Koula Hatzisavas v Roads and Maritime Service

[2013] NSWSC 2050

Supreme Court

New South Wales

Medium Neutral Citation:

Koula Hatzisavas v Roads and Maritime Service [2013] NSWSC 2050

Hearing dates:

27 December 2013

Decision date:

27 December 2013

Before:

Rothman J

Decision:

1. Matter be listed before the Registrar on 7 February 2014;

2. Service of the Summons and Affidavit be effected in accordance with the Uniform Civil Procedure Rules 2005;

3. Plaintiff file and serve notice under s 78B of the Constitution raising a constitutional point, being the exercise of judicial power by the State Debt Recovery Office;

4. Otherwise the proceedings for interlocutory relief on an urgent basis be dismissed.

Legislation Cited:

Commonwealth of Australia Constitution Act 1900 (Imp)

Cases Cited:

Attorney-General (Cth) v R (1957) 95 CLR 529
R v Kirby; Ex Parte Boilermakers' Society of Australia [1956] HCA 10; (1956) 94 CLR 254

Category:

Interlocutory applications

Parties:

Koula Hatzisavas (Plaintiff)
Roads and Maritime Service (Defendant)

Representation:

Counsel:
Self-represented (Plaintiff)
No appearance (Defendant)
Solicitors:

File Number(s):

2013/386233

Publication restriction:

None

EX TEMPORE Judgment

1. HIS HONOUR: Before the Court is an application that I deal immediately with an application to make orders against the Roads and Maritime Service, hereinafter referred to as the RMS. It arises out of a summons filed by the plaintiff, Koula Hatzisavas.

1. The summons seeks the following relief: that RMS be found guilty of extortion; an order that the drivers licence of Ms Hatzisavas be reinstated; and an order, over and above the foregoing, that RMS be charged with extortion.

1. The affidavit accompanying the summons relies on a number of matters. It annexes correspondence from the RMS in which the RMS asserts that the State Debt Recovery Office, hereinafter referred to as SDRO, instructed it, that is the RMS, to suspend Ms Hatzisavas' driver's licence on account of the non-payment of outstanding fines.

1. I make no comment on whether fines are outstanding or whether the fines have been properly or improperly imposed. There is no material before me as to the nature of the fines or their validity. The letter, it is said, threatens to maintain the suspension until the fines are paid.

1. Ms Hatzisavas, also charges conspiracy between the SDRO and the RMS and alleges in her affidavit that there is, or will be, great harm she were to drive whilst her licence were suspended.

1. Ms Hatzisavas lives on farmland and is, as I understand it, in a position where she needs to be able to drive. On the other hand, during the course of submissions, she put to the Court: "not that I need a licence in order to travel".

1. Lastly, Ms Hatzisavas, alleges that the RMS is exercising judicial power. She refers the Court to the R v Kirby; Ex Parte Boilermakers' Society of Australia (the Boilermakers' Case) [1956] HCA 10; (1956) 94 CLR 254. She seeks an immediate order to reinstate her licence and the issue of a writ of prohibition, which, as she alleges, arises out of the Boilermakers' Case.

1. There are a number of matters that need to be addressed. First, Boilermakers' Case was a judgment of the High Court (affirmed ultimately by the Privy Council in Attorney-General (Cth) v R (1957) 95 CLR 529), in which the federal separation of powers was confirmed and dealt with the provisions of ss 71, 72, and 73 of the Constitution relating to courts created by the Constitution, or the Federal Parliament, exercising federal judicial power.

1. What Ms Hatzisavas seeks to prohibit here is the alleged exercise of state judicial power. While there are limitations on the exercise of judicial power by State Courts or qualifications on the exercise of inherent power of the Supreme Court arising under the Constitution, the limitations are not as strict, if they exist at all, as exists in relation to the exercise of federal power.

1. I accept, certainly in the absence of evidence to the contrary, that the suspension of Ms Hatzisavas' licence will cause significant hardship.

1. The matter that has been filed in the Court, being a summons and affidavit, is otherwise listed for directions on 7 February 2014.

1. The issue raised in relation to the exercise of judicial power and the inability of the SDRO to suspend Ms Hatzisavas' licence raises issues, on her submission, under the Constitution by which s 78B is invoked. That, of course, does not prevent me from exercising power in an urgent matter.

1. Nothing that has been put to me suggests that the issues are sufficiently urgent that the matter should be heard prior to 7 February 2014, which is its ordinary hearing date. Even if a hearing were more urgent, the urgency is not such that the matter should be heard ex parte.

1. Further, no submissions have been put that the legislation under which the SDRO purported to act, or under which RMS purported to act, was or is invalid, except the general unparticularised submission as to the exercise of judicial power. Nor has anything been put suggesting (reasonably or otherwise) that the legislation under which the SDRO and RMS acted did not require the suspension of Ms Hatzisavas' licence.

1. Moreover, on the material thus far before the Court, the basis for such orders as are sought is not sufficiently arguable to warrant the exercise of the Court's jurisdiction, on an ex parte basis or on an interlocutory basis, even if the balance of convenience favoured the issue of urgent relief.

1. I make the following directions:

(i)   Matter be listed before the Registrar on 7 February 2014;

(ii)   Service of the Summons and Affidavit be effected in accordance with the Uniform Civil Procedure Rules;

(iii) Plaintiff to file and serve notice under s 78B of the Constitution raising a constitutional point, being the exercise of judicial power by the State Debt Recovery Office;

(iv)   Otherwise the proceedings for interlocutory relief on an urgent basis be dismissed.

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Decision last updated: 05 September 2014