CCPR/C/47/D/490/1992

Communication No. 490/1992, A. S. and L. S. v. Australia

(decision of 30 March 1993, adopted at the forty-seventh

session)

Submitted by:

A. S. and L. S. (names deleted)

Alleged victims:

The authors

State party:

Australia

Date of communication:

26 December 1991 (initial submission)

The Human Rights Committee, established under article 28 of the

International Covenant on Civil and Political Rights,

Meeting on 30 March 1993,

Adopts the following:

Decision on admissibility

1.

The authors of the communication dated 26 December 1991 are A. S. and

L. S., Australian citizens currently residing in Tuross Head, New South

Wales, Australia. They claim to be victims of violations by Australia of

articles 2, 16, 17, 26 and "others possibly to be determined by the Human

Rights Committee" of the International Covenant on Civil and Political

Rights. The Optional Protocol entered into force for Australia on

25 December 1991.

Facts as submitted

2.1 The authors are shareholders and directors of the Sapphire Investments

Ltd. In 1981-1982, they bought a number of land tracts at Merimbula, New

South Wales. In 1984, they decided to use the land for the construction of a

retirement village, "Valley High Resort Village"; this was an ambitious

project requiring substantial borrowing. Initially, Sapphire Investments was

funded by Esanda Ltd., but in March 1985, the company approached other

financiers for a sizeable loan in order to buy out Esanda and fund the

further development of the project. A. S. approached the E. M. Group, a

Melbourne-based consulting group acting as mortgage managers, brokers and

finance consultants. Another company, B. P. T., a government-licensed lender

of public investment funds, acted as the trustee of certain property trusts

established and managed by E. M. As the trustee, B. P. T. advanced money to

Sapphire Investments against certain collaterals.

2.2 In 1985 and 1986, disputes arose between the authors and B.P.T./E.M.

concerning the extent of the financial engagements of the latter. They

centred around the issue whether or not B.P.T/E.M. would provide the totality

of the funds required to construct, market and manage Valley High, and

whether or not E. M. would provide, or assist in opening, further credit

lines required by the authors' company in the event that B. P. T. did not do

so. The authors contend that such representations were indeed made; the

respondents contest it.

2.3 On 15 May 1987, the authors filed a Statement of Claim in the Supreme

Court of New South Wales and in the Federal Court of Australia, for breach of

contract and several alleged violations of the Australian Trade Practices

Act. On 16 December 1987 the Federal Court ruled in favour of B. P. T. and

E. M.

2.4 According to the authors, the case before the Federal Court was

"rushed"; they contend that they went into the hearing unprepared and against

their express wishes, after the refusal of the judge to reschedule the

hearing. In this context, they consider that the judge inappropriately

invoked a Bar Association rule which prompted their duly instructed senior

counsel, a Q. C., to retire from the case with immediate effect, after

"unsubstantiated" allegations that he had previously provided commercial and

legal advice to the authors.

2.5 As a result of the adverse decisions, the authors lost their property,

including their family home; they consider themselves victims of illegal

dispossession and believe that this dispossession was orchestrated to cover

up a major financial scandal involving the defendants and to cover "corporate

criminals". In A. S.'s opinion, B. P. T. knowingly entered into a number a

conflicting positions on the Valley High project, with the intention of

fraudulently stripping Sapphire Investments and the A. S. Family Trust of its

assets. The defendants allegedly were aided in this endeavour by the E. M.

Group.

2.6 The authors further consider that the Government, in order to limit the

damage, "colluded" with the judicial authorities to deny the authors justice.

Several appeals for a revision of the judgement addressed to the Federal

Commissioner for Human Rights, the Prime Minister and the Chief Justice of

New South Wales were unsuccessful. The authors admit that it would be

possible to challenge the judgement in the High Court; however, the office of

the Attorney-General has rejected their request for the assignment of legal

aid.

Complaint

3.1 The authors contend that by precipitating the departure of their senior

counsel in the proceedings before the Federal Court, the judge discriminated

against them and unduly favoured the defendants, who were able to introduce

another senior counsel, whereas the authors themselves were left without

competent legal advice. The judge's action is said to constitute a violation

of articles 2 and 26.

3.2 It is further submitted that the judge unjustly refused to make a ruling

under Section 57 of the Legal Aid Act of New South Wales, when rejecting the

authors' request for a postponement of the hearing, because the issue of a

legal aid assignment had not been settled by the Legal Aid Commission. A. S.

and L. S. explain that the judge's refusal forced their children and friends

to advance money so as to avoid losing the family home by default. They

submit that a decision about the assignment of legal aid was not made until

after the beginning of the trial on 28 August 1987, with a new senior counsel

appearing for the authors, and add that their new lawyer only had one weekend

to study the file.

3.3 The authors claim to be victims of a violation of article 17 of the

Covenant, because the judge allegedly allowed the defendants to introduce as

evidence confidential documentation on A. S. obtained by "illegal means" from

the Federal Department of Social Security. The judge also did not stop the

defendants from introducing allegedly defamatory and unsubstantiated remarks

designed to discredit their honour and reputation. By so doing, the

defendants allegedly were able to distort the court records, which would

otherwise have shown that they were in breach of the Trustee Act of the State

of Victoria.

3.4 In respect of their appeal, the authors allege violations of

articles 16, 17 and 26, since the Court of Appeal proceeded with the hearing

of the appeal in the autumn of 1987, even after being informed that L. S.

could not attend the hearing because of illness. The authors further claim

that they were denied equality before the law, because they were denied legal

aid to argue the seven grounds of appeal. In this context, A. S. indicates

that the Court ruled that he, as an Australian of non-anglophone origin, was

capable of representing the interests of Sapphire Investments, whereas the

defendants were represented by a Queen's Counsel.

3.5 Finally, the authors claim a violation of articles 2 and 26, because the

Court of Appeal allegedly did not reach an independent verdict based on the

evidence in the appeal documents, thereby denying the authors an effective

remedy.

Issues and proceedings before the Committee

4.1 Before considering any claims contained in a communication, the Human

Rights Committee must, in accordance with rule 87 of its rules of procedure,

decide whether or not it is admissible under the Optional Protocol to the

Covenant.

4.2 With regard to the application of the Optional Protocol to Australia,

the Committee recalls that it entered into force on 25 December 1991. It

observes that the Optional Protocol cannot be applied retroactively and

concludes that the Committee is precluded ratione temporis from examining

events that occurred in 1985-1987, unless it is demonstrated that these acts

or omissions continued or had effects after the entry into force of the

Optional Protocol, constituting in themselves violations of the Covenant. No

evidence has been adduced to show that the proceedings at issue had such

effects.

5.

The Human Rights Committee therefore decides:

(a) That the communication is inadmissible;

(b) That this decision shall be transmitted to the authors and, for

information, to the State party.

[Done in English, French and Spanish, the English text being the original

version.]