HIGH COURT OF AUSTRALIA
GAUDRON, J
IN THE MATTER OF AN APPLICATION BY CLIVE DAVISON FOR LEAVE TO ISSUE PROCESS AGAINST THE COMMONWEALTH OF AUSTRALIA AND THE ADMINISTRATIVE APPEALS TRIBUNAL
Practice and procedure
(1997) 148 ALR 1
22 September 1997
Practice and procedure
CATCHWORDS Practice and procedure—Application for leave to issue writ of summons and statement of claim—Prior direction that process not to be issued without leave of a Justice—Process amended following prior refusal of leave. High Court Rules, O 58 r 4(3).
Orders
Order:
Application for leave to issue writ of summons and statement of claim granted subject to the following conditions:
(i) that the Australian Capital Territory be joined as a party to the proceedings; and
(ii) that the status of the Administrative Appeals Tribunal as a party to the proceedings be clarified.
Decision
GAUDRON J. Mr Davison ("the applicant") seeks leave to issue a writ of summons and statement of claim against the Commonwealth of Australia and the Administrative Appeals Tribunal. The application was made following a direction by Gummow J under O 58 r 4(3) of the High Court Rules that the process not be issued without the leave of a Justice. An earlier application for leave to issue a writ of summons and statement of claim against the same parties was refused by McHugh J on 20 August 1997 following a similar direction by the Chief Justice under O 58 r 4(3). The statement of claim with which I am concerned is, in important respects, different from that considered by McHugh J.
It may at once be noted that the applicant is not legally represented and that the statement of claim the subject of the present application appears to have been drawn by him without the benefit of legal advice. This notwithstanding, it emerges from the statement of claim that the applicant, who lives in the Australian Capital Territory, applied unsuccessfully to the Supreme Court of that Territory for access to certain documents under the Freedom of Information Act 1982 (Cth) ("the FOI Act"). He then applied to the Commonwealth Administrative Appeals Tribunal for review of that decision but was informed that the Tribunal lacked jurisdiction to entertain his application. It also emerges that the applicant seeks a declaration, amongst others, that the Australian Capital Territory (Self-Government) Act 1988 (Cth) ("the Self-Government Act") is invalid on the basis that it involves an abdication by the Commonwealth Parliament of its legislative powers with respect to the seat of government and, thus, is not a law under s 52(i) of the Constitution. It also emerges that the applicant contends that s 52(i) is the only head of constitutional power applicable to Canberra and, hence, the Australian Capital Territory.
The applicant's claim that the Self-Government Act is invalid is the foundation for a further claim that the Australian Capital Territory Supreme Court Act 1933 (Cth) was not converted into an enactment of the Australian Capital Territory by the Self-Government Act[1] but remains an act of the Commonwealth Parliament. That, in turn, supports his claim that the Supreme Court of the Australian Capital Territory is "a Commonwealth agency" subject to the FOI Act and, thus, the Administrative Appeals Tribunal has jurisdiction to entertain his application for review.
In his judgment with respect to the applicant's earlier application for leave to issue process, McHugh J observed, by reference to s 122 of the Constitution and statements in Capital Duplicators Pty Ltd v Australian Capital Territory[2] and Berwick Ltd v Gray[3], that "it might be thought that a claim that the Australian Capital Territory (Self-Government) Act was invalid would have little prospect of success."[4] However, his Honour added that "if the applicant's statement of claim had shown the basis of such a challenge and that he had standing to make it, I would give him leave to mount such a challenge, provided the statement of claim was not otherwise defective."[5]
As already indicated, the statement of claim involved in this application differs in important respects from that considered by McHugh J. Indeed, as the applicant indicates in his affidavit sworn in support of the present application, he has "relied upon the Court's reasons for judgement" with respect to his earlier application in drawing his second statement of claim. In my view, the statement of claim now discloses material indicating that the applicant has standing to seek relief with respect to his application to the Administrative Appeals Tribunal. And it also discloses the basis of his challenge to the validity of the Self-Government Act.
There is, perhaps, some material in the statement of claim which is extraneous to the matters which the applicant wishes to agitate. That is not a matter that is likely to cause incurable embarrassment. There are, however, two matters which are potentially embarrassing and to which attention should be drawn. The first is that it is not at all clear that the Administrative Appeals Tribunal can be made a party to the proceedings or, if it can, that it can be made a party by that name. The other matter is that the Australian Capital Territory should be made a party to the proceedings.
Subject to the joinder of the Australian Capital Territory and clarification of the position with respect to the Administrative Appeals Tribunal, I would grant leave to the applicant to issue the writ of summons and statement of claim.
FOOTNOTES
[1] See s 34 and Sched 2.
[2] (1992) 177 CLR 248 at 263-265.
[3] (1976) 133 CLR 603 at 607.
[4] In the Matter of an application by Clive Davison for leave to issue process against the Commonwealth and the Administrative Appeals Tribunal unreported, High Court of Australia, 20 August 1997 at 2-3.
[5] Unreported, High Court of Australia, 20 August 1997 at 3.