THE SUPREME COURT OF
NEW SOUTH WALES
COMMON LAW DIVISION
DUNFORD J
Monday 8 October 2001
20653/00 - JOHN WILSON -V- STATE OF NEW SOUTH WALES
Mr Wilson the Plaintiff/Respondent to the motion in person unrepresented.
Ms C A Webster for the Defendant/Applicant on the motion.
HIS HONOUR: There is a notice of motion to strike out the statement of claim.
WILSON: First of all, you have no jurisdiction in this matter whatsoever. The first question is: are you employed by the
defendant?
HIS HONOUR: I do not answer questions.
WILSON: Pardon?
HIS HONOUR: I am not here to answer questions.
WILSON: What are you here for?
HIS HONOUR: I am here to give the judgment of the Court.
WILSON: The first question is jurisdiction.
HIS HONOUR: You object to jurisdiction?
WILSON: You have no jurisdiction. Where is
the jury? This is not a court. This is an application to the court. The court is constituted by a Judge and jury. Where is the jury
HIS HONOUR: I am not here to determine the final issues in the
trial. The matter before me today is a notice of motion to strike out the pleadings. I will hear the applicant's submissions and then I will hear your submissions.
WILSON: You have no jurisdiction.
HIS HONOUR: Will you be seated, please. Yes Ms Webster.
WEBSTER: The notice of motion on which I move is that filed on 2 April 2001. That was an amended notice of motion. I hand up a copy of
that document. It was filed in court on 2 April 2001.
WILSON: A point of order, you have no jurisdiction in this matter.
HIS HONOUR: We will see about that in due course.
WILSON: No, you
cannot hear any part of it, you cannot hear the notice of motion, writs, summonses and you cannot hear any part of this matter.
HIS HONOUR: Wait until we first find the originating process.
WILSON: First
of all, you have to determine jurisdiction. You have no jurisdiction. I do not give my consent to be without a jury. If you proceed you will be doing so unlawfully, maliciously, corruptly and oppressively.
HIS
HONOUR: I cannot do anything until I find the originating process. So will you please sit down while I look for it.
WILSON: There is no point. You have got no jurisdiction. Could I ask how this is
being recorded, is it being recorded in shorthand.
HIS HONOUR: I sincerely hope so. If it has not been done already, I require the whole proceedings to be recorded verbatim.
(Note that the whole proceedings had been recorded verbatim.)
WILSON: With no omissions.
HIS HONOUR: Yes, that is the normal manner. It does not seem to be here so I will refer to the one filed in
court on 2 April 2001. For the removal of doubt, you have seen this one filed in court on 2 April 2001, have you, Mr Wilson?
WILSON: By the other side?
H IS HONOUR: Yes.
WILSON: I have got here one that has not been stamped, is that the one?
HIS HONOUR: I will have it stamped. I note that the amended notice of motion was filed in court on 2 April 2001. Mr Wilson has a copy
of it. The original cannot be found. I will have a copy stamped as filed in court on 2 April 2001. You move on that amended notice of motion.
WEBSTER: I do.
HIS HONOUR: What affidavit do you move on?
WEBSTER: There are two affidavits on which I move: the first is that of Jillian Frances Mahony affirmed on 1 March 2001 and filed on 6 March 2001.
HIS HONOUR: Are there any objections to any part of this affidavit?
WILSON: There is an objection to the jurisdiction.
HIS HONOUR: I understand that, you have already made that clear.
WILSON: No, I have not made it clear at all, there is a lot more to it.
HIS HONOUR: Have you any objection to the form of any part of this affidavit?
WILSON: It is not up to you to decide that matter.
HIS HONOUR: I am going to read the affidavit, will you please sit down.
WILSON: You have got no right to read it, it has nothing to do with
you. These are proceedings against the Crown. Are you employed by the defendant?
HIS HONOUR: If you have got no particular objection to the form of the affidavit I will permit Ms Webster to read the
affidavit.
WILSON: We are not at that stage, jurisdiction must be established first.
HIS HONOUR: So you say.
WILSON: You are saying that jurisdiction does not have to be established, you have
carte blanche, do you?
HIS HONOUR: I am saying that I will first read the evidence and then I will hear submissions.
WILSON: And you will totally dispense with the rules and laws .
HIS HONOUR: Will you please sit down.
WILSON: You have not heard everything I.have to say. It is not justice.
HIS HONOUR: Will you please sit down. Ms Webster will you read the affidavit?
AFFIDAVIT OF GILLIAN FRANCES MAHONY AFFIRMED ON 1 MARCH 2001 READ ALOUD IN COURT BY MS WEBSTER.
HIS HONOUR: I note the statement of claim. I have read the letter. I have read annexure B.
WEBSTER: I do not read the first sentence of paragraph 8. I continue reading the affidavit.
I will not read the final paragraph. There is a second affidavit I would read which deals with the matter not read in
paragraph 8.
HIS HONOUR: That is also the affidavit of Gillian Mahony.
WEBSTER: Yes, a further affidavit of Gillian Mahony affirmed on 4 October 2001 which has not as yet .been filed. I seek your
Honour's leave to file it in court. A copy was posted to Mr Wilson last week and he told me today in court that he received that affidavit.
HIS HONOUR: That affidavit can be filed in court. There is no
need to read that aloud, I have read it. I take it the court is defined as the court constituted by a Judge, is it?
WEBSTER: In the District Court Rules yes, it is.
WILSON: That is invalid, that is no
law.WEBSTER: And there are matters relating to the Registrar of the District Court. They are the matters relied on by the defendant.
WILSON: That is no law.
HIS HONOUR: Do you wish to put on any evidence.
WILSON: I wish to defend my right.HIS HONOUR: I realise you have submissions to make about lack of jurisdiction but before we get to that do you wish to put
any evidence before the court?
WILSON: This is no court, where is the court. I cannot see any jury. There is no court here.
HIS HONOUR: Do you wish to put any evidence before me?
WILSON: You call this a court?
HIS HONOUR: Do you wish to put any evidence before me.
WILSON: No, because there is no jury, this is not a court. I wish to pursue the point of jurisdiction. These
are proceedings against the Crown. Are you employed by the Crown?
HIS HONOUR: Just a moment. Do you wish to put before me in particular any evidence relating to your correspondence with the Registrar of the District
Court?
WILSON: I wish to put it before a court. This is not a court. You are already in contempt of court from your judgment of 3 December 1997. I have a copy of that here. You are already in contempt
of court, your Honour.
HIS HONOUR: We will come to that in a moment. The first thing is, do you wish to present any evidence at this stage, or not?
WILSON: There is no point in presenting any
evidence because there is no jurisdiction for you to hear this matter, any part of this matter. You cannot hear notices of motion, rules nisi, summons, writs, pleadings, affidavits, jurat or title of affidavit, record,
precept, or other proceedings. You cannot determine anything there.
HIS HONOUR: I will have it noted -
WILSON: That's s 259.
HIS HONOUR: I am satisfied that the plaintiff does not wish
to place or present any evidence at this stage. Now Mr Wilson?
WILSON: Are you putting down a reason?
HIS HONOUR: Now you wish to make submissions, what are your submissions?
WILSON: You have no jurisdiction. Are you employed by the defendant?
HIS HONOUR: As I said earlier, I am not here to answer questions.
WILSON: I will ask again, otherwise, you must be regarded
as hostile. Are you employed by the defendant?
HIS HONOUR: You know as well as I do that I am not here to answer questions.
WILSON: You are here to answer questions. That is what a jury does.
HIS HONOUR: No, I am not but you would be aware that I am appointed pursuant to the provisions of the Supreme Court Act, 1970.
WILSON: As a Judge.
HIS HONOUR: That is right.
WILSON: You are not the Court. You have sworn two oaths: one an oath of allegiance to Her Majesty Queen Elizabeth II the second oath is the oath of office and both have been sworn before God. In my affidavit, not
that I want to present it here, that oath of allegiance, first of all is to Her Majesty Queen Elizabeth II.
By doing so you have made a commitment to be faithful and bear true allegiance to the Coronation of her back in
1953. She was asked a question by the Archbishop of Canterbury: will you according to your power cause law and justice and mercy to be executed in all your judgments?
The law referred to is Royal law straight out of the
Bible. Royal law is made up of two commandments: one is to love the Lord your God, and the other one is to love your neighbour and on that hangs all law.
Also part of the ceremony was a prayer offered by the
Archbishop. This is all written down on a sheet of paper which would be easy to follow and I would like to offer it to you.
HIS HONOUR: You have some written submissions you would like me to read, is that what
you are saying?
WILSON: Quite apart from any proceedings just as person to person, because you do not have any jurisdiction to hear this, I am doing it as a gesture of goodwill from one Australian to
another. Will you accept it, as having no jurisdiction in this matter, will you accept it as a person, as an Australian, one Australian to another.
HIS HONOUR: I am willing to accept it as a court.
WILSON: This is no court.
HIS HONOUR: So you say.WILSON: A court is a place where justice is administered for the protection of rights and punishment of wrongs and must vindicate men's right and
enforce just causes. A court is constituted by a Judge and a jury.
HIS HONOUR: Excuse me, are you familiar with the provisions of s 40 of the Supreme Court Act?
WILSON: The one that says that the Court is made up of a Judge?
HIS HONOUR: Yes.
WILSON: That is invalid, it is no law. The Court must nullify and rebuke any law which is unjust, takes away
one's rights, protects wrong, or is in excess of the power granted by the Constitution to Parliament to make such laws. That law takes away a person's right to trial by jury. It is no law. It is
invalid. If you enforce that law you are doing so unlawfully, without any law to support you; maliciously, which means you intend to do harm to me by taking away my rights; corruptly, because you are not enforcing what a
court is about, which is to protect the rights and punish the wrongs; and oppressively, which means that you are having your will over my rights.
A court must nullify, a court being made up of a Judge and a jury, a court
must nullify and rebuke any law which is unjust, which takes away one's rights and protects wrong, or is in excess of the power granted by the Constitution, by the Parliament to make such law. I refer to Quick and
Garran who are accepted as being the authority on the Constitution in their volume entitled The Annotated Constitution of the Commonwealth of Australia. At page 346, "Law in excess of the authority conferred by the
Constitution is no law; it is wholly void and inoperative; it confers no rights; it imposes no duties; affords no protection."
Any law such as section 40 of the Supreme Court Act which takes away a citizen's
right to trial by Judge and jury is no law.
HIS HONOUR: But Quick and Garran were referring to the Commonwealth of Australia Constitution.
WILSON: Covering clause 5 of the Act to constitute the
Commonwealth of Australia, clause 5 reads "This Act, and all laws made by the Parliament of the Commonwealth under the Constitution, shall be binding on the courts, judges, and people of every State".
Are you saying the Constitution of Australia does not apply in the State Court?
HIS HONOUR: I am not answering questions.
WILSON: You are avoiding it.
HIS HONOUR: Would you go on
please.WILSON: I will go on with the same issue, that you have no jurisdiction. I will go on further with the Coronation oath. The Coronation ceremony - at the Coronation a prayer is spoken by the Archbishop when
presenting the Queen with the Sword of State. But the Queen may not bear the Sword of State unjustly but may use it as the Minister of God for the terror of evil forces and for the protection and encouragement of people
who.do well. That "With this sword do justice, stop the growth of iniquity, protect the holy Church of God, help and defend widows and orphans, restore the things that are gone to decay, maintain the things that are
restored, punish and reform what is amiss, and confirm what is in good order."
You made an oath to Her Majesty Queen Elizabeth II of England to be faithful an bear true allegiance, which means you have a commitment to
uphold the Coronation and what the Coronation means.
The second oath you took, before God also, says that you have sworn to do right to all manner of people, according to the law, without fear or favour, affection, or
ill-will, so help you God. The operative word is "right" - do right. If you enforce an unjust law, a law which is now law, you will be doing wrong which makes you a wrongdoer.
You have already declared
your bias to the right of trial by jury., which puts you in contempt of court because a court is here to vindicate men's rights but you in your judgment, and I have copies of it here, if you want to refresh your memory.
HIS HONOUR: I think I know the one you are referring to but if you have a copy there handy it would be convenient.
WILSON: This judgment is evidence of your contempt of court. Contempt of court means
that you have interfered with the administration of justice and justice means the vindication of men's rights. The right to trial by jury has been established for many centuries and formally granted by Magna Carta and
reinforced numerous times throughout history.
HIS HONOUR: This judgment of mine of 3 December 1997 was upheld by the Court of Appeal, was it not?
WILSON: Yes.
HIS HONOUR: Do you have the date of that judgment handy?
WILSON: The date it was upheld - I would have to go to my website.
HIS HONOUR: You concede it was upheld by the Court of Appeal, is that right?
WILSON: Yes, by memory, it was upheld by Handley JA and Stein JA, which is also proof that they are in contempt of court
also. The corruption of the judiciary is widespread indeed. It is time for justice. In your judgment you refer to other wrongful judgments such as the Registrar of the Court of Appeal v. Willesee. They
denied him the right to trial by jury.
HIS HONOUR: And special leave was refused by the High Court.
WILSON: Yes that shows you how far the injustice has spread, right up to and including the High Court.
HIS HONOUR: Yes, anything else?
WILSON: There is a statement made by Thomas Jefferson and if I remember it rightly, it says that the germ of the destruction of our nation lies in the power of the
judiciary. I will probably find the exact quote somewhere. It says that the judiciary are an irresponsible body who have been working by day and by night like a thief across the fields of jurisdiction - like a thief across
the fields of jurisdiction, to a point where the checks and balances of our Government have an annihilated. This is all about the right to trial by jury and whether we have a democracy in Australia or an oligarchy. We
have an elite imposing their will on the people. Trial by jury is trial by the people, the country. Judges, by ignoring the sovereignty of the people, are actually guilty of treason. I have a definition here of treason:
"Treason is a violation of allegiance by a subject against his Sovereign or Government."
So by taking away the rights of the people, no Parliament has that right. No Judge has that right.
Referring to ss 40
and 41 of the Supreme Court Act of New South Wales, 1970 which is headed "Single Judge to constitute the Court and Judges in the Division" these sections of this Act are invalid because no Parliament has the power to
make laws which take away the right to trial by jury. Any Parliament passing such law is not the representative of the people but has turned against the people. Any Judges who uphold such laws have turned against the
people and against their oath of allegiance and of office which they have sworn before God.
This is the crux of these proceedings and any award of proceedings against the Magna Carta are nothing; they are null and void and
repugnant to the charters and statutes which guarantee freedom. They are inoperative.
HIS HONOUR: Is that a statement by some authority or is that just your assertion?
WILSON: It is a
combination. I have had to learn this over the last six years now. I took a very simple case to court which was based on the word "variable" . I put this to the Supreme Court, that variable means
uncertain and this led to the fact that loan contracts made by banks incorporating uncertainty of terms are invalid or bad under common law. The first judicial officer was a fellow called Master Terrence Greenwood. He said
that the rate itself is indeed certain. That was a bald faced lie.
I know the consequences of the Court making a declaration of truth but the Court - not the Court, but the Judges were not prepared to do it. This
is what I have been fighting for ever since. I have been fighting for truth, justice and freedom. I will continue to fight.
The fight here is that you have no jurisdiction because I do not give my consent to
appear without a jury. My experiences in court have been that Judges are unlawful and malicious. They regard themselves as above the law. They have invented this thing called judicial immunity, which is a false
doctrine, intending to place Judges above all the laws governing the administration of justice.
As I said, my proceedings in the Supreme Court are against the Crown under the Crown Proceedings Act .
They said
in here to title those proceedings against the State of New South Wales. I ask you, for the umpteenth time: are you employed by the State of New South Wales? Are you employed by the defendant?
The rules of natural
justice say that a person cannot judge in his own cause. There are so many laws protecting Australians against the injustice, which I have been inflicted with, and the Judges places themselves above the law. They
refused to administer justice. Again, on the point of jurisdiction, I am referring to section 3 of the Supreme Court Proceedings Act, number 49, at 1900.
HIS HONOUR: I think you will find that was repealed by the Supreme Court Act 1970.
WILSON: Yes, and there is another law, the Interpretation Act 1987, which says that "The amendment or repeal of an Act or
statutory rule does not affect any right, privilege, obligation or liability acquired, accrued or incurred under the Act or statutory rule;".
HIS HONOUR: You are in effect denying the power of Parliament to
make laws relating to the regulation of the court, is that right?
WILSON: If they are illegal, for sure.
HIS HONOUR: But if Parliament makes a law, what Parliament makes the law to be, therefore, becomes
the law, does it not?
WILSON: No, not if it is not legal.
HIS HONOUR: Unless - it is against the Constitution.
WILSON: Yes.
HIS HONOUR: There is nothing in the Constitution Act 1901 or 1910,
whatever it is, of the State of New South Wales?
WILSON: 1902.
HIS HONOUR: Can you point to something there which limits the power of the New South Wales Parliament to make laws relating to the
regulation of the court?
WILSON: Section 3 of the Constitution Act 1902 number 32 in the definitions states, "The Legislature" means His Majesty the King with the advice and consent of the legislative
Council and Legislative Assembly." So the legislature in New South Wales is the Governor. Okay?
HIS HONOUR: Yes.
WILSON: Section 5 says that "The legislature shall, subject to the
provisions of the Commonwealth of Australia Constitution Act, have power to make laws for the peace, welfare, and good government of New South Wales in all cases whatsoever."
HIS HONOUR: Yes.
WILSON: There is a reference to the Constitution of Australia.
HIS HONOUR: But there is nothing in the Commonwealth of Australia Constitution, is there that says that the New South Wales Parliament cannot make
laws in relation to the New South Wales courts?
WILSON: Yes, if it is against the provisions of the Commonwealth Constitution.
HIS HONOUR: The only provision I know if in the Commonwealth Constitution
relating to trial by jury is section 80 which provides that trials on indictment -
relating to offences against the laws of the Commonwealth are to be tried by a jury. Can you point to any other provision in the
Commonwealth of Australia Constitution Act which relates to trial by jury?
WILSON: Can you point to something which does? It says in Quick and Garran, "What is not so granted to the Parliament of the Commonwealth is
denied to it. It is either reserved to the States, as expressed in their respective Constitutions, or remains vested but dormant in the people of Australia."
In other words, what is not written down in the Constitution
is denied to the Parliament. They cannot make laws which take away the rights of the people. That is the fundamental issue.
HIS HONOUR: Yes.
WILSON: When you are talking about section 40 of the
Supreme Court Act, which takes away the rights of the people, that is no law.
HIS HONOUR: All right.
WILSON: This Court is made up of a Judge and a jury. There is no jury here. I do not give my
consent to be without a jury. When you say the Act of 1970 has been repealed -there is another Act which is called the Interpretations Act of 1987, section 30, "The amendment or repeal of an Act or statutory rule does
not affect any right, privilege, obligation or liability acquired, accrued or incurred under the Act or statutory rule."
The right, privilege, obligation and liability, as set out in section 3 of the Supreme Court Act
1900 is not affected by its being repealed, do you understand that? That is another question?
HIS HONOUR: I make the observation that you had not commenced these proceedings prior to the repeal of the 1901 Act
by the 1970 Act.
WILSON: I did not quite hear that, you were muttering.
HIS HONOUR: I make the observation that these proceedings were commenced after the 1970 Act came into force in 1972 and, therefore,
that what the earlier Act provided for is not relevant because you have no acquired rights under the earlier legislation, which I might add, did not provide for trial by jury. The earlier Act did not provide for trial by
jury in a situation such as this.
WILSON: It says "In any action" - simple English - "In any action" - it does not say any particular action. It does not exclude any particular
action. It does not say whether civil or criminal. It says "In any action, by consent of both parties, the whole or any one or more of the issues in question may be tried, or the amount of damages or compensation may
be assessed by a Judge without a jury.
Notwithstanding such consent a Judge may at any time order that any or all of the issues of fact in the proceedings be tried with a jury if it appears to him to be expedient."
The court is constituted by a Judge and a jury.
HIS HONOUR: Yes.
WILSON: You have no jurisdiction to hear any part of the action.
HIS HONOUR: Right, I understand your submissions on the
jurisdiction point. Is there anything else you want to say on the jurisdiction point other than repeating what you have already said.
WILSON: Expanding upon it. I am fighting this very same issue in other cases which I have.
HIS HONOUR: That may be so.
WILSON: It is a common theme or thread which links to this action.
HIS HONOUR: I think I understand your submissions.
WILSON: One is in the High Court already which is going before the High Court some time in November - I think it is 23 November.
HIS HONOUR: That is an application for special leave to appeal.
WILSON: Yes.
HIS HONOUR: To appeal against what judgment of what court?
WILSON: That was against Sully J in the Supreme Court.
HIS HONOUR: Has it been to the Court of Appeal in the meantime?
WILSON: Yes, it has been before the Court of Appeal and they have upheld that rotten corruption is universal in these courts.
HIS HONOUR: That may be so.
WILSON: You said "That may be so." You said it, didn't you? You have got a smile on your face.
HIS HONOUR: Have you got anything to say that you
have not already said on the question of jurisdiction? Your case is that I have no jurisdiction to hear this application because I am sitting without a jury, is that right?
WILSON: Yes.
HIS
HONOUR: I understand that is your submission. Now do you wish to make any submissions relating to the merits of the present application?
WILSON: I have not finished with the jurisdiction issue.
HIS
HONOUR: Go on then.WILSON: You are committing an offence under s 43 of the Imperial Acts Application Act 1969, number 30, section 43 which says "Any person guilty of any offence under any Imperial enactment
included in Part 1 of the Second Schedule for which no punishment is otherwise provided is liable to imprisonment for a term of not more than five years or to a fine not exceeding 20 penalty units, or to both such imprisonment
and fine.".
HIS HONOUR: What Imperial Act do you submit I am in breach of?
WILSON: Numerous.
HIS HONOUR: You had better state them.
WILSON: In particular starting off 1297
Magna Carta of 25 Edward I. Also the 1627 Petition of Rights, the 1640 Habeas Corpus Act.
HIS HONOUR: What has habeas corpus got to do with it.
WILSON: That is the protection of our rights.
HIS HONOUR: Provided for the release from custody?
WILSON: The abolition of the Star Chamber where Judges acted oppressively and unlawfully and the Habeas Corpus Act abolished that. There is your Habeas Corpus
Act (Holding up a photocopiy of the legislation.
The Bill of Rights, 1688, 1 William and Mary. .The Bill of Rights says, quite clearly, that juries ought to be duly empanelled and returned. The Bill of Rights was a
very important document in our history. It is law in New South Wales and Australia. In that they describe diverse and evil counsellors, Judges and Ministers employed by the King, who endeavour to subvert and expiate
the religion and the laws and liberties of this Kingdom. The laws and liberties of this Kindgom relate to the right of trial by jury.
I repeat, by you proceeding down the course which you have done previously,
in the judgment of 3 December 1997, and now by continuing with this hearing without a jury, you are liable under section 43 to imprisonment for not less than five years, or a fine not exceeding 20 penalty points or both.
HIS HONOUR: Yes.
WILSON: Again, these proceedings are quite illegal.
HIS HONOUR: I understand that to be your point. Now do you wish to make any submissions in relation to the merits of the
application?
WILSON: I would like to refer to the Petition of Right. This is a very good law.
HIS HONOUR: I can read the Petition of Right myself.
WILSON: This is evidence being presented.HIS
HONOUR: No. Do you want to deal with whether the Registrar of the District Court should have accepted your documents or not, or whether you can sue in this court because of the failure of the Registrar of the District
Court to accept your documents. Do you wish to deal with either of those issues.
WILSON: Where is the court?
HIS HONOUR: Do you wish to make any submissions about either of those issues?
WILSON: You said "This court" where is the court? There is no court here because there is no jury. You cannot get past that point. You do not make the laws.
HIS HONOUR: Do you wish to make any submissions today to anyone.
WILSON: To a jury, yes.
HIS HONOUR: But without a jury do you wish to make any submissions as to whether the Registrar of the
District Court at Parramatta should have accepted your documents, or whether you can sue in this Court because of the failure of the Registrar of the District Court to accept your documents. Do you wish to make any
submissions on either of those points?
WILSON: Before a jury.
HIS HONOUR: There is no jury here. Do you wish to make any submissions in the absence of a jury?
WILSON: I will sit here until there is a jury.
HIS HONOUR: Thank you, you may sit down. I take that as declining to make submissions in the present circumstances.
WILSON: You have no right to make any ruling at all.
HIS HONOUR: I intend to make a ruling, I can assure you of that.
WILSON: You are doing so unlawfully, maliciously, corruptly and
oppressively. They abolished the Star Chamber in the 17th century.
HIS HONOUR: Ms Webster, you were going to give me the reference to the District Court Act, or the provision that provides for an appeal from
the ruling of a Registrar to a
Judge of the District Court.
WEBSTER: Yes, that is right, a right of review of a decision of a Registrar - Part 43 rule 15 of the District Court Rules. That is actually the
extract from the rules which are annexure A to the second affidavit of Miss Mahony.
HIS HONOUR: There is also a provision, isn't there, limiting the right to bring proceedings in this court in respect of
proceedings in the District Court except by way of prohibition certiorari, or by way of appeal where an appeal is provided for. Is there such a provision?
WEBSTER: The right of certiorari under section 69 of
the Supreme Court Act would lie against an inferior tribunal but there is a right of review in the superior court.
HIS HONOUR: I am not sure of this and I might be quite wrong.
WILSON: You are very wrong.
HIS HONOUR: But I have a feeling there is some provision.
WEBSTER: The provisions of the rights of appeal to the Supreme Court - section 127 of the District Court Act.
HIS HONOUR: I am familiar with that section. Can I just borrow your practice for a minute?
WEBSTER: I have opened that at section 126 of the District Court Act.
HIS HONOUR: No, there is no such provision as I thought may have been there.
WEBSTER: There is no clear direct prohibition on appeal.
HIS HONOUR: This is an action, as I understand it, seeking damages for -
WEBSTER: The statement of claim that has been pleaded has an introductory paragraph entitled "Particulars" and then three
paragraphs which would appear to attempt to propound a claim in negligence against the State of New South Wales.
HIS HONOUR: Is it a claim in negligence or is it a misfeasance in public office?
WEBSTER: It talks about a wrong. It may be a misfeasance in public office but as that pleading stands, it refers and seeks relief by way of -.
HIS HONOUR: Then it claims mandamus and certiorari.
WEBSTER: There is no other claim than that, apart from a claim for costs against the State of New South Wales. Relief against mandamus.
HIS HONOUR: Mandamus and certiorari have to go to the Court of Appeal.
WEBSTER: In any event, it would have to be a failure to exercise a power and an error on the face of the record but, indeed, it being a claim from the District Court of New South Wales rather than an inferior court -
or a court further down in the hierarchy, such as the Local Court. It would not be within the jurisdiction of a single Judge in this court.
HIS HONOUR: That is right. The appropriate course would,
therefore, either be - I do have a power to dismiss it in such a case - don't I, or do I have to refer it to the Court of Appeal?
WEBSTER: There is a part relating to misconceived proceedings and that is what
the notice of motion seeks:
"(1) That pursuant to the Supreme Court Rules 1970 Pt 13, r 5, that these proceedings be dismissed or alternatively stayed for an abuse of process, and
(2) Pursuant to the
Supreme Court Rules 1970 Pt 15, r 26 the pleadings be struck out for an abuse of process."
The defendant's submission deals with the
inapplicability of any right of review as claimed in the statement of claim.
Section 48 of the Supreme Court Act assigns business to the Court of Appeal.
HIS HONOUR: Sub-section 2(b) (Read). Your submission would be that before I get to that stage I should strike it out because the
proceedings are misconceived?
WEBSTER: Yes, the proceedings as constituted would not be constituted in a way that an application for something in the nature of prerogative relief would lie. There has been no
joinder of the plaintiff in the District Court proceedings, which was the Commissioner of Taxation.
The proceedings in the District Court, as your Honour might have seen from the documents, were the plaintiff, the Deputy
Commissioner of Taxation, suing the plaintiff in these proceedings, and then the plaintiff sought to file a cross-claim against the Deputy Commissioner, the Commonwealth of Australia, as second cross-defendant and as the third
cross-defendant, the State of New South Wales. That is the cross-claim which was rejected by the Registrar of the District Court.
The proceedings claimed relief in the nature of mandamus or certiorari which,
ordinarily, would require the joinder of the tribunal below and all those matters but none of that has occurred here.
HIS HONOUR: The proper defendant would be the District Court.
WEBSTER: Yes, which
would no doubt enter a submitting appearance in the ordinary manner and leave it to be defended against the Commissioner. In any event, there is, as has been outlined in the letter which was sent
HIS HONOUR:'
Even if constituted it would be clearly rejected on discretionary grounds because of a right of review to a Judge of a District Court.
WEBSTER: Yes, that was pointed out clearly in a letter from the Crown
Solicitor's Office, for the greater assistance of the plaintiff in that he is unrepresented in these matters, and setting out all these matters. For completeness, if I could indicate a couple of other formal matters
which is that section 11 of the District Court Act makes it clear that a Registrar may in accordance with the rules of the court constitute the District Court. The Office of Registrar is provided for in section 18G and
section 18H. These are sections of the District Court Act. They create the Office of Registrar of the District Court. Section 18J provides for the functions of an Assistant Registrar, as one of the Registrars from whom
correspondence was received in this matter by the plaintiff.
On the affidavit material which has been filed, it was from an Assistant Registrar. Section 18J provides under subsection 2 that anything done, or omitted
to be done by an Assistant Registrar shall have the same effect as if done or omitted to be done by the Registrar.
Part 43 rule 11 of the District Court Rules provides for jurisdiction of the Registrar. Rather rules
10(a) and 10(b) provide for jurisdiction of Registrars. Part 43 rule 11 provides that the Court may by order direct a Registrar to do, or refrain from doing any particular act.
Section 195 of the District Court Act specific provides that (Read). . That is mandamus and certiorari.
WILSON: The Judge cannot do that, not without a jury he cannot.
HIS HONOUR: Yes, all right.
WEBSTER: Unless there is anything with which I can assist you, those are my submissions.
HIS HONOUR:. Anything you wish to say in reply, Mr Wilson?
WILSON: All these regulations that the opposition has
been referring to are the realm of a jury to determine. A jury must not only determine what are the facts and what is the law but justice and the law, whether the law is appropriate being applied, and what are the moral
intentions of the parties and, finally, bring in a verdict according to their conscience.
So all these issues that this lady is bringing up are up for grabs before a jury. A jury is the tribunal of the people and
the people have sovereignty in Australia. So all these points of so called law, if they do not serve justice, they must be nullified and rejected by a jury. Technicalities do not necessarily lead to justice. The
Court is here to administer justice.
The Supreme Court Act in section 23 - this Court shall have all jurisdiction which may be necessary for the administration of justice in New South Wales. Justice is not being
served by taking away people's rights. So anything which is laid down in regulations that a Registrar can or cannot do is up for assessment by a jury.
That is the way our democracy works. It is the only way a democracy
can work. It cannot be put into the hands of an elite group of Judges. Therefore, all these points of law which this lady is bringing up cannot be determined by you.
You have violated your Oath of Allegiance
and your Oath of Office. So you cannot be trusted to administer justice. Therefore, I say again that you have no jurisdiction in this matter whatsoever and anything which comes out of these proceedings are, according to
the Petition of Rights, are of no consequence or example.
HIS HONOUR: Yes, thank you. I will give my judgment in this matter at 2 p.m.
FOR HIS HONOUR'S JUDGMENT SEE SEPARATE TRANSCRIPT. JUDGMENT RESERVED.
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