Staats S.J. v The Commonwealth of Australia & Anor [1995] FCA 155

IN THE FEDERAL COURT OF AUSTRALIA) VICTORIAN DISTRICT REGISTRY ) GENERAL DIVISION ) No VG 10 of 1995 BETWEEN: STEVEN J. STAATS Applicant - and - THE COMMONWEALTH OF AUSTRALIA and ANOR Respondent

Coram: Olney J Place: Melbourne Date: 21 February 1995

MINUTE OF ORDER THE COURT ORDERS THAT the applicant pay the first respondent's costs of the proceedings including the costs of the amended notice of motion.

NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA) VICTORIAN DISTRICT REGISTRY ) GENERAL DIVISION ) No VG 10 of 1995 BETWEEN: STEVEN J. STAATS Applicant - and - THE COMMONWEALTH OF AUSTRALIA and ANOR Respondent

Coram: Olney J Place: Melbourne Date: 21 February 1995

REASONS FOR JUDGMENT By an application filed on 19 January 1995 the applicant claims: 1. That his naturalisation as an Australian citizen on 19 March 1958 is ultra vires; 2. That the renunciation of his Netherlands nationality and citizenship is ultra vires; and 3. That he is entitled to apply for and obtain in Australia a Netherlands passport and "to obtain all benefits and entitlements pursuant thereto and all compensatory compensation, restitution and otherwise all damages and loss".

No specific relief is sought in the application but presumably the applicant seeks declarations in terms of the claims that he makes. No statement of claim has been filed. The respondents named in the application are the Commonwealth of Australia and the Royal Netherlands Government. The Commonwealth has entered a conditional appearance pursuant to order 9 rule 6 of the Federal Court Rules and has also filed a notice of objection to competency pursuant to order 54 rule 4 objecting to the jurisdiction of the Court to try the application on the ground that the application discloses no reasonable cause of action. The Royal Netherlands Government has not entered an appearance. No order for service out of the jurisdiction or for substituted service has been sought or made and, although the applicant has sworn an affidavit to the effect that the application was served on the Royal Netherlands Government Consulate in Melbourne on 19 January 1995 that, in my opinion, does not amount to proper service. Be that as it may, the matter now before the Court raises issues which are common to both respondents and can be adequately dealt with in the absence of the second respondent. On 7 February 1995 the Commonwealth filed a notice of motion seeking: 1. An order under order 20 Rule 2(1)(a) that the application under the Administrative Decisions (Judicial Review) Act 1977 be dismissed upon the ground that it does not disclose any reasonable cause of action; 2. In the alternative, orders and directions for the hearing and determination of the respondent's objection to competency; and 3. an order that the applicant pay the respondent's costs of the motion. The notice of motion was supported by an affidavit of Umberto Torresi, sworn on 6 February 1995 in which he deposed to being the solicitor having conduct of the matter on behalf of the Australian Government Solicitor and to his belief that the application disclosed no reasonable cause of action. On 15 February 1995 the applicant filed a notice of motion seeking declarations pursuant to s 21 of the Federal Court of Australia Actwhich, in effect, raised a variety of issues going to the basis of the Commonwealth's objection to competency and to its notice of motion. The applicant's motion was supported by a lengthy affidavit. On 16 February 1995 the Commonwealth filed an amended notice of motion seeking: 1. An order under order 20 rule 2(1) that the application be dismissed as disclosing no reasonable cause of action or, alternatively, is frivolous or vexatious; 2. An order abridging time for the service of the amended notice of motion or, alternatively, dispensing with service; and 3. An order that the applicant pay the respondent's costs of the motion. This notice of motion was supported by a further affidavit of Mr Torresi. On 20 February 1995 the applicant filed what is described as "New Notice of Motion" in which the following persons are named as respondents: George W. Turnbull, Director, Australian Government's Office, Melbourne, Solicitor for the Commonwealth of Australia, Commonwealth Officer, first respondent; Umberto Torresi, principal solicitor, General Law, Australian Government Solicitor's Office, Melbourne, Solicitor for the Commonwealth of Australia, Commonwealth Officer, second respondent; David A. Rockefeller, third respondent; Coles-Myer Limited, fourth respondent; Consul-General, People's Republic of China to Victoria, fifth respondent; and Consul-General, Republic of Italy to Victoria, sixth respondent. The Commonwealth and the Royal Netherlands Government are not named as respondents which raises a question as to the competence of the motion. In an affidavit in support of the so-called new notice of motion, the applicant says amongst other things, and I quote very briefly at paragraph 7: The first respondent's alleged notice of motion of 16 February 1995 (It is difficult to know whether the reference to the first respondent is intended to be to the Commonwealth of Australia or to George W. Turnbull): ... is ultra vires and without jurisdiction because it is in bad faith, because the first respondent knows that there is accrued jurisdiction in the Federal Court of Australia for the application and all powers therein and that the application is most genuine, substantial and proper for the relief and remedy sought pursuant to section 21 of the Federal Court of Australia Act 1976 and cannot be construed in any way as allegedly pursuant to the alleged criteria as disclosing no reasonable cause of action and, alternatively, is frivolous or vexatious. And in paragraph 9 it is said: