Goldberg v Walter

[2012] VSCA 107

SUPREME COURT OF VICTORIA

COURT OF APPEAL
(CIVIL DIVISION)

S APCI 2009 3795

DAVID GOLDBERG	Appellant
	v
RICHARD CHARLES WALTER	First Respondent
	and
THE COUNTY COURT OF VICTORIA	Second Respondent

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JUDGES	MAXWELL P, MANDIE JA and CAVANOUGH AJA
WHERE HELD	MELBOURNE
DATE OF HEARING	14 May 2012
DATE OF JUDGMENT	14 May 2012
MEDIUM NEUTRAL CITATION	[2012] VSCA 107
JUDGMENT APPEALED FROM	Goldberg v Walter & Anor [2009] VSC 260 (Beach J)

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ADMINISTRATIVE LAW – Certiorari – Decision of County Court Judge – Whether open on the evidence – Whether manifestly unreasonable – Whether breach of natural justice – No error of law – Appeal dismissed – Supreme Court Rules 0.56.

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APPEARANCES:	Counsel	Solicitors
The Appellant appeared in person
For the Respondent	Mr Gyorffy SC	Craig Hyland, Solicitor for Public Prosecutions

MAXWELL P:

1. I invite Cavanough AJA to deliver the first judgment.

CAVANOUGH AJA:

1. This is an appeal from a decision of Justice Beach refusing the appellant’s application for an order in the nature of certiorari.[1] The appellant had been charged in the Magistrates’ Court with using an unregistered motor vehicle on a highway contrary to s 7 of the Road Safety Act 1986 and with forging a vehicle identifying number contrary to s 72 of the Act. He was convicted on both charges. On appeal to the County Court he was successful to an extent, in that the aggregate amount of the fines was reduced. The circumstances of the matter are set out in detail in the judgment of Justice Beach.

   [1]Goldberg v Walter & Anor [2009] VSC 260.

1. The attacks made below by Mr Goldberg on the decision of the learned County Court judge, Judge Hogan, are also detailed in the reasons of Justice Beach, together with his Honour’s careful responses to all of them. 

1. Ground 1 of the notice of appeal before this Court asserts that the appellant was denied natural justice because there was no evidence before Justice Beach which could lead to his Honour’s conclusions.  There is no merit in this ground.  A perusal of his Honour’s detailed reasons for judgment shows that his Honour’s conclusions were fully supported by the material on which he relied. 

1. Ground 2 complains that Justice Beach prejudiced the appellant by refusing to accept that ASIO conducts cases in the State court system ‘to such extent that the Melbourne Magistrates’ Court revolted in the year 2000’.  Justice Beach was unpersuaded that ASIO had anything to do with this matter.  There is nothing in the material that was before Justice Beach or that is before this Court to suggest any involvement by ASIO in any matter relevant to this case. 

1. Ground 3, to the extent that it is comprehensible at all, is a mere repetition of

the assertion of ASIO involvement.  It is completely without merit.

1. Ground 4 appears to be a claim that counsel for the Crown had conceded before Justice Beach that there had been a denial of natural justice at County Court level.  In my view there was no such concession.  At page 13 of the transcript Mr Larkins of counsel, who was appearing for the defendant/informant, conceded that denial of natural justice was an available ground in an application for certiorari where that ground could be made out.  However, he did not concede that the ground could be made out in the present case.  Mr Larkins also conceded at the same time that the court could look at ‘the reasonableness or unreasonableness of her Honour’s decision’.  The hearing before Justice Beach took place on Monday 22 June 2009.  Only twenty days earlier, on 2 June 2009, Mr Larkins had appeared for the defendant/informant in a similar case involving Mr Goldberg in the Trial Division of this Court which was heard and determined by Forrest J.[2]  A corresponding concession was made by Mr Larkins before Forrest J.  As in the present case, it was a concession of a general nature, not a concession that the ground of breach of natural justice had been made out.  This Court has today heard and dismissed an appeal by Mr Goldberg against the judgment of Forrest J in that matter.   

   [2]Goldberg v Laughlin [2009] VSC 231.

1. Ground 5 relates to Mr Goldberg’s assertion that no hearing had taken place at Magistrates’ Court level in the present matter.  Mr Goldberg says that the notice he received of orders having been made against him in the Dandenong Magistrates’ Court on 25 July 2006 was a fabrication by ASIO.  Again, this is a fanciful, unsubstantiated suggestion.  It is clear that on the file before Judge Hogan there was a certified extract of the outcome of each of the charges heard in the Magistrates’ Court.  Copies of the certified extracts are included in the material that was before Justice Beach.  They are in the appeal book before us.[3]  They show that a named magistrate, Mr Raleigh, convicted and fined Mr Goldberg on the two charges and that there was no appearance by Mr Goldberg on that day.  The extracts are certified and signed by a Deputy Registrar of the Court, one Katherine Taylor.  Two days later, on 27 July 2006, Ms Taylor issued Mr Goldberg’s notice of appeal to the County Court.[4]  Mr Goldberg says that there is no transcript of any hearing on 25 July 2006.  However, Mr Goldberg has not shown that the absence of a transcript of hearing indicates that no hearing took place.  It seems from the transcript of the hearing before Judge Hogan that Mr Goldberg did not ask either of the police witnesses whether they had given evidence before the Magistrates’ Court. 

   [3]Appeal book, Section C, page 23–25

   [4]Appeal book, Section B.

1. In any event, as Justice Beach points out,[5] when this matter was raised with Judge Hogan, Mr Goldberg elected to proceed before her Honour.  The appeal was a re-hearing de novo.  If Mr Goldberg was truly concerned about the absence of a hearing in the Magistrates’ Court, he could have asked for a re-hearing in that Court or sought certiorari against the order of the Magistrates’ Court.  He did neither.[6]

   [5][2009] VSC 260, [16], [17].

   [6]Ibid [36].

1. In Mr Goldberg’s outline of submission filed 11 August 2010 in this appeal, he asserts that the vehicle in question is the same vehicle that was the subject of Supreme Court Proceeding No 4875 of 2003 brought by Mr Goldberg against a Detective Senior Constable of Police, Ms Brown, who had seized a motor car which Mr Goldberg sought to have returned.  Justice Osborn refused the order sought by Mr Goldberg.[7]  It seems that on 15 August 2003 the Court of Appeal (Phillips JA and Ashley AJA) dismissed an application by Mr Goldberg for orders that an appeal he had instituted to the Court of Appeal in that matter not be taken to be abandoned.  So much was recited by Hayne J in refusing, on 19 February 2004, an application by Mr Goldberg for an expedited hearing of his application for special leave against the order of the Court of Appeal.[8]  I have read the reasons of Osborn J and the transcript of the High Court proceeding.  No copy of the decision of the Court of Appeal is publicly available.  The matter appears to have no relevance at all to the question of

the soundness of the decision of Judge Hogan or the soundness of the decision of Justice Beach.  It appears from paragraph 4 of the appellant’s written argument and from what he has told us from the Bar Table today that he sees the events the subject of Goldberg v Brown as somehow demonstrating the involvement of ASIO in relation to the current matter.  The claim is utterly fanciful.  Neither is there anything else of any merit in the applicant’s written outline of submissions or in what he has put to us orally today.

[7]Goldberg v Brown [2003] VSC 104.

[8][2004] HCA Trans 31 (19 February 2004).

1. The judgment of Beach J is exemplary in every way.  His Honour’s decision was plainly correct, for the reasons his Honour gave. 

1. In my view, the appeal should be dismissed.  The respondent does not seek the costs of the appeal. 

MAXWELL P:

1. I too would dismiss the appeal, for the reasons which Cavanough AJA has given.  It is, however, necessary to say a little more on the subject of the claimed involvement of ASIO.

1. As his Honour has already mentioned, Mr Goldberg believes that he has been the subject of what he describes as ruthless persecution by ASIO.  This is how he summarised his argument in his outline of submissions:   

1.The Appellant’s argument is that ASIO uses members of Victoria Police to bring number of traffic charges against the Appellant as most common and easy way to persecute and harass the Appellant.

2.It is the Appellant’s submission that he has been discriminated before the Courts when the cases are not heard and determined in accordance with the law.

3.This case relates to the motor car which was ceased by the police on or about 6^th March 2003 and subsequent Supreme Court proceedings no 4875 of 2003. Those proceedings show involvement of ASIO behind the initial police seizure and failure of Supreme Court and Court of Appeal to extend rights and legal protection to the Appellant.

4.During the course of this action the Appellant became fully aware and convinced that this is in a fact an ASIO’s operation. The papers in this

matter were either not served on me at all or were served on me in the court before the hearing or served on me after the hearing. The car in question has not been seized under a warrant and only a search warrant was produced 11 days after the car was seized. It is apparent that the car has been stolen by the police and has been held illegally. What is happening in this matter it is a reminiscence of gestapo style tactics to rob people of their property with impunity. In no case a citizen be deprived of his own means of subsistence nor be deprived of his fundamental rights to freely posses wealth without prejudice.

5.In this matter no. 4875 of 2003 which relates to the same motor car His Honour Justice Osborn subjected the Appellant to certain kind of disability and discrimination by refusing to return the car to its lawful owner. Furthermore the Court of Appeal on 15^th August 2003 constituted by His Honour J D Phillips and Justice Ashley refused my application to return the said car to its rightful owner. At least this time the Justices when they dismissed my application they clearly indicated to me the this is not their decision. As this current appeal is connected to the same motor car it shows how no Rule of Law applies to the Appellant and the courts are unable to act and determine in accordance with the law.

6.Finally the motor car in question was returned by the police to its rightful owner eighteen months after it was initially seized in a devastated condition. No one has ever paid for the damage done to the motor car nor apologized to the owner for the damage done. What amazes me is that those people think they can destroy someone’s property with impunity and live happily ever after.

7.It is also submission of the Appellant that a number of Judges, including former president of Court of Appeal Justice J S Winneke in the matter number 4344 of 2000 indicated that the law should be changed so such cases could not come before the Court of Appeal. In His retainment speech another Court of Appeal’s Judge, Justice Ormiston, said quite clearly that the situation became intolerable that the justice department is telling Judges what to do to. In another case on 15^th August 2003 His Honour Justice Phillips and Justice Ashley when they dismissed my application to return a ceased motor car they clearly indicated to me that this is not their decision. It is the Appellant’s submission that it is quite evident that ASIO was and is fixing the courts in every case where the Appellant is involved.

8.For number of years I have been ruthlessly persecuted by ASIO despite the fact that I am a law abiding citizen. My basic human rights have been violated and abused, and I have been denied Natural Justice before the courts.

1. While I am prepared to accept for the purposes of this appeal that Mr Goldberg sincerely believes that he is being ‘ruthlessly persecuted’ by ASIO, his belief is without foundation in fact.  As I stated in Mr Goldberg’s contemporaneous

but unrelated appeal,[9] ASIO has no power to act as a law enforcement agency.[10]  If Mr Goldberg wishes to pursue these claims, he should do so by making a complaint to the Inspector-General of Intelligence and Security.[11]

[9]Goldberg v Laughlin & Anor [2012] VSCA 106, [27]-[41].

[10]See Australian Security and Intelligence Organisation Act 1979 (Cth) s 17, R v Thomas (No 4) (2008) 19 VR 214, 225 [44].

[11]See Inspector-General of Intelligence and Security Act 1986 (Cth) div 2.

1. I would conclude by acknowledging the care and thoroughness with which the trial judge here dealt with this proceeding at first instance.  It was in the finest tradition of this Court in dealing with unrepresented litigants and ensuring that no possible legal argument which might assist them is overlooked.

MANDIE JA:

1. I agree with Cavanough AJA and I would further endorse what has been said by Maxwell P.

MAXWELL P:

1. The order of the Court is appeal dismissed.

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