Vescio, In the matter of an application for leave to issue a proceeding

[2008] HCATrans 256

[2008] HCATrans 256

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S292 of 2008

In the matter of –

an application by CARMELO MICHAEL VESCIO for leave to issue a proceeding

GUMMOW J
KIRBY J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 27 JUNE 2008, AT 10.05 AM

Copyright in the High Court of Australia

MR P.E. KING:   If the Court pleases, I appear for the applicant.  (instructed by Horowitz & Bilinsky)

MR S.J. FREE:   If the Court pleases, I appear for the Commonwealth.  (instructed by the Australian Government Solicitor)

GUMMOW J:   I am not sure you actually appear but you are here pursuant to directions that were given and we have had the advantage of your written submissions.

MR FREE:   That is so, your Honour.

GUMMOW J:   Have you see these, Mr King?

MR KING:   I have, your Honour.

GUMMOW J:   Very well.  Now, the Court would relax the ordinary rule to a degree and allow you up to 30 minutes, Mr King, for your oral submissions to develop what you have said in writing and in the course of developing your written submissions we will be interested to see what response you have to the Commonwealth’s submissions and then after we have heard you, we will consider what course we will take.

MR KING:   If the Court pleases.  Your Honours, the question is whether, pursuant to the Judiciary Act section 34, the Court should grant leave to appeal from the orders of Justice Crennan of 12 June refusing leave to file the applicant’s writ of summons, which writ conformed, we would say, with rule 20 and Form 23 of the Rules, in both the original jurisdiction of this Court under the Constitution, section 75, 76 and the Judiciary Act, the relevant provisions, to determine the question whether a law of the Commonwealth has impaired the constitutional guarantee comprised in section 116. These submissions will shortly address the constitutional guarantee, the facts which are not in dispute for those purposes ‑ ‑ ‑

GUMMOW J:   No, Mr King, you have to show some error on the part of Justice Crennan.  You have to take us to her reasons.  She gave various reasons which are to some degree independent, I think, and she said in the last paragraph:

The documents filed in support of the application are confusing, prolix and embarrassing in form.

She also said that “they disclose complaints which are political in nature”, which is another question and, for myself, I would not see the need to get into the political question doctrine as it applies here at this level, but the first sentence is important because if you are going to get these issues before the Court, you have to get them before the Court in a proper form.

MR KING:   Indeed.

GUMMOW J:   In other words, a form to which there can be effective pleadings.

MR KING:   Yes.  That was the third issue that I was about to adumbrate.

GUMMOW J:   It is the first issue, really.

MR KING:   Can I come straight to that.  Your Honour, in paragraph 14 in my friend’s written submissions he acknowledges that there is no abuse of process with respect to the present writ having regard to the careful definition that Justice McHugh gave to that term in Rogers v The Queen, that is, no illegitimate or alien purpose, no oppression of any party, and particularly the Commonwealth, and nothing that would bring into disrepute the administration of justice.  What my friend says in his argument is that over and above those accepted categories of abuse there may be some lingering discretion.  In our respectful submission, there is no sound basis ‑ ‑ ‑

GUMMOW J:   We are in the world of practical affairs in the law, Mr King.  Why should your client file a process which is immediately subject to a strikeout application which, on the face of it, would succeed?  That is what is put against you.

MR KING:   That is what is put against us, your Honour, but, with respect, that is not the course that has happened.  At this stage Mr Vescio has not even been able to get his writ filed.

GUMMOW J:   You also make some point about invalidity of the Rules.  Is this the appropriate path to go?

MR KING:   No, that is not pressed today, your Honour.

GUMMOW J:   All right.  You also make some criticisms of one of the Registrars of the Court which I do not think is the right way to go, either.

MR KING:   No, not at all, the exact opposite.

GUMMOW J:   All right.

MR KING:   Rather what we say, your Honour, is this, that the learned Registrar who is very experienced in these matters informed Mr Bilinsky when the writ was filed that it was proper as to form and that there was no defect of that type.

KIRBY J:   Yes, but as the Commonwealth has said in the written submissions, that is really a matter for the Court, it is not for the Registrar.  So that we are in the Court now and we are dealing with it ourselves.

MR KING:   Yes.  This is not a case like the case in Glennan that was considered under section 34 or, indeed, Luck that my friend has referred to.  It cannot be suggested here that there is any issue that does not appropriately invite the original jurisdiction of the Court.  This is an important question.

GUMMOW J:   It could not invoke the jurisdiction of the Court.  Of course it could.

MR KING:   Of course, and does.  The questions, in our respectful submission, are really set out in terms of criticisms of the learned judge’s decision not to allow the filing of the writ.  At pages 47 and following of the application book, firstly, with respect, would say that her Honour addressed the wrong question.  Her Honour said in the first sentence at page 37 of the application book that the documents were “embarrassing in form”.

Your Honour, under 6.07 there is only one document that counts or is relevant and that is the writ of summons.  Her Honour never addresses specifically or at all the writ of summons in itself and it is acknowledged by my friend in paragraph 24 of the writ that it expressly invokes the original jurisdiction of the Court and it is not disputed ‑ ‑ ‑

GUMMOW J:   The writ of summons appends a statement of claim, does it not?

MR KING:   That is right, exactly.

GUMMOW J:   So, one can understand calling it documents.

MR KING:   Yes.  Then we say that the learned judge inappropriately addressed the conclusion without giving any reasons that the document was embarrassing as to form.  It complied with the Rules.

GUMMOW J:   What do you say about paragraph 13?

MR KING:   Of my friend’s submission?

GUMMOW J:   Yes.

MR KING:   Can I take your Honour straight to the writ?  We respectfully submit that there is nothing unusual or inappropriate about the matters raised by the writ.  If I can take your Honour straight to paragraph 1 it is alleged that:

At all material times the Plaintiff was and is a citizen of Australia, and a person harmed or adversely affected –

If I can just pause there, if your Honour goes straight to paragraph 22 he says:

As a consequence of the said unlawful conduct and/or threatened wrongful payments the Plaintiff has suffered or will suffer loss and damage.

Now, in relation to his position, he is a racegoer.  It is conservatively estimated that the extra expenses incurred by him of having to go to Warwick Farm instead of Randwick for the six months that this imposition endures is about $1040.  He is not a man who is well off.

KIRBY J:   If he is not well off he should not be going to the races.

MR KING:   I think the racing community would be slightly offended by that comment, your Honour.  I think it embraces all classes and all members of the community, including Mr Vescio.

KIRBY J:   I must say I think this is trivial.  The point that you urged earlier upon me was that in the United States of America the Supreme Court has in respect of challenges to governmental expenditure of funds on religious causes adopted a specially sensitive principle of standing.

MR KING:   That is exactly right, the case of Flask v Cohen.

KIRBY J:   And you say that that should be done here and at least at this stage of the proceedings that question is sufficiently arguable to not provide a barrier to your being heard in Court?

MR KING:   Yes.  There are three points about that, your Honour.  Firstly, Justice Mason in the Australian Conservation Foundation Case that is referred to by my friend, expressly adopts or refers to with approval the American cases on standing.  One of those cases is Flask v Cohen, the very case which we rely upon here because it is, as said in the experience of the learned judges, uniquely offensive deriving from the division within the community where religion and politics become interwoven or intermixed and that is one of the purposes behind the constitutional guarantee.

The second point is that in the House of Lords in the Inland Revenue Case which we cite, Lord Wilberforce and, indeed, two of the other judges observed that it is inappropriate to take a point on standing at the outset of a matter because the issues of standing will depend upon issues of breach in due course and we say that is a well‑found observation here.  Thirdly, we do say that he is in fact affected in his own person, both as to this preclusion from the event and also because of the financial impact upon him, albeit small.

KIRBY J:   Justice Crennan did not, on the face of her reasons, refuse to issue the writ on the basis that self‑evidently your client did not have standing.  There is no reference to that.

MR KING:   There is no reference to that.

KIRBY J:   And, I rather read the Commonwealth’s submission not to lay a lot of emphasis on that suggested impediment.

MR KING:   No.  The other point is this, your Honour, Chief Justice Gleeson in Combet’s Case and, indeed, your Honour Justice Gummow and the other judges in that mater ‑ ‑ ‑

GUMMOW J:   There was specifically no challenge to standing in that case.

MR KING:   It was certainly referred to in the judgement.

GUMMOW J:   I know.  I was there and I heard it and there was no specific challenge to standing.

MR KING:   Of course.  I had the impression that it was an issue, but the Chief Justice said it is a difficult issue and we would respectfully submit that that of itself indicates that it ought not to be any impediment to the filing of the writ.  Turning then to the other matters, in paragraph 3 we allege that the church in question is a religion and we say in the light of ‑ ‑ ‑

GUMMOW J:   What does that mean?

MR KING: That is a religion for the purposes of section 116.

GUMMOW J:   What is this body, the Trustees of the Roman Catholic Church?  Who are they?

MR KING:   They are the persons who administer the religion in this ‑ ‑ ‑

GUMMOW J:   Who are they?  What establishes?  What corporate form?  Do they have a corporate form, not a corporate form, statutory form?

MR KING:   They are simply a group of individuals, your Honour.

GUMMOW J:   Are they?

MR KING:   Trustees, as such.  There are cases in which they are parties, one way or t’other.

KIRBY J:   Are they established under a statute?  Is there a Roman Catholic Church Property Trust Act or something of that kind?

MR KING:   There may be, your Honour, but for present ‑ ‑ ‑

GUMMOW J:   You need to know these things before you draft this sort of document.

MR KING:   But, for present purposes, it is the ‑ ‑ ‑

GUMMOW J:   It has go be thought out before the pen hits the paper.

MR KING:   Your Honour, the issue here is whether or not the church is a religion and that is alleged ‑ ‑ ‑

GUMMOW J:   The first question is, what do you mean by “the church”?

MR KING:   We mean exactly what the learned judge has said in the New Faith decision.  The Chief Justice ‑ ‑ ‑

GUMMOW J:   That was all about what a religion is, was it not?

MR KING:   That is right.

GUMMOW J:   That is a different thing, is it not?

MR KING:   But their Honours made comment about ‑ ‑ ‑

GUMMOW J:   There are adherence to various religions which are not part of a church, I suppose.

MR KING:   Yes, exactly, but their Honours defined various indicia of a religion, which we have mentioned in the written submissions, and this particular case is precisely in point.

GUMMOW J:   All right, go on.

MR KING:   Then if we go to paragraph 4 what we have in this case is the determination by the Finance Minister under the Financial Management and Accountability Act.  That is section 20.  Then we have an approval order by the Minister announcing a decision that the funding will be by authority of the Commonwealth.

GUMMOW J:   This is a press release, is it?

MR KING:   No.  This is the ‑ ‑ ‑

GUMMOW J:   What is the document upon which you based 4?

MR KING:   That is the announcement, your Honour.

GUMMOW J:   And it would have to be particularised.  What do you mean by “announcement”?  We hopefully do not yet live in an age of government by press release.

MR KING:   Exactly.  So, of course, once we were able to file ‑ ‑ ‑

KIRBY J:   It does occasionally happen.

MR KING:   Yes.  One we were able to file the writ, then, of course, we can serve a notice to produce the material.  My friend has not come along today and suggested any of the allegations, namely, that there was a determination under section 20 of the Act, that there was an order under regulation 9 for the purpose proscribed.  Therefore, those issues are precisely, we say, addressed.  Then there is an allegation in relation to the law itself and my friend has made it ‑ ‑ ‑

GUMMOW J:   Where is that?

MR KING:   In paragraph 6.  Then we say that the particular Papal Mass and vigil that is part of the World Youth Day with the 700 priests, bishops and cardinals taking confession involves “a religious observance”.

GUMMOW J:   What do you mean by 7c?

MR KING:   Paragraph 7a?

GUMMOW J:   No, 7c, “is divisive within the Australian community”?

MR KING:   Yes.

GUMMOW J:   Suppose it were, so what?

MR KING:   That is an indicia of an unconstitutional religious purpose.

GUMMOW J:   And what is “the Australian community” for this purpose and what does “divisive” mean?  These are political slogans, are they not?

MR KING:   With respect, your Honour, that is exactly the language of the American cases.

GUMMOW J:   It may be.

MR KING:   Therefore, it is put in that particular way.

KIRBY J:   Just help me this way, Mr King.  You, in your written argument, say that you can get around the decision in Black but in the event that Black stood as an impediment to the decision on the Defence of Government Schools Case, would you be seeking leave of the Court if that is required or would you be submitting that Black should be revisited, given that it adopted in respect of section 116 of the Australian Constitution an interpretation which is significantly different from that adopted in respect of the First Amendment from which section 116 was apparently borrowed?

MR KING:   That is correct.  There are really three arguments here, your Honour.  Firstly, we say that Black relates to the first of the four clauses in section 116, the establishment clause, not the religious observance clause or the free exercise clause or the qualification clause. That is apparent from the judgment of Chief Justice Barwick and the others.

GUMMOW J: What limb of section 116 are you seeking to engage?

MR KING:   We seek to engage the first, second and third clauses, establishment, free exercise and religious observance, that is why we have alleged ‑ ‑ ‑

KIRBY J:   The point made by the Commonwealth in the written submissions is that the majority in Black latched onto the word “for” and “for” is common to the first, second and third of the provisions in section 116.

MR KING:   That is so.

KIRBY J: Would you be seeking to challenge or overturn that reading of section 116 if you were granted leave?

MR KING:   We would say two things.  Firstly, we would say that on a proper reading of the judgements as a whole in Black and some observations of your Honour Justice Gummow in Newcrest Mining which referred back to some observations of Justice Wilson in this particular case, in Black, would lead to the conclusion that the mere fact that the law itself does not expressly endorse the particular outcome does not necessarily mean that the constitutional guarantee is not infringed.  Indeed, what your Honour Justice Gummow said in Newcrest, and following Justice Wilson, was that it may in a proper case have a similar meaning as to “in respect of” or “with respect to”. 

The second point is this, that, yes, we do contest the observations of, I think, two of the judges in Black which we say are ultimately obiter as to the meaning of the word “for” because, if you take this particular case, for example, what we say happened here is simply this, that the Finance Minister, some five days before a general election in November of last year, made a determination under section 20 of the Act establishing a special account for a particular purpose, the purpose set out in paragraph 4, the result of which excluded all other religions and non‑believers from the ultimately discriminatory funding and set in train the Commonwealth bureaucracy to involve itself in the organisation of the religious activity.

GUMMOW J:   Do you plead that the money has already been supplied?

MR KING:   No.  If your Honour goes to paragraph  21:

The Defendant is threatening to and is about to pay out from the Commonwealth Treasury for the alleged impermissible and/or unlawful purposes to the said Church –

and it can only do that under regulation 13 of the Financial Management Regulations by a contract imposing obligations inter se. So, therefore the Commonwealth is directly involved in the administration of a religious activity. There could be no clearer case, we respectfully submit, of a contravention of section 116.

GUMMOW J:   You may ultimately be right, but you have to have it before the Court in a properly constituted proceeding.

MR KING:   Yes, and, we submit, we have expressly pleaded the law, we have pleaded the unlawful purpose.  If your Honour goes to paragraphs 10 and 11, that is where we plead the purpose:

10.But for the acts of the Defendant its servants or agents as alleged herein the said owners, lessees, licences and workers at Royal Randwick would not have given up the premises for the said period or at all and the public would not have been excluded from the said public roads and events.

11.In the premises the Defendant has made a law for imposing a religious observance with respect to some or all of the people of Australia including the Plaintiff.

12.Further, the alleged law is a law for establishing the Roman Catholic Church in Australia and in Sydney in particular.

Then it is set out what in fact is to occur, the vigil, the Papal Mass, the ‑ ‑ ‑

KIRBY J:   The invocation of the first clause does not seem to be really reasonably arguable, given that we all know that that was designed to stop happening, first in the United States of America and, secondly, in Australia, the establishment of a church such as the Church of England is established in England and there is no suggestion here that by giving $20 million to the World Youth Day that the law would be doing anything towards establishing the Roman Catholic Church in this country as equivalent to the Church of England in England.

MR KING:   The American cases, your Honour, take the point that a law intending to achieve the purpose proscribed is as invalid as the law which actually achieves that purposes.

KIRBY J:   You did not exactly answer my question and I do want to have a specific answer.  If Black says that section 116 is to be construed as narrowly as I have just put it to you, would you be seeking to challenge the correctness of Black in these proceedings?

MR KING:   Yes, in these proceedings, for three reasons.  Firstly, we say that the observations to which your Honour referred are on final analysis really dicta relating to the first clause.

KIRBY J:   I have asked you to assume that that is not so.

MR KING:   Assuming that is not so, then we challenge that and we say that the words “for imposing” or “for establishing” or “for prohibiting” are words which refer not only in context to subject matter but also to purpose and that a law whose terms, operation or effect – and I use those words advisedly from Lange v ABC in relation to constitutional guarantees – but a law whose terms, operation or effect impair the constitutional guarantee, that is, freedom of and freedom for religion, are invalid.

KIRBY J:   Do you tell us that that is how the law has developed under the First Amendment in the United States in the equivalent provisions in the United States Constitution?

MR KING:   Indeed, but my first port of call are not those decisions.  My first port of call is the way in which the Court, through a series of important recent decisions in which your Honours Justices Gummow and Kirby have joined, have examined the way in which, firstly, the constitutional guarantee should be interpreted and, secondly, how they should be applied in relation to a particular law.

KIRBY J:   This is Newcrest, is it?

MR KING:   This is Newcrest, this is Smith v ANL and indeed Lange v ABC. But, here we have one of only three express constitutional guarantees in our Constitution and we respectfully submit that it is both appropriate and a very serious question that that issue should be resolved in the particular circumstances of this case, particularly bearing in mind that there is no case, so far as my researches have been able to determine, since the Constitution was established dealing with the second clause, that is, the religious observance clause, and it is not disputed by my friend ‑ ‑ ‑

KIRBY J:   What has that been taken to mean in the United States of America?

MR KING:   It is not in the United States Constitution as well.  That is the only one that is not.

KIRBY J:   I see.  That has been added specially for our Constitution?

MR KING:   That has been added specially here.

KIRBY J:   It does say – the verb is “imposing” any religious observance.

MR KING:   Yes, “for imposing”, but when one looks at the ‑ ‑ ‑

KIRBY J:   There is no “imposing” of a religious observance at World Youth Day.  You can either go or not go, as you please.

MR KING:   There are several levels at which that needs to be looked at.  Firstly, there are the terms of the law itself and there is the terms of the ministerial determination which expressly imposes upon the funds that particular purpose.  Secondly, there is the approval order of the Minister under regulation 9 which again expressly imposes that purpose of religious activity.  Then, of course, there is a practical significance as well.  The press release from the AJC, and again I take your Honour Justice Gummow’s point about the utility of press releases, but in spite of the challenges we have made to the Commonwealth and correspondence and elsewhere, we have not had any sensible response to our assertions, nor any denial even today, but the fact is that the ‑ ‑ ‑

KIRBY J:   Whilst you are on that, have you had reference by the Commonwealth to any Act that has been enacted by the Parliament that gives specific approval of the Parliament to the appropriation, because I took your reference to the four days or five days before the election to give rise to an inference that there had been no express approval by the Parliament for the appropriation because it all came up during the election and Parliament was then prorogued or dissolved and therefore had not had the chance to approve it.  That is what I took.  Now, has the Commonwealth nominated a specific appropriations statute whereby this appropriation was approved by the Parliament?

MR KING:   No, it has not, your Honour, and it does not contest our assertions that this all occurred through the Financial Management and Accountability Act, the mechanisms in that provision.

GUMMOW J:   Have a look at paragraph 22 of your opponent’s written submissions, page 7.

MR KING:   My friend there, with respect, makes an inappropriate submission which is, we would submit, in error.  The submission in the first sentence:

To the extent that the applicant seeks to challenge the validity of the funding –

we do not challenge the funding, we challenge the law, the law which specifies the religious activity for the purpose. Then my friend says in the last sentence, the applicants have chosen “the wrong target.” We have not chosen the wrong target. We are well aware that section 116 relates to a law and the law is the Financial Management and Accountability Act and the Regulation.  My friend has missed the target in that particular submission.

GUMMOW J:   No, the third sentence in paragraph 22 and the fourth sentence.  He says, as in Combet, you have to aim at an Appropriation Act, however widely expressed that Appropriation Act may be.

MR KING:   My friend is just in error in that, your Honour.  There is no Appropriations Act in this particular case.  He has not suggested one today.  He has not turned up with the Minister’s ‑ ‑ ‑

GUMMOW J:   He does not have to.

MR KING:   Perhaps he does not, but, your Honour, the short point is this, that Parliament is as entitled to make an appropriation under the Financial Management and Accountability Act or the ministerial order as it is under a formal Appropriations Act which happens every year at the budget and that is what has happened in this ‑ ‑ ‑

GUMMOW J:   You have sat through these things, Mr King.  We have not.

MR KING:   That is right.  This is a case in point and, indeed, Justice McHugh in Combet made the observation that in an appropriate case an injunction would issue against the determination or the exercise of power under the particular regulation or Act.  That is exactly our case here.  Just to pick up the point that your Honour Justice Gummow makes as well, in paragraph 2 in the Chief Justice’s judgment in Combet his Honour makes the point that Combet was a case in which there was no challenge, constitutionally, to the funding law or to the appropriation.

GUMMOW J:   That is right.

MR KING:   Whereas, this case is quite different, we make that challenge.  So, therefore, in our respectful submission, Combet is off the mark so far as that is concerned and, indeed, on a proper analysis we respectfully submit it supports us.  The Commonwealth does not deny that the Financial Management and Accountability Act is the Act pursuant to which the determination, the order and the agreement with the church to impose or effect or endorse the religious activity occurred.  In our respectful submission, paragraph 22 is not to point.  Your Honours, in our written submissions at page 50 of the bundle ‑ ‑ ‑

GUMMOW J:   I do not want to interrupt you too much, but you are on the yellow light.

MR KING:   I apologise, your Honour.  I am just about finished.  Your Honour, in relation to error, we respectfully submit for the reasons we have set out in detail in our written submissions that the learned judge did fall into error.  On the three questions of standing, Black and Combet, in our respectful submission, those questions, (a) are appropriate to be considered once the writ has been filed, (b) are capable of being answered favourably to the plaintiff and the applicant and (c) are matters which raise serious questions.

KIRBY J:   Mr King, just before you sit down, we do not get so many of these pleading matters in the High Court, many of them are dealt with in the way that has happened here, but in the Court of Appeal we had many such matters, many of them, and I had to deal with many of them there, and the normal practice in the Court of Appeal was that you used a provision such

as rule 6.07 to remove matters which were vexatious on their face, or clearly vexatious or were not serious arguments.

Is there some principle in dealing with pleading matters of this kind that if in fact there is a defect in the actual pleading of the case, but if it presents a serious matter appropriate to be argued, that the parties should have a chance to replead and, if necessary, the Court should direct its attention to the aspect of the matter that is of concern or that is unnecessary or irrelevant to the proper pleading of the matter?

MR KING:   Yes, indeed, your Honour, in our respectful submission.

GUMMOW J:   There is nothing to stop you, as of this minute, with a properly constructed pleading going round and seeking to file it.  You do not need to replead because you have yet pleaded.

KIRBY J:   Yes, but my question to you is about the facility of repleading as distinct from pre‑emptory removal of the matter from access to the Court.

MR KING: Yes. In our respectful submission, that discretion is exercised on a frequent basis and would be appropriate here if there was any view that there is any pleading defect. Our respectful submission, though, is that we clearly allege and raise the issues under section 116, a law, a religious activity and the other matters that are contemplated by that provision. If the Commonwealth says that there is some issue which would give rise to a result in their favour, that can be dealt with once the matter is commenced. Thank you.

GUMMOW J:   We will take a short adjournment.

AT 10.37 AM SHORT ADJOURNMENT

UPON RESUMING AT 10.39 AM:

GUMMOW J:   Do you wish to supplement your written submissions with oral submissions, Mr Free?

MR FREE:   No, your Honour, not unless there is any particular matters in respect of which I can assist the Court.

GUMMOW J:   There may be.

KIRBY J:   You have attended today and we have now in front of us – do you have any assistance that you can give us in relation to the Appropriations Act?

MR FREE:   I do not have specific instructions on that, your Honour, and the Commonwealth’s attitude has been – at this stage of the proceedings not being a party yet to the proceedings which have commenced, it has not sought to address the specific factual allegations or go into evidence or ‑ ‑ ‑

KIRBY J:   But your point in your written submissions is that the applicant has hit the wrong target and that immediately raises the question, is there another target and your suggestion is that, following the decision in Combet, that the correct target is the actual Appropriations Act.  You have unique access to the Appropriations Act that is said to be relevant for this subvention.  Why have you not produced it?

MR FREE:   I do not have instructions on the specific Appropriations Act, your Honour.  The point is only that in due course the Commonwealth in pleading to the statement of claim will need to respond to that and we will need to identify the appropriation on which it relies.

GUMMOW J:   I am sorry, could you say that again?

MR FREE:   I am sorry, your Honour.  It is just that in due course the Commonwealth, if and when it has to respond to the pleading, will have to identify the Appropriation Act on which it relies for this funding.

GUMMOW J:   Thank you.

KIRBY J:   In the earlier stage of these proceedings some suggestion was made that the funding had already been paid.  Mr Markus I think suggested that or suggested that an inference should be drawn that it has, but though you have come today, you have not put before us anything that indicates that that is a fact.  Why would one not draw the inference that it has not yet been paid?

MR FREE:   The Commonwealth is not asking the Court today to draw the inference that it has already been paid.  I have instructions about the timing but consistent with the matter I have already raised, the Commonwealth considers that it is premature for the Commonwealth to go into evidence at this stage of the proceedings on the precise timing of these things.  I have instructions that payments were made in March of this year but that is as high as I can put it, your Honour.  I am not in a position to put that in evidence.

GUMMOW J:   And have been completed?

MR FREE:   The payments have been completed, your Honour.  Those payments, I am instructed, to the State, as to whether they have been applied or applied completed, that is obviously more ‑ ‑ ‑

GUMMOW J:   They are out of the Commonwealth’s hands, as far as you are concerned?

MR FREE:   Those are my instructions.

GUMMOW J:   All right.

KIRBY J:   That would not necessarily, even if it were proved or be the fact, prevent the plaintiff from receiving some relief addressed to the payment if it were found to be an unconstitutional payment?

MR FREE:   Not necessarily, your Honour.  It would depend upon the framing of the relief and on, in my submission, some complicated issues about the utility of that relief but it certainly cannot be said categorically that, even if the payments are out of the Commonwealth’s hands, that there will be no prospect of utility.  It is merely, as I have noted in the written submissions, a significant issue and in my submission a significant ‑ ‑ ‑

KIRBY J:   Could you help me with the proper practice in matters of this kind?  At least in my experience in the Court of Appeal it was very common where a matter raised serious questions for the party where the challenge is made to the actual expression of the party’s claim for relief for that matter to be dealt with not by striking out or forbidding the party from having access to the Court if their process raised a serious question, but dealing with it either on the ex parte application or such can be in the presence of the opposing party to try to clarify and remove extraneous or embarrassing matter.  Now, why would that not be an appropriate course in this case?

MR FREE:   Two things to say in response to that, your Honour.  Certainly it is the case that as a matter of general practice parties are given the opportunity to cure defects rather than have proceedings summarily dismissed or pleadings struck out in their entirety but, in my submission, those are principles which apply in the context of proceedings which have been properly instituted and in respect of which problems of issue estoppel might arise if there is dismissal of those proceedings and that would direct the Court towards that principle that parties should be given the opportunity to cure.

In this situation, the proceedings have not been instituted, as the Commonwealth has noted in its written submissions, and, as Justice Gummow has noted this morning, there is nothing to stop this prospective plaintiff commencing these proceedings in a proper form so they effectively have the opportunity to cure by that route and therefore that should not be an obstacle to this Court.

KIRBY J:   Of course, the plaintiff has been seeking to commence the proceedings since March and has gone through the process that brings the plaintiff here today and the opportunity to start again puts the plaintiff further down the track and presumably would face the barrier that the order of Justice Crennan would remain standing as to the process that the plaintiff originally filed.

MR FREE:   Only as to that process, though, your Honour.  I have referred in the written submissions to a case called Re Davison which is a judgment of Justice McHugh’s.  In that series of cases, if I can refer to it that way, precisely this situation arose.  The party having been refused leave to seek to file an issue originating process was refused by Justice McHugh, tried again, that came before Justice Gaudron.  There is a subsequently reported decision in the ALRs of Re Davison of Justice Gaudron which allowed leave.  So, in precisely that circumstance, even though Justice McHugh had refused an earlier version of the document, a further attempt was made.  Justice Gaudron allowed that document.  So, in my submission, there is no obstacle.

KIRBY J:   There is no obstacle.  The question is, what is the correct way to have the matter considered?  Why was not Justice Crennan’s order infected by her Honour’s reference to the fact that the matter raised political questions, whereas all constitutional challenges raise political questions?

MR FREE:   I have attempted to deal with that in the written submissions, your Honour, in this way.

KIRBY J:   Yes, I read that.

MR FREE:   In my submission, her Honour reasons can be effectively referring to the distinction between what are justiciable political controversies and what are non‑justiciable political controversies.  That is a matter, for instance, that the Chief Justice referred to in Combet, that certain matters that are non‑justiciable are political in that sense but they are not properly brought before the Court.  In that sense, there is nothing in the description of the complaints as political which is inconsistent with what Justice Dixon said about the political character of truly justiciable constitutional issues.

GUMMOW J:   So whether there is or is not an appropriation has to be a justiciable question, surely?

MR FREE:   Yes, your Honour, but, in my submission, that observation by Justice Crennan is a reference to various matters in the statement of claim to which the Court has taken my friend this morning which are political in the sense that they are non‑justiciable sloganistic assertions about the role of religion, et cetera, in society.

GUMMOW J:   It is said that the exercise of various powers by the Governor‑General are not justiciable.  That has been said from time to time.  But we are well away from that area, I would have thought.

MR FREE:   Yes, your Honour.

KIRBY J:   But even then, in Cormack v Cope, the exercise by the Governor‑General of the powers under section 57 of the Constitution for the joint sittings were rendered answerable to this Court, so though political, they were legal because they arise under the Constitution.

MR FREE:   Certainly, your Honour, and undoubtedly consistent with what Justice Dixon said, there are no shortage of matters that are justiciable legal controversies that have a political character but, in my submission, that is not what Justice Crennan was referring to.  She was referring to the elements of this statement of claim which were embarrassing in the sense that they were ‑ ‑ ‑

KIRBY J: But does the Commonwealth contest that the applicant is seeking to raise two serious questions of a constitutional character, that is to say, whether the subvention was in conflict with section 116 of the Constitution and, secondly, whether it was in conflict with sections 81 and 83 of the Constitution as unsupported by an appropriation?

MR FREE:   That is the Commonwealth’s reading of the statement of claim or of the legal issue to which ‑ ‑ ‑

KIRBY J:   Are they not serious questions?

MR FREE:   Undoubtedly, your Honour.  It is a question of form, if I can use that in not the sense of using the wrong capital F form but the form in which the proceedings are sought to be brought to the Court.  Those are serious questions and serious questions which are appropriate within the jurisdiction of this Court, but it is a matter of how they are brought before the Court and ‑ ‑ ‑

KIRBY J:   Just addressing yourself to the issue of standing, and I have been assisted by what you have written in the written submissions there, if the applicant does not have the standing to challenge these appropriation payments, who would have the standing, except the government, which may not wish to approve the challenge to its own actions?

MR FREE:   It would be standing in the Attorneys‑General ‑ ‑ ‑

KIRBY J:   Yes, but if no Attorney‑General gives the standing to the plaintiff, how else can a person in the Commonwealth challenge a suggested non‑compliance with the Constitution?  There must be some way under our system that – they are not in Guantánamo Bay, they are in Australia, and they must have an access to the Court, if it is a serious question.

MR FREE:   Yes, your Honour, and because of the flexibility of tests of standing in the notion of sufficiency of interest, depending upon the facts and on a person’s closeness to the matters which are affected by the funding, it may be that various citizens would have a sufficient interest.  For instance, the chairman of the AJC, if he was resisting being moved from Randwick, may have standing to challenge funding which had the effect of facilitating that removal, but that is speculative, your Honour.

KIRBY J:   They might want the money.

MR FREE:   They may.

KIRBY J:   They might not be the appropriate person to challenge the payment on the two points of principle which the plaintiff wishes to bring to this Court.  How otherwise than by relator action approved by a government which may not wish to approve it for various reasons, how else could it be brought to this Court for determination by the Court?

MR FREE:   Your Honour, beyond saying that brought by a person with sufficient interest in accordance with the way those matters have been considered by the Court on the particular facts of that person’s situation.

KIRBY J:   Why is not the American approach, apparently in Cohen’s Case, why is that not a correct principle, or at least a reasonably arguable principle, that, if that has been the view taken in the United States, why would that not be a reasonable arguable proposition for standing in respect to the challenge to a payment, having a religious character?

MR FREE:   As your Honour observed last week at the expedition hearing, that American approach to standing is itself linked to the American approach to the content of the freedom, so in the sense it would stand or fall

on my friend’s submission about 116.  He effectively seeks to import American jurisprudence about the First Amendment and overtake what the Australian approach has been in relation to 116.  He would really need to say that that brings with it all the associated concepts of standing which are peculiar to freedom of religion.  Unless that package of propositions is said to be reasonably arguable, then the prevailing position is that merely being a taxpayer seeking to challenge an appropriation, whether it is in respect of 116 or otherwise, is not in itself a sufficient interest.

KIRBY J:   There has since Black was decided been the decision in Newcrest and the applicant seeks to reopen the reasoning in Black.  Why does that not present a serious question?

MR FREE:   Again, it may present a serious question, your Honour, and one cannot say categorically that it does not or that that proposition is ‑ ‑ ‑

KIRBY J:   In a society where there are increasing subventions to religious bodies, why is not that an increase in seriousness?  Why has it not increased in seriousness since Black?

MR FREE:   That would be a proposition that may well be factually contested about the trend, if I could put it that way, your Honour.  All that would go to, really, is the seriousness of the question, as I have noted earlier in respect of other issues, but also in respect of standing.  It is not said that there are no serious issues sought to be raised in this summons.  It is really the way in which they are put.  We have raised the question of standing in the context of really the second limb of the leave test, which is to say, even if my friend can establish error in the way the matter was dealt with by Justice Crennan, having regard to the principles in Philip Morris about interference with matters of practice and procedure, whether in the interests of justice it is appropriate to grant leave.  All that is said, your Honour, is that there are then serious obstacles to the substantive claims sought to be put by the applicant.  It is not said that the applicant’s position is baseless or that there are not serious issues to be tried in respect of each of those issues.

KIRBY J:   Yes, thank you, Mr Free.

MR FREE:   May it please the Court.

GUMMOW J:   Mr King.

MR KING:   Just briefly, your Honours.  This is not a case like Luck where the plaintiff sued 32 judges and was properly prevented from filing his writ.  It is not a case like Glennan in which he adopted completely the wrong procedure in relation to section 34.  This is a case in which, in our respectful

submission, the plaintiff has in a formally appropriate way invoked the original jurisdiction of the Court.

KIRBY J:   The Commonwealth has conceded that there are serious questions to be considered.

MR KING:   Indeed, and not only has my friend conceded today the actual facts, including discrimination, including religious activity, including religious observances, but also my friend has conceded that none of the categories ‑ ‑ ‑

GUMMOW J:   I do not think “concede” is the right word, Mr King.

MR KING:   For today’s purposes.  But, none of the categories of ex facie abuse of process identified by Justice McHugh in Rogers it is conceded have occurred.  If your Honours please.

GUMMOW J:   We will take a short adjournment.

AT 10.56 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.02 AM:

GUMMOW J:   What I am about to say represents the conclusions of Justice Heydon and myself.

Rule 6.07 of the High Court Rules 2004 states:

If any writ, application, summons or other document appears to a Registrar on its face to be an abuse of the process of the Court or to be frivolous or vexatious, the Registrar may seek the direction of a Justice who may direct the Registrar to issue or file it or to refuse to issue or file it without the leave of a Justice first had and obtained by the party seeking to issue or file it.

Justice Crennan refused leave to issue a proposed writ and statement of claim for reasons, the penultimate paragraph of which state:

The documents filed in support of the application are confusing, prolix and embarrassing in form. On their face they disclose complaints which are political in nature. They do not disclose any matter of legal substance which would justify the grant of leave to issue the proceeding. In terms of Rule 6.07, the proceeding, if issued, would be an abuse of process and vexatious.

We have had the advantage of written and oral submissions in support of the application for leave to appeal against that ruling by Justice Crennan.  We have also had the advantage of written and oral submissions for the Commonwealth under an opportunity earlier afforded by the Court.

The proposed pleading displays the defects to which her Honour referred in the paragraph I have read as being “confusing, prolix and embarrassing in form”.  We refer in particular to paragraphs 3, 7, 8 and 9 of the statement of claim and more generally to the submission made in paragraph 13 of the written summary of argument by the Commonwealth which was filed on 26 June 2008.

If the applicant seeks to bring before the Court for adjudication the issues with which he is concerned, the High Court Rules are designed to require that this be done in proper form. The proposed statement of claim, on its face, does not meet these requirements and it would be vexatious in the technical sense of the term to launch an action in this Court in reliance upon it.

We say nothing as to the legal merits of any case which, properly framed, the applicant might bring before the Court. We express no view upon the construction or operation of section 116 of the Constitution, nor upon the application in this Court of any “political question” doctrine as developed in United States constitutional jurisprudence. However, for the reasons indicated, we would refuse leave to appeal.

KIRBY J:   The issue now before us is whether Mr Carmelo Vescio (the applicant) should have leave to appeal from an order of Justice Crennan.  In my view, he should.  I would emphasise at the outset that what is sought is leave to appeal.  It is not special leave to appeal, with the different requirements that such an application involves.

The applicant’s standing is reasonably arguable

So far as the threshold issue of the standing of the applicant is concerned, I would agree with the Commonwealth’s written submissions that, within the present authorities, the applicant appears to face certain arguable difficulties for lack of a special interest personal to himself:  cf Australian Conservation Foundation v The Commonwealth (1980) 146 CLR 493, 526, 532 and 547; [1980] HCA 53; Bateman’s Bay Local Aboriginal Land Council v The Aboriginal Community Benefit Fund Pty Ltd (1998) 194 CLR 247 at 260-264 [33]-[41]; [1998] HCA 49.

However, I would reject any proposition that the issue of standing is not reasonably arguable.  In the United States of America, the Supreme Court has adopted a specially flexible approach to the standing that is sufficient to challenge religious expenditures by government:  see Flask v Cohen 392 US 83 (1968).

Given that the provisions of the Australian Constitution, s 116, were deliberately borrowed, with adaptation, from the language of the United States Constitution; given that the provision defends an arguably important and special interest of taxpayers, citizens and others, that they will not have imposed on them funding by the government upon religious views and teachings that they do not accept; given that the Australian law of standing has been in the process of evolution in this Court in recent years; and given that, otherwise, an arguably important question of adherence to the Constitution could not be tested without the concurrence of governmental interests that may not be available, I would not be willing to put the applicant out of court for lack of standing. At least, I would not be willing to do so at this stage of the proceedings. I note that Justice Crennan in her reasons did not suggest rejection of the applicant’s process for want of standing on the part of the applicant.

The s 116 question is reasonably arguable

So far as the substance of the applicant’s challenge is concerned, I would express no final views. I acknowledge the difficulties presented to any prospects for ultimate success by the interpretation of s 116 of the Constitution adopted by this Court in Black’s Case, Attorney‑General (Vic); Ex Rel Black v The Commonwealth (1981) 146 CLR 559 at 583; [1981] HCA 2. However, the applicant, in my view, has reasonably arguable grounds for distinguishing the questions decided by the Court in Black.

In any case, the applicant has indicated before us today that he would intend, if necessary, to seek to have this Court revisit its holding in that decision. I would not regard the ground of challenge, based on s 116, as lacking arguability. Certainly, it does not lack importance and potential significance to the Commonwealth both now and in the future.

The appropriations question is reasonably arguable

So far as the substance of the applicant’s challenge to the existence of relevant authorisation by an appropriation statute supporting the commitment to pay $20 million towards the costs involved in World Youth Day, I would not regard that argument as lacking reasonable arguability either.  It may well be true, as the Commonwealth has submitted, that the applicant has targeted the wrong statute in his challenge to the appropriation:  cf Combet v The Commonwealth (2005) 224 CLR 494; [2005] HCA 61. Such a challenge might have to be to the particular Appropriation Act, if any, nominated to support the approval by the Parliament of the payment in conformity with ss 81 and 83 of the Constitution.

The time sequence of events suggests that it is at least arguable that there may not have been a particular approval by Parliament for the payment.  The promise to pay the moneys from the Consolidated Revenue Fund was said to have been made by the former Prime Minister (Hon John Howard) and a former Minister (Hon Peter McGauran) days before the federal election in November 2007, after the Parliament had been prorogued and dissolved.  No specific appropriation law has been called to attention today by the Commonwealth, although the Commonwealth appeared and had the opportunity to bring the Court’s attention to any specific appropriation statute.

The pleading issues and repleading serious questions

As Justice Crennan rightly observed, there are several defects in the expression of the process presented by the applicant for filing in this Court.  However, the entitlement to enliven judicial process is a central feature of a country that is governed, as this country is, by the rule of law and not by the rule of power or influence:  see The Australian Communist Party v The Commonwealth (1951) 83 CLR 1 at 193; [1951] HCA 5; per Dixon J. It is not to be denied readily or easily.

The seriousness of the applicant’s endeavour was accepted, at least for the purpose of these proceedings, by counsel for the Commonwealth, in my view correctly.  Normally, where such is the case and where there are arguable defects in the way a party (or intended party) has pleaded the case, the proper solution is not to deny the litigant access to the Court at all.  It is to identify the suggested defects; to give leave to replead; and to fix a timetable for that to be done.

This is what, in my view, should have been done in this case. Respectfully, I consider that the discretion exercised by Justice Crennan miscarried. Not least is this so because a consideration that influenced her Honour was said to be the fact that, on their face, the documents presented by the applicant disclosed complaints “which are political in nature”. That was not a material defect. Indeed, it was not a relevant consideration. All such challenges, reliant on the Constitution, are political in nature: see Melbourne Corporation v The Commonwealth (1947) 74 CLR 31 at 82; [1947] HCA 26 and Bennett v The Commonwealth (2007) 231 CLR 91 at 122, [81]-[90]; [2007] HCA 18.

I would reject any suggestion, if such was made in the written submissions for the Commonwealth, that provision of relief at this stage would be futile.

Conclusion:  The applicant should have relief

In the end, the applicant might not be able, on the present pleadings, to replead satisfactorily. Alternatively, if he did replead satisfactorily, he might fail before this Court on the merits on any one of the three questions of difficulty that I have mentioned and that I acknowledge. However, in the Australian Commonwealth he is, in my view, entitled to his day in court. We should facilitate, and not deny or frustrate, that entitlement. Especially should we do so once it is properly conceded that the applicant’s proceedings raise serious questions. Serious questions are the very antithesis of vexatious and frivolous proceedings that are an abuse of process. Yet those are the grounds appearing in Rule 6.09 of the High Court Rules 2004, upon the basis of which the original direction and order were made, which will now be confirmed. Respectfully, I dissent.

Orders

I would grant leave to appeal.  In my view this Court should proceed to hear and determine the appeal instanter; set aside the order of Justice Crennan; direct that the proceedings be accepted for filing; and order that the matter be relisted before a single Justice for consideration of any pleading objections to the applicant’s process.

GUMMOW J:   The result is leave to appeal is refused.  The Court will now adjourn until 10.15 am on Tuesday, 29 July at Canberra.

AT 11.15 AM THE MATTER WAS CONCLUDED