PETER OLNEY CONSTITUTIONAL LAW AND UPDATE 13122013

Constitution and Local Government .. “UPDATE” – 13 December 2013. Rule of Law to govern must be contrasted against the “rule” of tyrants and dictators! So, what (how many?) federal and State statute laws of “Parliament” are unlawful from a constitutional perspective – thereby causing Parliamentarians to be seen as the dictators? Remember, the Framers of the Constitution in the 1890’s were clear – they held that upon Federation NO Parliament will be ‘sovereign’ over the people. With the constitutions of the States subject to the Commonwealth Constitution (at S 106) then where are all the referendum/s to change both federal and State constitutional settings since then? Standing of the courts. State courts are not usually respectful of the Commonwealth Constitution. Why not? Well, it has not suited the State to do so! They get away with that because not enough people can challenge that in the High Court (it takes a wad of money!), but, also, whilst the High Court refuses to allow specific challenges through its gates to be “heard” (to maintain constitutional governance) we all have yet another problem. The issue now centres on the standing and/or capacity of the courts to do what is right by the people, and by the law of the land, for courts to not be dictated to by “government”. That leads me to a likely problem for any Class Action in the biased courts !!! Consider the comments and case extracts below in relation to court and tribunal matters: COAT CONFERENCE 13 SEPTEMBER 2013 INTERCULTURAL COMMUNICATION AND TRIBUNAL CRAFT – PANEL DICUSSION. The Hon Jennifer Boland AM Chair, NSW Nursing and Midwifery Tribunal said, using a UK quote: “It should never be forgotten that tribunals exist for users, and not the other way round. No matter how good tribunals may be, they do not fulfill their function unless they are accessible by the people who want to use them, and unless the users receive the help they need to prepare and present their cases. (Carnwath LJ Senior President of Tribunals [UK], Commonwealth Law Conference 2001 “echoing Leggatt L” (in his report “Tribunals for Users – One System One Service”) The right of access to a court or tribunal. It is important to start with a basic premise. That is, it is a fundamental tenet of our common law system that a citizen has (subject to statutory provisions which may declare a litigant to be vexatious) a right of access to a court or tribunal. (see Coco v R (1994) 179 CLR 427 at 446; Re Attorney-General (Cth); Ex parte Skyring (1996) 70 ALJR 321 at 323). “The court must never shy away from the determination of a point sought to be argued simply because it may have major ramifications” Further, it is most important to consider the High Court has made it clear that although a Self Represented Litigant’s [SRL] case may not be clearly articulated, it is the duty of the judicial officer to ascertain the true nature of the case of the SRL. This is explained by the High Court in Neil v Nott (1994)121 ALR 148 as follows: A frequent consequence of self-representation is that the court must assume the burden of endeavouring to ascertain the rights of the parties which are obfuscated (confused, or in the way of their efforts) by their own advocacy. RVI developing “principles for council conduct”. This year the RVI has been working at the question of improving council conduct and a set of principles has been developed. There will be more about this in later ‘Updates’. RVI working to get insurance matters sorted out. Councils have more recently required public liability insurance if using public venues. On top of that the new Incorporated Association Act seems to imply there is need for certain liability insurance to cover office bearers. NOTE: This is not compulsory!!! RVI is looking to see what might be the best way to balance these issues with groups of people in their respective localities, and to offer an overall package to which any sub-group of RVI can be part of. Please discuss these matters with me, or Jack Davis. Peter’s unpaid rates! Whitehorse City Council is still out to “get Olney’s rates”, despite other matters afoot. The saga continues with “unpaid rates” as it is now apparent the Council has acted with “abuse of process” to cause a default judgment against Olney without holding to the point an unresolved dispute needs to be first settled. This is exacabated by the court not giving respect to there validity or invalidity of certain statutes – thereby precluding the M/court from jurisdiction. Registrar (Allen) has been requested in writing to withdraw and cancel the two “Orders”. If he does not soon then “Olney” will take the matter to the Attorney-General .. for system corruption is then clearly involved. There is another issue in that the federal constitutional issues placed on the court table are only able to be handled by a suitable Magistrate in accord with S 39 of the Judiciary Act 1903. The Principal Registrar has totally avoided my request for documentation relating to the authority Magistrate Dunn had in the court on the day to meet the law requirement. So, where does that take us in relation to S 34 of the Crimes Act 1914 (Cth) when error of this nature occurs, and the Magistrate is left open to a charge against him? Happy Christmas, and have a great New Year. Ok, OK, it is that time of the year again. I am more than pleased to wish you all a very Happy Christmas as you consider the ‘reason for the season’, with God’s love shared. As for the New Year … it has its challenges to cope with, and, I trust His strength will be in your heart as you attempt to manage through it all. Web sites, etc. Google www.realaussienews.com/site3 for the latest from me. Otherwise, look up Ratepayers Victoria web site for a bit more from there too. I look forward to keeping you "in the loop". Meantime, keep in touch with me. Contact: Peter Olney .. peterjil@iinet.net.au Ph: (03) 9874 0784. RVI sub-committee Chair .. “Constitution & Local Government”. If you do not wish to receive updates please reply with 'unsubscribe' in the subject line. A very important ‘rights’ issue for us - the community of Australians. Lawless Association Disestablishment Bill 2013 (Qld) S 3. Definitions. In this Act— association means any of the following— (a) a corporation; (b) an unincorporated association; (c) a club or league; (d) any other group of 3 or more persons by whatever name called, whether associated formally or informally and whether the group is legal or illegal. Mark Aldridge Community advocate & Independent Federal candidate for Wakefield SA writes: WHEN THE GOVERNMENT & POLICE SERVICES ATTACK THE RIGHTS OF ALL AUSTRALIANS, IT IS THEY WHO OUGHT TO BE DRAGGED BEFORE THE COURTS Latest attempts to tackle crime in Australia, are in themselves being exposed as a crime against justice. Laws of association, laws that dictate where a person can work, what they can own, what they can wear, where they can go, and how a judge must act, are unacceptable in any supposed democratic nation. Mark also said ”Bike riders in QLD that have even joined in on charity rides are now finding their names on the list of associates, so at every level, the actions of the government and the police are worthy of criminal charges. “From the equality of rights springs identity of our highest interests; you cannot subvert your neighbours’ interests without striking a dangerous blow at your own.” Carl Schurtz The high court has already dismissed as invalid previous attempts by state governments to introduce similar legislation, but his case goes further, because in essence the police themselves are being asked to partake in criminal actions.” “Bad law will never replace lazy policing, we have laws in this country to address criminal actions, and we don’t need laws that entrap the innocent. If the police cannot prove guilt by way of a person’s actions, then that person is innocent until proven otherwise.” I hope you appreciate the above as a parting word for the year 2013, and, do something about it too. Regards, Peter.

MAKING SERIOUS WRONGDOING WITHOUT A PROPER FOUNDATION - CONSEQUENCES

The Australian Professional Liability Blog The civil and disciplinary consequences of making an allegation of serious wrongdoing without a proper foundation Posted: 06 Jan 2014 10:24 PM PST Friends, I need your help, again. Certain promises I made to write about and present on the civil and disciplinary consequences of making allegations of serious wrongdoing (e.g. fraud) without a proper foundation are coming home to roost. I’m looking at: disciplinary sanction of lawyers via Legal Services Commissioner, etc. prosecution; personal costs orders against lawyers; costs consequences for parties (common law in relation to exercise of the unfettered discretion re solicitor-client rather than party-party costs and displacing the presumption that costs follow the event where allegations of fraud are not made out, and Civil Procedure Act 2010 (Vic.)); and what is a ‘proper foundation’? My miserable situation in this season of sun, frivolity and child-minding is a need to work out what these consequences are so that I can provide learned disquisition. In the process I have learnt something about Dr Peter Clyne, the protagonist of Clyne v NSW Bar Association (1960) 104 CLR 186; [1960] HCA 40. What a wonderful addition to my knowledge of the rogues’ gallery of which I consider myself a connoisseur; I even bought his autobiography on eBay today but his ‘How Not to Pay Your Debts’ is still available. The Hikers described his conduct during the course of an ‘orgy of litigation’ between his client, the husband, and the wife as ‘irresponsible’, ‘mischievous’, ‘objectionable’, indefensible, ‘inexcusable’, and, rather wonderfully I think, ‘monstrous’. A unanimous Dixon Court confirmed the good doctor’s striking off. You can read about his life afterwards, including as a Magistrate in Zambia, here, and possibly less reliably, here. So here is a general call-out for good authorities on these questions, especially decisions which really assist in understanding what a ‘proper factual foundation’ is, since many authorities relate to allegations which are so obviously unsustainable that they do not really illuminate where the line lies between the merely poor and the truly discreditable argument (Clyne), or proceed on the basis of admissions (AM v Legal Practitioners Disciplinary Authority [2010] NTSC 02), or are fantastically complicated (the case just referred to and Victorian Bar Inc v CEM QC [2006] VCAT 1417). I would also be very grateful for any detailed commentaries on this aspect of the conduct rules for solicitors and barristers alike, and Australian decisions in relation to costs (since many of those cited by Dal Pont are Canadian or English).

HOW TO DO A WINNING WRIT OF MANDAMUS

How to do a Winning Writ of Mandamus? Inbox x chas x 7 Jan (5 days ago) to bcc: me For those interested in the use of Mandamus to control absolute corruption in the Australian Judiciary? Before heading off to the UN as here http://judicialcorruptionaustralia.tk/ ================= http://www.princeton.edu/~achaney/tmve/wiki100k/docs/Mandamus.html http://www.appealsparalegal.com/writsofmandamus.htm WE WRITE WINNING MANDAMUS PETITIONS! OUR MANDAMUS STRATEGY - SEE BELOW A. Abuse of Discretion 1. The standard A trial court abuses its discretion if it reaches a decision so arbitrary and unreasonable as to amount to a clear and prejudicial error of law. The court determines whether the trial court’s error is so arbitrary, unreasonable, or based on so gross and prejudicial an error of law as to establish abuse of discretion. A mere error in judgment is not an abuse of discretion. 2. No disputed facts When the trial court’s decision rests on the resolution of factual issues or matters committed to the court’s discretion, the relator must establish that the trial court could reasonably have reached only one decision. If a trial court has held an evidentiary hearing and has resolved disputed issues of fact, an appellate court may not substitute its judgment on the facts for the judgment of the trial court. 3. Error of law As to questions of law, however, the trial court is given little deference in matters involving the determination of legal principles. If a trial court does not analyze or apply the law correctly, it commits an abuse of discretion. B. No Adequate Remedy at Law A writ of mandamus will issue only to correct a clear abuse of discretion or the violation of a duty imposed by law when there is no other adequate remedy by law. Appellate courts may not issue mandamus relief when the law provides another plain, adequate, and complete remedy. The requirement that a person seeking mandamus relief establish the lack of an adequate appellate remedy is a fundamental tenet of mandamus relief. An appellate remedy is not inadequate merely because it may involve more expense or delay than obtaining mandamus relief. Because mandamus is an extraordinary remedy, appellate courts may not issue mandamus to supervise or correct a trial court's incidental rulings when there is an adequate remedy at law, such as a normal appeal. C. Mandamus Jurisdiction All state appellate courts derive their jurisdiction from their state constitution and statutes. Each state's highest court may issue all writs of mandamus against a judge of a lower trial or appellate court. It will not issue mandamus relief against another person. Each state's lower appellate courts may issue writs of mandamus against an appellate court or trial court judge. Other than the persons named, the highest court may not mandamus other persons except to enforce its jurisdiction. D. Venue Generally, a person seeking a writ of mandamus must first file in the appellate court rather than the trial court. Some mandamus proceedings, of course, can only be filed in the highest court, e.g., a petition against a state executive officer. When the several courts have concurrent jurisdiction, there must generally be a compelling reason for first filing in the state's highest court. E. When to File An aggrieved party should file a writ of mandamus as soon as possible after an adverse ruling. Because Mandamus is based on equitable principles, lack of diligence can be fatal. F. The Mandamus Petition 1. The Style and Parties The petition must be captioned In re [name of relator] the party seeking the relief is the relator. The person against whom relief is sought is the respondent. A person whose interest would be directly affected by the relief sought is a real party in interest. 2. Form and Contents of Petition All factual statements in the petition must be verified by affidavit made on personal knowledge by an affiant competent to testify to the matters stated. The petition must, under appropriate headings and in the following order, contain: a. Identity of Parties and Counsel List all pro se parties and the names and addresses of all counsel. Listing phone numbers, fax numbers, and e-mail addresses of counsel is a great help to the court, especially if the proceeding is an emergency. Counsel for the real party in interest customarily represents the respondent judge. b. Table of Contents The petition must contain a table of contents with references to the pages of the petition. The table of contents must indicate the subject matter of each issue or point, or group of issues or points. c. Index of Authorities The petition must include an index of authorities arranged alphabetically and indicating the pages of the petition where the authorities are cited. d. Statement of the Case The statement of the case should not exceed one page and should not discuss the facts. . The statement must contain the following information: (1) a concise description of the nature of the underlying proceeding; (2) information about the respondent, the name of the judge, the court in which the judge is sitting, and the county in which the court is located; and (3) a concise description of the respondent’s action from which the relator seeks relief. Example: The following format is an especially succinct method for statement of the case: Underlying Proceeding Discovery dispute in a personal injury and wrongful death case filed by relator, Polly Plaintiff, against the real party in interest, Mean Old Corporation. Respondent The Honorable Jane Jones, Judge. e. Statement of Jurisdiction State, without argument, the basis of the court’s jurisdiction. f. Issues Presented The petition must state concisely all issues or points presented for relief. The statement of an issue or point will be treated as covering every subsidiary question that is fairly included. EXAMPLE: Did respondent abuse his discretion by reinstating a case more than 30 days after a judgment of dismissal based on an unverified motion to reinstate? g. Statement of Facts The petition must state concisely and without argument the facts pertinent to the issues or points presented. The statement must be supported by references to the appendix or the record. Remember, the facts should not be disputed. h. Argument The petition must contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the appendix or record. Demonstrate why mandamus relief is proper. Show that respondent abused its discretion and there is no adequate remedy at law. If the complaint is about the failure to act, show that there is a legal duty to perform a non-discretionary act, there was a demand for performance, and a refusal to act. i. Prayer The petition must contain a short conclusion that clearly states the nature of the relief sought. j. Appendix The appendix must contain a certified or sworn copy of any order upon which relief is requested, or any other document showing the matter under complaint. The appendix must also contain, unless voluminous or impracticable, the text of any rule, regulation, ordinance, statute, constitutional provision or other law (excluding case law) on which the argument is based. The appendix may also contain copies or excerpts of relevant court opinion, documents on which the suit was based, pleadings and similar materials. The appendix should not contain any evidence that is not necessary for a decision. The judges may carry the petition with them. Try not to make the appendix too large. In most cases, the petition and appendix can be bound together with appropriate tabs for the documents in the appendix. K.The Record Relator must file with the petition a certified or sworn copy of every document that is material to the relator’s claim for relief and that was filed in any underlying proceeding and a properly authenticated transcript of any relevant testimony from any underlying proceeding, including exhibits offered in evidence or a statement that no testimony was adduced in connection with the matter. In the absence of the transcript of an evidentiary hearing, the appellate court will assume that the evidence supported the ruling of the trial court. l. Response A response is not mandatory. The court may not grant relief, other than temporary relief, unless a response has been requested or received by the court. The response need not contain the statement of the case, the statement of the issues presented, or a statement of the facts, unless the responding party is dissatisfied with that portion of the petition. If the petition does not properly state a basis for jurisdiction, concisely note the lack of jurisdiction. The argument is limited to the issues or points presented in the petition, although the responding party may rephrase the issues or points and the appendix need not contain any item included in the relator’s appendix. m. Relator’s Reply to Response The relator may file a reply to a matter in the response. The court, however, may consider and decide the case before a reply brief is filed. G. ACTION ON PETITION The court may deny the petition with or without a response. The court, however, will not grant mandamus relief unless a response has been filed or request. The court may request full briefing. The court may grant relief without oral argument. When denying relief, the court is not required to issue an opinion. When granting relief, however, the court must issue an opinion. H. MOTION FOR REHEARING Any party may file a motion for rehearing within a short period of time after the final order of the appellate court. No response need be filed unless the court requests one. The court will not grant a motion for rehearing unless a response has been requested or filed. I. TEMPORARY RELIEF The relator may file a motion to stay any underlying proceedings or for any other temporary relief pending the court’s action on the petition. The relator must certify to the court that if has notified or made a diligent effort to notify all parties by expedited means (such as phone or fax) that a motion for temporary relief has been or will be filed. A bond may be required to protect the parties affected by the temporary relief. The court may grant temporary relief on its own motion. Unless vacated or modified, an order granting temporary relief is effective until the case is finally decided. Any party may move to reconsider the grant of temporary relief. J. SANCTIONS On motion of any party or on its own initiative, the court may – after notice and a reasonable opportunity to respond – impose sanctions on a party or attorney who is not acting in good faith as indicated by any of the following: (a) filing a petition that is clearly groundless; (b) bringing the petition only for delay of an underlying proceeding; (c) grossly misstating or omitting an obviously important and material fact in the petition or response; or (d) filing an appendix or record that is clearly misleading because of the omission of obviously important and material evidence or documents. K. OPTIONS FOR THE LOSER Although there is no right to appeal a mandamus ruling by an appellate court, most state laws allow further review. An appellate court abuses its discretion when it acts in excess of its writ power by granting mandamus relief when the trial court has not committed an abuse of discretion. If the appellate court grants mandamus, the respondent may then challenge its ruling by filing a petition for writ of mandamus against the appellate court of appeals in the state's highest court. If the appellate court declines to issue a mandamus, the court has not abused its discretion. The relator may then file a petition for writ of mandamus against the original respondent in the state's highest court. L. CONCLUSION Before thinking mandamus, consider the expenses and the impact of the filing on future proceedings before the respondent. If you then decide to take the risk against the difficult odds, remember that success with a petition for mandamus requires strict adherence to the facts and to the procedural requirements.