Buzzacott v Hill [1999] FCA 639 (10 May 1999)

Last Updated: 26 May 1999

FEDERAL COURT OF AUSTRALIA

Buzzacott v Hill [1999] FCA 639

KEVIN BUZZACOTT V ROBERT HILL & ANOR

NO. S 23 OF 1999

HEEREY, NICHOLSON AND FINN JJ

10 MAY 1999

ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S 23 OF 1999

BETWEEN:	KEVIN BUZZACOTT Applicant
AND:	ROBERT HILL First Respondent HON ALEXANDER DOWNER, MINISTER FOR FOREIGN AFFAIRS Second Respondent COMMONWEALTH OF AUSTRALIA Third Respondent
JUDGE:	HEEREY, R D NICHOLSON AND FINN JJ
DATE OF ORDER:	10 MAY 1999
WHERE MADE:	ADELAIDE

THE COURT ORDERS THAT:

1. The applicant's application for leave to appeal against the orders O'Loughlin J made on 1 April 1999 is dismissed.

2. The applicant's notice of motion dated 29 March 1999 is dismissed save for paragraphs 2, 4 and 5 which are stood over pending the hearing and determination of the respondents' strike-out application.

3. The applicant's notice of motion dated 8 April 1999 is dismissed save for paragraphs 8 and 9 which are stood over pending the hearing and determination of the respondents' strike-out application.

4. The respondents' notice of motion dated 7 April 1999 (the strike-out application) is adjourned to a date to be fixed pending the hearing and determination of the appeal to the Full Court of the Federal Court in Wadjularbinna Nulyarimma of the Gungalidda v Thompson, A5 of 1999.

5. The applicant's notice of motion dated 13 April 1999 is dismissed save for paragraph 4 which is stood over pending the hearing and determination of the strike-out application.

6. The notice of motion of Martin Frank dated 22 April 1999 is dismissed.

7. The applicant is to file and serve submissions as to the strike-out application on or before 24 May 1999.

8. On or before 24 May 1999 the solicitor for the respondents is to file five copies of an application book and serve a copy on the applicants.

9. The application book is to contain a table of contents and paginated copies of:

(a) Applicant's application dated 29 March 1999.

(b) Affidavit of Kevin Buzzacott affirmed 29 March 1999.

(c) Respondents' notice of motion dated 7 April 1999.

(d) Affidavit of Peter Colin Walsh sworn 7 April 1999.

(e) Affidavit of Kevin Buzzacott affirmed 7 May 1999.

(f) Respondents' submissions as already filed.

(g) Applicant's submissions (if available).

(h) These reasons.

10. Liberty to apply is reserved. If the strike-out application is listed before the Full Court hearing A 5 of 1999, liberty to apply is reserved to that Court.

11. All costs are reserved.

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

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S 23 OF 1999

BETWEEN:	KEVIN BUZZACOTT Applicant
AND:	ROBERT HILL First Respondent HON ALEXANDER DOWNER, MINISTER FOR FOREIGN AFFAIRS Second Respondent COMMONWEALTH OF AUSTRALIA Third Respondent

JUDGE:	HEEREY, R D NICHOLSON AND FINN JJ
DATE:	10 MAY 1999
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

THE COURT:

1 A number of notices of motion and an application for leave to appeal are before the Court. We will mention in a moment how the Court has disposed of these. We will turn immediately to the relief which was the subject of argument. It is that sought in par 10 of the applicant's notice of motion dated 8 April 1999, namely:

"An interim injunction restraining the Australian Government Solicitor until further notice from providing any further legal representation (including any legal advice and litigation assistance) to the first and second respondents."

2 The first respondent and the second respondent are Mr Robert Murray Hill and Mr Alexander Downer, respectively Minister for the Environment and Minister for Foreign Affairs. The third respondent is the Commonwealth of Australia. The substantive application alleges acts of genocide relating to activities which it is said the respondents encouraged or permitted on lands of the Arabunna people at Lake Eyre and also relating to the failure of the respondents to seek World Heritage listing for these lands. One of the notices of motion that is before us today is the respondents' notice dated 7 April 1998 which is a strike-out application. That strike-out application raises the important question whether there is, as part of Australian domestic law, a law prohibiting genocide.

3 That issue is the subject of an appeal to another Full Court of this court. The hearing is fixed for 31 May and 1 June next in Canberra in the matter of the Wadjularbinna Nulyarimma of the Gungalidda v Thompson, No. A5 of 1999. Since it appeared to us obviously undesirable that two different Full Courts should consider in parallel the same fundamental question as to genocide, we have not embarked on a hearing on the merits of the respondents' strike-out application. We shall adjourn it pending the hearing and determination of the Gungalidda case. We have indicated that we will recommend to the Chief Justice that the strike-out motion be fixed for hearing at the same time before the Full Court hearing the Gungalidda case.

4 In that context, Mr Lindon, who assisted the applicant Mr Buzzacott, advanced arguments in support of the relief claimed in par 10 of the notice of motion dated 8 April 1999. He first said that the Commonwealth Authorities and Companies Act 1997 (Cth) applied to the Australian Government Solicitor, that s 22(1) of that Act imposed obligations of honesty, and there had been a breach of that obligation by counsel for the respondents in the present case when she filed written submissions which omitted reference to the "ius cogens".

5 This allegation goes no further than one litigant complaining that a legal practitioner appearing for an opponent has in some way acted wrongly or unprofessionally. We should stress that there is not the slightest foundation, in our opinion, for this attack on counsel for the respondents in the present case. But in any view, even if that were not so, a litigant faced with professional misconduct of the opposing party's lawyer has the obvious remedy of complaining to the Court and, indeed, perhaps turning the lawyer's misconduct to his or her own tactical advantage. It certainly does not found a basis on which the Court can intervene by injunctive relief to prevent the allegedly infringing lawyer from continuing to act for the opponent.

6 Mr Lindon also referred to a number of amendments to the Judiciary Act 1903 (Cth) introduced by Act No 7 of 1999. These included sections 55F, 55K, 55N and 55R. Some of these provisions enable the Australian Government Solicitor to act for two or more parties with a conflict of interest, subject however to the approval of the Attorney-General. The short point is that, although the amending Act has been proclaimed, the schedule listing these particular amendments is not yet in operation. The current provision is that the Australian Government Solicitor can act for, amongst others, the Commonwealth, a person suing or being sued on behalf of the Commonwealth, or a Minister, see Judiciary Act, s 55E(3)(b), (c) and (d).

7 In any event, we see no ground for conflict here, nor any ground for the complaint that because the Commonwealth has no power to make laws for genocide, therefore the Australian Government Solicitor cannot act for Commonwealth ministers or officers who are accused of genocide. These allegations having been made against the Commonwealth and the first and respondents in their capacity as Ministers for the Commonwealth, it is entirely appropriate that the Australian Government Solicitor should act for them.

8 We now proceed to deal with the outstanding matters. Where we state that matters are stood over, we mean stood over for further hearing and determination by this Court as presently constituted. For the reasons we have already indicated earlier today:

1. The applicant's application for leave to appeal against the orders O'Loughlin J made on 1 April 1999 is dismissed.

2. The applicant's notice of motion dated 29 March 1999 is dismissed save for paragraphs 2, 4 and 5 which are stood over pending the hearing and determination of the respondents' strike-out application.

3. The applicant's notice of motion dated 8 April 1999 is dismissed save for paragraphs 8 and 9 which are stood over pending the hearing and determination of the respondents' strike-out application.

4. The respondents' notice of motion dated 7 April 1999 (the strike-out application) is adjourned to a date to be fixed pending the hearing and determination of the appeal to the Full Court of the Federal Court in Wadjularbinna Nulyarimma of the Gungalidda v Thompson, A5 of 1999.

5. The applicant's notice of motion dated 13 April 1999 is dismissed save for paragraph 4 which is stood over pending the hearing and determination of the strike-out application.

6. The notice of motion of Martin Frank dated 22 April 1999 is dismissed.

7. The applicant is to file and serve submissions as to the strike-out application on or before 24 May 1999.

8. On or before 24 May 1999 the solicitor for the respondents is to file five copies of an application book and serve a copy on the applicants.

9. The application book is to contain a table of contents and paginated copies of:

(a) Applicant's application dated 29 March 1999.

(b) Affidavit of Kevin Buzzacott affirmed 29 March 1999.

(c) Respondents' notice of motion dated 7 April 1999.

(d) Affidavit of Peter Colin Walsh sworn 7 April 1999.

(e) Affidavit of Kevin Buzzacott affirmed 7 May 1999.

(f) Respondents' submissions as already filed.

(g) Applicant's submissions (if available).

(h) These reasons.

10. Liberty to apply is reserved. If the strike-out application is listed before the Full Court hearing A 5 of 1999, liberty to apply is reserved to that Court.

11. All costs are reserved.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Heerey, Nicholson and Finn.

Associate:

Dated: 10 May 1999

Counsel for the Applicant:	Mr K Buzzacott appeared in person
Counsel for the Respondent:	Dr M A Perry
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	10 May 1999
Date of Judgment:	10 May 1999