High Court of Australia|1996-05-06|Before: Brennan J, Toohey J, Gummow J, Gaudron J, Kirby J

Lindon v Commonwealth (No 2) [1996] HCA 14; (1996) 136 ALR 251; (1996) 70 ALJR 541 (6 May 1996)

Courts - Practice and procedure - Summons for dismissal of writ and statement of claim seeking declaration concerning use of nuclear weapons - No reasonable cause of action pleaded - No utility in allowing amendment - Statement of claim struck out - Action dismissed.

High Court - Original jurisdiction - Procedure - Pleadings - Claim for declarations as to unlawfulness of use of nuclear weapons - No particular legislation or executive action impugned - Whether a "matter" within s 75 of the - Whether plaintiff has standing - Whether issue justiciable - No reasonable cause of action - Statement of claim struck out - Action dismissed.

Constitutional law - Original jurisdiction of High Court - Claim for declarations as to use of nuclear weapons - No particular controversy submitted for Court's resolution - No reasonable cause of action - Statement of claim struck out - Action dismissed.

Judges - Reasonable apprehension of pre-judgment - Belated notification by litigant of prior communication with Judge - Failure to raise at first hearing of proceedings - No reasonable apprehension of pre-judgment arising from communication - Waiver of any objection to Judge's participation - Matter to proceed to decision.

1. The plainfiff's statement of claim struck out with costs and the action based thereon dismissed.

3. Certify for counsel. designed to terminate summarily proceedings which have been brought by him. Once again, the question is not the social importance of the point he wishes to argue or the genuineness of his concerns. It is whether, by the applicable rules of law, his chosen vehicle of litigation should be permitted to proceed.

2. Mr Lindon is a part-time barrister. He argued his case with intelligence. He drew to my attention a long line of decisions in this and other courts concerning proceedings brought by him. He formerly went under the name of "Citizen Limbo". It is by that name that he argued before the Court of Appeal of the Northern Territory an appeal which arose out of an alleged trespass upon prohibited land, namely the Joint Defence Space Research Facility near Alice Springs (commonly known as "Pine Gap") (1). A glance at the report reveals that, in defence to the charge, he raised the alleged illegality of nuclear weapons by international law (2). He suggested that the Facility was tainted with that illegality. The defence was rejected.

3. In 1989, Mr Lindon was before this Court in an application for declarations concerning the illegality of the supply and export of arms and other military supplies (3). An application for an order for the waiver of fees was rejected by Brennan J on the basis that the application, as pleaded, lacked "an intelligible formation of the claim" (4).

4. In 1995, Toohey J made a direction, pursuant to O 58 r 4(3) of the High Court Rules that the Registrar should refuse to issue process presented by Mr Lindon without the leave of a Justice. The process on that occasion concerned a complaint about gender imbalance in the appointment of federal judges. Gummow J refused leave to issue the writ in question (5). In the course of giving his reasons, his Honour said (6):

"I am not to be taken as suggesting that it would not be possible

to frame an action in such a way that did present a specific issue in such a fashion that might involve ventilation of those questions in proper legal form to achieve a specific result. However, the question here is whether the action sought to be initiated by the writ ... is one to which O 58, r 4(3) applies, specifically that the proceedings would be frivolous or vexatious in the technical sense, that they would be bound, as framed, to fail."

5. I pass over other proceedings whereby, without success, Mr Lindon sought a writ of certiorari against Gaudron J and a Deputy Registrar of this Court. I come directly to the statement of claim, the subject of these proceedings. Gummow J gave leave to Mr Lindon to issue the writ on which it is founded. But he warned that, if it so decided, the Commonwealth might take out a summons to challenge the statement of claim.

6. The statement of claim seeks the making by the Court of the following declarations, namely that:

"1. The threat or use of nuclear weapons in any circumstances is

2. The threat or use of nuclear weapons in any circumstances is

not permitted under international law or transnational law;

3. The use of nuclear weapons by Australia in war or other armed

conflict would be a breach of its obligations under municipal law including the Constitution;

4. The use of nuclear weapons by Australia in war or other armed

conflict would be a breach of its obligations under international law and transnational law."

7. The statement of claim recites that Mr Lindon is an Australian citizen, the author of a communication to the United Nations Human Rights Committee; that the Commonwealth is participating in the "nuclear targeting of civilian populations through military bases at Pine Gap and Nurrungar" and that Mr Lindon is the applicant in other proceedings in the Court against the Commonwealth.

8. The statement of claim proceeds to recite that Australia is a member state of the United Nations and has accepted the jurisdiction of the International Court of Justice, to which Court two questions have lately been submitted for Advisory Opinions, namely:

1. "Is the threat or use of nuclear weapons in any circumstances

2. "In view of the health and environmental effects, would the use

of nuclear weapons by a State in war or other armed conflict be a breach of its obligations under international law including the WHO (World Health Organisation) constitution?" (8)

In the course of argument, Mr Lindon explained that the declarations which he sought from this Court were designed to parallel, in the setting of municipal law and in the highest Australian court, the questions submitted for Advisory Opinions to the International Court of Justice. In elaboration of these paragraphs of the statement of claim, Mr Lindon tendered the statements made by the then Minister for Foreign Affairs and Trade (Senator G J Evans) (9) and the Solicitor-General, as agent of Australia (10) in support of submissions to the Court on behalf of Australia that:

1. In the exercise of its discretion, the Court should decline to

give either of the Advisory Opinions requested of it, in effect because to do so would be to depart from adherence to the Court's essential judicial character (11); but

2. If the Court decided to give the Advisory Opinions sought, it

should declare that the acquisition, development, testing, processing, use and threatened use of such weapons was illegal by customary international law (12).

9. At the time of the argument of the present proceeding before me, the decision of the International Court of Justice had not been announced. Mr Lindon declined a suggestion by Gummow J that he should withhold the commencement of his proceedings until that decision was available. He did not find that suggestion any more appealing in the proceedings heard by me.

10. Mr Lindon's statement of claim recites other announcements and actions of the Government of Australia evidencing its opposition to nuclear weapons (13). It concludes with various assertions as to Mr Lindon's personal interest in obtaining the declarations sought. These are said to be:

1. The proceedings he has brought in the courts "at great personal

and professional expense" over nine years to present legal argument as to the illegality of nuclear weapons and the Commonwealth's participation or involvement in their use;

2. His concern as an "active informed vigilant citizen, a

volunteer human rights defender and a pro bono lawyer with professional obligations of public interest advocacy and civil rights representation"; and

3. Bankruptcy proceedings which have been brought, or

foreshadowed, arising out of the debts for costs which have been incurred by Mr Lindon following orders made by this and other courts when dismissing his various proceedings.

11. It was shown that notice had been given to the State and Territory law officers under the Judiciary Act 1903 (Cth), s 78B. None sought to intervene.

12. As Gummow J predicted, the Commonwealth lost no time in moving the Court to strike out the statement of claim and to dismiss Mr Lindon's proceedings.

13. It did so upon three bases, although a fourth was hinted:

1. That the statement of claim was incompetent. It was argued

that, as Mr Lindon had invoked the original jurisdiction of the Court, he had to bring the claim within either s 75 or s 76 of the Constitution. This necessitated the establishment of a "matter". There could be no such "matter" unless there was "some immediate right, duty or liability to be established by the determination of the Court" (14). It was submitted that the Court did not have jurisdiction to make a declaration of law divorced from any real attempt to administer the law, ie on "abstract questions of law without the right or duty of any body or person being involved" (15);

2. That Mr Lindon lacked standing to ventilate what was

essentially a claim of a violation of a public right, or for the enforcement of the performance of public duties. Even assuming that all of the matters asserted in his statement of claim could be proved, none of them demonstrated that Mr Lindon had any interest in the subject matter of litigation beyond that of any other member of the public seeking to uphold the law. On this footing, Mr Lindon lacked the standing necessary to have his claim considered (16). He could not provide himself with such standing by a "bootstraps" effort of his own, whether by sending a complaint to a United Nations Committee or by commencing futile litigation which occasioned the perils of bankruptcy (17). Accordingly, on its face, the statement of claim revealed no basis upon which it could be concluded that Mr Lindon had any "special interest" or personal involvement in the subject matter of the proposed litigation as would warrant permitting him to vex the Commonwealth and engage the time of this Court in considering the proceedings;

3. That the statement of claim did not disclose a reasonable cause

of action or was, on its face, frivolous and vexatious (18). This argument was advanced on the alternative bases that are contemplated by O 26 r 18(1) and (2). These sub-rules provide:

"(1) The Court or a Justice may order a pleading to be struck out

on the ground that it does not disclose a reasonable cause of action ...

(2) In that case, or in case of the action ... being shown by the

pleadings to be frivolous or vexatious, the Court or a Justice may order the action to be stayed or dismissed, or judgment to be entered accordingly, as is just."

The Commonwealth did not spend much time arguing that this was but

another of Mr Lindon's proceedings in a series of lost causes. Indeed, it did not contest the seriousness of the issue raised. It could scarcely do so in light of the recent statements on behalf of Australia before the International Court of Justice. Instead, its submissions were directed to the inappropriateness of this Court as a forum, and the unsuitability of the statement of claim as a vehicle, for affording Mr Lindon the relief which he claimed. Specifically, it was urged that the declarations sought by him presented only abstract questions of law, involved issues which were purely hypothetical and thus not suitable to curial disposition; and

4. That the subject matter of the proceedings was not justiciable

(a) the proposed declarations related to breaches of international

law which had not, as such, been incorporated into domestic law and were thus not the proper subjects of declaratory or other orders in a municipal court such as this; or

(b) such matters were political in character, apt for resolution

in the other branches of Government and not for judicial determination in this Court (20).

14. The approach to be taken by the Court to the Commonwealth's application for summary relief is not in doubt:

1. It is a serious matter to deprive a person of access to the

courts of law for it is there that the rule of law is upheld, including against Government and other powerful interests. This is why relief, whether under O 26 r 18 or in the inherent jurisdiction of the Court, is rarely and sparingly provided (21);

2. To secure such relief, the party seeking it must show that it

is clear, on the face of the opponent's documents, that the opponent lacks a reasonable cause of action (22) or is advancing a claim that is clearly frivolous or vexatious (23);

3. An opinion of the Court that a case appears weak and such that

it is unlikely to succeed is not, alone, sufficient to warrant summary termination (24). Even a weak case is entitled to the time of a court. Experience teaches that the concentration of attention, elaborated evidence and argument and extended time for reflection will sometimes turn an apparently unpromising cause into a successful judgment;

4. Summary relief of the kind provided for by O 26 r 18, for

absence of a reasonable cause of action, is not a substitute for proceeding by way of demurrer (25). If there is a serious legal question to be determined, it should ordinarily be determined at a trial for the proof of facts may sometimes assist the judicial mind to understand and apply the law that is invoked and to do so in circumstances more conducive to deciding a real case involving actual litigants rather than one determined on imagined or assumed facts;

5. If, notwithstanding the defects of pleadings, it appears that a

party may have a reasonable cause of action which it has failed to put in proper form, a court will ordinarily allow that party to reframe its pleading (26). A question has arisen as to whether O 26 r 18 applies to part only of a pleading (27). However, it is unnecessary in this case to consider that question because the Commonwealth's attack was upon the entirety of Mr Lindon's statement of claim; and

6. The guiding principle is, as stated in O 26 r 18(2), doing what

is just. If it is clear that proceedings within the concept of the pleading under scrutiny are doomed to fail, the Court should dismiss the action to protect the defendant from being further troubled, to save the plaintiff from further costs and disappointment and to relieve the Court of the burden of further wasted time which could be devoted to the determination of claims which have legal merit.

15. I prefer to deal with the summons on the basis that, however framed, an attempt by Mr Lindon to obtain relief from this Court of the kind sought in the declarations pleaded is doomed to fail.

16. Reference was made to Luna Park Ltd v The Commonwealth (28). In that case, the company brought an action in this Court against the Commonwealth alleging its intention to make certain charges for admission to its entertainments. It pleaded a claim of the Commonwealth that it should pay certain amounts for tax and an intention and threat to prosecute the company for offences against relevant legislation if it did not pay. The company sought declarations that certain of the regulations relied upon were invalid and that it was not liable to pay tax as asserted. A case was stated for the opinion of the Full Court on these questions. However, the Court concluded that the question should not be answered on the basis that it was based on purely hypothetical facts. Knox CJ stated (29):

"It has always been the rule that the Court does not answer

questions based on a hypothetical state of facts. ... If this declaration were made, it would have no binding effect in the true sense at all. It would be no more than an abstract opinion in the nature of advice that, if the company did certain things, it would or would not become liable to pay a certain tax."

17. The other members of the Court agreed so that the questions were not answered.

18. Since 1923 the scope of declaratory judgments, both in public and private law, has expanded (30). In this Court that expansion has been encouraged by O 26 r 19 (31). However, the Court has made it plain that, because declaratory relief is discretionary, where it concludes that the issue presented is too hypothetical, or at too high a level of legal abstraction, it will refuse the relief sought.

19. A similar consideration appears to have informed Gummow J's decision in one of Mr Lindon's earlier cases, viz that dealing with his complaint about gender inequality in appointments to federal courts. Gummow J said (32):

"(T)he case really has to be looked at by referring to the form of

relief sought in the four declarations which I have read out. It is, in my view, clear, and very clear, that as a matter of ordinary principle governing the grant of declaratory relief in constitutional litigation as in litigation involving purely private rights, relief of this sort would not be granted as framed here. The declarations do not declare any particular legislative or executive act to be invalid nor, indeed, is any particular legislative or executive act identified. Rather, the declarations would operate loosely and at large rather than giving effect to a resolution of a particular controversy submitted for resolution in a specific sense under Ch III of the Constitution."

These words apply equally to the four declarations contained in the present pleading. They identify no precise legislative or executive action which is attacked. They identify no individual, corporation or government which is alleged to be in present breach of the law of Australia. True, they refer to what would be the case if Australia, in war or in other armed conflict, were to use nuclear weapons. But this involves hypothesis piled on hypothesis. That Australia would be involved in a war. That it would be involved in actual armed conflict. That it would have, or have access to, nuclear weapons. That it would use such weapons. That such use would breach the Constitution, international law or "transnational" law. That Australia would threaten to use nuclear weapons. That such threat would breach Australian, international or "transnational" law. That the jurisdiction of this Court might be invoked to declare the requirements of international law, apart from the extent to which such law was incorporated in Australian law by a lawmaker with relevant authority to do so.

20. Mr Lindon sought to overcome some of these hypotheses, and to render his claims for relief a little more concrete, by referring to certain legislation enacted by the Parliament concerning nuclear weapons. Specifically, he relied on the South Pacific Nuclear Free Zone Treaty Act 1986 (Cth); the Nuclear Non-Proliferation (Safeguards) Act 1987 (Cth) and the Weapons of Mass Destruction (Prevention of Proliferation) Act 1995 (Cth).

21. The purpose of these Acts is severally described as being "to give effect to certain obligations that Australia has as a party to the South Pacific Nuclear Free Zone Treaty, and for related purposes"; "to make provision in relation to non-proliferation of nuclear weapons and to establish, in accordance with ... international treaties and agreements to which Australia is a party, a system for the imposition and maintenance of nuclear safeguards in Australia, and for related matters"; and "to prohibit the supply or export of goods that will or may be used in ... the development, production, acquisition or stockpiling of weapons capable of causing mass destruction or missiles capable of delivering such weapons". Each of these Acts is expressed in specific terms familiar to a legal system of normative rules. Each imposes particular obligations, many with criminal sanctions. Each gives rise to particular duties on the part of identifiable persons and bodies. Each is a specific response by the Parliament to the kinds of concerns to which Mr Lindon refers. But he does so in completely general terms and at a level of abstraction which is insusceptible to legal resolution by the provision of a declaratory judgment. His generality is not accidental. It is deliberate. Mr Lindon wishes to attack the use, or threatened use, of nuclear weapons as such. However, at the level of generality by which his pleading claims relief, it presents an assertion which, in my judgment, is bound to fail. No court of justice, least of all this Court which works within the confines of Ch III of the Constitution and avoids the unnecessary invasion of the proper provinces of the other branches of government, would provide relief of the kind sought in the declarations pleaded.

22. On this footing, the statement of claim fails to disclose a reasonable cause of action. In its present form, the Commonwealth is clearly entitled to relief.

23. I have given thought to whether, by amendment, Mr Lindon could refine his claims to present a different pleading with declarations which would be susceptible to proper legal determination. If I thought that were a possibility, I would afford Mr Lindon the opportunity to re-plead. But it is not by accident that he has staked his claim as he has. This was deliberate because its purpose was to mirror in this Court the application before the International Court of Justice. Even before that Court it was submitted, including by Australia, that an Advisory Opinion of the kind sought should be withheld as inconsistent with the judicial character of the International Court. Whatever may be appropriate to that Court, it is not appropriate to this to venture into a determination of the questions raised in the draft declarations. Before the International Court are states which undoubtedly possess nuclear weapons and which might, in some conceivable circumstances, use or threaten to use them. Furthermore, that Court has undoubted jurisdiction to give Advisory Opinions and to declare the requirements of international law. This Court's constitutional and legal functions are different. No reframing of the statement of claim could save it, without completely altering its character and presenting a different case.

24. I prefer to deal with the Commonwealth's application on this basis because the other bases of jurisdiction, standing and justiciability raise large and controversial questions where the law may be in a state of development (33). In saying this, I do not mean to suggest that an application of the present authority of the Court upon each of these three grounds might not equally have afforded the Commonwealth the relief which it sought. It is enough for me to determine the matter upon the ground which I prefer. I leave the other claims for relief undetermined as a decision upon them is not necessary.

25. Whilst the Commonwealth's foregoing application stood for judgment, awaiting only additional written submissions which I had allowed, Mr Lindon mounted a counter-attack. He filed his own summons seeking the following substantive orders:

1. That the Commonwealth's application be referred to the Full

2. That it be adjourned to a hearing on the merits of his

substantive claim, conforming to a strict timetable for such hearing; or

3. That it be re-opened to permit further evidence to be given

from witnesses to be subpoenaed by Mr Lindon, including Dr Gavan Griffith QC, Solicitor-General of Australia and his instructing officer.

26. Mr Lindon also raised in this summons a suggested possibility that I might be obliged to disqualify myself on the ground that I had "given previous correspondence about some matters between the plaintiff and the Australian President of the International Commission of Jurists - as the Honourable Justice then was". This was the first mention of that correspondence. It had not been raised on the first return of the Commonwealth's application. It is convenient to deal with that issue first, although Mr Lindon made it plain that he was not actually asking me to disqualify myself. He was simply raising the matter for my own determination.

27. In an affidavit affirmed by Mr Lindon, he disclosed that on 10 February 1995 he had written to me before my appointment to this Court in my then capacity as President of the Australian Section of the International Commission of Jurists (ICJ). His letter and my reply of 24 February 1995 were exhibited. His letter mentioned a talk which I had given to an audience in Melbourne comprising mainly members of the legal profession. It appears that Mr Lindon was one of a number of persons who asked questions during that meeting. As recorded in his letter, his question concerned the enforcement against him of court costs for pursuit of what he said was public interest litigation. In his affidavit, Mr Lindon states that:

"Part of your reply included the contentions that:

(a) I knew the consequences in costs when I began litigation; and

(b) I should take it up with the politicians."

The purpose of his letter to me was to agitate again those opinions. My reply said:

"The answer to your question had, of necessity, to be brief. So

Few judges in Australia have been more supportive of interventions

in public interest litigation than I. But the fact is that the litigation costs someone money and cannot be performed completely free of charge. Courts must make orders, in accordance with settled principles - unless Parliament enacts special provisions. As you would appreciate, some so-called public interest litigants are simply irrational and take up a lot of court time involving both public and private costs.

I do not think it would be appropriate for me to seek to persuade

the Australian Government Solicitor to abandon its proceedings against you. Nor do I think this is a matter for the Australian Section of the ICJ. I repeat the advice that I gave in Melbourne. You should try to persuade politicians to support your interest."

28. When I embarked upon the hearing of these proceedings I had no recollection of meeting Mr Lindon. I certainly had no memory of exchanging correspondence with him. He mentioned these facts neither to his opponent, the Solicitor-General, representing the Commonwealth, nor to the Court Registry. Nor did he raise them with me at the outset of the proceedings. In effect, he waited until the proceedings on the Commonwealth's application were almost concluded before bringing the matter to attention.

29. I do not consider that the matters now so belatedly raised by Mr Lindon are such as to require me to disqualify myself either from concluding my part in deciding the Commonwealth's application or in deciding Mr Lindon's summons, which is connected. I would rest my decision in this regard principally upon the fact that no reasonable observer, knowing the circumstances which have been disclosed, would doubt the capacity of a Justice of this Court to proceed to decide the matters before the Court with fairness and impartiality.

30. I feel no difficulty in proceeding to the conclusion of both proceedings. There is certainly no actual bias against Mr Lindon. In the past, I have always followed a stringent course on the subject of ostensible or apparent bias (34). I have taken this to be the course required by successive decisions of this Court (35). I have always applied those stringent standards to myself as I have to others, where the issue has been raised in legal proceedings. It is a fundamental right of any person before a court that a judge, hearing a matter involving the person must be, and appear to be, impartial and independent (36).

31. But the matter raised by Mr Lindon does not, I think, present any difficulties on this score. As recorded, his question at the meeting which he attended concerned past litigation in other proceedings different from those now before me. The question was asked in such circumstances that it is unsurprising that I should have forgotten it. My answer, both at the meeting and in my letter, was addressed to the litigation of the past. It did not concern the subject matters which have been canvassed in these proceedings. Mr Lindon himself does not suggest that I must disqualify myself. I do not consider that a reasonable member of the public viewing these events would so conclude.

32. There is an alternative route to the same conclusion. Although, at one stage, I myself doubted the existence of a principle of waiver in the context of judicial disqualification (upon the ground that it was not for an individual to waive the public's entitlement to a manifestly fair trial of contested matters (37)), it is now conclusively established, as part of the common law of Australia, that a party may be held to have waived the right to object to a judicial officer continuing to hear and dispose of a case on the basis of ostensible bias (38). Waiver will most readily be inferred where a party affected has knowingly failed to make known any objection it has to the continuing participation of the judicial officer. The foundation of such waiver is that failure to make a timely objection may deprive the judicial officer concerned of the opportunity to correct a wrong impression of bias, to refrain from hearing the case and to save the time, costs and efforts both of the court and of the other party (39). The principle of waiver has been justified by reference to the fact that, were it not so, a person, by silence, might seek to gain an advantage, waiting until the litigious waters had first been tested before deciding to raise the suggested ground of disqualification (40).

33. I do not believe that Mr Lindon acted in a deliberately deceptive way. I gained the impression that he had raised the issue only because he wished to remove any possible suggestion that he had been wanting in candour to the Court by having failed to draw to my attention his previous contact with me. That contact now having been called to notice and considered, I do not believe that it is obligatory, and it is certainly not desirable, that I should disqualify myself. My duty is to conclude the part-heard proceedings. My duty also extends to dealing with the remaining matters raised by Mr Lindon's summons, for they are connected.

34. I do not consider that I should refer the whole of the proceedings to the Full Court. Such a course would be justified neither by the substance of the matters in contest nor by the timing of the application. Convenience requires that I should conclude my part in the proceedings without delay. It would be a complete waste of this Court's precious time to have matters of this kind directed to a Full Court where, as I trust I have demonstrated, they can properly be dealt with by a single Justice.

35. Nor is there any merit in the application to adjourn the hearing of the Commonwealth's summons to a substantive trial. The whole point of the process before the Court is to seek relief from the burden of a trial upon the ground that the matter should not be sent to trial. Nothing was added in the hearing of Mr Lindon's summons which caused me to doubt the correctness of the conclusion originally arrived at. The Commonwealth is entitled to peremptory relief. It should not be burdened by a trial. This is not a case where evidence could rescue the plainly irretrievable process by which Mr Lindon has sought to ventilate his concerns in this Court.

36. That leaves only the application raised by the summons to call the evidence of witnesses who, it was asserted, were compellable for that purpose. Mr Lindon initially nominated two witnesses, namely Dr Griffith, who was his opponent at the Bar table and Mr Hallowell of the Australian Government Solicitor who was instructing Dr Griffith.

37. He said that there were four reasons why he could do this. The first was that Dr Griffith was a qualified legal expert who was able to give evidence to the Court on the state of customary international law and its operation in Australia. Secondly, he was a person capable of making admissions with authority on behalf of the Commonwealth pursuant to the Evidence Act 1995 (Cth), s 87(1). Thirdly, he was "in a sense" a party and Mr Lindon wanted to question whether he had instructions from the Commonwealth as such. Fourthly, he would be able to affirm Mr Lindon's extensive engagement in litigation to demonstrate his "special interest" in the subject matter of the action.

38. Mr Lindon also indicated his wish to call four additional witnesses. Emeritus Professor Joseph Rotblat, Nobel Laureate, of London and a member of the Canberra Commission on the Complete Elimination of Nuclear Weapons, established by the Australian Government (41); Dr Desmond Ball, Centre for Strategic and Defence Studies, Research School of Pacific Studies, Australian National University; Mr Stephen Provines, Chief of the Facility at Pine Gap and an officer in the United States Department of Defense; and Mr Alexander Downer, Minister for Foreign Affairs. The suggested utility of each of those witnesses was outlined by Mr Lindon. It soon became clear that none of these witnesses, including Dr Griffith and Mr Hallowell, could throw any light on the matter before the Court although the witnesses were certainly compellable. Their testimony, as outlined, was completely irrelevant to any issue before the Court. Requiring Dr Griffith to give evidence (and possibly Mr Hallowell) would have occasioned the need to substitute fresh legal representatives for the Commonwealth with a consequent adjournment of the proceedings and their substantial disruption. Such a course was completely unjustified. I therefore refused that application.

39. For completeness, I should say that Mr Lindon also challenged the authority of the Commonwealth to prosecute its summons following the change of Government consequent upon the recent federal election. He was unable to cast any doubt whatever on the authority of the Solicitor-General to prosecute the summons for the Commonwealth. I would certainly not infer, from the materials which Mr Lindon relied upon, that any such doubt existed.

40. Mr Lindon reminded me of the need for me to remain alert to the developing understanding of the role of the Court, the widening principle of standing, the provision of relief in cases proper to the judicial function and modern approaches to the concept of justiciability. He also reminded me of the need to avoid a narrow approach to these questions which could lead me to be blind to injustices and great wrongs which the intervention of the Court could help to cure. I accept these admonitions. Like others who have gone before, I do not doubt Mr Lindon's genuineness or the objective seriousness of the issues which he wishes to agitate. But the words of Lord Donaldson of Lymington MR in Attorney-General v Jones (42) come to mind. Speaking of a litigant whose proceedings had likewise been summarily terminated, his Lordship said:

"Any court is very properly reluctant to make such an order and

the circumstances in which it becomes necessary to do so are always sad. The present case is no exception, since Mr Jones, who was a member of the Bar, has demonstrated a vast amount of misplaced industry and very considerable knowledge of the law which is wholly wasted because of his complete lack of judgment and of any understanding of the purpose of the law which is to do justice."

41. This Court can do justice which is apt to its constitutional function and judicial character. For justice of a different kind, Mr Lindon, like Mr Jones, must go elsewhere. The Commonwealth did not seek costs in the summons brought by Mr Lindon. Accordingly, the orders which I make are:

1. The plaintiff's statement of claim is struck out with costs and

2 Limbo v Little, (1989) 98 FLR 421 at 443; 65 NTR 19 at 42.

4 Re Limbo (1989) 64 ALJR 241 at 243; 92 ALR 81 at 85.

6 Lindon v The Commonwealth (1995) 70 ALJR 145 at 146.

7 United Nations, General Assembly (GA) Resolutions 33/71B of 14 December 1978, Preambular paragraph 1; Resolution GA 35/152B of 12 December 1980; Resolution GA 36/100 of 9 December 1981 ("Declaration on the Prevention of Nuclear Catastrophe"); Resolution GA 1/50 of 31 October 1995.

8 Resolution of World Health Assembly 1993: Art 66 par 2.

9 International Court of Justice, Verbatim Record, 30 October 1995, CR 95/22 at 41.

10 International Court of Justice, Verbatim Record, 30 October 1995, CR 95/22 at 33.

11 International Court of Justice, Verbatim Record, 30 October 1995, CR 95/22 at 35. Reliance was placed upon: Certain Expenses of the United Nations, Advisory Opinion, (1962) ICJR 150 at 155; Northern Cameroons Case (1963) ICJR 15 at 30; Application for Review of Judgment Number 158 of the United Nations Administrative Tribunal, Advisory Opinion (1973) ICJR 166 at 175. See also Status of Eastern Carelia, Advisory Opinion (1923) PCIJ, series B, number 5, at 29.

12 International Court of Justice, Verbatim Record, 30 November 1995, CR 95/22 at 41.

13 Australia, Department of Foreign Affairs and Trade, "Australia boosts nuclear test ban negotiations", (1996) March, Peace and Disarmament News 5 at 6. The reference is to the tabling on 29 February 1996 in the Conference on Disarmament of a draft text for a "model" for a Comprehensive Test Ban Treaty.

14 See In re Judiciary and Navigation Acts [1921] HCA 20; (1921) 29 CLR 257 at 265; Fencott v Muller (1983) 152 CLR 570 at 603; Crouch v Commissioner for Railways (Q) [1985] HCA 69; (1985) 159 CLR 22 at 37; North Ganalanja Aboriginal Corporation v Queensland [1996] HCA 2; (1996) 135 ALR 225.

15 In re the Judiciary Act and Navigation [1921] HCA 20; (1921) 29 CLR 257 at 267.

16 See Australian Conservation Foundation v The Commonwealth (1980) 146 CLR 493; Ingram v The Commonwealth and Peacock (1980) 54 ALJR 395 at 397.

17 Australian Conservation Foundation Case (1980) 146 CLR 493 at 531, 539-541.

18 cf Staats v United States of America (1992) 66 ALJR 793.

19 See eg Simsek v Macphee (1982) 148 CLR 636 at 641f; Tasmanian Wilderness Society Inc v Fraser [1982] HCA 37; (1982) 153 CLR 270 at 274.

20 See Brennan J in Re Limbo (1989) 64 ALJR 241 at 242; 92 ALR 81 at 82; cf discussion Lindell, "The Justiciability of Political Questions: Recent Developments", in Lee and Winterton, Australian Constitutional Perspectives, (1992) 180 at 188.

21 General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 at 128f; Dyson v Attorney-General (1911) 1 KB 410 at 418.

22 Munnings v Australian Government Solicitor [1994] HCA 65; (1994) 68 ALJR 169 at 171f per Dawson J; [1994] HCA 65; 118 ALR 385 at 388f.

23 Dey v Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62 at 91.

24 Coe v The Commonwealth [1979] HCA 68; (1979) 53 ALJR 403; 24 ALR 118; Wickstead v Browne (1992) 30 NSWLR 1 at 5-7.

25 Coe v The Commonwealth [1979] HCA 68; (1979) 53 ALJR 403 at 409; [1979] HCA 68; 24 ALR 118 at 132.

26 Church of Scientology v Woodward [1982] HCA 78; (1980) 154 CLR 25 at 79.

27 Northern Land Council v The Commonwealth [1986] HCA 18; (1986) 161 CLR 1 at 8.

28 [1923] HCA 49; (1923) 32 CLR 596.

29 [1923] HCA 49; (1923) 32 CLR 596 at 600.

30 See discussion Crawshaw, "The High Court of Australia and Advisory Opinions", (1977) 51 Australian Law Journal 112; Burmester, "Locus Standi in Constitutional Litigation", in Lee and Winterton, Australian Constitutional Perspectives, (1992) 148 at 150.

31 See Attorney-General (Vict) v The Commonwealth [1962] HCA 37; (1962) 107 CLR 529.

32 Lindon v The Commonwealth (1995) 70 ALJR 145 at 147.

33 See discussion Burmester, "Locus Standi in Constitutional Litigation", 148 at 148; Lindell, "The Justiciability of Political Questions: Recent Developments", 180 at 243, both in Lee and Winterton, Australian Constitutional Perspectives, (1992).

34 eg S & M Motor Repairs v Caltex Oil (1988) 12 NSWLR 358 at 373; Australian National Industries Ltd v Spedley Securities Ltd (In Liq) (1992) 26 NSWLR 411 at 418-419.

35 Livesey v New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288 at 293-294; R v Watson; Ex parte Armstrong [1976] HCA 39; (1976) 136 CLR 248 at 258; Vakauta v Kelly [1989] HCA 44; (1989) 167 CLR 568 at 572.

36 cf International Covenant on Civil and Political Rights, Art 14.1.

37 S & M Motor Repairs v Caltex Oil (1988) 12 NSWLR 358 at 373.

38 Vakauta v Kelly [1989] HCA 44; (1989) 167 CLR 568 at 572f; Dickason v Edwards [1910] HCA 7; (1910) 10 CLR 243 at 261; cf Re Alley; Ex parte Australian Building Construction Employees' and Builders Labourers Federation (1985) 60 ALJR 181 at 182; 64 ALR 6 at 7.

39 Vakauta v Kelly [1989] HCA 44; (1989) 167 CLR 568 at 572. See also Re McCrory; Ex parte Rivett (1895) 21 VLR 3 at 6.

40 cf Re Alley (1985) 60 ALJR 181 at 182; 64 ALR 6 at 7.

41 Australia, Department of Foreign Affairs and Trade, "Australia boosts nuclear test ban negotiations", (1996) March, Peace and Disarmament News 5 at 6.

Pacific Nuclear Free Zone Treaty Act 1986

Non-Proliferation (Safeguards) Act 1987

Mass Destruction (Prevention of Proliferation) Act 1995

Pacific Nuclear Free Zone Treaty Act 1986

Non-Proliferation (Safeguards) Act 1987

Mass Destruction (Prevention of Proliferation) Act 1995

Lindon v Commonwealth

At a glance

Court

Decision date

Before

Source

Judgment (157 paragraphs)

Lindon v Commonwealth (No 2) [1996] HCA 14; (1996) 136 ALR 251; (1996) 70 ALJR 541 (6 May 1996)

Parties

Legislation Cited (6)

Cases Cited (30)