Hopkins v Director-General of Security

Supreme Court of NSW|2014-03-28|Before: Garling J

Judgment 1On 16 December 2013, Jason Hopkins commenced proceedings by a Summons, nominating as the defendant, the Director-General of Security ("Director-General"). 2The Summons sought the following relief: "1. Order official to do his duty. 2. Injunction to stop official, stopping subordinate officials, from doing their duty. 3. Declare when self defence can be claimed, with request to know all statutory power of official." 3On 7 February 2014, the matter was referred to me by the Common Law Registrar in my capacity as the Duty Judge. 4On that day, Mr Markus, solicitor, appeared for the Director-General. 5I was satisfied by documents which were tendered, that written notice of the nature of the proceedings, which included the fact that the proceedings constituted a special Federal matter, had been given to the Attorney-General of the Commonwealth of Australia and the Attorney-General of NSW. I was satisfied that neither of these Attorneys General wished to make submissions to the Court in relation to the proceedings, and did not wish to appear. 6This Court has jurisdiction to deal with this matter, which is a special Federal matter: Hopkins v Governor General of Australia [2013] NSWCA 365 at [27]. 7However, I needed to be satisfied that there are special reasons for determining the matter itself rather than transferring the proceeding to the Federal Court of Australia, and also I needed to be satisfied that the Attorneys General for the Commonwealth and the State of NSW had been notified. 8The question then was whether proceedings should be determined by the Supreme Court because there were special reasons for doing so in the particular circumstances of the proceedings. 9On 7 February 2014, both parties addressed this question in submissions before the Court and both parties submitted that there were special reasons for this Court to hear and determine the matter. However, agreement between the parties does not, of itself and without more, enable the Court to be satisfied that there are special reasons for determining the proceedings. I was so satisfied on 7 February 2014 for the reasons which I then expressed: Hopkins v Director-General of Security [2014] NSWSC 281. 10Accordingly, on 7 February 2014, pursuant to s 6(3) of the Jurisdiction of Courts (Cross Vesting) Act 1987, I ordered that the proceedings brought by Mr Hopkins be determined by the Supreme Court of NSW.

Summary Dismissal 11On 7 February 2014, Mr Markus, for the Director-General, moved the Court for an order pursuant to r 13.4 of the Uniform Civil Procedure Rules 2005 ("UCPR"), that the proceedings be summarily dismissed. 12Informal notification of the intention of the Director-General to seek such an order had been given to Mr Hopkins, and both parties were prepared to, and did, put oral submissions to the Court on that question. 13In order that Mr Hopkins was not prejudiced, and in order for there to be a satisfactory and formal basis upon which the Court could proceed, I ordered that the Director-General file a Notice of Motion setting out the specific orders which he was seeking. In addition to taking oral submissions on the application for summary dismissal, I granted leave to both parties to file further supplementary written submissions dealing with the motion once it was filed. Those submissions were filed.

Applicable Legislation 14Any power given to the Court by the Civil Procedure Act 2005 or the UCPR is required to be exercised in a manner which furthers the overriding purpose which is set out in s 56 of the Civil Procedure Act. Section 56 of the Civil Procedure Act is in the following form: "56 Overriding purpose (1) The overriding purpose of this Act and of rules of court, in their application to civil proceedings, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings. (2) The court must seek to give effect to the overriding purpose when it exercises any power given to it by this Act or by rules of court and when it interprets any provision of this Act or of any such rule. (3) A party to civil proceedings is under a duty to assist the court to further the overriding purpose and, to that effect, to participate in the processes of the court and to comply with directions and orders of the court. (4) ..." 15The Director-General specifically relies on the provisions of the UCPR in making this application. Rule 13.4 of the UCPR is in the following form: "13.4 Frivolous and vexatious proceedings (1) If in any proceedings it appears to the court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings: (a) the proceedings are frivolous or vexatious, or (b) no reasonable cause of action is disclosed, or (c) the proceedings are an abuse of the process of the court, the court may order that the proceedings be dismissed generally or in relation to that claim. (2) The court may receive evidence on the hearing of an application for an order under subrule (1)."

Applicable Principles for Summary Relief 16Rule 13.4 of the UCPR involves the exercise of a discretionary power by the Court. That exercise requires the Court to seek to give effect to the overriding purpose. The overriding purpose set out in s 56 of the Civil Procedure Act obliges the Court to facilitate the just, quick and cheap resolution of the real issues in the proceedings. 17It follows that although summary dismissal of a proceeding is generally inappropriate, if the Court is satisfied that the proceedings are properly to be characterised as either vexatious or frivolous, or if the Court is satisfied that the no reasonable cause of action is disclosed, or that the proceedings are an abuse of the process of the Court, then it accords with the proper exercise of the Court's discretion to dismiss the proceedings because of the absence of any real issues in the proceedings, and because such summary dismissal gives effect to the overriding purpose of a just, quick and cheap resolution of the real issues in the proceedings. 18However, the principles of law, which I set out in some detail in Hopkins v Governor General of Australia [2013] NSWSC 1068 at [63]-[69], make it plain that the exercise of powers to summarily terminate proceedings is always to be attended with caution. The principles also make it plain that a court should not order summary dismissal unless the plaintiff's claim can properly be described as "so obviously untenable that it cannot possibly succeed", "manifestly groundless" or "so manifestly faulty that it does not admit of argument": see General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 at [89]. I will adhere to these principles in considering the Director-General's application.

The Plaintiff's Claim 19I have earlier set out the relief which is sought by the plaintiff in his Summons. The balance of the Summons contains only formal notations. 20At the time of filing his Summons, Mr Hopkins filed five affidavits. The first, sworn 13 December 2013, is of 58 pages and is described as being "in support of Summons". 21It seems that this affidavit sets out the nature of the proceedings which Mr Hopkins wishes to bring, and the basis for the relief which he seeks. 22On 29 November 2013, Mr Hopkins sent by facsimile transmission to the Director-General, a six page letter addressed to the Director-General which made a request for certain nominated staff of the Australian Security Intelligence Organisation ("ASIO") to: "contact me formally to deal some urgent threats to life the staff and myself have knowledge or information and expertise of" 23Mr Hopkins made a number of requests, namely that the staff of ASIO contact him within two clear business days; that they confer generally with him on all points in the reports; that the staff be clothed with appropriate authority; and finally the conferences take place without the attendance of the Director-General or a facilitator. 24The balance of the letter contains instructions which Mr Hopkins wishes to be given to the staff of ASIO who are to attend, such as: "Discuss each of the threats in the reports (or knowledge) and any others identified during the process, in the context of risk assessment, according to the Australian Standard." A reference is then appended to AS NZS 4360 : 2004 - Risk Management, which is the Australian Standard referred to. 25The letter also seeks that the staff officers of ASIO be instructed to discuss every point in the "report" with a short term, a mid term and a long term view. The letter asserts that there are threats and injury reports upon which the conferring is to be based, it includes examples of actions that could follow, it makes reference to an injury prevention test, and notes the specialised knowledge of the author of the letter. It then asserts various duties of a legal kind, including duties resting upon Mr Hopkins, the Director-General and the individual staff officers of ASIO. 26The lengthy, rambling and entirely unfocussed letter of 29 November 2013, was not responded to by the Director-General or any officer of ASIO. 27Similar, but not entirely identical letters were sent by facsimile transmission by Mr Hopkins to the Director-General on 6 December 2013, 9 December 2013, 10 December 2013 and 11 December 2013. Mr Hopkins has not received any response to these four facsimile transmissions, nor the letters. 28Mr Hopkins asserts in his affidavit that the lack of a response to this correspondence constitutes an omission by the Director-General to cooperate to prevent "foreseeable threats" of a kind identified in various exhibits, and inferentially a failure to do his duty. 29In his affidavit, Mr Hopkins sets out the key facts which he describes as being "reports of injury exhibits" in the following way: "37. Personal and real interest statement [Supreme Court act 1970 (NSW) No.52 required for s65(1), maybe required for s66 & s75] Fact a. Plaintiff's life is negatively affected, including financial loss, bodily harm and exposure to other crime, by not having access to the information the witnesses possess. 38.Public, personal and real interest expert report of injury [UCPR 2005 (NSW) P31/D2/SD3] - New Technology Facts concluded relevant to request a. The current technological threat has exposed millions of people: b. It is possible that the long term exposure effect accelerates. E.g. you may not notice for the first 12 months then one more week could kill. c. The current threat doesn't cover the whole state at one time yet, but could easily be affecting 1000"s of people at one time. d. It may have caused homicide already with the cause not known to doctor [Crimes act 1900 No.40 (NSW) p3/d1/S18] e.It may have caused grievous harm already, with the cause not known to doctors [Crimes act 1900 No.40 (NSW) P3/D6] f. It may have had the effect of common assault already [Crimes act 1900 No.40 (NSW) P3/D6/61] g. It could cause homicide, grievous harm, assault of a population which could be called crimes against humanity in the reckless form [Criminal-code act 1995 (Cth) C8/d286/s268.23 & C2/C5/s5.1] h. It could cause homicide, grievous harm, assault of a population which could [be] called crimes against humanity could be caused by intention i. Intention could be called an act of war, [Crimes act 1900 No.40 (NSW) P2/s12]. 39.Public, personal and real interest expert report of injury [UCPR 2005 (NSW) P31/D2/SD3]- Crime Organization. Facts concluded relevant to this request a. Opinion [r.31.27(1)(b)] A organized crime organization exists (criminal group) b. Opinion [r.31.27(1)(b)] The organized crime from this organization is a danger to life and of bodily harm [NSW Crimes act 1900 No. part 3, Division] c. Opinion [r.31.27(1)(b)] Other crime groups could evolve as a result of the lack of investigation of reports of similar crime. Other nations could use some tactics for attacks as a result of the lack of investigation of reports of crime. It is possible that other nations have observed the lack of deterrent from reckless approaches to law enforcement on the accused. d. Opinion [r.31.27(1)(b)] Communication of Intelligence law section 18 of the ASIO act 1979 (Cth) aided the development of the crime organization. e. Opinion [r.31.27(1)(b)] Neutralizing communication of Intelligence law section 18 of the ASIO act will cause no damage to person or the state 49. Public, personal and real interest expert report of injury [UCPR 2005 (NSW) P31/D2/SD3] - Motive of the Director-General of Security to be bias on communication of information caused by, [ASIO act 1979 No.113 (Cth) s7 & s18] a.[r.31.27(1)(b)] There is 25,200 times higher pressure for the Director-General of Security be bias than other statutory officials. b. [r.31.27(1)(b)] Self-defence rule constantly applies to counter Australian Security Intelligence Organization act 1979 (Cth) s18 communication of Intelligence law." (sic) 30In a second affidavit, also filed on 16 December 2013, and described as a "Personal and Real Interest Statement", Mr Hopkins sets out over 42 pages, further material that can properly be described as assertions, unfocussed allegations of fact, hearsay allegations and complete irrelevancies. It seems from this affidavit that Mr Hopkins asserts that a number of incidents involving himself occurred in the period from January 2000 to September 2000 whilst he was at his work place. Having made certain assertions about conduct of various named individuals, he says: "This is evidence of conspiracy to commit a serious crime, I claim now is Grievous Bodily Harm or attempt at murder." (sic) 31He explains this view in this way: "It seemed silly at the time, now I can see the core crime/enemy group may have a person of an anti-social personality who would think this funny and the others could have followed believing it was strong leadership to be that hard or cruel." 32Mr Hopkins asserts that further assaults in addition to the one in 2000, occurred from May 2003 to September 2003, November 2003 to November 2004, and from February 2011 to November 2013. It seems that the latter of these assaults is constituted by exposing Mr Hopkins to a high magnetic field which, he asserts, has occasioned an adverse effect. He says this: "An effect on my life and health during the assaults it effects concentrate well enough so I make mistakes and are less capable in every aspect of my life. With the consequence of negative impacts on the rest of my personal and financial life. An effect on my life and health during the assaults is development of and speech and hearing disorder." (sic) 33Mr Hopkins also claims that the assaults have affected his hearing, he has developed a heart condition, muscle control problems and other nervous system problems. 34As the affidavit progresses, Mr Hopkins makes assertions that unnamed ASIO officers seem to have intimidated the public, interfered in international cash transfers from India in 2009, and that they have illegally communicated information to the Australian Securities and Investment Commission in 2008. He continues with claims that previous employees of ASIO who, because they still have access to ASIO resources such as technological assistance, computing and mobile phone tracking, are being funded by the Director-General or ASIO as "terrorists or criminals". The logic of this conclusion is not self-evident, nor is it supported by the material in the affidavit. 35Mr Hopkins further on in the affidavit, asserts that there are foreign organisations that may know of the crimes. He then sets out in some detail what he asserts are the crimes committed by the variety of individuals named in the affidavit by reference to specific provisions of the Crimes Act 1900 (NSW) and other legislation. Included in these allegations of criminal conduct, are allegations that the named individuals have been guilty of crimes against humanity, engaging in terrorism related offences and, as well, in an offence contrary to s 12 of the Crimes Act by making Parliament the victim of an organisation (ASIO) that has "intimidated" or "overawed" Parliament. 36In the final part of his affidavit, Mr Hopkins set out in a question and answer format, questions which the Director-General may ask of other officials of ASIO, or else which Mr Hopkins may wish to ask the ASIO officials, and the answers which Mr Hopkins expects those questions will produce. 37It is fair to describe the contents of this affidavit as being inadmissible, impermissible hearsay, speculation, rumour and innuendo, and a collection of wholly unconnected facts and assertions. It includes an exercise of copying at length, and without analysis of any rational kind, of various provisions of legislation. 38There are three other affidavits filed on 16 December 2013, by Mr Hopkins, of which he is the deponent. Each affidavit is described as an affidavit of "expert opinion". In respect of each affidavit, Mr Hopkins claims expertise because he has a degree of Bachelor of Applied Science and Physics from the University of Technology Sydney, and because he has studied 15 out of 16 subjects of a Master of Business Administration at the University of Technology Sydney. He purports to give expert evidence on, amongst other things, new technology and his own public personal and real interest of injury. 39On 15 January 2014, Mr Hopkins filed a supplementary affidavit dealing with technology upon the basis of his own claimed expertise. 40It is unnecessary to make reference in any detail to these "expert" affidavits. It is simply appropriate to say that with respect to the contents of each of these affidavits, the academic qualifications of Mr Hopkins upon which he relies, do not establish that he is an expert of a kind who is qualified to give evidence in respect of the subject matters encompassed by these affidavits. 41As well, a quick perusal of the affidavits indicates that they also consist substantially of argument and assertion. They do not provide any evidence of any expert opinion of any kind upon which a court could rely. The "opinions" are obviously not in admissible form. 42The final affidavit to which it is necessary to make reference in order to attempt to understand the nature of the proceedings which Mr Hopkins wishes to bring, is one filed on 20 January 2014 and entitled "In support of Summons 'Cause of Action' Material". 43This affidavit annexes copies of pages from a text book dealing with Civil Procedure, and also a copy of the NSW Health Disaster Risk Management Guidelines. The affidavit makes reference to legislation which it is said is applicable in the proceedings by drawing attention to nominated specific sections. The legislation includes the Crimes Act 1900, and the Criminal Code Act 1995 (Cth), the Work Health and Safety Act 2011, and the State Emergency and Rescue Management Act 1989. The affidavit finally refers to various provisions of the Australian Security Intelligence Organisation Act 1979 (Cth) ("ASIO Act"). 44The affidavit does nothing in any rational way to elucidate the cause of action upon which Mr Hopkins claims the relief to which he says he is entitled.

Discernment 45Doing the best I can with all of the material, it appears that Mr Hopkins, having sent, on six separate occasions, a facsimile transmission to the Director-General, to which there has been no response, seeks either an order in the nature of a Writ of Mandamus or an injunction to compel the Director-General to take various steps, not merely by responding in writing to the correspondence, but by doing the things demanded by the correspondence, to the satisfaction of Mr Hopkins. 46The first issue to be considered is whether the failure by the Director-General to respond to the correspondence either by way of acknowledgement of receipt, or in any substantive way, can give rise to the relief which is claimed. In my opinion, such a claim is wholly untenable and unarguably hopeless. 47There is no statutory basis for a claim that the Director-General, or any officer of ASIO is obliged to respond to any, let alone all, correspondence which it receives. 48The Director-General is appointed by the Governor General and provision is made for such appointment by s 7 of the ASIO Act. Section 8 of the ASIO Act provides that ASIO shall be under the control of the Director-General. Section 17 of the ASIO Act provides for the functions of ASIO. There is no specific statutory function of the kind here asserted which would oblige the Director-General to conduct himself in the way asserted by Mr Hopkins, namely by responding to his facsimile transmissions and correspondence, nor is there any specific function which would oblige ASIO to respond, as Mr Hopkins wishes. 49The claim by Mr Hopkins for the relief sought upon the basis of a failure to respond to correspondence sent by facsimile transmission is hopeless and without any merit whatsoever. 50The second basis for relief which is advanced by Mr Hopkins, seems to be that officers of ASIO who are under the control and authority of the Director-General, have not conducted themselves in a way which Mr Hopkins asserts accords with their legal obligations. 51Mr Hopkins asserts that he has a personal interest in such conduct being ordered to be undertaken, but it has to be said that his personal interest is, at best, elusive. I am satisfied that in reality his personal interest is non-existent. 52What Mr Hopkins requires to be done, namely, the making available of various officers or employees of ASIO so that he can discuss matters with them and enquire into whether they have appropriate plans which are short term, medium term and longer term, for dealing with various pieces of information, are not matters which would appropriately be the subject of the relief claimed. 53The matters can broadly be characterised as operational matters from the perspective of ASIO. In other words, Mr Hopkins seeks that the Court order the Director-General to conduct the operations of ASIO in a particular manner, namely in a way which is acceptable to Mr Hopkins and which involves him. 54The functions of ASIO are, speaking broadly, to deal with all matters relevant to national security, and to obtain, correlate and evaluate intelligence material relevant to Australia's national security. It also retains a function to advise Ministers, the Commonwealth, authorities of the Commonwealth and the States as may be necessary with respect to matters relating to national security. 55Of necessity, these functions of national importance must be undertaken in a way which prefers the national interest to that of any individual, and does not, and cannot, be expected to function in a way which makes ASIO or the Director-General accountable to an individual or compliant with an individual's demands. 56I do not suggest that ASIO, or the Director-General, can operate without regard to the laws which exist and to which they are subject. However, the material advanced by Mr Hopkins does not in any substantive way, demonstrate that any officer of ASIO, ASIO itself, or the Director-General, have in any way been guilty of any offence of a kind which could possibly ground relief of the kind sought. 57It is also appropriate to remark that what is in effect sought is an order of the Court compelling the Director-General to do various things which in substance requires the Director-General to compel employees of ASIO to do things to interact with the plaintiff, Mr Hopkins. 58Unless there was a clear duty falling upon the Director-General to undertake the conduct claimed, and that clear duty was articulated in a statute, I can see no basis in the general law, including the common law, for an order of the kind sought to be made. 59Mr Hopkins' claim in this respect is hopeless.

Conclusion 60As this judgment shows, it has been necessary to carefully examine all of the evidence filed by Mr Hopkins and relied upon by him. Although he made quite lengthy oral and written submissions opposing the relief sought by the Director-General, Mr Hopkins was quite unable to identify or articulate any reasonable cause of action which is known to the law. 61I have also come to the conclusion that these proceedings are vexatious and an abuse of the process of the Court. That is because the allegations are, in substance and effect, a replication of matters raised in Hopkins v Governor-General of Australia [2013] NSWSC 1068. The allegations were there found to be hopeless and without legal merit. Summary dismissal was ordered. An application for leave to appeal to the Court of Appeal was dismissed: Hopkins v Governor-General of Australia [2013] NSWCA 365. 62In each of those judgments, it was made plain that there needed to be identified and articulated, a proper legal basis for Mr Hopkins to obtain the relief which was claimed. In these proceedings, he has been quite unable to do so. 63The proceedings should be summarily dismissed. There is no reason to vary the usual order for costs.

Orders 64I make the following orders: (1)Summons filed 16 December 2013 be, and hereby is, dismissed. (2)Plaintiff to pay the defendant's costs.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 31 March 2014

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