Re Davison (No 2) [1997] HCA 45

High Court of Australia Gaudron J Re Davison (No 2) (S 97/006) [1997] HCA 45

Summary CATCHWORDS In the Matter of an application by Clive Davison for leave to issue process against the Commonwealth of Australia and the Administrative Appeals Tribunal Practice and procedure - Application for leave to issue writ of summons and statement of claim - Prior direction that process not to be issued without leave of a Justice - Process amended following prior refusal of leave. High Court Rules, O 58 r 4(3). ORDER Application for leave to issue writ of summons and statement of claim granted subject to the following conditions:

(i) that the Australian Capital Territory be joined as a party to the proceedings; and

(ii) that the status of the Administrative Appeals Tribunal as a party to the proceedings be clarified.

Gaudron J

Mr Davison (the applicant) seeks leave to issue a writ of summons and statement of claim against the Commonwealth of Australia and the Administrative Appeals Tribunal. The application was made following a direction by Gummow J under O 58, r 4(3), of the High Court Rules that the process not be issued without the leave of a Justice. An earlier application for leave to issue a writ of summons and statement of claim against the same parties was refused by McHugh J on 20 August 1997 [1] following a similar direction by the Chief Justice under O 58, r 4(3). The statement of claim with which I am concerned is, in important respects, different from that considered by McHugh J.

1. Re Davison's Application (1997) 71 ALJR 1486

It may at once be noted that the applicant is not legally represented and that the statement of claim the subject of the present application appears to have been drawn by him without the benefit of legal advice. This notwithstanding, it emerges from the statement of claim that the applicant, who lives in the Australian Capital Territory, applied unsuccessfully to the Supreme Court of that Territory for access to certain documents under the Freedom of Information Act 1982 Cth (the FOI Act). He then applied to the Commonwealth Administrative Appeals Tribunal for review of that decision but was informed that the Tribunal lacked jurisdiction to entertain his application. It also emerges that the applicant seeks a declaration, amongst others, that the Australian Capital Territory (Self-Government) Act 1988 Cth (the Self-Government Act) is invalid on the basis that it involves an abdication by the Commonwealth Parliament of its legislative powers with respect to the seat of government and, thus, is not a law under s 52(i) of the Constitution. It also emerges that the applicant contends that s 52(i) is the only head of constitutional power applicable to Canberra and, hence, the Australian Capital Territory.