Applicant (Plaintiff) v Respondent (Defendant)

1 On 10 December 2015, a Magistrate, sitting at the Magistrates' Court in Wodonga, dealt with charges against Mr Sill that he had breached s 10 of the Domestic Animals Act 1994 by failing to register a dog. The Court fined Mr Sill without conviction $289.00 plus $114.80 statutory costs, with a stay until 7 April 2016. On 15 December 2015, Mr Sill lodged an appeal against that order in the County Court. On 15 May 2017, the County Court adjourned the appeal to a date to be fixed, stating that:

Given that the issue between the appellant [applicant] and the [City] relates to the constitutionality of the relevant legislation, the court is of the view that the matter should be adjourned as the court does not have the power to make such a determination. The court has informed Mr Sill to make an application to the Supreme Court to pursue the matter further.

2 Two months later, on 10 July 2017, Mr Sill filed a summons and a notice of appeal to this Court under s 272 of the Criminal Procedure Act 2009, appealing the Magistrate's order of 10 December 2015 and seeking leave to appeal out of time. The question of law proposed in the proposed notice of appeal was that:

Is [that] the restriction that the Magistrate could not deal with anything that related to the Constitution... all he had to rely on was an instrument called "Regularity" this puts a Defendant in a position of being Guilty and having to be the one to prove [innocence], The Magistrate had no choice but to [toe] the line of the Department of Public Prosecution and fine me accordingly.

3 The appeal was considerably out of time, having been filed some 19 months after the Magistrates' Court order, but appropriately, the City has accepted that Mr Sill has provided an explanation for the delay, in part being his appeal to the County Court and its outcome.

4 However, while Mr Sill has provided an explanation for the delay, in the exercise of the discretion conferred by s 272(8) of the Criminal Procedure Act 2009, an extension of time in which to appeal will not ordinarily be granted unless the grounds of appeal have some arguable merit because it would be pointless to extend time if they do not.[1] Mr Sill's proposed Notice of Appeal and his affidavits referred to many matters. But, I proceed to consider the arguments that Mr Sill put to me this morning.

5 Despite seeking to appeal to this Court, Mr Sill first challenged its authority, describing it as an unlawful administrative court or body, rather than a common law court in which he said he was entitled to have his case heard. He also argued that the Constitution Act 1975, which by s 75 refers to the Supreme Court of Victoria, was not a valid law because it had to be reserved for the Queen's assent and there was no proof that Her Majesty had signed it. In his County Court appeal, Mr Sill issued a subpoena to the Attorney-General seeking production of documents; including the copies of legislation bearing 'a wet ink signature' of the Governor, and 'a wet ink signature' with the Royal Seal of the Governor, and of Her Majesty, of various Acts of Parliament, including: the Constitution Act 1975; the Courts Administration Act 1975; the Local Government Act 1989; and the Domestic Animals Act 1994. He sought a similar document in respect of the Royal Style and Titles Act 1973 (Cth) bearing the 'wet ink signature' of the Governor-General and of Her Majesty the Queen. He also sought production of documents relating to the appointment of three Governors of Victoria bearing 'a wet ink signature' and the Royal Seal of Her Majesty. He received a response from the Victorian Government solicitor that:

We have made all reasonable enquiries and have formed the view that no such documents exist.

6 The answer to these attacks is that the Supreme Court of Victoria has existed since 1852. It was created by the Supreme Court Administration Act 1852[2] to be a Court of Record, which by s 10:

shall have cognizance of all civil pleas and shall have jurisdiction within the said Colony of Victoria and its dependencies to hear and determine all Actions whatsoever real personal and mixed as fully and amply to all intents and purposes as Her Majesty's Courts of Queen's Bench Common Pleas and Exchequer of Pleas at Westminster, or either of them lawfully have or hath in England.

That the said Court shall have jurisdiction to enquire of hear and determine within the said Colony of Victoria and its dependencies all Treasons Felonies Misdemeanours and offences of what nature or kind soever and wheresoever committed which can or may be enquired of heard and determined in Her Majesty's Court of Queen's Bench at Westminster or in the Central Criminal Court in London.

8 The Constitution Act 1975, in so far as it refers to the Supreme Court of Victoria, did not create this Court, as that occurred in 1852 more than 160 years ago.

9 In any event, Hayne J in the High Court of Australia in Rutledge v State of Victoria[3] held that the Constitution Act 1975 was properly assented to. So did Byrne J in 2005 in Smart v City of Greater Geelong[4] where a challenge was made to a parking infringement notice.

10 In addition, section 143(1)(a) of the Evidence Act 2008, to which I referred Mr Sill, provides that:

143 Matters of law

(1) Proof is not required about the provisions and coming into operation (in whole or in part) of -

(a) an Act, an Imperial Act in force in Australia, a Commonwealth Act, an Act of another State or an Act or Ordinance of a Territory

11 That section was enacted to prevent arguments like Mr Sill's being made.[5]

12 All of these points indicate that Mr Sill has failed to establish that the Supreme Court of Victoria, or the Constitution Act 1975, or the other legislation to which he referred, are invalid.

13 Mr Sill then argued that Judges of this Court had not taken valid or appropriate oaths of office or allegiance. He referred to the Royal Style and Titles Act 1973 (Cth) but he did not raise any real argument that the Oaths of Office or Allegiance taken by Judges of this Court are invalid or that they have not been validly appointed as Judges of the Court.

14 Mr Sill attempted to draw some significance, to what end is unclear, from the failure to produce to him the original of the Courts Administration Act 1975, but that neither bears on this Court's authority to hear and determine his case, nor assists his arguments.

15 Mr Sill also challenged the validity of the appointment of recent Governors of Victoria, including the current. The connection between that contention and his proposed appeal grounds was entirely unclear. In any event, the copy documents that are produced in the court book include the commission of the current Governor as the Governor of Victoria, which was given at Her Majesty's Court at St James's on 11 February 2015 by Her Majesty's command. In those circumstances, I see no basis for doubting the validity of the appointment of the Governor.

16 Mr Sill contested the accuracy of the description of the Governor as a Viceroy, but whether or not that is an apt description of the office, it has no bearing on the validity of the appointment of the present Governor or previous Governors.

17 Mr Sill referred to various State Government statements apparently published on the internet about the process by which the Victorian Constitution could be amended. Those statements do not have any status in law, but in any event, unlike the Commonwealth Constitution, amendments to the Victorian Constitution do not have to be approved by a referendum of the people of Victoria.

18 Mr Sill then argued that the Local Government Act 1989 was unlawful and pointed to the failure of a Commonwealth referendum in 1988 to give recognition to local government in the Commonwealth Constitution. There was no substance in this argument. Incorporated cities having existed in Victoria at least since the time Melbourne became a city in 1847. No reason was advanced to doubt the validity of the creation of the City of Wodonga.

19 Mr Sill also contended that the separation of powers had been breached because of statements said to have been made by Judges about actions by the Director of Public Prosecutions, but those vague arguments do not mean that this Court lacks authority to decide this proceeding.

20 Mr Sill said that he was entitled under United Nations conventions[6] to be treated as a human and not to be treated as a corporate body. I entirely accept that he and every individual who comes into the Court is entitled to be treated as a human and with dignity and the Court has endeavoured to act in that manner today.

21 Mr Sill argued that the City of Wodonga had no authority to take him to court and that it had no authority over him. But the Domestic Animals Act 1994 is an Act of the Victorian Parliament. Its purpose is clear from its opening words:

To promote animal welfare, the responsible ownership of dogs and cats and the protection of the environment by providing for -

(b) a registration and identification scheme for dogs and cats which recognises and promotes responsible ownership

The owner of a dog or cat must apply to register that dog or cat with the Council of the municipal district in which the dog or cat is kept, if the animal is over three months old.

23 That Act that has been passed for the good of the community and to protect the animals themselves. Indeed, legislation regulating domestic animals has existed in this State, at least since the Dog Act of the then Colony of Victoria, of 1864.

24 So for all these reasons, the grounds put forward do not, in my view, provide an arguable basis as to the merits of a possible appeal. There is therefore no reason for extending time in which leave may be sought to appeal and so the proceeding will be dismissed.

25 The City sought its costs of the proceeding and Mr Sill opposed such an order being made, submitting that it was inappropriate to make such an order in a criminal proceeding. In Kartawidjaja v Rowe (Costs), T Forrest J made the following remarks with respect to costs in the matter of an appeal brought by way of s 272 of the Criminal Procedure Act 2009:

Section 408 of the Act provides that the costs of, and incidental to, an appeal under s 272 are in the discretion of the Supreme Court, and the Supreme Court has full power to determine by whom and to what extent the costs are to be paid. The discretion is similar to the Court's broad, unfettered discretion in the awarding of costs in civil proceedings, pursuant to s 24 of the Supreme Court Act 1986, and it is my view that the principles that guide the exercise of that discretion are largely transferable.[7]

26 In view of the lack of merits of Mr Sill's case, I do consider it appropriate that he should pay the City's costs of the proceeding on a standard basis.

27 The summons issued on 10 July 2017 and the proceeding are dismissed.

[1] By s 272(7) an appeal commenced after the 28 day period is deemed to be an application for leave to appeal. By s 272(8), the Court may grant leave if it is of the opinion that the failure to commence the appeal within time was due to exceptional circumstances and is satisfied that the case of any other party to the appeal would not be materially prejudiced by reason of the delay.

[2] The long title of which was An Act to Make Provision for the Better Administration of Justice in the Colony of Victoria.

[3] Rutledge v State of Victoria (2013) 251 CLR 457.

[4] [2005] VSC 71.

[5] See J D Heydon, Cross on Evidence (LexisNexis Butterworths, 10th ed, 2015) 187, [3090].

[6] Specifically, part 6 of the United Nations Universal Declaration of Human Rights which states that 'everyone has the right to recognition everywhere as a person before the law'.

[7] Kartawidjaja v Rowe (Costs) [2016] VSC 234, [6] (Citations omitted).