Tuesday, October 8, 2013
MAYNES V CASEY
MAYNES V CASEY
There are 5 ways for one person to pass property on to
another person:
1. a gift
2. an act of inheritance through a signed and
witnessed Will & Testament.
3. a signed contract of sale
4. a signed and sealed court order
5. a crime.
Every court order removes property from one man
and gives it to another. Whether through a fine, the
removal of property of some kind, the jailing of a
man’s body.
Our common law guarantees that only a man or
woman in the role of a Stipendiary Magistrate or a
Justice can do that. And that person must have a
Commission sealed with the Royal Seal which holds
the power of the Magna Carta and the Habeas Corpus
Act 1862, guaranteeing justice has been done.
For that Stipendiary Magistrate or Justice to prove
they have that lawful authority to take your property,
they must sign the order and it must carry the seal of
the common law jurisdiction, the Law of the Land of
the Commonwealth of Australia.
23rd December 2010: Judge Margaret Sidis, a coram
in a civil law jurisdiction, stated on paper:
“The plaintiffs are to pay the defendants’ costs of the
proceedings as assessed or agreed.”
A Coram is a person that is not a judge, acting as a
judge. Coram Margaret Sidis did not, and has never,
signed that order. In fact, no justice or Stipendiary
Magistrate has signed that order to this day.
27th July 2012: Sally Nash, from SALLY
NASH & CO LAWYERS, on behalf of Geoffrey John
Casey & Samuel Ian Casey, began an action to
recover $141,196.59 from us.
1st November 2012: Registrar Tesoriero of the
Federal Magistrates Court, stated on paper that we
were bankrupt.
No Stipendiary Magistrate or Justice signed that
document, nor was it sealed. It was a piece of paper
with typing on it.
In a phone conversation with a particular judge in that
court during the following week, he stated, no judge
has signed that order and no judge will sign that order.
The High Court of the Commonwealth of Australia
stated in 4 CLR (important) cases that a Registrar
does not have the power to authorise an order and
cannot constitutionally be given that power.
Therefore, unless a stipendiary magistrate or a justice,
signs the order, it is null and void and any action that
proceeds is criminal.
November 2012 to current 2013: Using that null
and void piece of typing, unsigned by any judge in the
Federal Court:
1. Geoffrey & Samuel Casey’s lawyer Sally
Nash, appointed trustees over our estate -
Andrew John Scott and Scott Darren Pascoe
of PPB Advisory.
2. Paul Devery, the General Manager of Cowra
Shire Council, and Bill West, Mayor of Cowra
Shire Council, sacked Sue from her elected
position as a Councillor.
3. Janine Finlayson, Editor of the Cowra
Guardian viciously and with intent maligned
the good name of Sue in that newspaper.
4. Andrew John Scott and Scott Darren Pascoe
of PPB Advisory, placed a caveat over our
property, taking our interest in our land, but
leaving us to continue paying the mortgage.
5. Andrew John Scott and Scott Darren Pascoe
of PPB Advisory offered our property to a
neighbour, Alison Le Mesurier, a mate of
Geoffrey Casey.
6. Westpac Bank froze our wage account. On
being informed of the null and void order,
Larnie Mulford, the manager, contacted us 2
weeks later with an order signed by Registrar
Tesoriero, from Andrew John Scott and Scott
Darren Pascoe of PPB Advisory. That bank
still holds approx $2,500 of our wages &
refuses to release it.
7. Geoffrey & Samuel Casey’s lawyer Sally
Nash & Co, who is now also acting for Scott
Darren Pascoe and Andrew John Scott.,
forwarded a document, wherein Andrew John
Scott and Scott Darren Pascoe of PPB
Advisory, issued a NOTICE TO VACATE,
signed by Scott Darren Pascoe.
8. Vesna Bosancic, a Compliance Investigator
Enforcement Officer from ITSA (Insolvency
& Trustee Service Australia) has been
harassing us stating we needed to fill out
government forms listing all our assets.
Vesna was informed that she was using that
null & void order to make her demands and 2
weeks later she too had received an order
signed by the Registrar, from (you guessed it)
Andrew John Scott and Scott Darren Pascoe
of PPB Advisory.
9. Sally Nash, acting for Scott Darren Pascoe
and Andrew John Scott, filed a Claim to seize
our property and have us removed. The order
used here was also signed by the Registrar but
was a different document to that supplied by
the Westpac Bank.
10. Scott Darren Pascoe and Andrew John Scott
have taken our names off the Certificates of
Title to our land and replaced them with their
own. There is absolutely no mention of their
positions or the company they worked for.
These 2 men now claim ownership of our
property.
11. The Sheriff of New South Wales, Orange
office, Sergeant Michael Carpenter, has stated
in writing –
“All occupants are hereby given notice that
they must vacate the premises prior to
11:00:00 AM on Tuesday 8 October 2103,
otherwise action will proceed to evict you
without further warning. There is no further
extensions to this time frame unless initiated
by the Plaintiff.”
Later November 2012:
An article in the Cowra Community News, edited by
ex-councillor , entitled $20,000 Out Of Pocket.
(you can read this article at the end of this newsletter).
1. In this article Geoffrey Casey stated “costs for
he and his son….amounted to about $20,000.”
2. Geoffrey Casey stated that “he will not
receive any of that money, but will be out of
pocket by $20,000.”
3. Geoffrey Casey stated that the costs of
$141,196.59 belonged to his solicitors.
4. Geoffrey Casey had contracted with defence
barrister Julian Trebeck from YELDHAM
PRICE O’BRIEN LUSK, a major legal firm
specialising in the areas of professional
liability, legal malpractice and insurance
litigation.
Currently at 17th September 2013: We are
expected to voluntarily vacate our home for 37 years
on the orders of an unsigned piece of paper with
typing on it.
These are the facts Geoffrey Casey has presented:
1. Judge Margaret Sidis ordered that we should
pay Geoffrey John Casey and Samuel Ian
Casey’s costs pending an assessment or an
agreement.
2. Geoffrey John Casey is a solicitor. He knows
that anything he states in public can be used
against him and therefore must be the truth.
3. Geoffrey John Casey has stated in public that
his costs are $20,000.
4. Geoffrey John Casey has not given us a bill or
a costs assessment for that amount.
5. Geoffrey John Casey has stated that the
demanded $141,196.59 is owed to his defence
solicitors.
6. That does NOT include his costs.
7. Judge Margaret Sidis did not order us to pay
YELDHAM PRICE O’BRIEN LUSK, nor did
we hold a contract to pay them.
Remember Geoffrey John Casey – in that article –
stated twice, that the $141,196.59 is NOT his money.
If it is not his debt, then why is the actual debtor not
the one suing us?
Our personal belief is this –
1. Geoffrey John Casey holds or did hold legal
indemnity (insurance) as a solicitor.
2. The legal firm he employed in this matter was
and/or is a firm acting for that insurance
indemnifier.
3. YELDHAM PRICE O’BRIEN LUSK
specialize in professional liability, legal
malpractice and insurance litigation – not
common law trespass matters.
4. Geoffrey John Casey did not have to pay
YELDHAM PRICE O’BRIEN LUSK before
starting this matter because they have already
been paid by that insurance indemnifier.
5. Geoffrey John Casey is suing us to recover the
insurance companies costs.
6. Geoffrey John Casey is acting in fraud as a
third party collector for that debt.
Geoffrey John Casey, in concert with the
principals of YPOL, Simon Lusk and Robert
Finnigan, Sally Nash, Andrew John Scott and Scott
Darren Pascoe – is now asking for the amount of
• $142,589.26
• PPB’s future estimated costs of $56,141.51
• our mortgage with the Commonwealth Bank
of $138,000
• other unidentified costs
Scott and Pascoe have valued our estate at $685,000,
half its real value.
• They will seize our livestock and equipment
to be sold.
• They will sell our tools of trade.
• As bankrupts, our wages will be held at
$40,000 per year for 3 years.
• Anything over that amount they seize.
• We are ’allowed’ a vehicle to the value of
$6,000.
• We can not travel without permission.
• We will have a sad and sorry credit rating for
7 years.
In the event we behave ourselves, the bankruptcy will
finalize after 3 years. If we don’t, they can keep us
bankrupt as long as they want.
So this is our case for you all to consider.
• Judge Sidis ordered us to pay the defendant’s
costs.
• She did not sign that order so it has no
authority, but they have acted on it.
• Defendant’s costs are $20,000
• Defendants have not asked us to pay their
costs.
• Defendants are bankrupting us on behalf of
other persons.
• Those other persons want $142,589.26 and
other costs.
• Our property has 12 individual titles, 2 – 3 of
which could cover the supposed debt, yet they
have seized the whole 12.
• The potential total of their gain may be in the
vicinity of $1 million.
I stated at the start of this document that there are 5
ways for one person to pass property on to another
person:
1. a gift
Lindsay & I have not given our
hard-earned home to Geoffrey Casey
and his mates.
2. an act of inheritance through a signed and
witnessed Will & Testament.
Neither Geoffrey Casey or his mates
are in our wills.
3. a signed contract of sale
We have not sold our home and land
to Geoffrey Casey and his mates,
nor do we plan to.
4. a signed and sealed court order
The court orders at every stage of
this fraud remain unsigned by any
man or woman holding any lawful
commission under seal.
5. theft.
We believe we are the victims of the crime of fraud
and theft.
Every man and woman in Cowra is now being given
the chance to act as the Jury in a real-life crime that is
being perpetrated against an ordinary couple in this
community by a man who believes he has the power
to do so. That man is a solicitor named Geoffrey John
Casey.
Geoffrey John Casey and Samuel Ian Casey are using
the legal system to steal our wealth. We are in our
early 60’s and have spent our lives working hard.
Geoffrey John Casey may not be getting any of that
$142,589.26, as he has publicly stated, but as the
agent of this crime, as the person whose name is
making it appear legal – I wonder what his share of
the $1 million bonus will be?
Michael Carpenter, the Sheriff from Orange will
apparently be assisting in the theft by throwing us off
our property at 11am on Tuesday 8th October 2013
and he will bring the police.
Michael Carpenter will be doing that for a man who
has never sent us a bill for his costs and using the
authority of a piece of paper with typing on it.
Common law is about the living folk protecting and
defending other living folk from harm by criminals.
We invite you all to be at our property on the
morning of the 8th October, to simply watch & record
a real crime in action.
Bring a video cam, recording devices, etc. Please
bring your own food, drink and toilet paper – we can
supply the ‘long drop’ and a working barbecue.!
16km between Woodstock and Wyangala Dam on the
dam road – turn at the signs.
For more information, you are very welcome to
Email: flora@reachnet.com.au
Phone: 02 6345 1254
Sue & Lindsay (Sam) Maynes
Berkeley
Bullfrog Road
Woodstock NSW 2793
------------------------------------------------
You may all ask – why don’t you just pay the
amount, why give yourself grief?
The answer is simple, the debt is not ours and
Geoffrey John Casey has stated that in public.
We will not be made to pay a debt that does not
belong to us. That would mean we have to agree to
be robbed. That we will not do.
This whole case is part of a class action seeking
direction in the International Courts of Human
Rights. Each of the people listed have been placed
on their Vicarous Liability to provide the lawful
authority by which they have pushed this crime
against us. When the class action wins over there,
each of them will be asked to answer that question
in front of a real judge in a court of the People of
the Commonwealth of Australia.
Our trust and faith is in our LORD God who said
in Romans 14:10:
“So then each of us shall give account of himself to
God.”
The men & women of Cowra and
District are invited to be witnesses in a
real live drama!
Maynes v Casey
$20,000 out of pocket
Solicitor debunks rumour of windfall
in disqualified councillor’s court saga
COWRA solicitor, Geoff Casey, has scotched a rumour gaining currency in the community that he will receive some or all of the
$141,196.59 being sought from disqualified Cowra Shire councillor. Sue Maynes, and her husband Sam.
The judgment is the result of the couple’s failed trespass action against Mr Casey and his son, and appeals to higher courts.
Mr Casey, of Garden & Montgomerie, has told CCN that he will not receive any of that money, but will be out of pocket by about
$20,000 now that the trespass action has been finalised in favour of he and his son, Sam Casey.
Trespass proceedings were initiated by Mr and Mrs Maynes after Sam Casey tried to serve them with statements of claim when
Cowra Shire Council sued for non-payment of rates, Mr Casey says.
The co-defendants named in the Maynes’ action were Cowra Shire Council and Geoff and Sam Casey, claiming more than
$750,000 for trespass and breach of privacy.
The three parties defended the proceedings, says Mr Casey, but the Mayne’s the dropped proceedings against Cowra Shire and
were ordered to pay its costs.
Mr Casey says costs for he and his son to attend the six-day hearing in Sydney, including travel, accommodation and general
expenses and loss of earnings from their work, amounted to about $20,000.
In a Letter to the Editor received by CCN this week, Mr Casey says the hearing before Justice Dianne Truss, in the Sydney District
Court, returned a verdict for both father and son against Mr and Mrs Maynes, who were directed to pay costs.
But the couple then appealed to the New South Wales Supreme Court, Mr Casey writes
“They lost the appeal. They were directed to pay the costs of the application,” his letter states.
“(They) then sought leave to appeal to the High Court of Australia.
“They were refused leave and orders to pay the costs of that application.
“Our solicitors (for Geoff and Sam Casey) then filed with the (New South Wales) Supreme Court a bill of costs which resulted in
the costs being assessed at $141,196.59.”
Mr Casey has told CCN that that sum, the subject of the Maynes’ bankruptcy judgment, is owed to his defence solicitors and not to
him.
http://www.cowracommunitynews.com/viewnews.php?newsid=2330&id=1
Monday, October 7, 2013
NOTICE OF A CONSTITUTIONAL MATTER: BY LE THUAN PHAM
Notice of a Constitutional Matter served on the Attorneys General, Federal and State
Inbox
x
chas x
5:23 AM (2 hours ago)
to fire, info, Ben, FKLegal, Tamar_Hopkins, senator.brandis, office, robert.clark, Attorney, Minister.Misch., agd, Brian.Wightman, corbell, john.elferink, Paul, priscilla, office, greg.barber, Colleen, sue.pennicuik, richard.dalla-., christine.camp., vplrc, andrew.homer, helen.mason
Dear Attorneys General, Federal and State,
1. You are hereby notified and served with a Notice of a Constitutional Matter on the conduct of the Australian Judiciary including the High Court Australia;
2. We believe it to be a conspiracy to pervert the Crimes Act 1914 s42, s43, s44, inter alia;
3. We seek to know if the Commonwealth will comply with its own laws, leaving aside
international laws and treaties;
4. We seek to know if the Attorney General and the Commonwealth Senate will continue to conspire to pervert the Australian Constitution, in their attempt to profit from their proceeds of their crime against humanity, including Aborigines, Refugees and other Australians.
Reply to
Robert Alan Thorpe
(Djuran Bunjileenee Borun Mundundarung)
175/110 Elizabeth St, Richmond 3121
PS. to the YouthLaw Centre, we seek that you provide us with the legal documents and any appeals you are seeking against the Williams (?) decision, against your client and he can contact us asap
======================
IN THE HIGH COURT OF AUSTRALIA
[Melbourne] REGISTRY No. of 2012
BETWEEN:
Robert Alan Thorpe
(Djuran Bunjileenee Borun Mundundarung)
First Plaintiff
Krauatatungalung Tjapwhurong Aborigines People
Second Plaintiff(s)
and
Denise Weybury (Registrar High Court Australia)
First Defendant
Rosemary Musolino (Registrar High Court Australia)
Second Defendant
Attorney General (Commonwealth Australia)
Third Defendant
Robert William Clark, Attorney General (State of Victoria)
Fourth Defendant
President of Australian Human Rights Commission
(Commonwealth Australia)
Fifth Defendant
Victorian Equal Opportunity and Human Rights Commission (VIC) Sixth Defendant
Simon Paul Whelan (Court of Appeal Victoria)
Seventh Defendant
Peter Norman Vickery (Court of Appeal Victoria)
Eighth Defendant
Geoffrey Arthur Akeroyd Nettle (Supreme Court Victoria)
Ninth Defendant
Marcia Ann Neave AO (Supreme Court Victoria)
Tenth Defendant
Gregory Howard Garde AO (Supreme Court Victoria)
Eleventh Defendant
Karin Leigh Emerton (Supreme Court Victoria)
Twelfth Defendant
Nemeer Mukhtar (Supreme Court Victoria)
Thirteenth Defendant
President VCAT Victoria (VCAT Victoria)
Fourteenth Defendant
Prothonotary (Supreme Court Victoria)
Fifteenth Defendant
Dep President Ian Lulham (VCAT Victoria)
Sixteenth Defendant
S/Member Cremean (VCAT Victoria)
Seventeenth Defendant
Principal Registrar (VCAT Victoria)
Eighteenth Defendant
Judicial Registrar Mark Pedley (Court of Appeals Vic)
Nineteenth Defendant
Shane Marshall (Federal Court Australia)
Twentieth Defendant
NOTICE OF A CONSTITUTIONAL MATTER
1. The Appellant gives notice that this proceeding involves a matter arising under the Constitution or involving its interpretation within the meaning of s 78B of the Judiciary Act 1903 (Cth).
Nature of constitutional matter
2. The constitutional issue raised by the Plaintiff’s application to the High Court Australia pursuant to COMMONWEALTH OF AUSTRALIA CONSTITUTION ACT - SECT 75, (the Constitution), and JUDICIARY ACT 1903 - SECT 38, inter alia, on a Question of Law relating to the Human Rights and Equal Opportunity Commission Act 1986 (Commonwealth), Charter for Human Rights and Responsibility Act 2006 (VIC), inter alia, is the jurisdiction of High Court Australia, to make a bare declaration as to the privileges, powers and immunities of the High Court Registrars, Supreme Court of Victoria, and Court of Appeal, administrative and or judicial arm of Victorian Civil and Administrative Tribunal and the Supreme Court Victoria, and Inconsistent Interpretation of the Charter, pursuant to s 36 and 39 of the Charter, inter alia;
The determination and or lack determination of this issue may raise for consideration s 109, 75, 98, 107, 108, 117, 118 of the Constitution, inter alia.
Facts showing that s 78B Judiciary Act 1903 (Cth) applies
3. For over 200 years of Australia’s colonization of The Great Southern land of Australia, a history of genocide and murder and rape of Aborigines peoples exists;
4. The new form of genocide is for the Australian Judiciary to collude with Executive branch of the Commonwealth and or the States, using as a private vigilante militia, in the form of the Federal and State Police forces to terrorise and murder Aborigines and Refugees, as well as other Australians;
5. And not to be properly investigated by statutory bodies and or the Judiciary;
6. Aborigines, Refugees and Australians alike need protection from the Australian Judiciary and their vigilante police forces and court officials;
7. The Conspiracy by the High Court Australia, and its registrars, Mussolino and Weybury, inter alia, to deny the Aborigines peoples (and Immigrants and refugees) access to an effective legal, and or lawful remedy; by abusing Rule 6.07 of the high Court Rules 2004; inter alia;
8. The tactic is to refuse to give reasons for judgements, in order to abuse the legal and lawful process of legal and lawful remedies under any statutory laws.
9. On March 4th 2013, I and Mr Le Tuan Pham submitted an Application to Show Cause, together with a Notice of a Constitutional Matter, a Summons, An Affidavit(s) in support and Outline of submission.
10. The Registrar Weybury indicated that she would apply Rule 6.07;
11. We sought her reasons why she would apply that rule, and she refused to provide any reasons;
12. I and Mr Pham feel vilified that we should be forced to comply with an ultra vires action of an Officer of the court in conspiring to pervert the Crimes Act 1914 s42, s43, s44, inter alia;
13. Keifel J authorised the Registrar’s unlawful racial discrimination and vilification; once again WITHOUT proper and lawful reasons;
14. Weybury refused to return to us other documents than the Notice to Show Cause, thus we have no way to confirm what the Registrar showed to the Kiefel J;
15. In an earlier Notice To Show Cause, the other Registrar Musolino, also played her game of perverting the Crimes Act 1914 s42, s43, s44, inter alia;
16. Crennan J also authorised the Registrar’s unlawful racial discrimination and vilification; once again WITHOUT proper and lawful reasons.
17. It is an abuse of judicial immunity that doesn’t apply, because unlawful discrimination based on race and disability amounts to “acting in BAD faith”.
18. We are amazed that two female voices on the High Court Australia do not understand unlawful discrimination; It’s what the Supreme Court of India, Justices Arijit Pasayat and Aftab Alam, New Delhi, Jan 6 2008 (UNI) The Supreme Court, a decolonised highest court of India, would call an “application of the mind to the matter”;
19. In other words, Crennan and Kiefel JJ were engaging in unlawful racial discrimination and vilification; once again WITHOUT proper and lawful reasons; there is no possible other reasons.
20. In Reggie Wurridjal, Joy Garlbin And Bawinanga Aboriginal Corporation V The Commonwealth Of Australia And Arnhem Land Aboriginal Land Trust, the Honorable Justice Michael Kirby suggesting that the Aboriginality of the applicants influenced the High Court decision.
21. In Reggie Wurridjal, Joy Garlbin And Bawinanga Aboriginal Corporation V The Commonwealth Of Australia And Arnhem Land Aboriginal Land Trust, the High Court erred on the false assumption that the Commonwealth would act honorably on justice compensation, thereby engaged not only in unlawful discrimination based on races, but also vilification based on race;
22. Kirby J seems to echo the following principle:
23. Mandamus will lie for an abuse of discretion where discretion has been exercised arbitrarily and capriciously or where discretion has been exercised in bad faith, Peavey Co. V. Corcoran 714 S.W.2d 943. In such instances the abuse amounts, in effect, to no discretion. Mandamus is warranted when the abuse is clear or results in a manifest injustice, Reis V. Nangle 349 S.W.2d 943. Mandamus will lie when an official refuses to act when he has a duty to act and refuses to do so.
24. In Tomasevic v Travaglini & Anor [2007] VSC 337 (13 September 2007), Justice Bell indicates that it is the duty of the judicial officer to assist the unrepresented litigant, when inept and corrupt lawyers in Legal Aid and other community legal centres, refuse to act on the written law, namely the Charter for Human Rights and Responsibility Act 2006 (VIC), inter alia
25. The conspiracy to pervert the rule of law and the Crimes Act 1914 s42, s43, s44, inter alia, has filtered down to the Supreme Court of Victoria and the Victorian Court of Appeal;
26. Applications by Mr Le Tuan Pham pursuant to the Charter to Court of Appeal, Whelan and Vickery, Nettle and Neave have refused to answer the question of an interpretation of the Charter or an interpretation of other statutes pursuant to the Charter;
27. When Mr Pham asked to have the orders and reasons authenticated by Whelan and Vickery, Nettle and Neave, the Court of Appeal refused to the do so;
28. Whelan and Vickery, Nettle and Neave refused to release an undoctored transcripts of proceedings;
29. The Plaintiff instructed Mr Pham to submit an application under the Administrative Law Act, for himself and the Aborigines people;
30. The prothonotary conspired to remove the Plantiff’s name from the proceedings without his consent;
31. An appeal from the Associate Justice Mukhtar as to the validity of the Prothonotary’s ultra vires action to the Supreme Court Judge Emerton;
32. Emerton J refused to consider the facts and evidence in the Appeal Book, including the Plaintiff’s Affidavit;
33. Emerton J allowed the Victorian Attorney General, Robert Clark and his lawyers, to interfere with proceedings and conspired with the Real Estate Agent, Mr Tony Rachele, in order to rort money from the defendant Ms Minh Nguyen;
34. Emerton J could not get the facts correct and had to be told by the lawyers of the Attorney General of her ineptitude;
35. When the Plantiff was in Queensland, Mr Pham asked that Emerton J allow the Plaintiff enough time to come speak for himself,
36. Emerton J refused without reasons;
37. According the Supreme Court of India, Emerton J is applying her mind to the matter in a way that breaches the Discrimination Act in perverting the Crimes Act 1914 s42, s43, s44, inter alia;
38. Emerton J was brazenly ultra vires because the High Court Australia authorised unlawful disctimination based on race in Reggie Wurridjal, Joy Garlbin And Bawinanga Aboriginal Corporation V The Commonwealth Of Australia And Arnhem Land Aboriginal Land Trust;
39. Emerton J and the Victorian Civil and Administrative Tribunal including the President of VCAT (Garde J) and the Deputy President I. Lulham denied Mr Pham medical care and hospitalisation by refusing his medical certificate from a major hospital; Application of the mind to the matter;
40. Breaches of the Charter: inter alia
8. Recognition and equality before the law
(1) Every person has the right to recognition as a person before the law.
(2) Every person has the right to enjoy his or her human rights without
discrimination.
(3) Every person is equal before the law and is entitled to the equal
protection of the law without discrimination and has the right to equal and
effective protection against discrimination.
41. 13. Privacy and reputation
A person has the right-
(a) not to have his or her privacy, family, home or correspondence
unlawfully or arbitrarily interfered with; and
(b) not to have his or her reputation unlawfully attacked.
42. 24. Fair hearing
(1) A person charged with a criminal offence or a party to a civil proceeding
has the right to have the charge or proceeding decided by a competent,
independent and impartial court or tribunal after a fair and public hearing.
43. 10. Protection from torture and cruel, inhuman or degrading treatment
A person must not be-
(a) subjected to torture; or
(b) treated or punished in a cruel, inhuman or degrading way; or
(c) subjected to medical or scientific experimentation or treatment
without his or her full, free and informed consent.
44. An attack on Mr Pham is an attack on the Plaintiff, the Aborigines peoples and other Australians;
45. The Plantiffs are denied competent, independent and impartial court or tribunal after a fair and public hearing;
46. In addition to denying Mr Pham the ability to seek medical assistance, Victorian Supreme court Judge Williams, has indicated that the conduct of the Victorian Police cannot be properly investigated internally or by a competent, independent and impartial court or tribunal after a fair and public hearing;
47. All this stems from the ultra vires decision of the High Court Australia in Reggie Wurridjal, Joy Garlbin And Bawinanga Aboriginal Corporation V The Commonwealth Of Australia And Arnhem Land Aboriginal Land Trust, and the conduct of the Crennan, and Kiefel JJ in abusing the rule 4.06 of the High Court Rules 2004.
48. Authorities:
a. Momcilovic v The Queen [2011] HCA 34 (8 September 2011)
b. Kostas v HIA Insurance Services Pty Limited [2010] HCA 32
c. Gurnett v The Macquarie Stevedoring Co Pty Ltd [No 2][126]
d. University of Wollongong v Metwally (1984)
e. Tomasevic v Travaglini & Anor [2007] VSC 337 (13 September 2007)
f. Mandamus will lie for an abuse of discretion where discretion has been exercised arbitrarily and capriciously or where discretion has been exercised in bad faith, Peavey Co. V. Corcoran 714 S.W.2d 943. In such instances the abuse amounts, in effect, to no discretion. Mandamus is warranted when the abuse is clear or results in a manifest injustice, Reis V. Nangle 349 S.W.2d 943. Mandamus will lie when an official refuses to act when he has a duty to act and refuses to do so.
FILED:
Robert Alan Thorpe
(Djuran Bunjileenee Borun Mundundarung)
Human Rights Defender
TO: The Respondents
AND TO: George Brandis QC
Attorney-General of the Commonwealth of Australia
senator.brandis@aph.gov.au,
AND TO: Greg Smith MP
Attorney-General of New South Wales
office@smith.minister.nsw.gov.au,
AND TO: Robert Clark MP
Attorney-General of Victoria
robert.clark@parliament.vic.gov.au,
AND TO: Jairod Bleigie MP
Attorney-General of Queensland
Attorney@ministerial.qld.gov.au,
AND TO: Michael Mischin MP
Attorney-General of Western Australia
Minister.Mischin@dpc.wa.gov.au,
AND TO: John Rau MP
Attorney-General of South Australia
agd@agd.sa.gov.au,
AND TO: Brian Wightman MP
Attorney-General of Tasmania
Brian.Wightman@dpac.tas.gov.au,
AND TO: Simon Corbell MLA
Attomey-General of the Australian Capital Territory
corbell@act.gov.au,
AND TO: Johan Wessel Elferink MLA
Attomey-General of the Northern Territory of Australia
john.elferink@nt.gov.au,
…………..………………………
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chas x
5:47 AM (1 hour ago)
to fire, bcc: me
Dear Rogerio, Berto, Hilda Zhang, Helen Tsigounis,
Friends, Stooges and other,
1. its taken a while but the papers are almost done,
2. If you have received the attachment the arguments are almost complete
3. As I said, there are 7 high court judges, you want them all to taint their name!!
4. I have named Crennan and Kiefel, so you just have to get to the Chief justice.
5. Just replace your own names and add your cases, and file them
Friday, October 4, 2013
THE COMMONWEALTH OF AUSTRALIA - BY SUE MAYNES
https://docs.google.com/document/d/1wTiTq8clLSehp-HWvRODlJ4N23UFD-jWYzESZxA99CQ/edit?usp=sharing
WA GOVERNMENT WATCHDOG UNDER REVIEW
Government watchdog under reviewThe West Australian
... after Chief Justice Wayne Martin described Mr Wauchope as "unaccountable". ... Justice Martin warned Mr Wauchope was an official "not subject to ministerial ...
See all stories on this topic »Tuesday, October 1, 2013
Solicitor’s duty of care to the non-client: the law summarised
The Australian Profession
Inbox
x
Inbox
5:03 AM (3 hours ago)
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The Australian Professional Liability Blog |
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Posted: 30 Sep 2013 05:14 PM PDT
In Carey v Freehills [2013] FCA 954, the firm prevailed. Justice Kenny helpfully summarised the law in relation to the circumstances in which a solicitor will be found to have a duty of care to a person who has not retained him or her:
’310 Generally speaking, solicitors do not owe a duty of care to persons who are not their clients: see, for example, Hill v van Erp (1997) 188 CLR 159 (‘Hill v van Erp’) at 167 (Brennan CJ). A solicitor owes a duty of care to a client who has retained that solicitor. Freehills owed a duty of care to WPC and WPM, who had retained Mr Shearwood; but neither company is a cross-claimant. In Hill v van Erp at 167, Brennan CJ said:
Generally speaking, … a solicitor’s duty is owed solely to the client subject to the rules and standards of the profession. That is because the solicitor’s duty is to exercise professional knowledge and skill in the lawful protection and advancement of the client’s interests in the transaction in which the solicitor is retained and that duty cannot be tempered by the existence of a duty to any third person whose interests in the transactions are not coincident with the interests of the client.
311 Where a solicitor’s conduct demonstrates an assumption of responsibility, with known reliance by the plaintiff, a duty of care may arise by reason of an implied professional retainer agreement: see, for example, IGA Distribution Pty Ltd v King and Taylor Pty Ltd[2002] VSC 440 at [231] (Nettle J); Pegrum v Fatharly (1996) 14 WAR 92 (‘Pegrum v Fatharly’) at 95 (Ipp J), 101-102 (Anderson J, Kennedy J agreeing); and Meerkin & Apel v Rossett Pty Ltd [1998] 4 VR 54 at 62 (Charles JA, Callaway and Batt JJA agreeing).312 There are, however, circumstances in which a duty of care on the part of a solicitor may arise independently of a retainer. Thus, a duty of care has been said to arise in the context of negligent misstatement causing loss: see Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465 and Esanda Finance Corporation Ltd v Peat Marwick Hungerfords (1997) 188 CLR 241, at 252 (Brennan CJ). A duty of care has also been recognised as being owed by a solicitor to a beneficiary of a client’s will, in the absence of reliance by the third party beneficiaries: seeHill v van Erp at 166-168 (Brennan CJ), 172-173 (Dawson J), 234 (Gummow J). Significantly, however, there the High Court emphasised the coincidence of interest between the client and the beneficiaries. InBlackwell v Barroille Pty Ltd (1994) 51 FCR 347 (‘Blackwell v Barroille’) a Full Court of this Court held that a solicitor owed a duty of care to the client’s trustee in bankruptcy as a result of the reliance by the trustee on the solicitor. See further, Beach Petroleum NL v Kennedy and Others (1999) 48 NSWLR 1 at 45-48 [188]-[205] and Hawkins v Clayton(1988) 164 CLR 539 at 578 (although Deane J’s analysis there depended on treating proximity as a determinative factor, an approach that has since been rejected: see below). 313 Where a duty of care is claimed to have a risen in anew circumstance or with respect to a new category of relationships, Australian law now requires a multi-factorial approach in assessing whether a duty of care has indeed arisen. As the New South Wales Court of Appeal noted in Caltex Refineries (Qld) Pty Ltd v Stavar (2009) 75 NSWLR 649 (‘Caltex v Stavar’) 675 [101], the High Court has rejected the doctrine of proximity as a determinative factor in deciding whether a duty of care existed, as well as “the two stage approach in Anns v Merton London Borough Council [1978] AC 728 based on reasonabl[e] foreseeability, the expanded three stage approach in Caparo Industries Plc v Dickman [1990] 2 AC 605 [(‘Caparo v Dickman’)] and any reformulation of the latter two”. See, for example, Hill v van Erp at 210 (McHugh J), 237-239 (Gummow J),Perre v Apand Pty Ltd (1999) 198 CLR 180 at 193-194 [9]-[10] (Gleeson CJ), 197-198 [25]-[27] (Gaudron J), 208-213 [70]-[83], 216 [93] (McHugh J), 268 [245]-[247], 273 [255], 285 [280]-[287] (Kirby J), 303 [330]-[335] (Hayne J), 319 [389], 324 [398]-[400], 326 [406] (Callinan J); Sullivan v Moody (2001) 207 CLR 562 at 577-580 [43]-[53] (Gleeson CJ, Gaudron, McHugh, Hayne and Callinan JJ); Graham Barclay Oysters Pty Ltd v Ryan(2002) 211 CLR 540 at 583 [99] (McHugh J), 625 [234]-[236] (Kirby J); andStuart v Kirkland-Veenstra (2009) 237 CLR 215 at 260 [132] (Crennan and Kiefel JJ). 314 Caltex v Stavar has become an exemplar of the multi-factorial approach, partly because Allsop P helpfully set out, in a non-exhaustive list (at 676 [103]), the “salient features” in the evaluative task of imputing a duty of care in novel circumstances, including its scope and content. In Caltex v Stavar Allsop P said (at 675 [100]) that the current approach:
… recognises what has been said to be the use of foreseeability at a higher level of generality and the involvement of normative considerations of judgment and policy. This approach requires not only an assessment of foreseeability, but also attention to such considerations as control, vulnerability, assumption of responsibility and nearness or proximity.
His Honour continued (at 676 [102]):
This rejection of any particular formula or methodology or test the application of which will yield an answer to the question whether there exists in any given circumstance a duty of care, and if so, its scope or content, has been accompanied by the identification of an approach to be used to assist in drawing the conclusion whether in novel circumstances the law imputes a duty and, if so, in identifying its scope or content. If the circumstances fall within an accepted category of duty, little or no difficulty arises. If, however, the posited duty is a novel one, the proper approach is to undertake a close analysis of the facts bearing on the relationship between the plaintiff and the putative tortfeasor by references to the “salient features” or factors affecting the appropriateness of imputing a legal duty to take reasonable care to avoid harm or injury.
315 In connection with the “foreseeability” factor, Allsop P specifically said (at 677 [106]) that:
In a novel area, reasonable foreseeability of harm is inadequate alone to found a conclusion of duty. Close analysis of the facts and a consideration of these kinds of factors will assist in a reasoned evaluative decision whether to impute a duty. Whilst simple formulae such as “proximity” or “fairness” do not encapsulate the task, they fall within it as part of the evaluative judgment of the appropriateness of legal imputation of responsibility.
316 The list of “salient factors”, which Allsop P identified, was not intended to be exhaustive: Caltex v Stavar at 676 [104]. See alsoMakawe Pty Ltd v Randwick City Council [2009] NSWCA 412 at [17], [92]-[94]; Hoffmann v Boland [2013] NSWCA 158 (‘Hoffmann v Boland’) at [31] (Basten JA), [127]-[130] (Sackville AJA, Barrett JA agreeing). It is unnecessary to make findings about all the factors in the list. This point was reiterated in Hoffmann v Boland at [31], where Basten JA said that Allsop P’s “salient features”:
… provide a valuable checklist of the kinds of factors which can be of assistance. They do not constitute mandatory considerations, failure to address which will constitute error of law; nor do they lead to a formula which will provide a result in a particular case. Each involves considerations of varying weight; some will be entirely irrelevant. What is necessary is to focus upon the considerations which are relevant in the circumstances of the particular case.
317 By reference to the factors mentioned in Caltex v Stavar and other relevant factors in this case, the Court must assess the circumstances in order to determine whether or not the law will impute a duty of care and, if so, its scope and content. I interpolate that, generally speaking, where the alleged duty of care owed by a solicitor to a non-client conflicts with a duty of care towards the client, a duty of care to the non-client is unlikely to be established. See, for example, Maronis Holdings Ltd v Nippon Credit Australia Pty Ltd [2001] NSWSC 448 at [338].’ |
Saturday, September 28, 2013
OUR COURT SYSTEM IS SO CORRUPT?
I< I believe that the whole judicial system is so corrupt that I do not see how I can break their neck. This monster is too big Nicholas.
But this is interesting https://www.youtube.com/watch?v=I4ZcTwsubzk
But this is interesting https://www.youtube.com/watch?v=I4ZcTwsubzk
Tuesday, September 24, 2013
HIGH COURT LECTURES ON PREROGATIVE WRITS
2010 - 2012
Judgement
20 June 2012 6-1 decision in favour of plaintiff
Case
No: S307/2010
Case Information
Catchwords
Plaintiff
contends that the payment or disbursement by the Commonwealth of monies from
the Consolidated Revenue Fund for the purposes of the National School
Chaplaincy Program, and therefore the Darling Heights Funding Agreement, was
not supported by an appropriation made by law, as required by s.83 of the
Constitution.
Documents:
2013
A Writ of Summons and Statement of Claim
was issued out of the High Court of Australia between:
Ronald Williams - Plaintiff
and
Ronald Williams - Plaintiff
and
Commonwealth of Australia
Minister for Education - Second Defendant
Scripture UnionQueensland
Scripture Union
Williams v Commonwealth — High Court
Proceedings s154 of 2013
The Commonwealth has agreed that, subject
to the views of the Court, this matter can proceed by way of Special Case. A
timetable has been proposed.
A directions hearing in the matter of Williams v
Commonwealth of Australia & Ors High Court Proceedings s154 of 2013 will be
held at noon on Friday 20 September 2013 .
The location will be: High Court of Australia, Level 23,Law Courts Building Queens
Square , Sydney
The location will be: High Court of Australia, Level 23,
=======================================================
IN THE HIGH COURT OF AUSTRALIA
BETWEEN:
HILDA ZHANG
Applicant
and
THE ROYAL AUSTRALIAN CHEMICAL INSTITUTE INC.
Respondent
NOTICE OF A CONSTITUTIONAL MATTER
1. The applicant gives notice that this
proceeding involves a matter arising under the Constitution or involving
its interpretation within the meaning of Section 78B of the Judiciary Act
1903.
2. The constitutional matter that is raised is
whether it counters the Covering Clause 5 of the Constitution that the
Honourable Full Court hold that the applicant’s claim of unlawful termination “was
continued vexatiously and without reasonable course” “after 28 June 2004”
and that the applicant’s appeals from the Honourable Primary Judgments were “brought vexatiously or without reasonable
cause”. Specifically:
(1) whether the Honourable Courts have
jurisdiction to order cost against the applicant following striking out the
applicant’s claim certified by the Australian Industrial Relations Commission
(the Commission), while Section 170CS(1) of the Workplace Relations Act 1996
(the WR Act) particularly specifies:
“a party to a proceeding under section 170CP must not be ordered
to pay costs incurred by any other party to the proceeding unless the
court hearing the matter is satisfied……” (emphasis added);
(2) whether it counters the Covering Clause 5
of the Constitution that the Honourable Courts’ held that the
applicant’s claim of unlawful termination was vexatious or without reasonable
course while the respondent “assuming” “the applicant’s allegations” “all to be true”, which were that
the applicant refused and complained the respondent’s unlawful instructions to
the respondent, the Auditor, the Union, Australian Taxation Office (the “ATO”),
the WorkCover and the Victorian Employers Chamber of Commerce and Industries
(the VECCI), in respect of the respondent had knowingly lodged faulty GST
report to the ATO and falsified accounting records and reports;
(3) whether it counters the Covering Clause 5
of the Constitution that the
Honourable Courts not only held that the retaliatory dismissal was not unlawful
under the WR Act but also defined to the effect that the applicant’s complaints
to both of the internal and external authorities, to the Commission and to the
Honourable Courts, with respect to the applicant’s superior forced the
applicant to falsify accounting
Filed on behalf
of: the applicant
Name: Daming
He
Address for service:
Telephone:
records and reports, as
vexatious or without reasonable course.
3. The facts showing the matter is one to which Section 78B of the Judiciary
Act 1903 applies are:
(1) The termination of the applicant’s
employment was managed by the VECCI. In the applicant’s original affidavit
dated 17 March 2004 to a Honourable Federal Court, the applicant stated: that a
senior consultant of the VECCI said that she understood that the applicant, as
an accountant, had to follow the Accounting Standards and relevant government
regulations but it was clear if the applicant did not follow her employer’s
instruction, it would jeopardize her employment.
(2) On 15 October 2004 ,
a Honourable Judge heard the respondent’s motion to strike out the applicant’s
claim certified by the Commission, found that the applicant had allegedly
produced three complaints to “outside authorities”, and held that “it is enough for [her] to allege”. His Honour also held: “I know it(“the filing of a complaint”)'s got nothing to do with court proceedings”.
His Honour finally reserved His Honour’s decision and ordered the parties “to go to mediation”.
(3) On 29 October 2004 , the respondent sought “the
disciplinary cost” after the Honourable Judge delivered the substantive
judgment ([2004] FCA 1392) of striking out the applicant’s claim certified by
the Commission without precedent.
(4) On 3 December 2004 ,
in the hearing of the respondent’s motion for costs, the applicant submitted:
that the Honourable Court did not hear the applicant’s claim, therefore, no
costs should be ordered under s 170CS of the WR Act. However, the Honourable
Judge ordered costs against the applicant without precedent, even through the
applicant’s argument was not questioned by the Honourable Judge and was not
contested by the respondent.
(5) In the judgment of costs ([2004] FCA 1626),
His Honour ignored the applicant’s submission mentioned at [(4)] above. His
Honour stated: “the principal one being He, in the matter of an Application
for Writs of Mandamus and Certiorari or Constitutional Relief [2004] FCAFC 161,
a case in which the Full Court held that section 170CK(2)(e) only applied
where the complaint had been made to “outside authorities” who have
power to investigate the allegations made against the employer”. However
His Honour did not mention any of the five “outside authorities” that
His Honour had dealt with in the substantive judgment ([2004] FCA 1392), which
were the external auditor, the VECCI, the ATO, the Union and the WorkCover
Authority.
(6) By notice of appeal dated 21 December 2004 , the applicant
appealed from the whole of the judgment of the Honourable Primary Judge. The
appeal grounds were:
(a) If the Commission had assumed that the
applicant’s complaints had been “all to be true”, the Commission would
have assessed that the applicant’s application had merit according to the
Commission’s assessment in its certificate. The Honourable Primary Judge did
not hear the application certified by the Commission, however, contravened s
170CS(1) of the WR Act and ordered costs against the applicant.
(b) The facts were that the applicant
complained to five “outsider authorities”. However, the Honourable
Primary Judge ignored all of them.
(7) The respondent did not provide any
specified arguments in reply in relation to the applicant’s grounds outlined
above, apart from saying:
(a) the applicant constructed s 170CS
incorrectly;
(b) the applicant’s arguments were irrelevant
to the cost question because “she had not
in fact made any relevant complaints”.
(8) On 6
May 2005 , in the hearing of appeals, the Honourable Full
Court did not questioned any applicant’s
submissions. The respondent submitted, inter alia:
(a) In accordance with s 298L(1)(i) of the WR
Act employer was prohibited from dismissing a member of Union
while the member of Union :
“has
made or proposes to make any inquiry or complaint to a person or body having
the capacity under an industrial law to seek:
(i)
compliance with that law; or
(ii)
the observance of a person's rights under an industrial instrument”
(the
applicant is a member of the Union );
(b) pars 115-117 of International Labour
Organisation ‘Protection against Unjustified Dismissal’ Report of
Committee of Experts, International Labour Office, 1995, which were the
relevant paragraphs in relation to preventing workers from retaliatory
dismissal;
(c) the Auditor
and other authorities were not “competent administration authorit[ies]”,
or the complaints were not for the purpose of s 170CK(2)(e).
The
Honourable Full Court’s decisions were reserved at the end of the hearing.
(9) On 3
June 2005 the Honourable Full Court dismissed the appeals. In the
judgment ([2005] FCAFC 99), in relation to the appeal of costs, the Honourable Full
Court dealt with neither the applicant’s nor the
respondent’s submissions outlined at [(6)] to [(8)] above. Then, the respondent
sought to recover its costs of the appeals. The Honourable Full reminded the
respondent: “The matters of the costs of
the appeal were not agitated” in the hearing of appeals. The respondent’s
counsel replied: “I understand that. We need to look at the judgment”. The Honourable Full Court ordered the parties
to file written submissions in respect of costs of appeals.
(10) In its written submissions dated 21 June 2005 , the Respondent relied
on, inter alia:
(a) the test applied by the Honourable Justice
Wilcox in Kanan v Australian Postal and Telecommunications Union ([1992] 43 IR 257 at 263-4): “If success depends upon the
resolution in the applicant’s favour of one or more arguable points of law, it
is inappropriate to stigmatise the proceeding as being “without reasonable
cause”. But where, on the applicant’s own version of the facts, it is clear
that the proceeding must fail, it may properly be said that the proceeding
lacks a reasonable cause.”
(b)
the Honourable Full Court
(11) In written submissions in reply dated 1 July 2005 , the applicant relied on,
inter alia:
(a) s 170CS of the WR Act prohibits the court
from ordering costs against a party while matter certified by the Commission
was not heard by the court. A common ground was that the Commission’s
certificate was to weed out the unmeritorious case. Neither the Honourable Full
Court rejected nor the respondent contested this argument specifically.
(b) the applicant had complained to five “outside
authorities” apart from the Commission’s certificate, and, in the judgment
([2005] FCAFC 187), the Honourable Full Court did not count three additional
evidences filed and served in the proceedings of the appeals.
(12) On 5
September 2005 the Honourable Full Court ordered costs of appeals
against the applicant according to the parties’ written submission as requested
by the respondent. In the judgment ([2005] FCAFC 187) (the Judgment No 2) the
Honourable Full Court did
not directly deal with the parties’ submissions outlined at [(10)] and [(11)]
above, but holding “that the appeal was a
proceeding brought vexatiously or without reasonable cause” ([2005] FCAFC
187 at [18]).
(13) On 1
July 2005 the applicant applied for special leaves to appeal from
the judgment of [2005] FCAFC 99 in respect of costs.
(14) On 3 October 2005
the applicant applied for two special leaves to appeal to the High Court from
the Judgment No 2, in relation to costs of appeals of both VID 1418 of 2004 and
VID 1607 of 2004. In the written cases, the applicant raised, inter alia:
(a) in the applicant’s written case of M77 of
2005, the applicant’s arguments outlined at [(11)] above were not properly
dealt with by the Honourable Full
Court
(b)
in the applicant’s written case of
M129 of 2005,
(i) s 170CS(1) operates under s 170CP, when an
application certified by the Commission and the parties were well informed by
the Commission under s 170CF; therefore, comparing with s 347, s 170CS adds “must”
not order cost “unless the court hearing the matter” and “is
satisfied” that the “the costs to be incurred by that other party
because of an unreasonable act or omission”;
(ii) the Honourable Full Court
(iii) in the applicant’s affidavit sworn on 1 July
2005 the applicant gave evidence that she complained to the Union, and that the
Union consequently contacted the respondent; however, the Honourable Full Court
held that the affidavit was irrelevant to the matter of costs, even through the
argument was whether the applicant had complained to a third parties before the
dismissal and whether the respondent had known that the applicant complained to
a third party before she was terminated;
(c) in the applicant’s written case of M130 of
2005,
(i) in the hearing of the respondent’s motion
to strike-out of the applicant’s application in the Honourable Primary Court,
the respondent conceded: “the unions are registered organisations under the
WRA, so we could say that they are in a sense a competent administrative quasi
- a body”, but the Honourable Full Court, apart from asserted it was
irrelevant ([2005] FCAFC 187 at [21]), did not disclose that the applicant’s
affidavit sworn on 1 July 2005 was in relation to that the applicant complained
to the Union.
(ii) In the Judgment No. 2, the applicant’s
written submission was altered from “The Primary Court did not
hear the matter certified by the Australian Industrial Relations Commission (the
“Commission”) according to the prima facie merit of the case” to “this Court (the Honourable Full Court) did not ‘hear the matter certified by
the Australian Industrial Relations Commission (the "Commission")
according to the prima facie merit of the case’” (emphysis added) ([2005] FCAFC 187 at
[22]).
(15) On 15 March 2006 the
Honourable High Court allowed the applicant to file and serve this notice under
section 78B of the Judiciary Act 1903.
(16) The applications for special leaves to appeal
have not yet been listed.
Dated the day
of April 2006.
Hilda Zhang
To: The Honourable Philip Ruddock MP, the
Attorney-General for Commonwealth, Office of the Attorney General, Parliament
House, Canberra, ACT 2600
The Honourable Rob Hulls MLA, the Attorney-General for Victoria 8 Nicholson Street,
East Melbourne
The Honourable Bob Dedus MP, the Attorney-General for New South Wales Governor Macquarie Tower 1 Farrer Place , Sydney
The Honourable Linda Lavarch MP, the Attorney-General for Queensland 50 Ann Street Brisbane
The Honourable Jim McGinty MLA, the Attorney-General for
Western Australia, 30th Floor, Allendale Square, 77 St George’s Terrace, Perth,
WA 6000
The Honourable Michael Atkinson MP, the Attorney-General for South Australia 45 Pirie Street , Adelaide
The Honourable Steve Kons MHA, the Attorney-General for
Tasmania, Level 5, Marine Board Building, 1 Franklin Wharf, Hobart, TAS 7000
The Honourable Dr Peter Toyne MLA, the Attorney-General for Northern Territory Box 3146 Darwin , NT
Mr Jon Stanhope MLA, the Attorney-General for Australian Capital
Territory London Box 1020 , Canberra
"Cause" includes any suit,
and also includes criminal proceedings.
"Suit" includes any action or original proceeding
between parties
|
How does the
Commonwealth participate in constitutional cases?
|
||
|
Chapter 9. Constitutional
litigation and the Commonwealth
|
||
How does the Commonwealth participate in constitutional
cases?
If the case is
one to which the Commonwealth is not a party, the first step is for the
Attorney-General to decide whether to intervene. Generally, s.78B notices are
received in the Attorney-General’s office, which forwards the notice to the
Constitutional Litigation Unit of the Australian Government Solicitor (AGS).
AGS is a law firm owned by the Commonwealth. Pursuant to the Legal Services
Directions 2005 (which are made under the Judiciary Act),
generally speaking, and subject to my role as the Solicitor-General,
constitutional work can be performed only by AGS and the Attorney-General’s
Department.
AGS forms a view
on whether the Attorney-General should intervene. In doing so, AGS consults
with the Solicitor-General, the Constitutional Policy Unit of the
Attorney-General’s Department and any other area of the department or other
department that has a policy interest in the subject matter of the notice (for
example, if the constitutional issue is the validity of a Commonwealth law, AGS
consults with the department that administers that law). If AGS and the
Solicitor-General agree that there should be no intervention, the
Attorney-General is not further consulted and there is no intervention.
If the Attorney-General approves intervention, generally, AGS acts for the
Attorney-General in the conduct of the matter, but briefs counsel to appear for
the Attorney-General at the hearing. Generally, AGS will brief one senior and
one junior barrister. The pool of talent from which counsel are selected includes
the Solicitor-General, senior constitutional lawyers employed by AGS (for
example, AGS’s Chief General Counsel, Henry Burmester) and private barristers
with expertise in constitutional law. Generally, where the matter is of
significant importance to the Commonwealth, or where the matter is particularly
complex, AGS will brief the Solicitor-General to appear, along with a junior
barrister. The Attorney-General has issued guidelines on briefing the Solicitor-General.
|
By what power does the Commonwealth
participate in constitutional cases?
|
|
What are the advantages of the way
the Commonwealth participates in constitutional cases?
|
In my view, the way that the Commonwealth handles
constitutional litigation allows it to present its arguments to the court in a way
that ideally combines the experience and expertise of the public sector as well
as private practice.
AGS and the Attorney-General’s Department
employ outstanding constitutional lawyers, many of whom have careers advising,
and acting for, the Commonwealth in relation to constitutional matters. This
deep well of experience and expertise is obviously invaluable to the
Commonwealth in the conduct of its cases. AGS and Attorney-General’s Department
lawyers and advisers generally have strong relationships with, and the trust
of, the government. These lawyers have finely honed skills in constitutional
law and policy, as well as long memories of cases won and lost in the past and
a good sense of some of the reasons why.
However, by also involving private counsel,
the Commonwealth is able to draw on the particular skills and attributes of the
private bar.
Whereas the public sector brings the
advantages of specialist expertise in public law, private barristers bring
specialist expertise in advocacy. Advocacy is as much a specialisation as
constitutional law; a person who does something all the time will tend to do it
better than someone who does it only occasionally.
Second, private barristers offer the
attribute of independence. As sole practitioners bound by the cab-rank rule to
act for all who come to them regardless of their personal views, private
barristers tend to practice on both sides of the record. That is, leading
private barristers in Australia with expertise in constitutional law will have
acted for the Commonwealth and its emanations, the states and territories and
their respective emanations, corporations, citizens and others over the course
of their careers at the bar. They will have argued for and against the validity
of Commonwealth legislation. A barrister who represents all sides over time is
better able to advise his or her client at any particular time; he or she tends
to have a broader view of the law than a solicitor who acts only for or against
the Commonwealth.
Third, by retaining private barristers to
appear for it, the Commonwealth enhances its capacity sensibly to cooperate
with opponents in the conduct and, occasionally, settlement of cases. Almost
universally, private barristers with expertise in constitutional law trust one
another. These barristers represent a small pool of lawyers who regularly
appear with, and against, each other. These circumstances facilitate a highly
respectful and cordial professional culture that is amenable to the smooth
conduct of litigation.
In many respects, the Solicitor-General
(who, incidentally, is neither a solicitor nor a general!) tends to have a
combination of these various skills and attributes. The Solicitor-General is a
statutory office-holder, appointed by the Governor-General for a term (see the Law Officers
Act 1964). The functions of the Solicitor-General are: a) to act as
counsel for the Commonwealth and its emanations, and so on; b) to advise the
Attorney-General on questions of law referred to him by the Attorney-General;
and c) to carry out such other functions ordinarily performed by counsel as the
Attorney-General requests. As a matter of practice, the dominant function of
the Solicitor-General has been to appear on behalf of the Commonwealth in
important constitutional cases.
Thus, like AGS and Attorney-General’s
Department lawyers, the Solicitor-General tends to possess the skills that
arise from appearing in the area of constitutional law over time. However, the
Solicitor-General has generally been selected from the pool of private barristers
with expertise in constitutional law. Thus, the Solicitor-General also tends to
bring with him (so far, the eight solicitors-general since Federation have all
been male) the skills developed over a long career as a specialist advocate at
the bar, representing many interests over that career and forging many strong
relationships with fellow barristers. Finally, there is an advantage in the
Solicitor-General appearing in almost all the major constitutional cases
because of the importance of the Commonwealth not putting submissions in one
case that are inconsistent with its submissions in another and the desirability
of not giving an answer to a question from the Bench in one case that might be
used against the Commonwealth in another. This is not a problem when one
appears for a private litigant.
|
How does the Commonwealth participate in
constitutional cases?
|
|
|
Conclusion
I have attempted to demonstrate that the
ways in which the Commonwealth conducts constitutional litigation enable it to
combine the best aspects of constitutional legal experience in the public
sector with the specialist skills and knowledge of the private bar. Hopefully,
from this mix of expertise, we are better able to advance the public interest.
|
What are the advantages of the way the
Commonwealth participates in constitutional cases?
|
|
Chapter 10. Evidence-based
policy making: what is it and how do we get it?
|
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