Attorney-General for the State of Victoria v Shaw (No 5)

[2013] VSC 106

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 9997 of 2006

IN THE MATTER OF an Application pursuant to s 21 of the Supreme Court Act 1986

THE ATTORNEY-GENERAL FOR THE STATE OF VICTORIA

v

BRIAN WILLIAM SHAW

Plaintiff

Defendant

---

JUDGE:	BEACH J
WHERE HELD:	Melbourne
DATE OF HEARING:	12 March 2013
DATE OF JUDGMENT:	12 March 2013
CASE MAY BE CITED AS:	Attorney-General for the State of Victoria v Shaw (No. 5)
MEDIUM NEUTRAL CITATION:	[2013] VSC 106

---

PRACTICE AND PROCEDURE – Vexatious litigant – Application for leave to commence legal proceedings – Application refused – Supreme Court Act 1986, s 21(4).

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	No appearance
For the Defendant	Mr Shaw in person

HIS HONOUR:

Introduction

1. Mr Brian William Shaw was declared a vexatious litigant in May 2007.[1]  As a result, Mr Shaw was prohibited from commencing proceedings in any State court or tribunal without the leave of this Court.[2]  Mr Shaw now seeks the leave of this Court to file and serve criminal charges against The hon. Marilyn Warren, The Chief Justice of the Supreme Court of the State of Victoria.[3]

   [1]Attorney-General for the State of Victoria v Shaw [2007] VSC 148.

   [2]The background circumstances leading to Mr Shaw being declared a vexatious litigant are set out in Attorney-General for the State of Victoria v Shaw [2007] VSC 148. Some of the history of the various applications made by Mr Shaw subsequent to the making of this order may be found in Attorney-General for the State of Victoria v Shaw (No 2) [2010] VSC 73; Shaw v Attorney-General for the State of Victoria [2011] VSCA 63; The Attorney-General for the State of Victoria v Brian William Shaw (unreported, Supreme Court of Victoria, Macaulay J, 27 March 2012); The Attorney-General for the State of Victoria v Brian William Shaw (unreported, Supreme Court of Victoria, Ferguson J, 18 July 2012); Attorney-General for the State of Victoria v Shaw [2012] VSC 334 (J. Forrest J); and Shaw v The Attorney-General for the State of Victoria (unreported, Supreme Court of Victoria, Court of Appeal, Whelan JA and Vickery AJA, 1 March 2013).

   [3]Cf s 78 of the Constitution Act 1975.

Bias

1. At the commencement of his application, Mr Shaw made application that I disqualify myself for bias.  It was not made clear whether this application relied upon actual bias, or merely ostensible bias.  However, if the application was that I disqualify myself for actual bias, then I reject it as baseless.[4]

   [4]Certainly no basis for an allegation of actual bias was suggested in argument this morning.

1. The general principle relevant to the disqualification of a judge for reasons of apprehended bias is that a judge should not sit and determine a case if a fair minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide.[5]  The ordinary duty of a judge is to hear and decide cases regularly invoked in his or her jurisdiction and to which he or she has been assigned.  An objection to a judge sitting on the basis of an allegation of apprehended bias should not succeed unless there is a “substantial basis” for concluding that the judge is disqualified by reason of apprehended bias.[6]

   [5]See generally Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at 344 [6].

   [6]Ibid at 348 [19]. See further Re JRL; ex parte CJL (1986) 161 CLR 342 at 352.

1. Mr Shaw’s material makes complaint about various decisions and conduct of a large number of Federal and State[7] judges and politicians.  As part of his material, he makes complaint about 13 judges and associate judges who are described as “principal co-offenders”.  I am one of the listed judicial officers alleged to be a “principal co-offender”.[8]  In addition to the 13 alleged principal co-offenders, reference is made by Mr Shaw to other judges “already presented for Grand Jury indictments” and seven High Court (or former High Court) judges against whom there are said to be “pending Grand Jury indictments”.

   [7]Not limited to Victoria.

   [8]Principal co-offenders appear, from the material, to include those who have given judgment against Mr Shaw or made decisions with which Mr Shaw disagrees.

1. Mr Shaw’s bias application was said to be made on three grounds:  first, the fact that I had determined matters against him in an earlier application;[9] secondly, it was said that s 34 of the Crimes Act 1914 (Cth) “compounded matters”; and thirdly, “general common law principles” were relied upon.

   [9]Attorney-General for the State of Victoria v Shaw (No 2) [2010] VSC 73.

1. Mr Shaw, who is somewhat free with his allegations of treason and fraud, asserts that there is a problem for the Supreme Court of Victoria in dealing with his applications.  The problem relates to the fact that he has made (and continues to make) allegations of treason and/or fraud against a large number of judges and former judges (if not the whole of the Court),  and the Court generally.

1. Ordinarily, it might be thought surprising for a judge to hear an application involving an applicant who alleges that that judge is a principal co-offender with the person against whom that applicant wishes to commence criminal proceedings.  However, it is clear from Mr Shaw’s material that he makes allegations of treason and/or fraud against every current sitting judge of this Court.  In the circumstances, I have concluded that the mere fact that Mr Shaw has included me in his myriad of allegations, did not require me (or even entitle me) to recuse myself in relation to this application.  As has been said before, colourable applications for disqualification which might be used as a means of “judge shopping” must be resisted.[10]

   [10]Livesey v New South Wales Bar Association (1983) 151 CLR 288, 294.

1. All of that said, having regard to the extensive allegations of criminal conduct that Mr Shaw makes against the Court, there is no basis for me to disqualify myself so as to require Mr Shaw’s application to be heard by some other judge of the Court. Mr Shaw’s application that I disqualify myself for bias must be rejected.

Trial by jury

1. In the summons by which Mr Shaw makes his present application, Mr Shaw asserts that his application must be heard by a judge and jury.  The summons provides:

“To affirm natural justice the application must be heard by a judge and jury, this Right is claimed by the words found in Section 80 of the Commonwealth Constitution.”

1. It is trite that neither s 80 of the Constitution, nor any other statute or principle of common law, requires (or indeed permits) Mr Shaw’s present application to be heard by a judge and jury. Insofar as Mr Shaw applied for the present application to be heard by a judge and jury, that application must be refused.[11]

   [11]Harding v Deputy Commissioner of Taxation (2008) 172 FCR 206 [17]-[25]. See further, rule 47.02 of the Supreme Court (General Civil Procedure) Rules 2005 and Accident Compensation Commission v Haynes [1992] 1 VR 691.

The present application

1. In his voluminous affidavit material, Mr Shaw describes the Chief Justice as “the accused”.  Mr Shaw then sets out various so-called “counts” which he alleges are criminal offences committed by the accused.  Without setting out all of the counts, the following are but examples:

“The accused on 1^st November 2012 in the blue court, Court of Appeal Lonsdale Street Melbourne, did commit The Common Law offence of Fraud by failing to disclose that the Constitution of The Commonwealth of Australia established in 1900 has been suspended without the knowledge nor consent of the electorate.”

and:

“The accused on 1^st November 2012 in the blue court, Court of Appeal Lonsdale Street Melbourne, did commit the Common Law offence of Treason by sitting in Federal Jurisdiction with knowledge that the oath of allegiance to Queen Elizabeth the Second has been removed from The Legal Practices (scil, Practice) Act 1994 Victoria by enactment of The Courts and Tribunals Legislation (Further Amendment) Act 2000 (51/2000).”

1. Section 21(4) of the Supreme Court Act 1986 provides that an application by a vexatious litigant for leave to commence a proceeding must be refused unless the court is satisfied that the proposed proceeding is not or will not be an abuse of the process of the court. The onus rests on Mr Shaw to show that the proceeding (or proceedings) he wishes to commence will not be an abuse of process. Further, as the authorities show, Mr Shaw’s application should be refused if the Court is of the opinion that the proposed proceeding is (or proposed proceedings are) “foredoomed to fail”.[12]

   [12]Phillip Morris Limited v Attorney-General (Vic) (2006) 24 VR 538 [85] and [116]; Attorney-General for the State of Victoria v Shaw (No 2) [2010] VSC 73; and Shaw v Attorney-General for the State of Victoria [2011] VSCA 63.

1. At the time he filed this application, Mr Shaw filed 175 pages of affidavit material under the heading “Affidavit in Support Chief Justice Warren”.  Last Thursday (7 March 2013), Mr Shaw filed a further four affidavits headed “Affidavit Justices Whelan & Vickery”, “Affidavit eight defendants May 2004 inclusive of Mr Alex Chernov”, “Affidavit stamped grand jury application 9 September 2003 Mr Charles Wheeler” and “Affidavit stamped grand jury application 26 February 2006 Mr R. Hulls”.

1. The affidavit headed “Affidavit Justices Whelan & Vickery” makes complaint about the conduct of Mr Shaw’s application seeking an extension of time to apply for leave to appeal from the decision of J. Forrest J given on 10 August 2012.[13]  The other three affidavits appear to recycle arguments that have been made, and rejected, in earlier applications made by Mr Shaw.

   [13]Attorney-General for the State of Victoria v Shaw [2012] VSC 334.

1. Underlying a number of Mr Shaw’s claims is an allegation that in enacting the Courts and Tribunals Legislation (Further Amendment) Act 2000, the Parliament of Victoria committed an act of treason. Further, as I have already noted, Mr Shaw contends that this act of treason has been “compounded thereafter by every judicial officer and court within the State of Victoria, thereby involving each judicial officer inclusive of the Victorian Police Force in the concealment of such offence (misprison of treason) rolling over into non-disclosure of a material fact (fraud), thereby compounding into a number of criminal offences”.

The resolution of the present application

1. The proceeding Mr Shaw seeks leave to commence would (if issued) be an abuse of process.  It would be an abuse of process on a number of levels.  First, the proceeding would be premised upon a number of propositions which have been already rejected by a number of different courts.  Secondly, there is no basis in law or in fact for the laying of the charges Mr Shaw seeks to lay.  Thirdly, Mr Shaw’s application demonstrates that if he was given leave to commence the proceedings he proposes, such proceeding would be mired in an array of irrelevant, misconceived and baseless allegations.  Fourthly, as Mr Shaw’s applications to date demonstrate, if Mr Shaw was given leave to commence the proceeding he wishes to commence, he would conduct it in open disregard of any binding authority with which he does not agree (generally asserting that the court responsible for that authority has itself committed treason or fraud).  Fifthly, any proceeding issued would have no prospects of success.

Conclusion

1. Mr Shaw’s application for leave to commence a proceeding must be refused.

Post script

1. In Attorney-General for the State of Victoria v Shaw,[14] J. Forrest J observed that “the vexatious litigants provisions of the Supreme Court Act are unsatisfactory”.  His Honour then described the significant time and consumption of public monies in dealing with some of these applications.  While one must be careful not to tar all vexatious litigants (or all applications made by vexatious litigants) with the one brush, I thoroughly endorse his Honour’s observations. That said, a careful consideration of Mr Shaw’s present application mandates it being refused.

   [14][2012] VSC 334.