FEDERAL COURT OF AUSTRALIA Kanak v Commonwealth of Australia [1999] FCA 1402 PRACTICE & PROCEDURE – application for summary dismissal – incoherent claim – no question of principle. DOMINIC (WY) KANAK V THE COMMONWEALTH OF AUSTRALIA NO. N 6002 OF 1999 JUDGE: BEAUMONT J. DATE: 7 OCTOBER 1999 PLACE: SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NO. N 6002 OF 1999 BETWEEN: DOMINIC (WY) KANAK Plaintiff AND: THE COMMONWEALTH OF AUSTRALIA Defendant JUDGE: BEAUMONT J. DATE OF ORDER: 7 OCTOBER 1999 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The proceedings be dismissed with costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NO. N 6002 OF 1999 BETWEEN: DOMINIC (WY) KANAK Plaintiff AND: THE COMMONWEALTH OF AUSTRALIA Defendant JUDGE: BEAUMONT J. DATE: 7 OCTOBER 1999 PLACE: SYDNEY REASONS FOR JUDGMENT BEAUMONT J: 1 Before the Court is a notice of motion for the summary dismissal of proceedings remitted from the High Court of Australia. The notice of motion is brought pursuant to the provisions of O 20 r 2(1) of the Federal Court Rules. The nature of the claim sought to be made by the plaintiff, who is and at all times has been unrepresented, appears from the statement of claim, which is annexed to these reasons. 2 The statement of claim refers to the relief set out in the writ of summons, and the claim made in the writ of summons, relevantly, is as follows: "(i) The Plaintiff claims against the Defendant by virtue of the Judiciary Act (Commonwealth) as amended. (ii) The Plaintiff claims damages against the Defendant as a result of a Broken Promise (Breach of Contract) caused by the negligence of the Defendant ... ." 3 Some further light is thrown on the nature of the claim sought to be asserted by the plaintiff by a notice of a constitutional matter, filed by the plaintiff in the High Court of Australia on 22 February 1999. For ease of reference, that notice is also annexed to these reasons. The respondent has provided a chronology which is marked "MFI 1" for identification and, again for ease of reference, is also annexed to these reasons. That chronology is supported, for the events occurring up to January 1999, by the affidavit of Marcus Francis Bezzi, sworn 19 January 1999. The events since 19 January 1999 mentioned in the chronology are accurately stated in that document, including the reference there made to an order that I made on 25 August 1999 directing that the plaintiff provide particulars by 6 September 1999. 4 At today's hearing the plaintiff gave an oral explanation, which I will accept, that he has not been able to provide the particulars requested because he has been distracted by a number of extra curricula matters, including a series of court cases in other jurisdictions, in which it appears he is also acting without the benefit of legal representation or advice. 5 This notice of motion was first before me on 13 September 1999. On that occasion, the plaintiff sought adjournment of the proceedings because he was appearing that day in another court. I granted the application for the adjournment and stood the hearing over to this day. 6 However, at the hearing on 13 September, Counsel for the defendant handed up an outline of argument for summary dismissal (which is marked "MFI 3" and annexed to these reasons for ease of reference) and which was then provided to Mr Kanak. 7 I have had the benefit of oral argument and submissions from the plaintiff today, having already indicated to him on 13 September that I was having great difficulty in comprehending the nature of the claim sought to be made by him in his statement of claim. 8 The plaintiff has not, for the reasons stated, been able to provide particulars of his claim. However, during the course of his submissions today, I sought to inquire from him the basis for his claim. I have to say that I have no better understanding now than I had on 13 September of that claim. A reading of the statement of claim, the writ of summons and the notice of a constitutional matter indicates, regrettably, a serious confusion of ideas and legal concepts, moving in a way that is not really coherent between the notions of public and constitutional law on the one hand, and private law concepts, in particular, a breach of contract claim, on the other. 9 The difficulties are compounded by the explanations sought to be given to me in the course of argument today on the part of the plaintiff. From that discussion it emerged that the claim that the plaintiff now seeks to assert is, as I understand it, in the nature of a contract made between the representatives of the Darug people (but not the plaintiff), on the one hand, and the Commonwealth authority on the other. Yet, not only does it appear that the plaintiff was not a party to this agreement or arrangement, but I have been able to gain no real understanding of the terms of the alleged contract. A superficial reading of the statement of claim left me with perhaps an imperfect impression that the plaintiff's real complaint here was that he was given to believe that, if he discontinued certain litigation against the Commonwealth, he would be reimbursed or indemnified in some fashion against some costs that he had incurred in that connection. However, in putting that matter to the plaintiff, he disclaimed any attempt to propound such a cause of action. I would only add in this connection that a reading of the judgments of this Court, both at first instance, and on appeal, which are mentioned in the respondent's chronology, would only serve to reinforce any difficulties that the plaintiff might have on the merits in establishing any such claim. In any event, as I have noted, it is disclaimed. Once, however, that claim is removed from the picture, it is impossible to see that anything else remains or could remain. 10 It was put to me by the plaintiff that, even if I were to strike out the present statement of claim, I should grant liberty to him to re-plead and, perhaps, to get the benefit of legal advice in that connection. Of course, the Court would always encourage any unrepresented party to get the benefit of legal advice and legal representation but, in this case, the proceedings were instituted in the High Court in June 1998, and the plaintiff has had ample opportunity to obtain legal advice. Why he has not been able to get that advice, or to act upon it if given, is not a matter that I can, at this point, inquire into, and I place it to one side. 11 In the respondent's outline of argument ("MFI 3") the authorities in this area are mentioned and argument is there outlined in support of the summary dismissal application. I agree with the submissions there made and would adopt them as my own. 12 For those reasons I order that the proceedings be dismissed, with costs. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Beaumont. Associate: Dated: 27 October 1999 Solicitor for the Applicant: The plaintiff appeared in person Counsel for the Respondent: James Renwick Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 7 October 1999 Date of Judgment: 7 October 1999