AUSTRALIAN COUNCIL FOR THE
DEFENCE OF GOVERNMENT SCHOOLS
PRESS RELEASE 390
THE HIGH COURT AND THE
VESCIO CASE
CONFLICT OF INTEREST?
22 July 2010
The following report
was compiled by Max Wallace of the Australian and
CONFLICT OF
INTEREST? THE HIGH COURT AND THE 2008 VESCIO /CATHOLIC WORLD YOUTH DAY CASE
Max Wallace
Outline
On 14 March 2008
Carmello Michael Vescio lodged a Writ of Summons with the Sydney Registry of
the High Court. Mr Vescio opposed federal and state government funding of the Catholic
Church’s so-called ‘World Youth Day’, which ran from 15 to 20 July 2008.
An Outline of Oral
Submissions, a public document, filed in the High Court on 20 June 2008,
described the content of the 14 March 2008 Writ. Mr Vescio
‘… believes that
the $22M of federal taxpayers’ money, and for that matter the presently
irrelevant $86M of [New South Wales] government money (not including the
added costs of the use of State and Federal administrative and security
services), being paid for by taxpayers should have gone to other proper public
purposes not religious purposes. His particular concerns are the relief of
poverty and better legal aid in this country; and that a religious movement of
significant wealth and power which cousens up to government for donations is
itself compromised by the receipt of government largesse … [people are]
entitled to feel offended by the public endorsement of what is in truth a
religious observance.
(The $86M was
‘irrelevant’ as there is no constitutional fetter on church-state relations in
Australian states.)
The Outline of
Oral Submissions, and the original Writ, were written by Mr Vescio’s barrister,
Mr Peter King, the former Liberal federal member for Wentworth in
Peter King
described how on 20 March 2008 the Chief Justice, Anthony Gleeson, under Rule
6.07 of the High Court Rules 2004, directed the Registrar of the Court ‘to
refuse to issue or file this document [Mr Vescio’s Writ] without the leave of a
Justice [had first been obtained] by the party seeking to issue or file
it.’
Rule 6.07
authorises this where a Registrar determines that ‘on its face … a Writ of
Summons appears to be an abuse of process or frivolous or vexatious’
Justice Susan
Crennan was appointed by the Chief Justice to review the Writ before the matter
could go to a hearing by three High Court judges, to determine if Mr Vescio had
a ‘reasonably arguable’ case to go before a sitting of the full High Court for
final determination. In an undated document, Justice Crennan said in part:
It is alleged that
any decision to provide the funding described constitutes 'a law for
establishing the Roman Catholic Church in
She concluded that
The documents
filed in support of the application are confusing, prolix and embarrassing in
form. On their face they disclose complaints which are political in nature.
They do not disclose any matter of legal substance which would justify
the grant of leave to issue the proceeding. In terms of Rule 6.07, the
proceeding, if issued, would be an abuse of process and vexatious. Leave is
refused.
According to the
document cited above, on 26 March 2008, Mr Vescio’s instructing solicitor, Mr
Bilinsky, telephoned the Court Registrar and asked her:
Can you tell me
whether the problem with the Writ of Summons is a formal matter or is it
something else?’ The Registrar replied with commendable frankness, ‘It’s not a
formal problem’. [Mr Bilinsky] asked ‘Can you tell me how it is an abuse of
process, or frivolous or vexatious?’ The Registrar replied, ‘We don’t have to
give reasons.’
Another Writ was
then prepared appealing Justice Crennan’s rejection of the application. This
was to be heard by another High Court judge. The new Writ had detailed Written
Submissions attached. It was filed on 2 May 2008. After three weeks,
there was no response.
The Court
eventually heard the appeal from Justice Crennan’s decision for refusing leave.
This was heard before Justice Kirby on 20 June 2008. Justice Kirby found
that the case presented by Peter King on behalf of Mr Vescio was that ‘the
application for leave is reasonably arguable.’ The matter was adjourned to 27 June
2008 for a preliminary hearing by three judges.
On 27 June 2008 Mr
Vescio’s case was heard again before Justices Kirby, Gummow and Haydon. Justice
Kirby agreed the matter could proceed further to the High Court. Justices
Gummow and Haydon disagreed. In fact, according to the transcript of the
hearing, Justice Haydon said nothing. In refusing leave to appeal,
echoing Justice Crennan, Justice Gummow said
If the applicant
seeks to bring before the Court for adjudication the issues with which he is
concerned, the High Court Rules are designed to require that this be done in
proper form. The proposed statement of claim, on its face, does not meet these
requirements and it would be vexatious in the technical sense of the term to
launch an action in this Court in reliance upon it.
Conflict of
Interest
Previously, on
another matter, and by way of comparison, former Chilean dictator, Augusto
Pinochet, was arrested in
An initial
judgment denying Pinochet immunity from prosecution was delivered on 25
November 1998. On 10 December 1998 Pinochet petitioned that the order of 25
November 1998 be set aside on the grounds that one of the members of the
Appellate Committee sitting in judgment on the original charge against
Pinochet, Lord Hoffman, had a conflict of interest when he heard the matter.
Pinochet’s legal
advisers argued that Lord Hoffman’s position as Director and Chairperson of Amnesty
International Charity Limited (AICL) was a conflict of interest. While Lord
Hoffman was neither employed nor remunerated by AICL his wife was employed by
Amnesty International. The Court had given permission for Amnesty to act as
interveners in the case.
The decision to
set aside the initial order to arrest Pinochet was set aside on the grounds of
Lord Hoffman’s apparent conflict of interest on 15 January 1999.
In 2000 Kerry
Abadee summarised the usual principles concerning conflict of interest:
(a) If pecuniary, the judge is automatically
disqualified,
(b) If, on the one hand, the interest is
non-pecuniary, the court is required to consider:
(i)
Whether there was a ‘real danger’ that the interest might have affected
the judge’s impartiality; or
(ii)
Whether the interest might lead a fair-minded observer to entertain a
‘reasonable apprehension’ that the judge may be biased
(K. Abadee,
‘Lessons from the Pinochet Case for the Bias Rule in Procedural Fairness in its
Application to Australian Judges’, Australian Journal of Administrative Law,
Vol 8, 2000.)
Analysis
At Justice
Crennan’s swearing in to her position on the High Court, 3 February 2004,
Mr Robin Brett QC, Chairman of the Victorian Bar said that Justice
Crennan had been ‘Chairman [sic] of the Independent Compensation Panel of
[Catholic] Archdiocese of Melbourne’; on 26 May 2006 she received an
honorary doctorate from the Australian Catholic University; the Vescio
matter was heard in 2008
In the Pinochet
matter, Lord Hoffman’s non-pecuniary links to Amnesty International was enough
to set aside the case against Pinochet.
What is relevant
to the Vescio matter, in this context of conflict of interest, is that Justice
Crennan, as noted, had previously served on the Catholic Church’s
Independent Compensation Panel for victims of sexual abuse and later received
an honorary doctorate from the
Chief Justice
Gleeson, himself a recipient of an honorary doctorate from the
Why did Chief
Justice Gleeson appoint her, and not someone else, to review the Vescio Writ to
remove any possible perception of conflict of interest? Given her link to the
Catholic Church, why did Justice Crennan agree to review the Writ?
In 2000 Kerry
Abadee said that the bias rule of procedural fairness ‘requires a judge ... to
disclose any interest to the parties to proceedings which might raise any
question of apparent bias’. She said this involves both matters of pecuniary
and non-pecuniary involvement. She continued
The fact that a
judge has an interest in the subject matter is enough to warrant automatic
disqualification without any investigation into the likelihood or suspicion of
bias.
Abadee points out
that
It has always been
incumbent on judges to make disclosures; otherwise litigants may come across
information which could found an apprehension of bias after
protracted and costly litigation.
Conclusion
Mr Vescio's
‘vexatious’ litigation in the High Court of Australia was costly. Given
that Justice Crennan never explained what was meant by the term ‘vexatious’,
and Justices Gummow’s (and by implication Haydon’s) comment that Mr
Vescio’s Writ, drafted by an experienced barrister and former federal member of
parliament, was ‘technically vexatious’, was also not explained, it is hard not
to draw the conclusion that Mr Vescio himself has been the victim of an abuse
of procedural fairness.
In 2003 Michael
Kirby wrote that ‘It has long been the law that judges are obliged to
give reasons for their decisions’ and that ‘the extent of the reasons will
depend on the circumstances of the case.’ (‘Judicial Accountability in
I believe Mr
Vescio should sue the High Court to claim damages for the costs involved in his
litigation on the basis that he was treated unfairly. He could raise the
question of whether Justice Crennan had a conflict of interest.Either
way, as a result of this unfair treatment, the central question of whether the
federal government’s awarding of $20M to the Catholic Church for World Youth
Day was unconstitutional never made it to the full bench of the High Court.
Therefore, all the legal questions surrounding whether s.116of the Constitution
really means separation of church and state, were stymied before they were put.
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