Woods v Scipione
[2014] NSWSC 1100
•15 August 2014
Supreme Court
New South Wales
Medium Neutral Citation: Woods v Scipione [2014] NSWSC 1100 Hearing dates: 24 April 2014 Decision date: 15 August 2014 Jurisdiction: Common Law Before: Adams J Decision: The summons, except as to the fourth defendant, is dismissed under UCPR r 13.4 as disclosing no reasonable cause of action. In respect of the fourth defendant, the plaintiff has leave to replead the application for an order in the nature of certiorari in respect of her conviction. If she wishes to replead, a Notice of Motion seeking to join the informant as a defendant and amending her summons is to be filed and served together with an affidavit stating precisely (and no more than) the details of the conviction and orders appealed from and the circumstances of the proceedings relied on for the purpose of seeking the order. On delivery of judgment, directions will be given as to times.
Catchwords: Witness protection program - subsequent legislation - powers of Commissioner of Police - functions of ministers - distinction between power and duty - mandamus inappropriate Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW), rr 13.4, 14.28
Witness Protection Act 1995 (NSW), ss 5, 6, 7, 11, 11A, 14, 15, 16, 18, 21, Pt 2, Sch 1
Births, Deaths and Marriages Registration Act 1995 (NSW), ss 4, 45, 47, 49
Transport Administration Act 1998 (NSW), s 3B
Road Transport Act 2013 (NSW)Cases Cited: Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 Texts Cited: M Aronson and M Groves, Judicial Review of Administrative Action (5th ed, Thomson Reuters, 2013) Category: Principal judgment Parties: Debra Margaret Woods (first plaintiff)
Mark Warren Townley (second plaintiff)
Elise Maree Townley (third plaintiff)
Andrew Scipione (first defendant)
Gregory Eugene Smith (second defendant)
Sarah-Jane Morris (third defendant)
Robert Walker (fourth defendant)
Gregory Curry (fifth defendant)
Anne Wooding-Giles (sixth defendant)
John Duncan Gay (seventh defendant)
Prudence Jane Goward (eighth defendant)
Peter Langstaff (ninth defendant)
Douglas R Pratt (tenth defendant)Representation: Counsel:
N J Owens (first, second, third, fifth, sixth, seventh and eight defendants)
Solicitors:
Self-represented (plaintiff)
Crown Solicitor's Office (defendants)
File Number(s): 2013/178066
Judgment
Introduction
On 11 June 2013 the first plaintiff, Debra Margaret Woods, commenced proceedings against the Commissioner of the New South Wales Police Force, the then Attorney General for the State of New South Wales, an employee of the Crown Solicitor, Mr Robert Walker (a magistrate), the Registrar of Births Deaths and Marriages, the Assistant Registrar, the then Minister for Roads, the then Minister for Family and Community Services, the Registrar of the Picton Local Court and the Registrar of the Moss Vale Local Court. During the hearing I explained to the first plaintiff that one (of a number) of problems with her summons was the general nature of her various complaints which were difficult to relate to the relief she claimed and that she was claiming relief in respect of her son, who was not a party.
At the conclusion of the hearing on 24 April 2014 I reserved judgment. As it happened, whilst judgment was reserved, the first plaintiff, on 27 May 2014, filed a notice of motion seeking to add her son, Mark Warren Townley (who calls himself Mark-Warren: Townley) as a plaintiff (the second plaintiff) and a further summons with additional submissions. The matter was listed before me on 3 June 2014 and I made orders adding the second plaintiff and directed further submissions be made in writing, specifying a timetable. On 1 July the defendants filed submissions dealing with the further summons and, on 8 and 16 July the first plaintiff filed further submissions. The second plaintiff has now filed a document called a submission, but in the form of an affidavit, in which he also seeks certain relief. Also filed after I had reserved judgment was a notice of motion seeking to add the plaintiff's daughter Elise Maree Townley (who calls herself Elise-Maree: Townley) as a plaintiff. I grant leave to join her as the third plaintiff. She has filed an affidavit concerning the matters raised by the proceedings and seeking certain relief.
The simplest way of dealing with the applications of the plaintiffs is to refer to the initial claims and then to any further adjustment or clarification contained in the subsequent submissions.
It should be stated at the outset that no additional facts of significance have been added by the additional material. In substance, there have been some changes in formulation of the relief being sought but no different or additional grounds of significance raised. For that reason, although the first plaintiff has sought a further hearing because of what she says is the public interest in the problems with the Witness Protection Scheme which Ministers and Public Servants have ignored, I have decided that the questions raised by the plaintiffs should be determined on their written submissions.
The relief sought
(For ease of later reference, I have substituted my numbering and numbered each claim consecutively.)
Summarising the relief sought to some extent, it was, in the first instance so far as the Commissioner of Police (the first defendant) is concerned, to make an order in the nature of Mandamus requiring the Commissioner to -
[1] "regularise the status of plaintiff as a person who identity, along with those of her two children, has had a failed or compromised change of identity arranged by" the witness protection program;
[2] "provide another new identity to plaintiff and such of her now adult children as may desire it, for their future protection from harassment and endangerment".
In the further summons, the plaintiffs seek orders -
[3] For the first defendant "to produce the original Memorandum of Understanding for examination and a copy to be provided to the first plaintiff";
[4] The "Witness Protection Act 1995 does not apply to the plaintiffs in any wise."
[5] For "all records in any form or any data base to be demonstrably destroyed and expunged from NSW Police Service and...Corrective Services".
[6] "The first plaintiff's property (Mitsubishi Lancer) be restored by NSW Police Service immediately, being the theft of the first plaintiff's property by Paula and Helena Jensen as per Statement of Claim No 2014/00105438, not yet heard".
[7] For "the First Defendant and NSW Police Service to cease and desist their vendetta and leave the plaintiffs in peace."
In respect of the Attorney General (the second defendant), to make orders in the nature of mandamus to -
[8] (a) "regularise the previous re-identification of plaintiff and her children as was supposed to have previously been done in accordance with the relevant legislation";
[9] (b) "properly record in the public records under his control the new re-identification... of the plaintiff and such of her children as may desire it";
[10] (c) "assist plaintiff and her children, as far as he properly can, to obtain passports, Medicare cards and such proof of their duration of her or their new or previous re-identification as they may require and request to be provided so as to normalise future dealings in the Australian community at large for plaintiff and/or her children";
[11] (d) "use his discretion to cause any pending criminal prosecution/s of plaintiff or her children related to or resulting from the above cited re-identification problems to be discontinued...";
[12] (e) "use his discretion to cause costs in relation to any criminal prosecution/s of plaintiff or her children related to or resulting from the above cited re-identification problems to be paid by the Crown...";
[13] (f) "direct his department to conduct an investigation of all of the facts and circumstances of the improprieties and ensuing problems the plaintiff and her children have suffered caused by or consequential upon or related to the improper or unlawful conduct of servants of the Crown... in the form of a brief to Counsel and provide same to both plaintiff and a senior member of the NSW Bar nominated by plaintiff for an advice on damages that accord acting properly toward to each of the plaintiff and her son and daughter... costs for the advice ... to be borne by the ... [Attorney General's] Department and the briefing solicitor/s within the ... [Attorney General's] Department to comment, in the brief they prepare, whether or not and if so, which sections of the criminal law listed below (or any other parts of the criminal law) do or do not apply to the conduct of any officer of the State of New South Wales by way of them being an offender or accomplice before or after the fact in committing an offence against the plaintiff and/or her children, or of creating or condoning or forcing the plaintiff or a child of hers into a situation of necessity (or assumed necessity) in breaking the law in any material way or of plaintiff or any child of hers being deprived of any right in municipal or international law" [I have omitted the references to the Crimes Act 1900 (NSW), the Crimes Act 1914 (Cth) and international treaties including the International Covenant of Civil and Political Rights and International Treaty of the Rights of the Child]. Counsel preparing the above brief to be advised that plaintiff may add material to the brief as she sees fit before any opinion or advice is rendered;"
[14] (g) "direct his department to, once the above advice is in hand, to expeditiously arrange a settlement conference with plaintiff and such of her children as may wish to attend and to negotiate uberrimae fide towards settling the matter. And if the matter does not thus settle, to refer the question of damages to the Supreme Court and give plaintiff a costs certificate in relation thereto";
[15] (h) "In the event that any currently on foot prosecution of plaintiff or any child of hers which is related in any way to the matters subject of these proceedings is to proceed, issue a directive to all relevant departments or organs or contractors or incorporated entities of the Crown ... to provide plaintiff with copies (without cost) of all documents in the possession or control of said organs of government that she may request, including in relation to the child "Daniel Townley" shown on the official record as having been born on 22 December 1987 who is not a child of the plaintiff but who currently appears as such on the records of the Department of Human Services (Medicare)".
In the further summons, orders are sought against the first and second defendants (with the fifth and sixth defendants) -
[16] "... to arrange legitimate reidentification without any links or references to previous identities of Woods, Townley or Bentley for the plaintiffs with all supporting documentations required to prevent a recurrence of the previous difficulties."
In an Affidavit of 2 June 2014, the first plaintiff sought additional orders against the first and second defendants "and Crown law" as follows -
[17] "[To] provide the plaintiffs with Immunity from prosecution for possessing and uttering these false instruments issued to the plaintiffs by the first defendant ... in collusion with the fifth and sixth defendants ... for any lawful purpose by necessity from date of issuance being 15 May 1990 until rectified (as the plaintiffs have been placed in the perilous situation of potential criminal conflict daily for twenty four years, including but not limited to banking and other financial institutions, obtain money or property by deception/fraud, signing false statutory declarations et al and the [first] plaintiff now uses VC Debra R as her signature on all documents for her own protection due to the lack of a valid legal name (Note: VC meaning Vi Coactus)." [In the further Summons, the plaintiffs seek this relief against all defendants.]
[18] [For] the first defendant and Crown law to acknowledge that the original identification documents previously held by the first plaintiff, Debra Margaret Woods were supposedly held either in secure police custody or were to be removed from the system, and recent discoveries have shown that the original NSW Driver Licence in the name of Debra Margaret Woods No 1959XD has been used and offences committed by persons unknown whilst the plaintiff had no access to this Driver Licence.
[19] The plaintiff's original Medicare card has the name of another child added who is unknown to the plaintiffs by the name of Daniel Townley who was added by persons unknown. The first plaintiff does not wish to be maliciously prosecuted/persecuted by police as the next Kelly Lane murder case over a missing child. As a result of this evidence, the plaintiffs are concerned that there may be other unlawful acts and omissions that are unknown to the plaintiffs.
[20] [For] the defendants and Crown law to recognise the plaintiffs are not responsible or liable for any criminal or civil offences including but not limited to fines, debts, loans, property, or any other acts or omissions committed in the plaintiffs' names by persons unknown from March 1990 for any time up to the present and any possible future acts. [Also in substance sought in the further summons.]
[21] [For the first second and third defendants] to acknowledge the first plaintiff's Affidavits and Notice to Admit and Authenticate Documents filed as Annexures A and B to the Affidavit filed in this Court on 11 June 2013 as well as all other filings in this matter and in the matters in Local Courts NSW Picton, Moss Vale and Campbelltown registries remain unrebutted by the defendants to date and therefore stand as truth in law and therefore by their silence the Crown has defaulted and therefore now admit these truths as fact and therefore admit committed intrinsic and extrinsic fraud and causing enormous detriment and damage to the plaintiffs.
As to the orders sought against the solicitor (third defendant) employed in the Crown Solicitor's Office -
[22] (a) "produce to the plaintiff the memorandum of understanding embodying plaintiff's consent to the witness protection program and the Bentley identity..."
[23] (b) "produce to the plaintiff for her inspection (and possibly copy documents from it) plaintiff's file as held by police"
[24] (c) "produce to plaintiff the affidavit previously withheld from plaintiff which formed the submission to the Supreme Court which sought to have the Court sanction and legitimatise plaintiff's entry into the witness protection program under (sealed orders) the name "Bentley"".
In relation to Mr Walker (fourth defendant), orders are sought quashing all orders he has previously made affecting the plaintiff and requiring him, if charges affecting the plaintiff are not withdrawn, to conduct the proceedings, if he is presiding, according to law (claim [25]). In the further summons the additional order is sought that the orders made by Mr Walker be expunged from the record (claim [26]). The same orders are sought in respect of her Honour, Magistrate Mary Ryan "and others from Picton, Moss Vale and Campbelltown Local Courts in regard to Debra Bentley/Woods".
In respect of the Registrar of Births Deaths and Marriages (fifth defendant), orders are sought requiring him to -
[27] (a) "cause to be officially recorded, the confirmed identities the New South Wales Police allegedly gave to plaintiff and her children in 1990; and"
[28] (b) "officially record any further or different identity pertaining to the plaintiff, as may be confirmed by the police or by order of this Court and without charge to issue valid birth certificates to her and her children in that or those names should any of those persons request same."
In respect of the Assistant Registrar (sixth defendant), orders are sought requiring her to -
[29] (a) "do whatever is required to ensure that the orders mandated for... [the Registrar of Births, Deaths and Marriages] to perform, to get expeditiously performed; and"
[30] (b) "perform in its terms, the agreement she offered to Plaintiff and entered into, namely to re-identify Plaintiff and her children or such of them as may wish it, without reference to previous names shown, and to do same reliably so that there is no further endangerment or untoward inconvenience or costs imposed upon Plaintiff or her children in future."
The further summons seeks orders directed to the Registrar and Assistant Registrar (in addition to those referred to above in connexion with the first and second defendants) -
[31] "... to produce Evidence Birth Certificates in names of Debra Margaret Bentley and Mark Warren Bentley were recorded and valid when issued in 1990; and ... for all Birth Registration and Certificates and all records held in the names of Debra Margaret Woods, Debra Margaret Bentley, Mark Warren Townley and Mark Warren Bentley be demonstrably destroyed and expunged in Births Deaths & Marriages NSW ... "
In respect of the Minister for Roads (seventh defendant), orders are sought requiring him to -
[32] "ensure that his department does now cancel and remove all reference to the driver's licence in the former name of the Plaintiff as supplied by police some years ago, but which was not properly and legitimately provided; a licence which Plaintiff had some time ago cancelled, but which, despite remonstrations to departmental officer, still is on the departmental record system, enabling anyone to trace Plaintiff, which very fact severely endangers her and her children."
Although not specifically addressed to this defendant, the further summons seeks ([33]) an order to the same effect and for the "immediate reinstatment of the NSW Driver Licence in the name of Debra Margaret Woods No 1959XD until plaintiff's reidentified".
Orders are sought against the Minister for Family and Community Services (eighth defendant) requiring -
[34] (a) "Forthwith provide to Plaintiff at no cost, copy of ALL records in the power or control of her Department which relate to Plaintiff or her children, no matter what name or names of the relevant persons have been used in that file. This disclosure to include all such documents (as defined in the relevant statute)";
[35] (b) "Receive any responses Plaintiff wishes to provide subsequent to the provisioning of all such documents and, if any requests from Plaintiff for correction of alleged facts contained within said documents are refused by any person in the.... [Minister's] Department, to convene a mediation at no cost to Plaintiff and if that does not resolve any contention between the parties, to fund Plaintiff's legal representation to pursue the matter in a court of Law";
[36] (c) "Properly and fully investigate the original complaints which years ago the... [Minister's] Department refused or failed to investigate, complaints made by the then children of the Plaintiff regarding Criminal complaints about sexual abuse of the children by known persons which were not investigated properly or at all. And to fully liaise and co-operate with police officers in actively seeking successful prosecution of the offenders identified."
The further summons repeats this application for relief to some extent but adds the following -
[37] "[produce] ... the adoption records of the first plaintiff's mother Narelle Anne Fahey/Mrs Narelle Anne Woods, as these were denied due to inability to prove identity or valid change of name previously ..."
An order ([38]) is sought requiring the Registrar of the Picton Local Court to file any documents "of a kind normally filed in a Court of Law in New South Wales submitted for filing by the Plaintiff" and if "there is any suggestion that said documents should not be filed, to forthwith so advise Plaintiff in writing, with Reasons, and duly list the matter to be expeditiously determined by a Judicial officer". A similar order is sought against the Registrar of the Moss Vale Local Court.
The further summons seeks the following new relief -
[39] "Order for the defendants to negotiate a suitable solution to the property at 34 Erith Road, Buxton, New South Wales as it is registered in the name of a fictitious person, and relocation once reidentification has taken place at the Defendant's cost.
[40] "Order for a complete restoration of my property."
[41] "Order to consolidate any and all titles, estate tails, quasi entails, trusts, accounts, securities, bonds et al in connexion with the names of Debra Margaret Woods, Mark Warren Townley, Debra Margaret Bentley or Mark Warren Bentley into a new Estate trust in the new name/s when reidentified with full access, as those in the names of Woods, Townley and Bentley will need to be collapsed as will no longer be used, (Deeds BK 4666 No 164 and BK 4666 No 821 attached to affidavit)." [These are deeds expressed to be enduring powers of attorney.]
[42] "Order for all costs and reimbursements to be paid by the Defendants to the Plaintiffs."
The further summons also states -
[43] "2 The plaintiffs reserve the right to file a statement of claim for numerous breaches of law by numerous Public Servants which directly caused numerous tortious wrongs to the Plaintiffs if a suitable settlement such as the Court would awards under these circumstances, is unable to be reached in negotiations with the Defendants by 30 June 2014.
[44] 3 This would serve all parties to prevent further legal action via a Statement of Claim to be filed and on public record against individual tortfeasors, to save the Court time and prevent embarrassment to the Crown and, further, to protect the plaintiffs, or, in the alternative,
a. We would require the Court to forward this for be matter to be heard under Common Law ..."
The affidavit of 2 June 2014, as well as seeking orders in much the same terms as in the other documents to which reference has been made and the additional orders mentioned above also seeks -
[45] "... leave to forward this matter to be filed in the High Court of Australia as a Statement of Claim to proceed as a matter of urgency as the plaintiffs have no valid legal identity and continue to be harmed daily while this situation remains unresolved and being serious breaches of fundamental principles of common law, numerous State, Commonwealth and international laws ..."
claiming, amongst other things, reimbursements, further education, relocation, and new vehicles.
In a further document, called an "Asseveration (Submission), filed 11 June 2014, the first plaintiff sought additional orders -
[46] (i) Elise-Maree be considered to be included in any negotiations for settlement ...;
[47] (ii) "to recognise Keith-charles: Harffey as Debra's partner and her Attorney in fact and Enduring Guardian filed with LPI Office and as Debra is also his EpoA and EpoG as well as for my son Mark we require Keith-Charles to also be provided with a new appellation of his choosing ..."
[48] (iv) [for the hearing to] "be held in open Court in the public interest as [the plaintiffs] are not alone in this situation and Debra has offered to assist the Government agencies involved in Witness Protection assistance to close these gaps that cause the witnesses problems from her own extensive experience, yet the Ministers and Police have failed to take up Debra's offer".
On 7 August 2013 all defendants except Mr Walker and the Registrars of the Picton and Moss Vale Local Courts (who filed submitting appearances) sought orders dismissing the proceedings under Rule 13.4 of the Uniform Civil Procedure Rules 2005 or, in the alternative, to strike the summons out pursuant to Rule 14.28. Mr Owens appeared as counsel for the remaining active defendants and to make submissions for the Attorney-General in relation to the submitting the defendants.
On 1 July 2014 written submissions on behalf of the defendants were filed, in substance submitting that no legal basis had been demonstrated for the orders and relief being sought by the plaintiffs. By way of response, the plaintiffs filed a document headed "Statement of Claim to attach to Summons already filed". The documents claims -
"The Defendants and Crown law are being belligerent, claiming they do not know what they have done wrong and in mala fide continue to refuse to acknowledge the plight of the plaintiffs or make all parties whole"
And seek "compensation for damages ... in the amount of $240 million for each defendant" plus interest and costs. The basis for these claims is, it appears, all the matters of complaint previously specified. It is somewhat unclear, given the multiplicity of the plaintiffs' claims and the different documents in which they are expressed, but it seems that the orders for mediation are no longer pressed.
I should mention that the affidavits of the plaintiffs essentially set out the history which led to their coming into the Witness Protection Program and ultimately their departure from it, the problems they have encountered during this process and, as they claim, to the present time. A great deal of the first plaintiff's affidavit states her complaints about the investigation by police of her allegations about the crimes which led to her being placed in the program. Neither these alleged offences nor the approach of the police to the investigation are relevant to any issue.
The witness protection program
As will already be evident, these proceedings arise out of grievances that the plaintiffs have concerning changes of identity made upon their entry into a witness protection program in 1990 from which the first plaintiff (and, hence her children) withdrew in 1991. The Witness Protection Act 1995 (NSW) came into effect in 1995. Part 2 of Schedule 1 provides -
"The New South Wales Police Witness Protection Plan in force immediately before the commencement of section 5 is taken to be a witness protection program for the purposes of this Act."
There is no dispute that the plaintiff had been admitted to the Witness Protection Plan referred to and that Plan was in force immediately before the Act came into effect.
The Act provides, in general terms, for a witness protection program, through the establishment and maintenance of which the Commissioner "is to take such action as the Commissioner thinks necessary and reasonable to protect the safety and welfare of a witness": s 5(1). Section 5(2)(a) provides that this action might include making arrangements necessary "to allow the witness to establish a new identity, or ... otherwise protect the witness" and might include relocation, providing accommodation and transport, reasonable financial assistance, counselling and vocational training services and "doing any other things that the Commissioner of Police considers necessary to ensure the safety of the witness": paras 5(2),(b),(c),(d),(e), (e1) and (g). Section 6(1) gives to the Commissioner of Police "the sole responsibility of deciding whether to include a witness in the witness protection program" and s 6(2) provides that a witness may be included in the program "only if ... the Commissioner of Police has decided that the witness be included". It is clear that the question whether a person should be placed in the witness protection program is a matter for the Commissioner of Police and that this Court has no power to require him or her to do so, although it may be that there is a power to require consideration in a particular case of whether such action should be taken and to have regard to the matters specified in s 7 of the Act in deciding the question.
However, the orders here sought against the Commissioner relate to actions dealing with the effect of withdrawal from the program. Section 11 of the Act concerns the cessation of protection and assistance. In brief, this must be terminated by the Commissioner, if the participant requests in writing that it be terminated or otherwise if the participant deliberately breaches a term of the memorandum of understanding (execution of which is an essential prerequisite for entry in to the program) or conditions of the program or his or her conduct or threatened conduct might, in the opinion of the Commissioner, threaten the security or compromise the integrity of the program or the circumstances giving rise to the need for protection and assistance ceased to exist. Section 11A provides for suspension, as distinct from termination. It is not disputed, indeed it is in the first plaintiff's affidavit, that she stated in writing that she wished to exit the scheme in 1991.
Part 3 of the Act deals with modes of protecting witnesses from identification. Section 14 gives the Commissioner power to apply for documents necessary to allow a new identity to be established, or otherwise protect the witness, or to restore a former participant's former identity. Section 15 permits the Commissioner of Police, and only the Commissioner (to the extent relevant), to apply to this Court for an order authorising a relevant person to make entries in the Registry of Births, Marriages or Deaths and issue documents in the witness' new identity. Section 18 provides, as relevant here, for either the Commissioner or designated authority to maintain records containing details of the original birth, death or marriage which have been changed. Section 21 deals with the restoration of a witness' former identity by empowering the Commissioner, "if she or he considers it appropriate to do so, [to] take such action as is necessary to restore the former participant's former identity".
The grievances of the plaintiffs
The grounds set out in the documents allege that the Commissioner failed to "re-identify" plaintiffs. It seems that, in substance, the complaint of the plaintiffs is that their original and witness protection identities became, for one reason or another, difficult or even impossible to use for the ordinary purposes for which identity verifications are need, such as driving licences, social welfare payments, Medicare or even passports. To take an example, the way the first plaintiff put it, the new birth certificates -
"... which I was not aware at the time, were not authentic, not registered/recorded or useable and which are in fact fraudulent instruments, which rendered and continues to render myself and my family persona non grata, "stateless" and committed "trespass" against my/our original "person/s" as we do not exist at law (civilly dead)".
However, the annexures referred to for the purpose of this allegation do not suggest in any way that the birth certificates were other than genuine. The first plaintiff says that in May 1990 she was issued with a new Medicare card in the name of Bentley for herself and her two children and a new driver's licence also in the name of Bentley, complaining however that it was not "authentic or valid". In April 1990 police officers using what the first plaintiff described as "false police identification" arranged to open a bank account in the Bentley name, using that false identification (which they informed her was their "undercover identification") to validate that she was in fact Debra Bentley "without any supporting identification". The first plaintiff said in this regard "this is a concern due to the historical facts of police criminal activity is raised in the Wood Royal Commission and other inquiries". The first plaintiff went on in her affidavit to allege -
"[65] ... It appeared to me that... [the police] may have issued these ID's to themselves and their Police Brotherhood mates which suggested possible criminal activity. The public disgrace of Roger Rogerson, Standen and other Police and Officials involved in corruption and criminal activity which included murder, the drug trade, fake bank accounts and money laundering and I now wonder how Rogerson managed to obtain the fake identity documents he used and could... [Witness Protection Officers] been instrumental in providing identity documentation to their Police Brotherhood and were they themselves involved at some level?"
The affidavit then goes on to allege the commission of "numerous breaches of Federal, State and International law". The first plaintiff said -
"[she was] not issued with a tax file number or a passport or any education, employment or credit histories to enable me to move forward with my life which made applying for employment or credit for major purchases without verifiable histories extremely difficult and travel overseas impossible. I was trapped in a situation didn't know how to deal with".
The first plaintiff complained that she had not been given any training on how to cope in the Protection Program which forced her to "invent a history and lie to others so as not to reveal our previous identities or where we had lived before in order to manage". She said that she requested that she be provided with employment history and/or references to enable her to obtain employment but that this was refused. Eventually, she met a sympathetic employer to whom she explained the fact that she was in the Protection Program and therefore was without verifiable documentation or qualifications. She applied for a tax file number using the name Bentley and remained in that employment for four years. The plaintiff refers to other difficulties that she had with registering on the electoral roll, applying for loans, going to a new doctor and the like. She said that she found the continuous intrusion by police officers who "constantly visited my home unannounced" gave her no choice but to sign out of the Witness Protection Program. She then encountered a number of difficulties with medical records when her children were hospitalised and in connection with attempting to obtain a replacement driver's licence.
Other allegations are made against police alleging what seems to me strange conduct (if it occurred) but I do not need to consider the merits of the accusations. In 2007, the first plaintiff says, she was unable to obtain a birth certificate for herself and her children in the Bentley name since "there was nothing recorded on Births, Deaths and Marriages Registry database in regard to these names". She asked for copies of the original birth certificates, that is to say, as they stood prior to entry into the Program but this was refused. In 2009, however, the plaintiff said that she did obtain the original birth certificates for herself and her daughter, having already obtained one for her son. She said that she was informed of "sealed orders" having been made by the Supreme Court. (I note in this regard that s 16 of the Act provides that "all business of the Supreme Court under this Part [ie. Part 3] is to be conducted in the absence of the public". It appears from correspondence annexed by the plaintiff to her affidavit that such orders were made. I was not asked to and did not make any inquiries of my own and I am unaware of any such orders.) The plaintiff said that she has never seen the memorandum of understanding, but I am not aware whether any such memorandum was part of the protocol before the Act came into effect.
The affidavit then moves to complaints about the way in which charges of negligent driving were considered in the Picton Local Court as a result of which she was convicted and fined. She was also charged with traffic offences in January 2010 relating, as I understand her affidavit, to driving an unregistered and uninsured vehicle and without a valid current driver's licence. Her affidavit is replete with advice that she said she was given by solicitors or other legally qualified persons which, in the terms in which she describes it, was, to say the least, very unusual. The plaintiff then sets out the steps that she took in order to "regain our original identities back in order to obtain our passports and be entitled to Centrelink if required and function normally and lawfully and demand the removal of BENTLEY from all government database records." There follow numerous complaints about her difficulties in undertaking this course. However, on 20 December 2012 she was informed by the passport's office that her passport in her genuine name was available for collection, which she did on the following day.
Looking at the plaintiffs claims overall, it seems clear that what they now seek (see claims [1], [2], [7] [16])and is to have all records wherever situated relating to both their original and witness protection identities expunged and that they be given entirely new identities, with all the necessary documentation to enable them to live as though these new identities were valid, together with very large monetary "compensation". One difficulty (amongst many) is that the plaintiffs would not appear to come within any provision of the Act. At all events, the provision of such an identity, which must be by way of inclusion in the Program, is, as s 6 provides "the sole responsibility" of the Commissioner and not for this Court. They also seek (claim [7]) orders as to what is called "the vendetta" against them by police and, perhaps, others. One (amongst others) major difficulty with this claim is that there is no specification of what conduct, in particular, is expected to occur and why it would be unlawful; similar relief is sought as to prosecutions for offences but why such prosecutions might be apprehended and for what particular circumstances is not specified.
The plaintiffs also seek relief by way of requiring the production of information from various sources (see, eg, claims [3], [22],[23] and [24]), though the reasons for so doing are not altogether clear. I assume that they wish to obtain this information to enable them to take some form of legal action against authorities or individuals whom they regard as having acted in breach of their legal obligations towards them. Certainly there is a threat to sue. However, again, this Court is not able to order production of that material in proceedings of the present kind, as I hope to make clear in what follows.
The nature of mandamus
Mandamus can only issue to parties where they have a legal duty to perform the acts or do the things which it is sought to require them to do. This is a matter of first principle and is usefully described in M Aronson & M Groves, Judicial Review of Administrative Action (5th ed, Thomson Reuters, 2013) at 13.10 as follows (omitting references) -
"Mandamus started life as a prerogative writ, but it usually takes the form of an order these days. It is judicial command instructing the respondent to perform a public duty...
Compendiously stated, mandamus may be granted to an applicant of sufficient standing who proves that the respondent has actually or constructively failed to perform a duty of a public nature. Its availability used also to be conditioned on proof that the respondent's failure had occurred in circumstances amounting to refusal to comply with a specific demand on the applicant's part that the duty be performed. However, that is now no more than a fact irrelevant to establishing that there has indeed been a failure to perform the duty. Similarly it used to be said that mandamus was a remedy of last resort - that there should be no other equally convenient, beneficial and effectual remedy available to the applicant. However, that appears now to be no more than a factor relevant to the Court's discretion to refuse relief."
In short, mandamus may only issue or orders in the nature of mandamus can only be made where there is a duty to exercise (or consider whether to exercise) a power which has been reposed in the particular official.
Consideration
As to claims [1] and [2], it may be that the decision of the Commissioner relating to restoration of identity is required to be exercised appropriately and might be susceptible to the Court's supervisory jurisdiction in the conventional way if an application is made by, amongst others, the person who is or was participating in the program. However, there is no evidence, despite the extensive affidavits of the plaintiff, which suggests that this was done. Nor is there any evidence of what decision, if any, was made by the Commissioner in respect of this aspect of the matter. So far as the asserted basis for an order in the nature of mandamus against the first defendant is concerned, it must fail for (at least) the following reasons: first, the Commissioner has no duty as appears to be alleged and, secondly, the order is sought in terms which are so general as to prevent the Court, let alone the Commissioner, from knowing precisely what it is that he is to do.
As to the order for production of the Memorandum of Understanding (claim [3]), the Court can only make such an order as ancillary to a substantive proceeding, quite apart from the lack of apparent relevance. In light of the ultimate order dismissing the claim against the first defendant, there is no proper basis for the order sought in the present case. The claim ([4]) for a declaration (as I understood to be the relief sought) that the Act does not apply to the plaintiffs does not identify the respects in which it is suggested that the Act is or might be used in respect of them. There can be no doubt that the Commissioner is bound by the Act and any claim made by the plaintiffs that depends on any of his duties or responsibilities in carrying out the Act must therefore be considered in light of its provisions. If they might be adversely affected by anything in the Act, it may be that some declaratory relief could be sought to establish that such an adverse effect does not apply in the specified circumstances, whatever they are. But no such matter is alleged or can be gathered by implication in any of the material to which the plaintiffs refer. The claim is therefore essentially hypothetical and insufficient to support an application for declaratory relief (see, for example, Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 at 581-2).
As to the destruction of records (claim [5]), there is no reason to suppose they are other than the property of the first defendant or the relevant government department, nor do the plaintiffs assert any property rights in respect of the records (and it is difficult to see how they could do so). There is no duty in the Commissioner or other public official to destroy records, at least of the kind identified (in a general way) by the plaintiffs. Nor has any decision not to do so been identified by the plaintiffs to which this Court's jurisdiction of administrative review could apply. At all events, the Court has no general power to order destruction of property. Correction of the Register can be undertaken in certain circumstances under s 45 of the Births, Deaths and Marriages Registration Act 1995 (NSW) but an appropriate application is required, of which there is no evidence of any having been made. No relevant decision of the Registrar is specified which is capable of being considered by way of administrative review by this Court.
Claim [6], seeking the restoration of a vehicle allegedly taken by third parties, cannot succeed against the first defendant.
As to claim [7] (the "vendetta"), orders in such general terms could not be made at all events but, as I have previously mentioned, there is nothing in the material that identifies any specific improper or illegal action from which the plaintiffs require protection. I have already dealt with claim [8], to which claims [9] and [10] closely relate. Under the Act these are matters for the first defendant and not the Court. Claim [11] seeks discontinuance of any prosecutions. No prosecutions are identified. At all events, the Court does not have power to make orders of this kind. The powers relating to stays can only be exercised in respect of subsisting prosecutions and then only in limited circumstances, not apparently present here. Claim [12] concerns payment of costs. The Court has no general power to direct the second defendant in respect of claims of or orders for costs in any proceedings other than those in this Court to which he is a party.
Claim [13] seeks orders as to the conduct of investigations and the entering into negotiations as to the nature of the investigations. There is no relevant duty to which any such order can attach or any power in the Court to make the orders sought. Claim [14] as to settlement negotiations of the plaintiffs' claims for damages cannot be considered by the Court, which has no power make any orders of this kind except in circumstances not present. Nor can the Court require the reference of any question of damages to the Court, let alone make an order as to a costs certificate. Claim [15] is made only in the event that there is any current prosecution. No such prosecution is identified. Nor does the Court have a power to require the first defendant to issue any directive to anyone to require the production of documents. Claim [16], seeking orders to arrange a new identity, must also fail for the reasons already given.
Claim [17] seeks an order against the first defendant to provide the plaintiffs with immunity from any prosecution relating to the use (as I apprehend it) of the identity documents provided to them under the Witness Protection Program. Aside from the fact that there is no evidence that any such prosecution is envisaged, it is obvious that use of the documents could not amount to a criminal offence unless it was does with a fraudulent or dishonest intent. At all events, the Court has no power to require the first or second defendants to provide the plaintiffs with immunity from prosecution, even if a prosecution were in fact imminent.
The orders sought in claim [18] requiring the first defendant and Crown law to acknowledge certain asserted facts cannot be made as the Court has no jurisdiction to make orders of this kind. Claim [19] is a variation of or addition to claim [18] and must meet the same fate. There is, it should be noted, not the slightest evidence that is capable of raising the suggestion that there is any intention to prosecute the first plaintiff in respect of the existence of "Daniel Townley" for any offence of any kind. Claim [20] seeks orders requiring the defendants and Crown law to recognize certain facts as to the plaintiff's not being responsible for "any criminal or civil offences", even in respect of future acts or omissions. It is somewhat similar to claims [17], [18] and [19]. The Court has no power to make any order in these or similar terms.
Claim [21] seeks orders requiring the first, second and third defendants to acknowledge the truth of facts not sought to be rebutted. A failure to deny facts alleged in a pleading or an affidavit filed in proceedings will rarely, if ever, amount to an admission that the allegations are true. Here, the defendant's conduct of the proceedings in no sense amounts to an admission of the truth of the plaintiffs' allegations. At all events, the Court does not have any power to make the requested orders.
So far as the Attorney General (the second defendant) is concerned, not only does the summons fail to indicate any public duty sought to be the basis for the order, there is no duty so far as I can understand it to undertake the tasks sought for him to do. As to directing his department to undertake certain actions, no doubt he has power to make the directions sought, but there is no justiciable duty to do so. Insofar as other orders are sought against him as well as the first defendant, they cannot be made for the same reasons I have already given in respect of the first defendant.
As to the orders relating to the third defendant, who is the solicitor for the Crown Solicitor (claims [22], [23] and [24]) again there is no duty to undertake the tasks required. A subpoena in proceedings seeking documents of a kind for which there was a legitimate forensic purpose might, perhaps, procure production of the material sought but it is not appropriate to attempt to do so by way of an order of mandamus. It is impossible to determine whether a legitimate forensic purpose exists except in the context of proceedings properly commenced giving rise to issues capable of being litigated in the court.
The fourth defendant, a magistrate, has filed a submitting appearance on whose behalf submissions were made by the Attorney General. The plaintiff said that, when she appeared in Picton Local Court charged with negligent driving, she informed the Magistrate that she did not have a birth certificate and asked to speak with him in private. Not surprisingly, the Magistrate refused. In a subsequent paragraph, the plaintiff said that "the Courts simply ignored anything I had to say or refused to file anything I tried to enter into the Court records regarding our identities and that we did not exist at law". She says that she was "simply found guilty and fined". I assume that this is the decision sought to be impugned. In the summons (claim [25]) the grounds for seeking this order appear to allege that the plaintiff informed the Magistrate that she did not have a valid identity under which she was charged and his Honour refused to enforce a valid subpoena, directed to obtaining the documents sought from the third defendant, without giving the plaintiff the opportunity to be heard on the matter and "made a statement that negatived a crucial part of the plaintiff's evidence when there was no contrary evidence on the point." Although the summons asserts that the proceedings resulted in the plaintiff's driver's licence being suspended and then cancelled for some months, the precise charge is not identified and the outcome, whether conviction or otherwise is not stated. Mr Owens of counsel for the Attorney General, in an attempt to assist, submitted that he understood that the plaintiff was convicted in her absence of some offence but was unaware of what offence it was. As to claim [26], since the status of the proceedings, if any, is unknown it is not appropriate to make the orders sought. Moreover, a necessary party, in relation to certiorari against a judgment or decision of the Local Court, is the informant, who is not a part of the present proceedings. For that reason, also, an order in the nature of certiorari ought not to be made. Nevertheless, this matter is, if clarified, potentially amenable to appropriate orders in this Court once the informant is added as a party and I propose to give leave to the plaintiff to replead her summons so far as it affects the fourth defendant to comply with the necessary requirements to which have already referred.
As to claims [27] and [28], the fifth defendant, as Registrar of Births, Deaths and Marriages, is subject (in the present case) to the provisions of s 18 of the Act which requires a person authorised by a Witness Protection Order made by this Court to make appropriate entities into the Register which are necessary to give effect to the order, and, for that to be done, the Registrar "is required to give the person access to the relevant register and to give such assistance as the person may require": s 18(b). There is no duty under the Act reposed in the Registrar himself or herself to make any changes to the Registry. There is evidence from which it can be inferred that a person so authorised registered different names of the plaintiff and her children in the Register but no evidence that access to the Register and assistance to a person authorised by the Court has been refused. As to claim [28], such an order cannot be made in the present proceedings, at all events, unless the requirements of the Act are fulfilled in relation to "any further or different identity", which might or might not occur. Section 47(1) of the Births, Deaths and Marriages Registration Act 1995 (NSW) provides that the Registrar "may, on application, search the Register for an entry about a particular registrable event", by which term is meant (under s 4), "a birth, adoption or discharge of adoption, change of name, change of sex, death or marriage". Under s 49(1) a certificate as to the result of the search may be issued. The plaintiffs have not suggested anywhere that any application for a search had ever been made, that the Registrar failed to search the Register or declined to issue a certificate. There is no public duty for the Registrar to undertake any other task and he or she cannot be required to do so. There is no decision affecting the plaintiffs which is alleged and capable of being administratively reviewed by the Court. The fifth defendant is the subject of claim [16] to which I have already referred, to which the above is an adequate answer.
The application for an order in the nature of mandamus (claims [29] and [30]) in respect of the sixth defendant, the Assistant Registrar, cannot be given in the terms sought. Firstly, it is conditional upon the making of orders against the Registrar, which as already indicated, cannot be made. So far as the order referred to in paragraph (b) is concerned, the grounds of the summons stated -
"...this Defendant failed to honour an agreement she offered to Plaintiff which Plaintiff duly accepted to arrange for Plaintiff to be officially re-identified to avoid a continuation of years of trouble and denial of things severely affecting the quality of life of any ordinary Australian resident is entitled to, such as tertiary education, Medicare benefits, occupational qualifications, preferred or higher paying jobs, and a passport."
Assuming (which I do not decide) the alleged agreement was made, there is no basis upon which the Assistant Registrar could make it in any legally binding sense, certainly not one which created a public duty to which an order in the nature of mandamus might apply. The sixth defendant is also the subject of claim [16]. He or she has no duty as alleged or implied. Claim [31] seeks the production of certain records and the destruction of others. There is no duty to do either of these things and no power in the Court to require them to be done.
The seventh defendant is the Minister for Roads and Ports. The powers of the Minister in respect of driver's licences under the Transport Administration Act 1998 (NSW) does not permit the Minister to give directions as to changing any part of the department's records. Section 3B of the Act, in making the Director General and the Chief Executives of, inter alia, the Roads and Maritime Services Authority "subject to the control and direction of the Minister", does not give such a power. The Road Transport Act 2013 (NSW) gives to the Roads and Maritime Services Authority the duty of maintaining the register of driver's licences in accordance with the Act and the statutory rules. Neither the Act nor any of the statutory rules gives the Minister any role in relation to the register. The plaintiff does not identify the public duty that the seventh defendant is said to have in respect of the matters concerning which she seeks orders and I am unable to find any basis for concluding that any duty in respect of those matters exist.
The eighth defendant was the Minister for Family and Community Services (in the course of proceedings, various named), who has no public duty to undertake any of the tasks for which orders in the nature of mandamus are sought ([34], [35] [36] and [37]). It may be that the Minister has power to undertake those tasks but there is no public duty to exercise that power as sought.
As to claim [38], the ninth defendant is the Registrar of the Picton Local Court who has filed a submitting appearance, submissions being made on his behalf by the Attorney General. I note it is part of the responsibility of a Registrar to refuse to accept a document for filing where it does not comply with the relevant rule of Court or it is scandalous, frivolous, vexatious, irrelevant or oppressive. As is correctly submitted by Mr Owens for the Attorney General on behalf of the ninth defendant, there is no basis identified for any apprehension that a proper document filed with the Court would not be accepted for filing. The grounds stated in the summons referred to a past refusal of a notice to admit facts and an accompanying affidavit. A notice to admit facts is directed to another party and may be tendered in evidence in certain circumstances but is not a document for filing. As to the accompanying affidavit, whether it was of a kind that ought to have been received is not a matter which is capable of determination, since the subject matter is not disclosed and it is inappropriate to surmise what might have been included. An order in the terms sought would be so imprecise as not to enable the recipient to sufficiently identify the scope of the judicial instruction.
The tenth defendant is the Registrar of the Moss Vale Local Court who has filed a submitting appearance for whom submissions were made by the Attorney General. The relief sought against this defendant is in the same terms as that sought in respect of the ninth defendant.
Claim [39] seeks an order requiring the defendants to enter into a negotiation as to the name in which a property is held. There is no power to make such an order since there is no public duty for any of the defendants to enter into any negotiations of any kind, let alone that specified.
Claim [40], seeking restoration of property, does not specify the property lost, the circumstances in which it was lost, where it now is or how any of the defendants were involved in any stage of this process. Nor is any power which any of the defendants might have to restore the property identified or any decision made in this respect. The Court has no power to make orders in the terms sought.
Claim [41] concerns name changes in the event of new identity documents being provided. The Court has no jurisdiction to make any such orders: such documentation has not been provided and the defendants have no control over or duties respecting the matters in question.
There is no general power to order the payment of costs or reimbursements (claim [42]). Given the outcome of the present proceedings, the plaintiffs cannot be entitled to any orders for costs.
Claims [43] and [44] concern the possibility of future litigation. No orders can be made about or concerning such a possibility. As to 3(a), any such litigation will be determined according to the law.
Claim [45] seeks leave to forward the matter to the High Court of Australia as a Statement of Claim. The Summons, even if regarded as amended by subsequent documents, is not and cannot be regarded as a statement of claim. Nor does this Court have any power to forward or give leave to forward the foreshadowed litigation to the High Court.
Claims [46] and [47] seek recognition of the position or situations of the specified persons. No general jurisdiction is conferred on this Court to provide such recognition, although in certain circumstances and in certain kinds of litigation - neither of which are present here - such recognition might, in effect, be required to be made.
Lastly, as mentioned, the plaintiffs desired to add a Statement of Claim to their Summons. This is an entirely different form of action, which cannot be added to a Summons. It is incapable of being considered separately. On the basis that it seeks to expand the relief sought in the Summons, it must be dismissed as disclosing no cause of action.
I have already mentioned claim [48], seeking hearing in open Court. There has already been one such hearing. The additional matters do not raise any significantly new issues and are patently untenable. The reason given for the further hearing is to use the Court as a forum for attempting to influence "Ministers and Police" to "close the gaps" in the Witness Protection Program. That does not justify a second hearing.
Conclusion
The summons, except as to the fourth defendant, is dismissed under UCPR r 13.4 as disclosing no reasonable cause of action. In respect of the fourth defendant, the plaintiff has leave to replead the application for an order in the nature of certiorari in respect of her conviction. If she wishes to replead, a Notice of Motion seeking to join the informant as a defendant and amending her summons is to be filed and served together with an affidavit stating precisely (and no more than) the details of the conviction and orders appealed from and the circumstances of the proceedings relied on for the purpose of seeking the order. On delivery of judgment, directions will be given as to times.
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Decision last updated: 20 August 2014
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