22 July 2010

The following report was compiled by Max Wallace of the Australian and New Zealand Secular Association. It deals with the Vescio case, a case dealing with separation of church and state . Online opinion refused to publish it. Why?


Max Wallace


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 Sydney. His submissions canvassed the meaning of the clauses of s.116 of the Constitution.

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 Australia and Sydney in contravention of s.116 of the Constitution. 

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 London for crimes against humanity. Spanish authorities had issued international warrants for his arrest which the Vatican opposed.

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.)


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 Australian Catholic University.

Chief Justice Gleeson, himself a recipient of an honorary doctorate from the Australian Catholic University in 2005, must have been aware of Justice Crennan’s involvement with the Catholic Church.

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.


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 Australia’, Legal Ethics, Vol. 6, No.1). What was it exactly that persuaded Justices Crennan and Gummow that the use of the word ‘vexatious’ was sufficient reason to deny Mr Vescio his day in Court?

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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