THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
CARRUTHERS AJ
THURSDAY, 9 NOVEMBER 2000
20137/00 - JOHN WILSON v STATE OF NEW SOUTH WALES
Mr J Wilson appeared in person
Mr N A Nicholls for the defendant
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HIS HONOUR: Are you Mr Wilson, are you?
WILSON: I am John Wilson.
HIS HONOUR: Are you represented, Mr Wilson?
WILSON: I am John Wilson.
HIS HONOUR: I know, but I asked you if you were represented.
WILSON: By who?
HIS HONOUR: By a member of the legal profession..
WILSON: No. I am John Wilson. I present my own case.
HIS HONOUR: I have not had a chance to read the file in this matter, but I noticed there was a note. The executive office had written to you suggesting that you
approach the Pro Bono Scheme--
WILSON: No. He said--
HIS HONOUR: -- no, please, just listen to me, conducted by the Bar Association so that you will have the benefit of legal representation. Have you taken
advantage of that Suggestion?
WILSON: Justice Kirby said that he or his associate would approach the Bar Association, and I contacted his associate after it and they said they would, and nothing happened; and in fact she
was quite irate that the Bar Association had not got back to me, and I phoned up the Bar Association and they said it was not appropriate for Kirby J to do that and that I would have to ask for pro bono assistance. So I asked
them to send out the forms and I filled out the forms but they were not acceptable to them and that was the end of it, so therefore there is no pro bono assistance from the Bar Association or any lawyers.
HIS HONOUR: But that surprises me actually.
WILSON: They were not satisfied with the way that I put in the application, that I would not disclose my assets and liabilities, so that was the end of that.
HIS HONOUR:
I see, so they would not consider the matter any further because you were not prepared to disclose to them--
WILSON: Yep.
HIS HONOUR: -- your assets and liabilities; is that the position?
WILSON: That's right. That was on their form.
HIS HONOUR: Of course that denied you the possibility of legal representation in this court in what is, as far as I know, a matter that would require some legal expertise
because, as I understand it, there is an application before the court by the defendant to strike out your proceedings. That is the position, isn't it, Mr Nicholls?
NICHOLLS:It is an application for summary dismissal.
HIS HONOUR: That raises legal issues which I would have thought required the benefit of appropriate professional legal representation in your interests. I would be directing these matters to you in your interests and
the interests of the administration of justice. I would have the power to refer to the Principal Registrar this matter to the intent that efforts would be made to obtain pro bono legal representation for you. That would of
course however ultimately involve some examination of your means, about which I know nothing; but in every other respect this would seem to me, on the face of it, to be very much an appropriate case for me, as the judge, to
refer it to the Registrar pursuant to part 66 A of the rules for the purposes of your obtaining pro bono legal representation.
WILSON: Could I add to the point of my assets and liabilities? I would like to file an
affidavit right here and now pertaining to my assets and liabilities. The affidavit was sworn on 6 November, and to it is annexed a Notice to Vacate from the Sheriff's Office. This is all to do with the dishonesty of the
judiciary, about how it is pertinent to the case, and it is pertinent to what you are talking about, the assets and liabilities. So that is the original and there are three copies.
HIS HONOUR: I will mark those at the
moment for identification 1. Officer would you provide a copy to Mr Nicholls. They can form part of the documentation in the proceedings
MFI #1 ABOVE IDENTIFIED DOCUMENTS
WILSON: Can I have a copy back. I thought
it would be one for letter court, one for the opposition, and I would have the rest.
HIS HONOUR: Then if your financial position is such that unhappily you are required to vacate your premises, then it would seem that
there would be no impediment, so far as any means test would be concerned, for you to obtain legal representation under the Pro Bono Scheme; and subject to anything Mr Nicholls would say, it seems to me that the proper
administration of justice would require that I grant a certificate referring this matter to the Registrar for the purposes of his or her seeking to obtain legal representation under the Pro Bono Scheme for you, which would be
of course very much in your interests. You now obviously have a great deal at stake, so far as your present situation is concerned, having been required to vacate your home. Now, would it not be in your interests then that I
did that?
WILSON: That is one avenue I could pursue, but there are many other points to be raised at this time.
HIS HONOUR: Let us deal with them one by one. It is your interests I am concerned with. You are
obviously an intelligent man, and you would understand that this is an avenue for you to obtain legal advice.
WILSON: Advice.
HIS HONOUR: And legal representation - certainly advice in the first instance.
WILSON: Advice.
HIS HONOUR: And as I say, subject to anything Mr Nicholls would say, I would be prepared to issue the appropriate certificate under part 66 A of the rules for you to obtain advise. Do you have a copy of
the rules? I don't suppose you do.
WILSON: Not with me, but I do have a copy, yes.
HIS HONOUR: Have you looked at part 66 A?
WILSON: Yep.
HIS HONOUR: You would be familiar. The relevant matters are the means of the litigant.
WILSON: I am not prepared to lose control of my own case.
HIS HONOUR: You do not lose control of your own case by getting legal advice.
WILSON: If, I am silenced and someone else is speaking on my behalf, I have not a great deal of confidence in the legal profession, going on
my history of what has happened to other people.
HIS HONOUR: Well-
WILSON: So I am very prepared.
HIS HONOUR: You would get advice in the first instance.
WILSON: I will listen to some advice, for sure.
HIS HONOUR: Would you like me to grant you a certificate of deferral?
WILSON: Yes, would I like any help you can give me, and I would also like you to set a date for
trial by jury for this matter.
HIS HONOUR: That is--
WILSON: Just because justice should not be delayed.
HIS HONOUR: You have got a Notice of Motion on in that regard.
WILSON: And I have paid the fee.
HIS HONOUR: That is the first matter that you would want to get advice on, is it not? What rights that you would have to pursue a claim to have this matter disposed of by jury. Now, that is a matter that a duly
qualified legal person would be in a position to advise you about.
WILSON: I have here a copy of the Supreme Court Act 1900 which says under Common Law Procedure section 3 part 1:
"In any action by consent of
both parties the whole or any one or more of the issues of fact in question may be tried, or the amount of any damages or compensation may be assessed by a judge without a jury."
It says quite clearly it must be by
consent of both parties. I think that puts it in a nutshell. I have requested a trial by jury, and I am entitled to trial by jury, and unless there is consent by both parties, which is the Crown solicitor and myself, then there
must be trial by jury.
HIS HONOUR: At the moment I am dealing with this question of referral for legal assistance. I do not think you will find the matter is quite as simple as you have put it there, but I do not wish at
this stage to get involved in actually proceeding with the matters that are before the court.
What I am concerned about is that this reference by the Principal Registrar to the possibility of your applying to the court
for an order under part 66 of the Supreme Court Rules for pro bono legal representation or advice. Now that is the matter to be dealt with firstly. You are now in court concerned with a difficult area of the law. The Crown has
legal representation available to it. You don't. That is a matter of concern to me, so far as the administration of justice is concerned; and it seems to me an appropriate case, subject to what Mr Nicholls would say, for me
to refer the matter to the Registrar under part 66 A of the Rules for you to obtain pro bono legal advice and/or, representation.
Now, if that is what you wish me to do, again subject to what Mr Nicholls would say, I
would do that and the matter can come back before the court after you have had the benefit of appropriate legal advice.
Now whatever way you look at it that must assist you. You may - I am not suggesting for one moment
you would - you may at the end of the day not feel inclined to accept that advice, that is your prerogative; but to deny yourself legal advice and, if necessary, legal representation, will, on the face of it, seem to be
somewhat imprudent, wouldn't it not? As I say, you are an intelligent person and you will understand that.
WILSON: I have been severely disappointed with any representation I have had by the legal profession, and I
feel that the most important thing to come out of today is to set a date for trial by jury, because only a jury can decide any issue in this matter. Notices of motion, anything at all can only be decided by a jury, because I
have not given consent for it to be otherwise. All through legislation there is the referral to the court or the judge, and the Supreme Court is a common law court which consist is of a judge and jury and you, your Honour, are
a judge of the Supreme Court. You are not the Supreme Court.
HIS HONOUR: You would have to first of all - you see, the first matter that has to be dealt with is the application by the Crown to strike out your proceedings
on the ground that they disclose no cause of action. Are you suggesting that only a jury could determine whether those proceedings should be struck out on the basis that they disclose no cause of action?
WILSON: Yes, of course.
HIS HONOUR: It is hard to imagine how a jury could decide that, isn't it; the jury would have to know the law.
WILSON: They are entitled to know the law. The jury must know what is the
law. How can they make any judgment otherwise.
HIS HONOUR: Can you--
WILSON: So they must be fully informed. They must be a fully informed jury, informed of their rights and responsibilities. Any Notice of Motion
can only be decided by a jury, and that is made reference to in other legislation as well, that the jury will decide any Notice of Motion or any part.
HIS HONOUR: Can we just get back to this matter that I have been
speaking to you about for the last twenty-five minutes, and that is the offer to refer the matter under part 66 A to the Registrar for the purpose of your obtaining free legal advice and/or representation. You obviously would
have no difficulty complying with the means test in that regard. It still leaves you with the prerogative of accepting or not accepting the advice, but at least you get the benefit of that advice, don't you.
WILSON:
I think that would work in fine, providing there is a date set f or trial by jury which we can focus on because nothing can be decided by a judge only.
HIS HONOUR: Yes, but that is the first matter that you would have to
get advice on, isn't it, how you could formulate an argument that only a jury could determine, in the first instance, whether your proceeding should be struck out on the grounds that they disclose no cause of action. I have
never heard of such an application being dealt with by a jury. By that I don't mean I am prejudging the matter. All I am saying is that I have never known it to happen before so that it is not - I only say that to indicate
that there is a certain unusual aspect to the matter.
WILSON: This is quite an unusual case and it is such an important case because it involves the very sovereignty of the people, and the pure coincidence here is that I
am suing the Crown, and every judge is employed by the Crown, so therefore no judge can judge in his own cause and the only other alternate is trial by jury.
HIS HONOUR: But you see you have still got the difficulty. The
judge must direct the jury as to what the law is so you cannot get away from a judge unfortunately, whatever way. Even if the matter were to proceed, for it to be heard by a jury there is two problems: One is you would need a
judge to direct the jury as to what the law is; and it is always the prerogative of a judge to take a case away from the jury if the judge has formed the view that in law there is no case fit to go to the jury, and you would
know from your experience and study of the law that that happens regularly in our courts that in a criminal prosecution the Crown may lead all its evidence and then the judge may say "Well, I do not think, Mr Crown, that
there is a case fit to go to this jury" so that the judge takes the case away from the jury.
WILSON: Justice must be done. See, a judge may not judge in his own cause. Dismiss a case against his own cause? That is
blatant.
HIS HONOUR: You see in a case like that, which happens time and time again, it is in the interests of the accused that the case be taken away from the jury because the judge says "Well, Mr Prosecutor, you
are here representing the Crown but I am the judge. You have not tendered sufficient evidence before this court to justify the matter proceeding further and therefore I am going to direct taking the matter away from the
jury".
WILSON: That is a judge judging his own cause.
HIS HONOUR: Whatever way you look at it, even if you have got a jury you have got a judge: The two go together, and the judge has always had the right to
take a case away from the jury unless he or she thinks there is a case fit to go to the jury. So distrusting as you may be of the judiciary you cannot, by getting a jury, remove the role of a judge in the proceedings. Do you
follow what I am saying?
WILSON: The judge is there to ensure a fair trial and a court to ensure justice is administered. So it is fatally obvious that a judge dismisses a case because, well, because of suing the Crown,
and the fact that the judge is not an independent, an impartial tribunal under those circumstances, then the only recourse is to trial by jury whereby the jury decide all issues in the case, including notices of motion.
HIS HONOUR: If the judge thinks that there is a case fit to be decided by the jury. Now you cannot get away from that whatever way you look at it.
WILSON: But in these circumstances, the judge is no better than the Crown
solicitor. They are on a par. The Crown solicitor can't make judgments and nor can a judge in this case.
HIS HONOUR: The judge does. The judge makes a judgment as to whether there is a case fit to go to the jury.
Judges do it every day of the year, and they have been doing it for nearly 200 years whilst there has been the Supreme Court of New South Wales, and hundreds and hundreds of years before that in western democracies.
WILSON: As I said before, this is the most important case because it involves, in the first case, bank fraud and then compounded by judicial corruption. Now this is the most serious case imaginable. So therefore the judge
cannot judge in his own court because - I have got a question here to ask - are you a past or present friend, relative, associate or colleague of the following judicial officers:
James Wood; David Hunt; Terence Greenwood;
John Hamilton; Matthew Clarke; Alan Abadee; Michael Kirby; John Toohey; Daryl Dawson; Brian Murray; Virginia Bell; Carolyn Simpson; David Levine; Peter Hidden; Craig Norman; Kenneth Handley; Paul Stein; Ian Callinan; Mary
Gaudron; John Dunford; Timothy Slavar; Graham Barr, Megan Latham; Brian Sully; Rex Smart; Geoff Haggart; Steve Jupp; Murray Gleeson; William Fisher; Mahla Pearlman, Reginald Blanch; Michael Campbell; Ian Pike; Brian Beaumont;
Roderick Meagher; Dyson Heydon; Charles Sheller.
HIS HONOUR: Yes.
WILSON: Are you a past or present friend, relative or colleague of those judicial officers?
HIS HONOUR: I don't propose to be
interrogated, Mr Wilson. Your question has been recorded, as is everything that is happening in this case.
WILSON: It proves that you are not independent and impartial, nor is any judge.
HIS HONOUR: Now could we
get back to this question of referral of this matter under part 66 for you to obtain the benefit of legal assistance under the Pro Bono Scheme, because as I have said on more than one occasion, it is in your interests to do
that.
WILSON: It is not in the interests of justice to delay justice.
HIS HONOUR: But it is in the interests of justice that cases be properly presented to a court by persons who have had the benefit of proper
legal training qualification and legal assistance. Now that is very much to the benefit of the administration of justice, isn't it?
WILSON: From what I see of the way that barristers and solicitors present their
case, I am not convinced they have been properly educated in the law and justice.
HIS HONOUR: That is a pretty bold statement to make.
WILSON:Yes.
HIS HONOUR:Isn't it.
WILSON: That is what I
intended. I propose - I also would like to file a second affidavit which was sworn on 7 November. This contains annexures, such as the Oath of Allegiance, the Judicial Oath, extracts from the Coronation Ceremony of Elizabeth II.
HIS HONOUR: At the moment--
WILSON: This is all pertaining to the fact that judges or even the legal profession do not know what their obligations are. That is the original and those are the copies.
HIS HONOUR: I am not receiving any evidence on the actual issues.
WILSON: You are saying I should be represented by people who are fully trained and competent to present the case, but I am just saying here that they are
not, and I would like to file that affidavit in support that they are not.
HIS HONOUR:Look, I do not really think I can pursue this any further. I have, in your interests, indicated to you that subject only to what Mr
Nicholls would say, I am very much prepared to refer this matter under part 66 A of the Rules to the Registrar with the intent that you would obtain legal assistance from a person on the pro bono panel who would obviously be,
for present purposes, a barrister.
WILSON:That is not advancing the cause of justice.
HIS HONOUR: Are you telling me that you reject that offer?
WILSON:No, I don't reject it. I just reject the fact that I
should disclose my financial situation in order to get pro bono assistance.
HIS HONOUR:Well you have disclosed it, haven't you?
WILSON:No, that is only part of it. That affidavit is to support the fact that
this has come about, the Notice to Vacate has been the direct result of judicial corruption which goes back four and a half years; and I have documented that partly in this book called Banks and Judges, and also on the Internet
under website, and so when the trial is before a jury I will not only refer to these in affidavits, but I will be presenting them as exhibits before a jury. The website has been loaded on to a CD ROM and in these days of
producing electronic evidence such as tape recordings, videos I think this qualifies as an exhibit to support my case.
HIS HONOUR:I think you should exercise a great deal of caution about what you put on a website in
regard to the administration of justice, Mr Wilson. It is a matter that you could well, in your own interests of taking legal advice, 1 would have thought- -
WILSON:I would welcome any challenge to put my case before a jury, before a tribunal of the people.
HIS HONOUR:All right. Now, let us get back to point one. Are you rejecting my offer to refer this matter to the
Registrar for the purposes of you obtaining legal
representation under the Pro Bono Scheme?
WILSON: Is that anymore than what Kirby J has done?
HIS HONOUR: It is much more formal. It is a formal reference under the rules.
WILSON: But the Bar Association still can reject any certificate.
HIS HONOUR: This is a panel that is kept by the court. The Principal
Registrar maintains a list of persons who are barristers or solicitors who have agreed to participate in the scheme.
WILSON: So this is not a pro bono coming from the Bar Association?
HIS HONOUR: No, it is coming from the court.
WILSON: Okay.
HIS HONOUR:It is only fair to say that for the purposes of sub-rule 1 "The court may take into account the means of the litigant, the capacity of the
litigant to obtain legal assistance outside the scheme". Well, you have not been able to obtain that.
WILSON:The word is "may".
HIS HONOUR: Yes. The nature and complexity of the proceedings. Well I
am fundamentally aware of that, and any other matter that the court considers appropriate. So the only matter that seems to, on the face of it, create any difficulty is the question of your means. All I know about your means is
that you have got a notice requiring you to vacate your home. There would not be many people who would allow themselves to be evicted from their home if they had the means to prevent that eviction, I would have thought.
WILSON: Well, it came about that my wife was issued or served with that notice, not quite two weeks ago, and on the same day I got in touch with some financial brokers, who are supposedly dealing with it, with the St George
Bank, and in fact I called in on their office and they have let the thing slide so they are now hurriedly trying to patch up some sort of deal; and in fact I have been phoning them every day this week and yesterday - or Tuesday
being Melbourne Cup day, they said nothing was done on that day. I phoned them Wednesday and nothing: They did. not come back to me. So as far as that Notice to Vacate, it is still in effect because I have been let down by
solicitors who are supposed to be organising the finance. But that is only one issue, and being prepared to or sacrifice my house I am not prepared to. I am prepared to fight for truth and justice.
HIS HONOUR:Getting legal advice is hardly a barrier to fighting for truth and justice, isn't it?
WILSON:Advice, for sure. I welcome all advice. I welcome all information supplied by many people around the country who
are offering me help with advice, so I do not reject advice.
HIS HONOUR:Then would you wish that I refer the matter to the Principal Registrar under part 66 A for that purpose?
WILSON:Yes, if it is any more
productive than the way Kirby J's associate went about it I am only so happy to accept your advice, any barrister's advice. Look, come the final, well, the bottom line, it must be in the interests of justice, truth of
justice.
HIS HONOUR:Absolutely. Absolutely. Just pardon me, just please make yourself comfortable there at the bar table. Mr Nicholls, you have got part 66 A down there, have you?
NICHOLLS:Yes.
HIS
HONOUR:The advice that was forwarded by the Principal Registrar to Mr Wilson was that he contact the Bar Association to obtain pro bono representation, or alternatively, to apply to the court for an order under part 66 A of the
Supreme Court Rules. I have been informed by him that he will avail himself or has sought to available himself of the first of those two alternatives but has not sought to apply under part 66 A. He has now indicated to me that
he would welcome any advice. It seems to me that one should give some effect to the advice that was passed on to Mr Wilson by the Principal Registrar. The only matter that would seem to trouble me about that is the question of
the means of the litigant, and the only evidence that I have in that regard is this material that was provided to me in MFI 1 this morning. That is only one factor and, as Mr Wilson has pointed out himself, the appropriate verb
is "may" take into account and not "must" take into account. It seems obvious to me, in the interests of the administration of justice, that he have the opportunity of discussing the matter, at least in the
first instance, with someone on the pro bono panel. What do you say about that?
NICHOLLS: Your Honour, there cannot be any doubt that it is in the administration of justice that a litigant in the position of Mr Wilson be
afforded the opportunity of obtaining appropriate legal advice. There are some matters which I am probably bound by my instructions to put in opposition to that. The first is that Mr Wilson has already indicated that on one
occasion he refused to disclose his means under the Bar Association's Pro Bono Scheme, although there has been some disclosure of that this morning.
The second matter is that Mr Wilson has said this morning that he
would not propose to lose control of his own case. I think what Mr Wilson was saying was that he would propose to appear as advocate in the,proceedings, but he has indicated to your Honour that he would be prepared to at least
listen to legal advice which he may be given.
The third, your Honour, is that these proceedings were last before the court on 19 June, and the defendant is anxious to dispose of the proceedings without any further delay.
Finally, your Honour, an adjournment would be useful if there were some utility in the adjournment. Two matters are of concern to the defendant.
Firstly, based upon what Mr Wilson has indicated this morning in
his submissions to your Honour on related matters, it is highly unlikely that Mr Wilson will accept any advice given to him under the Pro Bono Scheme.
Secondly, a glance at the statement of claim clearly will clearly
demonstrate that the pleading is in an inappropriate form, and what Mr Wilson seeks to complain about in those proceedings does not disclose any cause of action known to the law and is doomed to fail.
HIS HONOUR: That is a matter that he can get advice about.
NICHOLLS: Yes, quite. We understand the position taken by your Honour this morning, and as I have submitted, it is in the administration of justice that Mr
Wilson be afforded the opportunity of receiving legal advice. We are concerned however that he will not accept the advice given to him and that there will be no utility in providing Mr Wilson with that opportunity.
HIS
HONOUR: One of the things that just troubles me is this, a letter was written by the Court to him and it advised him to make an application as a second alternative under part 66 A. I feel some inclination, or disinclination
would be a better word, not to nullify that suggestion that was made to him.
NICHOLLS: Certainly the procedure referred to in that letter was a more fluent procedure to the one that your Honour was contemplating this
morning. What your Honour is contemplating is a referral under part 66 A which will at least provide some, certainly in the way in which Mr Wilson might invoke some pro bono assistance. If your Honour were to take that course
we would invite Mr Wilson to undertake to the court to cooperate with the Registrar in the arranging of that legal assistance under part 66 A.
HIS HONOUR:To cooperate.
NICHOLLS: To cooperate with the Registrar of
the Court in the arranging of legal assistance under part 66 A, simply adopting the words used in sub-rule 4 subsection 5 your Honour.
HIS HONOUR: Incidentally, do you know where the prescribed form is?
NICHOLLS: No. I cannot assist your Honour in relation to that.
HIS HONOUR: Maybe there isn't one. Let us have a look. I rather gather from the list of judicial names that Mr Wilson read out that he is not
inexperienced in litigation.
NICHOLLS: No. I think your Honour's assumption is correct. I think the position is a number of judges referred to by Mr Wilson are judges who have heard and disposed of various
applications made by Mr Wilson over the years.
HIS HONOUR:Here it is. It is form 70 B. Have you got that?
NICHOLAS: I do not have the second volume.
HIS HONOUR: I will just hand it down and it can be shown
to you. Mr Wilson, I am handing down the Supreme Court Rules containing form 70 B.
HIS HONOUR:Yes?
WILSON: The sticking point seems to be my assets and liabilities. My assets obviously exceed my liabilities
because I am, what, 58; I have been a dentist for some years; I am not very wealthy, but my assets do exceed my liabilities, so therefore does that have any relevance to the pro bono entitlement because if they say that
"Oh, no you can sell your practice. You can sell your car, and you can pay for it yourself"--
HIS HONOUR: Are you still practising as a dentist?
WILSON: Yes.
HIS HONOUR: These appearances before judges must be interfering with your practice, I should think.
WILSON: Yes. This has been a tremendous sacrifice for many years now. I have had the great support of a lot of people,
because it comes back to the original issue which goes back to 17 September 1996 when Master Terence Greenwood said "Thus whilst the amount of the future rate is uncertain the rate itself is indeed certain", and that
is the greatest contradiction that one could possibly imagine, and led to a corrupt judgment, and it has just escalated from there. Now it has even involved a citizens right to trial by jury, and it has just snowballed to such
an extent that there is no going back. This is a confrontation with, as they say in the Bill of Rights: Evil counsels, solicitors, judges and ministers who have assumed the power of dispensing with our laws and rights. It is
that important. So therefore coming back to your main issue, which is seeking pro bono advice, I think my assets and liabilities are irrelevant to the magnitude of the situation. I am quite happy to give anybody, such as the
Registrar, the name of my accountant and he can supply information as to my assets and liabilities, but it will come out that my assets exceed my liabilities.
HIS HONOUR: Actually once I refer the matter to the Registrar
the Registrar will not be concerned with your means. It is a matter for me as to whether I am prepared to refer the matter, albeit that I do not have details of your means.
WILSON: I am very happy with that, but I would
also like a date set for trial by jury so that justice will no longer be delayed and denied if we set a date for trial by jury.
HIS HONOUR: There is no way that I would set a date for trial by jury until I had determined
whether you could legally require trial by jury, and that is the very point upon which you really need advice.
WILSON: That would require making a judgment on your part, and you cannot make a judgment in your own cause
if it says here in the Common Law Procedures Act 1989 s.256: "Upon the hearing of any motion or summons the court or judge may, upon such terms as the ocourt or judge thinks reasonable, order any document be produced"
et cetera, so it is quiet clear that the court or the judge determine any motions.
HIS HONOUR: Are you saying then that you are not prepared to ask for the matter to be referred for legal assistance unless at the same
time I list the matter for hearing before a jury?
WILSON: No. I am not prepared to put any hindrance in the cause, in the path of justice. None. I am willing to go away, frustrated again as I have been for the last four
and a half years, and still abide by what the is court saying, but I say in this case--
HIS HONOUR: You would not be totally frustrated about legal advice if you were getting advice on the issues.
WILSON: I am not getting trial by jury.
HIS HONOUR: But you are getting legal advice about it.
WILSON: That is a help. Like I say, I have spent a lot of time and had a lot ~f assistance from people who are
knowledgeable in the law and we cannot get away from the fact that this is a very important case and can only be decided by a tribunal of the people. It cannot be decided--
HIS HONOUR: Are you saying that if you got advice to the contrary you would reject it?
WILSON: I would listen to it, that is listening to advice, but acting on the advice and doing what I think is wrong and unjust, I
cannot be compelled to do that.
HIS HONOUR: I know you cannot, but I just want to get this clear. Are you saying that if the advice you received was that in law you could not have this Notice of Motion dealt with by a
jury then you would not accept that advice; is that what you are saying?
WILSON: I think at this point in proceedings I should be allowed to sit down with barristers, pro bono, and go through the points of the law as
they see it and always I see it, and I think we should come to an understanding of what law and justice really is; and I feel at the moment, because there is just such a degree of ignorance in the legal profession that justice
is not being served at the moment. I think - this is a turning point where we have got to re-establish the principles of truth, justice. So I am not rejecting anything. I think it is wrong that the Crown Solicitor should
presume of what I will do.
HIS HONOUR: Very well. Is your statement of claim annexed to an affidavit? I just could not pick it up going through the file here. Are you able to help me there Mr Nicholls?
NICHOLLS: It is a document filed of 11 April this year.
HIS HONOUR: Is this the document here, is it?
WILSON: There were three documents filed on the same day: The statement of claim, the affidavit supporting the
statement of claim, and requisition for trial by jury, and I have the receipt totalling $1,176, which is the Common Law ordinary fee, and the jury requisition ordinary fee.
HIS HONOUR: What you have actually got then is a requisition for a trial by jury of your statement of claim.
WILSON: Your Honour, I put in the requisition for trial by jury because of present circumstances, but I feel
that there must be trial by jury.
HIS HONOUR: I know.
WILSON: Unless there is consent by both parties. But I think the requisition is superfluous.
HIS HONOUR: The point I am saying is that your requisition
for trial by jury is a requisition that relates to your statement of claim or the document you contend is a statement of claim. Now then there was a Notice of Motion filed by the Crown on 17 May that the proceedings be
dismissed pursuant to Supreme Court Rules part 138 rule 5 on the ground that no reasonable cause of action is disclosed and the proceedings are frivolous or vexatious or that they are an abuse of the process of the court.
Now the initial matter is that you contend, Mr Wilson, that only a jury could determine the Notice of Motion filed by the State of New South Wales seeking to have your proceedings summarily dismissed; is that not so?
WILSON: No judge can make any judgment in his own cause so therefore there can only be a trial by jury to determine any issue or any question in this case, including motions, summons, anything, because otherwise there is the
possibility of having the case struck out by a person who is not an independent and impartial tribunal, and, that is not right nor just.
HIS HONOUR: The last time this was before the court was on 7 August when it was
before Sperling J; is that not so, Mr Nicholls?
NICHOLLS: I cannot assist your Honour in relation to that. I was not present on any of the earlier occasions. I am told that some directions were made in connection with
this motion on 19 June.
HIS HONOUR: That was earlier. So it would appear from the file that the last occasion was 7 August. That was obviously a directions hearing before Sperling J. He must have been sitting as the
applications judge, I assume on that day.
NICHOLLS: Yes.
HIS HONOUR: And this came before him on the applications list and his Honour directed that the Notice of Motion by the State of New South Wales be
transferred to the holding list and then it. was set down for hearing today.
FOR HIS HONOUR'S ORDER SEE SEPARATE TRANSCRIPT
WILSON: Your Honour. Are you summing up in order to make a judgment.
HIS
HONOUR: No. What I am doing is I am relating the history of this matter preparatory to referring the matter under part 66 A to the Registrar for the purpose of obtaining, if possible, advice for you under the pro bono panel.
FOR CONTINUATION OF HIS HONOUR'S ORDER JUDGMENT SEE SEPARATE TRANSCRIPT
HIS HONOUR: Mr Wilson, Mr Nicholls, what I would propose to do then is to get my associate to type up a certificate in form 7 B which will
be referred on to the Registrar and then you will be contacted, no doubt, as soon as possible in that regard and the parties will be brought back before the court as a matter of urgency, bearing in mind the views that have been
expressed on behalf of the defendant in that regard and your own submissions that the matter should be resolved with expedition.
Is there anything further you wish to say?
NICHOLLS: There is just one matter
arising out of the course of your Honour's reasons. Your Honour indicated that the question of whether the motion should be heard and determined by a jury should be determined - should be dealt with by the court first
before the hearing of the substantive motion for summary dismissal. This morning was the first occasion that the defendant became aware of Mr Wilson's contention that this motion was one which could only be determined by a
jury. We have up until today understood that the requisition which has been filed was a requisition relating to the hearing of the principal proceedings. I do have a concern that there may be a two-pronged or two-level
challenge which now has to be dealt with. Our preferable course would be to deal with both issues on the one motion, that is to deal with the question of whether this motion should be determined by a question of a jury and then
summary dismissal.
HIS HONOUR: Yes, I certainly agree were that.
NICHOLLS: At the one time.
HIS HONOUR: If the submission, that it can only be dealt with by a jury, fails then it would be dealt with.
NICHOLLS:We would immediately go on to deal with-
HIS HONOUR: Absolutely. That is certainly the position.
WILSON: I would like to contradict what the gentleman said. He said it is the first time he has heard of it.
May I refer back to transcript of 21 August before Kirby J:
"HIS HONOUR: What I can do Mr Wilson is this, the matter, that is the Notice of Motion, not the whole cause of action, will be set down on 9 November. It
will not be before a jury however. It will be before a judge of--
MR WILSON: This cannot be.
HIS HONOUR:That is what the rules--
MR WILSON:No it cannot be.
HIS HONOUR:-- require.
MR WILSON. It cannot be. It must be before a
jury. It cannot be before a judge only because a
judge is employed by the defendant."
So it is not the first time they have heard the point about the motion and a jury.
HIS HONOUR:I must say I do not have a copy of the transcript before Kirby J. Did you have a copy?
NICHOLLS:No I have not.
HIS HONOUR: It does not really matter. You say it was incorrect, but nothing really turns on it for present purposes. I will get a copy of that transcript before Kirby J on 21 August.
So that what I will do is I will stand these proceedings over to a date to be fixed.
Now, how could the Registrar contact you, Mr Wilson?
WILSON: I am not too sure what is going to happen next week, so possibly
through my surgery which is 331 North Rocks Road, North Rocks 2151. The phone number there is 98721661. My email address is jhwilson@acay.com.au.
HIS HONOUR:Who is handling this matter in the State Government Solicitors Office?
NICHOLLS:Natalie Adams, your Honour.
HIS HONOUR:Thank you. I will adjourn.
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