Mills­Edward v Russell

[2011] WADC 9

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CHAMBERS

LOCATION:   PERTH

CITATION:   MILLS­EDWARD -v- RUSSELL [2011] WADC 9

CORAM:   DAVIS DCJ

HEARD:   14 JANUARY 2011

DELIVERED          :   27 JANUARY 2011

FILE NO/S:   APP 70 of 2009

BETWEEN:   CARLTON CHARLES MILLS­EDWARD

Respondent

AND

JULIE MARIE RUSSELL
Respondent

ON APPEAL FROM:

Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram  :MAGISTRATE BOON

File No  :PE 17309 of 2009

Catchwords:

Appeal - Application to strike out appeal - Appeal has no reasonable prospect of success - Turns on own facts

Legislation:

Commonwealth Constitution
Constitution Act 1889 (WA)
District Court Rules 2005, r 6
Magistrates Court (Civil Proceedings) Act 2004, s 43(6)
Rules of the Supreme Court 1971, O 59 r 3 and r 4

Result:

Appeal dismissed

Representation:

Counsel:

Respondent:     In Person

Respondent:     Mr M Rennie

Solicitors:

Respondent:     Not applicable

Respondent:     HFM Legal

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

Forge v Australian Securities and Investments Commission (2006) 228 CLR 45

Glew Technologies Pty Ltd v Department of Planning and Infrastructure [2007] WASCA 289

Glew v Frank Jasper Pty Ltd [2010] WASCA 87

Glew v Governor of Western Australia (2009) 222 FLR 417

Glew v Shire of Greenough [2006] WASCA 260

Halford v Price (1960) 105 CLR 23

Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51

Lane v Morrison [2009] HCA 29; (2009) 239 CLR 230

Le Mesurier v Connor (1929) 42 CLR 481

Peacock v Newtown Marrickville and General Co-operative Building Society No 4 Ltd (1943) 67 CLR 25

Shaw v McGinty [2006] WASCA 231

South Australia v Totani [2010] HCA 39; (2010) 271 ALR 662

Tobin v Dodd [2004] WASCA 288

Williamson v Hodgson [2010] WASC 95

1. DAVIS DCJ:  On 31 August 2009 Magistrate Boon made orders in the Magistrates Court in favour of the respondent in this appeal, Ms Russell, against the appellant in this appeal, Mr Mills‑Edward, and another defendant named in Magistrates Court proceedings number 17309 of 2006.

2. On 21 September 2009 Mr Mills‑Edward filed a notice of appeal appealing from the orders made by the magistrate.  Nothing then occurred in the appeal until 26 October 2010 when the solicitors for Ms Russell filed a chamber summons applying to strike out the appeal.

3. Ms Russell seeks orders that Mr Mills‑Edward's appeal be struck out or dismissed on the grounds that it has no reasonable prospect of success or, in the alternative, for want of prosecution of the appeal.

The grounds of the appeal

1. The dispute between the parties to the proceedings in the Magistrates Court related to a sum of $37,000 paid by Ms Russell to Mr Mills‑Edward, following an oral agreement made between the parties in early January 2000.  As set out in written reasons, in determining the issues in the case, including what was agreed between the parties leading up to the payment of the sum of $37,000 and whether the defendants should repay that sum to Ms Russell, the magistrate preferred the evidence of Ms Russell over that of Mr Mills‑Edward and rejected his allegations.  The magistrate ordered that Mr Mills‑Edward and another defendant pay Ms Russell the sum of $37,000, and also pay Ms Russell's costs to be assessed if not agreed.

2. The grounds of the appeal by Mr Mills‑Edward do not address the merits of the decision by the magistrate.  They provide no detail at all as to how it is said the magistrate erred in fact or law. 

3. The grounds upon which Mr Mills‑Edward has brought his appeal are as follows:

   (1).The Schedule 'E' was repealed from the State Constitution 1889 making it repugnant to the Federal Constitution, making the court invalid.

   (2).The Magistrate swore an oath of allegiance to the 'State'.  An unlawful entity.

   (3).Decision of the High Court of Australia Lane v Morrison [2009] HCA (26 August 2009) C3/2008 states that a single judge cannot sit in courts. They do not comply with chapter 3 of the Federal Constitution.

   (4).The matter is [inter se] because the above applies to all State Courts.

4. On behalf of Ms Russell it was argued that:

   1.Ground 1 is unintelligible;

   2.Similar submissions to those in ground 2 were raised in Williamson v Hodgson [2010] WASC 95 and dismissed by the court as having no merit;

   3.Ground 3 is without merit as Lane v Morrison [2009] HCA 29; (2009) 239 CLR 230 was concerned with whether the Australian Military Court exercised the judicial power of the Commonwealth and whether that court was created in accordance with ch III of the Commonwealth Constitution. That decision has no bearing on the validity of State courts;

   4.Ground 4 of the notice of appeal is unintelligible.

A preliminary matter

1. At the hearing before me Mr Mills‑Edward raised as a preliminary matter that the application to strike out his appeal was 'unlawful', because the application had been signed on behalf of Ms Russell by her solicitors.  Mr Mills‑Edward submitted that the chamber summons by which the application was brought was required to be signed by a solicitor in person, and not a law firm.  He relied on the Federal Court Rules O 45 r 9 which he set out, in written submissions handed up to me in the course of the hearing, as follows:

   9Signature for solicitor

   (1)Where any signature by a solicitor is required or permitted for the purpose of any proceeding, the signature for the solicitor by any of the following persons shall be sufficient:

   (a)a partner of the solicitor;

   (b)a solicitor who is agent of the solicitor for the purpose of the proceeding;

   (c)a partner of the agent;

   (d)a solicitor employed by the solicitor or by the agent.

   (2)A signature made pursuant to this rule shall be accompanied by a statement of the capacity in which the signature is made.

2. Mr Mills‑Edward submitted that I was bound by decisions of the High Court and the High Court had found that a firm of legal practitioners is not a legal entity: Halford v Price (1960) 105 CLR 23. He then submitted that a document filed and signed with a firm name pretending to be an individual solicitor that holds a practising certificate is invalid and does not confer jurisdiction on the court to hear the matter. He referred to Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51 (Kable) to argue that he did not have to answer the application brought by Ms Russell. Mr Mills‑Edward also argued, as set out in his written submissions, that the application is a forgery because the 'signature of an individual person who in fact does not exist' breaches the provisions of sch 1 of the Queensland Criminal Code Act 1899.

3. The Federal Court Rules do not apply to the District Court.  From my review of the Supreme Court Rules 1971 and District Court Rules 2005 there is no requirement for a solicitor in person to sign an application in the form of a chamber summons, as has been brought in this case.

4. Pursuant to the District Court Rules r 6 the Rules of the Supreme Court apply to and in respect of any case in the District Court unless there is a conflict or inconsistency between the District Court Rules and the Rules of the Supreme Court, in which case the District Court Rules prevail.  There is nothing in the District Court Rules which sets out the form of applications to be made in chambers. Accordingly, O 59 of the Rules of the Supreme Court applies, O 59 r 3 requires that an application in chambers shall state the orders that the applicant seeks and the grounds for the application. Order 59 r 4 provides that an application in chambers must be in Form 77 and addressed to all the persons on whom it is to be served. Form 77 does not require the summons to be signed, although in practice the solicitors on the record for a party will generally sign such an application.

5. In my view there is nothing invalid or unlawful in the form of the application which was filed and served by the solicitors for Ms Russell.  Accordingly I turn to address the substantive issues raised in the application to strike out Mr Mills‑Edward's claim.

The grounds of appeal generally

1. When considering whether the appeal grounds have a reasonable prospect of success I must take into account that Mr Mills‑Edward is a self‑represented litigant and I need to determine whether, notwithstanding poorly expressed grounds, there is merit in any of those grounds: Tobin v Dodd [2004] WASCA 288 at [13] - [18]; Glew v Frank Jasper Pty Ltd [2010] WASCA 87 at [10].

2. As I have already observed, none of the grounds of appeal raise any error of fact or law which is said to have been made by the magistrate in her decision of 31 August 2009. All of the grounds of appeal relate to what I understand to be Mr Mills‑Edward's submission that the Magistrates Court was not a properly constituted court pursuant to the Constitution of the Commonwealth, ch III. The submissions he made included that all courts are part of a federal judiciary system with the High Court at its summit, State courts 'must come under the Commonwealth Constitution ch III', and there is no divide between Federal and State courts.

3. The Australian constitutional structure and the relationship between Commonwealth and State legislative powers was explained by Wheeler JA in Glew v Shire of Greenough [2006] WASCA 260 [5] ‑ [14].

   The settlement of the Australian colonies began as an executive act of the Imperial Crown. Letters Patent - in effect, public instructions - from the Crown were issued to governors. However, in 1823 the Act commonly called the New South Wales Act (4 Geo IV, c 96) was passed by the Imperial Parliament. It conferred upon the governor power to enact laws for the 'peace welfare and good government' of New South Wales, with the advice of the Legislative Council. Because legislation can restrict or alter the prerogatives of the Crown, this Act began the process of restricting the power of the Crown to govern the colonies. In time, further Acts of the United Kingdom Parliament not only set up local legislatures, but also provided that those legislatures could set up, and amend, their own constitutions. One of those Acts is referred to in the preamble to the Constitution Act 1889, which is an Act passed by the Western Australia legislature of the day pursuant to that authority. When the Commonwealth Constitution was passed as an Act of the United Kingdom Parliament, the former colonies became States.

   The Commonwealth Constitution is binding on all Courts and Parliaments throughout the country. To the extent that State or Commonwealth law is inconsistent with it, that State or Commonwealth law is invalid. It is, however, a Constitution which was superimposed on, and assumes the existence of, pre-existing State Constitutions which not only continued, but which were able to be altered in accordance with their terms.

   So far as legislative power was concerned, s 51 of the Commonwealth Constitution listed most of the legislative powers of the Commonwealth. Those powers were not expressed to be exclusive. That is, the Commonwealth Constitution contemplated that both State and Commonwealth Parliaments would be able to make laws in relation to the matters set out in that list. It was only where the Commonwealth had passed a law in relation to one of those listed subject matters, and a State law was inconsistent with the Commonwealth law, that the State law would become invalid or inoperative (s 109). That would not be because the State lacked constitutional power to pass the law, but simply because the Commonwealth legislation was, to the extent that the Commonwealth had passed law, paramount. There is a short list of powers which are exclusive to the Commonwealth Parliament. They include, for example, the power to make laws with respect to the seat of government of the Commonwealth (s 52(i)).

   …

   The power of the State Parliaments to legislate stems in each case from the Constitution of the relevant State. In relation to Western Australia, s 2 of the Constitution Act 1889 (WA) ('the State Constitution') empowers the State to make laws for the 'peace, order and good government of Western Australia'. That is a very extensive grant of legislative power. The words 'peace, order and good government' are to be understood as conferring ample and plenary power on the States to legislate for any matter having a connection with the State (Union Steamship Co of Australia Pty Ltd v King (1988) 166 CLR 1). The State can make any 'fact, circumstance, occurrence or thing' in or connected with the State a subject of legislation (Broken Hill South Ltd (Public Officer) v The Commissioner of Taxation (New South Wales) (1937) 56 CLR 337, at 375 per Dixon J).

   That broad legislative power in the State Constitution is qualified in only three ways. First, as I have noted, in some very limited areas the Commonwealth Constitution provides that the Commonwealth's legislative power is exclusive. That prevents the State from validly legislating at all in that area. Secondly, in some cases, as I have noted, the State can validly legislate, but if there is a valid Commonwealth law inconsistent with the State law, then the Commonwealth law will prevail while it is in operation. Thirdly, some State Constitutions have some restrictions relating to the way in which legislation concerning particular subject matters can be passed, such as s 73 of the State Constitution.

   So far as the State Constitutions are concerned, unless there is some particular provision in the State Constitution prescribing the 'manner and form' for amending particular parts of the Constitution, then the State Parliament is free to amend the State's Constitution in any way it sees fit. That is, the State Constitutions can generally be amended as easily as any other Act. As the Privy Council has said, they occupy 'precisely the same position as a Dog Act or any other Act, however humble its subject matter' (McCawley v R [1920] AC 691 at 704).

4. Chapter III of the Commonwealth Constitution deals with the judicial power of the Commonwealth. It establishes the High Court and gives the Parliament of the Commonwealth (Federal Parliament) power to create federal courts other than the High Court. It sets out the appellate and original jurisdiction of the High Court. It gives Federal Parliament the power to make laws defining additional jurisdiction of the High Court and also the jurisdiction of any Federal court other than the High Court. It also gives Federal Parliament the power to make laws investing any court of a State with Federal jurisdiction: see s 77(iii) of the Commonwealth Constitution.

5. The Commonwealth Constitution confirms the existence of State courts, and it does not change or affect the State court system. Federal Parliament can utilise the judicial services of State courts to give them, as additional jurisdiction, part of the judicial power belonging to the Commonwealth, but the provisions of Ch III of the Commonwealth Constitution do not give power to the Federal Parliament to affect or alter the constitution or organisation of State courts. It is the Parliament of each State which has the legislative power to determine the constitution, organisation and jurisdiction of its courts: Le Mesurierv Connor (1929) 42 CLR 481 (495 – 496); Peacock v Newtown Marrickville and General Co-operative Building Society No 4 Ltd (1943) 67 CLR 25, 37; Forge v Australian Securities and Investments Commission (2006) 228 CLR 45 [61]; South Australia v Totani [2010] HCA 39; (2010) 271 ALR 662 [67] - [72] .

6. A State's legislative power is subject to the requirement that it maintains courts able to exercise the judicial power of the Commonwealth.  State legislation may not impose upon a court a function which impairs that court's institutional integrity and which is therefore incompatible with the exercise of the judicial power of the Commonwealth under Ch III.  This limitation on a State's legislative power was stated by the High Court in Kable, and most recently applied by the High Court in South Australia v Totani.  As French CJ stated in South Australia v Totani [68], however, 'That limitation on State legislative power nevertheless makes ample allowance for diversity in the constitution and organisation of courts'.

7. It is necessary for me to consider Kable, as Mr Mills‑Edward has relied on it in his written submissions and, having regard to his arguments before me, I believe that may be a source of his submissions, particularly the submission that State courts 'must come under the Commonwealth Constitution ch III'. The High Court in Kable considered the validity of a specific piece of legislation, the Community Protection Act 1994 (NSW). This Act gave the Supreme Court of New South Wales power, on certain conditions being met, to order the continued detention of a specified person who was serving a term of imprisonment following his conviction for manslaughter and was due for release. The High Court held that the Act was invalid because it contravened Ch III of the Constitution. It was held that when a State court is exercising federal jurisdiction, it may not act in any manner incompatible with Ch III, and the exercise of jurisdiction under the Act was incompatible with the integrity, independence and impartiality of the Supreme Court of New South Wales as a court in which federal jurisdiction had been invested under Ch III. This was because the Act (described by both Toohey J and Gummow J as 'extraordinary') applied only to one specified person and that person's detention could be ordered without a trial or any finding of guilt, contrary to the exercise of judicial process: see Kable 95, 98 - 99 (Toohey J), 106 - 107 (Gaudron J) and 134 (Gummow J).

8. The principles set out in Kable apply to the review of specific legislation which requires a court to implement its decisions in a manner incompatible with that court's institutional integrity.  The principles do not constitute a codification of the limits of State legislative power with respect to State courts: South Australia v Totani [69] at point (4) (French CJ).

9. The facts and circumstances of Kable are far removed from the facts and circumstances of this case.  Here the magistrate was exercising the civil jurisdiction of the Magistrates Court, determining a dispute involving an oral agreement for the payment of a sum of money.

10. In my view the principles in Kable have no application to this case.

11. So far as Mr Mills‑Edward argues that the Magistrates Court conflicts with the Commonwealth Constitution ch III and that the Magistrates Court of Western Australia is not a properly constituted court, I consider his arguments are without foundation.

Grounds 1 and 2 of Mr Mills‑Edward's appeal

1. I will deal with these two grounds together, as in oral submissions to me Mr Mills‑Edward advised that these were related.

2. His submission was that the State Constitution sch E required that the magistrates and judges must make an oath of allegiance to the Crown, that schedule was amended in 2004 and did not go to referendum, and that conflicts with the Commonwealth Constitution ch III 'where they must swear allegiance to the Crown'. (In fact, the amendment to sch E was made in 2005 pursuant to the Oaths, Affidavits and Statutory Declarations Act 2005 (WA)).

3. A fundamental problem with these two grounds of appeal is that sch E of the State Constitution relates, and has always related, only to the oath or affirmation taken by members of the Legislative Assembly and Legislature Council: see s 22.

4. In addition, an amendment to sch E of the State Constitution does not require a referendum. This State can legislate to alter the terminology which refers to the Crown or Her Majesty and there is no constitutional prohibition as Mr Mills‑Edward argues: Glew v Shire of Greenough at [11], [16] and [20].

5. As I understand, however, from Mr Mills‑Edward's submissions to me, his grounds are intended to go further and relate to changed references from the Crown and Her Majesty to the State and the Governor, in all Western Australian legislation.  Because of this change Mr Mills‑Edward argues that the Magistrates Court is invalid.

1. Such an argument has been raised before and rejected on each occasion: see Glew v Shire of Greenough at [16] ‑ [20]; Glew Technologies Pty Ltd v Department of Planning and Infrastructure [2007] WASCA 289 at [7], [12] and [15]; Glew v Governor of Western Australia (2009) 222 FLR 417; Shaw v McGinty [2006] WASCA 231 at [25] - [29] and Williamson v Hodgson at [40] ‑ [42].

2. Both of these grounds of appeal, grounds 1 and 2 have no merit and have no reasonable prospect of succeeding and in my view should be struck out.

Ground 3

1. As Mr Mills‑Edward explained, this ground reflects the High Court's decision in Lane v Morrison which he says is to the effect that no single judge can sit, there must be two judges and a jury, and all courts must sit under ch III of the Commonwealth Constitution. The magistrate, he argued, was not sitting under ch III and was not meeting the requirements of ch III.

2. I have already dealt the Commonwealth Constitution ch III and the constitution, organisation and jurisdiction of State courts when discussing the grounds of appeal generally. Mr Mills-Edward's argument that the Magistrates Court must 'sit under ch III' is without foundation in law.

3. Lane v Morrison considered the constitutional validity of a military court, established by Commonwealth legislation.  It has no application to a State court such as the Magistrates Court of Western Australia.  The application of Lane v Morrison to a State court has also been considered by the Court of Appeal in Glew v Frank Jasper Pty Ltd. In that case a similar argument as the one raised by Mr Mills‑Edward in this case, namely that the proceedings before the primary judge did not comply with the requirements of ch III of the Commonwealth Constitution as described in Lane v Morrison, was rejected: see Glew v Frank Jasper Pty Ltd [14] - [15].

4. It follows that this ground of appeal has no merit and no reasonable prospect of success and should be struck out.

Ground 4

1. Mr Mills‑Edward explained that this ground referred to s 32 of the Judiciary Act 1903 (Cth). He argued that a State court cannot hear constitutional issues. He explained that this was a constitutional issue because all courts are a part of the Federal jurisdiction and the Magistrates Court was sitting invalidly because it was sitting under ch III of the Commonwealth Constitution. This argument is tied up with the other grounds with which I have already dealt.

2. The magistrate did not hear any constitutional issue or any matter of Federal jurisdiction, in the sense of the exercise of the judicial power of the Commonwealth under ch III of the Commonwealth Constitution. The section of the Judiciary Act to which Mr Mills‑Edward referred, s 32, sets out the relief which the High Court can grant when exercising its original jurisdiction. The magistrate did not hear any matter falling within the High Court's original jurisdiction. The Judiciary Act has no application to this case.

3. I consider this further ground of Mr Mills‑Edward's appeal notice is without merit and has no prospects of success.

Conclusion and orders

1. All of the grounds of Mr Mills‑Edward's appeal should be struck out and I consider it is appropriate that I dismiss the appeal and give judgment accordingly, pursuant to s 43(6) of the Magistrates Court (Civil Proceedings) Act 2004, without a full hearing of the appeal. 

2. The orders I will make are that the appeal be dismissed with the appellant, Mr Mills‑Edward, to pay the respondent, Ms Russell's costs of and incidental to this application and the appeal, including any reserved costs, to be taxed.