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Form 61 IN THE HIGH COURT OF AUSTRALIA MELBOURNE OFFICE OF THE REGISTRY No. M44

O. 69, r. 2(1)

Of 2003

IN THE MATTER OF AN APPLICATION BY GERRIT HENDRIK SCHOREL-HLAVKA FOR LEAVE TO ISSUE A PROCEEDING: Applicant APPLICATION FOR LEAVE TO APPEAL

1. The Applicant applies for leave to appeal from the whole of the judgment of the High Court of Australia of GUMMOW J given on 5 March 2003. Grounds (Not in any order of importance) 2. (a) That Gummow J was bias. (b) That the judgment of Gummow J was one unbecoming to a judge of a High Court of Australia, in that it lacked depth, competence, consideration, reference to relevant issues that sought to be litigated, and was generally of a standard that even a first year law student could have provided a better reason of judgment. (c) That an Application for Leave, doesnt require for the Applicant to set out all matters in details, but merely for the Applicant to show that there were issues to be litigated, irrespective what might be the final Orders upon a full hearing. This, the Applicant proved in his Affidavit material. (d) That the Applicant showed sufficient cause to be granted leave to proceed, and litigate, where the Applicant filed in his Affidavit material evidence that the Proclamation to Prorogue the Parliament and the Dissolution of the House of Representatives was defective, for not having been actually published on 8 October 2001, but rather first on 9 October 2001 in Canberra, and there after on various dates in other States, and as such, the writs issued on 8 October 2001 by the Governor-General were all defective and so null and void, so consequently the purported Federal General election held.
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This application was filed by the applicant GERRIT HENDRIK SCHOREL-HLAVKA Of: 107 Graham Road, Rosanna East (Viewbank), Victoria 3084 Phone number: 03- 94577209 (e) That the Applicant showed sufficient cause to be granted leave to proceed, where there appears to be lack of any knowledge by the Commonwealth how and when matters are to be actually published (in various Gazettes) in the various States, and by this by way or tyranny the people in the Commonwealth are subjected to laws, they not only are kept unaware of being implemented, but are actually refused to be aware of, even (as the Applicant did time and again) having pre-paid for the Gazettes, but still not being able to obtain the relevant Gazette on the day shown on the face of each relevant Gazette. No known judgment appears to exist in regard of the special requirements of matters to be published in a Gazette, if in all States/Territories, and if on the same day, as such it was an issue of litigation that was unique and important, such as if simultaneously in all States/Territories, etc. Neither does there appear to exist any ruling as to publication of a proclamation of the Prorogue of the Parliament and the dissolution of the House of Representatives versus its application to State issued writs, if such Proclamation therefore requires to be published in any relevant State. As such, the case that was pursued to be litigated by the Applicant has significant unique issues. (f) That Gummow J also erred in law, not to recognise that the Applicant placed other very significant issues before the Court which neither appears to have been subject to any High Court of Australia ruling. For example, the applicant seeking to contest a general election is a unique issue, where judges in the past referred to this but never handed down a specific judgment. The issue of dual citizenship being that of State citizenship and the AUTOMATICALY obtained Australian citizenship is another of many other issues that seems never as such have been litigated as the Applicant pursues to do. Neither the issue of a purported government deploying troops for a possible WAR, without any DECLARATION of WAR by the Governor-General. Neither the issue of how citizenship declared/defined by the Commonwealth would be an unconstitutional interference with the provisions of the Commonwealth of Australia Constitution.
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(g) That the Applicant had shown sufficient cause, that he had attempted to place his case before the High Court of Australia on 1 November 2001, but basically in the process had his case RAILROADED, that he ended up no where, and as such, there was a war mongering purported prime minister in power as if the Applicant never disputed the validity of the election, and so the Court preventing the litigation of the issues upon its merits itself undermined the very provisions of the Commonwealth of Australian Constitution that the Applicant could seek redress in the High Court of Australia. (h) That the Applicant had shown sufficient cause to be granted leave to proceed to litigate, in that the Applicant had shown that the writs were a product of an elaborated deceptive conduct by the Australian Electoral Commission, in breach of constitutional and other legal provisions. (i) That the Applicant had shown sufficient cause to be granted Leave to proceed having set out the numerous errors of law the High Court of Australia made in past judgments, such as this governing Section 41 of the Commonwealth of Australia Constitution etc, that caused great misconception to judges and were relevant to the issues further sought to be litigated. (j) That the Applicant did set out in his Affidavit material that there was a issue to be litigated, in that the Commonwealth of Australia Constitution did not provide for any legislative powers for the Federal Parliament to define/declare citizenship. Indeed, the Applicant provided a quotation of the framers of the Commonwealth Constitution Bill 1898 of Hansard, making it very clear that not only had the framers opposed the inclusion of any legislative powers for the Commonwealth to declare/define citizenship, but that such powers would be contrary to the various other provisions that were in the Commonwealth Constitution Bill 1898. As such, the Applicant had shown sufficient cause to be able to litigate the case. (k) The Applicant did place before the Court that the framers made it very clear that the Commonwealth wouldnt have any legislative powers to provide a Crimes Act, to detain any person or to use any Commonwealth forced within State boundaries, other then upon specific request of a State Government in event of domestic violence (civil unrest/riots) and that any person must be handed over to the States for detention. Also, that only the local police force and the State Courts could enforce Commonwealth laws. As such, the Applicant had shown cause to be entitled to litigate, where the current conduct of the Commonwealth is to unconstitutionally detail persons, without lawful excuse, and without compliance to constitutional provisions and to place them in so called concentration camps in conditions far worse then those provided to real convicted criminals.
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(l) That the Applicant showed sufficient cause to be granted leave to proceed to litigate in that where the Commonwealth has no constitutional powers to define/declare citizenship, then all its assessments of refugees/asylum seekers was floored using the term non-citizen, as the Applicant indicated most Australians are non-citizens due to the failure of the States to enact State citizenship laws. (m) That the Applicant showed sufficient cause to be granted leave to proceed to litigate the issue of citizenship, where the framers made it clear that Australian citizenship could only be obtained through having obtained State citizenship, and no other way, and the State of Victoria had made clear (as was provided in the exhibit) that it does not have any legislation governing State citizenship. (n) That the Applicant showed sufficient cause to be granted leave to proceed as to that any child born within the realm of the king, is a subject of the King, irrespective of its parentage. The unconstitutional Australian Citizenship Act 1948 is not and never can be a bar to the rights of any child being born in Australia, to be deemed to be an Australian. (o) That the Applicant showed sufficient cause to be granted leave to proceed, that the Commonwealth was deporting children born in Australia, and being Australians, from Australia upon the unconstitutional declaration they were Stateless. (p) That the Applicant showed sufficient cause to be granted leave to proceed to litigate the issue that the Minister for Immigration and Emigration failed to act reasonably and lawfully in delaying the processing of applications of refugees/asylum seekers, which was tantamount to a refusal to deal with the said applications, and for this each and every person denied a reasonable assessment within a reasonable time, must be deemed no longer being obligated to pursue such Application and entitled to remain within the Commonwealth without further disabilities. (q) That the Applicant showed sufficient cause to be granted leave to proceed, in that the Racial Discrimination Act by the Commonwealth was beyond constitutional powers, where the framers made clear that any legislation in regard of a race was limited to a specific alien coloured race and could not be against the general community. (r) That the Applicant showed sufficient cause to be granted leave to proceed, where the applicant set out the framers specifically limited the use of the defence forces
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to that of protecting the States from any direct attack, and not at all to allow some prime minister, or purported prime minister, to go war mongering placing the lives of Australians unduly at risk. (s) That the High Court of Australia has absolutely no constitutional powers to refuse a litigant to litigate his case before the said Court. At most, the High Court of Australia can provide for certain Rules of the Court, which may direct a litigant to follow a certain format, but could not prevent the Applicant to litigate. Section 71 of the Commonwealth of Australia Constitution limits the judicial power to The judicial power of the Commonwealth, by this it doesnt include any powers to deny a person his constitutional rights to litigate. The Commonwealth being defined in the Constitution in certain matters, such as the legislative powers and the executive powers but does not comprise to any powers to amend the Commonwealth of Australia Constitution, or otherwise apply the Commonwealth of Australia Constitution in conflict to the intentions of the framers as amended by referendums. As such, neither has the High Court of Australia any constitutional powers to declare Section 41 to be, so to say, a dead section. As this would be beyond the constitutional powers of the High Court of Australia to do so, in that the Commonwealth has neither such powers to declare any section as such. Neither can the High Court of Australia validate the Australian Citizenship Act 1948, where clearly this is beyond the constitutional powers of the commonwealth (Federal Parliament). The High Court of Australias constitutional powers are therefore limited to the executive and legislative powers of the commonwealth to be adjudicated upon, and as such where the Commonwealth has no constitutional powers to deny a person to challenge unconstitutional conduct, then the High Court of Australia neither has such power. At most, the High Court of Australia can direct a party seeking to institute proceedings to follow a certain format of filing documents. (t) That the Applicant attended to the Melbourne Registry of the High Court of Australia lodging his case to pursue orders. Albeit the Deputy Registrar kept the documents, she advised the Applicant that the DRAFT Order Nisi was not in a proper format, and for this could not be accepted for filing. Also that the supportive Affidavit must give sufficient details. Upon this, the Applicant then returned to the said Deputy Registrar on 17 February with a revised DRAFT Order Nisi, only to be advised that it was still not in acceptable format. The Deputy Registrar indicated the various alterations needed to comply with the Rules of the Court. Upon this, the Applicant then lodged the DRAFT Order Nisi (as amended again) and an amended supportive Affidavit, in the acceptable format as indicated by the Deputy Registrar. As such, the Applicant did ensure to comply with the directions of the Deputy Registrar and for this ought to have been
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entitled to obtain the Leave to proceed to litigate the issues contained within that material. Albeit Gummow J argues that there was serious defective in its entirety, both as a matter of form and substance, this clearly would attack the directions of the Deputy Registrar, the Applicant had followed to revise his material to comply with the purported Rules of the Court. Gummow J failed totally to point out what serious defects in form, existed, and as such appeared to make a mere general statement without credibility or substance, and more likely being some general comment without Gummow J having seriously bothered to attend to the material, that was to be adjudicated upon. (u) That the Applicant clearly has set out various substantial issues, including disputing the various past High Court of Australia judgments of their errors in law, and as such had shown considerable substance in his material. Gummow J as a judge of the highest Court of the land had not only his obligation as a judge of a Court but indeed had a special obligation to ensure that no matter what defect may exist in the material, it would not itself prevent the matters to be dealt with upon its merits, in particularly not where there was a likelihood that an unconstitutional war may result. The High Court of Australia obligation is not to devise rules to obstruct or otherwise place some obstacle course before a litigant, but to pursue orderly litigation without seeking to deprive a litigant his/her right to litigate. That the Applicant rely upon the following case law: Neil v Nott (1994) 68 ALJR 509 at 510 (High Court A frequent consequence of self representation is that the court must assume the burden of endeavouring to ascertain the rights of the parties which are obfuscated by their own advocacy The duty was therefore by Gummow J, that if there were alleged serious defective in its entirety then at least Gummow J ought to have bothered to set them out as to give credence to such severe statement. Failing to do so, indicates that Gummow J merely didnt like the looks of the volume of the material, and by this made the comment without perhaps even have read a single word of the supportive Affidavit. This, as the leave sought was specifically to be decided upon the Affidavit in support of such application for Leave, yet, nothing that Gummow J stated even remotely showed that any of the material had been considered, let alone been adjudicated upon. The Applicant was entitled to have at the very least some judgment upon the issues raised in his supportive Affidavit. The judgment provided however appears to be one failing any display of consideration to the issues raised. In the Marriage of Tennant (1980) 5 FLR 777 at 780

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If they are given no reason they may be entitled to feel the decision against them was conceived in prejudice, bias, or caprice. In such a case not only the litigant, but justice itself, is the loser. In Robinson v Robinson (1898) p135; and again in Cobb v Cobb (1900) p145] it was stated that when making orders of this kind, from which lies an appeal to other courts, it is the duty of the magistrate not only to cause a note to be made of the evidence, and of his decision, but to give the reasons for his decision and to cause a note to be made of his reasons... Elaborate judgements are not required, but the reasons which lead the magistrate to make his order must be explicitly stated. Gummow J clearly failed to clearly to do so, in not addressing why the various issues raised by the Applicant were not acceptable for obtaining leave to litigate. (v) That the Applicant only can assume, that Gummow J may simply not have liked the size of exhibits that were with to the 16 February 2003 sworn Affidavit. However, albeit the manner in which the Applicant uses his exhibits, in itself is not a breach of the rules of the Court. It would be an utter ridiculous situation of exhibits were being governed by Rules of the Court as to the size or the content, provided they are relevant to the issues to be litigated. It would place an undue restriction upon a litigant and may very well cause a miscarriage of justice, if a litigant is restrained to file exhibits in the manner he/she deems best applicable. While it might be some work for a judge to read the material, Authorities indicate that the high Court of Australia itself is on record that the volume of material is not a bar, provided it is relevant to the issues in dispute. (w) That Gummow J erred to claim that there was a serious defective in its entirety as to substance, as the material set out in great length quotations of Hansard and other relevant matters to support the Applicants case. No fair minded person, in his right mind, could possibly argue that there was no substance in the material the Applicant sought to litigate upon, and therefore the argument that it was a serious defective in its entirety as to substance may underline that Gummow J never even had bothered to read, let alone consider, the material he had to adjudicate upon. (x) Gummow J failed to consider the material sufficiently. (y) That the Applicant had referred in his Affidavit material to his 16 February 2003 Affidavit and as such this ought to have been also considered to the issues raise in that Affidavit.
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(z) That the judgment of Gummow J is unbecoming to that of a judge of the High Court of Australia and shows a serious defect in appropriate consideration of matters, and tarns the credibility of the high court of Australia to be fair and open minded, irrespective if the litigation includes severe criticism upon past High Court of Australia judgments. The Applicant seeking to litigate, must not be denied to do so merely because the High Court of Australia may dislike being exposed having made numerous errors in law. The Applicant must be able to expose such errors in law where this is relevant to his litigation. The Applicant is not presenting a case before the High Court of Australia seeking to succeed in some popularity contest, but to do so to pursue JUSTICE. If the High Court of Australia fails to have competence to deal with a case, merely because it cant stand being exposed having made numerous errors in law, then it ought to certify the case to be heard before the Privy Council or some other Court that may have the competence to hear and determine matters upon constitutional and legal grounds as applicable. (aa) The Applicant is not bound by the numerous decisions of the High Court of Australia of the past about the application of certain constitutional provisions, as there is no ESTOPPEL against the Constitution. If the High Court of Australia lacked in the past to understand what truly was applicable in regard of the intentions of the framers, then at the very least the High Court of Australia owns a gratitude to the Applicant to expose the truth, rather then to seek to conceal it. (bb) The Applicant is horrified as to the numerous errors of law of the High Court of Australia as expressed in various judgments of this Court. If anything, it displays that little effort was ever made to really determine what the framers actually discussed, and by this misconceptions and incorrect judgments have been handed down time and again. As the Applicant shows, Section 9 and 30 of the Commonwealth of Australia Constitution do not at all purport to be as appears to be held by the High Court of Australia, and as such the various judgment appears to be based upon judges having been ill informed and lack of proper understanding of the true intentions of the framers, accumulated upon past errors of law by other judges. Including by this the Sue v Hill case, for example, about the validity of the Australian Act, indicating that the Court never really seemed to have bothered to check what the framers of the Commonwealth Constitution Bill 1898 really intended. Section 51(xxxvii) of the Commonwealth of Australia Constitution never was intended nor can be permitted to refer legislative powers of any State to the Commonwealth without referendum. This the framers made clear. Also, that any reference of legislative powers was limited to legislative powers that a State actually possessed and was capable to refer by State constitution. Where then the Applicant in his material expose, so to say, the rot
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that goes on, and extensively quote the Hansard for this, then (mildly stated) while it might be unpleasant to judges that some non-lawyer exposes the truth, nevertheless it doesnt justify then for Gummow J to basically slander the Applicants case of serious defective in its entirety as to substance. Worse, unduly by this undermine the applicants ability to obtain orders as sought to possible avoid Australian troops to be involved in any WAR against Iraq. (cc) As the High Court of Australia lacks any constitutional power to declare any part of the Commonwealth of Australia Constitution to be invalid, or not being applicable, then its past decisions in that regard (such as to section 41) are itself unconstitutional, being beyond jurisdiction, and the Applicant is then entitled to expose this in his litigation to advance his own cause. The High Court of Australia is bias then to deny the matter to proceed, and to cause undue delays in a matter of great urgency to be heard. (dd) That the High Court of Australia being limited to the Commonwealth executive and legislative powers to be adjudicated upon, therefore lacks any constitutional powers to vary the application and interpretation of relevant constitutional provisions, others then as what was intended by the framers and those alterations as made by referendums. (ee) The High Court of Australia therefore has no constitutional powers to extend the provisions of the word race in Section 51 (xxvi) beyond that of alien coloured race or beyond the restriction that it cannot be applicable against the general community, and for this has an obligation to ensure that the applicant can set the record straight and is permitted to litigate for the national interest as to ensure that any laws, such as the Racial Discrimination Act, are declared to be unconstitutional and so null and void. (ff) That the Applicant made his case in the national interest of Australia, and as such, the case never ought to have been prevented to proceed. Due to the very limited time before a possible WAR against Iraq might eventuate, it was of extreme urgency for the Court to deal with this matter in a manner that will show to the public at large that the Court gave all reasonable effort to ensure no time was wasted by undue delays, and it sought to deal with the matters in a reasonable manner with a judgment that sets out the reasons of the orders of the Court, not being a mere flimsy general statements that defies logic and if anything, underlines that there was never any just and proper judgment upon the issues in the case placed before the Court.

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(gg) The Applicant was not required to set out his entire case, merely to show there was sufficient material to show that there was a case to be litigated. (hh) Gummow J failed to apply Neil v Nott (1994) 68 ALJR 509 at 510 (High Court, despite it being quoted in the material. (ii) That the delay in handing down the decision, where the Deputy Registrar already on 28 February 2003 indicated the judgment would be handed down on 5 March 2003, was unreasonable and without justification, considering the flimsy judgment handed down, and the urgency of matters, as well as the process required to be followed to pursue any appeal against the judgment. It displays that Gummow J never showed to understand the urgency of matters as to hand down a judgment that would not be unduly delayed, so that the applicant would have the maximum time to pursue an Appeal. (jj) That the failure by Gummow J to set out the principle issues, that were sought to be litigated, and why such issues were deemed not to be of substance, despite having supportive evidence such as quotations of the Hansard and/or other material, indicates that the application never was properly considered upon the MERITS of the case. (kk) That Gummow J failed to set out and so didnt at all point out a single issue of why the material was to be held seriously defective in its entirety, either on form or substance, by this giving the perception that it was merely a general statement without basis. (ll) Such further and other grounds that the Applicant may further pursue.

Order(s) sought 3. (a) That the orders of GUMMOW J of the High Court of Australia of 5-3-2001 are varied/amended as follows: (i) That the Orders of GUMMOW J are varied/amended by deleting the word refused and have this substituted with the word granted (ii) That an additional paragraph numbered 2 be inserted with the following wording: That the Orders Nisi sought by the Applicant are issued by the Registrar of this Court forthwith. (iii) That an additional paragraph numbered 3 be inserted with the following wording: That the Applicant shall serve as soon as practical, upon the
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(iv)

Australian Government Solicitors, for all Respondents, the Orders Nisi. That an additional paragraph numbered 4 be inserted with the following wording; That these proceedings will be conducted as a matter of public interest and each party will carry his own cost, in regard of these and further proceedings. 18th day of March, 2003 ............................................................................. (Signed, Solicitor or Applicant if unrepresented)

Dated the

THE APPLICANTS SOLICITOR IS: [name of firm and address for service, telephone and facsimile numbers] OR THE APPLICANTS ADDRESS FOR SERVICE IS: Mr G.H. SCHOREL-HLAVKA, 107 Graham road, Rosanna East (Viewbank), Victoria 3084, in the state of Victoria, ph 03 - 94577209

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