MULDER v LOCAL COURT OF NSW & ORS

COUNSEL : Appellant - In person Respondents - R J Bromwich SOLICITORS : Appellant - In person Respondents - I V Knight - State Crown Solicitor CATCHWORDS : DECISION : Summons dismissed; Appeal dismissed as incompetent

• 1 - 1 MASON P: In September 1997, the claimant, Mr Mulder was convicted in the Local Court of various charges under Federal enactments. Two charges had been brought under the Social Security Act 1947, and three had been brought under the Social Security Act 1991. Each charge related to the obtaining of benefits to which it was contended the claimant was not entitled. 2 Our attention has been drawn in particular, to what were referred to as charges 4 and 5, charge 4 alleging that the claimant did knowingly obtain payment of an allowance under the Social Security Act 1947, namely family allowance, which was not payable at all; and charge 5, charging that he did knowingly obtain payment of a benefit under the Social Security Act 1991, namely family payment, which was not payable at all. 3 The claimant exercised the right of appeal given by section 122 of the Justices Act and what is commonly known as an all grounds appeal was heard in the District Court by Grogan DCJ. That appeal was dismissed on 16 December 1997. The sentence imposed in the Local Court was increased. It is apparent that the sentence has been served. We were informed that an appeal was filed in the Court of Criminal Appeal, but that appeal was dismissed as incompetent by that Court in February of last year. 4 The claimant has filed a number of documents in this Court. The cover sheet describes the application as one for a judicial review of the proceedings. The respondents or opponents that have been joined were Magistrate Falzon, who heard the matter at first instance, the District Court of New South Wales and the Director of Public Prosecutions (Cth). The first two named parties have properly submitted, and the Director of Public Prosecutions has appeared by counsel and contested the jurisdiction of the Court. 5 The concept of jurisdiction may not always be capable of clear explanation, and may not always be understood, but it is a central part of the doctrine of the rule of law under which we are all governed. This Court frequently sits to determine whether inferior Courts, or single Judges of the Supreme Court, exercised their jurisdiction correctly, or exceeded their jurisdiction. 6 This Court can only exercise such jurisdiction as by law is given to it. Accordingly, we must, if objection is taken, first determine that we have authority or jurisdiction to embark upon a particular inquiry, even though it is directed at a lower Court in the judicial hierarchy, before we can determine it. 7 The bundle of documents that have been filed include a document entitled Summons for a Judicial Review, in which orders for judicial review of the conviction in the Local Court and the District Court are sought, together with an order quashing the convictions, and directing a judgment and verdict of acquittal. It is also claimed that compensation and costs be awarded. 8 The papers also contain a Summons for leave to appeal in which it is sought leave to appeal from the decision of Grogan DCJ. There are also various documents, at least in draft form, including a notice of appeal, and a notice of motion seeking various orders, including orders in the nature of declaratory relief. There are also affidavits of Mr Mulder in which he deposes to certain facts, and seeks to explain the issues which he wishes to ventilate in these proceedings. 9 Mr Mulder has today helpfully referred us to the submissions at the back of the bundle, which contain a summary of the argument which he propounds, and identifies with clarity various questions that are said to be in controversy which he seeks to have determined on their merit, these being questions that, at least on the face, appear to relate to the prosecution. He also has included a summary of sixteen allegations made by the Prosecution in the Courts below, which allegations are said either to be false or to involve impossible contentions. 10 There is also a submission in which the broad grounds of attack upon the allegations and the decisions below are summarised. These include, as Mr Mulder explained this morning, reliance upon a doctrine of impossibility, in which it is contended that aspects of what I have described as charges 4 and 5 were incapable of being established because of defects in the evidence, or factual impossibility affecting the receipt of the benefits which Mr Mulder was alleged and convicted of having received. 11 The High Court of Australia has repeatedly reminded this and other Courts that there is no right of appeal in relation to judicial proceedings, unless statute confers it. See for a recent statement of this proposition CDJ v VAJ [1998] HCA 67 at paragraph 95. 12 In the present case, the claimant exercised the right of appeal given by the Justices Act in relation to the convictions in the Local Court. This was the right of all grounds appeal given by section 122 of that Act. That appeal was heard and determined by Grogan DCJ. Section 146 of the Justices Act provides that no conviction or order of a Justice or Justices, or adjudication upon appeal of the District Court, shall be removed by any order into the Supreme Court. That section has been discussed in a number of cases. Quite recently, in Roos v The Director of Public Prosecutions (1994) 34 NSWLR 254 at 262, Handley JA summarised the case law. His Honour explained that: For centuries, provisions which attempt to restrict the supervisory jurisdiction of a superior Court of general jurisdiction, such as this Court, had been given a strict and narrow construction. The decisions of this Court establish in accordance with this principle, that while section 146 does not take away the jurisdiction of this Court, to grant certiorari for absence or excessive jurisdiction, it does take away its jurisdiction to quash for error of law on the face of the record. The claimant therefore can only succeed if the Judge lacked jurisdiction or exceeded his jurisdiction in making the control order.

13 While those remarks were directed to the facts of that case, the authorities cited make it plain that section 146 does preclude not only an appeal to this Court, but judicial review, except judicial review that would relate to an excess of jurisdiction. The various matters which the claimant seeks to ventilate in these proceedings, assuming as I do, they relate to the prosecution, are all matters which arose in connection with, and in the course of the proceedings in the lower courts, and are all matters going to the merits or otherwise of the charges there laid. None of them suggest that the Local Court or the District Court lacked jurisdiction to hear and determine the charges laid by the Commonwealth Director of Public Prosecutions. At their highest, they seek to say that that prosecution, charges 4 and 5 in particular, should have failed on the merits. 14 It is clear that the claimant bears a continuing grievance about the convictions. That grievance cannot enliven a jurisdiction which is lacking. Mr Mulder said that this presented him with a dead end in the law, in that he could not appeal to this Court or the Court of Criminal Appeal, and the matters he wished to raise by way of judicial review were barred. That is in my view, the law, and while there may be political or administrative complaints that Mr Mulder can make, we can only administer the law and respond to claims having a basis in law. 15 The papers also indicate that the claimant seeks various forms of declaratory relief on particular issues, that those issues on analysis are clearly related to the charges. It is not in any way appropriate that a claim for declaratory relief could be brought in this Court as a means of undermining the convictions, or providing an alternative back-door way of bringing an appeal or judicial review proceedings which are not otherwise open. 16 For those reasons, I propose that each summons be dismissed, and that if the papers are to be interpreted as containing an appeal to this Court, that appeal should be dismissed as incompetent. 17 Mr Bromwich, do you make any application in relation to costs? I am not doing that to invite it, I am doing it simply to ask what your position is? 18 BROMWICH: My instructions are to seek costs. 19 MASON P: Mr Mulder, do you wish to say anything about the question of costs? 20 APPELLANT: I put part of my documents to file that I wish to object to cost for all three opponents, I don't know which cost they apply to, there is only one cost, because I've been, I believe, misinformed, misdirected, and I wasted one year of my time, I still got to have costs, yes, sought for this appeal. 21 MASON P: I would propose that the claimant appellant pay the costs of the third opponent, and the costs of the first two opponents, that as regards the first two opponents, as on a submitting basis only. 22 PRIESTLEY JA: I agree with my learned President has said. 23 POWELL JA: I also agree. 24 MASON P: The orders of the Court will be as indicated. 25 BROMWICH: Your Honour, just as a matter of house-keeping, I was handed by Mr Mulder this morning, a document which appears to have some sort of return date on 22 February. Just in terms of the Court's house-keeping, if I could just perhaps hand that up, it just needs to be clear that that doesn't remain somewhere in the system, because it will be of some confusion. 26 MASON P: This is not a document in the bundle? 27 BROMWICH: It is not something I'd seen before this morning. 28 APPELLANT: I just filed it today, sir, filed it this morning. 29 BROMWICH: But it ought not to survive today, so I just thought I should bring that to your Honour's attention. 30 MASON P: The claimant has also filed today, returnable today, a notice of motion taking various objections to material which had been filed by the third opponent. We have not found it necessary to refer to that material. Nevertheless, for the record, that notice of motion is also dismissed. The Court will now adjourn.

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