Krysiak v McDonagh - [2012] WASC 270

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: KRYSIAK -v- McDONAGH [2012] WASC 270

CORAM: EM HEENAN J

HEARD: 4 JULY 2012

DELIVERED : 4 JULY 2012

PUBLISHED : 26 JULY 2012

FILE NO/S: SJA 1083 of 2011

BETWEEN: TADEUSZ-EDMUND KRYSIAK
Applicant/Appellant
AND
PAUL THOMAS McDONAGH
Respondent

FILE NO/S :SJA 1085 of 2011

BETWEEN :TADEUSZ-EDMUND KRYSIAK
Applicant/Appellant
AND
EMMA KATE BARNES
Respondent

FILE NO/S :SJA 1032 of 2012

BETWEEN :TADEUSZ-EDMUND KRYSIAK
Applicant/Appellant
AND
JAKE TOBY CARRUTHERS
Respondent

ON APPEAL FROM:
For File No              :  SJA 1083 of 2011
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE G N CALDER
File No  :PE 26728 of 2011
For File No              :  SJA 1085 of 2011
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE R G W BAYLY
File No  :PE 15704 of 2011
For File No              :  SJA 1032 of 2012
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE E D CAMPIONE
File No  :PE 18029 of 2011, PE 18030 of 2011

Catchwords:

Application for leave to appeal against convictions - Jurisdiction of courts - Validity of laws - Alleged constitutional grounds without merit - Judiciary Act - s 78B notices - Application in SJA 1032 of 2012 adjourned because of short notice - Applications for leave to appeal in SJA 1083 of 2011 and SJA 1085 of 2011 without merit - Leave to appeal refused in each case

Legislation:

Bills of Exchange Act 1909 (Cth)
Commonwealth of Australia Constitution Act 1900 (IMP)
Criminal Procedure Act 2004 (WA), s 55, s 75
Criminal Procedure Rules, r 60
Currency Act 1965 (Cth)
Fines, Penalty and Infringement Notices Enforcement Act 1994 (WA)
Judiciary Act 1903 (Cth)
Magistrates Court Act 2004 (WA)
Reserve Bank Act 1959 (Cth)
Road Traffic Act 1974 (WA), s 49(1)(a), s 49(3)(c)
Supreme Court Act 1935 (WA), s 16(1), s 23, s 24

Result:

SJA 1083 of 2011 - Leave to appeal refused
SJA 1085 of 2011 - Leave to appeal refused
SJA 1032 of 2012 - Application for leave to appeal adjourned

Category: B

Representation:

SJA 1083 of 2011

Counsel:

Applicant/Appellant : In person
Respondent: Mr P D Spragg

Solicitors:

Applicant/Appellant : In person
Respondent: State Solicitor for Western Australia

SJA 1085 of 2011

Counsel:

Applicant/Appellant : In person
Respondent: Mr P D Spragg

Solicitors:

Applicant/Appellant : In person
Respondent: State Solicitor for Western Australia

SJA 1032 of 2012

Counsel:

Applicant/Appellant : In person
Respondent: Mr P D Spragg

Solicitors:

Applicant/Appellant : In person
Respondent: State Solicitor for Western Australia

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

Agtrack (NT) Pty Ltd (2005) 223 CLR 251; [2005] HCA 38
Amrit Lal Narain v Parnell (1986) 9 FCR 479
Boath v Wyvill (1989) 85 ALR 621
Cole v Whitfield (1988) 165 CLR 360; [1988] HCA 18
CVFC Ltd v Charitopoulos [2009] SASC 30
Glew v The Governor of Western Australia [2009] WASC 14
Glew v White [2012] WASCA 138
Hedley v Spivey [2011] WASC 326
Hedley v Spivey [2012] WASCA 116
Hughes v Dempsey (1915) 17 WALR 186
Hume v Palmer (1926) 38 CLR 441
Johnson Tiles Pty Ltd v Esso Australia Ltd [1999] FCA 1363
Kable v DPP (1996) 189 CLR 51; [1996] HCA 24
Krysiak v Hodgson [2009] WASC 16
Krysiak v Hodgson [2009] WASCA 114
Lohe v Gunter [2003] QSC 150
Moorgate Tobacco Co Ltd v Philip Morris Ltd (1980) 145 CLR 457
Payne v Federal Commissioner of Taxation [1934] HCA 7; (1934) 51 CLR 197
Pennicuik v City of Gosnells [2011] WASC 63
Re an Application by Public Service Association of NSW; and; Re The Industrial Union of Employees (Commissioned Police Officers) Award (1947) 75 CLR 430; [1947] HCA 31
Re Finlayson; Ex parte Finlayson (1997) 72 ALJR 73
Re Skyrings Application (No 2) (1985) 58 ALR 629; (1985) 59 ALJR 561
Samuels v Western Australia (2005) 30 WAR 473; [2005] WASCA 193
Tey v City of Gosnells [2010] WASC 96

EM HEENAN J: When these three applications for leave to appeal came on for hearing together (on 4 July) Mr T E Krysiak, appeared in person on each application, sought an adjournment of the hearing of the appeal in SJA 1032 of 2012 (Krysiak v Carruthers) on the basis that he had received less than a week's notice of the date appointed for the hearing and had had inadequate opportunity to prepare for the hearing. Mr Krysiak submitted that when he had first entered that application for hearing he had been led to believe by the registry that it was unlikely that the matter would be listed before the first quarter of 2013 and that he was only advised to the contrary by a letter from the registry of 27 June 2012 which informed him that it was listed for hearing on 4 July. He submitted that he had not had the opportunity to prepare an outline of submissions such as he had prepared for the other two applications.
Counsel for the respondent opposed any adjournment, not so much because of the short notice, but because the grounds to be relied on by Mr Krysiak were similar to the grounds which he was advancing in relation to the other two applications and in respect of which detailed written submissions had been prepared and filed. Nevertheless, it appeared that there were some further and different grounds of appeal to be relied upon by Mr Krysiak in this matter (SJA 1032 of 2012) and that he had, indeed, been given very short notice of the hearing.
In these circumstances, I therefore adjourned the hearing of the application for leave to appeal in SJA 1032 of 2012 sine die. It is more than possible that the determination of the grounds advanced by Mr Krysiak in the remaining two appeals may lead to a resolution of this adjourned application but that remains to be seen.

Applications SJA 1083 of 2011 and SJA 1085 of 2011

These two applications proceeded to hearing and determination. I had the advantage of detailed written submissions filed by Mr Krysiak and answering submissions filed by counsel for both respondents. As the hearing progressed I became satisfied that the various proposed grounds of appeal had no prospect of success and that, accordingly, leave to appeal in respect of them should be refused. The consequence was that at the end of the hearing I refused leave to appeal and dismissed both applications. The reasons for doing so were apparent from the observations which I made during the course of the hearing. Nevertheless, more detailed reasons for those decisions are now set out.

Background - Krysiak v McDonagh SJA 1083 of 2011

By charge PE 26728 of 2011 Tadeusz-Edmund Krysiak was charged with the offence of driving without authority on 15 May 2011 a Mazda sedan, registered number 1DPC-205 on Eastbourne Crescent, Nollamara, whilst not being a person authorised by pt IV A of the Road Traffic Act1974 (WA) and whose authority to drive at the time was suspended, contrary to s 49(1)(a) and s 49(3)(c) of the Road Traffic Act1974.
Before the hearing in the Magistrates Court the applicant had filed by post a document entitled Notice of Reservation of Rights, which can only be described as an extravagant and disjointed polemic asserting that he reserved his exclusive and ancient rights, including a right to jury trial, asserting that all statutes should be in harmony with the common law, and asserting that he could best be described as an authorised agent of the entity 'Tadeusz‑Edmund Krysiak' with limited liability. He asserted that the court had no jurisdiction and that the charge should be dismissed as invalid and that there was evidence of inherent fraud ab initio. This notice asserted a series of discredited and exploded fallacies about legal and constitutional rights ‑ see Glew v The Governor of Western Australia [2009] WASC 14; Glew v White [2012] WASCA 138 and Hedley v Spivey [2012] WASCA 116 and, on any view, was a misguided, ill‑informed and preposterous collection of meaningless protests.
His case came on for hearing before his Honour, Mr G N Calder in the Magistrates Court at Perth on 26 July 2011. When the case was called a person, presumably the applicant, came forward but upon being asked to identify himself he refused, preferring instead to make submissions to the effect that he reserved all his rights and again refusing to identify himself, saying, 'I reserve all my rights and I am best described as the authorisation to the accused with limited liability'. His Honour refused to allow this person to speak further unless and until he clearly identified himself and directed him to sit in the back of the court. Again, but with some protest, the person who had come forward did so. Then his Honour, having observed that there was no person in the court who had identified themselves as having the name Krysiak and being the accused, directed that the case should proceed in the absence of the accused under s 55 of the Criminal Procedure Act 2004 (WA), it having been established that notice to the accused had been given under s 75.
At this point, his Honour announced, obviously speaking to the person at the back of the court, that if he were Tadeusz-Edmund Krysiak and identified himself as that person he could participate in the proceedings but, if not, he would not be allowed to participate and the matter would be dealt with under s 55. At this point, Mr Krysiak identified himself and when asked who he was said, 'I am commonly known as Tadeusz‑Edmund Krysiak' and when asked if that was his name he said, 'I don't have a name, sorry, your Honour' and at that point his Honour decided to proceed under s 55 as previously proposed.
In these circumstances, the prosecutor read out the facts to the court and produced a record showing two previous fines suspensions. Thereupon, his Honour fined the applicant $750, imposed a three‑month disqualification and ordered payment of costs of $121.95, which was directed to take effect in seven days' time.
By an appeal notice dated 16 August 2011 and later amended on 30 June 2012, the applicant sought to appeal to this court and in doing so asserted, wrongly, that he had a right of appeal. In this respect, he relied upon the Supreme Court Act 1935 (WA) s 16(1), s 23, s 24(1) and (7); Magna Carta; Bill of Rights 1689; Act of Settlement 1700; Criminal Appeals Act 2004 (WA). By this notice he asserted that the learned magistrate has:
(a)erred in law
(b)acted outside of and/or exceeded his jurisdiction
(c)miscarried justice
and supported those asserted grounds of appeal by the following seven paragraphs:
1.The learned magistrate erred in law and fact and denied justice because his decision contravenes s 92 of the Commonwealth of Australia Constitution Act 1900 (IMP), as it purports to restrict freedom of travel (ie. the right of a Royal subject and Australian citizen to travel freely) without due process and on the basis of unproven allegations, by suspension of license;
2.(AMENDED) The learned magistrate erred in law and fact by the manner in which he proceeded on S 55 of the Criminal Procedure Act, when I had duly appeared on the date concerned and attempted to identify myself to the court, and thereby convicting with a lack of due process and natural justice;
3.The learned magistrate erred in law and fact and denied justice because he sat as the "Magistrates court", which is not a valid court pursuant to Chapter III of the Australian Constitution;
4.The learned magistrate erred in law and fact and denied justice because he relied upon the decisions of the "Fines Enforcement Registry" ("FER"), being the "fines suspensions" issued by the "FER", which is not a valid court of record and is not a court pursuant to Chapter III of the Commonwealth of Australia Constitution Act 1900 (IMP);
5.The learned magistrate erred in law and fact and denied natural justice because he relied upon the orders made by the 'FER' which, via section103 of the 'Fines PAINE Act', deny the rules of natural justice;
6.The learned magistrate erred in law and fact by contravening Section 115 of the Commonwealth of Australia Constitution Act 1900 (IMP) by making an order for a monetary penalty in Australian dollars knowing that there is no gold or silver coin available as a legal tender in payment of a debt, being the penalty in the order of ($750 plus $121.95).
7.The learned magistrate erred in law and fact by issuing a monetary in terms of Australian dollars, being Australian currency, payment of which cannot be made as it would breach the Currency Act 1965 (Cth), as there is no currency in circulation above $2 and no valid promissory notes available to discharge debt.
These asserted grounds of appeal were followed by a plea for relief and remedy as follows:
1.To set aside the decision of the "Magistrates Court" in this matter.
2.To have the relief provided by the Habeas Corpus Act 1640, as my liberties have been breached and I am under injury in this matter.
The notice continued by asserting that the appellant was appearing 'in propria persona, unrepresented, but not waiving counsel'.
On 24 October 2011 Hall J made directions pursuant to r 60 of the Criminal Procedure Rules requiring due service of the relevant papers and further on 25 November 2011 his Honour directed that this application should be heard together with appeal SJA 1085 of 2011 (Krysiak v Barnes) and that the applications for leave to appeal should be heard at the same time as any appeals. Other usual preparatory orders and directions were also then made.

SJA 1085 of 2011 - Krysiak v Barnes

By charge PE 15704 of 2011 Tadeusz‑Edmund Krysiak was charged with the offence of driving without authority (fines suspended) on 29 January 2011 at Victoria Park. The particulars of the charge were that he drove a motor vehicle, namely a Mazda 323, registered number 1DAE‑730, on a road, namely Albany Highway, whilst not being a person authorised by pt IV A of the Road Traffic Act1974 (WA) and whilst no longer authorised to drive, having been disqualified from holding or obtaining a driver's licence under a licence suspension order made under s 19 or s 43 of the Fines, Penalties and Infringement Notice Enforcement Act 1994 (WA), contrary to s 49(1)(a) and (3)(d) of the Road Traffic Act1974 (WA).
In response to the prosecution notice the applicant filed an affidavit in the Magistrates Court which, although not in the same terms as the affidavit or notice referred to in the preceding appeal, was again nothing short of an extravagant and baseless polemic. By this, he claimed to be protected 'corporeally by the Royal Crown whose occupant swears the coronation oath' and asserted that the entity known as the Magistrates Court 'is prima facie a tribunal as it cannot be a court and not be in contempt of the Commonwealth of Australia Constitution Act'. By this he asserted that the Magistrates Court could not act judicially and could not make lawfully binding decisions. He declared that he owed no allegiance to the corporate entities of the State of Western Australia, the State Government of Western Australia, nor to any other similar entities or their agents. He asserted that these were monopolies and therefore unlawful and he claimed that he did not give recognition to the tribunal known as the Magistrates Court in any way.
His case came on for hearing before her Honour, Magistrate D Webb in the Magistrates Court at Perth on 12 April, at which time he objected to being called by the name Mr Krysiak and entered what amounted to a challenge to the jurisdiction of the court and refused to make a plea. He asserted that her Honour would be in contempt of the High Court if she proceeded with the charge. After further expostulations by the applicant about the jurisdiction of the Magistrates Court, and after he had been shown the most extreme patience by the learned magistrate, the applicant declined to enter any plea whereupon her Honour endorsed a plea of not guilty and adjourned the case for hearing on 27 July 2011.
On 27 July 2011 the matter came on for trial before his Honour, Magistrate R G W Bayly. On this occasion, Mr Krysiak appeared, answered to his name, and maintained the plea of not guilty. Three witnesses were called for the prosecution and Mr Krysiak himself decided to give evidence, did so and was cross-examined. Final submissions were made in the course of which Mr Krysiak advanced a series of arguments that attempted to regurgitate the series of constitutional and other misguided challenges.
His Honour then gave detailed oral reasons for decision in which an account was given of the evidence, which clearly established that Mr Krysiak had been driving whilst under suspension at the time alleged. After reviewing the evidence, his Honour concluded that he was satisfied that the applicant's driver's licence had been under suspension on the day alleged and that he knew he was under suspension at that time. His Honour convicted the applicant, imposed a fine of $400 and ordered him to pay costs of $119.20.
By an appeal notice dated 17 August 2011, later amended on 30 June 2012, the applicant asserted that he had a right to appeal from that decision and again relied on the Supreme Court Act, Magna Carta, Bill of Rights, Act of Settlement and Criminal Appeals Act. His grounds of appeal were that the learned magistrate has allegedly:
(a)erred in law
(b)acted outside of and/or exceeded his jurisdiction
(c)miscarried justice
These were amplified by the following 12 paragraphs.
1.The learned magistrate erred in law and fact and denied justice because their decision contravenes S 92 of the Commonwealth of Australia Constitution Act 1900 (IMP), as it purports to restrict freedom of travel (ie. the right of a Royal subject and Australian citizen to travel freely) without due process and on the basis of unproven allegations, by suspension of license;
2.The learned magistrate erred in law and fact because they denied part of defence which relied on S. 92 of the Commonwealth of Australia Constitution Act 1900 (IMP), and so adjudicated on a matter involving the Commonwealth of Australia Constitution, while not being specially appointed by the Governor‑General, pursuant to the Judiciary Act 1900 (Cth).
3.The learned magistrate erred in law and fact because they failed to Judiciary Act 1903 (Cth): "78B.(1) Where a cause pending … in a court of a State … involves a matter arising under the Constitution or involving its interpretation, it is the duty of the court not to proceed in the cause unless and until the court is satisfied that notice of the cause, specifying the nature of the matter has been given to the Attorneys‑General of the Commonwealth and of the States, and a reasonable time has elapsed."
4.The learned magistrate erred in law and fact and denied justice because they breached the chapter III provisions of the Australian Constitution (clause 9 of an Imperial Act in force), by not referring the matter to the original jurisdiction of the High Court for determination of constitutional matters I raised.
5.(WITHDRAWN)
6.The learned magistrate erred in law and fact and denied justice because they sat as the "Magistrates court", which is not a valid court pursuant to Chapter III of the Commonwealth of Australia Constitution Act 1900 (IMP);
7.The learned magistrate erred in law and fact and denied justice because they relied upon the decisions of the "Fines Enforcement Registry" ("FER"), being "fines suspensions" issued by "FER", which is not a valid court of record and is not a court pursuant to Chapter III of the Commonwealth of Australia Constitution Act 1900 (IMP);
8.The learned magistrate erred in law and fact and denied justice because they allowed the prosecution to use the Road Traffic Act 1974 (WA), sections 49(1)(a) & (3)(d) and Part IV A, which contravene S 92 of the Commonwealth of Australia Constitution Act 1900 (IMP), as they purport to restrict freedom of travel (ie. the right of a Royal subject and an Australian citizen to travel freely) without due process and on the basis of unproven allegations;
9.The learned magistrate erred in law and fact and denied justice because they relied upon the orders made by the "FER" which, via section 103 of the "Fines PAINE Act", deny the rules of natural justice.
10.The learned magistrate erred in law and fact and denied justice because they ruled that the lack of reasonable suspicion in the unwarranted actions of the police officers concerned was valid, when this lack of reasonable suspicion contravenes the officers' duty to act justifiably, as per Hughes v Dempsey 17 WALR 81.
11.The learned magistrate erred in law and fact by contravening Section 114 of the Commonwealth of Australia Constitution Act 1900 (IMP) by making an order for a monetary penalty in Australian dollars knowing that there is no gold or silver coin available as a legal tender in payment of a debt, being the penalty in the order ($400 plus $119.20).
12.The learned magistrate erred in law and fact and by issuing a monetary penalty in terms of Australia dollars, being Australian currency, payment of which cannot be made as it would breach the Currency Act 1965 (Cth), as there is no currency in circulation above $2 and no valid promissory notes available to discharge debt.

By this notice he applied for the following relief and remedy:
1.To set aside the decision of the "Magistrates Court" in this matter.
2.A declaration that this, or any other similar matter (which may be pending), is null and void ab initio.
3.To have the relief provided by the Habeas Corpus Act 1640 (treble damages), as my liberties have been breached and I am under injury in this matter.
4.To have relief from the so‑called "costs" of this appeal as it contravenes the natural justice principle in Magna Carta and Confirmation of Liberties, to wit: "To no one will we sell, to no one will we refuse or delay right or justice" and any costs would be contrary to: S 115 of the Commonwealth of Australia Constitution Act 1900 (IMP); Ss. 9, 11, 66, 22 Currency Act 1965 (Cth); and S.268.10 of the Criminal Code Act 1995 (Cth).
Again he asserted that he was appearing 'in propria persona unrepresented, but not waiving counsel'.
By orders dated 24 October 2011 Hall J gave directions requiring service upon the respondent of the papers filed by the applicant and, later, on 25 November 2011 ordered that this application should be heard together with SJA 1085 of 2011 and that the applications for leave to appeal be heard at the same time as any appeal. Other usual directions were also then made.

Leave to appeal necessary

Despite the form of the two notices of appeal in these cases, which assert that the applicant has a right of appeal to this court, that is not so. The combined effect of s 7(1) and s (9) of the Criminal Appeals Act 2004 (WA) is that leave of this court is required for each ground of appeal from a court of summary jurisdiction and this court must not grant leave to appeal on a ground of appeal unless it is satisfied that the ground has a reasonable prospect of succeeding. These provisions have been examined and considered frequently. It has been held that these requirements mean that any ground of appeal must have a rational, logical prospect of succeeding, that is, that it would not be irrational, fanciful or absurd to envisage it succeeding: Samuels v Western Australia (2005) 30 WAR 473; [2005] WASCA 193, 487.
Unless leave to appeal is granted, the application must be refused and the appeal will be deemed to be dismissed. In the present case, the orders for directions made by Hall J treated the applications as being for leave to appeal and directed that the applications for leave to appeal should be heard at the same time as any appeals ‑ that is on the assumption that leave to appeal on one or more grounds might be granted. However, in this case it soon became apparent that there was no reasonable prospect of any of the proposed grounds having a reasonable prospect of success and, accordingly, leave to appeal was refused on all grounds in both appeals. The reasons for those conclusions now follow.

Judiciary Act 1903 (Cth) ‑ s 78B notices

As is apparent, several of the proposed grounds of appeal invoke alleged rights or protections of the applicant under the Commonwealth of Australia Constitution Act 1900 and also rely on laws of the Commonwealth, including the Judiciary Act 1903 (Cth) and the Currency Act 1965 (Cth). Among the provisions of the Constitution or its principles which are sought to be invoked by the applicant are the protections for the freedom of interstate trade and commerce contained in s 92 of the Constitution; the doctrine of federal separation of powers requiring courts exercising federal jurisdiction to satisfy the requirements of chapter III of the Constitution ‑ Kable v DPP (1996) 189 CLR 51; [1996] HCA 24 and an attempted reliance on s 115 of the Constitution which provides that a State shall not coin money nor make anything but gold and silver coin a legal tender in payment of debts. The latter submission also sought to rely upon s 106 and s 109 of the Constitution and Covering Clause 5.
In the matters of SJA 1083 of 2012 (Krysiak v McDonagh) and SJA 1085 of 2012 (Krysiak v Barnes) the applicant alleged that the learned magistrate had erred in law by failing to comply with the provisions of s 78B of the Judiciary Act 1903 (Cth) in proceeding with the prosecution without notice of a matter arising under the Constitution or involving its interpretation being the subject of a notice as required by that section being given to the attorneys‑general of the Commonwealth, the States and Territories. He further submitted that the learned magistrate erred in law and denied justice by breaching chapter III of the Constitution by not referring the matter to the original jurisdiction of the High Court for determination of constitutional matters which he had raised.
There can be no doubt that by relying upon and invoking the provisions of the Constitution and other laws of the Commonwealth, no matter that there was no real basis to do so and no foundation upon which such arguments could be successfully maintained, the applicant did raise a question or questions which invoked federal jurisdiction: Hume v Palmer (1926) 38 CLR 441, 451 (Isaacs J); Moorgate Tobacco Co Ltd v Philip Morris Ltd (1980) 145 CLR 457 and Agtrack (NT) Pty Ltd (2005) 223 CLR 251; [2005] HCA 38, 261 [26]. Accordingly, so the applicant submitted, it was necessary that s 78B notices be given. It is notable that neither before the Magistrates Court nor in this court did Mr Krysiak himself take any steps to prepare and serve a s 78B notice himself on any of the attorneys‑general.
However, it is by now sufficiently well established that on an occasion when a notice under s 78B of the Judiciary Act which must be given where it appears to the court that the proceedings 'involve a matter arising under the Constitution or involving its interpretation' it is for the court to be satisfied that the case involves such a cause. The section does not operate simply because some party asserts that the Constitutional matter is relevant to the proceedings. In Amrit Lal Narain v Parnell (1986) 9 FCR 479, 486 ‑ 489 Burchett J examined at some length the obligations cast upon any court by s 78B of the Judiciary Act and examined a series of cases in which the extent of the obligation was examined, including Re an Application by Public Service Association of NSW; and; Re The Industrial Union of Employees (Commissioned Police Officers) Award (1947) 75 CLR 430; [1947] HCA 31. That case dealt with an application for removal into the High Court under s 40 of the Judiciary Act. At 489 Burchett J concluded that on the basis that the alleged Constitutional point depended entirely upon an erroneous construction of a federal statute, the cause pending in the court at first instance did not 'really and substantially' involve a matter arising under the Constitution or involving its interpretation. Similarly, in Re Finlayson; Ex parte Finlayson (1997) 72 ALJR 73 Toohey J, sitting as single justice in the High Court, addressed an argument that no s 78B notice had been given in an appeal to the Full Court of the Family Court of Australia in which it had been submitted that there had been an impermissible mixture of judicial and non‑judicial functions imposed on that court. At page 74 his Honour said:
In terms of s 78B, a cause does not 'involve a matter arising under the Constitution or involving its interpretation merely because someone asserts that it does. That is not to say that the strength or weakness of the proposition is critical: Green v Jones [1979] 2 NSWLR 812 at 817 ‑ 818. But it must be established that the challenge does involve a matter arising under the Constitution. The applicant's argument is based on a misunderstanding of the structure of the Family Court …
Other cases in which the obligation to give s 78B notices has been examined include Boath v Wyvill (1989) 85 ALR 621, 634 and Johnson Tiles Pty Ltd v Esso Australia Ltd [1999] FCA 1363. I referred to these cases in Pennicuik v City of Gosnells [2011] WASC 63 [17] ‑ [22]. There I considered that where arguments about validity sought to rely on a Constitutional provision there would be no real or legitimate Constitutional point requiring an issue of s 78B notices unless the court itself was satisfied that the point did really and substantially involve a matter arising under the Constitution or involving its interpretation. I adhere to that approach and, because I am satisfied the points sought to be relied upon by the applicant are entirely spurious, there was no need for any s 78B notice in either of these two applications.

The two applications

In the written submissions filed by the applicant and by counsel for the respondent and, indeed, at the hearing of the applications, the grounds relied upon which were common to both applications were dealt with together at the choice of the applicant. The proposed grounds of appeal in SJA 1085 of 2011 encompass each of the grounds relied upon the earlier appeal, SJA 1083 of 2011, together with five further proposed grounds, which makes this approach convenient.
In each application Mr Krysiak asserts that the learned magistrate erred in law because his decision contravened s 92 of the Commonwealth of Australia Constitution Act because the defence charged purports to restrict freedom of travel. However, as submitted by the respondent, s 92 applies only to 'trade, commerce and intercourse among the States' and has no application to the provisions of the Road Traffic Act which regulate driving within the confines of this State. In any event, s 92 does not preclude legislation which has the effect of regulating travel between the States: Cole v Whitfield (1988) 165 CLR 360; [1988] HCA 18, 393. As said by the entire court at 393:
For example, although personal movement across a border cannot, generally speaking, be impeded, it is legitimate to restrict a pedestrian's use of a highway for the purpose of his crossing or to authorise the arrest of a fugitive offender from one State at the moment of his departure into another State.
There is no basis for suggesting that legislation which forms the part of the law of a single State designed for regulation and in the interest of public safety and orderly administration to control traffic on the roads and licensing of drivers is any impediment to the Constitutional freedom. There is no basis on this ground and leave to appeal to raise it must be refused.
Proposed grounds 2, 3 and 4 which, respectively, rely further on s 92, the asserted failure of an obligation to give a s 78B notice and the alleged breach of chapter III provisions by not referring the matter to the original jurisdiction of the High Court, are also baseless. The section 92 point has already been addressed, as has the s 78B notice provision. There was no Constitutional point to be raised and, in any event, a referral or removal to the High Court under s 40 of the Judiciary Act would only lie at the decision of the High Court on an application made in that respect by a party to the proceedings or by a State or Territory attorney‑general. No attempt had ever been made by Mr Krysiak or any others to apply to the High Court for removal.
The next ground in SJA 1083 of 2011 (ground 5) asserted that the learned magistrate erred in law by allowing a non‑legal practitioner to practise law on behalf of a corporation. That has been withdrawn by the amendment to this proposed notice of appeal and was not pursued. It is unnecessary to examine this.
In both appeals the applicant asserts that the learned magistrate erred in law by sitting as the Magistrates Court, which is not a valid court pursuant to chapter III of the Constitution (ground 6 in SJA 1085 of 2011 and ground 3 in SJA 1083 of 2011).
Under s 34 of the Magistrates Court Act 2004 it is provided that in respect of any case dealt with by that court it is to be presumed that the court:
(a)was constituted according to law; and
(b)had jurisdiction to deal with the case
a provision which was considered in Hedley v Spivey [2011] WASC 326 [17] ‑ [18] (McKechnie J), affirmed on appeal in Hedley v Spivey [2012] WASCA 116. Mr Krysiak has previously submitted that the Magistrates Court is not a 'valid court' in previous appeals, but that submission has been comprehensively rejected ‑ see Krysiak v Hodgson [2009] WASC 16 and on appeal Krysiak v Hodgson [2009] WASCA 114. Leave to appeal on this ground must be refused.
Associated grounds of appeal (in both applications ‑ grounds 7, 8 and 9 in SJA 1085 of 2011 and grounds 4 and 5 in SJA 1083 of 2011) assert that the learned magistrate erred in law because he relied upon decisions of the Fines Enforcement Registry that there had been fines suspensions and that the FER is not a valid court of record; not a court pursuant to chapter III of the Constitution; but by being designated as part of the Magistrates Court has the effect of preventing the Magistrates Court from being a chapter III court. He further submitted that by relying upon orders made by the fines enforcement authority via s 133 of the Fines, Penalty and Infringement Notices Enforcement Act 1994 (WA) (the FPINE Act) his Honour denied the rules of natural justice.
I also mention, only to repeat earlier conclusions, that insofar as ground 8 in SJA 1085 of 2011 relied upon an alleged error of law consisting of the magistrate's reliance upon the Road Traffic Act which was said to contravene s 92 of the Constitution, that ground is also entirely baseless.
I turn to the provisions of the FPINE Act. Section 101C of that Act provides:
101C. Proving licence suspension orders and service of documents
(1)Evidence —
(a)that a licence suspension order was made under this Act;
(b)of the details of a licence suspension order and of the matter to which it relates;
(c)that a licence suspension order had not, at a particular time, been cancelled;
(d)that a document issued under this Act has been served on a person in accordance with section 5;
(e)of any matter relevant to the service of a document issued under this Act,
may be given by tendering a certificate to that effect in the prescribed form signed by the Registrar.
(2)Unless the contrary is proved, it is to be presumed that anything required to be done as a precondition to taking any action under this Act was done and was done in accordance with the law.
(3)Unless the contrary is proved, it is to be presumed that a certificate purporting to have been signed by the Registrar was signed by a person who at the time was the Registrar.
In the prosecution before his Honour, Magistrate Bayly (now the subject of SJA 1085 of 2011) his Honour received in evidence six certificates tendered by the prosecution under s 101C of the FPINE Act as prima face evidence of the fact that on 29 January 2011 Mr Krysiak was subject to a licence suspension order under that Act. There can be no basis for the applicant's contention that he was deprived of natural justice by the reception of these certificates. The certificates constitute prima facie evidence of the facts alleged but there was no attempt by the applicant to assert or to establish that he was not subject to a licence suspension at the time he was charged with driving a motor vehicle without authority. These proposed grounds of appeal have no prospects of success and leave to rely upon them is refused.
In ground 10 of the notice of appeal in SJA 1085 of 2011 Mr Krysiak asserts that 'the learned magistrate erred in law … and denied justice because [he] ruled that the lack of reasonable suspicion in the unwarranted actions of the police officers concerned was valid when this lack of reasonable suspicion contravenes the officer's duty to act justifiably as per Hughes v Dempsey (1915) 17 WALR 186. This is entirely misguided. Hughes v Dempsey is a case concerning a charge of having possession of gold reasonably suspected of having been unlawfully obtained. The nature of the elements or basis of a 'reasonable suspicion' relating to possession of property unlawfully obtained was addressed by the court but those observations and principles have nothing whatever to do with a charge of driving without authorisation due to the suspension of a licence for non‑payment of fines. Furthermore, under s 53 of the Road Traffic Act the police officers who stopped the applicant when driving were entitled to do so and to require him to show that he was, at that time, in possession of a valid driver's licence. The police officers had an absolute right to call upon the applicant; to stop his vehicle; give his name and address; and to produce his driver's licence. There was no necessity for them to hold any suspicion that he may not have had a driver's licence in order to exercise those powers. The proposed ground of appeal has no prospect of success and leave to appeal in reliance upon it must be refused.

Currency issues

In both appeals the applicant asserts that the learned magistrate erred by contravening s 115 of the Constitution by making an order for a monetary penalty in Australian dollars knowing that there was no gold or silver coin available as legal tender in payment of a debt and, further, by issuing a monetary penalty in terms of Australian dollars, being Australian currency, payment of which cannot be made as it would breach the Currency Act 1965 (Cth), as there is no currency in circulation above $2 and no valid promissory notes available to discharge debt (see grounds 6 and 7 of SJA 1083 of 2011 and grounds 11 and 12 in SJA 1085 of 2011).
These are, possibly, the most egregious of all of the applicant's contentions. Arguments to this effect were roundly rejected in Re Skyrings Application (No 2) (1985) 58 ALR 629; (1985) 59 ALJR 561. In that case, Deane J said that there had been:
… a submission that the combined effect of a number of sections of the Constitution is to erect a barrier against the issue by the Commonwealth of paper money as legal tender. The sections of the Constitution upon which particular reliance is placed are ss 51(xii), (xvi) and (xvi) and 115. Mr Skyring also referred to ss 105 and 105A. Additionally, reference was made to the provisions of the Currency Act 1965 (Cth) dealing with coins. The argument, if accepted, would result in the invalidity of s 36(1) of the Reserve Bank Act 1959 (Cth) which provides that 'Australian notes are a legal tender throughout Australia'.
Similar arguments were also addressed by the Supreme Court of Queensland in Lohe v Gunter [2003] QSC 150 where Holmes J said:
[8]The respondent argued that there was no means by which he might lawfully pay fines or costs because of the failure of the Crown to provide currency as prescribed by the Currency Act 1965, s 16 of that which provides for coinage as legal tender. There was, he said, no legal sanction for the issue of paper money; and there was a lack of correspondence between the face value of coins and the price at which they may be bought using paper money. (He referred to a particular example of a set of gold coins being bought for an amount far in excess of its face value.)
[9]As to the first part of the respondent’s argument, Deane J in Re Skyring’s Application (No 2) reached the conclusion that there was no constitutional bar against the issue of paper money as legal tender, a view which has been confirmed subsequently on a number of occasions. [Re Skyring (1994) 68 ALJR 618; Skyring v ANZ Banking Group Ltd (Unreported, Court of Appeal No 176/1993, 12 May 1944); Owen v Deputy Commissioner of Taxation (Unreported, Full Court of the Federal Court, Qd 132, 1995. As to the second aspect, in Cusack v Commissioner of Taxation [2002] FCA 1012; [2002] ATC 4676, Cooper J considered an argument which turned around the difference between money as a unit of value and money as currency by which obligations are discharged. There was, he said, a presumption given statutory effect in provisions of the Currency Act and the Reserve Bank Act 1959 that parties contracted and parliament legislated with reference to the nominal value of money as expressed by legal tender; currency when used as legal tender was valued at its face value without regard to its intrinsic worth. The value of coins departed from their face value only when they were not being used as currency and were regarded simply as a commodity. The weight of authority is thus against the respondent’s first point, and the reasoning of Cooper J is persuasive against the second.

Mr Krysiak sought support for these arguments by references to a decision of the High Court which related to Commonwealth legislation at a time when that currency was based on the gold standard and was convertible to sovereigns: Payne v Federal Commissioner of Taxation [1934] HCA 7; (1934) 51 CLR 197 (Rich J at 210 and Starke J at 211 ‑ 212). This was coupled with a submission that the only permissible alternative to a gold backed currency was the issue of promissory notes effective under the Bills of Exchange Act 1909 (Cth) and that modern Australian paper currency notes are not promissory notes. There is no prospect of success at all in any of these contentions. Australia, like most other countries, has long ago abandoned a gold standard for her currency. A gold backed standard has long been rejected by established theories of monetary economics. Nor is it necessary for currency notes to be promissory notes in view of their status as legal tender under the Reserve Bank Act 1959 (Cth). Leave to appeal on these grounds must be refused.
It is necessary finally to address proposed ground 2 in application SJA 1083 of 2011. This addresses the fact that in the proceedings before his Honour, Magistrate Calder, on 26 July 2011 although Mr Krysiak was evidently present in the courtroom but would not answer to his name, he was convicted under s 55 of the Criminal Procedure Act on the basis that there had been no appearance by the accused and no plea of guilty. Counsel for the respondent referred to the decision of White J in the Supreme Court of South Australia in CVFC Ltd v Charitopoulos [2009] SASC 30, which involved a question of whether or not a defendant had 'appeared' in circumstances where judgment in default was entered against him. That defendant had appeared before the court to apply for a stay or an adjournment of the proceedings and, upon it being rejected, he left the courtroom. In that case, White J observed [19]:
In the context of r 75.14 it is clear enough that parties may 'appear' in the relevant sense either in person or by counsel. That is to say, there are two means by which a party may appear. However, whichever means is used, parties 'appear' in the requisite sense only if they present themselves for the trial. Parties who are present in the body of the courtroom when the action is called on for trial but who do not announce themselves, in person or by counsel, do not 'appear' in the sense required by r 75.14. Nor do parties who present at the bar table (in person or by counsel) but only for the purposes of seeking an adjournment of the trial. Such persons do not 'appear' before the court for the trial.
Furthermore, as I observed in Tey v City of Gosnells [2010] WASC 96 [38] a court cannot be allowed to have its procedures frustrated by the refusal of a litigant to participate and a court is entitled to ensure the efficient running of its business by requiring an accused properly to identify himself when called upon. Mr Krysiak was given every opportunity to 'appear' in the proceedings before his Honour, Magistrate Calder. Even after his Honour indicated a readiness to proceed under s 55 in the absence of the accused, he was given a further opportunity to do so. He declined this by persisting in a tendentious argument that he should be addressed, not by his name, but by a combination of words which gave recognition to an unjustifiable and amorphous status which he asserted as part of his misguided appreciation of legal forms and procedures. There is, accordingly, no reason to conclude that there has been any miscarriage of justice by the procedure which was adopted on that occasion.
In the result, none of the proposed grounds of appeal had any prospect of success and, leave being refused to appeal, the appeals are deemed to have been dismissed.
On orders being made to that effect, counsel for the respondents applied for costs but these were opposed by Mr Krysiak on the basis that the respondents and their counsel were all officers of the State which, in his submission, meant that no costs had been incurred. This is another example of a failure to understand legal principles and authorities and it cannot be accepted. I ordered that the applicant should pay the two respondents, respectively, their costs of the appeals to be taxed if not agreed.