Baker v NSW Police Force

[2014] NSWSC 907

Supreme Court

New South Wales

Medium Neutral Citation:

Baker v NSW Police Force [2014] NSWSC 907

Hearing dates:

4 July 2014

Decision date:

04 July 2014

Jurisdiction:

Common Law

Before:

Davies J

Decision:

1. Amended Summons dismissed pursuant to r 13.4.

2. Plaintiff to pay Defendant's costs of the proceedings.

Catchwords:

ADMINISTRATIVE LAW - challenge to convictions by magistrate - challenge based on purported right to trial by jury - identical proceedings already determined by Court of Appeal - no different basis shown for present proceedings - application by Defendant to dismiss summarily - proceedings dismissed

Legislation Cited:

Civil Procedure Act 2005 (NSW)
Supreme Court Act 1970 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:

Baker v New South Wales Police [2013] NSWSC 57
Baker v Attorney-General for New South Wales [2013] NSWCA 329
General Steel Industries Inc v Commissioner For Railways (NSW) (1964) 112 CLR 125

Category:

Interlocutory applications

Parties:

Cyril Brett Baker (Plaintiff)
Senior Constable Gavin Morris (First Defendant)
Senior Constable Christopher Fraser (Second Defendant)
Constable Kate Wilson (Third Defendant)
Local Courts of New South Wales (Fourth Defendant)
District Court of New South Wales (Fifth Defendant)
NSW Attorney General's Department (Sixth Defendant)
The State of New South Wales (Seventh Defendant)

Representation:

Counsel:
In person (Plaintiff)
C Butler (Defendant)
Solicitors:
Self represented (Plaintiff)
Crown Solicitor's Office (Defendant)

File Number(s):

2014/68243

Judgment

1. The Defendant moves by Notice of Motion filed 13 June 2014 to dismiss proceedings brought by the Plaintiff as disclosing no reasonable cause of action or that are otherwise an abuse of process.

1. The proceedings that the Plaintiff has brought are contained in an Amended Summons filed 7 May 2014. The Amended Summons seeks prerogative relief under s 69 of the Supreme Court Act1970 (NSW) in these terms:

1. THAT a Judicial Review under section 69B of the NSW Supreme Court Act 1970 be conducted into the Cases Numbered 2011/00295490, 2011/00370499 and 2013/00322682 heard at the Local Courts of NSW Registries at Tamworth, Quirindi, Armidale and Scone and Case Number 2011/00295490 heard at the District Court of NSW Registry at Tamworth.

2. THAT the Court requires that Magistrates Roger D. Prowse, Lloyd S. Stanimirovic, Mark Richardson and Malcolm MacPherson perform their duty imposed on a person in his capacity as a servant of the Crown.

3. THAT I, cyril brett baker, am the person aggrieved by their decisions and my interests have been adversely affected by their decisions to deny me my inalienable Right to Trial By Jury and the lawful judgment of my equals that has been guaranteed for ever by Magna Carta 1215, the Confirmation of Charters 1297, the Petition of Right 1627, the Habeas Corpus Act 1641 (to Abolish the Star Chamber) and the Bill of Rights 1689 which are entrenched Common Law in Australia; and Constitutional Enactments in Australia by virtue of Part 1 -Constitutional Enactments listed in the NSW Imperial Acts Application Act 1969 No. 30, Second Schedule and s118 of the Commonwealth of Australia Constitution Act 1900 and the Constitution.

4. THAT the Court Order a Permanent Stay of Proceedings in these cases until a lawfully constituted Chapter III court having proper jurisdiction, is convened with a Jury empanelled.

The Court set aside and stop all awards, doings and proceedings of Cases Numbered 2011/00295490, 2011/00370499 and 2013/00322682 heard at the Local Courts of NSW at Tamworth, Quirindi, Armidale and Scone and Case Number 2011/00295490 heard at the District Court of NSW Registry at Tamworth as "holden for nought" and, if the NEW SOUTH WALES POLICE FORCE still want to prosecute me, that those charges be reheard before by a jury of twelve (12) of my peers.

5. THAT the Court award me, cyril brett baker, as the aggrieved described in the Habeas Corpus Act of 1641, damages of AU$ 250,000 as today's equivalent of that which set out in that "Act to Abolish the Star Chamber".

6. THAT the Court determines if the Governor General of Australia and the Governor of the State of New South Wales are lawfully authorised and appointed by Her Majesty Queen Elizabeth the Second of Great Britain and Ireland to carry out their duties and functions in accordance with the Commonwealth of Australia Constitution Act 1900 and the Constitution and the Constitution Act 1902.

1. The prerogative relief that is sought arises out of offences in respect of which the Plaintiff was convicted in Tamworth Local Court on 18 November 2011 and 11 June 2013 and also apparently in respect of proceedings with which he is charged and which are due to be heard at Armidale Local Court on 8 July 2014.

1. In respect of the offences for which he was convicted on 18 November 2011, he sought prerogative relief in this Court against those convictions. That matter was heard by Latham J, who delivered judgment on 7 February 2013: Baker v New South Wales Police [2013] NSWSC 57. Her Honour dismissed the summons. The Plaintiff sought leave to appeal to the Court of Appeal and on 30 August 2013 the application for leave to appeal was dismissed: Baker v Attorney-General for New South Wales [2013] NSWCA 329.

1. The basis upon which the Plaintiff seeks prerogative relief in respect of the three groups of proceedings to which I have referred is identical to the relief that was sought and dealt with by Latham J and the Court of Appeal. On that basis the present proceedings, insofar as they concern the offences dealt with at Tamworth Local Court on 18 November 2011, amount to an abuse of process.

1. The substantive basis upon which the Plaintiff then complained and now complains about the conduct of the proceedings in the Local Court is that a trial by jury was not had. The reasons why that basis for objection was found to be without substance have been dealt with in detail in the reasons that Latham J gave on 7 February 2013. Those reasons were affirmed and amplified in the Court of Appeal's judgment. There is no different basis upon which the Plaintiff seeks prerogative relief, presumably an order in the nature of certiorari, in relation to the other convictions on 11 June 2013. As far as the proceedings which have not been heard are concerned, it is possible to interpret the Amended Summons as seeking an order in the nature of prohibition.

1. The Plaintiff has asked me also to deal with a Notice of Motion that he claims to have filed. I have been provided with an unsigned, undated and unfiled copy of that Notice of Motion. The Plaintiff seeks that the Defendant's Notice of Motion be heard by a jury as the law requires, that the proper jurisdiction - that is, trial by jury under the rule of law Magna Carta 1215 - be invoked, and that the jury award costs to the Plaintiff. The basis for that Notice of Motion does not in substance differ from what is sought in the Amended Summons and what has already been determined to be without substance by Latham J and the Court of Appeal.

1. I would simply add to what Latham J said at [19] and [20] that, under the Civil Procedure Act 2005 (NSW) and the Uniform Civil Procedure Rules, Notice of Motion are heard by a judge, or an associate judge, sitting alone.

1. To the extent that the present proceedings are not an abuse of process, no reasonable cause of action is disclosed in the Amended Summons, in the sense that no proper basis is shown for challenging the decisions already made nor the proceedings not yet determined.

1. The authorities concerned with dismissing proceedings on a summary basis are well known. The principal decision is General Steel Industries Inc v Commissioner For Railways (NSW) (1964) 112 CLR 125 at 129. The principles referred to by Barwick CJ at 129 have direct application to the present proceedings. I am satisfied that the present claim brought by the Plaintiff is entirely hopeless and the proceedings must therefore be dismissed.

1. The orders that I make, therefore, are:

1. The Amended Summons filed 7 May 2014 is dismissed pursuant to r 13.4.

2. The Plaintiff is to pay the Defendant's costs of the proceedings.

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