Thorpe v Cwealth of Aus

[1997] HCATrans 115

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M15 of 1997

B e t w e e n -

ROBERT ALAN THORPE

Plaintiff

and

COMMONWEALTH OF AUSTRALIA

Defendant

Application by plaintiff for interlocutory relief
Application by defendant to strike out writ and statement of claim

KIRBY J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 29 APRIL 1997, AT 10.34 AM

Copyright in the High Court of Australia

MR R.A. THORPE:   I appear in person.

MR L.J. LINDON:   Your Honour, I appear on instructions from Edna Rose Brown, who is the plaintiff in an identical writ issued yesterday, No M17 of 1997, and I hand up a copy of that writ.  You will see it is identical to the writ of Robert Alan Thorpe, save only for the name and address that is on it.  Essentially all the operative paragraphs and the operative remedial claim, the three declarations, are identical.  She is an elder of the Kerrupjmara Tribe and an Aboriginal health worker.  Because the matters are identical, your Honour, I seek leave to appear because it may assist the Court since Mr Thorpe is unrepresented.

HIS HONOUR:   Yes.

MR P. ROBERTS:   I appear for the Commonwealth, your Honour.  (instructed by the Australian Government Solicitor)

HIS HONOUR:   Is there any objection to the return of the proceedings involving Mrs Edna Rose Brown in the Court today?

MR ROBERTS:   No, your Honour.

MR LINDON   I just pass up, sir, a copy of my back sheet which indicates the matters that I am here on.

HIS HONOUR:   Why are you handing me this, Mr Lindon?  I have never been handed counsel’s back sheet for the last 24 years when I was last handed one to myself.

MR LINDON   Just to show, sir, that we are seeking - I am instructed to apply for a four week adjournment and also to support Mr Thorpe and oppose the defendant.  That is why I am seeking leave to appear today.

HIS HONOUR:   Very well.  I will hand you back your back sheet so that you can, in due course, mark it.

MR LINDON   Thank you, sir.

HIS HONOUR:   Yes.  What is your attitude, Mr Roberts, to the foreshadowed application for an adjournment?

MR ROBERTS:   We wish to proceed, if your Honour pleases, to have the proceedings commenced by Mr Thorpe struck out on the various bases foreshadowed in our summons.

HIS HONOUR:   Of course, that would leave Mrs Brown’s proceedings still on the file and they would have to be heard in due course.  What difficulty or injustice is presented by simply standing the matter of Mr Thorpe over to be heard with Mrs Brown’s matter when it is in due course returned before a Justice?

MR ROBERTS:   That is one course.  Alternatively, Mrs Brown’s matter could be heard along with Mr Thorpe’s matter today.  It is in identical terms and she is represented.  The matters would be identical.  Therefore, we would propose, if we could, to have both matters struck out on the same basis, if your Honour pleases.

HIS HONOUR:   Do you have process or an application to strike out Mrs Brown’s proceedings?

MR ROBERTS:   We do not, but we could undertake to have documents filed in due course, along the same lines as those filed in Mr Thorpe’s case.

HIS HONOUR:   Yes, very well.  Mr Lindon, what is the reason for the application for the four week adjournment?

MR LINDON   Essentially, sir, Mr Thorpe received copies of a draft affidavit and draft summons yesterday afternoon and last night at about 7 o’clock received a copy of the issued summons and affirmed affidavit of the defendant.  Because Mrs Brown is a Kerrupjmara elder and there are many members of her immediate family and many relatives and many other members of the Victorian Aboriginal community who (a), would appreciate the opportunity to sit in a court room in Melbourne to understand the reasons why the defendant is seeking to strike it out, so they have an opportunity to actually observe the process.  Up here it is remote from them and they cannot see it. 

Secondly, it is proposed, your Honour, to adduce evidence, initially by affidavit, but also to have the witnesses available for cross-examination should the defendant wish to cross-examine them, to oppose the strike‑out application.  There are various grounds set out in the summons.

HIS HONOUR:   Such applications are never, in my experience, the subject of evidence.  You have to either support the process on its face or you have to seek leave to amend the process to bring it within the rules, but it is not a matter susceptible to evidence.  The question is whether you should get to the evidentiary stage by the doorway of your process.

MR LINDON   Yes.  That is right, but one is entitled, as it were, to put evidence about the calling of evidence before the Court, and these affidavits would address those, if you like, preliminary issues and the evidence that they could give in relation to the matters raised by the defendant, which are not all matters of law, sir.  And essentially, also, because there is an application for costs against Mr Thorpe, one imagines there would be an application for costs in due course against my client, who is an 80‑year old pensioner and, obviously, she needs time to consider her position, take legal advice and, particularly, where what is being envisaged by the defendant is not the normal course where they file a defence and admit or deny the genocide or the various claims that we have put it, but they are saying, “There’s nothing in it.  Strike it out.” 

It is very important that because there is that complete finality, the extinguishment, if you like, of her claim and Mr Thorpe’s and other people’s claims, that they ought to be given every opportunity to prepare properly for that event.  In my view, the notice yesterday afternoon and the actual service of the summons last night is not sufficient time for this to be done, bearing in mind that we are dealing here with Aboriginal people, it is important for them that justice is seen to be done, that they do - if they are going to be knocked out by the Commonwealth at this preliminary stage, they ought to have the opportunity to consult amongst themselves, and to take advice as to whether or not they, for example, wish to withdraw and therefore not be at risk for costs, or negotiate a settlement.  It seems to me, in our submission, it is important to keep this matter alive until those processes have been gone through, in all fairness, it seems to me, to my client and also Mr Thorpe, who is only a first year law student, unrepresented.  It would be appropriate, I think, for him, sir, to take what are fairly significant technical legal matters and, if necessary, get representation on the application to strike out.  We have basically driven overnight from Melbourne, since we received this summons last night, in order to appear.

I suppose my other submission would be that given we have a reconciliation Act which seeks to bring white and black people together, and given that there is a so-called negotiation process continuing as we speak, it is very important that, particularly as we allege bad faith in the government and breach of fiduciary obligation, that Aboriginal people are given the opportunity to fully meet this application to strike out their claim, without any evidence being called. 

HIS HONOUR:   But strike outs are typically, and in my view, in my experience which now extends over 22 years as a judge, always dealt with without evidence.

MR LINDON   Sorry, sir, my points are confused.  I still assert the right to put further evidence in affidavit form in relation to the summons if they see fit.  They have got a right to call evidence if they see fit.  Whether or not it has been done before is another matter, but they have got a right to consider whether they want to do it.  I was actually speaking about the ordinary process.  Normally in the process, the defendant would have to admit or deny - in this case allegations of genocide, sir - and that is a very serious allegation and it seems to me that, obviously one could say if it is struck out on a technicality, a legal technicality of the kind envisaged here, then one cannot assume that they are admitting or denying the genocide.  Aboriginal people are very, as you know, sir, very keen to clarify their position and so, if the government is basically asking to be let off the hook and not have to go through the 33 paragraphs in the statement of claim and admit or deny them, but to merely knock it out on a legal argument, then it is denying the Aboriginal people a chance to call evidence about the genocide. That was my point, sir.

It is not so much the evidence on the strike out, that is the affidavit and I have explained my point there, but it is given that Aboriginal people are going to be denied the ordinary course of events whereby the defendant would deny things and the plaintiff would call evidence and prove on the balance of probabilities that genocide, as defined by the Act, occurred.  Not just killing people but mental and physical neglect, conditions of life calculated to destroy in whole or in part, removal of children and prevention of births, those are the five precise legal definitions of genocide under Article II of the Act.  Article III, as you know, defines a punishable act as complicity in genocide, article III(e) of the Genocide Act.  We say, and we say that in our documents and in our notice of a constitutional question, that the government is, in fact, complicit in technical genocide, in the legal definition of genocide, and that that is continuing.  That is a fairly important allegation and we say that the conditions of life aspect of genocide and the mental and physical suffering aspect of genocide is continuing. 

So those are serious matters, you see, and it seems to me that, in the circumstances, where an Aboriginal person has actually come to this Court alleging that the government has admitted the genocide and the consequences of that, and seeking that the government justify its position to the international community and the world court, so that negotiations can continue, those are all very serious and timely and important questions, your Honour would be aware of, and if it is to be struck out in this way, it is very important for the Aboriginal community, in this case based in Melbourne, to be able to sit in the court room, sir, and hear the defendant’s arguments and hear what your Honour says and hear what the member of their own community says, and to understand why they should be denied this ordinary process, the ordinary adversarial process of, you know, admitting or denying ‑ ‑ ‑

HIS HONOUR:   Let me understand what the basis of the application for adjournment is.  Is it essentially for a change of venue so that the matter can proceed in Melbourne, so that the proceedings can be seen and understood by the litigants?  Is that the basis?

MR LINDON   That is one basis.  I put it on several bases.  I say, first of all, they are entitled to sit in court.  Now, physically they cannot come to Court because it is in Canberra, right.  They are specially entitled, as Aboriginal people, given the history of the unutterable legacy of shame - that is another decision - they are entitled to have that opportunity and make sure that opportunity is had for justice to be seen to be done.

HIS HONOUR:   That is the entitlement of all Australians.

MR LINDON   That is right, sir.

HIS HONOUR:   That is not confined to any particular group of Australians.  That belongs to all Australians and this Court sits in Canberra, this is the seat of the Court, it is here and would normally proceed with this matter here.

MR LINDON   I did check with the Deputy Registrar as to whether it was an unusual or outlandish request and he did indicate that the Court does sit, it can sit ‑ ‑ ‑

HIS HONOUR:   It can, but I am here today and ready to deal with the matter.  What would be the disadvantage, from the point of view of the case of Mrs Brown, which I understand is identical in its terms to the claim being brought by Mr Thorpe, if Mr Thorpe being present, the Commonwealth being present, I simply put Mrs Brown’s writ to one side and heard the case which the strike-out application involves concerning Mr Thorpe, and you could give Mr Thorpe help during the day, with my permission ‑ ‑ ‑

MR LINDON   Exactly, we have discussed that.

HIS HONOUR:    ‑ ‑ ‑and then it may be that the result of Mr Thorpe’s case, if the Commonwealth’s application fails, Mrs Brown’s case would flow as a result of Mr Thorpe’s success.  If Mr Thorpe fails, and the Commonwealth’s application to strike out succeeds, then Mrs Brown’s process is still on the papers and that can in due course be heard and you can make an application for the hearing of the matter in Melbourne.  What is wrong with that course?

MR LINDON   Two things, sir.  With respect, if you struck out Mr Thorpe’s statement of claim and dismissed the action, I mean it is not really - it is idle to suggest that she has got any real options remaining after that.  Secondly, although I say we should be in Melbourne because people can see, I also have put up the proposition about time to prepare and time to get advice, that if this is to be knocked out at this sort of sudden death initial stage, without the full adversarial process, it is important that Mr Thorpe, who has only received formal notice of this last night ‑ ‑ ‑

HIS HONOUR:   Formal notice of what last night, the Commonwealth’s application?

MR LINDON   Yes, yes.

HIS HONOUR:   Does that mean that in some way he is disadvantaged in preparing for it, in your submission?

MR LINDON   Yes.  We received ‑ ‑ ‑

HIS HONOUR:   Perhaps I should hear Mr Thorpe about this, first.  Do you understand Mr Thorpe to be asking for an adjournment of the Commonwealth’s application?

MR LINDON   Yes, si.

HIS HONOUR:   I think I should first hear Mr Thorpe and if he does not say everything you think he should say, you can have a talk with him and he can perhaps be prompted to say anything else that you think should be said.

MR LINDON   Thank you, sir.  Could I just take you to one final point.  You might see, if your Honour had the chance to read the statement of claim and those of the constitutional question, in the statement of claim under “Consequences for the defendant”, which is paragraph ‑ ‑ ‑

HIS HONOUR:   It did not seem to be a constitutional question to me, but you might enlighten me as to how it is a constitutional question.  There is a constitutional question being raised in the Commonwealth’s application.

MR LINDON   Yes, that is the matter point.  Paragraph 25 says:

SOME CONSEQUENCES FOR THE DEFENDANT IF THE CURRENT DISPUTE CONTINUES ‑

you will see that this is - I will pass up a copy for convenience.  It is open to the page, it is just paragraph 26, under the heading “SOME CONSEQUENCES FOR THE DEFENDANT”, paragraph 27, it says:

Other reasonably foreseeable immediate consequences.....include uncertainty and divisiveness at the defendant’s up-coming.....:

(1)  the first Australian Reconciliation Convention, 26-8 May ‑ ‑ ‑

HIS HONOUR:   But how is that a constitutional question?

MR LINDON   No, no, I am just saying, sir, this is my final point before I sit down, is that at that time in Melbourne, from all over the country, Aboriginal people will be gathered to discuss for the first time the reconciliation and also a document of reconciliation.  So that that is about a months time and that is another reason why I say that it would be - the Court should go to Melbourne, not just because of the local Melbourne people but because Aboriginal people from all over the country will be there, will have an opportunity to understand and have clarified why it is they cannot bring an action alleging genocide in this way.

HIS HONOUR:   So far as the Court is concerned, this is simply process between one litigant and another litigant.  You would not normally delay the hearing of an application to strike out so that a lot of other people who are not litigants before the Court could be there to see it.

MR LINDON   But, sir, this is, if I may with respect say, that the Constitution which defines this Court identifies three branches of government: the legislature, the executive and the judiciary. My client and Mr Thorpe’s allegation is that the Commonwealth Government is complicit in genocide and is responsible for the genocide through its actions in the terra nullius period particularly. Therefore we say that this Court, which is the Commonwealth Court, the supreme national court of a member State of the United Nations, has a particular duty, if you like, to ensure that any - this unutterable legacy of shame and terra nullius, to ensure that justice is seen to be done and not just done in relation to Aboriginal people who have suffered for so long. As a matter of judicial notice, sir, as you know, have been denied human rights and rights of citizenship and so on, this is all well documented and beyond dispute. So therefore we say the Court ought be particularly careful and as part of the defendant owes a fiduciary obligation. You will see, sir, Mr Thorpe specifically pleads in his claim, and so does Mrs Brown, under paragraph 22, a special fiduciary obligation of the honourable court, sir.

Now, if that allegation is right, that the Court and the defendant has a fiduciary obligation to Aboriginal people, then should it subsequently turn out that Mr Thorpe’s claim is correct, he has in fact been, as it were, denied something he can be compensated for or placed in a position to, which is that he will have to go through an appeal process in order to justify the fact that he could have had this writ remaining on foot and that the Commonwealth Government had to enter a formal defence, formally admitting or denying acts of genocide.

HIS HONOUR:   Well, the Commonwealth Government says, in various ways through its application to strike out, that these are just not really matters susceptible to litigation in a court of law.  They are political matters that should be debated and agitated before the Australian people, but not appropriate to a law court.

MR LINDON   The Genocide Convention Act does not say that.  Polyukhovich’s Case does not say that, your Honour.  This Court, in Polyukhovich said that the Court has a universal jurisdiction in genocide and whatever date that happened, whether it was 1949 or whether it was later, Polyukhovich’s Case in 1990 made it quite clear that, if you like, the genocide is against the common law, the inherent law or is so consistent with Australian law - however you characterise it.  Anyhow the Court concluded, I think Justice Toohey and Justice Brennan in particular, that there was a universal jurisdiction in relation to genocide which, you know, the long title of which, sir, is to prevent and punish the crime of genocide.  I want to develop that, and that is developed in the constitutional notice that you have before you.  You will see that the second ground of the constitutional notice says that the Court has a jurisdiction when allegations of genocide by the particular member State - in this case Australia - are legitimately raised by an Aboriginal person, which they have been.  We say that therefore the Court ‑ ‑ ‑

HIS HONOUR:   Mr Lindon, the bottom line is that, so far as your client is concerned, the process is not at the moment before the Court and would have to be dealt with in due course, but you say it is bound up in the fate of Mr Thorpe’s case.  So far as Mr Thorpe’s claim is concerned, you drove up here from Melbourne last night, when the matter was returned, and you have only had 24 hours notice of the Commonwealth’s application and you ask for an adjournment, is that it?

MR LINDON   Yes, and no access to legal advice or law library and I bear a special instruction from the elder, as a Kerrupjmara elder, she requests this Court to ‑ ‑ ‑

HIS HONOUR:   Her case is not before me, so she does not have to make any request.

MR LINDON   That is why - as you say, I sought leave to appear, I have been briefed to appear, and my instructions are to convey to this Court her request, as an elder, that the matter be adjourned so she can seek advice and prepare as she sees fit, in conjunction with Mr Thorpe, since their cases apparently rise and fall together.  What is the rush ‑ ‑ ‑

HIS HONOUR:   I do not see the relevance of her being an elder.  She is a citizen of this country and she says that her case is bound up in Mr Thorpe’s case.  Mr Thorpe’s case has come before the Court on 24 hours notice.  That is not enough time for her or Mr Thorpe to have legal advice and therefore that the matter should be adjourned for a time in order to permit that, so that a proper argument can be placed before the Court in defence of the process and that if I were to continue today to hear Mr Thorpe’s case, then although her case would remain separate, in reality her case is bound up in the fate of his case and that therefore it was proper that I hear what she has to say in order to have that taken into account in what I do to Mr Thorpe’s case.

MR LINDON   Absolutely, sir.

HIS HONOUR:   Very well, I will just hear what Mr Thorpe has to say.

MR LINDON   Could I just - you say it is not important to you that she is an elder, and I just say that there is a question of mutual respect for laws ‑ she sent me here and her grandson is here out of respect to this system, because she acknowledges you as one of the seven law men of this country and, as an elder, she has some respect in her own community as a law person.

HIS HONOUR:   I am not one of seven law men.  We are a Court of seven persons, one of whom is not a law man, definitely not a law man. 

MR LINDON   Only one, of course.

HIS HONOUR:   And I mean no disrespect to Mrs Brown, but I just do not see that her position as an elder is relevant to the application which you are making.  But we will not go into that; it is not really very important.

MR LINDON   It is only relevant in so far as she is a victim of genocide ‑ ‑ ‑

HIS HONOUR:   She is a citizen and a citizen in this country is entitled to have process dealt with manifestly fairly.

MR LINDON   She maintains that her law applies, not your law, sir.  That is important, and she is a victim of genocide.

HIS HONOUR:   That is a matter which may have to be debated in due course, but it runs headlong into decisions of this Court.  However, I think I understand what you want to say.  Thank you, Mr Lindon.

Mr Thorpe, do you want to say anything in elaboration of what Mr Lindon has just said to me?

MR THORPE:   Yes, your Honour.  I would be seeking an adjournment as well because ‑ ‑ ‑

HIS HONOUR:   When did you get notice of the application to strike out your process?

MR THORPE:   Our process was ‑ ‑ ‑

HIS HONOUR:   The Commonwealth’s application to strike out your writ and statement of claim and other process.

MR THORPE:   The formal notice of it was at 7 o’clock last night.  We saw the draft of that at 3 o’clock.

HIS HONOUR:   Yes.  It does seem as if the case has come on with great efficiency, but does that put you at a disadvantage in presenting your arguments in defence of your statement of claim or do you feel that you could present your arguments today so that a delay is not going to cause you any disadvantage?

MR THORPE:   Your Honour, I think that it would cause me delay.

HIS HONOUR:   It would cause you delay if the matter were adjourned, but do you think that you could present your arguments today fairly, or do you want to have time for legal advice and assistance?

MR THORPE:   Yes, I would like to have more time, thanks.

HIS HONOUR:   One of the matters that I think you were seeking on a subpoena which was addressed to the Prime Minister, the Deputy Prime Minister and the Solicitor‑General concerned the so-called 10‑point plan.  Now, as I understand it from the newspapers this morning, that is going to be revealed by the end of this week, so that if in fact the matter were adjourned, that part of your application would become, as I understand it, futile.  Have you considered that issue?

MR THORPE:   I see it like that as well, your Honour.  We also subpoenaed for their - a notice to produce - it was also based on a top level legal advice that the government received in respect of that ‑ ‑ ‑

HIS HONOUR:   Yes, I saw that.  But all of that stands in abeyance until the consideration has been reached, that you have a viable cause of action.  Because unless you do, then the ancillary process of subpoenas would not be considered.  The Court would first have to determine whether or not you have a case that is going to be heard in the Court and only if you do does it come to the next step, which is to consider whether or not subpoenas will issue or injunctions will issue such as you seek.

MR THORPE:   Can we ask the Court why this was not issued to us prior, earlier, last Tuesday?

HIS HONOUR:   Why what was not issued to you?

MR THORPE:   The subpoena.

HIS HONOUR:   The subpoena is an order of the Court which is issued on a praecipe which has been filed and an application has been made to issue a subpoena but by order of a Justice, that application has been returned before me to be determined in conjunction with the application to issue and proceed on the writ and the statement of claim and the Commonwealth has now sought to strike out that writ and statement of claim.

MR THORPE:   We were not informed of that, your Honour.

HIS HONOUR:   That is the technical step that has been taken.

MR THORPE:   We was in the Registry on a number of occasions over the last week and we were not informed.

HIS HONOUR:   You would understand that a subpoena is a very powerful order from a court and it involves inconvenience, sometimes cost, and sometimes the obligation to get legal advice and therefore, at least in some cases, it is not issued automatically.  If there is a question, it can be referred to a Justice and that is what has happened and I am now determining it.  If you succeed in your application to issue your writ and statement of claim, then consideration would be given to your application at an appropriate stage to issue subpoenas and to seek injunctions and to get other relief.  But you must first pass through the gateway of having a viable cause of action.  That is what the Commonwealth is challenging.

MR THORPE:   Can I say, your Honour, my view of the Mabo Case and the removal of terra nullius and the resulting Wik decision has taken Aboriginal people further and further away from their legal rights in this country, I see.

HIS HONOUR:   That might be so, and that can be the subject of debate in the proper forum and perhaps at a later time, but the immediate question is your application for adjournment.  Is there anything else that you want to say in relation to that?

MR THORPE:   Is it possible for me to discuss this with some senior legal advice?

HIS HONOUR:   Is that what you want to do?  Is that the reason for your application for adjournment?

MR THORPE:   The other point of that is our position on having this taken to Melbourne and heard in Melbourne, the adjournment.

HIS HONOUR:   Did you raise that possibility with the Registrar?

MR THORPE:   We notified the Registrar - sorry, this is in a letter to the defendant yesterday morning, 9.20:

The plaintiff proposes to seek an adjournment of the hearing until 26 May in Melbourne upon the defendants undertaking until the adjourned date not to claim that the government’s Wik plan do not breach international conventions or the Racial Discrimination Act ‑

HIS HONOUR:   Yes, very well.  I think I understand the basis for your application.  You say you just have not had enough time to get legal advice and you want it adjourned and you want it adjourned to Melbourne and preferably some time later in May when there will be people who would be interested available to come and hear the proceedings, is that correct?

MR THORPE:   And provide affidavit evidence to that.

HIS HONOUR:   Yes.  That raises another question.  But I think I understand how you are putting it.  Thank you very much, Mr Thorpe.

Mr Roberts, the normal principle is that a matter which comes before the Court rapidly, and in which an application for an adjournment is made, should be the subject of adjournment unless there is some injustice that is the result of refusing the application for adjournment.

MR ROBERTS:   I will just mention a couple of matters, if I may.  These proceedings come on this morning by reason of interlocutory orders sought by Mr Thorpe.  It is in answer to that that our strike-out application is put.  Mr Thorpe was given notice last Thursday of this strike-out application.  He was not given a copy of the summons but he was given written notification that this was to take place last Thursday. 

Your Honour, ordinarily one would expect persons who invoke the processes of this Court to be able at least to justify the invocation of those processes which is basically what our strike-out application is all about.  Included within the grounds of strike out is the claim that these proceedings are an abuse of process and we would submit that, by what has been said this morning, it has become even more apparent that that is the case, that there can be no legitimate expectation that these proceedings were brought to litigate to finality, that they have been brought on for ulterior purposes, with no proper legal basis.  Your Honour, in those circumstances, it would be appropriate that if they are to be struck out, that they be struck out as soon as possible.

HIS HONOUR:   That may be so, but there would be no basis upon which I could possibly strike out Mrs Brown’s application today, because that matter is not returned before me.  Therefore, at some future time, possibly in Melbourne, the Commonwealth will have to proceed to make application in that matter.

MR ROBERTS:   One wonders why an application is made in exactly the same terms by another person.

HIS HONOUR:   One can wonder all one likes, but the fact is that there is process before the Court which has to be dealt with, one way or the other.

MR ROBERTS:   Yes.

HIS HONOUR:   And therefore, at some future time, the time of the Court and the time of the parties is going to have to be consumed to deal with Mrs Brown’s case.  Here we have before us an unrepresented litigant who, you say, was given notice on 24 April - that is the day before Anzac Day, a long weekend intervened, and on the Tuesday following, the matter is returned before the Court.  He realises that the interlocutory process that he seeks is dependent upon the substantive process.  That has been explained to him.  He does not, as I understand it, now press the interlocutory relief and the question that I am asking is, what injustice is done to the Commonwealth, in those circumstances, in standing over this matter to be returned on the day when one would ordinarily return Mrs Brown’s matter, and possibly in Melbourne, so that at the one hearing, the case can be heard to finality in both applications?

MR ROBERTS:   The only matter is the matter I put to your Honour, if these proceedings both are abuses of process, which we contend they are, then the fact that they remain on foot is itself something to be deplored.  That is the one basis that your Honour can or should take into account in relation to that matter.  Other than that, the matters have been put in relation to the grounds for adjournment and I have no other basis I want to ‑ ‑ ‑

HIS HONOUR:   I think your solicitor was wanting to say something to you.  If you want to take further instructions ‑ ‑ ‑

MR ROBERTS:   I will, if I may.

HIS HONOUR:   Yes.

MR ROBERTS:   Thank you, your Honour, that is all I wish to put.

HIS HONOUR:   Is there anything you wish to say in response to what has been said by Mr Roberts, Mr Lindon?

MR LINDON   Just from Mr Thorpe and myself, Mr Thorpe received a letter which the defendant claims is notice.  It referred to the above matter.  It confirmed they had acted for the Commonwealth.  It enclosed by way of service an appearance and a notice of appearance and it said, “I have been instructed to make an application to strike out your statement of claim and have the matter based thereupon dismissed.  I anticipate filing the necessary summons shortly.”

HIS HONOUR:   What date is that?

MR LINDON   This is dated 24 April.  This was received by Mr Thorpe, I think, about 7 o’clock on the Thursday evening before Anzac Day.  It was not in Mr Thorpe’s anticipation that that would be coming on as shortly as Tuesday.  There was no indication in that letter, which is my point, that it does not say, “We anticipate filing a summons shortly and we will be asking that this matter be heard on Tuesday, along with your interlocutory application for an injunction.”  If they had intended it, as the defendant’s counsel has just said, for the matter to come on on Tuesday, why did not they say that then?  Then we could have taken some steps.

HIS HONOUR:   Mr Roberts, I am inclined to grant an adjournment of the application.  Are there any submissions that you wish to make in relation to the suggested change of venue?

MR ROBERTS:   No, your Honour.

HIS HONOUR:   The date that has been proposed of 26 May would not be suitable to the Court, and that whole week the Court is sitting in Canberra, so that is completely out of the question.  But it might be desirable that the matter is returned in the previous week so that the matter can be disposed of during the month of May.  I imagine you want to have it disposed of as quickly as possible?

MR ROBERTS:   If we may, yes, your Honour.

HIS HONOUR:   Is there anything else that you would wish to say in relation to the terms of the adjournment?

MR ROBERTS:   No, nothing, thank you, your Honour, at the Court’s convenience.

HIS HONOUR:   You heard what I just said, 26 May is a week where the Court is sitting in Canberra so that the return date would have to be some day in the week preceding that.  Is there any date that is more convenient to Mr Thorpe or yourself?

MR LINDON   I am suggesting the 19th, your Honour.

HIS HONOUR:   Is there any date in that week that would suit you, Mr Roberts?

MR ROBERTS:   Your Honour, whatever date is suitable to the Court.

MR LINDON   I am just wondering, sir, Friday, the 23rd, if that is more convenient to the Court.

HIS HONOUR:   Is that suitable to you, Mr Roberts, to your solicitors?

MR ROBERTS:   Yes, thank your Honour.

HIS HONOUR:   Several proceedings are before the Court in chambers: 

(1)  A writ issued by Mr Robert Alan Thorpe, (the plaintiff), with a statement of claim attached;

(2)  A summons issued by the plaintiff seeking an injunction to restrain the Commonwealth of Australia, the defendant, from any further representations that “the government’s plan” does not, and will not, breach international conventions and the Racial Discrimination Act - the “plan” referred to is a plan for legislative and other action arising out of the decision of this Court in the Wik Case relating to aspects of native title;

(3)  A praecipe for the issue of subpoenas duces tecum directed to various officers of State and the Solicitor‑General; and

(4)  A summons by the Commonwealth seeking orders, in effect, to strike out the process of the plaintiff and to dismiss his claim.

The matter has been returned before me today.  Before the substance of the matter could be heard an application was made that I hear counsel for Mrs Edna Brown.  Mrs Brown is the plaintiff in separate proceedings lodged in the Melbourne Registry of the Court.  I have been handed the writ and statement of claim in her proceedings.  They appear to follow precisely the form of the process issued by the plaintiff.  Presumably they would be subject to the same objections on the part of the Commonwealth.  Mrs Brown’s process is not before me today.  However, counsel appearing in her interest suggested that, because of the similarity of her claim and that of the plaintiff, it was important that I should take into account her interests before disposing of the matter affecting the plaintiff.  This was said to be because, as a matter of practicality, the fate of the one was bound up with the fate of the other.  I therefore heard what counsel had to say.  In effect, it was that the Commonwealth’s proceedings had been brought before the Court with insufficient time for Mr Thorpe to receive legal advice and assistance to defend his process from the attack in the summons by the Commonwealth.  The plaintiff endorsed that submission.

I have been informed that the plaintiff was first notified of the Commonwealth’s strike out application on 24 April 1997.  That is the Thursday before Anzac Day.  He only received the formal process yesterday.  In the normal state of affairs the Court would proceed to hear the application to strike out the plaintiff’s process because, if it were struck out or otherwise summarily terminated, the ancillary proceedings and the subpoenas sought by the plaintiff would fall with it.  The plaintiff is an unrepresented litigant.  He is an Aboriginal Australian.  The statement of claim which he has filed appears on its face to present a number of legal difficulties.  Those difficulties are adverted to in the process of the Commonwealth.  But should they be addressed today?

The general principle in relation to an application for an adjournment, at least in a matter such as this, is that, where it is necessary for the interests of justice, an adjournment should ordinarily be granted unless the party resisting the adjournment can demonstrate that to do so would create an injustice to it which other orders would not repair.  The Commonwealth resisted the application for adjournment stating that, on the face of the documents filed by the plaintiff and in the light of what was said in support and defence of those documents today, the process was without merit.  The Commonwealth should therefore be relieved here and now from being further troubled by it.  There is some force in that submission, at least on a quick examination of the plaintiff’s documents. 

However, taking into account the very short notice that was given of the application, the fact that the actual summons of the Commonwealth was only received by the plaintiff yesterday, the fact that he is unrepresented, the fact that Mrs Brown’s case waits in the wings for determination and the absence of any demonstrated irremediable injustice, it seems to me that the proper course is to adjourn the proceedings today.  They will be returned on a day when it may be anticipated that Mrs Brown’s writ and statement of claim will be before the Court, together with what may be expected to be a similar strike out summons by the Commonwealth in that case.

The plaintiff indicated that he wished to have the venue of the hearing of the Commonwealth’s summons changed to Melbourne.  No objection was raised by the Commonwealth to that course.  It seems convenient that the hearing should be changed to Melbourne.  A request was made that the hearing take place in the week of 26 May.  However, that is a week where the Court will be sitting in Canberra.  Accordingly, I return the process in Mr Thorpe’s case before the Court on Friday, 23 May 1997, in Melbourne.

MR LINDON   Excuse me, your Honour.  Is it possible to make that Wednesday.  We have had whispered discussions here about dates, because that is ‑ ‑ ‑

HIS HONOUR:   Is that a day suitable to the Commonwealth?

MR ROBERTS:   Yes, your Honour, thank you.

HIS HONOUR: On Wednesday, 21 May 1997, in Melbourne at 10 am. In the event that a summons is issued in like form by the Commonwealth addressed to the proceedings brought by Mrs Brown, that summons will be returned on the same day and in the same place for hearing consecutively with the proceedings involving the plaintiff. The costs of the proceedings before the Court today will be costs in the matter so returned. The parties should ensure that any requirements of notice under s.78B of the Judiciary Act 1903 (Cth) are complied with in good time before that day.

Mr Roberts, in relation to the notice under section 78B, as I understand it there have been responses by some only of the States in that matter, is that so, or have all States indicated that they do not wish to appear?

MR ROBERTS:   Could I inquire which 78B notice?

HIS HONOUR:   Your one.

MR ROBERTS:   The one that we issued.

HIS HONOUR:   Yes, that is the only one that seemed to me to raise a constitutional question.

MR ROBERTS:   Yes.  We have not had replies as yet, your Honour.

HIS HONOUR:   Would that not have been a further reason for the adjournment of the matter?

MR ROBERTS:   It would have been, I suppose, in relation to the first ground, but given that we had five, we thought that we ‑ ‑ ‑

HIS HONOUR:   If you were relying on the first ground, I think the provisions of the Act are mandatory and the Court must go no further.

MR ROBERTS:   That is so, but we actually have issued a 78B notice in the question and we have not had responses ‑ ‑ ‑

HIS HONOUR:   The adjournment will give you plenty of time to have that matter resolved.

MR ROBERTS:   It will, your Honour.

HIS HONOUR:   Similarly for you, Mr Thorpe, and for any notice that is given in the case of Mrs Brown.  Such notices, if not already given, should be given forthwith so that there is no question of adjournment when the matter is returned before the Court as it now will be on Wednesday, 21 May, in Melbourne at 10 am.

MR LINDON   Just to clarify, that is not part heard before you.  It could be any Justice of the Court.

HIS HONOUR:   Yes.  It is not part heard before me.

MR LINDON   Thank you.

HIS HONOUR:   The Court will now adjourn to a date to be fixed.

AT 11.21 AM THE MATTER WAS ADJOURNED