Fitzgibbon v HM Attorney General [2005] EWHC 114 (Ch)

David Claude Fitzgibbon v Her Majesty’s Government of the United Kingdom of Great Britain and Northern Ireland (2004) HC 03C03923

By an application notice dated the 18th November 2003, the Attorney General of the United Kingdom applied to strike out an action by Barrister David Claude Fitzgibbon from Australia, that “the functions of HM the Queen under the Constitution are not being carried out in accordance with the relevant laws set out in the 1900 Act which is the law of England and Wales.” The defendant in this action was originally “Her Majesty’s Government of the United Kingdom of Great Britain and Northern Ireland” but the only proper defendant is Her Majesty’s Attorney-General and an appropriate amendment was made. 

The claimant sought damages from the Government of the United Kingdom in the sum of five million pounds, and a declaration by the court that the title “Elizabeth the Second by the Grace, of God Queen of Australia and Her other Realms and Territories, Head of the Commonwealth” and the Letters Patent of 21 August 1984 are void and of no effect.

On the 23th June 2004 Master Bowman acceded to the application and struck out the action and ordered the Claimant to pay costs.

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Master Bowman refused permission to appeal but on the 28th October 2004 Patten J granted permission. The appeal was heard by Justice Lightman in Fitzgibbon v HM Attorney General [2005] EWHC 114 (Ch) in the England and Wales High Court (Chancery Division).

In particular, Mr Fitzgibbon sought declarations relating to the Constitution of Australia:

(1) that the exercise by HM the Queen and her heirs and successors in the sovereignty of the United Kingdom of the functions prescribed in the Commonwealth of Australia Act 1900 are exercised in right of her and their sovereignty of the United Kingdom; and

(2) that the issue of letters patent in respect of the functions prescribed in the 1900 Act must be under the Great Seal of the United Kingdom.

The Claimant’s case is that in exercise of her powers under the 1900 Act (and in particular under the Constitution), the Queen is acting in right of the United Kingdom, and should accordingly use the Great Seal of the United Kingdom, and is not acting in right of Australia and accordingly should not use (as is her practice) the Great Seal of Australia. The Claimant contends that the 1984 Letters Patent are invalid and without legal effect because they were not sealed with the Great Seal of the United Kingdom and that the subsequent appointment of Governors General and the amendment of the 1984 Letters Patent on the 15th May 2003 under the Great Seal of Australia are likewise for this reason invalid.

“Before I turn to the specific issues raised, I should make four preliminary observations. First I should say a word about the divisibility of the Crown. The old doctrine of the indivisibility of the Crown has given way with the development of the Commonwealth to the current doctrine of the divisibility of the Crown. There is a difference of view expressed by the members of the Court of Appeal in R v. Foreign Secretary ex parte Indian Association of Alberta [1982] 1 QB 892 (“the Indian Association”) whether the change occurred during the latter half of the 19th century or during the early part of the 20th century. The transition or recognition of the transition would appear to have been gradual over time and it is not reflected in the 1900 Act. It may be that indivisibility is inconsistent with the distinct existence of autonomous governments within the Queen’s dominions: see Halsbury’s Laws of Australia 90-2375.

Second the formula of words that have been used in this case “in right of the United Kingdom” and “in right of Australia” calls for clarification. A passage in the judgment of May LJ in the Indian Association is worth citing both on this and the first matter:

“Although at one time it was correct to describe the Crown as one and indivisible, with the development of the Commonwealth this is no longer so. Although there is only one person who is the Sovereign within the British Commonwealth, it is now a truism that in matters of law and government the Queen of the United Kingdom, for example, is entirely independent and distinct from the Queen of Canada. Further, the Crown is a constitutional monarchy and thus when one speaks today, and as was frequently done in the course of the argument on this application, of the Crown ‘in right of Canada’ or of some other territory within the Commonwealth, this is only a short way of referring to the Crown acting through and on the advice of Her Ministers in Canada or in that other territory within the Commonwealth.”

Thirdly the question raised regarding the use of the seal is one of form only, and not of substance. There is no question but that HM the Queen wished and intended the acts done in respect of which use was made of the Great Seal of Australia.

Fourthly, whilst the issue raised is an issue of construction of the 1900 Act, a United Kingdom statute, it is an issue that has no significance or consequences in this country. The connection with the United Kingdom is only historical in the sense that the 1900 Act was passed by the legislature here. On the other hand the issue has potentially substantial consequences in Australia. I therefore inquired of Mr Price, Counsel for the Claimant, why any proceedings for the declaratory relief sought were not commenced in Australia rather than here. Mr Price variously answered that Australian judges would be embarrassed determining the issue because the answer might raise questions as to the validity of their appointments as judges; that the Australian courts in other proceedings had shown a marked disinclination to decide the issue in the way sought; and that the Australian courts had no jurisdiction to decide the issue. I need only say that none of these answers have any substance.

In my judgment this court has no jurisdiction to determine the issues raised in this action: they are not justiciable here. As soon as Australia became independent, the 1900 Act ceased to have any effect as an exercise of sovereign power of the United Kingdom, and whatever effect it then and thereafter had was as part of the law of the sovereign state of Australia, into the validity of which this court has no jurisdiction to inquire: see Buck v. Attorney General [1965] Ch 745 at 771 (“Buck”) per Diplock LJ and the Indian Association at 916G-917D, 921 C-G and 928 A-B. As Mr Crow (Counsel for the Attorney General) submitted, when HM the Queen is exercising her functions under the Constitution, she is acting pursuant to Australian law. It is for the Australian courts to apply Australian law to determine the capacity in which HM the Queen is acting, the appropriate seal and the consequences (if any) if the wrong seal is used. It is not for the United Kingdom courts to enter the field proffering its view as to the proper interpretation of the Constitution.

Mr Price sought support for his contention that this court can determine the issue raised by reference to the decision of the Court of Appeal in R (Quark Fishing Ltd) v. Secretary of State for Foreign and Commonwealth Affairs [2004] 2 WLR 1 (now on appeal to the House of Lords). That decision however is of no assistance to him. The issue in that case was the validity of an instruction issued by the Foreign Secretary (for the Queen) to an official in South Georgia and South Sandwich Islands, an overseas territory (formerly called a colony). The Claimant issued judicial review proceedings in this country successfully challenging the validity of the instruction. Whilst reaffirming the doctrine of the divisibility of the Crown, the Court of Appeal held that in issuing that instruction the Queen had acted in right of the United Kingdom, and not the overseas territory, by reason of the particular facts of that case, and in particular (i) the fact that it was concerned with a dependent territory, not a sovereign state; (ii) the small size, population and resources of the territory; and (iii) the wording of its constitution. No issue was or could by raised in that case as to the court’s jurisdiction. The decision lends no support for the proposition that this court has jurisdiction to determine issues as to the constitutional law of Australia.

Even if this court did have jurisdiction, as a matter of international comity it should not entertain this case, for to grant the declarations sought would amount to an unwarranted interference in the affairs of an independent member of the British Commonwealth: see Buck at 768F-G per Harman LJ and 770H per Diplock LJ.

In my view the action should also be struck out on the ground that it is quite purposeless. No effective relief is sought. The only relief sought is the grant of declarations: no effective relief is sought here or elsewhere and the declarations may be ignored with impunity by Australia. In consequence the grant of the declarations sought would be (if any) of academic interest only. Mr Price concedes that, whatever this court declares, the challenges made by the Claimant in these proceedings can have no practical consequences unless the challenges are also made, succeed and are followed up in Australia. It would in the circumstances be both improper and contrary to law to grant the declarations sought: see Buck at 768E-F per Harman LJ.