melbourne day.

MR THORPE:   I will leave a couple of books for your associate.

HIS HONOUR:   And then if Mr Lindon can sit next to Mr Thorpe maybe, between Mr Thorpe and Mrs King, and he can give advice to both of those just as a friend.  Yes, well now, before you came in, Mr Lindon, I indicated to Mr Thorpe that as I understand it, from having read the written submissions which I directed should be filed, that there in the nature of three preliminary applications before I get to the Commonwealth summons of strike out.

MR LINDON:   Yes, sir.

HIS HONOUR:   The first is an application that the proceedings be adjourned to allow some more time for the preparation of the proceedings.  The second is an application that the matter be referred to a Full Court, which would have the effect of adjourning the proceedings.  And the third is an application that before Mr Thorpe be required to answer the Commonwealth's summons, that the Commonwealth should be required to plead its defence, which would in turn require the adjournment of the proceedings.  So it is those three matters that I have asked Mr Thorpe to address now.  Yes, Mr Thorpe.

MR THORPE:   Your Honour, I would like to refer you to page 50 of the document book.  Document book one.

HIS HONOUR:   Which one is this?  Is this the submission?

MR THORPE:   Yes.  This is my submission in response to the defendants.

HIS HONOUR:   And that is on the adjournment application?

MR THORPE:   Yes.

HIS HONOUR:   You can take it that I have read all of that.  I got up at 5 o'clock this morning to make sure that I have read everything that has been put in the Court.  That is my usual practice.  So that I know all about it.  Perhaps can I tell you the matters that concern me about the adjournment application so that you can respond and I think that might be the best way to deal with the matter.  First of all you will remember that when the matter was before the Court last in Canberra and I was hearing it, the question of the return date came up and you made an application that it be at a time in May when I understand a conference is taking place in Melbourne. 

I pointed out that that was a time when the Court was sitting in Canberra so that would not be possible and suggested the Friday before so that there could be some overlap between the convenience of the people who might be attending the conference and the hearing of your case and it was about to be ordered for the Friday, which is this coming Friday and you asked that the matter be listed today.  So that the date that has been fixed is the very date that you asked for.  Now given that this would be the second adjournment, given the costs that are necessarily involved in adjourning proceedings why, over the Commonwealth's opposition, should the matter be adjourned yet once again?

MR THORPE:   One reason for that is the nature of this case, it is - as we have been going along, like we have gained a lot more evidence in respect of our position and in light of things like today's front page of The Australian ‑ ‑ ‑ 

HIS HONOUR:   Yes, I have not seen that, in any case that is not strictly before us.

MR THORPE:   It talks of 60 years of genocide demands more than apology.  I just think that the nature of this case is, you know, a week - I would just like to say I am a struggling first year university student and without resources to develop this case, you know we have run into a lot of problems in the last three weeks trying to prepare this case.  As we have been going along there has been more evidence added to that and it has just taken its toll on us.  We have not been able to prepare this case the way that we would like to do it and I think this case needs proper - needs more than three weeks to - we did not realise that at the time because this has led us in different directions. 

HIS HONOUR:   You have filed a process in this Court, which is the highest court in the country and one would assume that before you did so you gave thought to the process that you were filing and were satisfied that you had your case in proper form to put to the Court.  The Commonwealth now comes along and says it should not be troubled by it and its funds, taxpayers' funds, should not be lost in the litigation of it and that it should be stopped here and now. 

Now the question that I am sure will be raised by Mr Roberts is; if the matter is likely to take such time, then why did you not take more time in preparing the case in the first place before filing it and why did you not seek further time when the matter was before the Court in Canberra in April rather than nominating today, which is the day you nominated and which is the return date of the hearing of the proceedings?

MR THORPE:   My answer to that is I do not see this Court as the highest court in Australia, I see it the holders of customary law as being the holders of the highest position in law in this Court - in this country.

HIS HONOUR: You have come to this Court, which is established by the Constitution and you have come to this Court to apply the law of Australia and therefore if you have come to the Court you must expect that the law of Australia will be applied.

MR THORPE:   But I am being constrained by my customary law, elders, in respect of what I am doing in this Court here today and that has taken me in different directions and I do not think that has been considered by the Court.

HIS HONOUR:   The matter that concerns me is that if you look at the costs that would be incurred by the Court coming here, the travelling costs, the costs of the legal representatives, the inconvenience to so many people, all of those costs would run to thousands of dollars and that is not a matter which, as I take it, you being a struggling first year law student, that I can burden you with. 

MR THORPE:   But I am prepared - I think ‑ sorry.

HIS HONOUR:   So effectively the taxpayer is paying the costs. 

MR THORPE:   I consider this case a very important case.  You know, the issue of genocide is what we are bringing up here and it needs to be taken on and I am prepared to work, you know, I am prepared to pay in whatever way I can for this case to go ahead. 

HIS HONOUR:   Do I take it from that that what you are saying is that you are prepared to pay, if the Court orders it, the costs of the adjournment?

MR THORPE:   Well they have suggested that they are going to charge costs against me already in their submissions, so I know the reality of that and I have already started to work on how to raise this money to pay if we get charged costs in this matter.

[10.22am]

HIS HONOUR:   When you commenced the proceedings, were you the beneficiary of an order relieving you from the filing costs in the court?

MR THORPE:   Yes, I was, yes, because I held a student card.

HIS HONOUR:   Is it not the reality therefore that if I made an order against you that you pay the costs of the adjournment of today, that you would not be able to find the funds to pay those costs?

MR THORPE:   That depends on how much time you gave me to pay those costs, your Honour.

HIS HONOUR:   Normally, if an adjournment is ordered because of the failing or default of a party, that party has to pay the costs.  But of course if that party cannot really, in reality, pay the costs, that is a matter that a court has to take into account before making an order that would really be pointless.

MR THORPE:   I am sure that I could find the money to pay for these court costs, considering the - the serious nature of what we are alleging here.

HIS HONOUR:   But given what has happened, that the matter was in Canberra in April and you asked for this day and then only last week asked that the matter be adjourned further, how could one be sure that when the matter came back in June that you would not come along and say, well, we want more time and we have got another person, like Mrs King or Mrs Brown, who has got proceedings before the court?  You see, this is the sort of consideration that I have to weigh in determining whether there would be any point in adjourning the matter.  Is it not better that you face up to the application of the Commonwealth and deal with it here and now?

MR THORPE:   Well, I would just like to reiterate, in light of recent developments in terms of the stolen generation inquiry, now this is adding a lot more weight to our argument and you know, this is coming to light at present time in this country today and I was - it is all over the media at the present time.  There is also the issue of the reconciliation convention on - starting next week.

HIS HONOUR:   Tell me something about the reconciliation convention?  What is that all about?  Are you attending the reconciliation convention yourself?

MR THORPE:   It is a monetary matter for me at this stage, your Honour.  But I am attempting to get registered.  I think I may even be - that has been done for me.

HIS HONOUR:   I hope that the fees of the reconciliation convention are not so high that they keep out all but the wealthy.

MR THORPE:   I would like to refer you to the exhibit of Mr Tony Kamps, all the information about reconciliation and ‑ ‑ ‑ 

HIS HONOUR:   Show it to Mr Roberts first please?

MR THORPE:   We just can't find it at this stage.  It is in the ‑ ‑ ‑ 

HIS HONOUR:   Is there any objection to my looking at this, Mr Roberts?

MR ROBERTS:   No, your Honour.

HIS HONOUR:   Well, I am looking at Exhibit AGK2 which is an exhibit apparently referred to in an affidavit of Anthony George Kamps, affirmed 19 May 1997.  Mr Kamps' affidavit has not been formally read but the material merely describes the background of the Australian Reconciliation Convention which is to take place in Melbourne on 26 to 28 May 1997 and the registration fees anticipated, it says, to be approximately $400. 

MR THORPE:   Also, in that document there is all the preliminary information leading up to that reconciliation convention.

HIS HONOUR:   Yes, but normally at least when one has a strike out application, you do not go into evidence.  You simply look at the document on its face and you say; does that document, on its face, reveal a viable cause of action?  If it does not, is it such as, with a little bit of pruning or reformulation, it presents a viable cause of action?  And courts show a certain latitude there, especially where people are not legally represented.  But if it does not, then the document is struck out.  So that the defendant is not vexed by it, is not troubled.  And that is what the Commonwealth comes along here to say. 

It says; look at the document, even if it were amended in some way, it is a political charter, it is not a legal claim.  And they make various other attacks upon it and they say it cannot be rescued by any viable amendment and therefore they should not be troubled by it and the court should strike it out from its process.  Now, that is not normally a matter for evidence.  That is simply a matter of legal argument on the basis of the document.  So that the fact of the reconciliation conference would not really, normally, touch whether or not your document was viable or could be made viable by pleading amendments.  That is what you have to meet.

MR THORPE:   Can I call for Mr Lindon to represent me for ‑ ‑ ‑ 

HIS HONOUR:   Yes.  Is there any objection to that, Mr Roberts?

MR ROBERTS:   No, your Honour.

HIS HONOUR:   It might save some time.

MR ROBERTS:   Yes, your Honour.

MR THORPE:   Just to speak for me on this particular topic.

HIS HONOUR:   Yes, very well.  Are you willing to do that, Mr Lindon?

MR LINDON: With pleasure, sir. The first point I want to make, your Honour, is that we are talking about the most serious crime known to every civilised country in the world, which is genocide and the genocide convention of 1949, 1948, which was agreed by all countries, including Australia and Australia notified that convention in 1949 with a statute for the Genocide Convention Act. That is not a political document, sir, it is an extremely legal document and this court, this honourable court said in Polyukhovich's case, that - and that was 1990, sir, that genocide is now a crime of universal jurisdiction. Judgments of Brennan and Toohey JJ in particular. And they did not describe it as a political charge but as a legal charge, and it was - those judgments there went into the origins of the genocide convention and the similarity of that case to the War Crimes Act that is being considered.

It is very, very important I think to the Aboriginal people sitting here today that the absolute gravity of this charge is considered.  I understand your Honour's point about the costs of the defendant being thrown away but you must bear in mind that most Aboriginal people have a view of the defendant which is that they - the things that have happened to their people have been done with intention to destroy.  That is the critical aspect of the genocide convention.  You have to do these acts, like removal of children and so on, with intention to destroy.  Now, what we are talking here I think is a difference of viewpoint. 

The white non-Aboriginal people reading this writ, and the defendant's barristers are an example.  I do not know if they have any Aboriginal friends or know any Aboriginal people, but Aboriginal people reading this writ, across the entire spectrum of people that have looked at it, and there have been people in the city regions and in the urban regions, all across the country, the feedback has come back that it is not nebulous and incomprehensible, it is not political, but it is actually a legal claim.

HIS HONOUR:   You say this but do these ‑ ‑ ‑ 

MR LINDON:   I know that - I state it, sir.  Well, there is some evidence in affidavit ‑ ‑ ‑ 

HIS HONOUR:   ‑ ‑ ‑ these are mere assertions.  But whether or not that is so, ultimately Mr Thorpe has invoked the jurisdiction of this court.

MR LINDON:   Absolutely.

HIS HONOUR:   And therefore the criterion is not what Aboriginal people or other Australians throughout the length and breadth of the country think about it, but what a court of law thinks about it.

MR LINDON:   That is true and your Honour ‑ ‑ ‑ 

HIS HONOUR:   Because you can have various claims and you can make them in the public fora but if you invoke the jurisdiction of a court then you have to submit, like everybody else, equally before the law, to whether or not the claim puts forward a viable cause of action and that is what the Commonwealth contests.

MR LINDON:   It does, sir, but your Honour is also familiar with sexual discrimination cases and indirect discrimination and I say that is what we have here.  Your Honour would be familiar with the judicial discussion that has gone on for some time now about the question of point of view in sexual discrimination cases.  The point of view - is it to be the point of view of an Anglo-Saxon white middle-aged male that the court adopts or is it to be the point of view of the victim of genocide? And I draw your Honour's attention to the notice of premeditated criminal genocide and complicity in that which was served on this court and on the executive and on the legislature last Thursday, 15 May. 

Your Honour would also, perhaps if you have had a chance to peruse the affidavit of Marjory Ann Thorpe and the material in there, you will see that Ms Thorpe quotes from Sir William Deane, the Governor-General's speech, the Lingiari lecture last year and also from - she quotes Sir Ronald Wilson and Mr Mick Dodson, who have all used the word "genocide", both used the word "genocide" to describe certain aspects of the treatment of Aboriginal people.

Sir William Deane in his speech makes clear that the Mabo case knocked out the - basically the lie of terra nullius, and also makes clear that Australia was purportedly founded on this lie of terra nullius.  Now, that is a very, very weighty and sombre observation, sir, because what is being put in this case obviously is that the very foundation of Australia was based on a racist and genocidal view of Aboriginal people, and that the doctrine of terra nullius is proof that there was a genocidal intent certainly up until 1992, sir, when the Mabo decision discarded that doctrine.

Now, I just say that, sir, to indicate the extreme seriousness of what is being put here, that Aboriginal people have never had a chance to put these matters in a court of law.  They have tried for generations, really.  It was tried in 1837 in a select committee to the United Kingdom, and that committee said that the past 50 years were shameful and there should have been a treaty.  In 1937 there was a conference on Aboriginal welfare, and since the referendum and since Coe's case and since Walker's case, sir, Aboriginal people have attempted to put to the Commonwealth of Australia, the defendant, of which this court is part and which is tainted with genocide, sir, I think that is undeniable, and Sir William Deane's comments make that quite clear, and so do the comments of Deane J as he then was and Gaudron J in Mabo where they talk about the unutterable legacy of shame that this country has in relation to its treatment of Aboriginal people.

HIS HONOUR:   But if we come back to the actual cause of action that is being prosecuted which is perhaps being prosecuted which is perhaps more tedious, but the matter which is before me this morning which I have to concentrate on, it seems to be for a declaration of an existence of a fiduciary obligation for a declaration as to the extent of that obligation going to an application to the International Court of Justice and a declaration to do certain things in pursuance of an application to the International Court of Justice.

Now, as I take it the claim for fiduciary obligation is ancillary to and a practical step on the way to the assertion that certain things should be done with relation to the International Court of Justice.  Now, all of that runs into a series of legal problems, and that is what the Commonwealth wants to agitate.  Now, I want to concentrate on the question of adjournment because if the matter is adjourned then these matters will not be considered today.  If it is referred to a full court they will be considered by a full court and not by me sitting alone.

But if as the Commonwealth asserts these claims are hopeless, then whatever may be the legal or whatever may be the moral arguments or political arguments then as a matter of law the foundation will not be laid, and the summons will fail, that is to say the plaintiff's summons will fail.

MR LINDON:   Let me address the adjournment question quite specifically, but let me first comment on your Honour's attitude to this matter.  You are using words like "moral" and "political" in relation to genocide.  Now, I am just asking you to acknowledge that the Genocide Act itself is an act of law, it is a legal document, and that it is very - - -

HIS HONOUR:   I know that, Mr Lindon.  I am very conscious of international human rights, and I know the status of genocide as a crime of universal application and universal jurisdiction.  I am not unmindful of these matters, but I am concentrating on the statement of claim and on the fact that you have sought a further adjournment even though this is a date which has been returned on the specific application of Mr Thorpe expressed to me when the matter was last before the court in Canberra. 

MR LINDON:   Yes, sir.

HIS HONOUR:   I mean, I have to concentrate on legal process first, and the immediate question is, should the matter be adjourned.

MR LINDON:   That is true.  Well, on that, my first submission is that when an Aboriginal person has commenced proceedings in these courts about genocide claiming that genocide has already been admitted by the defendant, and that is the claim in the statement of claim, sir, that the defendant has already admitted by word and by deed acts of genocide and that it has no substantial defence to the action that is being brought, when that occurs and an Aboriginal person then applies for further time in order to combat an application to summarily dismiss his claim without hearing any evidence of that genocide it seems to me that the court ought in all conscious in its inherent jurisdiction to stop and prevent genocide allow an adjournment.

You have raised the question of costs, and clearly Mr Thorpe has accepted an order for costs, and he has thought that might be otiose because he has no funds, but let me put to you, sir, that on the question of costs it is a matter of common knowledge within section 144 of the Evidence Act that Aboriginal people claim that there is an exceptional amount of money owing to them for back rent for their land and some sort of compensation for the intentional murder of their friends and family.

[10.40am]

It seems to me that where this court has itself been given notice of its part, it is complicit in that genocide that has occurred and Mr Thorpe contends is still occurring, and it is supported by affidavits from a psychologist and from a mental health expert that heading of causing serious mental harm to people and placing people in conditions of life, those two particularly, as we speak, are still acts of genocide being carried in an attempt to destroy which the defendants are responsible. 

Where that allegation is made, sir, and where the defendant seeks to summarily dismiss and effectively put the lid on any discussion in a judicial setting of genocide which in a judicial setting, I would submit to you, sir, means doing what courts do best, namely, calling evidence and testing it, and that is essentially one of the main functions of a court as opposed to a political arm of government - is to test evidence either orally or in writing.

Now, the defendant is seeking to have all of that procedure struck out on the very same day, sir, I might add - and Mr Thorpe has directed your attention to this - in which the defendant's own Human Rights and Equal Opportunity Commission has used the word "genocide" for 60 years in fact.  And I point out to your Honour that that is being used by a former judge of this court and by eminent lawyers like Mr Ian Viner QC and Mr Mick Dodson, the defendant's Aboriginal Social Justice Commissioner.

HIS HONOUR:   I know nothing of the report of the Human Rights and Equal Opportunity Commission.  I have not seen the morning newspaper that you refer to so that I think that what we have got to do ‑ ‑ ‑ 

MR LINDON:   There some mention - well, sir, just ‑ ‑ ‑ 

HIS HONOUR:   ‑ ‑ ‑ what we have got to do is to concentrate on the document which is filed in court because that is the thing that is under attack.

MR LINDON:   Yes, sir, but it is not ‑ ‑ ‑ 

HIS HONOUR:   I mean, the matters that you are raising are matters that can be agitated in the public forum.  The question is whether they can be agitated in this court which is a court of law.

MR LINDON:   That is true, yes, and thankfully it is.  Sir, in relation to not knowing anything about the Stolen Children's Inquiry, in the affidavit of Marjory Ann Thorpe, which you may have had a chance to peruse - you said you had been up since 5.30 perusing all the material in the matter - I take it you have perused the affidavit, sir.

HIS HONOUR:   I will read the affidavits when they are read in court because then Mr Roberts can object to them.

MR LINDON:   Excuse me, sir.  Do you object to me referring to the affidavit of Marjory Ann Thorpe?

MR ROBERTS:   Well, I will at the appropriate time but not at the moment.

HIS HONOUR:   Nothing has been read yet.  Evidence is not before me.  I have concentrated on the documents that are before the court and the written submissions of the parties.

MR LINDON:   So you have read the writ, statement of claim, the notice of the constitutional question of the plaintiff, the two summonses of the plaintiff, sir, the ‑ ‑ ‑ 

HIS HONOUR:   It is not for you to interrogate me, Mr Lindon.

MR LINDON:   No, I am not, I am just ‑ ‑ ‑ 

HIS HONOUR:   But I am telling you that ‑ ‑ ‑ 

MR LINDON:   ‑ ‑ ‑ I am listing what you say you have read, sir.

HIS HONOUR:   I have read the process.

MR LINDON:   Right, thank you.

HIS HONOUR:   Which is what is normally before the court in the strike-out application.

MR LINDON:   And on the last occasion, sir, I recall you indicating - this is why I asked you if you were part-heard in this matter - you indicated in court at that stage that there was nothing in the constitutional notice to trouble you; that you thought that there was some reference to the question of a matter and that it may not have to go past that first point of the matter and other comments which in discussion with Mr Thorpe and other Aboriginal people, we have been trying to meet and it was - it is also quite clear on the case law, sir, that although you say you are looking on the face of the document, on the face of the writ, the case law makes quite clear that it does not happen in a vacuum. 

I mean, you have clearly - the Evidence Act 1995 applies to import section 144, common knowledge. It also allows the justice to avail himself of other information. That is clearly part of it. The case law also makes clear you have to look at the current context of environment in which the writ is issued. I mean, obviously, sir, if you were looking at this writ in 1901, you would have a completely blinkered, racist notion of Aboriginal people. They were not human beings. They were less than livestock, etcetera. Today, we at least acknowledge they are human beings and perhaps even equals although clearly they do not have equal humans rights or any equal commission of special rights.

HIS HONOUR:   So far as I am concerned, they have equal human rights.

MR LINDON: Well, that is not true, sir, and I can argue that - I am sure most Aboriginal people in the room would disagree with you because the actual application of those rights to them is not equal. But one must look at this in the context of the legislation of the Commonwealth Parliament, that is the most specific environment which includes the Reconciliation Act, sir. The Genocide Act, I have mentioned. The Racial Discrimination Act and the Cultural Heritage Act and other legislation of that kind. What we do not have in this country to refer to at the moment, sir, is an Aboriginal Sovereignty Recognition Act and an Aboriginal Treaty (Intention to Negotiate) Statute.

We do not have either of those statutes yet but the other material to which your Honour can refer which is the material of the defendant itself about the reconciliation convention shows that there is an attempt nationally to develop some sort "document of reconciliation".

HIS HONOUR:   I know how this, Mr Lindon, can I trouble you, please, because I do want to bring you back to the process that is before me.  When one looks at the statement of claim, it raises the question of the existence of a fiduciary obligation.

MR LINDON:   Yes.

HIS HONOUR:   Now, that is the first step.  That is a large question and as I understand it only one of the Justices of this Court, Toohey J, has embraced that concept.  Now that may be or may not be, I do not know, simply because other justices have not found it necessary in developing their argument to adopt that view.  But as I understand the statement of claim that is merely a step on the way to the substantive relief which the plaintiff is seeking which is that this Court should order the Commonwealth, acting in good faith, to seek an advisory opinion from the International Court of Justice and should do certain other things, such as ordering the Commonwealth to consult with Mr Thorpe in doing that.

Now, at least as I am presently minded to think, that is not a thing which this Court could do because what the executive government representing Australia to the international community does is not susceptible to court orders.  So on the face of things, even if the fiduciary obligation could be established, which has its own problems.  It is only a step on the way to getting an advisory opinion from the International Court of Justice which is a matter which should be addressed to the executive government and which is not a matter upon which this Court could order the executive government to do anything.

MR LINDON:   It depends if you accept that this Court has a fiduciary obligation to act in the utmost good faith.  It depends if you accept this Court has an inherent jurisdiction to stop and prevent genocide independent of its constitutional creation.

HIS HONOUR:   This Court's duty is to conform to the constitution and the law.  It cannot proceed beyond that and it cannot proceed in contradiction to that and to the separation of powers and obligations of the Court to concentrate on its own functions and not to interfere with what are the functions of the executive government, namely to represent Australia in its relationship with other countries and with international organisations and their judicial branches such as the International Court of Justice.

MR LINDON:   Well, sir, that is where we disagree, and I do not know if yours is a considered view, sir, but that is partly what we hope to agitate in a court in this case.  It seems to me, and the defendant himself has used the term "inherent jurisdiction", so presumably there is some grounds for arguing the existence of an inherent jurisdiction of the court.

HIS HONOUR:   The Court has an inherent jurisdiction and the view I expressed is not conclusive, it is simply a tentative response to the document.  But at the moment we are debating the substance of the document whereas in fact why Mr Thorpe is being called on first is because, as I understand it, he wants the adjournment of the proceedings, he wants adjournment generally, he wants adjournment into the Full Court and he wants adjournment until the Commonwealth has pleaded its defence.

MR LINDON:   That is right.

HIS HONOUR:   Now, that is what I want to concentrate on please.

MR LINDON:   Thank you, sir.  It is just that what happens a bit in our interchanges of other experiences in the past is that you throw out a point, you do not let me answer that point and then you move on to another point, and you did say ‑ ‑ ‑ 

HIS HONOUR:   Well, I am sorry about that, but we all work under certain pressures and the pressures of time are such that we have to move with some speed.

MR LINDON:   Exactly.  But assuming your Honour has not made up your mind and prejudged the matter and assuming your Honour is open to submissions and bringing an open mind to the matter, may I just say that when you put to me the position that you were constrained by the - the statement there, and I began to talk about the inherent jurisdiction, I was going to go on to say just to complete that point if I may for the record, and I did make the point that I have not finished sir, if I could just finish that, but the nub of the argument here is this;  it is whether the court's inherent jurisdiction to act as a court, whatever the essence of judicial and courtliness is, the question is now, as at 1997, does the court have as part of his inherent jurisdiction a power to stop and prevent or at least to identify and recognise acts of genocide.

Your Honour has made the point that the government, in relation to the writ, sir, you say the government cannot be told by this court what to do.  The executive cannot be told what to do.  Now, that - - -

HIS HONOUR:   Well, that is a tentative view that the court could not tell the executive government, you go off and get an advisory opinion from the International Court of Justice.

MR LINDON:   Well, so you say, sir, and with respect, there are legal arguments that ought to be addressed.

HIS HONOUR:   Well, that may be so, but why not address them today?

MR LINDON:   Because there are several things that have happened in relation to the adjournment.  First of all Mr Thorpe has left copies of all this material with Mr Castan QC.  He did that last Wednesday 14, sir, after inquiries were made as to whether Mr Castan could possibly advise or assist us in this matter, and that was left on the 14th.  He followed up on the Friday and Mr Castan was leaving the country.  Contact has also been made with Mr Brian Keon-Cohen QC who is currently heavily involved in the Yorta Yorta case.  He was approached last week or the week before and indicated that he would not be available today or for the next short while whilst the Yorta Yorta native title claim was going through, I think in the same building, sir, today.

Mr Ian Freckleton also has been approached, sir, and as you know, busy counsel are constrained, and there are only so many of the elite counsel to go around.  I myself and other lawyers at a much lower level have undertaken to assist Mr Thorpe in the preparation of matters but for example I have actually very unusually for me had a case that has run for two weeks in the Children's Court.  It is a guardianship case, in which I was part-heard, so that I was not around to assist Mr Thorpe.

Because of the very kind of objections that your Honour has raised and the defendant has raised to suggest there is nothing in this case, it can easily be thrown away, it is very, very important because of the nature, the subject matter of the case, namely genocide by the defendant of which you are representative in this room, sir, the Commonwealth of Australia's genocide against these people in this country is a very serious matter.

HIS HONOUR:   I am not a representative of the Commonwealth of Australia.  I am a member of the judicial branch of the Commonwealth, but I am not a representative of the Commonwealth.

MR LINDON: Under the Constitution, sir, you can apply three parts of the Commonwealth, the executive, section 64, the legislature, the parliament, and the judiciary chapter 3. You are a chapter 3 court, sir, and our submission is that you are part of the defendant, and that is why notice was served on this court last Thursday.

HIS HONOUR:   If that was so, then I could not sit in the matter.

MR LINDON:   Well, that is why the writ - - -

HIS HONOUR:   Mr Thorpe brings his claim to this court.

MR LINDON:   Yes, sir, and he does not - - -

HIS HONOUR:   And the court will deal with it according to law.

MR LINDON:   Exactly, the genocide.

HIS HONOUR:   Giving Mr Thorpe the benefit of the law, but also protecting the Commonwealth with respect to the application of the law.  If you come to a court you have to expect the court to apply the law.

MR LINDON:   Now, let me put this to you, your Honour.  Imagine that you are - or a nazi court or a nazi judge sitting in Germany in the Second World War and Hans and Gerder are two German people - perhaps two Jewish people - come into the court and say, look, the German government is committing genocide on our people.  They are rounding us all up and putting us in these gas chambers and killing us, right?  A nazi judge would have to say, sorry, I can't look into that because I'm acting under nazi law and I can't look into that.  What we are saying - and another example, sir, would be, say, well - - -

HIS HONOUR:   I think an analogy between German courts during the period of the nazis and the High Court of Australia is offensive.

MR LINDON:   It is only an example, sir.  And that is my point of view question.  For Aboriginal people, Aboriginal people see the government as - to them the notion of you know, this mystical invisible thing, the Commonwealth, is a ver nebulous and incomprehensible idea, sir.  What they see is people oppressing them.  Now, for your Honour to find that offensive indicates to me and to people here that the Aboriginal point of view is not being heard, because we are not talking about verbal offensiveness that has gone on to them, sir, we are talking about their lives and their children's lives which have been ruined by what has been happening here.

The example I gave of a nazi court is apposite, sir, because what I am saying is that since the Genocide Convention Act of 1949, since the judgments of this Court in Polyukovich's case in 1990 and since the other legislation which the Commonwealth has passed in relation to Aboriginal people since then, this court has a power and a duty to identify, sir, and recognise, sir, acts of genocide. Clearly, I mean, if I can give you another example to try and bring this point home to you, sir, imagine the situation for example in Rawanda, sir, where people are - where clearly genocide has occurred and there were - well, clearly, genocide has occurred.

Now, if Rawandan people had gone to the Rawandan Supreme Court and said, we the Tutsis are being murdered by the other mob, can you please stop it, right, that raises - - -

HIS HONOUR:   The other mob are the Hutus.

MR LINDON:   Thank you, sir.  If that was the situation whether the judge was a Hutu or a Tutsi should not matter.  He is applying the law of Rawanda under the constitution of Rawanda, but what - - -

HIS HONOUR:   Mr Lindon, I do not like to stop you, but I really think this is far-fetched.  Can we really just concentrate, please, can we concentrate on the three preliminary applications.

MR LINDON:   Yes, sir.

HIS HONOUR:   The first is the reason for adjournment from the very date which Mr Thorpe sought.  The second is reference to a full court which would have the effect of an adjournment, and the third is a requirement that the Commonwealth should first file its defence which would also give the effect of an adjournment.  Would it be helpful if you reverse the order and concentrate on why the matter should go to a full court also and why the matter should be required to be pleaded to before we go on about the Hutus and the Tutsis.

[10.55am]

MR LINDON:   I will, sir, but this ‑ ‑ ‑ 

HIS HONOUR:   I am not saying that defensively. 

MR LINDON:   I understand.

HIS HONOUR:   I realise that genocide is a very serious crime ‑ ‑ ‑ 

MR KAUFMAN:   Right, yes.

HIS HONOUR:   ‑ ‑ ‑ and I realise it is a crime which this country has bound itself to ensure does not occur here.

MR LINDON:   Exactly.  Now, when evidence comes before a court, evidence of the defendant's own admissions of genocide comes before this Court, sir, my argument simply is that this Court has a jurisdiction now, since Polyukhovich's case has recognised the ‑ ‑ ‑ 

HIS HONOUR:   Well, you are going into the substance.  You seem desperately keen to argue the substance of the matter and that is, of course, what the Commonwealth wants you to do.  They want to argue the substance of the matter but the original application, as I understood it ‑ ‑ ‑ 

MR LINDON:   Yes.

HIS HONOUR:   ‑ ‑ ‑ was that the matter be adjourned and that we do not deal with the substance of the matter.

MR LINDON:   Yes, sir, but I - you have cut me off again and I will not go into the Tutsis and the Hutus any more but I just - I do not feel, sir, if you are - that your mind - my impression is your mind is not open to the point which I am making and I will finish on this point.

HIS HONOUR:   Well, I am sorry that that is your impression ‑ ‑ ‑ 

MR LINDON:   Exactly.

HIS HONOUR:   ‑ ‑ ‑ but my mind is open.  But I want to concentrate my mind as a lawyer should ‑ ‑ ‑ 

MR LINDON:   Yes, yes.

HIS HONOUR:   ‑ ‑ ‑ on that which is relevant to my mind at the moment.

MR LINDON:   Yes, that is right.

HIS HONOUR:   Which is an adjournment application.

MR LINDON:   Thank you, sir. 

HIS HONOUR:   Just take a deep breath, a glass of water, and start again but concentrate on the adjournment.

MR LINDON:   Yes.  I am very reluctant to let go of that point, sir, but I shall. 

HIS HONOUR:   I think that is the problem, Mr Lindon, you are very reluctant to let go any point.  But I am determined to concentrate on the one point which is before me which is an adjournment.

MR LINDON:   With respect, sir, it could be the clash of the giant egos here because we might both have the same failing but, anyhow ‑ ‑ ‑ 

HIS HONOUR:   I deny a giant ego;  I deny a giant ego.

MR LINDON:   Right, thank you, sir.  I withdraw that comment.  Sir, the submissions or the reasons for the adjournment I think are stated, first of all, in the plaintiff's first submissions, dated 15 May, there is a one page submission on adjournment and, secondly, in the submissions field yesterday, sir. 

HIS HONOUR:   Now, I did look at the one page document but I cannot seem to find that at the moment.  I have got the document called: Submissions of plaintiff, 16 May.  And then there is one of 20 May, so they are the two documents:  16 May and 20.  They describe 16 May and 20 May.

MR LINDON:   That is correct, sir.  16 May is a one page application for adjournment in terms of the summons ‑ ‑ ‑ 

HIS HONOUR:   One of the grounds is negotiations could resolve the matter by consent.  That seems a little far-fetched, does not it?  I mean, I do not know but it seems a little unlikely, given the fact that the Commonwealth has opposed the application.  If there were anything in that, one would have expected they would have embraced it.

MR LINDON:   Well, sir, if you turn to the document book 1, towards the back, there is actually a copy of Mr Thorpe's letter to the defendant ‑ ‑ ‑ 

HIS HONOUR:   Now, what is this document?  I do not know this document you are referring to.

MR LINDON:   Sorry, document book 1, sir.  If you turn to page ‑ ‑ ‑ 

HIS HONOUR:   I do not have that document that you are referring to.  Where is that document?  Oh, I see, this is - do you have copies of this document, Mr Roberts, document 1?

MR ROBERTS:   Yes, they were given to me this morning.

MR LINDON:   Sir, if you turn to ‑ ‑ ‑ 

HIS HONOUR:   Do you have any objection to my looking at the document for the purpose of understanding Mr Lindon's submission?

MR ROBERTS:   Not for the purposes of this application, no, your Honour.

MR LINDON:   If you turn to page - yes, sir, if you turn to page 61 of that document booklet, sir, there is a copy of the notice of the plaintiff's offer in good faith to negotiate a consent order and - which was filed at the Court and served on the 15th, last week.  And on page 62, sir, is a copy of the defendant's reply to that letter.  And on page 63 is a copy of Mr Thorpe's reply to that letter, sir, and the treaty documents and so on referred to in the last paragraph are contained in book 2 under heading number 9. 

HIS HONOUR:   Now, these are letters - I think there may be some problem with the pagination, but there is a letter by Mr Thorpe to the Registrar of the High Court;  that is on page 62.

MR LINDON:   Yes, sir.

HIS HONOUR:   And there is a letter by Mr Thorpe to Deputy Registrar Musolino, dated 18 April, that is ‑ ‑ ‑ 

MR LINDON:   I am sorry, sir. 

HIS HONOUR:   That is 65.  Now, where is the response from the Commonwealth showing an engagement in this discussion ?

MR LINDON:   Sir, you have got page 61, Mr Thorpe's letters.  Next page is Mr - oh, I see, there is two page numbers missing.  The two unnumbered pages immediately behind page 61, the next page is the Australian Government Solicitor's reply asking for the details of such terms and agreements, you will see.  And then ‑ ‑ ‑ 

HIS HONOUR:   Yes, I have that letter.  That is a letter of 16 May ‑ ‑ ‑ 

MR LINDON:   It is, sir.

HIS HONOUR:   ‑ ‑ ‑ from the Australian Government Solicitor to Mr Thorpe.

MR LINDON:   Yes, yes.

HIS HONOUR:   It says:

I am presently unable to take instructions on your offer in the absence of more specific details of the terms and agreements you suggest.  In the event that you wish to put a specific proposal to the Commonwealth, I should be grateful if you would provide the details of such proposal in writing as soon as possible.

MR LINDON:   And then that was delivered at 4.40 pm on Friday, the 16th, sir.  And on Sunday, the 18th, Mr Thorpe wrote a reply which was delivered, together with the documents mentioned in the last paragraph - copies of treaties and so on, that was delivered at midday yesterday, sir.  And copies of those treaties are contained in document book 2 under the heading:  9, Local treaties and pay the rent.  And that material was delivered to the defendant yesterday.

HIS HONOUR:   Yes.

MR LINDON:   And as I have indicated, sir, that is not - in an isolated context there is currently the defendant's own reconciliation body is considering the creation of a document of national reconciliation so that does tie in together.  So those negotiations, sir, may not be as hopeless as one would think, particularly because - and this is referred to in the affidavit of Anthony George Kamps, sir, particularly because the defendant's Prime Minister on 16 October last year confirmed the bipartisan support to the process of reconciliation and if, therefore, one would expect that the - all avenues of negotiation of reconciliation would be pursued by the defendant pursuant to its own legislative policy with Aboriginal people.  So that is my point one which is the - has your Honour found the documents referred to in document book 2?

HIS HONOUR:   Oh, yes, yes, I have seen those documents.  It looks as if the Australian Government Solicitor's letter of 16 May is merely a response to the letter from Mr Thorpe and it does not seem to take the hope of negotiation to a settlement any further than responding to the letter.

MR LINDON:   But interestingly, sir, it does not seem to have passed on that letter to its client.  It is quite clear from the wording of the letter of the 16th that it is not going to pass that on, the offer in good faith to negotiate, until Mr Thorpe presents them with detailed terms and agreements.  Now, clearly that is in the context where one of the detailed terms and agreements must be the documents already filed in court, namely the writ.  Those are the constitutional matters:  those of complicity in genocide, the notice to admit facts and produce documents and the various summonses.  I pass up to you now, sir, a copy of the - you will see at the -in number 9 of the document book it says "bound separately" in relation to item number 13, a draft treaty.

HIS HONOUR:   Is there any objection to my looking at this document, Mr Roberts?

MR ROBERTS:   No, your Honour.

HIS HONOUR:   I am examining a discussion paper titled Draft Treaty, Aboriginal Sovereign Position and Legal Entitlement.  A draft written at the direction and under the consultation with Aboriginal representative members of the Sovereign Aboriginal Coalition.

MR LINDON:   Yes, and that is parts of - that is document 13 of the 13 documents that were delivered yesterday to the defendant, and you will see in number 9, if I can take you back there.  That is the work of Kevin Gilbert who is dead now, but - a famous advocate for his people's rights.

HIS HONOUR:   Yes.

MR LINDON:   And if I can take you to number 9, sir, back in document book 2, those 12 other documents.

HIS HONOUR:   Is it number 9 in this Draft Treaty, this is number 9 in the document collection called document 1.

MR LINDON:   No, the document collection called document book 2.  This is the thicker of the two.

HIS HONOUR:   Number 9, where do I find that in the document.

MR LINDON:   Here sir, document book 2, page 2 of the index, sir.

HIS HONOUR:   I see, this is the document collection titled Local Treaties and Pay the Rent. 

MR LINDON:   That is right, and that document collection, including, sir, the one you have just looked at, the A3 size, Kevin Gilbert Treaty, including the documents listed are the Nunukel Treaty which is the one from Dennis Walker, Oodjeroo of Nunukel, sir and the Brabuwooloong Treaty which is number 4 which is the one from Mr Thorpe's people, the Brabuwooloong of Kunigunnai of Gippsland and you will see there is also number 7 and number 8 are reconciliation statements and commitments to indigenous people by various local governments.

There is also number 3 sir, which is of some interest, is the Aborigines' Advancement League of Victoria communication to the United Nations in 1971.  That was placed in the defendants' House of Representatives question upon notice number 1654 on 18 March 1971, some 28 years ago.  So all those documents sir were delivered to the defendant and in relation to the documents in document book 2 which your Honour is looking at, we say that the defendant has notice of all those matters in those documents because essentially they are all the defendants's documents, by and large.

HIS HONOUR:   But what has this got to do with the application for adjournment?

MR LINDON:   Well it is just that you asked a question about whether negotiations were a complete waste of time, whether there was any fruitful likelihood.  I was just saying that those, you know the defendant obviously may want time to properly consider, given its obligations of reconciliation towards Aboriginal people, might want to actually go through the motions of properly considering that offer to negotiate in good faith.  I point out, sir, that it is quite clear that although Mr Roberts claims to have instructions from the defendant and you have seen our argument about that in our submission, sir, it is quite clear that parts of the defendant.

This will be common knowledge, but it can easily be proven on its own documents, parts of the defendant have a totally different view to that being expressed to this Court this morning on behalf of the defendant.  I think that is ‑ ‑ ‑ 

HIS HONOUR:   Well what can a court do?  A court can allow a party to speak to the Court through its counsel.

MR LINDON: I think - you see the argument we have raised there. We say that those instructions to seek to have the matter summarily dismissed without evidence, without filing a defence, are contrary to and breach the Genocide Act, the Reconciliation Act and the Constitution as itself and we also, I should add, say the Racial Discrimination Act as well. That those very instructions are actually unlawful. The Commonwealth can instruct Mr Roberts and other solicitors, other lawyers, to strike the matter out but only upon the filing of a defence meeting and answering or denying the allegations of particular acts of genocide that the defendant has, we say, admitted to already by word and by deed.

In relation to that sir you will see the number 1 document in the document collection is the full text of the speech of the prime minister which is referred to in paragraph 7 of the plaintiff's statement of claim.  So I believe it is legitimate for the Court to refer to a matter which is raised on the face of the document and the full text of that Redfern speech is document number 1 in the plaintiff's document book 2. 

[11.10am]

HIS HONOUR:   Yes.

MR LINDON:   Right.  Now that is one matter about adjournment, sir, which is the likelihood of negotiations and I would say, sir, that given the Reconciliation Convention is occurring next week, the defendants Reconciliation Convention, that it may be, as I have said, that parts of the defendant might wish to make submissions to the defendant in relation to its further instructions.  And it may be, sir, that the likelihood of fruitful negotiations is quite high, given the stated intentions of the defendant in relation to this.  The outcomes it hopes to have from the Reconciliation Convention. 

That is one point and the second point I have already dealt with, sir, which is that we have attempted to seek the most appropriate senior legal advice and that has taken time and our junior legal advice has been somewhat hampered by having to earn a living.  The third point, sir, is that as you will see in the summons dated 15 May, there has been an application made to the ‑ ‑ ‑ 

HIS HONOUR:   It does not seem as though you sought that senior legal advice as you put it, until rather belatedly.  On your say so it was only really last week.

MR LINDON:   Well, you heard Mr Thorpe say he was constrained - he is basically constrained by two laws, the Australian Law and also the law of his elders and there were various matters that had to be discussed and consensus reached and discussion occurred in relation to whether white lawyers would be approached in relation to how they would be approached.  Those approaches were made through customary law way and Mr Thorpe was then instructed - directed to initiate a meeting after indications had been received from certain other Aboriginal people.

HIS HONOUR:   Yes, but he knew that the proceedings were coming, at his request, before the Court today because he was there when the order was made at his request specifically for this day so that b

If the defendant is in - acting in good faith in this matter then why do not they do that?  And I would suggest the answer is because they are the ones that are acting politically.   They are seeking to abuse the process of this law court for political purposes.  Sir, and our submission is put in writing ‑ ‑ ‑ 

HIS HONOUR:   Well, you may see it as political, and you are entitled perhaps, other places at least to comment on that but they might say:  Well, it is political because we do not think it is in Australia's interest as a nation to take this issue to the International Community.  We think this is a thing we have got to sort out within our own country and that it is not appropriate to go to the General Assembly and it is not appropriate to go to the International Court of Justice.  It is a matter which Australians have to sort out.  I mean that at least is a point of view that the executive government of the Commonwealth might have.

MR LINDON:   Yes, but we - you will see in our statement of claim with alleged bad faith both past and present, and we give particularised examples of that.   Mr Roberts says there is nothing in here.  There are no details in the statement of claim about the genocide.  But in fact in paragraph 33, sir, and which - and this was served on 21 April on the defendant we offered to supply within 28 days full particulars of acts of genocide alleged in the statement of claim.  Can I take you to that paragraph, sir, just briefly if I may?  Paragraph 33 says:

The plaintiff claims in relation to certain particulars referred to above the defendant is well aware of the particulars to be alleged...(reads)... complicity of the courts.

Now, the defendant never requested those particulars and it comes to court today to complain that they are not sufficient particularisation.  As far as this comment that Mr Roberts insists on making about it saying:  Insofar as he can understand the written suggestion that in some way it is not comprehensible on its face, sir.   Well, I take strong objection to that.  To me it is eminently coherent.  It satisfied the written requirement of pleadings that they allege.  Only the material statements of - only the material facts on which the plaintiff relies and it does not have to particularise the evidence in relation to that although we have offered to provide that to them, if they say they have not got it. 

And it sets out - the summary you see, sir, which is on page 5 of the book I am referring to, the summary of contents sets out a quite clear progression of matters and essentially it is framed as an old dispute that has been going on for a long time and then there is a current dispute that has come over the top and livens and informs each other.   So just as Mr Roberts says that all these matters of standing and matter and frivolousness are all intertwined, I agree with him. 

Those matters are all intertwined because they are all gate keeping matters.  Those matters can be abused by the gate keeper to prevent substantial meritorious claims being heard by a court.  And if I may return to my political argument, your Honour, has talked about:  Why do not we go and leaflet and all those sorts of things.   We are talking about people who are exhausted from genocide.  They have - I cannot describe to you the situation of resource in terms of getting any activities of that kind together.

These people cannot be shut out of the Court, which is their one place where they have to be listened to.  In political debate their voices can be swept aside.  In a law court they must be listened to equally with the defendants and their evidence must be heard.  That ios a very sacred - I think that is what justice is about.

HIS HONOUR:   I think you will agree they have been listened to and you have been listened to today.

MR LINDON:   Thank you, sir.

HIS HONOUR:   Is there anything else?

MR LINDON:   Just on this political argument, sir, which you stopped me on.   I think it is common knowledge that the defendant Prime Minister and Ministers and other people associated with him, are attempting to diminish the current rights of Aboriginal people.

HIS HONOUR:   Well, I do not think we should go into political statement, really.  It is not relevant to the particular ‑ ‑ ‑ 

MR LINDON:   No, this is legal, sir.  It is legal.  You will see in my document book I have given you, number 4:  Managed about Native Title, including sir, questions and answers from the Native Title Tribunal.  This is in the document book 2.

HIS HONOUR:   Yes.  Yes, I have that.

MR LINDON:   Yes, sir, under number 7 you will see Native Title, Questions and Answers, Defendant's Native Title Tribunal, number 2, 10 point plan, and number 3, details of the plan as released in the paper.  On the defendant's own documents, sir, they are attempting to diminish the rights aboriginal people already hold.  Mr Thorpe has standing to challenge that because he says as an aboriginal person alleging genocide he has standing, as genocide is occurring against his people.  And he has further standing because he claims that his rights have not been recognised and the government is attempting to further diminish them.  Thank you, sir.

HIS HONOUR:   Yes, thank you, Mr Lindon.  Was there anything you wished to add to what Mr Lindon has said, Mr Thorpe?

MR THORPE:   No, your Honour.

HIS HONOUR:   Did he omit to say anything that you would have liked to say?

MR THORPE:   No, I just cannot think of anything at this stage, your Honour.

HIS HONOUR:   Very well.  Thank you very much.

MR LINDON:   If your Honour is going to reserve, which I do not know if you are, would your Honour be prepared to allow us the liberty of written submissions within seven days if there is anything further we want to add?

HIS HONOUR:   Yes.

MR LINDON:   Thank you, sir.

HIS HONOUR:   Is there anything you wish to say in reply, Mr Roberts?

MR ROBERTS:   Not so much in reply, but could I draw your Honour's attention to the amended chamber summons filed on behalf of the Commonwealth.  Order 5, your Honour plans to reserve judgment there.  We would seek an order in terms of paragraph 5.  The amended chamber summons, sir, is at page 39 of the document book 1.

HIS HONOUR:   Yes.

MR ROBERTS:   We would seek an order along those lines, but so as not to prevent the plaintiff from filing any further document by way of submission, your Honour.

HIS HONOUR:   You say you do object to the plaintiff having the right to file another document?

MR ROBERTS:   No, no.  If order 5 could be amended so as to allow for that - or it is understood that it does not prevent the further submission.

HIS HONOUR:   Yes.  I suppose the matter of Mrs King's action not formally being before me, I should not really do anything in that matter.  But it might be sensible for that to wait until whatever happens in this case.

MR ROBERTS:   I would have thought so.

HIS HONOUR:   Mrs King is here ‑ ‑ ‑ 

MR ROBERTS:   If Mrs King agrees with that course we would ‑ ‑ ‑ 

HIS HONOUR:   ‑ ‑ ‑ and she might well agree to that course, but that will be a matter for discussion with the registry.  This matter is not one that is before me in such a form that I can make an order.  Yes, very well.  Is there anything else?

MR ROBERTS:   No, thank you, your Honour.

HIS HONOUR:   Do I take it from what you said earlier that in the event that the Commonwealth is given the relief sought in the amended chamber summons that you ask for costs against Mr Thorpe?

MR ROBERTS:   Yes, we do ask for costs, your Honour.

HIS HONOUR:   Yes, very well.

MR LINDON:   Do you want to hear us on costs now or at a later stage?

HIS HONOUR:   Just one moment.  You handed up to me to help me earlier what looks to be chapter 7 of the Commonwealth's submissions in the Kruger matter.  Did you need that back, or can I keep that?

MR ROBERTS:   No, your Honour, I have another copy, thank you very much.

HIS HONOUR:   Very well, I will put that with your written submissions as part of them.  Perhaps I should hear what you have to say, Mr Lindon, in the event that if you can speak for Mr Thorpe, because you would know the principles, in the event that the Commonwealth is successful normally the court would order that costs be borne by the unsuccessful party.  That is the rule that is usually followed.  Why would that rule not be appropriate in this case?

MR LINDON:   I suppose the nature of what is being talked about, and the public interest in bringing it, sir.  Perhaps it is actually a matter for written submission, which is the question of why costs ought not be ordered be dealt with.

HIS HONOUR:   Yes.

MR LINDON:   But essentially that is the thrust of it.  I think it is clear on the authorities there are cases, not very many, in the case law where that can be done.

HIS HONOUR:   Well, you ask for seven days within which to put in your submissions.

MR LINDON:   And I know your Honour likes to write judgments straight away, but is that too long?  If your Honour set a tighter time line ‑ ‑ ‑ 

HIS HONOUR:   How do you know I like to write judgments ‑ ‑ ‑ 

MR LINDON:   Because you said so last time, sir.  You explained to me in great detail why you did not like adjourning matters part heard.

HIS HONOUR:   I do not.  They go out of people's minds.

MR LINDON:   Well, I am much wiser after you explained to me about that.  So I just know that you want to do things quickly.

HIS HONOUR:   Well, if you can put it in within seven days, that will be in order.

MR LINDON:   Thank you, sir.

HIS HONOUR:   And the Commonwealth would have four days after that to put any reply.

MR ROBERTS:   Thank you, your Honour.

HIS HONOUR:   Very well.  I will reserve my decision in this matter, and I am grateful to you, Mr Thorpe, for your help, and Mrs King and Mrs Booth, and also you, Mr Lindon, and not least you, Mr Roberts, as well.  So the only order I make now in this matter is that the decision stands for judgment.  The court will now adjourn.

AT 4.00 PM THE MATTER WAS ADJOURNED
INDEFINITELY