Nelson v Fish

[1989] HCATrans 264

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Perth No P4 of 1989

B e t w e e n -

MICHAEL WILLIAM NELSON

Respondent/Plaintiff

and

M. FISH and R. MORGAN

A~plicant/Defendants

Summons to strike out

statement of claim

DEANE J

Nelson

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON FRIDAY, 27 OCTOBER 1989, AT 9.00 AM

Copyright in the High Court of Australia

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MR R.E. BIRMINGHAM: If it please Your Honour, I appear for

the defendents. (instructed by Australian

Government Solicitors)

HIS HONOUR:	And Mr Nelson is in person.
MR NELSON:	Yes, Your Honour.
HIS HONOUR:	Mr Nelson, you understand what is sought in these

proceedings, do you? That is, it is an application

to strike out your writ of summons and statement of claim on the basis that it does not show a cause of

action.

MR NELSON:  Well, the problem here is that the writ is not

meant to be struck out, just the documents after the
writ.

HIS HONOUR: Yes, well I think that is right. Well now, what

do you say about that? I have read all the

documents. You can assume that.

MR NELSON:  That will save a great deal of time, Your Honour,

thank you. To start off with - unfortunately I

have not got one for the defence, but I have no

idea wbether I have a verbal defence on this or whether

I would be permitted to hand this up.

HIS HONOUR: All I wanted to know is you oppose orders being

made striking out - - -?

MR NELSON:	I very much oppose it, yes, Your Honour.
HIS HONOUR:	Very well. Well now, as you will appreciate,

this Court is the High Court. It is really unable

to deal with matters at first instance that occupy

any great time. It is the Appeal Court of the

country. The course I propose to take - you sit

down, Mr Nelson-.,; and I will hear both sides on it, is

I propose to remit cnis matter to the Federal Court

of Australia in Perth so that it can be dealt with

there. What do you have to say about that,

Mr Birmingham?

MR BIRMINGHAM:  Your Honour, the defendants would not oppose

that at all and, indeed, that would have been an

order that I would have sought in addition to the
striking out. There does not appear to be on the

face of the papers, when read globally, , .any

constitutional question raised but, rather, it

appears as though the plaintiff seeks damages from

the defendants as a consequence of them purportedly

exercising powers conferred on them under a power

of delegation in a manner contrary to -

HIS HONOUR:  I have read all the documents. I do not think

we need go into the details of it.

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nelson

MR BIRMINGHAM:  Your Honour, I do not believe that the plaintiff

intends to raise a constitutional question on the

applicability of the MARRIAGE ACT, it is whether it

offends section 16 of the CONSTITUTION.

HIS HONOUR:  But even if he does that will still be dealt with

by the Federal Court and, if necessary, it does

emerge that there is a real constitutional issue

it can always be removed to this Court.

MR BIRMINGHAM:  I would respectfully submit, before it can be

removed the factual question of whether there is

a religion must be determined and that is a matter

appropriate for the Federal Court.

HIS HONOUR:  Mr Nelson, what do you say about the matter being

remitted to the Federal Court?

MR NELSON:  Timewis-e, I am not happy with it but there is very

little I can do against machinery that is geared to

fight me.

HIS HONOUR: Well, it is not a matter of being against machinery

geared to fight you. It is a matter of the proper

judicial procedures being followed. Have you anything

to say as to why this matter should remain in the

High Court rather than be remitted to the Federal Court?

MR NELSON:  Because it has original jurisdiction on the

question of the CONSTITUTION, yes, Your Honour.

HIS HONOUR:	Is there anything further you wish to say?
MR NELSON:	Probably not, it is entirely up to the Court now

as whether it will remit or not.

HIS HONOUR:  Thank you. I would indicate to you, Mr Nelson,

for your assistance, that I have read the documents.

There are very grave difficulties about them in

that I can see nothing at all in them as they

presently stand which could conceivably justify a

claim for damages against the two defendants.

Well now, that being so, and it will be a matter

for you what course you take, I propose, before

remitting the matter to the Federal Court, to give

you leave generally to amend the statement of

claim or to file a new statement of claim if you

want to put the matters in a way which does make

out an arguable cause of action.	Now, I am not
giving you advice.	I am just telling you I am

going to make an order that will allow you to

amend the documents in any way you see fit in the

next three weeks. Do you follow that?

MR NELSON:  Yes, Your Honour.

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Eelson

HIS HONOUR:  The orders that I make are:

(1) That the plaintiff have leave generally

to amend the statement of claim or to file a

new statement of claim within 30 days.

(2) That the further proceedings in this

action be remitted to the Federal Court of

Australia.

(3) That the action proceed in that court

as if the steps already taken in the action

in this Court had been taken in that court

and as if Western Australia had been stated

in the writ to be the place of trial.

(4) That the Registrar of this Court

forward to the proper officer of that court

photocopies of all documents filed in this

case and a copy of any transcript of

proceedings in this Court.

It is further ordered that the costs of the

action to the date of remission, including
the costs of this order, are to be according
to the scale applicable in that court and in

the discretion of that court.

I will now adjourn.

AT 9.07 AM THE MATTER WAS ADJOURNED SINE DIE

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