20160214-Schorel-Hlavka O.W.B. to County Court of Victoria-Re Buloke Shire Council...

8/20/2019 20160214-Schorel-Hlavka O.W.B. to County Court of Victoria-Re Buloke Shire Council -APPEAL-15-2502-ADDRESS t…

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Page 1 AP 2502 ADDRESS TO THE COURT Suppl 1, Hearing date 22-2-2016 (or alternative date if allocated)

p1 14-2-2016 Hearing date 22-2-2016 Ballarat venue Mr G. H. Schorel-Hlavka O.W.B. Appeal 15-2502Deponent: Mr G. H. Schorel-Hlavka O.W.B. 107 Graham Road, Viewbank 3084, Victoria [email protected]

(Buloke Shire Council) Prosecutors legal representatives ES&a Lawyers

ADDRESS TO THE COURT (Written submissions) Supplement 1County Court of VictoriaBallarat venue (and/or alternative venue)

Cc: Elliott Stafford and Associated [email protected] Andrews Premier Victoria [email protected] Mr Martin Pakula, [email protected] & [email protected] Court of Victoria [email protected]

Reference AP 2502 Buloke Shire Council for State of Victoria (s114 of the constitution) v Schorel-Hlavka

Sir/Madam,as I maintained all along an OBJECTION TO JURISDICTION I submit no hearing

De Novo can eventuate. What however ought to be understood is that any adjournment at thisstage to allow for further submissions regarding the jurisdictional issue would in itself be a denialof justice as it would cause further protracted litigation which should have been avoided fromonset. After all Buloke Shire Council and its legal representatives were aware about theOBJECTION TO JURISDICTION before the Magistrates Court of Victoria at St Arnaudcommenced its hearings on 20 August 2015, and as such they had ample of time to prepare and

present a case if they sought to do so to prove jurisdiction. This never eventuated and again it

would be a gross denial of justice if the court were to adjourn matters to give them time wherethey had ample of time already. As such their failure to present “evidence” to prove jurisdictioncan only but result that this court must declare that the Magistrates Court of Victoria at st Arnauddid not invoke jurisdiction on 20 August 20125 and neither on 17 September 2015 and all andany orders of 20 August 2015 and 17 September 2015 are set aside as they have no legal validityin law. By this the County Court of Victoria neither can invoke jurisdiction and cannot hear thematter De Novo as the summons that was before the Magistrates Court of Victoria at St Arnaudmust be held to be dismissed for want of jurisdiction and as such no matter is there for the courtto hear De Novo.In light of this I submit the court must deem it appropriate to order exemplary damages infavour of the objector (which I am), by this also considering the conduct of Buloke Shire Council

and its legal representatives to blatantly disregard proper compliance with legal requirements and by this causing unduly protraction of litigation and in the process harm upon the objector.

1 "When a judge knows that he lacks jurisdiction, or acts in the face of clearly valid statutesexpressly depriving him of jurisdiction, judicial immunity is lost." [Rankin v. Howard, (1980) 633F.2d 844, cert. den. Zeller v. Rankin, 101 S.Ct. 2020, 451 U.S. 939, 68 L.Ed 2d 326]

2 "A judge must be acting within his jurisdiction as to subject matter and person, to be entitled toimmunity from civil action for his acts." [Davis v. Burris, 51 Ariz. 220, 75 P.2d 689 (1938)]

3 "When a judicial officer acts entirely without jurisdiction or without compliance with jurisdictionrequisites he may be held civilly liable for abuse of process even though his act involved a decisionmade in good faith, that he had jurisdiction." [Little v. U.S. Fidelity & Guaranty Co., 217 Miss. 576,

64 So. 2d 697]

4 "No judicial process, whatever form it may assume, can have any lawful authority outside of thelimits of the jurisdiction of the court or judge by whom it is issued; and an attempt to enforce itbeyond these boundaries is nothing less than lawless violence." [Ableman v. Booth, 21 Howard506 (1859)]

5 “We (judges) have no more right to decline the exercise of jurisdiction which is given, than tousurp that which is not given. The one or the other would be treason to the Constitution."[Cohen v. Virginia, (1821), 6 Wheat. 264 and U.S. v. Will, 449 U.S. 200]

The following correspondence shows we are not referring to a mere oversight, but a persistentconduct to defy the court rules, and even court orders, and to deceive/seeking to deceive the court

as well as myself.

mailto:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=case&court=us&vol=451&page=939http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=case&court=us&vol=449&page=200http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=case&court=us&vol=449&page=200http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=case&court=us&vol=451&page=939mailto:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]


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QUOTE 14-2-2016 CORRESPONDENCE

Elliott Stafford and Associated [email protected]

Cc: Mr Garry McIntosh, Associate to His Honour Mullaly J. [email protected] Wayne Wall & Buloke Shire Council [email protected] Andrews Premier Victoria [email protected] Martin Pakula, [email protected] & [email protected]

Ref; 20160214-Schorel-Hlavka O.W.B. to ES&a Your ref LA-05-06- -Re APPEAL-15-2502 Re NO CASE TO ANSWER

Sir/Madam,Without seeking to imply that my OBJECTION TO JURISDICTION will be dismissed, I am

well aware that judges at times may act in a manner not expected and/or not legally justified but thatmay be the issue of a judicial review, etc. As such, were the court to proceed with any De Novo hearingthen I pursue the NO CASE TO ANSWER claimSee also eg Glass, McHugh and Douglas, The Liability of Employers, 2nd ed (1979) at 204-217; Glass, "TheInsufficiency of Evidence to Raise a Case to Answer" (1981) 55 Australian Law Journal 842.

Some of the issues but not in any of priority

OBJECTION TO JURISDICTIONFire Prevention Notice in violation to the provisions of the Country Fi re Authority Act 1958 Fire Prevention Notice contains demands exceeding delegated powers.

Fire prevention Notice in valid in lawInfringement Notice invalid in law based on invalid Fire prevention Notice.Summons invalid in law based on Invalid Infringement Notice.Summons invalidly issues as Infringement Noticed failed to have been withdrawn.Summons hearing in the wrong court venueFailure to serve “full brief” No evidence to prove jurisdiction. No evidence whatsoever to justify 20 August 2015 orders at St Arnaud venue No evidence to legally justify 17 September 2015 orders at St Arnaud venueFailing to file and serve Notice of Appearance regarding appealFailing to file and serve for Leave to file and serve out of time Notice of AppearanceFailure to provide 27 October 2015 requested “brief” Failing to comply with 30/10/2015 order to serve via Australia Post by 9/11/2015 “full brief” Failing to request “leave to serve out of time “full brief”. Providing misleading Form 11 statement dated 25/11/2015 re 18/3/2013 alleged hearingProvide different Form 11 for 22/2/2016 hearing without full briefFailure by State Government to provide relevant FOI material requested 9/12/2015

Not to overlook purported evidence obtained by tress passing! As such no evidence exist to support anycharge!

This document is not intended and neither must be perceived to refer to all details/issues.

Awaiting your response, G. H. Schorel-Hlavka O. W. B. (Friends call me Gerrit)

MAY JUSTICE ALWAYS PREVAIL® (Our name is our motto! )END QUOTE 14-2-2016 CORRESPONDENCEhttp://www.bailii.org/ew/cases/EWCA/Crim/2008/2498.html

R v LEVAN URUSHADZE [2008] EWCA Crim 2498

QUOTE

The failure of the prosecution to comply with the rules, even before the start of the adjourned retrialwas, in our view, unacceptable. Whether or not to entertain a late application, and whether to refuse it onthe grounds of lateness or the prejudice asserted, was a matter for the discretion of the learned judge.

END QUOTE

This purported hearing De Novo on 22 February 29016 has the same kind of problems!

mailto:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]://www.bailii.org/ew/cases/EWCA/Crim/2008/2498.htmlhttp://www.bailii.org/ew/cases/EWCA/Crim/2008/2498.htmlmailto:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]


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http://www.bailii.org/ew/cases/EWCA/Crim/2008/1634.htmlEngland and Wales Court of Appeal (Criminal Division) Decisions

R v Hassett [2008] EWCA Crim 1634

QUOTE

18. The first of the submissions made with the utmost eloquence to this court by Mr Topolski QC (who did notappear at the trial but who represents Kevin today) is that the Recorder fell into legal error in the passage ofher ruling to which we have referred. He submits that, having found the delay to be "unacceptable", theRecorder put that on one side. Having described it as "not the test I must apply", she went on to consider

the interests of justice and prejudice separately from the finding of unacceptable delay.

19. At this point it is important to remind ourselves of the basis upon which this court has power to interferewith the decision of a trial judge on such matters. In the leading case of R v Hanson [2005] 2 Cr App 21Rose LJ (the then Vice-President of the court) said at paragraph 15:

"If a judge has directed himself or herself correctly, this Court will be very slow to interfere with a rulingeither as to admissibility or as to the consequences of non-compliance with the regulations for the giving ofnotice of intention to rely on bad character evidence. It will not interfere unless the judge's judgment as tocapacity of prior events to establish propensity is plainly wrong, or discretion has been exercisedunreasonably in the Wednesbury .... sense."

20. Before leaving the authorities it is instructive also to refer to the case of R(Robinson) v Sutton ColdfieldMagistrates' Court [2006] 2 Cr App R 13, where the Divisional Court was considering the power to extendtime conferred by rule 35.8. A submission had been made that such an extension should only be granted inexceptional circumstances. The Divisional Court rejected that fetter on the discretion of the court,

preferring the formulation that in the exercise of its discretion the court must take account of all relevantconsiderations, including the furtherance of the overriding objective. Owen J, with whom Hallett LJ agreed,went on to say:

"15. In this case there were two principal material considerations: first the reason for the failure to complywith the rules. As to that a party seeking an extension must plainly explain the reasons for its failure.Secondly, there was the question of whether the claimant's position was prejudiced by the failure.

16. .... A party seeking an extension cannot expect the indulgence of the court unless it clearly sets out thereasons why it is seeking that indulgence. But importantly, I am entirely satisfied that there was noconceivable prejudice to the claimant ...."

21. Finally, in R v Musone [2007] 2 Cr App R 29, Moses LJ said:

"37. The Act .... gives power to the judge to prevent that which, in the judge's assessment might causeincurable unfairness either to the prosecution or to a fellow defendant. Plainly, the procedural rules shouldnot be used to discipline one who has failed to comply with them in circumstances where unfairness toothers may be cured and where the interests of justice would otherwise require the evidence to be admitted.But, there will be cases in which the judge can properly deploy [the provision], not merely as a matter ofdiscipline but to prevent substantial unfairness which cannot be cured by an adjournment."

Although that observation was not made specifically in relation to the bad character provisions, it is equallygermane to them.

22. The authorities have made clear on a number of occasions that the important task which falls on the trial judge must be carried out with a very close scrutiny of all the circumstances to ensure that unfairness isavoided.

23. Having regard to those legal propositions, which are common ground in this case, we return to MrTopolski's criticism, which is adopted by Mr Whitehouse on behalf of Richard, that the Recorder fell intolegal error by leaving the finding that the delay was unacceptable out of her consideration of the interests of

justice. In our judgment, that is not a sustainable submission. It depends on a pedantic interpretation of thelanguage used by the Recorder. It is plain to us that in the passage to which we have referred, the Recorder

carried out precisely the approach that had been referred to in Robinson when she said that the unacceptabledelay "is not the test". Plainly she meant that it was not the sole test. On the authorities that is abundantly

http://www.bailii.org/ew/cases/EWCA/Crim/2008/1634.htmlhttp://www.bailii.org/ew/cases/EWCA/Crim/2005/824.htmlhttp://www.bailii.org/cgi-bin/redirect.cgi?path=/ew/cases/EWHC/Admin/2006/307.htmlhttp://www.bailii.org/cgi-bin/redirect.cgi?path=/ew/cases/EWCA/Crim/2007/1237.htmlhttp://www.bailii.org/cgi-bin/redirect.cgi?path=/ew/cases/EWCA/Crim/2007/1237.htmlhttp://www.bailii.org/cgi-bin/redirect.cgi?path=/ew/cases/EWHC/Admin/2006/307.htmlhttp://www.bailii.org/ew/cases/EWCA/Crim/2005/824.htmlhttp://www.bailii.org/ew/cases/EWCA/Crim/2008/1634.html


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clear. It was a factor. No one takes a kindly view of unexplained delay. It seems to us that, far from beingleft out of her consideration, thereafter the Recorder took it into account; but when everything was put intothe scales she came to the conclusion that, following a consideration of possible prejudice, the interests of

justice came down in favour of the admission of the evidence. In our judgment that passage in the rulingdoes not contain any legal error.

END QUOTE

http://www.austlii.edu.au/cgi-

bin/sinodisp/au/cases/vic/VSCA/2006/152.html?stem=0&synonyms=0&query="leave%20to%20serve%20"out%20of%20time"%20"

DPP v Hayden [2006] VSCA 152 (25 July 2006)

QUOTE11 In O’Keefe, the Full Court said:"An applicant who has been dilatory or has acted in such a way as to indicate that he does not intend toappeal has small if any claim to the exercise of the discretion of the Court in his favour. On the other hand, ifthe applicant has acted promptly, his case will be considered very differently. Where there has been a longdelay the practice of the Court has not been to grant the extension sought unless it is clear that the decision isattended with such doubt as to make it probable that the appeal will succeed."[18] 12 Winneke ACJ took a similar approach in R v Davis, when he said:"It is to be emphasised that the court’s decisions upon applications of this kind involve discretionary

considerations, and the longer the time which elapses between the closure of the statutory time limit and the

date of the application, the more exceptional will the circumstances have to be. Certainly the applicant must,in any case, put forward material to demonstrate satisfactory reasons for the failure to comply with the timeand also to show, in the event that the time lapse is considerable (as it is in this case), that there are suchmerits in the proposed appeal that it will probably succeed."[19] 13 Even where the time lapse is relatively short, as in the present case, we would still expect the Director tofile material showing that the appeal had sufficient prospects of success to warrant the grant of leave. Asappears later, no such material was filed.

END QUOTE

The following quotation while relating to contracts nevertheless likewise can apply to legalrequirements of filing and serving.As was stated “the anticipatory breach as fundamental” and where it relates to legal practitionerswho charge ample to their clients because of being well “professionals” then surely t he list offailures listed above must be held “as fundamental anticipatory breached” which a competent lawyerought to have avoided, at the very least the numerous breaches listed above.

http://www.austlii.edu.au/cgi- bin/sinodisp/au/cases/cth/HCA/1989/51.html?stem=0&synonyms=0&query=anz%20and%20volume%20and%20evidence%20and%20considerForan v Wight [1989] HCA 51; (1989) 168 CLR 385 (15 November 1989)QUOTE

19. It was not necessary for the purchasers to show that the breach of the essential term was also a

fundamental breach in the sense in which that expression was explained by Lord Diplock in Afovos

Shipping Co. v. Pagnan & Flli (1983) 1 WLR 195, at p 203; (1983) 1 All ER 449, at p 455, before they

acquired a right to terminate the contract. However, if it were necessary to consider the question, I

would regard the anticipatory breach as fundamental. The law has traditionally treated completion onthe date fixed for completion, where time is of the essence, as being a matter of vital importance to the

parties.

END QUOTE

While this indicates numerous failures/breaches including a defiance of court orders of HisHonour Mullaly J of 30 October 2015 to serve by no later than 9 November 2015 via AustraliaPost posting the “full brief” none was served upon me, as such, I am could expect that BulokeShire Council and its legal representatives for the State Government may seek the court tonevertheless ignore all this. Hence, I have set out in this supplement 1 additional issues/detailsand Authorities, and opposes any “leave” to be granted “to file and/or serve out of time”.Despite my legally based objections I have nevertheless been forced to travel long distance to

attend to matters which clearly could have been avoided had Buloke Shire Council and/or its

http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/vic/VSCA/2006/152.html?stem=0&synonyms=0&query=%22leave%20to%20serve%20%22out%20of%20time%22%20http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/vic/VSCA/2006/152.html?stem=0&synonyms=0&query=%22leave%20to%20serve%20%22out%20of%20time%22%20http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/vic/VSCA/2006/152.html?stem=0&synonyms=0&query=%22leave%20to%20serve%20%22out%20of%20time%22%20http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/vic/VSCA/2006/152.html?stem=0&synonyms=0&query=%22leave%20to%20serve%20%22out%20of%20time%22%20%22#fn18http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/vic/VSCA/2006/152.html?stem=0&synonyms=0&query=%22leave%20to%20serve%20%22out%20of%20time%22%20%22#fn18http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/vic/VSCA/2006/152.html?stem=0&synonyms=0&query=%22leave%20to%20serve%20%22out%20of%20time%22%20%22#fn18http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/vic/VSCA/2006/152.html?stem=0&synonyms=0&query=%22leave%20to%20serve%20%22out%20of%20time%22%20%22#fn19http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/vic/VSCA/2006/152.html?stem=0&synonyms=0&query=%22leave%20to%20serve%20%22out%20of%20time%22%20%22#fn19http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/vic/VSCA/2006/152.html?stem=0&synonyms=0&query=%22leave%20to%20serve%20%22out%20of%20time%22%20%22#fn19http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/HCA/1989/51.html?stem=0&synonyms=0&query=anz%20and%20volume%20and%20evidence%20and%20considerhttp://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/HCA/1989/51.html?stem=0&synonyms=0&query=anz%20and%20volume%20and%20evidence%20and%20considerhttp://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/HCA/1989/51.html?stem=0&synonyms=0&query=anz%20and%20volume%20and%20evidence%20and%20considerhttp://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/HCA/1989/51.html?stem=0&synonyms=0&query=anz%20and%20volume%20and%20evidence%20and%20considerhttp://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/HCA/1989/51.html?stem=0&synonyms=0&query=anz%20and%20volume%20and%20evidence%20and%20considerhttp://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/HCA/1989/51.html?stem=0&synonyms=0&query=anz%20and%20volume%20and%20evidence%20and%20considerhttp://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/vic/VSCA/2006/152.html?stem=0&synonyms=0&query=%22leave%20to%20serve%20%22out%20of%20time%22%20%22#fn19http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/vic/VSCA/2006/152.html?stem=0&synonyms=0&query=%22leave%20to%20serve%20%22out%20of%20time%22%20%22#fn18http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/vic/VSCA/2006/152.html?stem=0&synonyms=0&query=%22leave%20to%20serve%20%22out%20of%20time%22%20http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/vic/VSCA/2006/152.html?stem=0&synonyms=0&query=%22leave%20to%20serve%20%22out%20of%20time%22%20http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/vic/VSCA/2006/152.html?stem=0&synonyms=0&query=%22leave%20to%20serve%20%22out%20of%20time%22%20


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legal representatives and/or the State Government acted appropriately. I submit the court cannotdisregard the failure by them to act in a reasonable and appropriate manner and as set out below

by quotations are coming to court with “dirty hands”. The legal doctrine of “ex turpi causa non oritur action ” denies any remedy to a litigant

(including a prosecutor) who does not come to court with clean hands.If your own action is very unlawful and very unethical, if you come to cour t with “Dirty Hands”

best not to question others legality, morality, and ethics!

Liability for Negligent Misrepresentation in the Finance IndustryPauline Sadler

School of Business Law and TaxationCurtin University of TechnologyQUOTE

The history of the duty concept shows that the courts envisaged that there must be a nearness or closeness between the parties, a relationship that Lord Atkin defined in his ‘neighbour’ speech in Donoghue vStevenson.19 Lord Atkin said:20You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likelyto injure your neighbour. Who, then, in law, is my neighbour? The answer seems to be person who are soclosely and directly affected by my act that I ought reasonably have them in contemplation as being soaffected when I am directing my mind to the acts or

END QUOTE

There ought to be no doubt that Buloke Shire Council and its legal representatives, Mr WayneWall, the Premier and the Attorney-General all ought to have been aware that their conductorfailing to act would/might inflict harm upon me. The question then is had there been errors thatwere reasonable errors people ordinary engage in and were those errors remedied once they weremade aware of them. The amount of writings to the various persons can but only underline thateach and every one of them were alerted to certain errors. Each and every one of them simplyfailed to take appropriate action to seek to redress any errors for so far this was within theircapacity. For example Mr Wayne wall could have withdrawn the Fire prevention Notice wherehe was alerted to it being in violation to the provisions of the Country Fire Authority act 1958.Likewise so Buloke Shire Council and so its councillors were notified and ought to have acted.

The legal representatives also should have checked out the Fire prevention Notice as to ascertainfrom onset if the notice was valid in law. And even when they all failed to do so the Premierand/or the Attorney-General could have taken over as in the end Municipal Fire PreventionOfficer was exercising its delegated powers. Despite the numerous writings by me about this andnumerous other issues there was a blatant disregard to address any or all of those failures. In factthere was a continuation of failures. Granted that Buloke Shire Council and its legalrepresentatives didn’t have to file a Notice of Appearance if they didn’t desire to do so becausethey abandoned their legal argument but then the Counsel should neither have appeared on 30October 2015 before His Honour Mulally J!

As humans we all make errors and it is what we do afterwards gto appropriately address

that is relevant.

When ES&a lawyers claimed that it had the wrong form filed as to the Notice of Appearance, itwas in contrast to what the email of the court stated that was quoted in that email the send to me,that there was no Notice of Appearance.When Counsel for Buloke Shire Council was asked by His Honour Mullaly J about the “full

brief” Counsel came up with a fabricated answer that the request was received “yesterday” when

it was in fact on 27 October 2015. And, the “full brief” should have been on the record in view ofthe 17 September 2015 hearing before the magistrates Court of Victoria at St Arnaud.His Honour Mullaly J (having been misled about the date of the request) ordered that by no laterthan 9 November 2015 the “full brief” was to be posted via Australia Post. Again, Buloke ShireCouncil could have decided to abandon the litigation and not do so but then it should havenotified me as the appellant. This it failed to do. Instead, it then fabricated a version of a “full

brief” with a form 11 that clearly related to 18 March 2013 hearing. This as if the alleged offence


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of 17 November 2014 was pre-listed for an 18 March 2013 hearing. Then when I notified AS&aLegal Practitioners (as well as others) about the Form 11 having an 18 March 2013 hearing datethat was concocted the legal representatives for Buloke Shire Council then decided to replace theForm 11 with one showing a date for 22 February 2016 hearing.

I do not accept that a “full brief” can be served out of time in such defective manner,

without any application for “leave to serve out of time” being pursued.It is clear that by 25 November 2015 the “full brief” had not been posted via Australian Post onor before 9 November 2015 and as such for Buloke Shire Council to maintain litigation against

me an Application for “leave to serve out of time” would have been required. Clearly no suchapplication, at least to my knowledge, was made let alone granted. Worse is that while a “full

brief” requires a Form 11 Buloke Shire Council legal representatives took it upon themselves to

decide that they only had to replace the Form 11 without a “full brief”. As such they were relyingupon an invalid alleged service to base a Form 11 replacement upon this instead of requesting“leave to serve out of time” as to serve the entire full brief”. I submit the lawyers realised that torequest for “leave to serve out of time” they likely wouldn’t have a hope in the world to succeed

with this considering what had transpired before His Honour Mullaly J and my exposure of thedeceptive conduct by Counsel to claim “yesterday”.As I had indicated in writing not to accept out of time service it is reasonable to assume that thelawyers were well aware that any application for “leave to serve out of time” likely would be

denied. As such its course appears to me to be to totally ignore the requirement to seek “leave toserve out of time” as they did with the failure to file and serve a Notice of appearance” and just

see if the judge will go along with their rot. After all so far the Magistrates Court of Victoria at StArnaud did so with issuing orders without a shred of evidence to “legally” justify those orders. It cannot be held that Buloke Shire Council (so it’s legal representatives) served me with a “full

brief” regarding the 22 February 2016 hearing, this because it purportedly provided me (didn’t

serve) a mere Form 11 without any “full brief” itself. I do not accept that “an invalid bunch of papers” provided to me regarding an 18 March 2013

purported hearing somehow can be deemed “service” where it was not even in compliance withlegislative provisions and/or the 30 October 2015 orders of His Honour Mullaly J. There is no

such thing as to swap some pages as to try to make it lawful. Either lawful service eventuated orit didn’t. As the Form 11 was signed on 25 November 2015 then clearly it was long before the 9

November 2015 last posting date, and this proves that no lawful service was affected. It cannotturn an invalid delivery into a valid “service” merely by replacing the Form 11 with a different

court date and a different court name. My request related to the “full brief” that was before theMagistrates Court of Victoria at St Arnaud on 20 August 2015 and/or 17 September 2015 and upto this date has not been provided. Hence I am still unaware what precisely transpired before thecourt as to what was on file before the court at the hearings. Neither was I “served” with any“full brief” regarding the 22 February 2016 hearing as a separate form 11 is not a “full brief”.

“Service” must be in compliance to legal requir ements unless the parties from time to time makealternative arrangements. In regard of a court order it is defined and as I placed in writing my

objection not having been served as per orders of His honour Mullaly J it cannot be claimed thatI somehow accepted service regardless being out of time.My elaborate writings exposed these issues time and time again, and if Mr Wayne Wall, BulokeShire Council and so its councillors, the lawyers, the Premier and/or the Attorney-General hadconsidered my writings then each and every one should/could have known that the litigationagainst me had fatal errors and should have been abandoned.When being a senior citizen as I am then time is of the essence and I should have been enjoyedthe time with my 83 year old ill wife better then to having to write time and time again trying toget others to act appropriately. Their blatant disregard to do so and in the process misuse andabuse the legal processes cannot be endorsed by this court. I should be able to enjoy myretirement with my wife and not be subjected to this protracted vexatious litigation where if this

matter where to go for a full hearing, not that I view it should go that far, then it will be the


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informer rather than myself who will prove to be so to say the villain. Yet, despite my exposurein my writings about this his conduct has persisted unabated and this may underline that this isabout power abuse and not about what is best for the general community.Again, this is not some once of human error but rather appears to be a concerted deliberateconduct to blatantly disregard the rules of the court as well as court orders and I submit thatexemplary damages are justified to be of the highest order to make clear that the courtscannot tolerate this kind of perverting the course of justice.

It ought to be understood that the entire conduct of this matter by Buloke Shire Council and itslegal representatives as well as by the State Government has been utterly deplorable and causedconsiderable time and expenses upon me to fight of the vexatious charge.Without seeking to limit the scope of the OBJECTION TO JURISDICTION it ought to beclear that where the Fire Prevention Notice in itself was in clear violation to the legal provisionsof the Country F ir e Author ity Act 1958 and contained requirements not within the delegated

powers of the Municipal Fire Authority Officer then all and any charge must fail.Any attendance by me is and would be under objection and is not intended and must not be

perceived that I waive any objections. Despite of my objection that the Ballarat venue of theCountry Court of Victoria is the wrong venue, I am force to attend. And despite my writtenrequest for the physical address of the Ballarat venue none has been provided. It is not for

me to try to find it on the internet and then find it might be the wrong location. It was for thecourt to provide me with the physical location of the Ballarat venue, this it failed to do.

The failure of any time table regarding the OBJECTION TO JURISDICTION also means thatI have been denied for this also to prepare for any hearing, this as if the OBJECTION TOJURISDICTION were to be (finally) upheld then there is no need to prepare for a hearing DeNovo . The denial by the State government to provide the requested relevant to these proceedingsFOI Act material means that the State government effectively is obstructing the course of justiceand preventing me in that regard also to prepare for any hearing.

It should be understood should that the litigation pursued against me that Buloke Shire Council if

on behalf of the State of Victorian regarding criminal proceedings and as such the lawyers forBuloke Shire Council by this are acting in the capacity of being the Public Prosecutor.It then is concerning (consider also the quotation below) that the lawyers forwarded their firstcorrespondence to me dated 10 June 2015 in which they concealed their contact details andaddress of their office and stated:QUOTE

If you have any queries or wish to make payment please contact Council’s Local Laws Officer, Wayne Wallon (03) 5478 0180

END QUOTE

In my view this conduct violate that of a Public Prosecutor (again see below quotation) as thelawyers appear to be conducting the case as like a civil case representing Buloke Shire Councilas their client. And this basically is in the overall how it appears to me Buloke Shire Council

legal representatives have conducted themselves, to inappropriately deal with matters while purporting to pursue criminal sanctions against me. Because Buloke Shire Council is actingwithin delegated powers of the state government then as the High Court of Australia held inSydney City Council v Commonwealth 1904 the council was acting by delegated taxation

powers within s114 of the constitution as if the State itself. Likewise, the lawyers representingBuloke Shire Council are actually to be impartial and should never have concealed their contactdetails and address and neither refer to the “Local Laws Officer” as it was the “Municipal FirePrevention Officer” who was to exercise the delegated powers. While it may be one and thesame person occupying the positions nevertheless where ES&a Legal Practitioners represent“Local Laws Officer” then this is regarding the so called Local by-laws of Buloke Shire

Council, whereas where it relates to the Municipal Fire Prevention officer than it has gotabsolutely nothing to do with the Local law Officer as the Municipal Fire Prevention Officer is


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acting under the delegated powers of the State and then ES&a Legal Representatives are reallyrepresenting the State of Victoria with Mr Wayne Wall as the Municipal Fire Prevention Officer

being the “informant”. Whereas a “Local Laws Officer” may or may not rely upon by-laws that are specific to ashire/municipality the “Municipal Fire Prevention Officer”, albeit appointed by theshire/municipality is in fact exercising State delegated powers, but within the Country F ireAuthority Act 1958 has no legal powers to create by-laws or stipulate conditions in violation tothe provisions of the Country F ir e Author ity Act 1958 .

As such, my submission is that Buloke Shire Council legal representatives have no legal standingto litigate for and on behalf of the “Local Laws Officer” Mr Wayne Wall. As no local laws ofBuloke Shire Council were relevant to the issue, nor did Buloke Shire Council possess anydelegated powers to make such by-laws, neither could instruct its legal representatives as it is amatter where the “Municipal Fire prevention Officer ” acting under delegated powers of the stategovernment should have been the person to instruct the lawyers and any claimed paymentsmade payable to the state consolidated Revenue funds and not to Buloke Shire Council.ES@a Legal Practitioners didn’t present themselves to act for and on behalf of the State of

Victoria as its correspondence of 10 June 2015 refers to acting on behalf of Buloke Shire Councilregarding an unpaid Infringement Notice. The tone of the correspondence was to pay the fine andnot as to any fire danger per se. As such ES@a Legal Practitioners acted not as the Prosecutor

but as some Debt collection agency lawyers. And this much is reflected in its conduct in theoverall.Because it relates to a criminal matter allegedly an offence against State legislation then any

payment demanded to be made to Buloke Shire Council in itself I submit is fraud, this as payment must be made to the State’s Consolidated Revenue Funds.

http://lawyerslawyer.net/2012/03/01/prosecutors-obligations-in-criminal-and-disciplinary-cases/

QUOTE

“A prosecutor is a “minister of justice”. The prosecutor’s principal role is to assist the court to arrive

at the truth and to do justice between the community and the accused according to law and the

dictates of fairness.

A prosecutor is not entitled to act as if representing private interests in litigation. A prosecutor

represents the community and not any individual or sectional interest. A prosecutor acts

independently, yet in the general public interest. The “public interest” is to be understood in that

context as an historical continuum: acknowledging debts to previous generations and obligations to

future generations.

QUOTE

As such my submission is that ES@a Legal Practitioners failed to act appropriately as aProsecutor ought to do. The courts ought to be the last resort and yet other than ES&a 10 June

2015 correspondence pursuing a payment it failed totally to seek to address the numerous issues Ihad placed before Buloke Shire Council by then already.It also ought to be questioned if Mr Wayne Wall was duly qualified to act for ES&a and if he isthe holder of a legal practitioners certificate as law officer for Buloke Shire Council. Also if hehas sufficient training in legal studies that he understands/comprehend the provisions of theCountry F ir e Author ity Act 1958 and the required legal pro visions. This in particular where MrWayne Wall has continuously ac ted in violation of the Country F ir e Author ity Act 1958 legal

provisions and by this caused/inflicted undue harm upon the objector.

The Hobsons Bay City Council case deals with a magistrate ordering cost but in relation to the17 September 2015 orders by the Magistrates Court of Victoria at St Arnaud there was not ashred of “evidence” before the court to justify orders for cost, as the audio recording of the courtitself proves no evidence was presented.

http://lawyerslawyer.net/2012/03/01/prosecutors-obligations-in-criminal-and-disciplinary-cases/http://lawyerslawyer.net/2012/03/01/prosecutors-obligations-in-criminal-and-disciplinary-cases/


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http://www.austlii.edu.au/au/cases/vic/VSC/2010/386.html

Hobsons Bay City Council v Viking Group Holdings Pty Ltd [2010] VSC 386 (27 August 2010)

QUOTECOMMON LAW – Appeal from Magistrates’ Court cost award in criminal proceeding – Costs awardedcovered disbursements fees only - Review of discretionary judgments - Presumption in favour of thecorrectness of the decision - Appellant must demonstrate a vitiating error of law - It was open to theMagistrate to exercise his discretion in award of costs – Consistency of cost awards - Proportionality of costawards - Magistrates Court Act 1989 s 131(1)

END QUOTE

http://www.austlii.edu.au/au/cases/vic/VSC/2010/386.html

Hobsons Bay City Council v Viking Group Holdings Pty Ltd [2010] VSC 386 (27 August 2010)

QUOTE

6 After the Magistrate awarded costs in the sum of $180.80[1] he was asked to give reasons for his order. Hethen stated:

The application for legal costs is refused on the basis that I think that they’re disproportionate to the

criminality of the defendant’s conduct. I believe we’ve had this discussion in the past Mr Prosecutor, but the

same reasons apply. It seems to me to be unfair to award costs based on the defendant’s bad luck in being prosecuted by a council rather than by the police as a matter of principle, it cannot be or should not be the

defendant that incurs the additional liability of substantial costs based on who prosecutes. It strikes me asunfair that an award of costs against the defendant when thieves, drug traffickers and other wrongdoers whodo far more harm than the defendant has, are not asked to pay costs. Additionally, citizens pay rates and taxesfor services, including the cost of prosecuting, supervising and imprisoning wrongdoers. It seems to me that

principle ought to apply to this prosecution as well and as I also say that the costs are disproportionate to thecriminality of the defendants conduct (sic). In the exercise of my discretion, the application for costs isrefused.[2]

END QUOTE

http://www.austlii.edu.au/au/cases/vic/VSC/2010/386.htmlHobsons Bay City Council v Viking Group Holdings Pty Ltd [2010] VSC 386 (27 August 2010)

QUOTE

11 As counsel for the respondent emphasised, the latter part of s 131(1) emphasises the ‘full power’ of theCourt to determine the question of costs.

12 The grounds of appeal allege that the Magistrate failed to exercise his discretion properly or at all, and inthe alternative that he purported to act for improper reasons and/or took into account irrelevant matters. In thefurther alternative it is alleged that the Magistrate failed to take relevant considerations into account.

13 The fundamental question raised by the appeal is whether it was open to the Court to exercise itsdiscretion as it did. The general principles governing appeals from the exercise of discretion as to costs wereexpressed by Kitto J in Australian Coal and Shale Employees’ Federation v The Commonwealth:[4]

..the true principle limiting the manner in which appellate jurisdiction is exercised in respect of decisions

involving discretionary judgment is that there is a strong presumption in favour of the correctness of thedecision appealed from, and that that decision should therefore be affirmed unless the court of appeal issatisfied that it is clearly wrong. A degree of satisfaction sufficient to overcome the strength of the

presumption may exist where there has been an error which consists in acting upon a wrong principle, orgiving weight to extraneous or irrelevant matters, or failing to give weight or sufficient weight to relevantconsiderations, or making a mistake as to the facts. Again, the nature of the error may not be discoverable,

but even so it is sufficient that the result is so unreasonable or plainly unjust that the appellate court may inferthat there has been a failure properly to exercise the discretion which the law reposes in the court of firstinstance: House v. The Kin g[5]....

14 His Honour went on to endorse the following statement by Jordan CJ in Schweppes Limited v Archer :[6]

In appeals as to costs, the principles to be applied are these. The Court will always review a decision of aTaxing Officer where it is contended that he has proceeded upon a wrong principle, for the purpose of

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determining the principle which should be applied; and an error in principle may occur both in determiningwhether an item should be allowed and in determining how much should be allowed. Where no principle isinvolved, and the question is, whether the Taxing Officer has correctly exercised a discretion which he

possesses and is purporting to exercise, the Court is reluctant to interfere. It has undoubted jurisdiction toreview the Taxing Officer's decision even where an exercise of discretion only is involved, and will do sofreely on a proper case, using its own knowledge of the circumstances, but it will in general interfere onlywhere the discretion appears not to have been exercised at all, or to have been exercised in a manner which ismanifestly wrong; and where the question is one of amount only, will do so only in an extreme case.(Citations omitted)

15 In Urban No 1 Co-operative Society v Kilavus & Anor ,[7] Hedigan J observed that in cases involving thereview of discretionary judgments there is a strong presumption in favour of the correctness of the decisionappealed from and the general rule is that the decision should be affirmed unless the appellate court of reviewis satisfied that it is clearly wrong.

16 In Kenyon v Drissen,[8] Ashley J (as he then was) observed:

It is true that an exercise of discretion is not to be tested by an appeal court asking itself whether it wouldhave exercised the discretion in the same or a different way to the way in which it was exercised in fact. Onthe other hand, the appeal court, before it interferes with an exercise of discretion, must be satisfied that thedecision was clearly wrong. In my opinion the correct approach is that in considering that question an appealcourt is not constrained to hold that an exercise of discretion was wrong only by reason that weight was givento some irrelevant consideration, or by reason only of complaint that insufficient weight was given to somerelevant consideration. It may be, despite such matters, that the decision was very evidently supportable by

pertinent grounds relied upon by the decision-maker.

17 These observations and the observations of Hedigan J were made in the context of appeals from theMagistrates’ Court to this Court. These reflect the need for an appellant in an appeal on questions of law todemonstrate not only that an error of law occurred but that it was a vitiating error .[9]

18 In Kymar Nominees Pty Ltd v Sinclair ,[10] Cavanough J stated:

There is a strong presumption in favour of the correctness of a discretionary judgment of a court, and all themore so in relation to the taxation of costs. Although, strictly speaking, the present question is not one of

taxation of costs but of the extent of the parties’ respective liability, a reviewing court will rarely interfere onsuch a question, especially in an appeal limited to questions of law.

19 The right of appeal to this Court from final orders within criminal proceedings of the Magistrates’ Court is

one on questions of law only.[11] Accordingly, just as it is not open to challenge the weight given to relevantfactors in reaching a conclusion of fact, it is not open to challenge the weight given to relevant factors bearingon the exercise of a discretion.[12] The critical question is whether it was open to the Magistrate to concludeas he did having regard to relevant factors.[13]

Preliminary questions

20 The appellant relied on the decision in Latoudis v Casey.[14] It must be recognised however that the

present case is not one such as Latoudis, where a successful defendant, having been brought to Court by theinformant, is ordinarily entitled to his or her costs.

21 In Oshlack v Richmond River Council[15] Kirby J observed:[16]

The decision in that case [ Latoudis] does not, and could not, lay down a general rule that the onlyconsideration to be taken into account in the exercise of a statutory costs discretion is the compensation of thesuccessful party for the recoverable expense to which it has been put by the litigation. With respect to thelearned judges of the Court of Appeal, this reads too much into Latoudis. Such a rule was required neither bythe matter which was before this Court for decision in that case nor by the majority's reasons.

22 Likewise, cases such as Ohn v Walton,[17] which was concerned with a power in the Medical Tribunal of

New South Wales to order ‘the complainant ... to pay such costs to such person as the Tribunal maydetermine,’ are of no real assistance in the present case.

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23 It was next submitted that if costs were not ordinarily recoverable by the Council then the Council would be deterred from bringing further prosecutions of the type in issue. I do not accept this inference should bedrawn. Such prosecutions enforce a system of parking regulation from which municipal councils derivesignificant revenue and the evidence simply does not establish the conclusion contended for.

24 The appellant also placed substantial emphasis on the following observations by McHugh J inOshlack :[18]

Nor is the status of the respondent as a public authority presently relevant. The law judges persons by their

conduct not their identity. In the exercise of the costs discretion, all persons are entitled to be treated equallyand in accordance with traditional principle. The fact that a successful respondent is a public authority shouldnot make a court less inclined to award costs in its favour. Gone are the days when one could sensibly speakof a public authority as having ‘available to them almost unlimited public funds’.[19] Moreover, if costsawards are not made in favour of successful respondents such as the Council, the public services which thoseauthorities provide must be adversely affected. Every irrecoverable dollar spent on litigation is one dollar lessto spend on the services that public authorities do and ought to provide. Often enough the services that will bereduced will be those that favour the politically weak – children, the unemployed, the disabled and the aged.Such results cannot be in the public interest.

25 These observations do not assist the appellant because:

• I do not accept that the learned Magistrate refused the appellant costs simply because it is a municipalcouncil. Rather as I have said, he considered the issue of costs by reference to broader notions of consistencyand proportionality.

• Oshlack was concerned with fundamentally different proceedings. It was concerned with the costs of asuccessful council responding to an unsuccessful claim for injunctive relief, brought by a member of the

public seeking to ventilate issues of the public interest.

• McHugh J’s observations were made in dissent and the majority of the High Court affirmed the breadth ofthe discretion available to the Court of first instance.

Consistency

26 I turn then to the underlying bases of the Magistrate’s reasons. In my view it cannot be said that it was not

open to the learned Magistrate to take into account questions of consistency. Counsel for both parties referredto the observations of Mason and Deane JJ in Norbis v Norbis[20] (a case concerning the exercise ofdiscretion as to costs under the Family Law Act 1975 (Cth)):

The point of preserving the width of the discretion which Parliament has created is that it maximizes the possibility of doing justice in every case. But the need for consistency in judicial adjudication, which is theantithesis of arbitrary and capricious decision-making, provides an important countervailing considerationsupporting the giving of guidance by appellant courts, whether in the form of principles or guidelines.

27 Brennan J, who agreed generally with the reasons of Mason and Deane JJ stated at 536:

The orderly administration of justice requires that decisions should be consistent one with another anddecision-making should not be open to the reproach that it is adventitious ... An unfettered discretion is aversatile means of doing justice in particular cases, but unevenness in its exercise diminishes confidence inthe legal process.

28 In the present case it should be noted that breaches of the Victorian Road Rules with respect to parkinginfringements may be prosecuted either by a police officer, an authorised council officer or certain otherauthorised persons.[21]

29 It was open to the Magistrate to form the view that the discrepancy in costs outcomes between police prosecutions and council prosecutions in respect of the same offence and more generally raised a relevantissue of consistency. Inconsistent outcomes do not support a system in which the public may be expected to

have confidence. They give rise to a system which may appear adventitious and arbitrary in its outcomes.

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END QUOTE Hobsons Bay City Council v Viking Group Holdings Pty Ltd [2010] VSC 386 (27 August 2010)

It also should be considered that despite my 9 December 2015 comprehensive FOI request with asupplement 1 dated 11 December 2015 FOI request to the Premier of Victoria Mr DanielAndrews (and copies to the Attorney-General) regarding Fire Prevention Notices issued byBuloke Shire Council in the wording offending the Country F ir e Author ity Act 1958 and laterfurther request about it has been left unanswered despite that the FOI Act requires 45 daysmaximum to respond.

In my submission as Buloke Shire Council is acting under delegated powers of the State ofVictoria then it was appropriate to make the FOI request to the Premier, as the Premier wouldhave access to a greater data base then Buloke Shire Council may have regarding the same.If the FOI requested material/details could establish that Fore prevention Notices were habituallyissued in violation to the limited delegated powers of the Municipal Fire Prevention Officer andnot just a one of issue then obviously this could place in that regard the competence of MrWayne Wall being an “expert witness”, in case this were to be pursued that he is so by his

position.

http://www.austlii.edu.au/cgi- bin/sinodisp/au/cases/vic/VSCA/2015/123.html?stem=0&synonyms=0&query="leave%20to%20serve%20"out%20of%20time"%20"

Protec Pacific Pty Ltd v Steuler Services GmbH & Co KG; BHP Billiton Olympic Dam Corporation Pty Ltd vSteuler Services GmbH & Co KG [No 2] [2015] VSCA 123 (28 May 2015QUOTE

The test governing the erroneous exercise of discretion, including the discretion to award costs, was famouslystated in House v The King[56] as follows:If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him,if he mistakes the facts, if he does not take into account some material consideration, then his determinationshould be reviewed and the appellate court may exercise its own discretion in substitution for his if it has thematerials for doing so.[57]

END QUOTE

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%20time"%20" DPP v Craib & Coad [2001] VSCA 92 (15 June 2001)

QUOTEI find it difficult to criticise the Director for waiting upon the transcript before instituting the appeals; it isobviously undesirable for an appeal in a criminal matter to be commenced only to have it abandoned if thatappears proper when the transcript becomes available[7].

END QUOTE

I was well aware that if I didn’t file and serve the appeal in time against the 17 September 2015

orders of the Magistrates Court of Victoria at St Arnaud I could face a difficulty having toexplain that I had so far been denied any sealed copy of the orders and reason of judgment (andstill be 13 February 2016 so) despite written request for them. Hence, I was left no alternative but

to file the appeal without any formal sealed orders and reason of judgment without knowing thetrue version of orders, but holding that the OBJECTION TO JURISDICTION was unlikely have

been disposed of and as such the appeal could be justified also for orders that ought to have beenmade but were not made, as the court to invoke jurisdiction, as it allegedly did to issue ordersshould have issued first orders to dismiss the OBJECTION TO JURISDICTION (not that Iconcede this was appropriate to do so) and where it failed to issue those orders then it neverinvoked jurisdiction.

At times the conduct of one party might be of concern to a court but it cannot have an impactupon the final determination of the court if the conduct is not one that should be considered to thelegal justification of litigation.

http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/vic/VSCA/2015/123.html?stem=0&synonyms=0&query=%22leave%20to%20serve%20%22out%20of%20time%22%20http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/vic/VSCA/2015/123.html?stem=0&synonyms=0&query=%22leave%20to%20serve%20%22out%20of%20time%22%20http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/vic/VSCA/2015/123.html?stem=0&synonyms=0&query=%22leave%20to%20serve%20%22out%20of%20time%22%20http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/vic/VSCA/2015/123.html?stem=0&synonyms=0&query=%22leave%20to%20serve%20%22out%20of%20time%22%20%22#fn56http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/vic/VSCA/2015/123.html?stem=0&synonyms=0&query=%22leave%20to%20serve%20%22out%20of%20time%22%20%22#fn57http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/vic/VSCA/2015/123.html?stem=0&synonyms=0&query=%22leave%20to%20serve%20%22out%20of%20time%22%20%22#fn57http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/vic/VSCA/2015/123.html?stem=0&synonyms=0&query=%22leave%20to%20serve%20%22out%20of%20time%22%20%22#fn57http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/vic/VSCA/2001/92.html?stem=0&synonyms=0&query=%22leave%20to%20serve%20%22out%20of%20time%22%20http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/vic/VSCA/2001/92.html?stem=0&synonyms=0&query=%22leave%20to%20serve%20%22out%20of%20time%22%20http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/vic/VSCA/2001/92.html?stem=0&synonyms=0&query=%22leave%20to%20serve%20%22out%20of%20time%22%20http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/vic/VSCA/2001/92.html?stem=0&synonyms=0&query=%22leave%20to%20serve%20%22out%20of%20time%22%20%22#fn6http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/vic/VSCA/2001/92.html?stem=0&synonyms=0&query=%22leave%20to%20serve%20%22out%20of%20time%22%20%22#fn6http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/vic/VSCA/2001/92.html?stem=0&synonyms=0&query=%22leave%20to%20serve%20%22out%20of%20time%22%20http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/vic/VSCA/2001/92.html?stem=0&synonyms=0&query=%22leave%20to%20serve%20%22out%20of%20time%22%20http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/vic/VSCA/2001/92.html?stem=0&synonyms=0&query=%22leave%20to%20serve%20%22out%20of%20time%22%20http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/vic/VSCA/2015/123.html?stem=0&synonyms=0&query=%22leave%20to%20serve%20%22out%20of%20time%22%20%22#fn57http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/vic/VSCA/2015/123.html?stem=0&synonyms=0&query=%22leave%20to%20serve%20%22out%20of%20time%22%20%22#fn56http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/vic/VSCA/2015/123.html?stem=0&synonyms=0&query=%22leave%20to%20serve%20%22out%20of%20time%22%20http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/vic/VSCA/2015/123.html?stem=0&synonyms=0&query=%22leave%20to%20serve%20%22out%20of%20time%22%20http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/vic/VSCA/2015/123.html?stem=0&synonyms=0&query=%22leave%20to%20serve%20%22out%20of%20time%22%20


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http://www.austlii.edu.au/cgi- bin/sinodisp/au/cases/cth/HCA/2007/36.html?stem=0&synonyms=0&query=anz%20and%20volume%20and%20evidence%20and%20consider

CGU Insurance Limited v AMP Financial Planning Pty Ltd [2007] HCA 36 (29 August 2007)

QUOTE

257. At the outset we should say that we agree with the Chief Justice and Crennan J that a lack

of utmost good faith is not to be equated with dishonesty only. The analogy may not be taken too far,

but the sort of conduct that might constitute an absence of utmost good faith may have elements in

common with an absence of clean hands according to equitable doctrine which requires that a

plaintiff seeking relief not himself be guilty of tainted relevant conduct. We have referred to thedoctrine of clean hands because, as with another equitable doctrine, that he who seeks equity must

do equity, it invokes notions of reciprocity which are of relevance here. That is not to say that

conduct falling short of actual impropriety might not constitute an absence of utmost good faith of

the kind which the Insurance Act demands. Something less than that might well do so. Utmost good

faith will usually require something more than passivity: it will usually require affirmative or

positive action on the part of a person owing a duty of it. It is not necessary, however for the

purposes of this case, to attempt any comprehensive definition of the duty, or to canvass the ranges

of conduct which might fall within, or outside s 13 of the Insurance Act. 258. We have already foreshadowed that in our opinion the conduct of the appellant did leave something to be

desired. It does seem to us that there was certainly a degree of opportunism on the part of the appellant indealing with the claims against the respondent by the investors. As Kirby J has pointed out[147], thisinsurance was effected in a market in which ASIC had an important and powerful presence. It follows that

it ought to have been within the contemplation of the appellant that the respondent might come under pressure from ASIC to settle claims. It may be another question, however, whether it would have beenwithin the contemplation of the appellant that ASIC would act in the way in which it did, that is to say, onthe respondent's case possibly high-handedly. We would make no judgment about this as ASIC is not a

party, but it is right to point out that there was nothing in the Law or elsewhere disentitling a licence holdersuch as the respondent from defending claims and actions which it believes to be defendable. But therewere other factors in play. The respondent seems to have been just as keen to stay out of court as ASICwas to keep the investors out of court. The respondent was anxious to protect its name and goodwill, andto that end to keep the appellant at a distance from the management of the claims.

END QUOTE

In this case the court went through copious amounts of correspondences and boxes of material

but in the end While CGU had pursued this all it still succeeded in its appeal and AMP was theloser, this eve n so it had ongoing provided required details.

The issue of “leave to file/serve out of time”.

http://www.austlii.edu.au/cgi- bin/sinodisp/au/cases/cth/FCCA/2014/1251.html?stem=0&synonyms=0&query="leave%20to%20serve%20"out%20of%20time"%20" Federal Circuit Court of Australia Cole v Quest Software Pty Ltd [2014] FCCA 1251 (18 June 2014)QUOTE

The Principles of Procedural Fairness and Case Management

61. As the Court is aware the previous leading case on the manner in which the principles of casemanagement should be applied in proceedings was formerly Queensland & Anor v JL Holdings Pty Ltd [1997] HCA 1; (1997) 189 CLR 146.62. However on 5 August, 2009 the High Court in Aon Risk Services Australia Ltd v Australian

National University [2009] HCA 27; (2009) 239 CLR 175 delivered three separate judgments which havehad a significant impact on the conduct of litigation, when judges, magistrates and decision makers arerequired to exercise their discretion in matters of case management under the current rules of procedurerequiring the “just resolution” of the “real issues” in dispute.63. There was a separate decision by French CJ, a joint judgment by Gummow, Hayne, Crennan,Kiefel and Bell JJ [19] and a separate decision by Heydon J.

What did AON -v- ANU decide?

http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/HCA/2007/36.html?stem=0&synonyms=0&query=anz%20and%20volume%20and%20evidence%20and%20considerhttp://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/HCA/2007/36.html?stem=0&synonyms=0&query=anz%20and%20volume%20and%20evidence%20and%20considerhttp://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/HCA/2007/36.html?stem=0&synonyms=0&query=anz%20and%20volume%20and%20evidence%20and%20considerhttp://www.austlii.edu.au/au/legis/cth/consol_act/ica1984220/http://www.austlii.edu.au/au/legis/cth/consol_act/ica1984220/s13.htmlhttp://www.austlii.edu.au/au/legis/cth/consol_act/ica1984220/http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/HCA/2007/36.html?stem=0&synonyms=0&query=anz%20and%20volume%20and%20evidence%20and%20consider#fn146http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/FCCA/2014/1251.html?stem=0&synonyms=0&query=%22leave%20to%20serve%20%22out%20of%20time%22%20http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/FCCA/2014/1251.html?stem=0&synonyms=0&query=%22leave%20to%20serve%20%22out%20of%20time%22%20http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/FCCA/2014/1251.html?stem=0&synonyms=0&query=%22leave%20to%20serve%20%22out%20of%20time%22%20http://www.austlii.edu.au/au/cases/cth/HCA/1997/1.htmlhttp://www.austlii.edu.au/cgi-bin/LawCite?cit=%281997%29%20189%20CLR%20146?stem=0&synonyms=0&query=http://www.austlii.edu.au/au/cases/cth/HCA/2009/27.htmlhttp://www.austlii.edu.au/cgi-bin/LawCite?cit=%282009%29%20239%20CLR%20175?stem=0&synonyms=0&query=http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/FCCA/2014/1251.html?stem=0&synonyms=0&query=%22leave%20to%20serve%20%22out%20of%20time%22%20%22#fn19http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/FCCA/2014/1251.html?stem=0&synonyms=0&query=%22leave%20to%20serve%20%22out%20of%20time%22%20%22#fn19http://www.austlii.edu.au/cgi-bin/LawCite?cit=%282009%29%20239%20CLR%20175?stem=0&synonyms=0&query=http://www.austlii.edu.au/au/cases/cth/HCA/2009/27.htmlhttp://www.austlii.edu.au/cgi-bin/LawCite?cit=%281997%29%20189%20CLR%20146?stem=0&synonyms=0&query=http://www.austlii.edu.au/au/cases/cth/HCA/1997/1.htmlhttp://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/FCCA/2014/1251.html?stem=0&synonyms=0&query=%22leave%20to%20serve%20%22out%20of%20time%22%20http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/FCCA/2014/1251.html?stem=0&synonyms=0&query=%22leave%20to%20serve%20%22out%20of%20time%22%20http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/FCCA/2014/1251.html?stem=0&synonyms=0&query=%22leave%20to%20serve%20%22out%20of%20time%22%20http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/HCA/2007/36.html?stem=0&synonyms=0&query=anz%20and%20volume%20and%20evidence%20and%20consider#fn146http://www.austlii.edu.au/au/legis/cth/consol_act/ica1984220/http://www.austlii.edu.au/au/legis/cth/consol_act/ica1984220/s13.htmlhttp://www.austlii.edu.au/au/legis/cth/consol_act/ica1984220/http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/HCA/2007/36.html?stem=0&synonyms=0&query=anz%20and%20volume%20and%20evidence%20and%20considerhttp://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/HCA/2007/36.html?stem=0&synonyms=0&query=anz%20and%20volume%20and%20evidence%20and%20considerhttp://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/HCA/2007/36.html?stem=0&synonyms=0&query=anz%20and%20volume%20and%20evidence%20and%20consider


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64. The three separate judgments unanimously held:a. The starting point for any application, and by inference the effect of the application on thecourt's timetable, are the rules of the relevant jurisdiction [at 55]: in AON this was the ACT Court

Procedure Rules (in the Federal Jurisdiction the equivalents are the Federal Court of Australia Act 1976 (“FCA”) and Federal Circuit Court Rules 2001 (“FCCR”));

b. The case management principles embodied in the ACT Rules (and by extension theFCCR and the inclusion of PART VB in the FCA) postdate the High Court’s decision inQueensland v JL Holdings and the purposes stated in the rules cannot be ignored: the rules areto be applied having regard to the stated objectives, being the timely disposal of the proceedings at

an affordable cost [at 97] or as the Chief Justice put it the “ just resolution of the real issues inthe proceeding with minimum delay and expense" [at 36];c.Speed and efficiency in the sense of minimum delay and expense are essential to a just

resolution of proceedings which remains the paramount purpose of the FCCR as embodied inRule 1.03[20] and s.37M of the FCA; limits may be placed upon re-pleading, and by extension

the failure to serve evidence in accordance with the timetable set by the Court, when delay

and cost are taken into account [at 98];d.There is no entitlement to raise an arguable claim by an amendment to a pleading subject to payment of costs by way of compensation [at 111 and French CJ at 5] and therefore it can beargued there is no entitlement to an extension in terms of failures to comply with court mandatedtimetables subject to the payment of costs. In other words costs should not always be viewed as a

panacea for delay; ande.Inefficiencies in the use of a court as a publicly funded resource by reason of late applications, and

by extension continuing delays, are to be taken into account in the proper exercise of a primary judge’s exercise of discretion to grant an application and by extension leave to serve out of time:so too is the need to maintain the public’s confidence in the judicial system [French CJ at 5] and

the effects on other litigants in the court system [101].

How has AON v ANU changed the landscape of Case Management?

65. Statements in JL Holdings, which suggested a limited application for case management, should not be applied in the future [at 111].66. JL Holdings cannot be taken as authority for the view that a waste of public resources and unduedelay should not be taken into account in the exercise of interlocutory decisions [French CJ at 30].67. The obligation imposed by the Rules to minimise costs implies that an order for costs may notalways provide sufficient compensation and therefore achieve a just resolution [at 98].

68. In jurisdictions having rules similar to Rule 21 (See ss.37M, 37N, 37P of FCA and Rule 1.03 ofFCCR) and Rule 502 of the ACT Court Procedure Rules, JL Holdings has ceased to be of authority. It is

necessary to apply the rules without any preconceptions derived from what was said in JL Holdings [Heydon J at133].69. JL Holdings has had a damaging influence on the conduct of litigation [Heydon J [133] and

created a culture and mentality of “uncomplaining supine liberality” for delinquent litigants (referring to Bryson J in Maronis Holdings Ltd & Ors v Nippon Credit Australia Pty Ltd & Ors [2000]

NSWSC 753 at [15] “in a passage which merits preservation from the oblivion of unreported judgments”).70. There was no explanation offered for the delay in seeking to amend [53]: this was critical tothe exercise of any discretion in favour of AON [114]; therefore there was no basis for a finding ofoversight [108] or mistake of judgment [109]; it can be inferred that there could be no reasonableexplanation in the absence of any explanation [108]; French CJ regarded the failure to raise the newclaim as an apparent deliberate tactical decision in those circumstances [4].

The Greater Relevance of Case Management Principles

71. AON confirms that case management principles have changed significantly by the rules of procedure enacted by various jurisdictions since JL Holdings.72. The statutory duty imposed by civil procedure rules such as the FCA, FCCR and the CPA in NSWrequires a court – in mandatory terms – to give effect to the overriding purpose of case management rules

being “the just resolution of disputes...(b) as quickly, inexpensively and efficiently as possible"[21] includinglimiting "the number of documents that may be tendered in evidence"[22]. 73. That duty is a significant qualification to the power to grant leave to amend and by extension the

power to grant leave to vary from the Court’s mandated timetable with respect to evidence in the proceedings.

74. AON is a significant and unanimous recent decision of the High Court considering the principlesof proper case management in the context of current rules of court concerning practice and procedure that

http://www.austlii.edu.au/au/legis/cth/consol_act/fcoaa1976249/http://www.austlii.edu.au/au/legis/cth/consol_act/fcoaa1976249/http://www.austlii.edu.au/au/legis/cth/consol_act/fcoaa1976249/http://www.austlii.edu.au/au/legis/cth/consol_act/fcoaa1976249/http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/FCCA/2014/1251.html?stem=0&synonyms=0&query=%22leave%20to%20serve%20%22out%20of%20time%22%20%22#fn20http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/FCCA/2014/1251.html?stem=0&synonyms=0&query=%22leave%20to%20serve%20%22out%20of%20time%22%20%22#fn20http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/FCCA/2014/1251.html?stem=0&synonyms=0&query=%22leave%20to%20serve%20%22out%20of%20time%22%20%22#fn20http://www.austlii.edu.au/au/cases/nsw/NSWSC/2000/753.htmlhttp://www.austlii.edu.au/au/cases/nsw/NSWSC/2000/753.htmlhttp://www.austlii.edu.au/au/cases/nsw/NSWSC/2000/753.htmlhttp://www.austlii.edu.au/au/cases/nsw/NSWSC/2000/753.html#para15http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/FCCA/2014/1251.html?stem=0&synonyms=0&query=%22leave%20to%20serve%20%22out%20of%20time%22%20%22#fn21http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/FCCA/2014/1251.html?stem=0&synonyms=0&query=%22leave%20to%20serve%20%22out%20of%20time%22%20%22#fn21http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/FCCA/2014/1251.html?stem=0&synonyms=0&query=%22leave%20to%20serve%20%22out%20of%20time%22%20%22#fn21http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/FCCA/2014/1251.html?stem=0&synonyms=0&query=%22leave%20to%20serve%20%22out%20of%20time%22%20%22#fn22http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/FCCA/2014/1251.html?stem=0&synonyms=0&query=%22leave%20to%20serve%20%22out%20of%20time%22%20%22#fn22http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/FCCA/2014/1251.html?stem=0&synonyms=0&query=%22leave%20to%20serve%20%22out%20of%20time%22%20%22#fn22http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/FCCA/2014/1251.html?stem=0&synonyms=0&query=%22leave%20to%20serve%20%22out%20of%20time%22%20%22#fn22http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/FCCA/2014/1251.html?stem=0&synonyms=0&query=%22leave%20to%20serve%20%22out%20of%20time%22%20%22#fn21http://www.austlii.edu.au/au/cases/nsw/NSWSC/2000/753.html#para15http://www.austlii.edu.au/au/cases/nsw/NSWSC/2000/753.htmlhttp://www.austlii.edu.au/au/cases/nsw/NSWSC/2000/753.htmlhttp://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/FCCA/2014/1251.html?stem=0&synonyms=0&query=%22leave%20to%20serve%20%22out%20of%20time%22%20%22#fn20http://www.austlii.edu.au/au/legis/cth/consol_act/fcoaa1976249/http://www.austlii.edu.au/au/legis/cth/consol_act/fcoaa1976249/http://www.austlii.edu.au/au/legis/cth/consol_act/fcoaa1976249/


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since that time has been applied by state and federal courts with respect applications to adduce furtherevidence at hearing (See Platinum Investment Management Limited v Chief Commissioner of State Revenue[2009] NSWSC 998, Phoenix Commercial Enterprises Pty Ltd v City of Canada Bay Council [2009]

NSWSC 17 & Cordon Investments Pty Ltd v Lesdor Properties Pty Ltd [2009] NSWSC 1370).75. It should not be overlooked that even before AON, the NSW Court of Appeal in a judgment byChief Justice Spigelman (with which Basten and Campbell JJA agreed) had held that JL must beunderstood as subject to the statutory duty imposed on courts by the rules of civil procedure: Dennis v

Australian Broadcasting Corporation [2008] NSWCA 37 (1 April 2009) at [28] – [29].END QUOTE

See also:http://www.austlii.edu.au/au/cases/cth/HCA/2009/27.htmlAon Risk Services Australia Limited v Australian National University [2009] HCA 27 (5 August 2

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