Case: Re Skyring's Application (No. 2) (1985) 59 ALJR 561; Re Skyring (1985) 58 ALR 629
Outcome: cited
In December 1984, Mr Skyring lodged with the Brisbane registry of the High Court six documents conveniently described as 'writs' five of which were directed to a different Commonwealth Government Minister and the sixth to a 'judge of the Federal Court' (Spender J) by which Mr Skyring sought to initiate proceedings to agitate 'a general attack upon the financial system' ( Re Skyring's Application (No. 2) (1985) 59 ALJR 561; Re Skyring (1985) 58 ALR 629 at p 631 per Deane J). In Mr Skyring's affidavit in support of an application for leave to issue those writs, Mr Skyring noted that the argument to be advanced in the proposed actions was in terms of 'the key items presented in my argument before McPherson J when my tax case was eventually heard on 19 August 1983 in the Queensland Supreme Court' and 'this present action is intended to initiate further corrective action to bring about appropriate amendments to legislation relating to the financial institutions themselves'. 19 His Honour, Justice Deane at p 633, made these observations: The overall attack remains one upon the Australian financial system and to some extent the Australian legal system. The objective of the attack is to obtain a general review and reform of the law of those areas. There are, however, two particular matters which emerge in the course of Mr Skyring's oral submissions to which I should make specific reference. These are: (1) A submission that the combined effect of a number of sections of the Constitution is to erect a barrier against the issue by the Commonwealth of paper money as legal tender. The sections of the Constitution upon which particular reliance is placed are ss 51 (xii),(xiii) and (xvi) and 115 . Mr Skyring also referred to ss 105 and 105A . Additionally, reference was made to the provisions of the Currency Act 1965 (Cth) dealing with coins. The argument, if accepted, would result in the invalidity of s 36(1) of the Reserve Bank Act 1959 (Cth) which provides that 'Australian notes are a legal tender throughout Australia'. (2) The basis upon which Mr Skyring seeks relief against 'the judge of the Federal Court' is alleged error by Spender J of the Federal Court of Australia in proceedings in the Federal Court by Mr Skyring against the Commissioner of Patents and Telecom Australia. As I followed Mr Skyring's oral submissions, the error into which Spender J is to have fallen is a failure to accept the argument referred to in (1) above. It is to be noted that the time for appealing from the judgment has expired. Mr Skyring frankly stated that one of the reasons for seeking to proceed by certiorari was that the time for appeal had expired. He was, however, at pains to stress that the matters which he wished to litigate went beyond the matters could be properly raised on such an appeal. I have come to a clear conclusion that there is no substance in the argument that there is a constitutional bar against the issue by the Commonwealth of paper money as legal tender. Nor, in my view, would there by any substance in an argument that the provisions of s 36(1) of the Reserve Bank Act 1959 are invalidated or overruled by the provisions of the Currency Act 1965 . That being so, I am unpersuaded that there is any substance in the proposed proceedings against Mr Justice Spender, nor am I persuaded that the proceedings by certiorari against Mr Justice Spender would in any event be appropriate. Leave to issue the writs must be refused. 20 On 9 July 1985, their Honours Mason, Wilson, Brennan and Dawson JJ dismissed an appeal from the orders of Deane J noting that 'in this appeal from Mr Justice Deane's decision the appellant claims that the writs were designed to establish a decision by the Court that the provisions of the Commonwealth Constitution do not authorise the issue of paper money as legal tender, that s 36(1) of the Reserve Bank Act 1959 (Cth) which so provides is invalid and that taxation is an infringement of property rights deriving from Magna Carta and therefore the Income Tax Assessment Act , in making provision for taxation, is invalid and unconstitutional'. The judgment is unreported although, of course, published by the Court. 21 In dismissing the appeal, their Honours said 'we are not persuaded that the judgment of Mr Justice Deane contains any error. We should say in addition that s 51(ii) confers power upon the Commonwealth Parliament to legislate with respect to taxation, that the exercise of that power extends to the imposition of taxation and its collection, even though it has the effect of requiring the person on whom taxation is levied to pay the tax out of property which he owns'. 23 In Re Skyring (1994) 68 ALJR 618, Dawson J considered an application by Mr Skyring for an order that leave be granted pursuant to Order 63, r 6 of the High Court Rules to commence proceedings for prerogative relief in relation to a number of matters and in all those proposed matters the argument Mr Skyring sought to agitate: '... relied upon the proposition that it is beyond the power of the Commonwealth parliament to legislate to make paper money legal tender. This in essence is the same argument as that put by the applicant in Re Skyring's Application [No. 2] (1985) 59 ALJR 561, which was rejected by Deane J. His judgment was confirmed on appeal by the Full Court. ... The matter was concluded, in the view of the Court, by s 51(xii) and (xiii) of the Constitution and s 36(1) of the Reserve Bank Act 1959 (Cth). It would, in my view, be an abuse of process to allow the applicant to re-litigate a matter which has already been decided adversely to him'. (Mason J at pp 618 and 619). 26 Assuming for the moment that a power to re-open an entered and therefore perfected order of the Court in the exercise of its appellate jurisdiction is conferred upon the Court by the provisions of the Federal Court of Australia Act 1976 (Cth), leave to file a motion (referable to the Full Court) to re-open the judgment must be refused for the following reasons. The issues relevant to the questions properly raised on appeal by Mr Skyring have been determined according to law. The order was made on 18 April 1984 and entered on 11 May 1984, over 23 years ago. The application made before the High Court by motion was not progressed. In my view, the arguments Mr Skyring makes and seeks to further agitate on the various grounds which I have described as his 'underlying contentions' including his proposition that s 36(2) of the Reserve Bank Act 1959 (Cth) is also invalid, are unarguable. Justices of the High Court have considered the essential integers of these contentions in various contexts with the result that the arguments have been found, to the extent of that examination, to be of no substance. Although a question of the fate of the monies paid by Mr Skyring by way of security in this appeal remains outstanding (as does the question of the reserved costs of that application) that question is not a vehicle for agitating the merits of the underlying contentions. Although Mr Skyring quite properly has a clear interest in the resolution of the two outstanding matters, the appeal proceeding (and matters relevant or irrelevant to the grounds of appeal argued by Mr Skyring before Smithers, Northrop and Beaumont JJ) is otherwise dispositively concluded in a way not shown to attract 'exceptional circumstances' supporting an exercise of a power to disturb a perfected order of the Full Court and re-open such an order and allow argument on the merits of any particular proposition including the underlying contentions. Most recently, Mr Skyring sought leave before the Federal Court to apply for annulment of his bankruptcy and removal of his trustee. Mr Skyring contended that the bankruptcy is unlawful and the argument as to unlawfulness rested upon a challenge to the constitutional validity of the provisions of the Reserve Bank Act 1959 (Cth) authorising the issue of bank notes as legal tender. In dismissing both motions on 16 June 2004, Dowsett J said this: He [Mr Skyring] argues that that placitum 51(xiii) of the Constitution which authorises the Commonwealth Parliament to make laws concerning banking and the issue of paper money, does not authorise the issue of bank notes as lawful tender. It is difficult to see how such an argument can be maintained. It implies that the words 'paper money' means something quite different from their natural meaning. In any event, the issue was considered by Deane J in Re Skyring's Application (No. 2) (1985) 59 ALJR 561. His Honour concluded that there was no substance in the point although it is true, as Mr Skyring has pointed out that his Honour did not give reasons. In my view, the matter is beyond argument. (In the Matter of Skyring [2004] FCA 827 [2]).