Gable v Quigley MLA LLB JP - [2019] WADC 117

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION:   PERTH
CITATION:   GABLE -v- QUIGLEY MLA LLB JP [2019] WADC 117
CORAM:   DEPUTY REGISTRAR HEWITT
HEARD:   8 AUGUST 2019
DELIVERED          :   22 AUGUST 2019
FILE NO/S:   CIV 708 of 2019
BETWEEN:   DAMON GENE GABLE
Plaintiff
AND
HONOURABLE JOHN QUIGLEY MLA LLB JP
First Defendant
WEST AUSTRALIA POLICE SERVICE t/as WEST AUSTRALIA POLICE SERVICE
Second Defendant

Catchwords:

Practice and procedure - Application to strike out writ and statement of claim

Legislation:

Road Traffic Act 1974 (WA), s 67(2)(a)

Result:

Writ struck out

Representation:

Counsel:

Plaintiff	:	In person
First Defendant	:	Ms F Seaward
Second Defendant	:	Ms F Seaward

Solicitors:

Plaintiff	:	Not applicable
First Defendant	:	State Solicitor's Office
Second Defendant	:	State Solicitor's Office

Case(s) referred to in decision(s):

Nil

DEPUTY REGISTRAR HEWITT:

On 22 February 2019 the plaintiff filed a writ of summons naming the Honourable John Quigley MLA LLB JP Western Australia Attorney General Office as the first defendant and West Australia Police as the second defendant.
The writ was indorsed by a largely incomprehensible indorsement of claim which I reproduce below.
(The following quote is reproduced with original typographical errors)
The creditor – claimant damon by equitable lien has commenced action 0 18 RSC punitive damages, as at the date of the writ of summons, injury due and owing by the defendant pursuant on this day of; ______ month of __________ 2019
Due process s 51 ss24 Constitution owed to all-natural man civil practice and procedure owed to the plaintiff, O 9 s.3 RSC Crown must act, and be seen to act, as a model litigant 'is principal not to limit civil practice and extends to criminal law to carry out in. is 'not limited to civil practice and procedure.
Morley & Ors v Australian Securities and Investments Commission
O 6 r.1(1) RSC, creditor issue writ of summons concise statement of the nature of the claim made, and of the relief or remedy required in the action.
I. Man binding contract with commerce the trustee ~debtor West Australia Atterony General dept; do right to all manner of people, according to law, without fear or favour, a□ection or ill will, s5 292, s 116 Commonwealth Constitution, Confirmation of charters 1297 and Magna Carta -39 Crown in right of this jurisdiction laws of Parliament, the Crown in all capacities O 52 r 1 RSC Injunction ~ Prohibition to grant injunctive exercise of legal or 'Equitable before the Law Bench Book rights' to his protection.8.1.1 Mr Gable scope of offence is and was not to obstruct s 143 crimes but act his rights; ICCPR III 6,8 9 reclaim O 18 r 2 RSC counter claim. Administer property – un warranted – unreasonable‑excessive assault by the West Australia Mandurah Police office PD 16042 Dixon s 222, s409(1) fruadly (c) gains of pecuiry Criminal Code act on 26^th-27th Jan 00:00-03:00 hrs Mandurah and Feb. Midland 2019 13:44, Police administer property both of the man and automobile, s80 Property Securities Act. despite any officer oath total disregard for the act man damon and Disabilities Convention means the Rights of Persons with Disabilities in the contract, established in New York on 30 March 2007, as in force for Australia or Bench Book 4.2.3.7; 2(a) disability, in relation to a person, means:(a) total or partial loss of the person's bodily or mental functions; mental disorder defines any psychological syndrome characterized by Distressing symptoms, un warranted trauma or s222 assault
Legislation:
Property Securities act 2009
Interpretation Act 1901
Judiciary Act 2903 ~
Public Gov, Performance and Accountability Act 2013~ Public Service Act 1999.
Rules of the Supreme Court 1971 (WA), O 9, O 18, O52 RSC
s 51 ss24 Constitution' no man can be held to a decision given absence of the court'
II Elizabeth the second, by the grace of God of the United Kingdom, Queen Head of the Common Wealth, Defender of the Faith commands, the defendants; (1) the Commence Attorney –General's ABN 92 661 124, the administrative Council and West Australia Police officer of the Commonwealth are bound to observe the laws of the land. (1) Violations. Its Magistrates Court Act 2004 s36. public servants' officers. Official duty as State Court is tort to allow navigation off the ordinary course of justice. recognized the states duties the security as the court determines to be appropriate' having regard to a number of matters. By treaty section 75(1) by Accusatorial proceeding which is governed by the fundamental principle that the burden lies in all things upon the Crown
III. Remedy sought Crown laws of Parliament, the Crown in all capacities Injunction ~ Prohibition to grant injunctive exercise equable lien of unliquidated punitive damages.
IV. retain Status Qou, Commonwealth law means: Human right RIGHTS act 1986 – Schedule 2. Disability Discrimination Act 1992, the Act; 3objects(iv)(b) 11 (1)(a) disability, in relation to a person, means: (a) total or partial or mental funcitons;897
Disability v Gable not fluid legal lease commenced in jurisprudence
Collins British,
4. an incapacity in the eyes of the law to enter into certain transactions.
Case referred (ibid) paragraph I., II., III
SCI Operations v The Commonwealth
Melbourne Steamship Co Ltd v Moorehead (1912) 25 CLR 333, 342
Glanville v Harris [2017] ACTSC 110 ~ Personam
Judy Mastwyk v DPP [2008] VSCA ~ been reasonable ~ Administer property
DPP v Emmerson & Anor [2012] NTSC 60~ Property forfeiture
A. v. Hayden (1984) 156 CLR 532 ~ Contract
Companied by r.23A RSC by affidavit O 20 s O 18 r 2 counter claim on defendants; …
Matters were not improved by the statement of claim also dated and filed on 22 February 2019.
On 20 March 2019 the defendants filed a chamber summons seeking orders striking out the writ and statement of claim.
The key orders which were sought by that application were as follows:
4.The Plaintiff's writ and statement of claim be struck out in their entirety on grounds that they disclose no reasonable cause of action, that they are an abuse of process, that they are frivolous and vexatious, and that they may prejudice, embarrass or delay the fair trial of the action.
5.(a) The action be dismissed.
(b)In the alternative, the action be discontinued unless, within 28 days of the date of these orders, the Plaintiff file:
i.a minute of amended writ; and
ii.a minute of amended statement of claim.
The facts upon which the plaintiff's case relies concern an incident which occurred on 27 January 2019. At that time the plaintiff was stopped by the police and asked to perform on a random breathalyser test. The plaintiff refused to take the breath test but offered to give blood or urine but the police officer declined that invitation. The plaintiff was arrested following his refusal to take the breath test and he was also issued with a disqualification notice disqualifying the plaintiff from holding a driver's licence for two months.
On 14 February 2019 whilst still disqualified the plaintiff was observed driving and was stopped by the police and his car was seized and impounded.
The whole scenario presented by this case is a sad one. The plaintiff claims that he was unable to take a breath test because of some unidentified disability. It appears tolerably clear that the plaintiff was not affected by alcohol at the time the random breath test was required of him and I base that conclusion on the fact that he appeared to be willing to undergo a blood test which is hardly the behaviour of a person who is aware that he is affected by drink.
Nonetheless in order to accommodate the plaintiff's request for a blood or urine test a very considerable amount of the police officer's time would be absorbed in taking the plaintiff to the police station, organising an appropriately qualified individual to take blood and so forth. Such a commitment in time would affectively remove the police officer from the task which he was undertaking at the time of the random breath test and it is completely understandable why he declined to follow that course.
The plaintiff claims that he is suffering from a disability which in some unascertained way precludes him from undertaking the breath test required of him by the police officer.
It is not clear to me what that disability might be. It has certainly not been explained in any materials which are before the court and the appearance of the plaintiff when in court is of a strong able bodied man who presumably would be able to blow into the mouthpiece of a preliminary breath testing device.
In any event the unfortunate succession of events unfolded with the police officer arresting the plaintiff, as he was entitled to do under the powers given to him pursuant to the powers contained in s 67(2)(a) of the Road Traffic Act 1974 (WA) (the Act).
Complaint is made as to the manner of the arrest and the manner in which the plaintiff was handcuffed. It is quite clear that the plaintiff did not accept the propriety of the police officer's actions either then or now but it is clear that the police officer was acting within the powers available to him under the Act.
Likewise the impounding of the plaintiff's car when he was driving whilst under suspension was authorised by the Act.
It is clear from the materials which are before me there is no possible action against the Attorney General. Neither personally nor in his office as Attorney General is Mr Quigley responsible for the behaviour of police officers and the action against him must necessarily fail.
Insofar as the action is brought against the West Australia Police clearly there is no such entity capable of being sued, but it is clear that the plaintiff has in mind the State of Western Australia and the fact that he has misnamed the second defendant is a matter which could be readily corrected.
Of more moment however is the fact that there is nothing that I can see in the materials provided which indicate anything more than an allegation that plaintiff was assaulted by a police officer, the assault being the physical aspect of the police officer arresting the plaintiff.
Such an assault however is not unlawful if authorised, excused or justified by law. The exercise of a power of arrest for refusing to undertake a preliminary breath test is clearly not an actionable assault.
Additional to the matters that I have mentioned the quality of the written materials filed by the plaintiff by way of his indorsement of claim and statement of claim is extremely poor. In an earlier case the plaintiff appeared before Judge Braddock. On that occasion he was the plaintiff and the defendant was the Director of Public Prosecutions for Western Australia. When considering the writ and statement of claim her Honour described those documents as incomprehensible and sadly the same applies to the materials which have been filed in this case.
This is as I have mentioned a sad case. I have little doubt that the plaintiff was not intoxicated when pulled over for the random breath test but his refusal to undertake that breath test has led him down a path of miseries. That is a most unfortunate event, but the action he has commenced is doomed to fail. The materials he has filed are of such poor quality that it is practically impossible to understand with any clarity what is intended and they are peppered with quotes from cases and general statements of principle. It is completely obscure what the intended meaning of the pleadings might be. For these reasons I am of the view that the defendants' applications should succeed and the writ should be struck out and that is the order which I intend to make, although I do so with some regret.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
TS
Court Officer
21 AUGUST 2019