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THE SUPREME COURT OF NEW SOUTH WALES
COMMON LAW DIVISION
SULLY J
TUESDAY 12 DECEMBER 2000
020137/00 - JOHN WILSON V STATE OF NEW SOUTH WALES
JUDGMENT
HIS HONOUR: Before the Court this morning is a notice of motion to strike out a statement of claim in principal proceedings current in the Court. The principal
proceedings were commenced by the filing on 11 April 2000 of a statement of claim. The plaintiff in the statement of claim is Mr John Wilson. Mr Wilson himself drew and filed the statement of claim; and my understanding of the
fact is that Mr Wilson has thereafter, at least in every substantive sense, continued to represent himself in connection with the progress of the proceedings commenced in the Court by the filing of his statement of claim.
In
the circumstances of the present case it is, I think, important to attend with some care to the way in which the statement of claim has been framed.
The pleading begins by setting out in three numbered paragraphs and as
follows what are described as "Particulars":-
"1. I have been imprisoned unlawfully on two separate occasions. The first was from 26 September 1997 to 28 September 1997 and the second was from 9 November
1999 to 29 February 2000.
2. The first episode of imprisonment relates to charges under section 326 of1 the Crimes Act 1900 (NSW).
3. The second episode relates to the charge of contempt of court (a Common Law offence)."
Thereafter, there is stated as follows the substance of the relief claimed by Mr Wilson in the proceedings thus
commenced;-
"1. That the Crown is vicariously liable for the unlawful imprisonment under section 8 of the Law Reform (Vicarious Liability) Act 1983 which states: "(1) Notwithstanding any law to the contrary,
the Crown is vicariously liable in respect of the fcort committed by a person in the service of the Crown in the performance or purported performance by the person of a function (including an independent function)..."
2. That the Crown may be sued under the Crown Proceedings Act 1988.
3. Relief by: (i) the Jury and the Court adjudging the awards, doings and proceedings in the matter of File Not 12914 of 1997 in the
Supreme Court of New South Wales Common Law Division, Queen's Square, Sydney on 9 November 1999 to be of no consequence or example, in accordance with the Petition of Right 1628.
(ii) the Jury and the Court
adjudging the awards, doings and proceedings in the matter of File No: 40928 of 1999 in the Court of Appeal of the Supreme Court of New South Wales Court of Appeal, Queen's Square, Sydney on 29 February 2000 to be of no
consequence or example, in accordance with the Petition of Right 1628.
(iii)- the payment of compensation for the denial of my right ("mon droit"), the injustice caused, time spent in prison, loss of earnings
whilst in prison, the loss of earnings caused by interruption to business, damage to reputation, distress cased to my family and self. The amount in Australian dollars to be 5 (five) million."
The statement of
claim cites as defendant the State of New South Wales. That defendant, by a notice of motion filed on 17 May 2000, has applied for relief as follows:-
"1. That these proceedings be dismissed pursuant to SCR Part 13
rule 5 on the ground that no reasonable cause of action is disclosed.
2. Further, or in the alternative, that the proceedings be dismissed pursuant to SCR Part 13 rule 5 on the ground that the proceedings are frivolous
or vexatious.
3. Further, or in the alternative, that the proceedings be dismissed pursuant to SCR Part 13 rule 5 on the ground that the proceedings are an abuse of the process of the Court.
4. Such further or other orders as the Court may deem fit.
5. Costs."
That notice of motion has been returned this morning before this Court. Mr Wilson, who appears for himself, has taken a preliminary
point, the substance of which is that this Court has no jurisdiction to entertain the notice of motion. As will be seen presently, the substance of the preliminary point as argued ranges much more widely than that bald
statement of it would suggest; but the essence of the point goes to that asserted lack of jurisdiction to deal at all with the notice of motion.
The substance of what Mr Wilson has submitted in support of his preliminary
objection to jurisdiction can be summarised in the terms of his closing submission, which can be paraphrased fairly as follows: Mr Wilson has been wrongfully imprisoned as a consequence of decisions of particular judges of this
Court; and it must follow that no judge of this Court can have any jurisdiction to deal in any substantive way with anything to do with any part of Mr Wilson's claims for relief as pleaded in his statement of claim. Insofar
as there exists any jurisdiction of that kind, it resides in, and only in a jury, empanelled for the purpose of trying the proceedings commenced by the statement of claim.
Mr Wilson has not put the point in quite the
following terms, but I take his objection to embrace the proposition that even an interlocutory application, such as the present notice of motion, cannot be adjudicated in any way at all by a Judge of the Court, but only by a
jury empanelled for the purpose.
Mr Wilson has put a number of particular arguments in support of the preliminary point that he now argues. He has tendered to the Court copies of two documents published by him, which copy
documents I have marked MFI l. It is not necessary to canvass the detail of the documents, for the reason that they are completely clear in what they say/ and they can stand, therefore, to speak for themselves. I have read and
considered the contents of each.
Mr Wilson has tendered also a document which I have marked for identification MPI 2, and which contains excerpts from a large number of United States cases and various other documents. Some
of the decisions thus cited are decisions of Federal Courts in the United States of America, and others of them are decisions of various State Courts in that country. No Australian authority has been cited. As to English
authority, there has been a reference to a case involving William Penn, but it has not been cited in its detail.
For the sake of completeness it should be noted that the present interlocutory notice of motion came before his
Honour Carruthers AJ on 9 November last. His Honour gave an ex tempore judgment. His Honour gave ex tempore what was,in fact, a judgment expressing his Honour's conclusion, insofar as he found it possible to reach any
as matters then stood. A copy of what his Honour had to say has been engrossed and filed with the relevant Court file. It is not necessary to canvass in detail what his Honour said. It is sufficient to understand that his
Honour felt that, in the circumstances as they then presented, it would be desirable that arrangements be made, if possible, for Mr Wilson to have the benefit of some properly qualified professional advice; and his Honour
granted, in accordance with form 70B of the Supreme Court Rules, a certificate intended to make available to Mr Wilson professional assistance of that kind. I understand, from what Mr Wilson has said this morning, that some
such advice was provided for him, but that he was not, and is not, disposed to accept it. That is his right, and there is nothing more that this Court either can, or .should, say in connection with that aspect of the matter.
The submissions which Mr Wilson has put have pointed in various ways to the importance in the administration of justice of the institution of the jury. No Judge of this Court would ever wish to be heard to the contrary. It is
axiomatic that juries properly chosen, properly empanelled, properly directed as to the relevant law, and properly assisted as to the relevant facts and evidence, have a time-honoured, a well-entrenched, and universally
recognised role to play in the administration of justice. It needs, however, to be clearly understood that the way in which, in practical terms, juries are thus to be employed is, and must in the nature of things be, subject to
such lawful prescriptions as may be made, from time to time, by Parliament, in the form of relevant legislation; and by the Court itself, in the form of relevant and lawful Rules of Court.
Mr Wilson has submitted that,
so far as is relevant at least to his present point, the only function that is properly exercisable,by a Judge of the Court is a purely clerical function, in the sense that the Judge is entitled, and empowered, to do nothing
more than what has been described by the submission as "necessary paperwork so that justice can be administered." This is, to speak simply and plainly, a wholly misconceived notion. It does not accord with
constitutional law and practice; nor does it accord with common law and practice; nor does it accord with the prescriptions of any lawful and relevant statutory or regulatory enactment. The submissions have continued to the
effect that in proceedings of the present character "it is for the jury to say what the law is. The jury has a duty to nullify bad laws." I think that it is sufficient to say that those notions, also, are wholly
misconceived, and wholly misapprehend the relevant constitutional law and practice; the relevant common law and practice; the relevant statute law and practice.
The notice of motion which the plaintiff has brought is
grounded in the provisions of Part 13 Rule 5 of the Rules of the Court. There is no cause shown in any of the submissions put by Mr Wilson this morning for the drawing of a conclusion that Part 13 Rule 5 is irregular, or in any
other sense unlawful. It seems to me to be beyond any serious dispute that the Rule is both lawful and regular.
The applicant in the present notice of motion, the defendant in the principal proceedings of which I have
earlier spoken, is in my opinion perfectly entitled to invoke the Rule and to claim from the Court, upon proper cause being shown, the relief claimed in the notice of motion. I do not think that there is any serious basis upon
which it could be contended that the Court does not have jurisdiction to deal with the notice of motion. The preliminary point taken to the contrary is over-ruled. The matter will proceed accordingly.
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THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
HULME J
MONDAY 26 FEBRUARY 2001
20714/00 - JOHN WILSON v ST GEORGE BANK LIMITED & ANOR
JUDGMENT
HIS HONOUR: I have before me a notice of motion in proceedings 20714/00, 'the parties to those proceedings being
John Wilson, the plaintiff, the St George Bank Limited and the State of New South Wales, the defendants. The notice of motion seeks a "stay of the order under s 66 of the Supreme Court Act 1970, issued by Justice
Simpson in the matter of St George Bank Limited against John and Lirane Wilson in file 11203/99, that St George Bank Limited be granted the right to possession until this case can be fully heard".
This morning Mr
Wilson appeared in person, Mr Reuben appeared for the first defendant and Ms Mahoney for the second defendant. Mr Wilson indicated that his primary application was that the matter be sent to the listing judge so that any
part of the proceedings could be tried by a judge. Mr Reuben indicated he sought a dismissal of the notice of motion and Ms Mahoney sought that it be adjourned to enable her client to put on its own notice of motion
seeking to have the whole of the proceedings dismissed.
Following remarks by Mr Wilson, made at an earlier stage when I was still calling through the duty judge's list, I asked him whether he sought to pursue an
application that I disqualify myself. He did and I dealt with that application before turning to the more substantive requests concerning the notice of motion itself.
For reasons given half an hour or so ago, I
declined to disqualify myself. Following upon that decision Mr Wilson indicated that he no longer sought that I exercise any powers in relation to the notice of motion,contending I was not entitled to do so. When I
then turned to Mr Reuben and he commenced to identify the evidence in support of his application, Mr Wilson left the court. The balance of proceedings today have been dealt with in his absence.
Ultimately Ms Mahoney
did not press her application for an adjournment and particularly in light of the conclusions which I have arrived at so far as Mr Reuben's application is concerned a little history will be in order.
In proceedings
11203/99 in this division of the court, in which the plaintiff was St George Bank Limited and the defendants were John and Lirane Wilson, Justice Simpson delivered reasons on 30 November last. On 23 February orders
apparently made on 22 December 1999 by her Honour were entered. Although I have not taken the time to study her Honour's reasons in detail, at first glance they seem to reflect those reasons. The orders were:
(1) there be summary judgment for the plaintiff in its claim;
(2) the plaintiff is entitled to judgment for possession of the land described in Certificate of Title folio identifier 116/598683 known as 19 Elm Place,
North Rocks, New South Wales;
(3) the defence of the first defendant be struck out;
(4) the defence of the second defendant be struck out;
(5) leave is granted to the plaintiff to forthwith issue a writ of
possession in respect of the land and premises known as 19 Elm Place, North Rocks, New South Wales;
(6) the first and second defendants pay the plaintiff's costs of the proceedings.
In support of the
application, Mr Reuben read, and I use that term advisedly, part of paragraph 2 and paragraph 3 of an affidavit of Mr Wilson of 28 December 2000. That material and an annexure to the affidavit is to the effect that on the
evening of 27 December Mr Wilson was served with a notice to vacate issued as a result of Justice Simpson's judgment of 30 November. The notice to vacate warned the occupants to vacate the premises in any event no
later than 12pm, Thursday 11 January 2000, otherwise action to evict would proceed without warning.
Mr Reuben also read paragraphs 2 and 3 of Mr Wilson's affidavit of 15 January 2000. Those paragraphs are to the
effect that at midday on 11 January the notice to vacate was executed and as of Monday 15 January Mr Wilson's wife was sleeping on the floor of a neighbour's place, he is sleeping on the floor of his surgery and his 26
year old son is elsewhere. In reliance on this material it was submitted by Mr Reuben that there was nothing upon which the notice of motion of 29 December could operate and hence it should be dismissed. Alternatively
it was submitted that it was an inappropriate way of dealing with the order which Justice Simpson had made and the consequences of that order.
To adequately deal with those submissions it is, I think, desirable to
recount a little more. Firstly while the notice of motion bears the number 20714/00, and most documents in it bear the same number, there are two copies of the statement of claim in the file. One has endorsed on it
207714/00 and the other 21714/00. They both seem to be otherwise in the same form. Each document is divided into two parts. Under the heading "Particulars" there are three paragraphs, one alleges a
denial of natural justice and harm at the hands of Justice Simpson. The second alleges service of a notice to vacate, and the third contends that Justice Simpson's actions were unlawful and malicious and provide some
further particulars of those. The second part of the document, under a heading "The Plaintiff Claims", asserts the Crown as vicariously liable for Justice Simpson's action. Second, that the Crown may be
sued under the Crown Proceedings Act. Thirdly, it seeks relief by "The jury and the court adjudging awards, torts and proceedings in the matter of trial 11203/99.... and the subsequent judgment handed down on 30
November 1999 to be of no consequence", and also seems to seek the payment of compensation to the plaintiff in an amount of five million dollars.
There are two further matters of history to which I shall
refer. Firstly the matter came before me on 28 and 29 December when the plaintiff sought an early return date for the notice of motion. I declined that for reasons apparent in the transcript of those days. The
matter again came before Justice Sully on 11 January and the transcripts of those proceedings indicates that the plaintiff then sought a stay of an order until the hearing of the motion, that is of the order to vacate, and the
transcript records that by the time the matter came before Justice Sully the writ of possession had in fact been executed. His Honour is recorded as saying that in that situation there was nothing that he could do,
possession of the premises having been formally delivered to the bank. He refused the application.
I would respectfully agree with his Honour's conclusion. The writ of possession, which is what I understand the
plaintiff to refer to in the extracts of his affidavit read as "the notice to vacate", has been executed. Therefore it is just not possible to grant, as the notice of motion requests, a "stay of the
order...for the St George Bank Limited to be granted a writ of possession...".
In .those circumstances of futility, the appropriate order is that the notice of motion be dismissed. I so order.
I order the plaintiff to pay the defendants costs of an incidental to the notice of motion.
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