Supreme Court New South Wales Medium Neutral Citation: Hopkins v Governor-General of Australia [2013] NSWSC 1068 Hearing dates: 02/08/2013 Decision date: 13 August 2013 Jurisdiction: Common Law Before: Garling J Decision: (1) Order, pursuant to r 6.4 of the Uniform Civil Procedure Rules 2005, that the Attorney-General for Australia be added as a defendant. (2) Order, pursuant to s 6(3) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth), that the proceedings herein be heard and determined by the Supreme Court of New South Wales. (3) Order, pursuant to r 13.4 of the Uniform Civil Procedure Rules 2005, that the proceedings be, and hereby are, dismissed. (4) Order the plaintiff to pay the costs of both of the defendants. Catchwords: PROCEDURE - summary dismissal of proceedings - frivolous proceedings - orders sought with no basis in fact or law - abuse of the process of the Court - no general principle Legislation Cited: Acts Interpretation Act 1901 (Cth); Australian Security Intelligence Organisation Act 1979 (Cth) Commonwealth of Australia Constitution Act 1900 Crimes Act 1900 Criminal Code Act 1995 (Cth) Inspector-General Of Intelligence And Security Act 1986 (Cth) Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) Uniform Civil Procedure Rules 2005 Cases Cited: Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552 Burton v Shire of Bairnsdale [1908] HCA 57; (1908) 7 CLR 76 Dey v Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62 Fancourt v Mercantile Credits Limited [1983] HCA 25; (1983) 154 CLR 87 General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 Spencer v The Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 18 Category: Principal judgment Parties: Jason Andrew Hopkins (P) Her Excellency the Hon. Quentin Bryce AC CVO, Governor-General of the Commonwealth of Australia (D1) Attorney-General of Australia (D2) Representation: Counsel: In person (P) A Markus (D1 & D2) Solicitors: Australian Government Solicitor (D1 & D2) File Number(s): 2013/214898 Judgment 1On 15 July 2013, Mr Jason Hopkins, as plaintiff, commenced proceedings by a Summons in which he nominated the only defendant as Her Excellency, the Honourable Quentin Bryce AC CVO, who is the Governor-General of the Commonwealth of Australia. 2When the proceedings were returned before the Court, Mr Markus, from the Australian Government Solicitor, appeared for both Her Excellency the Governor-General, and the Attorney-General for Australia. 3He indicated that Her Excellency would file a submitting appearance, and that the Attorney-General sought to be made a party to the proceedings, or else by leave, to address submissions to the Court, so that the Court would have a proper contradictor. 4In short, Mr Markus, on behalf of the Attorney-General submitted that it would be appropriate, subject to some considerations to which I will later refer, for the Court to summarily dismiss the proceedings. It is appropriate that the Attorney-General be added as a defendant so that the Court can have the benefit of submissions about the issues raised in the Summons. 5Ultimately, on 2 August 2013, I heard submissions from Mr Hopkins and Mr Markus on the question of whether the proceedings should be summarily dismissed. 6For the reasons set out below, I am satisfied that the Court ought order that the proceedings be summarily dismissed. Relief Sought in Summons 7Although the Summons is a somewhat unfocussed and prolix document which is not in proper form, it seems that the relief which was being sought by Mr Hopkins is as follows: "1. Relief may require the NSW Supreme Court powers for injunctions s 66 and orders to Forfill a duty s 65. 2. Governor-General of the Commonwealth of Australia to remove civil servant (Constitution s67), a) Civil servant known as the Director-General of Security, David Irvine in (ASIO act part II) enabling legislation? a) Removal within 1 hour of hearing. b) Termination of appointment at her pleasure (ASIO act part II s13) c) Re-appointment after plaintiff presents an agreement to court that he has finalized all criminal proceedings against the civil servant, including non-compliance with ASIO act which is grounds for termination in the ASIO act (ASIO act part Ii s13). d) Provide contact details for David Irvine for service of court documents after removal, with the Court and plaintiff, within 1 day of hearing. 3. Governor-General of the Commonwealth of Australia to a) Appointment (Constitution s67) of new civil servant, Director General of Security (ASIO act Part II) within 2 hours of hearing b) The name of the new civil servant, Director-General of Security (ASIO act part II) is to be filed at the Court and a copy delivered to Plaintiff within 1 day of hearing. 4. Governor-General of the Commonwealth of Australia to request the newly appointed civil servant, Director General of Security (ASIO act Part II), give all ASIO Staff (ASIO act Part V), and Police (Police acts) for an indefinite period of time, authority to communicate information with the authority of the Director-General (ASIO act s18). In the name of good conduct and avoiding termination for misconduct (ASIO act Part II s13). File to court and the plaintiff exact copies of the letters to the ASIO newly appointed Directors-General of Security (ASIO act s18), senior Police and the letters authorizing communication by ASIO staff and Police before the hearing, for his review before signing. File a copy of the documents signed by a commissioner of each Police force stating that all officers have been made aware of the authority provided by the civil servant, Director-General of Security, within 1 week of the appointment (ASIO act Part II). Ile confirmation that ASIO Staff (ASIO act part V) have been made aware of their (ASIO act s18) authority, within 1 week after hearing (ASIO act Part II). ... 5. Governor-General of the Commonwealth of Australia to request all (Parliamentarians) in both houses of parliament of the Commonwealth of Australia a) Consider removal of the Australian Security Intelligence act s18 (ASIO act s18) b) Consider a minimum of 7 civil servant (The Constitution s67) directors for ASIO (ASIO act part II) c) Prohibit restrictions on communication of identity in employment contracts (ASIO act Part V) d)Prohibit restrictions on communication of information that the individual considers evidence of crime, in employment contracts. File to court and the plaintiff exact copies of the letters before sending to the members of House of Representatives and Senate (Parliamentarian), for his review. File a document with the Court, and a copy for the plaintiff, signed by each Member of Parliament of the Commonwealth of Australia (Parliamentarians), acknowledging the request, within 4 weeks after hearing." (sic) 8In addition to the orders to which reference has just been made, the Summons included, in various text boxes, suggestions of the content of letters to be sent, forms of authority to be given and the terms of a request to be made by Her Excellency to the Members of Parliament. Evidence 9In support of his allegations, Mr Hopkins has filed two affidavits. The first, a lengthy one, was filed on 15 July 2013, and the second, somewhat shorter, was filed on 29 July 2013. 10It appears from the first affidavit that Mr Hopkins is concerned that the current Director-General of Security, who was appointed under s 7 of the Australian Security Intelligence Organisation Act 1979 ("ASIO Act"), has been in breach of his obligation to prevent crime, and that he has, notwithstanding extensive correspondence sent to him by Mr Hopkins, continued to act in breach of his legislative powers and authorities, and in ignorance of his lawful obligations. 11Mr Hopkins asserts that this conduct constitutes grounds for the termination of the Director-General's appointment under s 13 of the ASIO Act. 12It seems that the cause of Mr Hopkins' discontent commences with a letter, which he sent to the Director-General on 17 November 2011. In that correspondence, Mr Hopkins informed the Director-General that he had "an issue with your management with regard to reporting serious crimes to the police". 13He asserted in this correspondence, that he knew of "some of your officers who have witnessed a serious crime that could put some people in prison for the rest of their lives". He informed the Director-General that he should take legal advice as to whether knowledge of a serious crime which is not reported to police, is itself a crime. He concluded his correspondence in this way: "Can you appoint someone to report the evidence of the crime to police, or should the ASIO officers go to the police themselves? Can I have the response in the form of an affidavit use in court please?" [sic] 14Mr Hopkins also sought access to "a secure communication room" at ASIO's premises, although the reason for that access was not articulated. 15In the absence of receiving a response, follow up letters were sent by Mr Hopkins, on 23 November 2011, 25 November 2011, 29 November 2011, 5 December 2011 and 14 December 2011. 16The final letter, sent by registered post, concluded with the phrase "Can you please appoint someone to report the evidence of the crime to me or the NSW Police urgently". This was accompanied by an extract of s 18 of the ASIO Act, which deals with communication of intelligence on behalf of ASIO. 17In the absence of receiving a response, Mr Hopkins contacted his local Member of Parliament, Ms Sharon Bird, the Federal Member for Cunningham. Ms Bird on 30 May 2012, consistently with her electoral role, passed on to the Director-General the correspondence which she had received from Mr Hopkins. 18On 25 June 2012, the Director-General wrote to Ms Bird. He said, amongst other things: "I confirm ASIO has received this correspondence from Mr Hopkins. I can assure you that ASIO assesses all incoming correspondence and information for its relevance to security as defined in the Australian Security Intelligence Organisation Act 1979. ASIO provides a response when appropriate." Ms Bird, on 2 July 2012, passed on that letter to Mr Hopkins. 19It is apparent that Mr Hopkin's discontent continues. 20In addition to the correspondence, the first affidavit records that Mr Hopkins has made a number of telephone calls to a number of individuals at ASIO. 21Ultimately, the affidavit details suggestions by Mr Hopkins that the Director-General has been in breach of a variety of provisions of the Criminal Code Act 1995 (Cth) and the Crimes Act 1900 (NSW), breaches of the Federal Occupational Health and Safety legislation and breaches of the ASIO Act. 22Mr Hopkins second affidavit of 15 July 2013 then refers to reasons why the Director-General should be indicted, why he should receive the maximum sentence for any offence upon which he may be convicted and in the meantime, why he should be denied bail. 23Mr Hopkins second affidavit contains, amongst other things, correspondence with Her Excellency the Governor-General. 24In a letter dated 23 March 2012, Mr Hopkins asked that Her Excellency take action with respect to the Inspector-General of Intelligence & Security, because the Inspector-General had declined, or else failed, to take action upon his complaints about ASIO's inaction. 25A second, shorter, letter of 23 March 2012, was also sent to Her Excellency. It adds nothing of substance to the original letter. 26On 11 April 2012, the Deputy Official Secretary to the Governor-General responded to Mr Hopkins, informing him that Her Excellency could not become involved in the matters which he had raised. 27It is appropriate to note that the correspondence from Mr Hopkins to Her Excellency only asked her to take action with respect to the InspectorGeneral. He made no request to her with respect to the Director-General. By way of contrast, the Summons in these proceedings only seeks relief with respect to the role of the Director-General. 28It will be appropriate to consider the statutory provisions relating to both positions. Director-General of ASIO 29The Director-General of ASIO, whose formal title is Director-General of Security, is by reason of the provisions of s 7 of the ASIO Act, appointed to that office by the Governor-General. 30Section 13 of the ASIO Act provides that the Governor-General may terminate the appointment of the Director-General "...by reason of physical or mental incapacity, misbehaviour or failure to comply with the provision of this Act". 31Upon appointment, the Director-General holds office for a period which does not exceed seven years. The term of the office is specified in the Instrument of Appointment. A Director-General is eligible for reappointment. Inspector-General of Intelligence & Security 32In accordance with the provisions of s 6 of the Inspector-General of Intelligence & Security Act 1986 (Cth) ("IGIS Act"), the Inspector-General is appointed by the Governor-General. The Inspector-General holds office for a period not exceeding five years. The period is specified in the Instrument of Appointment. Under s 26 of the IGIS Act, the InspectorGeneral is eligible for re-appointment. 33The Inspector-General may be removed from office by the GovernorGeneral who is empowered to terminate the appointment of the Inspector-General "... by reason of misbehaviour or physical or mental incapacity": see s 30 IGIS Act. 34Importantly for an understanding and interpretation of these provisions, are the terms of s 16A of the Acts Interpretation Act 1901 (Cth). 35Section 16A is in the following form: "References to the Governor-General Where, in an Act, the Governor-General is referred to, the reference shall be deemed to include: (a) the person for the time being administering the Government of the Commonwealth; or (b) where the reference occurs in or in relation to a provision conferring on the Governor-General a power or function which the Governor-General or the person administering the Government of the Commonwealth has for the time being assigned to a person as his deputy, that last-mentioned person in his capacity as deputy; and shall be read as referring to the Governor-General, or a person so deemed to be included in the reference, acting with the advice of the Executive Council." 36Relevantly to the issues in these proceedings, the legislation provides that any reference in the ASIO Act and the IGIS Act to the Governor-General appointing, or else terminating the appointment, of either the DirectorGeneral or the Inspector-General, is to be read as a reference to Her Excellency the Governor-General "... acting with the advice of the Executive Council". 37The terms of s 16A of the Acts Interpretation Act put beyond any doubt, if that be needed, that the Governor-General acts at all times, and in respect of powers provided by the subject legislation, in the acceptable constitutional manner, namely upon the advice of the Federal Executive Council which is constituted by s 62 of the Constitution. 38It is entirely clear therefore, that in exercising her powers with respect to the Director-General or the Inspector-General, the Governor-General must act in accordance with the advice of the Federal Executive Council. A Procedural Issue 39My attention has been drawn by the Attorney-General, to an important procedural issue. 40Section 6 of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) ("Cross-Vesting Act") provides that where a matter is pending for determination in the Supreme Court of a State, and that matter is a "special Federal matter", then the Supreme Court of the State is obliged to transfer the matter to the Federal Court of Australia, unless an order is made under s 6(3) of the Cross-Vesting Act. 41These proceedings, because of the nature of relief being sought in the Summons, are a "special Federal matter" within the meaning of s 3 of the Cross-Vesting Act. They come within that definition because Mr Hopkins seeks a writ of mandamus or an injunction against Her Excellency, the Governor-General of Australia who is, whilst acting in that capacity, an officer of the Commonwealth within the meaning of that term in the CrossVesting Act. 42Section 6(3) of the Cross-Vesting Act provides with respect to a special Federal matter that: "(3) The Supreme Court may order that the proceeding be determined by that Court if it is satisfied that there are special reasons for doing so in the particular circumstances of the proceeding other than reasons relevant to the convenience of the parties." 43The Attorney-General submitted that there are sufficient special reasons within the meaning of s 6(3) of the Cross-Vesting Act, in the particular circumstances of this case, for this Court to determine the application which had been made for summary dismissal of the proceedings, and not to transfer the matter to the Federal Court of Australia. 44The Attorney-General submitted that the nature of the relief pleaded, the hopelessness of the claim being made by Mr Hopkins, the complete absence of any evidence which could possibly justify the making of the orders sought, and the vexatious nature of the claims made, all combined to demonstrate that the proceedings were an abuse of the process of the Court. 45The Attorney-General submitted that this abuse of process ought not be permitted to continue in any Court, and accordingly, in such a clear case, the interests of justice provided sufficient special reason for this Court to make the order which permitted it to continue to hear and dispose of the matter. 46In addition, so it seems to me, having regard to the fact that Her Excellency the Governor-General is the named defendant, although she has filed a submitting appearance, it is obviously appropriate for the good order and government of the Commonwealth of Australia that baseless allegations against the Governor-General should be disposed of promptly, and ought not be allowed to remain on the public record without a judgment being delivered as soon as practicable. 47For those reasons, the Attorney-General submitted that the Court could be satisfied that there were special reasons for determining the proceedings rather than transferring the matter to the Federal Court. The AttorneyGeneral submitted that, accordingly, there was a proper basis for this Court to make an order of the kind contemplated by s 6(3) of the CrossVesting Act. 48Mr Hopkins did not oppose this Court dealing with the matter. 49I accept the submissions of the Attorney-General having regard to the nature of the proceedings, and the identity of the defendant. I am therefore satisfied that special reasons exist for this Court to proceed to finally determine this proceeding. Discernment 50I am well satisfied that the claims of the plaintiff articulated in these proceedings are hopeless. There is no material to support the proposition that either the Director-General, or the Inspector-General, have been derelict in and about the performance of their duties in accordance with their enabling statute. 51The fact that a person, here the plaintiff, corresponds with a statutory office holder, or a department of Government, and does not receive a response which that person regards as adequate, or else does not receive any response at all, does not suggest that there has been any failure to undertake, or carry out, the duties of that particular statutory office. 52On the contrary, the failure to respond to correspondence which can properly be regarded as rambling, irrational, ill-founded, nonsensical or subreptitious, indicates to my mind that the time, energy and resources of the statutory office holders or their Department, are not being wasted by such distractions. 53I accept that what the Director-General wrote to Ms Bird demonstrates a careful attention to his obligations. It will be remembered that what he said to Ms Bird was that ASIO had "assessed all incoming correspondence and information for relevance" to the task upon which it was engaged, in accordance with the statute by which it was set up. He also indicated that ASIO only provided a response when appropriate. 54The clear inference is that ASIO, on behalf of the Director-General did not regard a response to the correspondence of Mr Hopkins as being appropriate. 55Having regard to the contents of that correspondence, which I have earlier described, I accept that this approach of ASIO has been applied here and that is the proper explanation for the absence of a response. 56Accordingly, I conclude that there is nothing in the conduct of the DirectorGeneral or Inspector-General that would warrant any criticism whatsoever. 57Still less is there any material which would enable any conclusion to be drawn that the Governor-General was in a position to undertake any of the conduct which is claimed in the Summons. 58To put it shortly and succinctly, the Governor-General cannot carry out any of the conduct which Mr Hopkins seeks that she be ordered to do, in the absence of receiving any advice from the Federal Executive Council. 59There is no evidence, let alone any suggestion or hint, that the Federal Executive Council has provided any advice to Her Excellency the Governor-General upon which she could act. Principles for Summary Relief 60The application by the Attorney-General is for summary dismissal of the Summons of Mr Hopkins. The legal principles for summary relief, upon which this Court is obliged to act, are not in doubt. 61Under r 13.14 of the Uniform Civil Procedure Rules 2005 (UCPR), the Court is entitled to make an order for summary dismissal where it is satisfied that: (a)the proceedings are vexatious or frivolous; or (b)no reasonable cause of action is disclosed; or (c)proceedings are an abuse of the process of the Court. 62Any such order involves the exercise of a discretion. The principles which guide the exercise of such discretionary decision making are well settled. In addition to those principles, when exercising any power given to the Court under the UCPR, the Court is obliged to further the overriding purpose which is set out in s 56 of the Civil Procedure Act 2005. That overriding purpose obliges the Court to facilitate the just, quick and cheap resolution of the real issues in the proceedings. 63Generally, summary dismissal of proceedings is inappropriate unless the court is satisfied that a plaintiff's claim or claims fall within the description of being so obviously untenable that it cannot possibly succeed. Authorities by which I am bound make this abundantly clear. I shall briefly discuss the principal ones. 64Over 100 years ago, in the High Court of Australia, O'Connor J in Burton v Shire of Bairnsdale [1908] HCA 57; (1908) 7 CLR 76 at 92 said: "Prima facie every litigant has a right to have matters of law as well of fact decided according to the ordinary rules of procedure which give him full time and opportunity for the presentation of his case to the ordinary tribunals, and the inherent jurisdiction of the Court to protect its process from abuse by depriving a litigant of these rights and summarily disposing an action as frivolous and vexatious will never be exercised unless the plaintiff's claim is so obviously untenable that it cannot possibly succeed." 65Over 60 years ago, in the High Court of Australia, Dixon J said in Dey v Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62 at [13]: "The application is really made in the inherent jurisdiction of the court to stop the abuse of its process when it is employed for groundless claims. The principles upon which that jurisdiction is exercisable are well settled. A case must be very clear indeed to justify the summary intervention of the court to prevent a plaintiff submitting his case for determination in the appointed manner by the Court with or without a jury. The fact that a transaction is intricate may not disentitle the court to examine a cause of action alleged to grow out of it for the purpose of seeing whether the proceeding amounts to an abuse of process or is vexatious. But once it appears that there is a real question to be determined whether of fact or law and that the rights of the parties depend upon it, then it is not competent for the court to dismiss the action as frivolous and vexatious and an abuse of process." 66Over 40 years ago, in the High Court of Australia, Barwick CJ said in General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 at [8]: "... the jurisdiction summarily to terminate an action is to be sparingly employed and is not to be used except in a clear case where the Court is satisfied that it has the requisite material and the necessary assistance from the parties to reach a definite and certain conclusion. ... ... the plaintiff ought not to be denied access to the customary tribunal which deals with actions of the kind he brings, unless his lack of a cause of action ... is clearly demonstrated. The test to be applied has been variously expressed; 'so obviously untenable that it cannot possibly succeed'; 'manifestly groundless'; 'so manifestly faulty that it does not admit of argument' ...". 67Over 25 years ago, the High Court of Australia said in Fancourt v Mercantile Credits Limited [1983] HCA 25; (1983) 154 CLR 87 at [27]: "The power to order summary or final judgment is one that should be exercised with great care and should never be exercised unless it is clear that there is no real question to be tried." 68Over 10 years ago, in the High Court of Australia, Gaudron, McHugh, Gummow and Hayne JJ said in Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552 at [57]: "Ordinarily, a party is not to be denied the opportunity to place his or her case before the court in the ordinary way, and after taking advantage of the usual interlocutory processes. The test to be applied has been expressed in various ways, but all of the verbal formulae which have been used are intended to describe a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way." 69Most recently, in the High Court of Australia, French CJ and Gummow J in Spencer v The Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 18 said at [24]: "The exercise of powers to summarily terminate proceedings must always be attended with caution. That is so whether such disposition is sought on the basis that the pleadings fail to disclose a reasonable cause of action or on the basis that the action is frivolous or vexatious or an abuse of process. The same applies where such a disposition is sought in a summary judgment application supported by evidence. ..." 70An examination of this claim against these authorities and the statutory provisions, demonstrates that Mr Hopkins' claim is hopeless, there is no evidence which exists in support of it, nor can evidence be obtained to support it. 71I am satisfied that the case is a very clear one. It is obviously untenable and it cannot possibly succeed. It is manifestly groundless and its deficiencies are such as not to admit of any rational argument in support of the relief claimed in the proceedings. 72This is a case, which in all of the circumstances, demonstrates that the principles governing the Court's power to summary dismiss proceedings ought be applied. Summary 73The plaintiff, Mr Hopkins, seeks orders for which there is no basis in fact, or in law, for this Court to make. 74To the extent that the orders sought involve the exercise of any discretion, in my opinion, it would not be open to a Judge of this Court to make the orders sought. 75The case is one which is obviously appropriate for summary dismissal. Orders 76I make the following orders: (1)Order, pursuant to r 6.4 of the Uniform Civil Procedure Rules 2005, that the Attorney-General for Australia be added as a defendant. (2)Order, pursuant to s 6(3) of the Jurisdiction of Courts (CrossVesting) Act 1987 (Cth), that the proceedings herein be heard and determined by the Supreme Court of New South Wales. (3)Order, pursuant to r 13.4 of the Uniform Civil Procedure Rules 2005, that the proceedings be, and hereby are, dismissed. (4)Order the plaintiff to pay the costs of both of the defendants. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 13 August 2013