BAUSKIS v ADAMS

Court of Appeal (NSW)|2008-05-15|Before: Mason P, Hoeben J, Johnson J, Adams J

Appeal Outcome: Application dismissed by the High Court - 15 May 2008

CATCHWORDS: CONSTITUTIONAL LAW - Imperial, colonial, state relationships - imperial legislation - inherited law - adopted law - applicability of statute law - Habeas Corpus Act 1640 (Imp), s 6, s 8 - Imperial Acts Application Act 1969, s 6. - ADMINISTRATIVE LAW - Prerogative writs and orders - habeas corpus - appropriateness of remedy - whether habeas corpus or appeal appropriate - where writ sought on order made by superior court of general jurisdiction - PROCEDURE - Courts and judges generally - judges - immunity from proceedings - alleged improper denial of right to trial by jury - where claimant charged with contempt of court and served sentence of imprisonment - Habeas Corpus Act 1640 (Imp), s 4, s 6 - Imperial Acts Application Act 1969, s 43

Fingleton v The Queen (2005) 227 CLR 166 In the Matter of Bauskis [2006] NSWSC 907 In the Matter of Bauskis [2006] NSWSC 908 CASES CITED: Re Colina; Ex parte Torney (1999) 200 CLR 386 Witham v Holloway (1995) 183 CLR 525 Yeldham v Rajski (1989) 18 NSWLR 48 Young v Registrar, Court of Appeal (No 3) (1993) 32 NSWLR 262

PARTIES: John Peter BAUSKIS Michael Frederick ADAMS

COUNSEL: Claimant: In Person Opponent: C L Lonergan

SOLICITORS: Claimant: None Opponent: I V Knight, Crown Solicitor

LOWER COURT JURISDICTION: Supreme Court - Common Law Division

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40294/2007

John Peter BAUSKIS v Michael Frederick ADAMS JUDGMENT

1 THE COURT: This application for leave to appeal seeks to challenge the decision of Johnson J to dismiss proceedings on the grounds that the summons discloses no cause of action and that the claim for relief contained in it cannot succeed. 2 The opponent is a Judge of the Supreme Court of New South Wales who sentenced the claimant to 14 days imprisonment after having found him guilty of contempt in the face of the court. The claimant was present in court as a supporter of Mr John Wilson and Mr Eric Jury who were the plaintiffs in proceedings agitating the right to have certain civil proceedings tried by jury. The court was in uproar. Adams J gave certain directions that the claimant refused to obey. He again disobeyed when asked to comply with Sheriff's officers after his Honour's departure from bench. He swore at the officers concerned. These were the essential findings made by the judge when he entered a verdict of guilty on the charge of contempt (see In the Matter of Bauskis [2006] NSWSC 908). 3 There were sentencing proceedings that culminated in an order made on 5 September 2006 that the claimant be sentenced to 14 days imprisonment (see In the Matter of Bauskis [2006] NSWSC 907). 4 The claimant served the term of imprisonment. He did not exercise his right of appeal, seek to purge the contempt, apply for bail or apply for a writ of habeas corpus. 5 On 27 February 2007 he filed a summons in the Common Law Division against "Michael Frederick Adams" claiming:

RELIEF by a Jury adjudging that the defendant is guilty of denying the plaintiff his Right to Trial by Jury which is an offence under Section 43 of the NSW Imperial Acts Application Act 1969 No. 30.

RELIEF by a Jury sentence the defendant to imprisonment for five years. 6 The summons contains a "Statement of Charges/Indictment" in the following terms:

It is alleged that, on Friday 4 August 2006, Michael Frederick Adams, acting as a Judge of the Supreme Court of New South Wales, Common Law Division in a courtroom in the King's Street, denied me, John Peter Bauskis, my Right to Trial by Jury by saying, "You cannot have a trial by jury. There is no procedure for having a trial by jury for offences of this kind." in reply to my saying, "We request trial by jury". This is an offence under Section 43 of the NSW Imperial Acts Application Act 1969 No 30. which says, "Any person guilty of any offence under any Imperial enactment included in Part 1 of the Second Schedule for which no punishment is otherwise provided is liable to imprisonment for a term of not more than five years or to a fine not exceeding 20 penalty units, or to both such imprisonment and fine." Such Imperial enactments are titled "Constitutional Enactments" and include (1297) 25 Edward 1 (Magna Carta); (1627) 3 Charles 1 (the Petition of Right); (1640) 16 Charles 1 (The Habeas Corpus Act 1640); and (1688) 1 William and Mary (The Bill of Rights) which prescribe and guarantee a Freeman's Right to Trial by Jury. 7 Then follow Particulars that set out in detail the claimant's understanding and allegations relating to the contempt proceedings. The Particulars refer to the claimant's arrest, his refusal to plead, the charges of contempt in the face of the court that were proffered by the judge, the processes of the contempt proceedings, Adams J's rejection of a request for trial by jury and his Honour's refusal to recuse himself or rule that he lacked jurisdiction in the matter culminating in the conviction and sentence. 8 Johnson J upheld the opponent's motion for summary dismissal. He observed that the statement of charge in the summons related entirely to the exercise of judicial functions by Adams J in judicial proceedings before the Supreme Court. 9 Johnson J observed that there is High Court authority to the effect that trial on indictment for contempt of court is obsolete (Re Colina; Ex parte Torney (1999) 200 CLR 386 at 393-4, 428 and 433) and that there is no jury trial in contempt proceedings (Witham v Holloway (1995) 183 CLR 525 at 534). 10 Johnson J further held that the principle of judicial immunity in a context of a purported prosecution of a judge for contempt of court, as established in Yeldham v Rajski (1989) 18 NSWLR 48, could be called in aid in the present case. See also Fingleton v The Queen (2005) 227 CLR 166 at 185[36]-[41]. 11 Since therefore there was no offence in law disclosed in the summons the proceedings were found to be fundamentally flawed, there being no relevant offence under s43 of the Imperial Acts Application Act 1969 (the IAAA). In any event the principles of judicial immunity had clear application in the circumstances of the case. 12 In our view, the primary judge came to the correct conclusion by correct reasoning. This Court should refuse leave because any appeal would be hopeless. 13 Section 43 the IAAA provides: Any person guilty of any offence under any Imperial enactment included in Part 1 of the Second Schedule for which no punishment is otherwise provided is liable to imprisonment for a term of not more than five years or to a fine not exceeding 20 penalty units, or to both such imprisonment and fine.

14 Section 43 does not create any offence if none is created by the Imperial enactment in question. 15 At the hearing of the leave application the claimant, who was self-represented, referred the Court to 16 Charles 1, ch 10 (the Habeas Corpus Act 1640). He handed up what appeared to be an extract from that Act and he relied upon the statement in sVII of that extract that no "protection … privilege, injunction or order of restraint" could be invoked against a claim for treble damages arising under the Act. He submitted that sVII precluded a finding that the principle of judicial immunity could in some way negate what is implicit in s43 of the IAAA. The source of the extract was not disclosed. Nor was it shown that the Habeas Corpus Act 1640 said anything about trial by jury. 16 Enactments entitled the Habeas Corpus Act were passed in England in 1640, 1679 and 1816. 17 Limited portions of the three Acts were declared by Parliament to be in force in New South Wales by s6 of the IAAA. 18 The only part of the Habeas Corpus Act 1640 Act continuing in force is s6. 19 The Habeas Corpus Act 1640 abolished the Court of Star Chamber and specifically provided that anyone imprisoned by order of the King or Council should have habeas corpus and brought before the court without delay with the cause of imprisonment shown. Section 6 provided in effect that the judges were required to pronounce upon the legality of the detention within three days time and bail, discharge or remand the prisoner accordingly. Sections 4 and 5 stipulated that a judge or other officer who failed to act in compliance with the statute was subject to heavy fines and liable in damages to the party aggrieved (see generally Sharpe RJ, The Law of Habeas Corpus 2nd ed, Clarendon Press, Oxford, 1989, pp15-16). 20 The report of the New South Wales Law Reform Commission on the Application of Imperial Acts (LRC 4, 1967) states (at p59): Section 6 of this [1640] statute gives to any person restrained of his liberty or suffering imprisonment by command of the Sovereign or her Privy Council the right, upon demand or motion made in open court, to the immediate issue of a writ of habeas corpus directed to the gaoler or other person in whose custody he may be. Further provision is made as to the return of the writ and the examination and determination of the matter by the Court. ( Halsbury's Laws of England , 3rd edn, vol 11, p28). 21 This clearly identifies the provision continued in force by the IAAA. It corresponds with s6 as reprinted in the Statutes of the Realm, 1819, (reprinted 1963), Dawsons of Pall Mall, London, Vol 5 at p112. The side note is: Every person committed contrary to this Act shall have an Habeas Corpus for the ordinary Fees. 22 This is the Constitutional provision maintained in force by the IAAA. The balance of the sections in the Habeas Corpus Act 1640 were repealed by s8 of the IAAA. The section reaffirms the right to habeas corpus but it does not create an offence, let alone an offence capable of being committed by a judicial officer. 23 If one consults different collections of English statutes one encounters the same portion of the Habeas Corpus Act 1640 printed sometimes as s6 and at other times as s8. This may explain why sVIII in the document handed up by the claimant corresponds with s6 as referred to by the New South Wales Law Reform Commission. 24 The sVII in the extract handed up to the Court by the claimant does not appear in the Statutes of the Realm version of the Habeas Corpus Act 1640. Even more to the point, it is not the section declared by the IAAA to be in force in New South Wales. 25 The claimant's application referable to habeas corpus proceeds upon additional misapprehensions. There is nothing in the Particulars or the evidence to suggest that the writ of habeas corpus was ever sought, let alone sought from Adams J. 26 In any event, the writ does not lie in relation to an order made after a hearing by a superior court of general jurisdiction, like the Supreme Court. Such an order is binding and conclusive unless set aside or altered on appeal; it cannot be challenged in collateral proceedings such as an application for the writ of habeas corpus (Young v Registrar, Court of Appeal (No 3) (1993) 32 NSWLR 262 at 287). 27 The summons is dismissed with costs.

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Cases Cited (7)