2010 - 2012
Judgement
20 June 2012 6-1 decision in favour of plaintiff
Case
No: S307/2010
Case Information
Catchwords
Plaintiff
contends that the payment or disbursement by the Commonwealth of monies from
the Consolidated Revenue Fund for the purposes of the National School
Chaplaincy Program, and therefore the Darling Heights Funding Agreement, was
not supported by an appropriation made by law, as required by s.83 of the
Constitution.
Documents:
2013
A Writ of Summons and Statement of Claim
was issued out of the High Court of Australia between:
Ronald Williams - Plaintiff
and
Ronald Williams - Plaintiff
and
Commonwealth of Australia
Minister for Education - Second Defendant
Scripture UnionQueensland
Scripture Union
Williams v Commonwealth — High Court
Proceedings s154 of 2013
The Commonwealth has agreed that, subject
to the views of the Court, this matter can proceed by way of Special Case. A
timetable has been proposed.
A directions hearing in the matter of Williams v
Commonwealth of Australia & Ors High Court Proceedings s154 of 2013 will be
held at noon on Friday 20 September 2013 .
The location will be: High Court of Australia, Level 23,Law Courts Building Queens
Square , Sydney
The location will be: High Court of Australia, Level 23,
=======================================================
IN THE HIGH COURT OF AUSTRALIA
BETWEEN:
HILDA ZHANG
Applicant
and
THE ROYAL AUSTRALIAN CHEMICAL INSTITUTE INC.
Respondent
NOTICE OF A CONSTITUTIONAL MATTER
1. The applicant gives notice that this
proceeding involves a matter arising under the Constitution or involving
its interpretation within the meaning of Section 78B of the Judiciary Act
1903.
2. The constitutional matter that is raised is
whether it counters the Covering Clause 5 of the Constitution that the
Honourable Full Court hold that the applicant’s claim of unlawful termination “was
continued vexatiously and without reasonable course” “after 28 June 2004”
and that the applicant’s appeals from the Honourable Primary Judgments were “brought vexatiously or without reasonable
cause”. Specifically:
(1) whether the Honourable Courts have
jurisdiction to order cost against the applicant following striking out the
applicant’s claim certified by the Australian Industrial Relations Commission
(the Commission), while Section 170CS(1) of the Workplace Relations Act 1996
(the WR Act) particularly specifies:
“a party to a proceeding under section 170CP must not be ordered
to pay costs incurred by any other party to the proceeding unless the
court hearing the matter is satisfied……” (emphasis added);
(2) whether it counters the Covering Clause 5
of the Constitution that the Honourable Courts’ held that the
applicant’s claim of unlawful termination was vexatious or without reasonable
course while the respondent “assuming” “the applicant’s allegations” “all to be true”, which were that
the applicant refused and complained the respondent’s unlawful instructions to
the respondent, the Auditor, the Union, Australian Taxation Office (the “ATO”),
the WorkCover and the Victorian Employers Chamber of Commerce and Industries
(the VECCI), in respect of the respondent had knowingly lodged faulty GST
report to the ATO and falsified accounting records and reports;
(3) whether it counters the Covering Clause 5
of the Constitution that the
Honourable Courts not only held that the retaliatory dismissal was not unlawful
under the WR Act but also defined to the effect that the applicant’s complaints
to both of the internal and external authorities, to the Commission and to the
Honourable Courts, with respect to the applicant’s superior forced the
applicant to falsify accounting
Filed on behalf
of: the applicant
Name: Daming
He
Address for service:
Telephone:
records and reports, as
vexatious or without reasonable course.
3. The facts showing the matter is one to which Section 78B of the Judiciary
Act 1903 applies are:
(1) The termination of the applicant’s
employment was managed by the VECCI. In the applicant’s original affidavit
dated 17 March 2004 to a Honourable Federal Court, the applicant stated: that a
senior consultant of the VECCI said that she understood that the applicant, as
an accountant, had to follow the Accounting Standards and relevant government
regulations but it was clear if the applicant did not follow her employer’s
instruction, it would jeopardize her employment.
(2) On 15 October 2004 ,
a Honourable Judge heard the respondent’s motion to strike out the applicant’s
claim certified by the Commission, found that the applicant had allegedly
produced three complaints to “outside authorities”, and held that “it is enough for [her] to allege”. His Honour also held: “I know it(“the filing of a complaint”)'s got nothing to do with court proceedings”.
His Honour finally reserved His Honour’s decision and ordered the parties “to go to mediation”.
(3) On 29 October 2004 , the respondent sought “the
disciplinary cost” after the Honourable Judge delivered the substantive
judgment ([2004] FCA 1392) of striking out the applicant’s claim certified by
the Commission without precedent.
(4) On 3 December 2004 ,
in the hearing of the respondent’s motion for costs, the applicant submitted:
that the Honourable Court did not hear the applicant’s claim, therefore, no
costs should be ordered under s 170CS of the WR Act. However, the Honourable
Judge ordered costs against the applicant without precedent, even through the
applicant’s argument was not questioned by the Honourable Judge and was not
contested by the respondent.
(5) In the judgment of costs ([2004] FCA 1626),
His Honour ignored the applicant’s submission mentioned at [(4)] above. His
Honour stated: “the principal one being He, in the matter of an Application
for Writs of Mandamus and Certiorari or Constitutional Relief [2004] FCAFC 161,
a case in which the Full Court held that section 170CK(2)(e) only applied
where the complaint had been made to “outside authorities” who have
power to investigate the allegations made against the employer”. However
His Honour did not mention any of the five “outside authorities” that
His Honour had dealt with in the substantive judgment ([2004] FCA 1392), which
were the external auditor, the VECCI, the ATO, the Union and the WorkCover
Authority.
(6) By notice of appeal dated 21 December 2004 , the applicant
appealed from the whole of the judgment of the Honourable Primary Judge. The
appeal grounds were:
(a) If the Commission had assumed that the
applicant’s complaints had been “all to be true”, the Commission would
have assessed that the applicant’s application had merit according to the
Commission’s assessment in its certificate. The Honourable Primary Judge did
not hear the application certified by the Commission, however, contravened s
170CS(1) of the WR Act and ordered costs against the applicant.
(b) The facts were that the applicant
complained to five “outsider authorities”. However, the Honourable
Primary Judge ignored all of them.
(7) The respondent did not provide any
specified arguments in reply in relation to the applicant’s grounds outlined
above, apart from saying:
(a) the applicant constructed s 170CS
incorrectly;
(b) the applicant’s arguments were irrelevant
to the cost question because “she had not
in fact made any relevant complaints”.
(8) On 6
May 2005 , in the hearing of appeals, the Honourable Full
Court did not questioned any applicant’s
submissions. The respondent submitted, inter alia:
(a) In accordance with s 298L(1)(i) of the WR
Act employer was prohibited from dismissing a member of Union
while the member of Union :
“has
made or proposes to make any inquiry or complaint to a person or body having
the capacity under an industrial law to seek:
(i)
compliance with that law; or
(ii)
the observance of a person's rights under an industrial instrument”
(the
applicant is a member of the Union );
(b) pars 115-117 of International Labour
Organisation ‘Protection against Unjustified Dismissal’ Report of
Committee of Experts, International Labour Office, 1995, which were the
relevant paragraphs in relation to preventing workers from retaliatory
dismissal;
(c) the Auditor
and other authorities were not “competent administration authorit[ies]”,
or the complaints were not for the purpose of s 170CK(2)(e).
The
Honourable Full Court’s decisions were reserved at the end of the hearing.
(9) On 3
June 2005 the Honourable Full Court dismissed the appeals. In the
judgment ([2005] FCAFC 99), in relation to the appeal of costs, the Honourable Full
Court dealt with neither the applicant’s nor the
respondent’s submissions outlined at [(6)] to [(8)] above. Then, the respondent
sought to recover its costs of the appeals. The Honourable Full reminded the
respondent: “The matters of the costs of
the appeal were not agitated” in the hearing of appeals. The respondent’s
counsel replied: “I understand that. We need to look at the judgment”. The Honourable Full Court ordered the parties
to file written submissions in respect of costs of appeals.
(10) In its written submissions dated 21 June 2005 , the Respondent relied
on, inter alia:
(a) the test applied by the Honourable Justice
Wilcox in Kanan v Australian Postal and Telecommunications Union ([1992] 43 IR 257 at 263-4): “If success depends upon the
resolution in the applicant’s favour of one or more arguable points of law, it
is inappropriate to stigmatise the proceeding as being “without reasonable
cause”. But where, on the applicant’s own version of the facts, it is clear
that the proceeding must fail, it may properly be said that the proceeding
lacks a reasonable cause.”
(b)
the Honourable Full Court
(11) In written submissions in reply dated 1 July 2005 , the applicant relied on,
inter alia:
(a) s 170CS of the WR Act prohibits the court
from ordering costs against a party while matter certified by the Commission
was not heard by the court. A common ground was that the Commission’s
certificate was to weed out the unmeritorious case. Neither the Honourable Full
Court rejected nor the respondent contested this argument specifically.
(b) the applicant had complained to five “outside
authorities” apart from the Commission’s certificate, and, in the judgment
([2005] FCAFC 187), the Honourable Full Court did not count three additional
evidences filed and served in the proceedings of the appeals.
(12) On 5
September 2005 the Honourable Full Court ordered costs of appeals
against the applicant according to the parties’ written submission as requested
by the respondent. In the judgment ([2005] FCAFC 187) (the Judgment No 2) the
Honourable Full Court did
not directly deal with the parties’ submissions outlined at [(10)] and [(11)]
above, but holding “that the appeal was a
proceeding brought vexatiously or without reasonable cause” ([2005] FCAFC
187 at [18]).
(13) On 1
July 2005 the applicant applied for special leaves to appeal from
the judgment of [2005] FCAFC 99 in respect of costs.
(14) On 3 October 2005
the applicant applied for two special leaves to appeal to the High Court from
the Judgment No 2, in relation to costs of appeals of both VID 1418 of 2004 and
VID 1607 of 2004. In the written cases, the applicant raised, inter alia:
(a) in the applicant’s written case of M77 of
2005, the applicant’s arguments outlined at [(11)] above were not properly
dealt with by the Honourable Full
Court
(b)
in the applicant’s written case of
M129 of 2005,
(i) s 170CS(1) operates under s 170CP, when an
application certified by the Commission and the parties were well informed by
the Commission under s 170CF; therefore, comparing with s 347, s 170CS adds “must”
not order cost “unless the court hearing the matter” and “is
satisfied” that the “the costs to be incurred by that other party
because of an unreasonable act or omission”;
(ii) the Honourable Full Court
(iii) in the applicant’s affidavit sworn on 1 July
2005 the applicant gave evidence that she complained to the Union, and that the
Union consequently contacted the respondent; however, the Honourable Full Court
held that the affidavit was irrelevant to the matter of costs, even through the
argument was whether the applicant had complained to a third parties before the
dismissal and whether the respondent had known that the applicant complained to
a third party before she was terminated;
(c) in the applicant’s written case of M130 of
2005,
(i) in the hearing of the respondent’s motion
to strike-out of the applicant’s application in the Honourable Primary Court,
the respondent conceded: “the unions are registered organisations under the
WRA, so we could say that they are in a sense a competent administrative quasi
- a body”, but the Honourable Full Court, apart from asserted it was
irrelevant ([2005] FCAFC 187 at [21]), did not disclose that the applicant’s
affidavit sworn on 1 July 2005 was in relation to that the applicant complained
to the Union.
(ii) In the Judgment No. 2, the applicant’s
written submission was altered from “The Primary Court did not
hear the matter certified by the Australian Industrial Relations Commission (the
“Commission”) according to the prima facie merit of the case” to “this Court (the Honourable Full Court) did not ‘hear the matter certified by
the Australian Industrial Relations Commission (the "Commission")
according to the prima facie merit of the case’” (emphysis added) ([2005] FCAFC 187 at
[22]).
(15) On 15 March 2006 the
Honourable High Court allowed the applicant to file and serve this notice under
section 78B of the Judiciary Act 1903.
(16) The applications for special leaves to appeal
have not yet been listed.
Dated the day
of April 2006.
Hilda Zhang
To: The Honourable Philip Ruddock MP, the
Attorney-General for Commonwealth, Office of the Attorney General, Parliament
House, Canberra, ACT 2600
The Honourable Rob Hulls MLA, the Attorney-General for Victoria 8 Nicholson Street,
East Melbourne
The Honourable Bob Dedus MP, the Attorney-General for New South Wales Governor Macquarie Tower 1 Farrer Place , Sydney
The Honourable Linda Lavarch MP, the Attorney-General for Queensland 50 Ann Street Brisbane
The Honourable Jim McGinty MLA, the Attorney-General for
Western Australia, 30th Floor, Allendale Square, 77 St George’s Terrace, Perth,
WA 6000
The Honourable Michael Atkinson MP, the Attorney-General for South Australia 45 Pirie Street , Adelaide
The Honourable Steve Kons MHA, the Attorney-General for
Tasmania, Level 5, Marine Board Building, 1 Franklin Wharf, Hobart, TAS 7000
The Honourable Dr Peter Toyne MLA, the Attorney-General for Northern Territory Box 3146 Darwin , NT
Mr Jon Stanhope MLA, the Attorney-General for Australian Capital
Territory London Box 1020 , Canberra
"Cause" includes any suit,
and also includes criminal proceedings.
"Suit" includes any action or original proceeding
between parties
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How does the
Commonwealth participate in constitutional cases?
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||
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Chapter 9. Constitutional
litigation and the Commonwealth
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How does the Commonwealth participate in constitutional
cases?
If the case is
one to which the Commonwealth is not a party, the first step is for the
Attorney-General to decide whether to intervene. Generally, s.78B notices are
received in the Attorney-General’s office, which forwards the notice to the
Constitutional Litigation Unit of the Australian Government Solicitor (AGS).
AGS is a law firm owned by the Commonwealth. Pursuant to the Legal Services
Directions 2005 (which are made under the Judiciary Act),
generally speaking, and subject to my role as the Solicitor-General,
constitutional work can be performed only by AGS and the Attorney-General’s
Department.
AGS forms a view
on whether the Attorney-General should intervene. In doing so, AGS consults
with the Solicitor-General, the Constitutional Policy Unit of the
Attorney-General’s Department and any other area of the department or other
department that has a policy interest in the subject matter of the notice (for
example, if the constitutional issue is the validity of a Commonwealth law, AGS
consults with the department that administers that law). If AGS and the
Solicitor-General agree that there should be no intervention, the
Attorney-General is not further consulted and there is no intervention.
If the Attorney-General approves intervention, generally, AGS acts for the
Attorney-General in the conduct of the matter, but briefs counsel to appear for
the Attorney-General at the hearing. Generally, AGS will brief one senior and
one junior barrister. The pool of talent from which counsel are selected includes
the Solicitor-General, senior constitutional lawyers employed by AGS (for
example, AGS’s Chief General Counsel, Henry Burmester) and private barristers
with expertise in constitutional law. Generally, where the matter is of
significant importance to the Commonwealth, or where the matter is particularly
complex, AGS will brief the Solicitor-General to appear, along with a junior
barrister. The Attorney-General has issued guidelines on briefing the Solicitor-General.
|
By what power does the Commonwealth
participate in constitutional cases?
|
|
What are the advantages of the way
the Commonwealth participates in constitutional cases?
|
In my view, the way that the Commonwealth handles
constitutional litigation allows it to present its arguments to the court in a way
that ideally combines the experience and expertise of the public sector as well
as private practice.
AGS and the Attorney-General’s Department
employ outstanding constitutional lawyers, many of whom have careers advising,
and acting for, the Commonwealth in relation to constitutional matters. This
deep well of experience and expertise is obviously invaluable to the
Commonwealth in the conduct of its cases. AGS and Attorney-General’s Department
lawyers and advisers generally have strong relationships with, and the trust
of, the government. These lawyers have finely honed skills in constitutional
law and policy, as well as long memories of cases won and lost in the past and
a good sense of some of the reasons why.
However, by also involving private counsel,
the Commonwealth is able to draw on the particular skills and attributes of the
private bar.
Whereas the public sector brings the
advantages of specialist expertise in public law, private barristers bring
specialist expertise in advocacy. Advocacy is as much a specialisation as
constitutional law; a person who does something all the time will tend to do it
better than someone who does it only occasionally.
Second, private barristers offer the
attribute of independence. As sole practitioners bound by the cab-rank rule to
act for all who come to them regardless of their personal views, private
barristers tend to practice on both sides of the record. That is, leading
private barristers in Australia with expertise in constitutional law will have
acted for the Commonwealth and its emanations, the states and territories and
their respective emanations, corporations, citizens and others over the course
of their careers at the bar. They will have argued for and against the validity
of Commonwealth legislation. A barrister who represents all sides over time is
better able to advise his or her client at any particular time; he or she tends
to have a broader view of the law than a solicitor who acts only for or against
the Commonwealth.
Third, by retaining private barristers to
appear for it, the Commonwealth enhances its capacity sensibly to cooperate
with opponents in the conduct and, occasionally, settlement of cases. Almost
universally, private barristers with expertise in constitutional law trust one
another. These barristers represent a small pool of lawyers who regularly
appear with, and against, each other. These circumstances facilitate a highly
respectful and cordial professional culture that is amenable to the smooth
conduct of litigation.
In many respects, the Solicitor-General
(who, incidentally, is neither a solicitor nor a general!) tends to have a
combination of these various skills and attributes. The Solicitor-General is a
statutory office-holder, appointed by the Governor-General for a term (see the Law Officers
Act 1964). The functions of the Solicitor-General are: a) to act as
counsel for the Commonwealth and its emanations, and so on; b) to advise the
Attorney-General on questions of law referred to him by the Attorney-General;
and c) to carry out such other functions ordinarily performed by counsel as the
Attorney-General requests. As a matter of practice, the dominant function of
the Solicitor-General has been to appear on behalf of the Commonwealth in
important constitutional cases.
Thus, like AGS and Attorney-General’s
Department lawyers, the Solicitor-General tends to possess the skills that
arise from appearing in the area of constitutional law over time. However, the
Solicitor-General has generally been selected from the pool of private barristers
with expertise in constitutional law. Thus, the Solicitor-General also tends to
bring with him (so far, the eight solicitors-general since Federation have all
been male) the skills developed over a long career as a specialist advocate at
the bar, representing many interests over that career and forging many strong
relationships with fellow barristers. Finally, there is an advantage in the
Solicitor-General appearing in almost all the major constitutional cases
because of the importance of the Commonwealth not putting submissions in one
case that are inconsistent with its submissions in another and the desirability
of not giving an answer to a question from the Bench in one case that might be
used against the Commonwealth in another. This is not a problem when one
appears for a private litigant.
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How does the Commonwealth participate in
constitutional cases?
|
|
|
Conclusion
I have attempted to demonstrate that the
ways in which the Commonwealth conducts constitutional litigation enable it to
combine the best aspects of constitutional legal experience in the public
sector with the specialist skills and knowledge of the private bar. Hopefully,
from this mix of expertise, we are better able to advance the public interest.
|
What are the advantages of the way the
Commonwealth participates in constitutional cases?
|
|
Chapter 10. Evidence-based
policy making: what is it and how do we get it?
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ONE WAY TO STOP CORRUPTION: IS THE JUDGE HAVING A CONFLICT OF INTERESTS OR REPRESENTING SOMEONE? BY DONNA: GOOD IDEA
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Donna Aussie
9:35 PM (13 hours ago)
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Question to friend: Hey, I'm curious how many elements to a cause of action and how many elements are required to prove a criminal matter.
Answer/Response: Which in my opinion is GOLD .
Without a valid cause of action there is no corpus delicti. If there is no corpus delicti a case has no standing. In order to have a corpus delicti a case required a valid cause of action as you know a valid cause of action. A valid case of action has 3 elements. 1: A violation of a legal right, 2: Damage or injury, 3: Redress-ability by the court. If the prosecutor fails to meet all three elements required to file a cause of action, then, the prosecutor has no standing, and so the court has no jurisdiction.
After establishing that no one's legal rights have being violated everything after that is besides the point. For example: Pretend your in a court as a defendant who was arrested for having a couple of bags of weed. Before anything else I'd ask the judge does corpus delicti apply in the case? They can only answer yes because corpus delicti literally is the essence of the supposed criminal act. Then I'd ask the prosecutor "did u file a valid cause of action against me?" Of course they have to answer yes, because if they answer no, then, they just said they don't have a valid case against you.
So after they answer yes, I'd ask them "how many elements are in a cause of action?" Any argument by the prosecutor as to why that is not germane to the case is flatly wrong because these elements are central to the case. So of course they're gonna have to answer there's three required elements. Then I'd ask the prosecutor what are these three elements. By answering, the prosecutor themselves are gonna be impeaching their own case because they will not be able to site any injury or damage, or, violation of a legal right to anybody.
They will not have any evidence of a complaining party, nor will they be able to cite an imagined aggregate known as a state as the injured party because the government itself through numerous cases has ruled the government isn't obligated to protect the public. This is as a result of protecting the government from law suits when they fail to protect, even in cases were there is restraining order. Basically what is going on here is the constitution lays out why we have a government, which is to protect and maintain "individual rights".
Well, that then is also what the jurisdiction of the court and the police is gonna be limited to. Anything beyond that is acting in ultra vires. So these become central questions as to what the court is doing. That's why all the case's on standing and corpus delicti deal on violation of legal right. So, say, if you were growing a back yard full of weed, have you violated anyone's legal rights??? No. So does the court have jurisdiction, or, the plaintiff have standing? No and no. These are points that the courts are not happy to get into because they don't like getting into their own rules when their own rules don't benefit them.
This kind of defending of your rights will likely prompt intervention and threats from judge. Of course all while maintaining a level of honour so as not to get into a condition of conflict to stave off a valid charge of contempt. The questions I'd ask the judge if he or she was trying to intervene against my questions in regard to my rights. I'd first ask the judge if I had a right to a fair trial. After he answered that yes I do, then, I'd ask the judge if it were possible to get a fair trial if there were a conflict of interest. Of course he or she would have to answer that no I could not get a fair trial if there were a conflict of interest because there'd be an inherent interest against me. Then I would ask the judge who is it that he represents? And then ask isn't it a conflict of interest to have a judge, who represents the state who is the pretended plaintiff against me, intervene with my asking the plaintiff questions regarding my rights???????
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