130723-r clark attorney general & others-re complaint

7/28/2019 130723-R Clark Attorney General & Others-Re COMPLAINT

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Mr Robert ClarkMP Attorney-General [email protected]

Cc: D. Napthine MP Premier of Victoria [email protected] Facey Director, Infringement Management & Enforcement Services (Sheriff)

[email protected]

Ian Grey Chief Magistrate, Magistrates Court of Victoria233 William Street Melbourne Vic 3000, C/[email protected]

M Hoyle, Quality and client support CoordinatorCivic Compliance Victoria GPO Box 1916, Melbourne VIC 3001

[email protected]

Mr G. H. Schorel-Hlavka, MAY JUSTICE ALWAYS PREVAILEmail: [email protected]

COMPLAINT

Re: -COMPLAINT etcObligation Number 1106575301

Sir,

I received an email (reproduced below) which refers to issues that I raised in my previouscorrespondences, but as yet never received any reply upon, and so I urge you to address theissues as to the validity of speed camera being used without specific approval by the

Commonwealth of Australia and other issues raised in this correspondence.Below some pictures of workers (on 13 April 2012) at a red light camera, but to me seeminglynot Commonwealth of Australia qualified and authorised technicians.

120413-Swanston Street camera (13 April 2012)

Page 1 23-7-2013 Re: COMPLAINT - COURT etc Obligation Number 1106575301INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD

A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, See also

Http://www.schorel-hlavka.com Blog at Http://www.scrib.com/InspectorRikati

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As I challenged the validity of the legislation, at least since 30-5-2011, in my correspondence tothe then Premier of Victoria Ted Baillieu, then it remains ULTRA VIRES unless a court

pronounces against it and declares it INTRA VIRUS, not that I concede this should or ought toeventuate. However, one also has to consider the issue ofCONTEMPT OF COURT.It is widely accepted that those who place a court in disrepute may be found guilty ofCONTEMPT OF COURT. Therefore those who are purporting that the Infringement Court is

part of the Magistrates Court of Victoria but then using the Infringement Court in a manner thatis contrary to the Court's position as a Chapter III court of the constitution and those involvedmanipulating the system for this also can be deemed to commit CONTEMPT OF COURT.

Lewis v Ogden [1984] HCA 28; (1984) 153 CLR 682 (15 May 1984)

QUOTE

8. At common law words or conduct in the face of the court or in the course of proceedings, in order toconstitute contempt, "must be such as would interfere, or tend to interfere, with the course of justice"(Parashuram Detaram Shamdasani v. King-Emperor (1945) AC 264, at p 268 ). Instead of makinginterference, or tendency to interfere, with the course of justice an element in the offences which it created,subs. (1) introduces the new element of conduct which is wilful in pars. (a) and (c). In these two paragraphsthe word "wilfully" means "intentionally", or "deliberately", in the sense that what is said or done is intendedas an insult, threat, etc. Its presence does more than negative the notion of "inadvertently" or "unconsciously"(Bell v. Stewart[1920] HCA 68; (1920) 28 CLR 419, at p 427 ). The mere voluntary utterance of words is notenough. "Wilfully" imports the notion of purpose. (at p688)

9. It is submitted that the section should be read in the light of the common law of contempt and that, when soread, there should be imported into pars. (a) and (c) the common law requirement that the acts must be such asto interfere, or tend to interfere with the course of justice. The short answer to this argument is that all the actsmentioned in pars. (a) to (d) inclusive are acts which in their very nature interfere or have a tendency tointerfere with the administration of justice and have been so regarded traditionally. To take but one example,a wilful insult to a judge or jury during a trial necessarily interrupts the course of the trial and tends to divertattention from the issues to be determined. So in Ex parte Pater (1864) 5 B & S 299 (122 ER 842) where a

barrister was adjudged guilty contempt in that he wilfully insulted a juryman during the course of his addressto the jury, the wilful insult was treated as an obstruction of the administration of justice and, accordingly, asa contempt. Cockburn C.J. observed (1864) 5 B & S, at p 310 (122 ER, at p 846) :" . . . they are words which counsel might have uttered in the honest discharge of his duty for the purpose ofvindicating the interests of his client and preventing the other jurors from being prejudiced or undulyinfluenced by the opinion of the foreman; and if they had been so uttered, though they were harsh and

offensive to the juryman to whom they were applied, that would be within the right and privilege of counsel.Page 2 23-7-2013 Re: COMPLAINT - COURT etc Obligation Number 1106575301

INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD



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But if they were uttered with the intention to insult the juryman, then they were an abuse of the privilege ofcounsel, and the judge might treat the uttering of them as a contempt . . . ."Blackburn J., after referring to the power of Quarter Sessions to punish "an unwarrantable obstruction of theadministration of justice in the face of the Court", continued (1864) 5 B & S, at p 312 (122 ER, at p 847) :" . . . if counsel under colour of addressing the jury, insults a juryman, or the Court, I cannot doubt that itwould be such an obstruction as would be a contempt . . . ."It follows that a person who wilfully insults a judge in the course of proceedings in court does somethingwhich necessarily interferes, or tends to interfere, with the course of justice. (at p689)

END QUOTE

Lewis v Ogden [1984] HCA 28; (1984) 153 CLR 682 (15 May 1984)

QUOTE

20. The critical question then is whether in the way in which he made those points the appellant trespassedbeyond the bounds of legitimate advocacy and wilfully insulted the judge. Although the question is by nomeans easy to answer, we have come to the conclusion that what was said was neither insulting nor intendedto be so. As we have already indicated, the appellant's remarks are susceptible of the interpretation that the

judge had expressed a consistently adverse view of the accused's case and its presentation, that the judge'streatment of it was one-sided, and that, accordingly, there was a real risk that his summing up would be of thesame character. The appellant had no means of knowing in advance what the trial judge would say in hissumming up. Having concluded that there was a risk that adverse comments would or might be made, the

appellant was placed in the difficult position of endeavouring to counter such comments in advance by raisingthe matter directly in his address. The appellant, in embarking upon this delicate undertaking, by his referenceto the Collingwood umpire and the statement from the dock, and the manner and tone of his delivery - amatter to which the judge referred - came close to insulting the judge. However, having regard to theinterpretation which we place on what the appellant said, namely that his Honour's attitude to Paul's case wasadverse and unfair in the sense of being "one-sided", we do not consider that the learned judge could have

been satisfied beyond reasonable doubt that the appellant's comments amounted to an insult. The appellant'sconduct was extremely discourteous, perhaps offensive, and deserving of rebuke by his Honour, but in ourview it could not be said to constitute contempt . (at p693)

21. In conclusion three comments should be made. The first is to recall that the contempt power is exercisedto vindicate the integrity of the court and of its proceedings; it is rarely, if ever, exercised to vindicate the

personal dignity of a judge (Ex parte Fernandez (1861) 30 LJCP 321, at p 332 ; Reg. v. Castro; Skipworth's

Case (1873) LR 9 QB 219, at p 232 ; Bellanto (1962) 63 SR (NSW), at pp 200, 202 ). The second is that thesummary power of punishing for contempt should be used sparingly and only in serious cases (Shamdasani (1945) AC, at p 270 ; Izuora v. The Queen (1953) AC 327, at p 336 ). The final comment is thatthe charge of contempt should specify the nature of the contempt, i.e., that it consists of a wilful insult to the

judge, and identify the alleged insult. (at p693)

22. In the result we would allow the appeal. (at p693)

ORDER

Appeal allowed.

END QUOTE

SEE ALSO:Bell v Stewart [1920] HCA 68; (1920) 28 CLR 419di Suvero v Bar Association (LSD) [2001] NSWADTAP 9Director of Public Prosecutions (Cth) v Elisabeth Sexton [2008] NSWSC 352McGuirk v University of NSW [2010] NSWSC 448Principal Registrar, Supreme Court of New South Wales v KatelarisProthonotary v Wilson [1999] NSWSC 1148REGISTRAR OF THE SUPREME COURT OF SOUTH AUSTRALIA v MOORE-MCQUILLAN

Rondel v Worsley [1967] UKHL 5 (22 November 1967)Trajkovski and Department of Transport and Regional Transport [2000] AATA 1073TRANSPANTHERS- THE GREYING OF TRANSGENDER AND THE LAW




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Whereas ordinary a Parliament may not be held in CONTEMPT OF COURT, as its conductordinary is protected b y privileges. However, a Parliament sitting in clear defiance of a Courtorder then those participating in the sitting may be deemed guilty of CONTEMPT OFCOURT,. For example, where a Court has declared an election to be invalid and order a newelection and issue an order that the Parliament cannot sit unless and until a new election has beenheld and those elected then are to form the new Parliament, then if nevertheless those held notelected ignore to hold a new election (through the Electoral Commission) and sit in Parliament toenact legislation to retrospectively validate their election, then clearly this would be deemedCONTEMPT OF COURT. Likewise, an Attorney-General acting in blatant violation of a Courtorder can be and has been held in CONTEMPT OF COURT.Even a judge or a prosecutor can be held in CONTEMPT OF COURT.

http://www.visupremecourt.org/wfdata/frame1769-1163/File34.pdfOn Order to Show Cause for Indirect Criminal ContemptIn Re The Honourable Leon A. KendallQUOTE

OPINION OF THE COURTPER CURIAM.This Court, in an August 13, 2009 Order, required Leon A. Kendall, a judge of the1 This Court, in a September 16, 2009 Order, appointed Attorney Hall.a disinterested private attorney.to serve

as the special prosecutor in this matter because, given the procedural history of this case, allowing aprosecutor employed by the Department of Justice to prosecute this matter could be perceived as a conflict ofinterest by the public. See In re Special Proceedings, 373 F.3d 37, 43 (1st Cir. 2004) (affirming appointmentof private counsel as special prosecutor because use of government prosecutor would not necessarily have

banished the public impression of a conflict in this case.). See also Young v. United States ex rel. Vuitton etFils S.A., 481 U.S. 787, 811, 814, (1987) (explaining that prosecutors of contempt action must be guidedsolely by their sense of public responsibility for the attainment of justice and that selection of a prosecutormust not create[] an appearance of impropriety that diminishes faith in the fairness of the criminal justicesystem in general.).In re KendallS. Ct. Misc. No. 2009-0025Opinion of the CourtPage 2 of 29

Superior Court,2 to show cause as to why he should not be held in indirect criminal contempt.3 On December18, 2009, this Court appointed the Honorable Edgar D. Ross, a retired Superior Court judge, to serve as aSpecial Master, with the authority to, among other things, conduct a2 While this matter was pending, Kendall retired from his position as a Superior Court judge at the conclusionof his term in October 2009.3 The August 13, 2009 Order required, in pertinent part,that Judge Leon A. Kendall . . . SHOW CAUSE . . . why he should not be held in indirect criminal Contemptof Court for(1) Obstructing the administration of justice througha. inflammatory remarks and other characterizations in his July 7, 2009 opinion that appear calculated andintended to prejudice this Court in public estimation, destroy or call into doubt this Court.s function and

position as the highest local court in the Virgin Islands, and to reduce confidence in the administration ofjustice in this jurisdiction; and

b. purporting to review the validity and legality of this Court.s May 13, 2009 opinion and order, including, butnot limited to, stating that the issuance of this Court.s order was clearly improper, that its conclusionsmake[] no sense and are erroneous, and that this Court.s mandate should be given no credence,despite this Court.s status as the highest local court in the Virgin Islands;(2) Failing to comply with this Court.s May 13, 2009 opinion and order bya. refusing to schedule the matter for trial and proceeding to trial in the absence of a valid plea disposition;

b. refusing to consider a change of venue or a continuance to minimize pre-trial publicity in the underlyingmatter; andc. recusing himself from the matter below for the purposes of avoiding future compliance with this Court.smandate, leading to additional scheduling delays;(3) Misbehaving in his official transactions as an officer of the court by




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a. failing to comply with this Court.s May 13, 2009 opinion and order in violation of Rule 1.1 of theAmerican Bar Association.s Model Rules of Judicial Conduct, made applicable to Judge Kendall pursuant toSupreme Court Rule 205 and Virgin Islands Bar Association Bylaw X.8(D);

b. calling into question, through his July 7, 2009 opinion, the integrity of the Virgin Islands judiciary throughinflammatory language directed at this Court and concluding that this Court.s May 13, 2009 opinion and orderwas clearly improper, that its conclusions make[] no sense and are erroneous, and that this Court.smandate should be given no credence, in violation of Rule 1.2 of the American Bar Association.s ModelRules of Judicial Conduct, made applicable to Judge Kendall pursuant to Supreme Court Rule 205 and VirginIslands Bar Association Bylaw X.8(D);

c. refusing to hear a matter properly assigned to him by recusing himself for reasons not authorized by law, inviolation of Rule 2.11 of the American Bar Association.s Model Rules of Judicial Conduct, made applicableto Judge Kendall pursuant to Supreme Court Rule 205 and Virgin Islands Bar Association Bylaw X.8(D)[.]In re KendallS. Ct. Misc. No. 2009-0025Opinion of the CourtPage 3 of 29show cause hearing and make and submit to this Court proposed findings of fact and conclusions of law.After presiding over the show cause hearing and considering the parties. submissions, the Special Master hasrecommended that this Court acquit Kendall of all charges. After an exhaustive review of the record,including a transcript of the show cause hearing, a video of the majority of the proceedings, and numerousdocuments entered into evidence by both parties, we accept in part and reject in part the Special Master.sfindings, conclusions, and recommendations.

END QUOTE

http://www.visupremecourt.org/wfdata/frame1769-1163/File34.pdfOn Order to Show Cause for Indirect Criminal ContemptIn Re The Honourable Leon A. KendallQUOTE

III. CONCLUSIONBased on the foregoing, we find that the People proved, beyond a reasonable doubt, that Kendall is guilty ofindirect criminal contempt by obstructing the administration of justice, failing to comply with the May 13,2009 Opinion and Order, and misbehaving in his official transactions. Accordingly, we accept in part andreject in part the Special Master.s December 22, 2010 Recommendation, and shall set this matter for asentencing hearing.Dated this 12th day of October, 2011.

ATTEST:VERONICA J. HANDY, ESQ.Clerk of the Court

END QUOTEThe Government must be deemed to be no more but a party before the Courts and not one who can manipulate thelegislative powers of the parliament as to so to say give it an easy ride through some purported court process that

basically guarantees that a Infringement notice is enforced regardless if it was ill conceived.We must have and maintain a robust judiciary which is to question the legal validity of any plaintiff/applicantregardless if this is the Government and/or any authority to act for it or an ordinary citizens..Hansard 8-3-1898 Constitution Convention Debates

QUOTESir JOHN DOWNER.-Now it is coming out. The Constitution is made for the people and the states on

terms that are just to both.END QUOTE.This no longer exists when the State violate the independence of the judiciary by dictating a legal process or better tostate a purported legal process that is designed to rob the citizen of a FAIR and PROPER trial. Indeed, VCAT(Victorian Civil and Administrative Tribunal) is precisely such a creature where a citizen is forced to appear beforeit rather then being entitled to the protection of a Court of law, as it suits the government better to manipulate its

powers through its own government departments such as VCAT. Judicial officers who support this kind of conductby this in my view are betraying the oath of office they made and so to say are selling their sole to their corporatemasters.

Blair v Magistrates' Court of Victoria & Anor [2002] VSC 242 (19 June 2002)

QUOTE




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HIS HONOUR:

1. In this proceeding the plaintiff, Ian Blair, challenges the jurisdiction of the Magistrates' Court to hear aproceeding against him in which he is charged with an offence under sub-section 49(1)(e) of theRoadSafety Act1986. The challenge to the Magistrates' Court jurisdiction was made before Magistrate Cottrillwho decided on 13 October 2000 that the court did have jurisdiction to hear the charge and adjourned the

proceeding to a date yet to be fixed. The basis of the challenge to the Magistrates' Court jurisdiction is theabsence from the court file of the original document fitting the description of the charge and originalsummons in sub-section 30(2) of theMagistrates' Court Act1989.

2. Section 30 of theMagistrates' Court Act1989 deals with when a prescribed person may issue a summons.Sub-section 30(1) provides that a prescribed person may issue a summons to answer a charge for a

prescribed summary offence. Sub-section 30(2) sets out certain requirements when a prescribed personissues a summons under sub-section 30(1). Sub-section 30(2)(a), provides, in particular, that a prescribed

person issuing a summons under sub-section 30(1), must file the charge and original summons with theappropriate registrar within seven days after signing the charge-sheet. Sub-section 30(3) provides that "ifit appears" to the court that sub-section 30(2)(a) has not been complied with "the Court must strike out thecharge" and may award costs against the informant. The procedural requirement imposed by sub-section30(2)(a) is, thus, mandatory and non-compliance with it compels the Magistrates' Court to strike out thecharge.

3. The plaintiff contended before Mr Cottrill, and also by way of hearing de novo before me, that the charge

had to be struck out because the original document required to be filed under sub-section 30(2)(a) could notbe produced. The Magistrate found as fact that the document which was to be filed under sub-section 30(2)(a) had been filed and was satisfied that sub-section 30(2)(a) had been complied with. His Worship wasable to find the relevant facts by referring to, and relying upon, evidence of the Magistrates' Court's file andhis knowledge of the process and procedures of that court. He was able to conclude, in my view correctly,that the original of the document which was to be filed under sub-section 30(2)(a) had been filed and, onthe basis of the facts before him, it appeared to him (as it does to me) that the terms of sub-section 30(2)(a)had been complied with.

4. His Worship has helpfully described the Magistrates' Court process and procedures by which proceedingsare initiated in cases such as this. I was taken to that description, as being factually correct, by both parties.His Worship explained the commencement of the process and procedures as follows:

"For the purpose of initiating proceedings for a charge and summons pursuant to s.30 oftheMagistrates' Court Act, the proscribed [sic] person process, the police informantutilises a set of documents which are joined together by a perforated strip. There are fourrelevant documents: first page, white, headed CDEB, Police Brief Copy; second page,green, headed Charge and Summons To Be Filed At Court After Service; third page,green, headed Charge and Summons, Original To Be Retained By The Court; fourth

page, blue, headed Charge and Summons, Bring This With You To Court. The balance ofthe document consists of two pages being notice and advice proscribed [sic] pursuant tothe Magistrates Court General Regulations and which are not relevant for the purposes ofthese proceedings."

END QUOTE

Munro v Brack & Anor [2000] VSC 229 (5 June 2000)

QUOTE

30. It was submitted therefore that as his Honour cannot have considered the matters he was required toconsider by s.5(2) and that his failure in that regard constituted an error of law on the face of the recordsufficient to justify bringing the orders up into this court and quashing them.

31. There is no absolute duty upon a judge to state his reasons. However it is difficult to conceive of a case inwhich a County Court judge, after hearing evidence on an appeal from the Magistrates' Court, would not berequired to give reasons. See R. v. Arnold[4].

32. Expressed another way, a case must be exceptional for a judge not to have a duty to state reasons. SeeSoulemezis v. Dudley (Holdings) Pty. Ltd.[5]




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33. See also Powter; re Powter[6]; and Farrugia v. The County Court of Victoria & Anor[7].

34. But there is no obligation on a judge dealing with an appeal of the nature of the appeal in this case to giveelaborate reasons for his decision let alone incumbent upon him to state in those reasons that he has givenconsideration to the various matters he is required to by s.5(2) of the Sentencing Act 1991.

END QUOTE

How indeed can any purported legal process be in existence that defies ordinary legal procedures for an accused tochallenge the allegations once place before a court? What we have is that a person alleged to have infringed a traffic

code then is given the alleged option to take it to court or not, which would induce a citizen to incur loss of income,etc, regardless if the Infringement Notice is ill conceived. This never can be deemed a legitimate legal process as itmust be held that unless and until the allegations has been filed in court (not just lodged) the accused has noobligation to answer anything. there me fact something is alleged against a person doesn't place any person upon that

person then having to go to court to prove his "innocence"! If my neighbour was to alleged that I had weakened thefence in some manner, it doesn't mean that I then have to select to go to court or by my refusal to do so can bedeemed to be guilty as alleged. Likewise, where the Government or any of its authorities makes an allegation then itis open to them to place the matter before the Court and not unless and until; it is filed in a Court of law there is noobligation to an accused to somehow elect to go to court.

Infringement Act 2006QUOTE

s. 53

Part 4Lodging Infringement Penalties and Enforcement OrdersInfringements Act 2006 Act No. 12/2006

44PART 4LODGING INFRINGEMENT PENALTIES AND ENFORCEMENT ORDERS

Division 1Lodgement

54. Lodgement of infringement penalty with infringements registrar

(1) An enforcement agency may lodge details of any outstanding amount of an infringement penalty inrespect of a lodgeable infringement offence together with the prescribed costs (if any) with an infringementsregistrar if

END QUOTE

While the Infringement Act 2006 refers to "lodged"/"lodging"/"lodgeable", the truth is, that

anyone can lodge an application or other document in the Court but this in itself doesn't mean itis "filed'. The Registrar or other officer, including a judge may refuse to accept the lodgeddocument for filing and then it is and remains a document not subject to litigation between

parties.

Infringement Act 2006QUOTE S3 Definitions

"lodgeable infringement offence" means an infringement offence prescribed under this Act to be aninfringement offence which is enforceable under this Act;

END QUOTE

While it is provided for that and infringement offence can be enforced it does however not

stipulate that the lodgement of an Infringement Notice itself is deemed to be as to filing of adocument ordinary applicable in the Magistrates Court of Victoria.

Infringement Act 2006QUOTE S3 Definitions

"enforcement agency", in relation to an infringement offence, means(a) a person or body authorised by or under an Act to take proceedings for the infringement offence in respectof which the infringement notice or official warning was issued or served; or (b) a person by whom, or body

by which, a person or body referred to in paragraph (a) is employed or engaged to provide services if thetaking of the proceedings referred to in that paragraph would occur in the course of that employment or in thecourse of providing those services; or (c) a prescribed person or body or person or body which is a member ofa prescribed class of person or body;

END QUOTEPage 7 23-7-2013 Re: COMPLAINT - COURT etc Obligation Number 1106575301




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The above doesn't show any indication as to "file" or "filed".

QUOTE57. Reliance on lodged material

An infringements registrar is entitled(a) to rely on the accuracy of the material provided by an enforcement agency when the details of aninfringement penalty and prescribed costs (if any) in respect of a lodgeable infringement offence are lodgedunder section 54; and

(b) to assume that the details are true and correct.58. Agency may request enforcement order not be made

At any time before an enforcement order is made, an enforcement agency may request an infringementsregistrar not to make an enforcement order in respect of details of any outstanding amount of an infringement

penalty and prescribed costs (if any) in respect of a lodgeable infringement offence lodged under section 54.Division 2Enforcement Orders

59. Enforcement orders

(1) If an infringements registrar has not received a request under section 58 from an enforcement agency, theinfringements registrarmay make an enforcement order that the person pay to the Court the outstandingamount of the infringement penalty and the prescribed costs in respect of a lodgeable infringement offence.(2) An enforcement orderis deemed to be an order of the Court.s. 57

Part 4Lodging Infringement Penalties and Enforcement Orders

Infringements Act 2006 Act No. 12/END QUOTE

Infringement Act 2006QUOTE S3 Definitions"infringement notice" means a notice in respect of an infringement offence served in accordance with Part 2;"infringement offence" means an offence under an Act or regulations which, under that Act or those regulations,may be the subject of an infringement notice;"infringement offender" means a person who has been arrested under an infringement warrant;s. 3

Part 1PreliminaryInfringements Act 2006 Act No. 12/20065"infringement penalty" means the amount stated in an infringement notice as payable in respect of theinfringement offence to which the notice relates;"infringements registrar"(a) means a registrar within the meaning of the Magistrates' Court Act 1989 who is a registrar on whom functionsunder this Act or the Magistrates' Court Act 1989 have been conferred in respect of any proceeding or class of

proceeding or procedure under this Act; and(b) includes any deputy registrar employed pursuant to section 17 of that Act to whom duties, powers and functionsunder this Act are delegated under the Magistrates' Court Act 1989;"infringement warrant" means a warrant issued under Part 6;"issuing officer" means(a) a person appointed by an enforcement agency to issue or serve an infringement notice in respect of aninfringement offence; or(b) a prescribed person or person who is a member of a prescribed class of person;

"lodgeable infringement offence" means an infringement offence prescribed under this Act to be an infringementoffence which is enforceable under this Act;END QUOTE

It does however claim;QUOTE

"infringements registrar"(a) means a registrar within the meaning of the Magistrates' Court Act 1989 who is a registrar on whomfunctions under this Act or the Magistrates' Court Act 1989 have been conferred in respect of any

proceeding or class of proceeding or procedure under this Act; and(b) includes any deputy registrar employed pursuant to section 17 of that Act to whom duties, powers andfunctions under this Act are delegated under the Magistrates' Court Act 1989;

END QUOTE




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If the Infringement Registrar is a Registrar of the Magistrates Court of Victorias then I view theterm "deemed" ("2) An enforcement order is deemed to be an order of the Court.") is not appropriate, asany order of a Registrar of any Court ordinary can be held to be a Order of the Court unless a

party objects to it, as I did, and then a hearing DE NOVO must be granted. Upon that basis theOrder of the Registrar seizes to exist once a hearing De Novo is undertaken.In my view the legislation known as Infringement Act 2006 is deliberately designed to turn theMagistrates Court of Victoria for financial benefits of the Government as well as those operatingthe scheme as a closed court without DUE PROCESS. If the infringement Registrar was to bevalidly operating as a Registrar of the magistrates Court of Victoria then the Infringement Act2006 must show the provisions for a alleged infringement offender to be able to file anydocuments in opposition of the alleged claims by the enforcement agency.

http://www.heraldsun.com.au/news/more-news/nsw-drivers-stung-with-mistaken-citylink-charges/story-fn7x8me2-1226265158730QUOTE

NSW drivers stung with mistaken CityLink charges

Greg Thom

From:Herald Sun

February 08, 2012 12:00AM

Thousands of motorists have been mistakenly charged for using CityLink. Picture: MarkSmith Source: Herald Sun

A BILLING bungle has resulted in thousands of motorists being charged for travelling on CityLink

despite being nowhere near the toll road.

New South Wales drivers with the same registration plates as Victorians were stung up to $7 a trip for drivingon the network, despite being thousands of kilometres away.

While the toll operator has vowed to issue a full refund, Victorian drivers who thought they might have had afree ride won't be so lucky.

They will have to cough up the cost of their trips.

CityLink yesterday was checking up to 10,000 interstate licence plates to determine how many people wereeligible for a refund.

The issue affects those who travelled on the toll road between mid-December and Friday, when it wasdetected in a review.

The embarrassing mistake came on the day the tollway's operator, Transurban, revealed a $96.7 million profit.

Related Coverage

NSW drivers charged with VIC tolls Courier Mail, 1 day ago

Victorian toll for Sydney drivers The Daily Telegraph, 1 day ago

Investors in the clearwayHerald Sun, 1 day ago

Glitch delivers toll slug interstate The Australian, 1 day ago

Lynch has faith in Transurban driversHerald Sun, 9 days ago

End of sidebar.Return to start of sidebar.CityLink-generated revenue surged 8 per cent to $235.4 million in the six months to December, comparedwith the same period in 2010.




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CityLink general manager Elizabeth Mildwater said the problem had been isolated and refunds were on theway."We apologise for the inconvenience caused and would like to assure affected customers that they will not beout of pocket," she said."We are going through the process of reversing the incorrect charges and this may take a few days to comethrough." Ms Mildwater said it was believed only a small percentage of customers had been affected.

END QUOTE

What the article shows is that of mid December 2011 about 10,000 NSW drivers may have been

affected. but it was not until 8 February 2012 (outside the ordinary allowable time to make thepayment demanded by the Infringement Notice) before it was reported that it was admitted to bean error. People may have been overseas or elsewhere, unaware of the Infringement Notice thatmay have been delivered in their mailbox, and yet no provision exist for them to object to theInfringement Notice, by the time they return to their homes and discover the allegedinfringement accusation. Others who may have travelled in that time on the freeway but didn'tcommit any offence may wrongly hold to have been in offence. After all the system that shouldoperate should be as such as to be trustworthy and where then a possible 10,000 motorist mayhave been wrongly issued a fine, just on that occasions alone then this place grave doubts aboutthe system used.It also places a question as to the privacy of the NSW drivers for their details having been

accessed regardless of not having committed any offences. What we have is a private operatorgoing about delving into peoples private details causing embarrassment to them in the processand upsets and those people may assume that because their precise details were known then itmust be applying to them, only to discover that this private operator simply has unlimited accessand basically in my view shows a total disregard to what the "Privacy Act" stands for.

What this all also indicates is the lack of transparency as to the filing process and the conduct bythe purported Infringement Registrar. Who is the Infringement Registrar or the DeputyInfringement Registrar really? What is the relevant name of the person and what was the timeand date of the hearing? How many of the NSW drivers, or that any other driver were wronglyissued with an Infringement order regardless of their innocence of any wrongdoing, where theInfringement Act 2006 prevents them to file any objection against any Infringement Noticelodged in the Infringement Court? Who really is the "enforcement agency" when for example Ican receive correspondences from the Police, the Sheriff and Civic Compliance Victoria" allseemingly dealing with the same matter? Surely, any accused has a right to know with whom heis dealing and be provided with the precise details of the allegations lodged in the Infringementcourt, before he might exercise the right to object to any material/details lodged with theInfringement Court and well before the Infringement Registrar in an "open court' hears anddetermines the matter considering what both parties may have submitted.

What we now have is that the Infringement registrar has basically been set up to issue

Infringement Notices and issuing Infringement orders in total disregard ofDUE PROCESS OFLAW, where an accused can seek to object to the jurisdiction of the court as well as submit anymaterial/details he may deem relevant for the case.Indeed, a person may have committed an offence due to excruciating circumstances, such as

being severely injured and driving to a hospital. I recall that during 2012 I found my leg, of arecent operation, to suddenly open up and because of the large wound on the left leg decided toimmediately drive myself to the hospital. While I was cautious not to exceed speedlimits,nevertheless in the circumstances such as this it could eventuate that a driver may be faced withthat every second can mean the difference of life and dead and that ordinary a Court of lawwould consider this before passing judgment. Clearly the Infringement Court doesn't provide for




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any such opportunity. It leave it at most up to the police officer to determine if the profferedexcuse is acceptable, but a camera used for detecting speed cannot consider this.I had this incident where I desired to go to the Art Centre in Melbourne but found , too late, to beheading into the tunnel to Richmond. I immediately drive back from Richmond to the Art Centreand parked there, obtaining a parking slip. That evening I wrote to the premier about the issuethat I held the signage was insufficient to avoid driving into the tunnel, in the circumstances ofthe traffic. I nevertheless received an Infringement Notice that I had not paid the toll fortravelling into the tunnel. However this was withdrawn when I forwarded a copy of mycorrespondence to the Premier (then Steve Bracks) and a copy of the parking slip.what however is to be considered is that if the issuing authority had not withdrawn theInfringement Notice then I would have had so to say hope in hell to combat the issue before anInfringement Registrar as there are no legal provisions for this.Likewise, as I eluded to in past correspondences when Banyule City Council in error issued anInfringement Notice that I had exceeded a 3 hours parking limit, this even so by their ownrecords I had parked fro 2 hours and 29 minutes, it took several months before they finallyunderstood that 2 hours and 29 minutes is less then 3 hours, and then finally withdrew theInfringement Notice. However, had they not, considering it took Banyule City Council about6months before finally withdrawing the Infringement Notice, then I would have had no

opportunity to still defend the matter before the Infringement Registrar because the system inplace doesn't allow for this. it would have been sheer and utter notice for me to elect from onsetto go to Court where I knew by the very details Banyule City Council provided that parking for 2hours and 29 minutes could never have been to exceed the 3 hour parking limit, and then lose aday to go to court, etc.

Nor can it be deemed appropriate that a Infringement Registrar accept the details, so to say,punched into a computer as reliable merely because they were provided by an "enforcementagency" without having regard to the actual records held by Banyule City Council and by thismay have issued Infringement Notices without allowing for any person so affected to oppose it,even so a competent Infringement Registrar would have so to say thrown out of the window thecase if he had been provided with the details of any driver having been alleged to have exceeded

a 3 hour parking limit when being recorded to have parked there for 2 hours and 29 minutes.what therefore is clear is that the legislation fails totally to ensure that any so called EX PARTEhearing (if one can call it to be so) then the "enforcement agency" must produce all relevantrecords upon which the Infringement Notice is issued. Including photo's and other records, andwhere it relates to camera's their approved testing certificate by the Commonwealth, etc.Without such provisions in legislation the entire system in my view is a elaborate scam ,involving Members of Parliament (having voted for such draconic legislation they knew or oughtto have known was designed to deny citizens of DUE PROCESS OF LAW, etc.), thegovernment, and those involved in the practice of acting as an enforcement agency and so toinvolving the Sheriff's Office..

Again:http://www.heraldsun.com.au/news/more-news/nsw-drivers-stung-with-mistaken-citylink-charges/story-fn7x8me2-1226265158730QUOTE

New South Wales drivers with the same registration plates as Victorians were stung up to $7 a trip for drivingon the network, despite being thousands of kilometres away.

While the toll operator has vowed to issue a full refund, Victorian drivers who thought they might have had afree ride won't be so lucky.

They will have to cough up the cost of their trips.




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CityLink yesterday was checking up to 10,000 interstate licence plates to determine how many people wereeligible for a refund.

The issue affects those who travelled on the toll road between mid-December and Friday, when it wasdetected in a review.

The embarrassing mistake came on the day the tollway's operator, Transurban, revealed a $96.7 million profit.END QUOTE

As such, I view that the Infringement Registrar cannot and shouldn't act on any Infringement

Notice that was lodged, but not filed! As the Infringement Act 2006 appears to be silent of anyfiling of an Infringement Notice then clearly the ordinary legal procedures ordinary applicable tothe Magistrates Court of Victoria must be considered to be applicable. The Parliament cannothave any powers to dictate to any Court that a document "lodged" but not filed according to therules of the Court nevertheless can be used for litigation, merely because the party happens to

benefit the government, whereas the same is not applicable for an ordinary citizens.Again:.Hansard 8-3-1898 Constitution Convention Debates

QUOTESir JOHN DOWNER.-Now it is coming out. The Constitution is made for the people and the states on

terms that are just to both.END QUOTE.

Therefore, any legislation enacted within constitutional powers must likewise be just betweenstate and its people!

Also, the Commonwealth Constitution act 1900 (UK) provides for 4 separate powers1. The executives (Government of the Day) limited to "uniform" application of laws through the

Commonwealth of Australia.2. The Parliament (legislators)3. Judiciary4. (Federal level only) Inter-State Commission (Permitted to make decision in a non-uniform

manner as may be required relevant to the needs of each particular state) under supervision ofthe High Court of Australia as to appeals only in regard of "error of law", but not being part ofthe Judiciary nor under the control of the government, this, as its powers as to Trade andCommerce is derived from the Constitution itself, which may be complimented by any Act ofParliament to provide additional powers in other matters to which the Parliament possesses thelegislative powers, being health funding, education funding, etc.

We now have to consider the following:QUOTE

114 States may not raise forces. Taxation of property of Commonwealth or State

A State shall not, without the consent of the Parliament of the Commonwealth, raise or maintain any naval or

military force, or impose any tax on property of any kind belonging to the Commonwealth, nor shall theCommonwealth impose any tax on property of any kind belonging to a State.

END QUOTE

In my view the Commonwealth has no constitutional powers to dictate the Courts that it must beoperating with a ABN/ACN number as if it is a registered business for GST purposes. This, as itwould undermine the Courts function. so to say it would leave the Government to interfere withthe Courts processes by making clear that if the Court were in a certain litigation rule adverse tothe government then it may increase specific taxation for the Courts, or other such draconicmeasures. In my view the Chief Justice is responsible for the conduct of the Court and liable toanswer for monies used from Consolidated Revenue funds. If we cannot trust the Chief Justice

then he shouldn't be in that position in the first place. the Chief Justice task is to ensure that thePage 12 23-7-2013 Re: COMPLAINT - COURT etc Obligation Number 1106575301




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courts remain viable and acts appropriately and not engage in misuse/abuse of public monies asafter all it is designed to enforce the law, not to abuse it.In my view the GST registration of the Court therefore is unconstitutional and shouldn't be

permitted to be used. the mere usage of an GST identification being it ABN and/or ACN itself isfor the Court to submit to the Executive rather then to remain impartial.How indeed could the Court make an impartial ruling as to the proper application of the GSTlegislation where it is deemed to accept that it is valid by using it for itself, where a party mayseek to challenge the validity of the legislation?

Forge v Australian Securities and Investments Commission [2006] HCA 44 (5 September 2006)QUOTE

12. That is, if the institutional integrity of a court is distorted, it is because the body no longer exhibits in

some relevant respect those defining characteristics which mark a court apart from other decision-

making bodies.

END QUOTE

And;Forge v Australian Securities and Investments Commission [2006] HCA 44 (5 September 2006)QUOTE

66. As explained inEbner v Official Trustee in Bankruptcy, effect has been given to the fundamentalimportance which is attached to the principle that a court must be independent and impartial by the

development and application of the apprehension of bias principle. Even the appearance of departure fromthe principle that the tribunal must be independent and impartial is prohibited lest the integrity of thejudicial system be undermined. As further explained inEbner, the apprehension of bias principle admits ofthe possibility of human frailty and its application is as diverse as human frailty. Thus when reference is madeto the institutional "integrity" of a court, the allusion is to what The Oxford English Dictionary describes as"[t]he condition of not being marred or violated; unimpaired or uncorrupted condition; original perfect state;soundness". Its antithesis is found in exposure, or the appearance of exposure, to human frailties of the kindsto which reference was made inEbner.

END QUOTE

AndForge v Australian Securities and Investments Commission [2006] HCA 44 (5 September 2006)QUOTE

208. The International Covenant on Civil and Political Rights ("the ICCPR") provides, relevantly, in Art 14(1),

that:"[a]ll persons shall be equal before the courts and tribunals. In the determination of ... his rights andobligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent,independent and impartial tribunal established by law."This provision supplements Art 10 of the Universal Declaration of Human Rights. There are analogous

provisions in each of the regional human rights instruments[206].209. In order to decide whether a court or tribunal may be considered "independent" for these purposes,

regard is usually had (amongst other things) to the manner of the appointment of its members; their

terms of office; the existence of effective guarantees against outside pressure; and the question whether

the body presents an appearance of independence and impartiality

END QUOTE

As set out below the colonial "sovereign" Parliaments became State "constitutional"Parliaments. You cannot have that the Federal "constitutional" Parliament cannot overrule theChapter III Courts, such as the High Court of Australia, yet a State parliament could be deemedto be a "sovereign" Parliament and then could overrule the State Courts exercising Federal

jurisdiction. either Chapter III courts are standing alone courts not under the control of theFederal parliament as this is a "constitutional" Parliament and in line with this the StateParliaments are also "constitutional" Parliaments or they all have to be considered subject toParliaments grills. To claim that there are two versions of Chapter II courts would make amockery of the Court system.

Neither could federal jurisdiction be invested in a State Court not being of the status as the HighCourt of Australia as to be an independent judiciary (see also Kable). Once it is accepted that the

State Court invested with federal jurisdiction are not under the control of the State ParliamentsPage 13 23-7-2013 Re: COMPLAINT - COURT etc Obligation Number 1106575301




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because those Parliaments are also "constitutional" Parliaments, in that the States are created bythe force of section 106 of the Commonwealth of Australia Constitution Act 1900 (UK) then itflows from that that no state can amend its own constitution as purportedly was done sincefederation, but must rely upon the State electors to veto or approve of any amendment of therespective State constitution.The sinister conduct by States to allow the purported reference of legislative powers to theCommonwealth but so with the real hidden agenda to enable the Commonwealth to adjudicate inmatters, is in my view unconstitutional, as the States cannot so to say give away to theCommonwealth directly or indirectly State judicial powers, as this requires legislation of a"sovereign" Parliament.

This matter is far more extensive then that can be canvassed in this correspondence and again asAuthor of books in the INSPECTOR-RIKATI series on certain constitutional and other legalissues I have canvassed this already extensively in the past.

http://www.theage.com.au/national/false-speed-readings-used-to-issue-tickets-20091007-gn8k.htmlQUOTE

theage.com.au

National

'False speed readings used to issue tickets'

STEVE BUTCHER

October 8, 2009

Afrain Asaf

A VICTORIAN police officer has alleged that some colleagues have corruptly used old readings from laserand radar devices to issue speeding tickets against unsuspecting motorists.Senior constable Afrain Asaf claimed yesterday in court she had seen other police officers retain previousreadings and show them to new ''offenders'' who queried their speed. She said she had been working with

colleagues when she saw the practice, described as ''retained readings'', happen a ''few times''.She told her barrister, Serge Petrovich, some colleagues had issued notices based on an estimation of thespeed and had used a correct reading kept from the previous person intercepted.She appeared in Ringwood Magistrates Court to plead not guilty to a charge of exceeding the speed limitafter she was detected by a colleague from the traffic management unit (TMU).Senior Constable Brett Shenton told the court he did not issue an infringement notice after detecting herspeed at 79 km/h in a 60 zone in Burwood at 9.05am on August 16 last year. But he was directed to fivedays later by acting Inspector James Cooke after a verbal direction by Senior Sergeant Kim Pluim.Mr Petrovich said she alleged this decision was partly motivated by a history of complaints about heralleged treatment she had made against the TMU office.This included her claims that while on sick leave, a dead rat with a note that read ''If you f---ing come backwe will kill you'' was left at her front door.The Iranian-born officer said she had been bullied, ostracised and suffered derogatory remarks about her

race, weight and sex life. Mr Petrovich said there had been continuing conflict at the TMU - made up ofWhitehorse, Boroondara and Monash units - that ''manifested'' itself against his client.Senior Constable Shenton told Mr Petrovich he knew one senior officer felt there was a political agenda toremove non-Whitehorse members from the TMU. He agreed he had heard ''retained readings'' beingdiscussed among some colleagues, but said it was ''just banter and joking'' and was not something ''anyoneseriously considered''.Senior Constable Asaf, who estimated her speed at between 60 and 65 km/h, said she had mentionedretained readings at work, but was told to ''pretty much mind my own business''.She said she was also scared of being further bullied or ostracised, but was now prepared to co-operate withthe Office of Police Integrity and the police ethical standards department.In finding the charge proved and fining her $200, with $42 costs, without conviction, magistrate LionelWinston-Smith said serious allegations had been raised, but he accepted the evidence of Senior ConstableShenton. Senior Constable Asaf is expected to appeal.




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END QUOTE

The following also ought to be considered where the Infringement Registrar doesn't provide areason of Judgment and so the affected person has no way of knowing if the InfringementRegistrar considered all relevant matters placed before the Court and if there was NATURALJUSTICE provided, as well as a proper consideration of admissible evidence and not ofinadmissible evidence, etc..

What we have now is that the implied bias exist because the purported prosecutor doesn't showup and the defendant is not notified of any hearing and so the Infringement Registrar sits for andon behalf of the prosecutor, to deal with the alleged claims of offence(s) taking the allegeddetails for granted. This is totally contrary to the adversarial system embedded in a Chapter IIIcourt. There is therefore an implied bias by the Infringement Registrar "assuming that one party ,the "enforcement agency" is in full disclosure of all relevant details, while it actually has afinancial interest not to do so with a denial to the defendant to challenge the manner in which theclaim is presented to the Infringement Registrar as to be correct or not in the circumstances.The following article must be understood to relate to a traffic court and not to a Chapter

III court, the latter having a higher standard of legal requirements to be followed!

http://www.articlesbase.com/football-articles/traffic-court-no-prosecutor-or-the-cop-is-acting-as-the-

prosecutor-are-both-legal-grounds-for-dismissal-202252.html

QUOTE

Traffic Court No Prosecutor or the Cop is Acting as the

Prosecutor are Both Legal Grounds for Dismissal!Posted: Aug 22, 2007 |Comments:1| Views: 3,801 |The state of New York decriminalized minor traffic offenses in 1934 with the creation of the 'civil trafficinfraction'. New York blazed the legal path that other states quickly followed in decriminalizing minor trafficoffense by also adopting the civil traffic infraction.

The creation of the civil traffic infraction allowed the courts to do away with costly jury trials for traffic

tickets. The courts reasoned that jury trials were not necessary because the infraction was a 'civil offense'carrying only a 'small' civil fine as a possible penalty and no possibility of jail time.

The next causality of the civil infraction was the prosecutor. Lawyers are expensive and therefore, manystates decided that the lawyer/prosecutor was not needed for civil traffic infraction cases the cop could bethe prosecutor. Some other states, such as California, correctly legally rationalized that the cop could not bedthe prosecutor (People v Marcroft (1992) 6 Cal.App.4th) However, a California court also (People v.Carlucci , 23 Cal.3d 249) concocted the irrational decision that no prosecutor was necessary to conduct a civiltraffic trial.

The decision to make the officer the prosecutor presents a great constitutional problem for traffic courts.Justice and the Constitution demands that courts are to be fair and impartial not favoring one side over theother. The court, by allowing the state to be represented by a non-attorney (the cop), is favoring the state over

the defendant. If the defendant elects to be represented in traffic court, the court demands that the defendantgo out and hire a Bar attorney at their expense.. Such treatment of the defendant by the court is indisputably

biased and blatantly unfair treatment and is solid grounds for dismissal of the defendant's traffic case.Civil traffic cases where there is no prosecutor present in the court are treated by traffic courts much like asmall claims court action. In small claims courts both sides simply tell their stories to the judge and areallowed to cross examine one another under oath and the judge is allowed to ask questions of both sides.

Traffic courts treat the traffic court hearing like a small claims court only to the degree that it serves theirpurpose (collection of revenue). Where it does not serve the court's purpose (threat of loss of revenue), theytreat traffic court cases like a different legal animal altogether. For instance, in a civil small claims court the

plaintiff must show up at the time of trial, or the case is dismissed. However, in a traffic trial where there is noprosecutor, the plaintiff (the state or the People) never shows up and never does ther court dismiss the case.




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Who is present in court to legally uphold the claim of the state or the People the defendant when there is noprosecutor? The judge? The Constitution requires the judge to remain fair and impartial. How about the cop?For the reasons explained already, the cop cannot be the prosecutor and in regards to California, an appealscourt in the Marcroft case ruled that the cop is the witness, no more, no less.

When there is no prosecutor, there is no one present in court who can legally uphold the claim of the state orthe People against the defendant. In this instance, the state or the People (the plaintiff) have legally abandonedtheir claim against the defendant in the exact manner as a plaintiff in any other civil court proceeding except

traffic.

Traffic courts are not concerned with justice or protecting people's rights under the Constitution, butmaximizing the collection of revenue is the traffic court's real and true agenda. Lest anyone be inclined to

believe otherwise, try challenging a traffic court judge sometime by moving to dismiss your traffic casebecause the state or the People have abandoned their claim against you by not having a prosecutor in court.Watch as the judge's temperament and demeanor instantly change. The judge will be quick to remind you thatthe state grants the court the right to try a civil traffic case absent a prosecutor. If that doesn't immediatelyshut you up, then the judge will invoke a judicially intimidating tone of voice accompanied by some strongfacial expressions, as the judge instructs you to move on to something else.

The abandonment of the state's or the People's claim for lack of prosecution is a raw nerve that traffic courtjudges do not want exposed in open court. Such a claim exposes to everyone the fraud of the court and thecourt's mere pretense at justice.

Slay your traffic ticket with Ticket Slayer!

Ticket Slayer has a National Traffic Dismissal Rate of 85% 92% in California

TicketSlayer.com

Author Contact: [email protected]

END QUOTE

The book "Law Made Simple" by Colin F. Padfield, LL.B.,D.P.A.(Lond.) on page 55:QUOTE

"The Rule against Bias. A true judicial decision can be reached only if the judge himself is impartial. This is

an obvious requirement in a court of law or a tribunal. In R. v Rand(1866) it was held that a judge isdisqualified where (i) he has a direct pecuniary interest, however small, in the subject-matter in dispute; or (ii)there is real likelihood that the judge would have a bias in favour of one of the parties.

For example, if a judge is related to, or is a friend of, one of the parties to a dispute there would be reallikelihood of bias. It is immaterial whether a judicial decision was in fact biased, for as was said by LordChief Justice Heward inR. v Sussex Justices, ex parte McCarthy (1924): 'Justice should not only be done, butshould manifestly and undoubtedly be seen to be done.'

As an example of pecuniary bias we may quote:

Dimes v. Grand Junction Canal(1852). Lord Chancellor Cottenham made decrees in a Chancery suit infavour of a canal company. Lord Cottenham held several shares in the company.Held: (by the House of

Lords): that the decrees be set aside on the ground of pecurniary interest. No bias was proved in fact, norcould it be shown that Lord Cottenham was in any way influenced by his shareholding.

As an example of likelihood of bias we may quote:

R. v Sussex Justices, ex parte McCarthy (1924).A was summoned before magistrates for a motoringoffence. The acting clerk to the justices was a member of a firm of solicitors representing A in civil

proceedings arising out of the same accident. The acting clerk did not advise the magistrates, but he retiredwith them to consider their decision.Held: that as the acting clerk was connected with the case in the civilaction he ought not to advise the magistrates in the criminal prosecution. Conviction accordingly quashed,despite the fact that the acting clerk took no part in the decision to convict and had not been asked by the

justices to give his opinion or advice. "END QUOTE




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.Director of Public Prosecutions v Serratore Nos. Ca 40642/95 and Crd 72680/95 Criminal Law and Procedure -

Statutes - Human Rights - Telecommunications - Law Reform [1995] NSWSC 154 (14 November 1995)

QUOTE It is well established that the Court should not impute to the legislature an intention to interferewith fundamental rights, freedoms or immunities; such an intention must be clearly manifested by

clear and unmistakable language: Coco v The Queen [1994] HCA 15; (1994) 179 CLR 427 at 436-437. ...The close link between the fundamental right to be secure against trespass and the right to privacy isillustrated by the observations by Lord Scarman in Morris v Beardmore (1981) AC 446 ... Parliament itself

has ... recognised, in the context of telecommunications, the fundamental importance of protecting individualprivacy, although also recognising that the value of privacy can be over-ridden where it conflicts with othersignificant community values, provided that detailed safeguards are observed. The recognition and protectionof privacy in the Intercept Act, in my view, justifies a restrictive approach to the construction of the statutoryexceptions to the prohibitions on interception. ... where there is a genuine doubt as to whether the statutorylanguage authorises the use of intercept information for a particular purpose, that doubt should be resolved infavour of a narrow, rather than a broad construction of the statutory authorisation.

END QUOTE

.R v. Lusink and another; Ex Parte Shaw (1980) 6 FLR 235 and 236

QUOTE

However in some cases the words or conduct of a judge may be suck as to lead the parties reasonably to think

that the judge has prejudged an important question in the case, and then prohibition may issue. Of course, thecourt which is asked to grant prohibition will not lightly conclude that the judge may reasonably be suspectedof bias in this sense; it must be "firmly established" that such a suspicion may reasonably be engendered inthe minds of the parties or the public, as was made clear by the court in R v Commonwealth Conciliation andarbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546 at 553-4, in the passage cited in R vWatson; Ex parte Armstrong (132 CLR at 262).

The critical question, however, is not whether a judge believes he or she has prejudged a question, butwhether that is what a party or the public might reasonably suspect has occurred (see per Lord DenningMR in Metropolitan Properties Co. (FGC Ltd v Lannon (1969) 1 QB 577 at 599, a judgment cited withapproval by this court in R v Commonwealth Conciliation and Arbitration Commission; Ex Parte AnglissGroup (1969) 122 CLR 546 at 553; In some circumstances repeated denials of prejudging might well conveythe impression of "protesting to much"...

END QUOTE.

Dow Jones & Company Inc v Gutnick[2002] HCA 56 (10 December 2002)QUOTE

1. In this regard, the estoppel was seen to be an aspect of "the extended principle expressed by SirJames Wigram VC inHenderson v Henderson[59]"[60].

2. It was said inHenderson v Henderson that:

"where a given matter becomes the subject of litigation in, and of adjudication by, a Court ofcompetent jurisdiction, the Court requires the parties to that litigation to bring forward theirwhole case, and will not (except under special circumstances) permit the same parties to open thesame subject of litigation in respect of matter which might have been brought forward as part ofthe subject in contest, but which was not brought forward, only because they have, fromnegligence, inadvertence, or even accident, omitted part of their case."[61]

END QUOTE

City of Melbourne v Barnett [1999] VSCA 171 (21 October 1999)

QUOTE

18. The judge's reasons make it a very difficult matter for this Court to determine on what basis his Honourdecided that there was repair carried out to the hole in the bluestone kerbing, or misfeasance by theCouncil, or, for that matter, negligence on the part of the Council as a cause of the plaintiff's injuries. Inthis context it is well-established that the extent of a judge's duty to give reasons will depend upon the

circumstances of the case, but that reasons given will be inadequate if an appeal court is unable to

ascertain the reasoning upon which the decision is based: Sun Alliance Insurance Ltd. v. Massoud




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[1989] V.R. 8 per Gray, J. (with whom Fullagar and Tadgell, JJ. agreed) at 18; Pettit v. Dunkley [1971] 1N.S.W.L.R. 376 per Moffatt, J.A. at 387-388; Soulemezis v. Dudley(Holdings) Pty. Ltd. (1987) 10N.S.W.L.R. 247 per McHugh, J.A. at 279-280; Cropp v. Transport Accident Commission [1998] 3 V.R.357 at 376. In our view, the reasons given by his Honour, with respect, were wholly inadequate in the areasalready mentioned.

END QUOTE.QUOTE In the Marriage of Tennant (1980) 5 FLR 777 at 780

As no grounds for appeal are required to be specified in the notice of Appeal, which, on filing institutes the

appeal (reg 122), there is no limitations of the scope of the appeal and all findings of fact and law made in thelower court in relation to the decree appealed are in challenge and cannot be relied on by the appellant or therespondent. All the issues (unless by consent) must be reheard. This of course brings me to the point of theabsence of reason for the magistrates decision in this case. Perhaps reasons were given orally but not recordedfor the record. Apart from the requirement of such reason for the purpose of the appeal process, there is the

basic ground of criticism that litigants who go to court, put their witnesses up, argue their case and attempt tocontrovert the opposing case are entitled to know, if they lose, why they lost. If they are given no reason theymay be entitled to feel the decision against them was conceived in prejudice, bias, or caprice . In such a casenot only the litigant, but justice itself, is the loser.

Magistrates should realise, even more than they seem to do, that this class of business is not mere ordinarytrivial work, and they should d

130723-r clark attorney general & others-re complaint

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