Adelaide City Council v Lepse
[2016] SASC 66
•18 May 2016
SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
ADELAIDE CITY COUNCIL v LEPSE
[2016] SASC 66
Judgment of The Honourable Justice Peek
18 May 2016
TRAFFIC LAW - TRAFFIC REGULATION - RESTRICTIONS ON STOPPING AND PARKING - STOPPING IN PARTICULAR VEHICLES ZONES
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - GROUNDS - CONVICTION ON EX PARTE HEARING
Appeal against conviction.
The defendant was charged on a complaint of an officer of the Adelaide City Council for stopping in a permit zone. In the Magistrates Court, first before a Special Justice and then before a Magistrate, the defendant refused to approach the bar table and did not unequivocally acknowledge she was the charged defendant. The Magistrate directed that she be removed from the Court and dealt with the matter in her absence. The Magistrate found the charge proven, convicted the defendant, imposed a fine and made other monetary orders.
The defendant appeals against the conviction and orders.
Discussion of the effect of the defendant’s refusal to come to the bar table and the meaning of “attending” or “appearing”. Discussion of the defendant’s abuse of process of the courts in engaging in pseudolegal arguments without merit, submitting nonsensical documents and surreptitiously altering a substantive part of a court-approved form document.
Held (dismissing the appeal):
1. The Magistrate acted entirely properly in requiring the defendant to approach the bar table and, upon her repeated refusal to do so, in having her removed from the courtroom, in proceeding to convict the defendant and imposing penalty in accordance with ss 62(1)(b) and 62BA, Summary Procedure Act 1921.
Summary Procedure Act 1921 ss 49, 57, 62, 62(1)(b), 62BA, 76A; Supreme Court Civil Rules 2006 Rules 53, 57, 282(2)(a); Supreme Court Civil Supplementary Rules 2014 Rule 228; sch 3; Australian Road Rules 1999 Rule 185(1); Road Traffic Act 1961 s 174A(2), referred to.
Ashwell v Commissioner for Consumer Protection [2015] WASC 337; Re Magistrate M M Flynn; ex parte McJannett [2013] WASC 372; Meads v Meads 2012 ABQB 571; Smadu v Stone [2016] WASC 80, considered.
WORDS AND PHRASES CONSIDERED/DEFINED
"appear", "attend", "bar", "bar table"
ADELAIDE CITY COUNCIL v LEPSE
[2016] SASC 66Magistrates Appeal
PEEK J. Appeal pursuant to s 42, Magistrates Court Act 1991.
Overview
Ms Waltraud Lepse was charged by the complainant, Robert Donoghue on behalf of the Adelaide City Council, on a complaint and summons pursuant to ss 49 and 57 of the Summary Procedure Act 1921, alleging an offence against rule 185(1) of the Australian Road Rules 1999 and s 174A(2) of the Road Traffic Act 1961. The first page of the complaint and summons appears as follows:[1]
[1] The address, age and registration details have been redacted for privacy reasons.
COMPLAINT AND SUMMONS
Magistrates Court of South Australia
Summary Procedure Act, 1921
Sections 49 and 57
Complainant
Name DONOGHUE ROBERT 11073398
surname given name Complainant’s reference
Address ADELAIDE CITY COUNCIL
25 PIRIE STREET 8203 7541 8203 7476
street telephone facsimileADELAIDE SA 5000 [email protected]
city/town/suburb state postcode e-mail address
Defendant
Name LEPSE WALTRAUD ……………
surname given name Date of birth
Address ………………………………..
street
……………………… SA ……..city/town/suburb state postcode
Offence details
On 16th May 2015, at or about 6:07pm you were the owner of a vehicle registered number ……….., that was stopped on a length of road to which a Permit Zone sign applies contrary to Road Rule 185(1) of the Australian Road Rules 1999 and section 174A(2) Road Traffic Act 1961.
Particulars
The length of road to which the Permit Zone sign applied was located on Gilles Street, Adelaide between Blackburn Street and Hutt Street.
NOTE: The complainant alleges all the matters herein, and that the Permit Zone parking sign displayed the Residential Permit requirement.
[Signed]
Complainant
Date 11 JAN 2016
[Signed]
Registrar/Justice of the Peace
Important notice to Defendant
If you fail to appear on the hearing date set out below or on any day to which this matter is adjourned the Court may:-
· proceed in your absence or
· issue a warrant for your arrest
Hearing details Registry ADELAIDE Date 2 February 2016 Address 260-280 VICTORIA SQUARE Time am/11:30
8204 2444 8204 8440 [email protected]
telephone facsimile e-mail address
It is important that you read the information on the other side of this form.
The reverse side appears as follows:
If you intend pleading guilty • attend at court either in person or through a solicitor.
• fill out this form, have it witnessed by one of the listed people and send it to the court registry to which you were summonsed before the hearing date.
NOTE:- If you wish to apply to reduce the demerit points attracted by this offence you must attend at court to give evidence.Written guilty plea • I am the defendant in this matter.
• I wish to plead guilty to the charge(s)
• I wish to say:- (attach sheet if insufficient space)…………… …………………………………………………….
date signed by defendant or its authorised Manager or Managing DirectorDetails of witness
JP/Solicitor/Police Officer number………..……………………………………
signed by witnessPleading not guilty Attend at court or have a solicitor attend for you and indicate a not guilty plea.
You will be expected to have discussed the issues in detail with the Complainant, or their representative prior to a trial date being setIf you do not attend court you may be convicted and fined in your absence PROOF OF SERVICE
Name of deponent: Philip Scicluna
Address of deponent: 24 Hurtle Square Adelaide SA 5000
Name of person served: Waltraud Lepse
Address at which service effected: ………………………………………….
Date service effected: 12th January 2016
Time of day: Between sixam/pm and sevenam/pmMethod of service (tick box)
£ personally;
R by leaving a copy at
the last(or most usual) place of abode with a person apparently residing there and not less than 16 years of age;£ by leaving a copy at the place of business with a person apparently employed there and not less than 16 years of age;
£ by sending 2 copies by prepaid post;
£ any other method permitted by the Rules – specify
………………………………………………………………………
I certify that I served the attached document in the manner described.
Certified this 12th day) [Signed by Philip Scicluna]
of January 2016 )
The defendant was properly served with the above complaint and summons but refused to adopt any of the options listed therein. She refused to plead guilty by sending a filled in form to the court registry before the hearing date. She also refused to “attend” and “appear” at court on 2 February 2016 (within the legal meaning of those words[2]) in that, while she twice entered a courtroom on that day, on each occasion she remained near the door and refused all judicial directions to her to leave the public area and to go to the bar table.
[2] The legal meaning of the requirement to “attend” at court or “appear” at court is important and is discussed below.
In the above circumstances, a Magistrate (having had the matter referred to him by a Special Justice) granted the solicitor appearing for the complainant permission to prove the commission of the alleged offence in the “absence of the defendant”.[3] The Magistrate found the offence proven and ordered the defendant to pay a monetary penalty and the costs of the complainant.
[3] The legal meaning of “absence of the defendant” is important and is discussed below.
The defendant (whom I will continue to refer to as the defendant) now appeals to this Court against the orders made by the Magistrate. In her grounds of appeal, she complains about the procedure adopted by the prosecuting authority and the Magistrates Court.
I find that the defendant’s grounds of appeal are entirely without merit and that the Adelaide City Council and its solicitor, the Special Justice, the Magistrate and the court staff behaved entirely properly at all times. I dismiss the appeal.
My reasons follow. On one level, it may be thought that such reasons should be very short, in that it is not in the interests of justice to appear to give credence to, and waste court resources on, what Le Miere J in Smadu v Stone referred to as “pseudolegal gibberish”.[4] However, on reflection, I think it worthwhile analysing several facets of the present case in order to confirm that antidotes to a current bane do exist.
[4] [2016] WASC 80 at [10], [13] and [18]. Le Miere J further said at [5]: “It would be a waste of judicial resources and an affront to the dignity of this court to answer the pseudolegal arguments raised by the appeal in anything but a summary way.”
Background
On Monday 16 May 2015 at 6:07pm, a motor vehicle registered in the name of the defendant was observed by an officer of the Adelaide City Council (the Council) to be parked in a permit zone on Gilles Street, Adelaide without the required permit. An expiation notice was placed on the vehicle.
After certain correspondence between the defendant and the Council, the defendant elected to be prosecuted. On Tuesday 12 January 2016, the complaint and summons, as reproduced above, was served on the defendant by a copy being left at the defendant’s residential address. The summons stated that the hearing was to be on Tuesday, 2 February 2016 at 11:30am at the Adelaide Magistrates Court.
The proceedings at the Adelaide Magistrates Court on 2 February 2016
There is before this Court a transcript of the proceedings at the Adelaide Magistrates Court on 2 February 2016. In an affidavit sworn on 9 May 2016 by Mr Muscat, the solicitor for the respondent, which was received as Exhibit R1 on the appeal, Mr Muscat deposed as follows:
1. I acted as the prosecutor in the matter the subject of this appeal in Donoghue v Lepse in the Adelaide Magistrates Court on the 2nd February 2016.
2. The practice of the Adelaide City Council (“ACC”) in these matters is that it deals with all matters relating to expiations and the issuing and serving of the complaint and summons. I collect the file shortly prior to the first mention date in the Magistrates Court. Robert Donoghue is an officer of the ACC authorised the lay complaints in parking matters.
3. On 2 February 2016 I attended the Adelaide Magistrates Court at 11.30am to deal with the matter. The matter was listed in Court 21 before Special Justice Chu. After a number of police prosecutions were dealt with this matter was called on. The Court Officer stated there had been no appearance by the Defendant and was asked by either the Special Justice or his clerk to call the defendant’s name. A woman was then bought in.
4. Once the woman was brought into the Court the exchange set out in the Transcript of Proceedings for 2 February 2016 at 11.49am before Special Justice Chu (“Transcript 1”) took place. I believe Transcript 1 to be a true and correct record other than some inaudible exchange. The Applicant/Defendant is referred to therein as “MS TRAUDI.”
5. When the woman entered the Court I believe she may have been accompanied by other people. Initially the woman stood just inside the Court near the door and stated:
I am here. I am the personal representative of Waltraud Lepse. My name is called Traudi. Would you be so good as to call Traudi instead of Waltraud Lepse as I am here to represent in this case. Is this a court of reference? Is this a court of reference?
6. I believe there was minor exchange between the woman and the Court Officer that was inaudible and not on Transcript 1 but she was then taken out of the Court.
7. While the woman was out of the Court an exchange continued between the Special Justice, the Court Officer and myself. The woman then re-entered the Court and took a seat in the public gallery behind the bar table.
8. I did not know the Applicant/Defendant by sight and had never had any direct communication with her.
9. The door to the Court is almost in line with the bar table and the Court Officer’s desk is to the right as a person enters the Court.
10. I thought that the woman present claiming to be the personal representative of Waltraud Lepse may in fact be the Defendant in that matter. I sought to clarify the issue of identity as follows at page 4, lines 10-16 of Transcript 1 as follows:
MR MUSCAT: I have had some representations previously, your Honour, where a person attends court who is the defendant, but claims that they are separate from the defendant, so if this person will either state whether or not they are Waltraud Lepse. If that person is Waltraud Lepse then they can appear. If that person is not Waltraud Lepse, then I will proceed ex parte.
11. After the woman objected to my comments Special Magistrate Chu sent the matter to Court 2 to be dealt with by a Magistrate.
12. The matter was called on at 12.07pm on the 2 February 2016 in Court 2 before Magistrate I White. I had sat at the bar table when the matter was called on.
13. The same woman entered Court 2 and the exchange set out in the transcript of Proceedings for 2 February 2016 at 12.07pm before Magistrate White (“Transcript 2”) took place. Other than an error in Line 7 of page 4 of Transcript 2 where the word “defence” is used instead of “offence” I believe Transcript 2 to be a true and correct record. However there were some comments from the Applicant as she was being removed by Court Officers such as “Don’t touch me” which are not in Transcript 2.
14. When the woman entered the Court she stood just inside the door and did not approach the bar table during her exchange with the Magistrate and remained there until she was removed. Court Officers stood near her.
15. The door in Court 2 is in line with the back seats of the public gallery and the Court Officer’s desk is on the left as a person enters the door of the Court.
16. After the exchange between the Applicant and Magistrate White set out in Transcript 2 the Magistrate had the Applicant removed from the Court and the matter was heard ex parte.
I accept in full the evidence of Mr Muscat and the accuracy of the transcript, subject to the statements made by Mr Muscat. In circumstances described in more detail below, the defendant made some assertions in a document concerning the course of those proceedings which, for her benefit, I will treat as if they were in the form of an affidavit. I interpret the defendant’s assertions as a summary of the effect of statements she remembered rather than a verbatim account of what was said. For example, the defendant states that the Magistrate said ‘Get out of my court’. I accept that this may have been the meaning that the defendant attributed to what the Magistrate said, but I find that the actual words that the Magistrate used were as recorded in the transcript and as deposed to by Mr Muscat. In so far as there is any conflict, I prefer the evidence of Mr Muscat.
The proceedings before a Special Justice on 2 February 2016
I find that on 2 February 2016 at 11:49am, the matter was called on in court before Special Justice Chu. The defendant passed through the door to the courtroom and, from a position just inside the door, said:
I am here. I am the personal representative of Waltraud Lepse. My name is called Traudi. Would you be so good as to call Traudi instead of Waltraud Lepse as I am here to represent in this case. Is this a court a record? Is this a court of record?[5]
[5] The twice expressed question is reproduced in the transcript as “Is this a court of reference?” The defendant and the solicitor for the Council agree that the word spoken was “record”, which is internally consistent with what followed.
A court officer informed the defendant that the proceedings were being recorded. The defendant then left the courtroom. The defendant then returned to the courtroom and took up the same position just inside the door. The court went through the formal process of proving non-appearance of Ms Waltraud Lepse, the defendant charged on the complaint. Following that formal proof, the further interchange took place, as recorded on the transcript:
MS TRAUDI:[6] Is this a court of record?
[6] The defendant is referred to in the Magistrates Court transcript as “Ms Traudi” only because of her earlier statement that her name was “Traudi”.
HIS HONOUR: Yes it is.
COURT OFFICER 2: Service is in order to the extent that a copy has been left at the address –
MS TRAUDI: I object. I object.
MR MUSCAT: Your Honour, if Waltraud Lepse, as named in the complaint is not present, then I would seek ex-parte leave.
HIS HONOUR: Ex-parte leave granted.
MS TRAUDI: I object. Waltraud Lepse is present, here. Birth certificate. This is a legal fiction that I am representing. This is the birth certificate of Waltraud Lepse. Waltraud Lepse is present. I am a personal representative.
HIS HONOUR: No. She has to appear. Unless you are a lawyer acceptable to the bar, you cannot represent the defendant.
MS TRAUDI: I am here under Common Law and I actually am here under full reservation of unalienable rights.
MR MUSCAT: Unless this person is Waltraud Lepse, if that is who this person is –
MS TRAUDI: Are you denying me my rights to represent Waltraud Lepse as a, as a – under full reservation of unalienable rights under Common Law?
HIS HONOUR: How is court 2? Is court 2 busy, or 3?
COURT OFFICER 2: We will just make an enquiry.
MR MUSCAT: I have had some representations previously, your Honour, where a person attends court who is the defendant but claims that they are separate from the defendant, so if this person will either state whether or not they are Waltraud Lepse. If that person is Waltraud Lepse then they can appear. If that person is not Waltraud Lepse, then I will proceed ex-parte.
MS TRAUDI: I object. Is he trying to coerce me into taking the mantle of a legal fiction called Waltraud Lepse? I am entitled to be here as a personal representative of the person Waltraud Lepse in her private capacity in being. That is my right.
HIS HONOUR: The matter will be heard in court 2.
ADJOURNED 11.57 A.M. (Emphasis added)
As will be seen below, the Special Justice was entirely correct in his analysis that, in the present circumstances, the defendant had to “appear”[7] and that only a qualified lawyer could represent the defendant if she failed to “appear”. However, the Special Justice wisely decided that it was best to refer the matter to a Magistrate; Court 2 was of course, a courtroom in which a Magistrate was sitting.
[7] As noted in a footnote above, the legal meaning of the requirement to “appear” at court is important and is discussed below.
The later proceedings before a Magistrate on 2 February 2016
At 12:07pm, the matter was called on in Court 2 by Magistrate White. Again, the defendant passed through the door to the courtroom and, from a position just inside the door, attempted to address the presiding Magistrate. The following then took place, as recorded on the transcript:
DEFENDANT: Sir, is this a court of record?
HIS HONOUR: Yes.
DEFENDANT: Sir, would it be alright with you if I entered this room and engaged in the proceedings with full reservation of my unalienable rights?
HIS HONOUR: I’m not sure what you mean by that but this is what I think you were saying, that anything you say today shouldn’t be used in a trial against you if you make any admissions. Is that what you’re saying?
DEFENDANT: I’m saying I’m here under a common law court proceeding.
HIS HONOUR: No, you’re here under the Magistrates Court Act and also the Summary Procedure Act and they are all valid Acts as far as the court’s concerned. Just come forward.
DEFENDANT: So are you denying me my unalienable rights?
HIS HONOUR: No, you’ve got rights under those Acts. Come forward please.
DEFENDANT: I need to have ...
HIS HONOUR: If you do not come forward I am not going to deal with your matter and it might get dealt with in your absence. So if you don’t come forward I’m going to get you to leave and if you leave prosecution –
DEFENDANT: I do not consent to your jurisdiction. I’m here to – I have claim by the reservation of unalienable rights and it’s my right to give your Honour the common law.
HIS HONOUR: I’m not accepting that so you’ll have to leave.
DEFENDANT: No, I don’t have to leave. I’m here as a woman –
HIS HONOUR: I can see that.
DEFENDANT: Okay, I’m here as a woman and I reserve my unalienable rights to this matter.
HIS HONOUR: As I said to you, I don’t know what you mean by that and I –
DEFENDANT: Then I ask the case to be dismissed.
HIS HONOUR: I’m not going to do that. I’m asking you to simply come forward and obey an order of the court to come forward and sit down.
DEFENDANT: I can’t do that. I’m sorry sir.
HIS HONOUR: Well then I can’t deal with –
DEFENDANT: I need assurance from you that I’m here with full reservation of my unalienable right which is my right to do so.
HIS HONOUR: I’ll tell you for the last time. I don’t understand what you mean and if you don’t come forward then these gentlemen –
DEFENDANT: Are you denying me my rights?
HIS HONOUR: I think it’s easier gentlemen if she’s just –
DEFENDANT: Is there someone that does know what I’m talking about?
HIS HONOUR: I just ask you to leave madam and it will proceed in your absence.
DEFENDANT: Sir, do you withhold your oath of office.
HIS HONOUR: Take her out please.
DEFENDANT: Do you have –
DISCUSSION BETWEEN SHERIFF’S OFFICERS AND DEFENDANT
DEFENDANT: Do you uphold your oath of office.
HIS HONOUR: Otherwise you’ll be in contempt of court.
DEFENDANT: Do you uphold your oath of office.
HIS HONOUR: Take her out please.
DEFENDANT REMOVED FROM COURT
MR MUSCAT: Just a little background on that. These are what are sometimes referred to overseas as pseudo-legal commercial complainants. I had a similar one before the Magistrates Court a few weeks ago. It was a trial.
HIS HONOUR: It’s a flesh and blood defence.
MR MUSCAT: The flesh and blood theory. This is what it’s about. They get it off the internet. I’m assuming this was in fact the defendant but they will not concede to it. They try to separate their identities.
… (Emphasis added)
The Magistrate then granted leave to proceed ex parte to Mr Muscat, who also appears in this Court (and who I find to be a duly admitted legal practitioner instructed by Adelaide City Council to appear on its behalf here and below). The Magistrate proceeded to hear the allegations which were, in summary, that at 6:07pm on 16 May 2015 a vehicle registered in the name of the defendant was found in Gilles Street, Adelaide unlawfully parked in a zone that required a residential permit. An expiation notice was placed on the vehicle but was not paid. The defendant later elected to be prosecuted.
The Magistrate found that the facts alleged, and the offence itself, were proven and convicted the defendant. His Honour ordered the defendant to pay a fine of $150, the filing fee of $256, a service fee of $80 and the costs of the complainant, fixed at the low amount of $90. The total monetary amount ordered to be paid was therefore $576.
An application to the Magistrates Court for a rehearing is refused
On 9 February 2016, the defendant sought a rehearing at the Magistrates Court in Christies Beach, pursuant to s 76A of the Summary Procedure Act 1921. On 18 February 2016, the complainant wrote to the Christies Beach registry explaining the circumstances of the proceedings in the Adelaide Magistrates Court and requesting that the decision of Magistrate White of 2 February 2016 stand. On 24 February 2016, the Christies Beach registry informed the defendant by email that the Managing Magistrate had reviewed the matter and refused her application for a rehearing and that the matter was finalised. No ground of appeal challenges this determination. In any event, I consider that the decision to refuse a rehearing was correct.
The course of the appeal process
On 17 March 2016, the defendant lodged at the registry a document purporting to be a notice of appeal. I return to consider that document and the grounds of appeal therein below.
On 27 April 2016, the defendant lodged a document with the court registry entitled “Notice of Intent” which was said to be used in connexion with this appeal. As the hearing of this appeal was already assigned to me, the registry referred this and other documents to me to determine whether they should be rejected as an abuse of process of the Court. It appears as follows:
To Registrar, Judge, Clerical Staff,
Adelaide Supreme Court, Adelaide
RE Expiation Notice 11073398
Dear Sirs,
I am giving notice that I will be attending the Supreme court on a special visitation as a
Private Person.[8] [this line appears in red print]
Please have this notice and the previous correspondence available to the judge and in court on the 20/5/2016.
Also, I require the correction of all mention and correspondence regarding ‘WALTRAUD LEPSE’ to Waltraud Lepse. [9]
I do NOT consent to any contract offered, either overtly, covertly implied or compelled unless it be done as a written contract and a physical handshake.[10]
Sincerely
[appellant’s signature: T Lepse pp] Date: 27/4/16
[handwritten: Private person]
[handwritten: Without Prejudice]Waltraud Lepse ; Private Person
Without Prejudice
[8] Such meaningless jargon is common in pseudolegal arguments.
[9] Purported objections propounding distinctions based on capital letters and other matters of style or form are a recurring theme in pseudolegal arguments.
[10] References to contract and handshakes abound in pseudolegal arguments.
I direct that the above document be rejected for filing pursuant to Rule 53 of the Supreme Court Civil Rules 2006 because it is an abuse of process of this Court.[11]
[11] I should note that even if such a document were to be accepted for filing, a Judge may nevertheless later order it to be removed from the file. See Lunn’s commentary at [R53.20], Civil Procedure South Australia: “The fact that documents have not been rejected by the Registrar under r 53 does not affect the right of a party subsequently to have them struck out as an abuse of process: Kowalski v RJ Cole & Partners [2014] SASC 137 (Peek J), 23 September 2014, at [17]-[18] and appeal dismissed: Kowalski v RJ Cole & Partners (2015) 122 SASR 320; [2015] SASCFC 35, (Full Court), 2 April 2015.”
On or about 3 May 2016, the defendant lodged a document bearing a Form 1 front sheet which states the document type to be an affidavit. The substantive body of the document bears the word “Affidavit” at the top[12] and bears a signature of a Justice of the Peace at the bottom (which appears to be genuine), but the document is in no way sworn or affirmed as an affidavit and does not have the legal status of an affidavit. It appears as follows:
[12] The reference to “Commonwealth of Australia” was not expatiated upon.
Affidavit
Commonwealth of Australia
3/5/2016
To Registrar Supreme Court South Australia,
Dear Sir,
Please file the attached information for the Supreme Court Appeal on 10/5/2016.
Lepse v Adelaide City Council (SCCIV-16-360)
Supreme Court Justice Justice Peek
The information includes:
1/ Letter of Objection dated 4/6/2015
2/ Notice of Default dated 20/7/2015
3/ Letter electing to prosecute the claim dated 3/9/2015
Yours sincerely
Waltraud Lepse [signed] Private Person Without Prejudice
…………………………………………………
Signature of JP: [signed] Date: 3/5/16
Name of JP: Margaret Jean Cottington J.P.#31756
A Justice of the Peace for South Australia
This document was rejected on the hearing of the appeal for the reason stated above. However, the three annexures were received on the hearing of the appeal as stand-alone documents with the consent of the respondent. The first of the three annexed documents, in order of date, was received as Exhibit A1 and appears as follows:
4/6/2015
Adelaide City Council
25 Pirie Street
AdelaideSA 5000
ID No: 699A
Re: Expiation No. 11073398
To Adelaide Council, or its agency
Attention, Chelsea,
I am writing to you in relation to Expiation No11073398. I was the driver of the vehicle on the 16th May 2015 and am writing to deny any wrong doing on my behalf and would like this letter to be considered as my written objection to the above alleged Infringement. You have no legal or valid claim against me as I have committed no crime and offended/broken no law.
Should you believe that I have some claim or case to answer to then I request from ADELAIDE COUNCIL or its agency, a copy of the following documents in relation to the alleged offence at Gilles Street on that day: 16/5/2015.
I require a certified copy of all documents that can validate that code/road rule 185(1) as noted on the ticket issued is part of a legal and valid Act of Her Majesty’s Parliament in the state of South Australia and has been lawfully enacted by the Queen’s Parliament of South Australia giving full consideration to the 1988 Referendum that removed the continuing power of local government across the Commonwealth of Australia.
I am seeking the validity of this law by way of affidavit – make note that a copy of a publication that is loosely referred to as “law” will not be sufficient. The ONLY acceptable documents would be those that have been signed by Her Majesty the Queen of England or her legally authorized representative giving authority to enact the said law as per the Commonwealth of Australia Constitution Act 1900(UK) which was approved again as a result of the 1999 Referendum.
I will then endeavour to dis-charge the associated tax, conditional on the grounds that I receive from you the sworn affidavit and supporting documentation that substantiates your claim that the above documents do indeed exist and are not in contravention of Article 1 of the Covenant on Civil and Political Rights, this being an offence at International law.
Upon receipt of these documents, I will require further information from you as to how I am able to lawfully, constitutionally, meaningfully and conscientiously extinguish or dis-charge an alleged debt/tax in excess of AU$20 in the Commonwealth of Australia without breaching the Currency Act 1965, specifically Sections 9, 11, 16 and 22, considering that the highest denomination coin in common circulation in the Commonwealth of Australia is the AU$2 coin. Additionally, the conflict that exists regarding the face value of coins makes it impossible to value the Australian dollar.
You shall produce proof of claim within 28 days upon receipt hereof with an affidavit and attached supporting documentation as aforementioned or ADELAIDE COUNCIL or its agency shall:
1. admit and agree that no such documentation is validly available to be produced by ADELAIDE COUNCIL, or its agency and,
2. admit and agree that ADELAIDE COUNCIL has not validly issued an Infringement Notice that is compliant with the laws of the Commonwealth; and,
3. agree that where there is an inconsistency between a law of the Commonwealth and a law of a State, the law of the Commonwealth shall prevail and the law of the State shall be invalid to the extent of the inconsistency as laid out in Section 109 of the Commonwealth Constitution; and,
4. agree that, as a result of question 3 of the 1988 Referendum, any so-called Local Government Act is invalid, unlawful and un-Constitutional; and,
5. agree that ADELAIDE COUNCIL are bound under covering clause 5 of the Commonwealth of Australia Constitution Act 1900(UK); and,
6. agree that ADELAIDE COUNCIL knowingly, wilfully and intentionally failed to present proof of claim within the time certain, specified and allotted herein; and,
7. agree that the conditions required in this Notice of Objection are not frivolous or vexatious; and,
8. agree to be prohibited from taking any further action, based on a law that has not been legally enacted or proved against Waltraud Lepse by way of any fine, lawsuit or court action, which may occur as a result of this alleged infringement; and,
9. agree that no officer or representative of ADELAIDE COUNCIL or its agency may attempt to perform any act which is unlawful, or falsely represents its true intent and that they and ADELAIDE COUNCIL are acting in full accord with the laws of the Commonwealth and the laws of Her Majesty in the State of South Australia; and,
10. agree that any construed attempt may constitute a breach of Section 43 of the Crimes Act 1914 (Cwth); and,
11. agree that Waltraud Lepse has and retains the right to claim damages as a result of any adverse or harmful effects upon him brought about by the actions of ADELAIDE COUNCIL and/or it’s officers; and
12. agree that the only way that ADELAIDE COUNCIL or its agency may reject this agreement and consensual contract is by providing the requested sworn affidavit and attached supporting documentation within the time stipulated in the agreement, and in no other written or verbal manner.
If ADELAIDE COUNCIL, or its agency, agree to the aforementioned terms and conditions of agreement and contract, then simply do nothing or fail to answer ALL of the above points within the specified time for response.
Yours sincerely,
Waltraud Lepse
[signed]
N.B. This document is to be used Without Prejudice towards the author. All rights reserved
The second of the three annexed documents, in order of date, was received on the hearing of the appeal as Exhibit A2 and appears as follows:
NOTICE OF DEFAULT
BETWEEN Adelaide City Council
OF City of Adelaide
25 Pirie Street
AdelaideSA
AND Waltraud Lepse
OF ………………………
………………
..............DATED: July 20th 2015
ON THE MATTER
Alleged Infringement No. 11073398
Know all men that I, Waltraud Lepse, of ……………………………………………….., in the State of South Australia, in the Commonwealth of Australia, did on the 4th day of June 2015 object to the claim by Adelaide City Council and CITY OF ADELAIDE that I had in any way committed any crime or offended/broken any law as they alleged on the 16th May 2015.
The claim by Adelaide City Council and CITY OF ADELAIDE in respect to alleged Infringement Notice 11073398 was denied and Adelaide City Council and CITY OF ADELAIDE were instructed to provide within 28 days, a sworn Affidavit and supporting documentation substantiating that they had any lawful claim against me or that I committed any crime or offended/broken any law.
As Adelaide City Council and CITY OF ADELAIDE, being fully aware of the terms of the objection, failed to provide any documentary evidence in support of their claim within the time period specified, they have defaulted in respect of their claim and have admitted and agreed to the terms of the objection tendered.
Wherefore I now, in the presence of a Justice of the Peace, acknowledge and accept the default by Adelaide City Council and CITY OF ADELAIDE as agreement, settlement and closure between parties.
Dated this 20th day of July 2015
Signed [signed]
Before me [signed Vicki Wilson]
A Justice of the Peace
The third of the three annexed documents, in order of date, was received on the hearing of the appeal as Exhibit A3 and appears as follows:
3/9/2015
Waltraud Lepse
……………………….
………………..
…………………….
To
Manager Expiation Notice Branch,
In regards to your claim (Expiation No. 11073398),
I, Waltraud Lepse, a woman, elect to prosecute this claim at a court of record.
Please arrange a date suitable to both parties.
Please note that, should this claim be pursued, I will claim compensation to the value I deem fit for the burden this has placed upon me.
Yours sincerely under God’s Law,
Waltraud Lepse
[signed]
Without prejudice
The above material is sufficient to demonstrate that the conduct of the defendant reflects a bizarre and delusional litigious strategy that has been described in a number of decided cases concerning similar circumstances as “pseudolegal”. The propounding of such baseless arguments may be uniformly unsuccessful but nevertheless highly disruptive and time-wasting. However, such documentation may usually be summarily dismissed as an abuse of the process of the court with little further ado.
The Notice of Appeal
On 17 March 2016, the defendant filed a notice of appeal in this Court seeking, perhaps ironically, to engage the jurisdiction of this Court. The notice of appeal was out of time. However, there was a not entirely implausible argument that this was partly due to the defendant attempting to secure a rehearing in the Magistrates Court and having been only notified of the Court’s refusal on 24 February 2016. Although the solicitor for the respondent was unenthusiastic, I considered it appropriate to extend time within which to appeal.
However there was a more serious matter concerning the notice of appeal, to which I now turn.
Rule 282(2)(a) of the Supreme Court Civil Rules 2006 provides that a notice of appeal must be in an approved form. Rule 228 of the Supreme Court Civil Supplementary Rules 2014 provides that the approved form is Form 52, found in schedule 3. Until comparatively recent times, the usual practice was that unrepresented appellants requested, and were provided with, a copy of the notice of appeal form and then filled out the required details of their case in handwriting. In the case of solicitors, it is been the practice to have court-approved forms inputted verbatim into their digital precedents so that details relevant to a particular client can be typed into the relevant court-approved form which can then be printed out as a whole.
However, it has now become common for unrepresented persons to themselves download court-approved forms from court websites, type in their relevant details, and file the completed document at the registry. The present case exposes a potential problem with that procedure.
Here, the defendant downloaded the appropriate appeal form from the court website, and typed into the appropriate areas of the form some details pertaining to her case and successfully filed it at the registry. The document, as presented, appeared genuine and I do not wish to be in any way critical of registry staff, or indeed of the solicitor of the respondent, for failing to detect a certain aberration. However, closer inspection by the Court prior to the hearing of the appeal revealed that while the document otherwise corresponds (closely enough) to the court-approved form, the following additional words (emboldened here but certainly not in the document as filed) had been surreptitiously inserted by the defendant in the substantive body of the form:
The Appellant, Waltraud Lepse, APPEALS to the a single Judge (acting under oath to Queen Elizabeth the second) of the Supreme Court of South Australia against the judgment of a single Magistrate of the Adelaide Magistrates Court. (Emphasis added)
Those emboldened words above do not form any part of the court-approved form and have been surreptitiously introduced by the defendant for her own purposes, and without any authority whatsoever to do so.
As many in the legal profession will be aware, there has been a considerable number of cases, both here and overseas, which have dealt with various bizarre purported “constitutional defences” sought to be advanced from time to time, and usually on the basis of suggestions to be found on the internet. It is sufficient to observe that there are obvious indications that this phrase “acting under oath to Queen Elizabeth the second” may be thought by some ill-informed persons to in some way advance abstruse, indeed unintelligible, arguments purporting to be in the nature of “constitutional” arguments. It is unnecessary to speculate further as to the purported motives of the defendant in inserting those words.
At the hearing of the appeal, of my own motion, I amended the notice of appeal by striking out the words and parentheses “(acting under oath to Queen Elizabeth the second)” pursuant to Rule 57 of the Supreme Court Civil Rules.
The fact that I took that course without initiating an investigation into this conduct of the defendant should not be thought to indicate that the surreptitious alteration of a substantive part of a court-approved document form is other than a very serious matter. In certain circumstances, such conduct might constitute a criminal offence, for example an attempt to pervert the course of justice.
Documents tendered on the appeal
I received the affidavit affirmed by Mr Muscat on 9 May 2016 referred to above as Exhibit R1.
The defendant sought to tender the purported affidavit dated 3 May 2016 and three annexures referred to above. I rejected the purported affidavit dated 3 May 2016 for the reasons stated above. The respondent (quite understandably) consented to the three annexures being received as stand-alone documents. I received them on that basis as Exhibits A1, A2 and A3 respectively.
The defendant also sought to tender a further purported affidavit dated 10 May 2016 (the proffered document dated 10 May 2016) which is in exactly the same defective format as the previous purported affidavit I have rejected. The defendant wished to present the proffered document dated 10 May 2016 in response to Exhibit R1 a copy of which she had just received. Mr Muscat indicated that he disputed some of the content of the document. The defendant gave an undertaking that she would file a properly sworn affidavit in correct form with the same content as the proffered document. I indicated that, on the basis of her undertaking, I would take into account the content of the proffered document dated 10 May 2016. The defendant was informed that I would be delivering judgment on this appeal at 10:00am on Wednesday 18 May 2016.
I note that as at the close of the registry on Tuesday 17 May 2016, no such affidavit has been filed by the defendant. However, so as not to compound delay and expense any further, I will proceed to decide this appeal by having regard to the content of the proffered document dated 10 May 2016 as if it were in the form of a valid affidavit.
The grounds of appeal
The grounds of appeal are as follows:
1. Forced removal from court before the case was addressed so I was denied to respond to the charge and I am confused as to why I was forced to leave the court.
2. Mischief by all involved in order to confuse and intimidate, placing me under severe duress.
The two grounds largely overlap and can conveniently be considered together. In essence, decision of this appeal involves a consideration of the requirement of “attending” or “appearing” at court in response to a summons and the application of a statutory power to proceed in the absence of a defendant when such requirements are not satisfied.
Consideration of the appeal
The meaning of “attending” or “appearing” in court in response to a summons is perhaps a topic that is addressed relatively infrequently, but in the present case it assumes some importance.
It can be seen from the transcript (as verified by the affidavit of Mr Muscat, Exhibit R1), that the defendant deliberately adopted the same modus operandi in relation to both the Special Justice and the Magistrate. She passed through the door of the courtroom and, standing at a position just inside the door, attempted to negotiate with the Court the terms under which she would be prepared to attend, or appear, before the Court. She was asked on several occasions to come forward to the designated area where the parties in a case, or legal practitioners representing such parties, must attend or appear when their case is called on by the presiding judicial officer, namely “the bar table”. But the defendant at all times refused to do so, and asserted that it was entirely a matter for her choice as to whether she would submit to the Court’s jurisdiction.
Delineated areas in a courtroom - the bar table
It is of importance, both generally and in the present case, that there must be a clear differentiation between categories of persons who may be inside a courtroom. One category of persons consists of the presiding Judicial Officer(s) and Court staff (including stenographers). Another category of persons consists of lawyers and litigants, including defendants attending or appearing in response to a summons. A further category of persons consists of members of the public observing proceedings; these persons are free to enter and leave the courtroom whenever they please,[13] but have no right to address the Court.
[13] Subject only to the occasional closing of a court for good reason under s 69 of the Evidence Act 1929.
For the orderly conduct of proceedings, it is traditional to maintain a number of delineated areas in courtrooms including:
·the “bench” where the presiding Judicial Officer(s) sit(s);
·the “court staff area” where court staff including stenographers sit;
·“the dock” where (a) defendant(s) in custody sit(s);
·“the public gallery” where members of the public sit and observe; and
·“the bar table” (however disposed in rows or otherwise), where lawyers and litigants actually engaged in a case being heard by the Court (including defendants attending or appearing in response to a summons) sit.
There is no particular magic in the term, or in the physical object, “the bar table”.[14] No particular structure or labelling is necessary.[15] What is required is to keep separate the lawyers and litigants actually engaged in a case being heard by the Court on the one hand and members of the public in the public gallery who have no right to be heard by the Court on the other hand.
[14] Jowitt’s Dictionary of English Law (Sweet & Maxwell, 2nd ed, 1977) defines “bar” as follows:
A bar is a partition across a court of justice. In the House of Lords and the House of Commons, the bar forms the boundary of the House, and therefore all persons, not being members, who wish to address the House, or are summoned to it, appear at the bar for that purpose; thus, in arguing appeals in the House of Lords, counsel stand at the bar.
In the ordinary court, the bar is a more or less imaginary barrier separating the bench and the front row of counsel’s seats from the rest of the court; only Queen’s counsel and barristers holding patents of precedence are allowed within the bar, together with solicitors (as officers of the court) and parties litigant who appear in person, while junior or utter barristers and the general public remain without the bar.
Hence, “bar” has acquired the secondary sense of “court” in such phrases as the “case at bar,” “disclaimer at the bar,” meaning “in court,” and the tertiary sense of the whole body or profession of barristers. The operation of being admitted to practise as an utter barrister is described as being “called to the bar,” while Queen’s counsel are called within the bar, that is, invited by judges to take their seat in the front row. ...
[15] Courts may be convened under a great variety of circumstances. An outback court on Aboriginal lands might be entirely in the open air; in such circumstances, members of the public observing could be divided from the litigants by as little as a line literally drawn in the sand.
It can readily be understood that, since public observers will be coming and going, the public gallery will logically be nearest to the courtroom door and farthest from the bench. Equally logically, since it is the lawyers and litigants actually engaged in the case before the Court who have the right to be heard by the Court, the bar table will be close to the bench so that each can clearly hear the other.
When, as in the present case, a Magistrate is conducting a running list of prosecution matters, at the conclusion of one matter, another matter will be called on without the Magistrate leaving the bench. If the defendant is seated in the public gallery waiting for a matter to be called on, he or she must immediately move from that public gallery to the bar table (unless a different area is indicated by the Magistrate). Similarly, if, as in the present case, the defendant has been waiting outside the courtroom, then when the matter is called on, the defendant must immediately enter the courtroom and proceed directly to the bar table and thereby “appear” and submit to the Court’s jurisdiction.
The way that that requirement is conveyed to a defendant who has been summonsed to attend or appear is a matter for the presiding Judicial Officer; he or she is not required to utter any particular form of words to the defendant in this regard. It is sufficient that the defendant summonsed is informed by the Court that he or she is required to go to a particular place within the courtroom.
Proceeding in the absence of a defendant
In the circumstances of the present case involving a complaint and summons issued by a “public authority or public officer”[16] in the Magistrates Court, the matter of dealing with defendants to criminal charges in their absence is governed by ss 62(1)(b) and 62BA of the Summary Procedure Act 1921 which provide:
62—Proceedings on non-appearance of defendant
(1) If the defendant fails to appear in obedience to the summons the court may—
...
(b)upon proof that the summons was served a reasonable time before the time thereby appointed for his appearance, proceed in the absence of the defendant to the hearing of the complaint and subject to section 62C to adjudicate thereon as fully and effectually, to all intents and purposes, as if the defendant had personally appeared before it in obedience to the summons; or
[16] Within the meaning of s 57A of the Summary Procedure Act 1921.
62BA—Proceedings where defendant neither appears nor returns written plea of guilty
(1) Where in any proceedings under this Act—
(a)a complaint has been made by a public authority or public officer within the meaning of section 57A of this Act; and
(b)the defendant has been duly served with a summons but does not appear at the time and place appointed for the hearing or determination of the complaint or at a time and place at which the complaint is subsequently heard or determined, or, in the case of a complaint and summons served under section 57A of this Act, he neither so appears nor pleads guilty in the manner provided by that section,
the court may proceed to adjudicate on the complaint in the absence of the defendant in the manner provided by, and subject to the conditions in, section 62 of this Act, but may in so doing regard any allegation contained in the summons, or complaint and summons, (as served upon the defendant) as sufficient evidence of the matter alleged.
(1a) If the court finds the charge proved, the prosecutor may recite to the court any relevant matters alleged against the defendant in the same way as if the defendant had personally appeared and pleaded guilty.
(2) Allegations are contained in a summons, or complaint and summons, for the purposes of subsection (1) of this section if they are contained in, annexed to, or accompany, the summons or complaint and summons.
(3) The allegations referred to in subsection (1) of this section may include particulars of the alleged offence and of the circumstances in which it is alleged to have been committed.
(4) Where a complaint purports to have been made by a public authority or public officer within the meaning of section 57A of this Act, it shall be presumed to have been so made in the absence of proof to the contrary.
(5) The provisions of this section are supplementary to, and do not derogate from, any other statutory provisions regulating the hearing and determination of a complaint.
I hold that the Magistrate in the present case correctly declined to hear the defendant after she unequivocally refused to go to the bar table and that his Honour correctly utilised the procedure in ss 62(1)(b) and 62BA of the Summary Procedure Act 1921.
A situation not dissimilar to the present occurred in the Western Australian decision of Ashwell v Commissioner for Consumer Protection.[17] The defendant appealed from a decision of the Magistrates Court. When the appeal was called on before Jenkins J on 5 June 2015, the defendant was in the public gallery and sought to make his submissions from there. He refused to come to the bar table despite repeated requests by the Judge. The result was that Jenkins J refused to hear submissions by the defendant from the public gallery and therefore heard oral submissions only from the respondent.[18] In later delivering reasons for that ruling, Jenkins J stated:
[17] [2015] WASC 337.
[18] His Honour further ruled that the only material from the defendant to which he would refer in determining the appeal would be the evidence and documents from the Magistrate Court, written material previously filed in the appeal, and the transcript of interlocutory proceedings conducted by telephone by Corboy J on 3 March 2015 when the defendant had apparently then been willing to speak by telephone.
[25] I then asked Mr Ashwell why he declined to come to the bar table. Mr Ashwell replied “I don’t believe in your court”. This comment was consistent with various statements made in the appellants’ written submissions filed in the appeal. For example, those submissions include the following statements:
11.The man, David Ashwell, at no time, grants willing consent to being a party to these proceedings, but attends merely for the purpose of putting matters right.
12.Attendance is under duress:
a) to bring clarity to falsified information,
b) to serve compensation bills for harm and injury incurred,
c) to hold accountability by those who chose to harm Mr Ashwell, his wife, and his livelihood to make a point out of a matter that was exploited beyond any rational proportion.
13.Attendance is under protest and as a result of injury incurred.
…
16.It is recognised and acknowledged that this court, the Supreme Court of Western Australia and the Magistrates Court of Geraldton Western Australia, is NOT following procedures under a Common Law Jurisdiction.
…
58.Silence is consent. Well not in this court room on June 5th 2015. Let it be clearly known and understood, that consent to this paradigm is NOT granted.
[26] Mr Ashwell’s comment was also consistent with comments he had made to the magistrate, including the comment “I do not recognise the court” (ts 24, 28 August 2014).
[27] I advised Mr Ashwell that I did not wish to deny him an opportunity to be heard orally in the appeal, but that unless he came forward to the bar table, I was not prepared to hear him. I said that the reason for this was that in order for him to prosecute the appeal he must submit to the authority of the court to hear and determine it. Mr Ashwell refused to come forward to the bar table then and again after the respondent’s oral submissions were made. In those circumstances, I declined to permit him to make oral submissions on his appeal from the public gallery.
[28] On the material before me, there was no practical reason why Mr Ashwell could not come forward to the bar table. Rather, because of his hearing disability, there were very good practical reasons why it was desirable for him to come forward to the bar table to make his submissions.
[29] Fundamentally, Mr Ashwell refused to come to the bar table as a demonstration of his belief that the court does not have authority over him. Of course, this belief is inconsistent with the commencement and prosecution of the appeal. Putting that issue to one side, it seemed to me that by his actions Mr Ashwell was mocking the court’s authority and demonstrating his refusal to recognise the court’s jurisdiction. Whilst the court does not revel in exercising authority over litigants, it is important that litigants who seek redress from the court are prepared to acknowledge the authority of the court and to demonstrate that by appropriate behaviour in the court. (Emphasis added)
Conclusion
I conclude that the Magistrate acted correctly in requiring the defendant to approach the bar table and, upon her repeated refusal to do so, in ordering that she be removed from the courtroom, as she was plainly disrupting Court proceedings and defying his Honour’s lawful orders. I further find that his Honour acted correctly in proceeding to find the charge proven in her absence and in imposing penalty and making associated orders. Sections 62(1)(b) and 62BA of the Summary Procedure Act 1921 were plainly engaged by the defendant’s failure to appear in obedience to the summons in that she refused to proceed to the bar table as directed by the Magistrate and thus refused to attend or appear before the Court. I find that there is no merit in either of the defendant’s grounds of appeal and I reject both grounds of appeal.
I further note that the defendant has wasted the Court’s time, and abused the process of the Court, by seeking to engage in pseudolegal arguments that lack any substance, by submitting nonsensical documents and by surreptitiously altering a substantive part of a court-approved form document.
Antidotes to the bane – some general remarks
I make some further general remarks addressed to matters that have arisen in this case.
The Canadian judgment of Rooke ACJ in Meads v Meads
I note that in Meads v Meads,[19] Rooke ACJ of the Court of Queen’s Bench of Alberta, Canada, has written a valuable and lengthy judgment dealing with a broad range of pseudolegal conduct. The judgment shows that many types of pseudolegal arguments have been encountered. I refer to some short excerpts particularly relevant to the present case from what is a very extensive judgment.[20]
[19] 2012 ABQB 571.
[20] 2012 ABQB 571. Rooke ACJ referred to pseudolegal documents as OPCA documents. To find out why, I suggest reading the judgment.
[243] Common ‘scripted’ motifs include demands by the OPCA litigant:
...
•that the court state whether it is addressing the litigant in one of two roles, such as whether this is to a “legal person” or a “corporation”, vs a “flesh and blood person”, or a “natural person” ...
[244] OPCA litigants often present documentation to the court or another party at the hearing itself, without prior service or warning. Common examples include:
•an attempt to present the judge or a court official with documents that make the court a fiduciary, agent, or foist a contract on the judge or court official: this proceeding; and
•presenting the judge, the court clerk, or an opposing litigant with a ‘fee schedule’ or other foisted unilateral agreement (see below).
…
[251] A particularly difficult category of OPCA litigant are those who adhere to the OPCA concept that all interactions between the state, courts, and individuals are contracts. As is later explained in greater detail, persons who adopt this concept will interpret almost any invitation by the court or compliance with court procedure as the formation of a contract. For example, members of this Court have observed that litigants who apply the OPCA ‘everything is a contract’ strategy will refuse simple court directions and processes, such as to pass the bar,[21] sit, stand, or acknowledge their identity.
[21] “To pass the bar” is the Canadian terminology for passing the dividing point in the courtroom between the public gallery and the area for litigants and counsel.
[252] Similarly, litigants who refused to identify themselves but claim to represent an entity related to the litigant will often maintain this role in the face of strong court warning. These OPCA litigants are often very argumentative.
[253] The manner in which the refusal occurs is often highly formalistic. ...
…
[324] Similarly, OPCA litigants have demanded that court documents, such as informations and summons, display their names in all capital letters: R. v Lawson, 2012 BCSC 356 at para 9, 2012 D.T.C. 5069. That, presumably, would then allow the litigant to claim that the all-capitals name related to someone else, and thereby go free.
…
[428] … In Mercedes-Benz Financial v Kovacevic, [2009] O.J. No 783 at para 14, 2009 CanLII 9368 (Ont. Sup. Ct. J.), Justice Brown reproduces a “most unusual” contract:
... signed twice by Mr Kovacevic: once in his capacity as “secured-party, first-party”, and then again as “debtor, second-party”.
[429] Brown J then at para 15 summarizes the document’s intended effect:
It appears that by this document Mr Kovacevic has attempted to split himself into two separate persons – a “flesh and blood living man”, and a “juristic person\strawman\legal entity” created by the Province of Ontario. If one takes the document at face value, then Mr Kovacevic impliedly acknowledges that up until December 11, 2007 – ie three months after he had purchased the Mercedes-Benz - he was a “juristic person”. He then attempts to transfer to his newly created “flesh and blood living man” all his property then owned. The document notably is silent as to what happened to the debt held at that time by the “juristic person”.
[430] He then concludes at para 45:
Of course this document has no legal effect. In the eyes of the law it is rubbish. However, when read together with the other documents created by Mr Kovacevic it forms part of what I conclude to be a deliberate effort on his part to avoid payment of his debt obligations.
The ambit of a court’s duty to assist an unrepresented litigant
It is well accepted that a court has a duty to assist unrepresented litigants in the interests of the proper administration of justice. However, the precise extent of that duty, and the way in which it must be discharged, remain open questions.
I note that in Re Magistrate M M Flynn; ex parte McJannett,[22] McKechnie J, having heard an application by an unrepresented litigant who adopted an attitude rather similar to that of the present defendant, said:[23]
[9] The applicant appears to be one of a group of individuals without legal training who continue to espouse theories of constitutional law that have no basis. Courts in this State and throughout Australia, indeed the common law world, have steadfastly so ruled.
[10] As a result of his continuing pre-occupation with discredited legal theory the applicant has sworn in his affidavit such nonsense as:
1. I am a Man, a flesh and blood living soul created under God also known as a ‘Human Being’. I am not a corporate entity and I do not consent to my body being transferred to a corporate entity for the purposes of commerce including commercial transactions in any court.
2. My name is Man or Robert Paul as per the ‘Birth Certificate’ extracted from my live birth record on 6 June 1961 annexed to this affidavit and marked RP 01 and of which Birth Certificate signifies the Cestui Que trust created by the State of Queensland without my consent. …
[22] [2013] WASC 372.
[23] Re Magistrate M M Flynn; ex parte McJannett [2013] WASC 372.
After reproducing more of the same, his Honour concluded:
[11] It is not necessary to comment on these assertions. Mere quotation of these paragraphs is sufficient to explain why this action is vexatious and is dismissed.
…
[14] If he wishes to play games about his identity while engaged in the serious business of court hearings involving criminal charges, he should expect magistrates to respond as did this magistrate. There is no room in a crowded Magistrates Court for time wasting by idiosyncratic litigants who believe in legal theories that are without merit.
[15] Finally, judges administer justice according to law. They are not required to expend judicial time, a scarce public resource, on applications that have no legal foundation and involve a deluded understanding of the law.
Thus, McKechnie J in effect held that the extent of the duty must be approached in a contextual way. I note that Rooke ACJ expressly took this position in Meads v Meads when his Honour stated:[24]
[628] … The Alberta Court of Appeal in Cold Lake First Nations v Alberta (Minister of Tourism, Parks and Recreation), 2012 ABCA 36 at para 24 described that obligation as a judge has “... a special duty to provide limited assistance to unrepresented parties ...”. At para 25 the scope of that obligation is reviewed:
The extent of this duty depends on the totality of the circumstances, including the seriousness of the offence, the defences raised, and the sophistication of the unrepresented party ... The judge’s advice must be interactive, appropriate to the unrepresented party and to the surrounding circumstances of the case ... Just how far a judge should go in guiding an unrepresented party is a matter of judicial discretion ... [Citations omitted]
[629] That is clearly a contextual response. In OPCA litigation, that duty occurs in the face of vexatious litigation and procedural strategies that are designed to disrupt court operation and impede the exercise of legal rights. OPCA litigants have chosen to implement strategies that they have been told will, at a minimum, paralyze court operation, if not break it. That means OPCA litigants have, first and foremost, decided to adopt vexatious litigation strategies. These OPCA litigants claim (wrongly) to be outside court jurisdiction – the rules do not apply to them. (Emphasis added)
[24] 2012 ABQB 571.
As Rooke ACJ rightly recognised, assessing the extent of the court’s duty to advise and assist is very much a contextual response when it concerns unrepresented litigants who are deliberately attempting to assert meritless arguments and stratagems.
A need for registry staff to be vigilant
In the light of the surreptitious changing of a substantive part of a court- approved form referred to above, I consider it important that when court registry staff deal with unrepresented litigants, they should pay particular attention to any court-approved form in a wholly typewritten format that is presented for filing.[25] It is not that an unwitting acceptance of an improperly altered document for filing, such as has occurred in this case, presents a substantive legal advantage to that litigant. The courts are not so powerless as to be unable to deal with such matters when they arise, as has been done in the present case. The real difficulty is that, if such additions are not discovered for some time, then at some later stage of the litigation, arguments may be put, possibly by either party, concerning the validity of a court process dependent on a court-approved form altered by one of the parties. The mere hearing and addressing such arguments may waste valuable court time.
[25] That will be the most obvious modus operandi. But, of course, a determined fraudster could download a court-approved document, alter a substantive portion and then fill in the blank “required details” sections in handwriting, thus giving registry staff false confidence that the typed portion of the form is unaltered. This is a possibility that can no longer be discounted when accepting documents for filing.
“Witnessing” of documents by Justices of the Peace and others
In the present case, a Justice of the Peace has been prepared to append her signature and stamp to documents which falsely purport to be affidavits and, to a lay person, might well be presumed to be affidavits. However, it is quite clear that these documents have in no way been sworn of affirmed. I consider this to be a serious matter.
However, the matter does not stop there. The content of documents may be so clearly redolent of an abuse of legal process that a person such as a Justice of the Peace should play no part in the advancing of such documentation, quite irrespective of whether they actually purport to be affidavits.
This is not the first time that this matter has been addressed. In Meads v Meads, Rooke ACJ addressed the duties of practitioners in such a context thus:[26]
[642] Like the judge, a lawyer who represents the target of an OPCA litigant faces a difficult task. However, as an officer of the court each lawyer has certain duties not only to the client, but also to the justice system as a whole.
a. Notarization of OPCA Materials
[643] One duty is to not participate in or facilitate OPCA schemes. During preparation of these Reasons, I reviewed a large number of OPCA litigation files in our Court. I was very disturbed and profoundly disappointed to see the number of occasions where an OPCA document was notarized by a practicing lawyer. Certain of Mr Meads’ materials were marked in that manner, by two different members of the Alberta Bar.
[644] Alberta Justice has instructed lay notaries to not endorse documents of this kind: Papadopoulos v Borg, 2009 ABCA 201 at para 3.
[645] This Court has, on previous instances, drawn to the attention of the Law Society of Alberta that this kind of action is inappropriate for an officer of the court. It assists implementation of vexatious litigation strategies. In my view, a lawyer has a positive duty not to engage in a step that would ‘formalize’ (though typically in a legally irrelevant manner) an OPCA document. I have previously noted that certain OPCA gurus place a peculiar and mythical authority in a notary’s hands. A lawyer should not, directly or indirectly, reinforce, or support that purpose.
[26] 2012 ABQB 571.
I consider his Honour’s comments apply equally in this jurisdiction. Justices of the Peace, or others, who purport to witness documents which on their face appear to be associated with meritless pseudolegal arguments may be seen to be giving support to such arguments. It is disappointing to see that documents of that sort in this case have been given what might appear to be some verisimilitude by appearing to have been formalised by a Justice of the Peace.
Orders
Although it was not a ground of appeal, the defendant complained that the memorandum of conviction referred to the defendant being convicted of “Stop at or near bicycle crossing lights” rather than “Stop in a permit zone”. Apparently this occurred as a result of a court staff member keying in an incorrect road rules reference which generated the incorrect abbreviation of the relevant offence. It is important to note that the complaint and summons correctly averred the offence charged and the defendant was validly convicted of that offence. The subsequent internal recording error could be adequately remedied by an order to amend the record and accordingly I made such an order at the hearing of the appeal in the terms that are repeated below in order 3.
I make the following orders.
1That the time within which to file a notice of appeal be extended to 17 March 2016.
2That the words and parentheses “(acting under oath to Queen Elizabeth the second)” be struck out of the notice of appeal as an abuse of the process of the Court.
3That the words “at or near bicycle crossing lights” on each occasion they appear on the record in matter no. AMC-15-14277 be struck out and replaced with “in a permit zone”.
4The document entitled “Notice of Intent” lodged by the defendant at the Supreme Court registry for filing on 27 April 2016 is rejected for filing pursuant to Rule 53 of the Supreme Court Civil Rules on the basis that it is an abuse of process of this Court.
5The appeal is dismissed.
I will hear the parties as to costs.
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