Clampett v Magistrate Cornack [2012] QSC 123

SUPREME COURT OF QUEENSLAND CITATION: Clampett v Magistrate Cornack [2012] QSC 123 PARTIES: LEONARD WILLIAM CLAMPETT (plaintiff) v MAGISTRATE CORNACK (first respondent) AND COMMISSIONER FOR POLICE, QUEENSLAND (second respondent) FILE NO: 8490 of 2011 DIVISION: Trial Division PROCEEDING: Application ORIGINATING COURT: Supreme Court of Queensland DELIVERED ON: 4 May 2012 DELIVERED AT: Brisbane HEARING DATE: 9 January 2012 JUDGE: Daubney J ORDER: The application filed 22 September 2011 be dismissed. CATCHWORDS: ADMINSITRATIVE LAW – JUDICIAL REVIEW – REVIEWABLE DECISIONS AND CONDUCT – DISCRETION NOT TO ENTERTAIN AN APPLICATION – GENERALLY – where the applicant was found guilty of speeding in the Magistrates Court by the first respondent – where the applicant contended that the fine imposed by the first respondent was inconsistent with s 115 of the Commonwealth Constitution, which states “the state shall not coin money nor make anything but gold and silver coin a legal tender in payment of debts” - where the applicant filed an application for judicial review pursuant to the Judicial Review Act 1991 (Qld) – where the applicant argued he was precluded from seeking appellate relief in the District Court as the District Court sought to enforce the fine before hearing an appeal – where the applicant named Magistrate Cornack as the only respondent in the application – where it was ordered that the Commissioner for Police be joined as a second respondent – where the applicant sought an order in the nature of certiorari – where the applicant sought for the decision of the first respondent be set aside – where the applicant sought for the „right of the applicant‟ to be formally acknowledged by the Court – whether the application for -- 1 of 10 -- 2 judicial review should be dismissed Judicial Review Act 1991 (Qld), ss 4, 20 and 43 Kirk v Industrial Relations Court of New South Wales (2010) 239 CLR 531; [2010] HCA 1 Re Skyring’s Application (No 2) (1995) 59 ALJR 561 Stubberfield v Webster [1996] 2 Qd R 211; [1995] QSC 182 COUNSEL: The applicant appeared on his own behalf R Marsh (Sol) for the first respondent K M Boileau (Sol) for the second respondent SOLICITORS: The applicant appeared on his own behalf Crown Law for the first respondent Queensland Police Service Solicitors for the second respondent [1] On 2 September 2011, the applicant, Leonard William Clampett, was found guilty by the first respondent Magistrate of the traffic offence of speeding. He was convicted and fined $200, and ordered to pay $76.90 court costs. He was also ordered to pay the prosecution‟s out of pocket expenses for an expert witness, fixed at $3,500. The Magistrate concluded that it was necessary for the prosecution, in view of the defence sought to be mounted by the applicant, to call the expert witness, who was required to travel from Melbourne, stay overnight in Brisbane, assess the site, review the evidence, and give evidence before the Magistrate. [2] The applicant had been charged with driving at a speed of 73 kph in a 60 kph zone. He was detected by a speed camera. His challenge to the evidence turned on an assertion, in effect, that the photographic evidence produced by the speed camera failed to comply with the National Measurements Act (Cth). The Magistrate rejected that assertion, and found that the prosecution had proved all the necessary elements of the offence. After finding the applicant guilty, argument before the Magistrate turned to the questions of the fine to be imposed, the entitlement of the prosecution to recover the out of pocket expenses associated with calling the expert witness, and the quantum of those expenses. When called on to address the Magistrate, the applicant commenced his submissions by saying: “DEFENDANT: Yeah. Well, of course now, we get to the real meat of the matter, your Honour and it has been pointed out before and it will be pointed out again, I‟m sure. Section 115 of the Commonwealth Constitution verbatim says, “The State shall not coin money nor make anything but gold and silver coin a legal tender in payment of debts.” Now, it‟s logical when you look at the paramount legislation in this country, that no matter what money they request or you award them, I can‟t pay, because there is no gold and silver coin in common circulation. I haven‟t been able to pay a lot of things over the years. Fifteen years I haven‟t paid any income tax because it‟s not possible to pay it. I haven‟t paid, for instance, a couple of companies. I haven‟t paid Crown Law Queensland $12,500 they claimed from me, because of section 115 of the Commonwealth Constitution. -- 2 of 10 -- 3 It is the paramount law in this country, but somehow or other, certain people don‟t seem to catch onto that, but we‟re all bound by that. So, they can make any claims they like and I‟m sure you will feel that you can make any awards that you like, but they can‟t be paid. They can‟t be converted to time in prison, because of the Constitution and if we look at section 151 of the Commonwealth Constitution, we have a look under currency coinage and legal tender and then we go to the Currency Act of 1965, we find out that section 16 tells us what legal tender is in Australia and legal tender for Commonwealth purposes, is only five, 10, 20 and 50 cent coins and no greater and you can only pay a debt of those with $5. But a state, as opposed to the Commonwealth, cannot compel you to pay in other than gold and silver coin. Fairly simple. So, if they want to argue that, if they like to pay our friend over here for all his time, they can come chasing me – from me, but I can‟t pay them, because there‟s no gold and silver coin in common circulation.” [3] Argument in a similar vein continued, and the Magistrate concluded, inter alia, that it be ordered that the applicant pay $3,500 towards the out of pocket expenses of the prosecution. [4] On 22 September 2011 (some three weeks after the Magistrate‟s decision), the applicant filed the present application pursuant to the Judicial Review Act 1991 (“JRA”) in this Court. The form of application was captioned: “APPLICATION FOR JUDICIAL REVIEW A STATUTORY ORDER OF REVIEW” [5] The only named respondent was the Magistrate. [6] It is necessary to set out the terms of the application in full: “APPLICATION in PROCEEDINGS Application to review the following decisions: 1. The decision of Magistrate Cornack in the Magistrates Court of Queensland held at Brisbane in the State of Queensland on 2nd September 2011, whereby the applicant was found guilty of the alleged offence of „speeding‟ (doing 73 kph in a 60 kph zone on Wardell St Enoggera) and fined $200.00 with „costs‟ in the amount of $3500.00 to cover the appearance of an Expert Witness from Melbourne to give evidence in support of the QPS case against him and „costs of Court‟ in the amount of $76.90 The applicant is aggrieved by the decisions because – 1. The decision of Magistrate Cornack allowed the prosecution to proceed with their case against the applicant/defendant, notwithstanding that none of the instrumentation used by the prosecution to measure the speed at which his car was travelling at the time has been pattern approved to the -- 3 of 10 -- 4 requisite authorities in accordance with the National Measurement Act (Cwth) 1960; 2. By awarding „costs‟ against the applicant in a proceeding brought in the criminal jurisdiction is contrary to long established legal practice in the State. The grounds of the application are – 1. That a breach of the rule of natural justice happened in relation to the making of the decisions; 2. That procedures that were required by law to be observed in relation to the making of the decision were not observed; The applicant claims – 1. An Order that the decision of Magistrate Cornack, dated 2nd September 2011, to convict, fine and order costs against the Applicant/Defendant be set aside; and. 2. A „right of the Applicant‟ be formally acknowledged by this Court whereby, pursuant to the qui tam endorsement on all of his documentation relating to these proceedings, he is entitled to „instruct‟ the State Attorney- General, acting on behalf of the State of Queensland, to resume proceedings in the High Court of Australia, albeit „a little belatedly‟, in what was known at the time as the Bank Nationalisation Case, whereby the matters raised in the late 1940’s but not brought to a proper conclusion legally then (including this socially and thereby legal vital matter of what form of tender, precisely, constitutes a ‘legal tender of money’ ‘in hard constitutional terms’ for the extinguishment of obligations of all types across the community in this country, and raised again in these proceedings) may be brought to a proper conclusion legally now, not only in the light of the considerable advances in the „technology of money‟ which have occurred over the intervening years, but also of the conclusions arrived at, at the time by the Privy Council in the appeal proceedings which were then brought, but again could not be carried through on, for want of adequate technical knowledge on the parts of those immediately involved in taking the requisite action, about the matters centrally in issue in those proceeding then but which it appears is available now. 3. Such further orders as to the Court seem meet in respect of these and other related matters. 4. My claims, and the action sought based thereon, are as well for the Queen as for myself, and are made with a view to correcting serious defects in the manner in which legal affairs especially of the nation generally, and the State of Queensland particularly, are presently conducted and have been for a very long time.” [7] The application initially came on before this Court on 10 October 2011. The judge before whom the matter came on that day was not satisfied that service had been properly effected. In particular, the Queensland Police Service had not been served. The application was adjourned to allow service to be effected. -- 4 of 10 -- 5 [8] The application then came before me on 9 January 2012. Prior to that hearing date, the solicitors for the Commissioner of Police (“the Commissioner”) gave the applicant notice that they would be seeking to have the Commissioner joined as a respondent, and would then immediately apply to have this application struck out. A copy of the Commissioner‟s outline of submissions in that regard was provided to the applicant in the days prior to 9 January 2012. [9] When the matter came before me, I made an order joining the Commissioner as a respondent. The Commissioner was, and is, the proper contradictor to this application. The solicitor for the Magistrate also appeared to abide, as is the convention, the order of the Court. [10] The substantive argument before me was on the Commissioner‟s application that the application ought be struck out. [11] Initially it appeared in argument before me that the applicant was seeking relief under Part 3 of the Judicial Review Act 1991 (Qld) (“JRA”) by way of a statutory order of review. Such relief, clearly enough, would not have been available in respect of the Magistrate‟s decisions because none of those were decisions of an administrative character made under an enactment, and were therefore not decisions to which Part 3 of the JRA applied – see ss 4 and 20 of the JRA. [12] It emerged, however, that what the applicant was really seeking was an order in the nature of certiorari, and that it was an application for a prerogative order of that nature under Part 5 of the JRA. Accordingly, for present purposes, I will treat the application filed on 29 September 2011 as an application for review pursuant to s 43 of the JRA. [13] A disgruntled litigant in the Magistrates Court is entitled to bring an application for review seeking a prerogative order under s 43 of the JRA.1 The question for present purposes is whether the applicant ought be permitted to pursue the application. [14] Before proceeding further, I should confirm the views which I expressed in the course of the hearing to the effect that: (a) the relief purportedly claimed in paragraph 2 of the prayer for relief in the application, i.e. that certain asserted rights of the applicant be “formally acknowledged” by the Court, was not a form of relief available under Part 5 of the JRA, and would be struck out in any event; (b) paragraph 4 of the prayer for relief amounted to editorial comment by the applicant, and would be struck out in any event; (c) the only arguable claim of substance was that articulated in paragraph 1 of the prayer for relief, namely that the Magistrate‟s decisions be set aside. 1 Stubberfield v Webster [1996] 2 Qd R 211 at 213. -- 5 of 10 -- 6 [15] Sections 12 and 13 of the JRA relevantly provide: “12. When application for statutory order of review may be dismissed Despite s 10, but without limiting s 48, the Court may dismiss an application under section ... 43 that was made to the Court in relation to a reviewable matter because – ... (b) adequate provision is made by a law, other than this Act, under which the applicant is entitled to seek a review of the matter by the Court or another court. 13. When application for statutory order of review must be dismissed Despite s 10, but without limiting s 48, if – (a) an application under section ... 43 is made to the Court in relation to a reviewable matter; and (b) provision is made by a law, other than this Act, under which the applicant is entitled to seek a review of the matter by another court or a tribunal, authority or person; the court must dismiss the application if it is satisfied, having regard to the interests of justice, that it should do so.” [16] The term “reviewable matter” is defined in s 3 of the JRA as follows: “Reviewable matter means – (a) a decision; or (b) conduct, including conduct engaged in for the purpose of making a decision; or (c) a failure to make a decision or to perform a duty according to law.” [17] In the present case, the applicant had an unrestricted right to appeal the Magistrate‟s decisions, including as to costs, to a District Court Judge. In that regard, s 222(1) of the Justices Act 1886 (Qld) provides: “If a person feels aggrieved as complainant, defendant, or otherwise by an order made by Justices or a Justice in a summary way on a complaint for an offence or breach of duty, the person may appeal within 1 month after the date of the order to a District Court Judge.” [18] In Stubberfield v Webster,2 Thomas J (as he then was) was concerned with an application by which Stubberfield sought judicial review of proceedings in the Magistrates Court which resulted in his former solicitors obtaining judgment against him for $1,433.55 plus costs. Under the relevant legislation as it then stood, a party 2 [1996] 2 Qd R 211. -- 6 of 10 -- 7 to a civil proceeding in the Magistrates Court had a right of appeal to the District Court only in matters which involved more than $5,000; where the amount involved was $5,000 or less, an appeal was by leave only, which was not to be granted unless a District Court Judge was satisfied that some important principle of law or justice was involved. Stubberfield did not seek leave to appeal, but sought judicial review of the Magistrates Court proceedings. Thomas J said:3 “In cases where a right of appeal exists, such as matters in the Magistrates Court involving over $5,000, or matters in the District Court involving $10,000 or more, it would seem that applications for prerogative review will invariably be dismissed under s 12(b) of the Judicial Review Act on the ground that adequate provision is made by a law other than the Judicial Review Act under which the applicant is entitled to seek a review of the matter by another court. Jurisdiction to dismiss such an application would also arise under s 13.” [19] His Honour then turned to consider the case before him, in which an appeal could only be pursued by leave, and concluded, nevertheless, that it was a case in which adequate provision had been made by another law under which the applicant was entitled to seek a review of the matter by another court. His Honour held that the requirements of s 12 of the JRA had been satisfied, and the appropriate course was to dismiss the application. [20] In Stubberfield v Kilner,4 Byrne J ( as he then was) held that challenges to judgments and orders in Magistrates Courts litigation involving more than $5,000 should ordinarily be pursued in a District Court, the tribunal specifically chosen by Parliament for the purpose. In stating that proposition, his Honour specifically cited the judgment of Thomas J in Stubberfield v Webster. [21] The present case concerns decisions made by the Magistrate in the exercise of the Magistrate‟s criminal, rather than civil, jurisdiction. The principles articulated by Thomas J and Byrne J in the cases to which I have just referred nevertheless apply with equal force. The applicant had a right pursuant to s 222(1) to appeal to a District Court Judge. Moreover, it is clear from the material filed by the applicant in support of his application that he knew of that right of appeal, but deliberately chose to institute the present application for review. In his affidavit filed in support of the application for review, he said: “3. Although I am „not unaware‟ that the „usual‟ manner of challenging judicial decisions of Magistrates given in the criminal jurisdictions of such Courts is by Appeal to the District Court of Queensland in the same area in which the alleged offence was committed pursuant to s.222 of the Justices Act 1886 as amended – in this instance the District Court of Queensland also held at Brisbane – on this occasion however, because a matter centrally in issue in these proceedings – i.e. the manner in which the „fine and costs order‟, made at the conclusion of the proceedings at first instance was to be paid in a „strictly legal manner, constitutionally‟, as it must be in this instance since it is a „Crown Impost‟ – had been the subject of earlier proceedings before the District Court of Queensland also held at Brisbane and on which occasion the presiding judge, then McGill S.C., ordered that this Applicant was ‘not allowed to bring proceedings in the District 3 Ibid, at 213. 4 [1997] 1 Qd R 668. -- 7 of 10 -- 8 Court until specified monies were paid’ wherein these were monies claimed by Crown Law, it seemed to the Applicant that no credible option is open to BUT to bring this matter direct to the Supreme Court of Queensland, in accordance with the general philosophy that there is always a remedy for any error of law committed by any Court. 4. Further, although I am also „not unaware‟ that recourse to this particular form of remedy seems to be „rather frowned on‟ by both the political and judicial authorities in this State for whatever reason, nevertheless I have had recourse to it in this instance on the basis of points made the judgment of the Full Court of the High Court or Australia given in the case Kirk & ANOR -v- Industrial Relations Court of New South Wales [2010] HCA 1 but particularly in paras 97-100 thereof, whereby it was held that it was „beyond power‟ for the authorities in any State to „strip their Supreme Court of its powers to issue the prerogative writs – i.e. certiorari, mandamus, prohibition and informations of quo warranto – in appropriate cases a means of correcting fundamental errors of process. Exhibit ‘LWC-2’ to this affidavit comprises a copy of the immediately relevant sections of that HCA judgment. 5. Since, in my view at least, other just such „fundamental errors of process‟ occurred in the Magistrates Court proceedings before Magistrate Cornack on the 2nd September 2011 apart from what then occurred as cited above the above cited instance and, when coupled with the fact that that general „frowning on‟ recourse to that method of relief by the State authorities derives from the fact that those authorities did indeed strip the Supreme Court of Queensland of the powers to issue those writs which it had held since its inauguration as the Superior Court of Record in this State by Governor Bowen in 1859, when the changes were made to the whole basis of operation of the Queensland Supreme Court by the Supreme Court Act 1991 and the Judicial Review Act 1991, it seems to me that, from both points of view, I have very good reason to seek to institute such proceedings, if only to ‘put the record straight’ as to what the true legal situation is currently in respect of the use of that form of remedy in the situation in which I currently find myself.” [22] To the extent that the applicant‟s justification for bringing the present application in this Court relies on a contention that he was precluded from approaching the District Court because of his assertion that this would require him to make payment in a manner which was not “strictly legal manner, constitutionally” (i.e. the legal tender argument referred to in paragraph 2 of his prayer for relief), it is clear that the argument on which that contention is based has been long discredited. It is sufficient in that regard to refer to the judgment of Deane J in Re Skyring’s Application (No 2).5 [23] The judgment of the High Court in Kirk v Industrial Relations Court of New South Wales6 has nothing to do with the present case. That case relevantly concerned a privative legislative provision which purported to exclude review of a decision. The applicant‟s contention that he needed to institute the present proceedings to “put the record straight” in relation to an assertion that this Court had been stripped of the 5 (1995) 59 ALJR 561. 6 [2010] HCA 1. -- 8 of 10 -- 9 powers to issue prerogative writs simply fails to have any regard to the express terms of Part 5 of the JRA. Whilst s 41(1) of the JRA provides that the prerogative writs of mandamus, prohibition or certiorari are no longer to be issued by the Court, s 41(2) provides: “If, before the commencement of this Act, the Court had jurisdiction to grant any relief or remedy by way of a writ of mandamus, prohibition or certiorari, the Court continues to have the jurisdiction to grant the relief or remedy but must grant the relief or remedy by making an order, the relief or remedy under which is in the nature of, and to the same effect as, the relief or remedy that could, but for subsection (1), have been granted by way of such a writ.” [24] In short, the Supreme Court was not stripped of any of its pre-existing jurisdiction to grant relief in the nature of mandamus, prohibition or certiorari. What changed was the form in which that relief would be granted. [25] None of the reasons advanced by the applicant amount to any good reason for having instituted the present application, rather than exercising his right of appeal pursuant to s 222 of the Justices Act. [26] Thomas J concluded his judgment in Stubberfield v Webster with the following observation: “As a general rule judicial review should not be seen as a substitute for the appellate process in the civil courts. Of course particular circumstances may yield different results, as for example in a case of obvious jurisdictional abuse when the liberty of a citizen is at stake (R v. The Judge of the District Court at Brisbane and Davies; ex parte Allen, above; Weinel v. Judge Parsons (1994) 62 SASR 501, 505), and other situations which I do not purport to limit. Applications like the present one are unlikely to produce a satisfactory result for the disgruntled civil litigant but are still likely to take up considerable time of the courts. It is therefore important that it be clearly understood that this remedy is not to be regarded as a substitute for the appellate system within the ordinary judicial process.” [27] These observations were quoted by Jones J in Levien v Hodgens,7 and his Honour said that he was “in complete agreement with what Thomas J had to say on this issue”. [28] Again, I consider these observations apply with equal force to the present situation, which involved an exercise by the Magistrate of the summary criminal jurisdiction in circumstances where the applicant had a right of appeal to the District Court. [29] Adequate provision was made by s 222 for the applicant to seek a review of the Magistrate‟s decisions. It is therefore appropriate for the present application to be dismissed. 7 [2007] QSC 261. -- 9 of 10 -- 10 [30] The respondents do not seek their costs, and accordingly the only order will be that the application filed 22 September 2011 be dismissed. -- 10 of 10 --