Sill v City of Wodonga [2018] VSCA 195

PRACTICE AND PROCEDURE - Application for leave to appeal out of time - Application refused by judicial registrar - Review of judicial registrar's decision - Proposed appeal having no real prospect of success - Application for leave to appeal totally without merit - Judicial registrar correct in refusing extension of time - Proceeding futile - Supreme Court (General Civil Procedure) Rules 2015, rr 64.14, 64.15 and 64.42 - Supreme Court Act 1986, ss 14C and 14D.

1 This is a case about a disputed $22.50 dog licence fee. To use the words of the applicant in his written case in his application for leave to appeal (out of time) to this Court from an order of the Trial Division dismissing his application for leave to appeal (out of time) from orders made in the Magistrates' Court:

This case started with a notice from my Local Government Office in Wodonga, the notice said I had to pay for a $22.50 annual dog licence by 10 April or I will be fined $389. I sent a letter back on 10 April 2014 saying I will pay the registration fee if they can show me the Assented Legislation requiring the payment. I received a letter back on 28 May quoting the 1994 Domestic Animal Act with no Assent, after a few letters back and forth I received an infringement notice. This offer has always and is still open.

2 From these modest beginnings, the issues in dispute between the parties multiplied. In the course of his journey to this Court, the applicant has raised issues concerning the constitutionality of various State and Commonwealth Acts, the validity of the appointments of certain state governors (including the present governor), allegations of treason and assertions that various courts are either unlawful, unconstitutional, illegal or star chambers.

3 Following the initial exchange of correspondence between the parties, the respondent issued the applicant with an infringement notice alleging a breach of s 10 of the Domestic Animals Act 1994 arising from the applicant's failure to register his dog. The infringement notice was not paid and ultimately the matter proceeded to a contested hearing in the Magistrates' Court on 10 December 2015. The charge was found to be proved and the applicant, without conviction, was fined $289 and ordered to pay $114.80 in statutory costs. A stay was granted until 7 April 2016.

4 Initially, the applicant appealed to the County Court. On 15 May 2017, however, the County Court adjourned the appeal to a date to be fixed, stating that:

Given that the issue between [the applicant] and [the respondent] 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 [the applicant] to make an application to the Supreme Court to pursue the matter further.

5 Two months later, on 10 July 2017, the applicant filed a summons and a notice of appeal to the Supreme 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. On 27 October 2017, that application came on for hearing in the Trial Division before Ginnane J. At the commencement of the hearing, the judge explained carefully to the applicant that there were two matters that were relevant in his application for an extension of time: the applicant's explanation for the delay (approximately 18 months), and whether there was a sufficient argument or arguments on the merits of the proposed appeal so as to justify an extension of time.

6 After his Honour's introductory explanation, the applicant commenced his argument before Ginnane J by saying:

The first thing I'm going to do is challenge the court.

7 The applicant developed this submission by saying that the Court was an administrative court and he could only be judged in a common law court. The applicant described an administrative court as one that was both unlawful and unconstitutional.[1] I interpolate that at a later stage in his submissions, the applicant asserted that the Court was a 'Commercial Court'. It is, however, unclear whether the applicant relied upon this assertion as a further ground for contending that the Court was unlawful and/or unconstitutional.[2]

8 During the hearing, the judge very patiently sought to extract from the applicant the points the applicant wished to make in support of his application and the merits of his proposed appeal. Reference was made by the applicant to, amongst other things, the Universal Declaration of Human Rights, the Commonwealth Constitution and the King James Bible. Ultimately, the judge teased out and then identified six points advanced by the applicant as follows:

(1) The Court is an administrative court, and is therefore unlawful.

(2) The Constitution Act 1975 (Vic) is not a valid Act. The applicant asserted that this Act has never been validly signed or assented to. The Act was also said to be invalid because it was brought into existence without a referendum.

(3) The Royal Style and Titles Act 1973 (Cth) is invalid. In support of this submission, the applicant contended that the Queen of Australia[3] does not exist. This Act was described as a treasonous Act, having no basis and also one requiring a referendum before it could have any validity.

(4) Relevant governors of the State of Victoria had not been lawfully appointed. As to the present governor, the applicant submitted:

I don't know if the impact of that means anything to you, but it means a lot to me, that she [the present governor] is acting in a royal position without authority and she's not taking orders or recommendations from our Sovereign. So if she's been thrown out of this country by so-called legislation, we have to go looking for the people who institute all this treasonous - because it is treason. It's no good beating about the bush, if you try to get rid of the monarch, it's a treason against the people and treason against the monarch.

(5) Letters patent are unlawful:

because they didn't come from the Queen, they came from Bob Hawke, he rewrote it and he's got no right to do that.

(6) The applicant is a human being, not an entity.

9 In the course of argument, the judge attempted to unravel some of the applicant's more opaque submissions. When confronted with legislation which suggested there was no merit in one of his arguments (for example, s 143(1)(a) of the Evidence Act 2008),[4] the applicant's response was that the legislation had not been validly assented to, was unlawful or was treasonous.

10 Similarly, when confronted with authority that was at least arguably inconsistent with the maintenance of one of the applicant's argument, the applicant sought to contend that the relevant decision was unlawful, or the court was unconstitutional or otherwise lacked validity. So, for example, when the judge raised with the applicant the decision of Hayne J in Rutledge v The State of Victoria[5] as authority for the proposition that the Bill for the Constitution Act 1975 was assented to in accordance with law (and the Act was therefore valid), the applicant said:

With Rutledge, it was a single court judge, therefore it was a star chamber. ...

A High Court judge, if he says it, doesn't necessarily have to be correct because we have also got the evidence we have got under the Constitution may not have been put to him because if it was, he couldn't make that presumption and obviously he rode over the top of that, made the decision, and as I said, in an unlawful court, it doesn't matter if it's the High Court or a Magistrates' Court, if it's a single court judge, under the Magna Carta, the 1688 Bill of Rights, all says that a single court judge or a star chamber is unlawful.

11 During the hearing, the applicant submitted to the judge that the City of Wodonga did not exist and that the enacting of Local Government Act 1989 was unlawful. His argument was that the failed 1988 referendum on constitutional recognition of local government resulted in local government being unlawful.[6] The applicant developed this submission by saying that the failed referendum was binding on the Victorian Parliament, and the enactment of the Local Government Act 1989 was therefore treasonous.

12 During the course of his argument before the judge, the applicant occasionally diverted himself to the proposition that the judge (and more generally the judges of the Supreme Court of Victoria) had not taken valid oaths of allegiance. This proposition was advanced by reference to the so-called non-existence of the Queen of Australia. I should for completeness, however, interpolate here that there is no statutory provision requiring Supreme Court judges to take an oath of allegiance. As the learned author of Taylor, The Constitution of Victoria (2006) described the position as follows:

On appointment, Judges by tradition take the oath (or make the affirmation) of allegiance set out in Schedule 2 of the Constitution Act 1975; the traditional oath (or affirmation) of office as slightly modified by s 88AA and Schedule 3; and also, in the case of Supreme Court Judges, an oath or affirmation modelled on that in s 6D(b) of that Act[7] conditional upon their being called on to be Acting or Deputy Governor. There appears, however, to be no provision for judicial oaths of any type in any Victorian legislation except in relation to the Magistrates' Court.[8] This position has emerged because the judges were originally covered by the oath taking obligation set out in Act No 45 (1858) s 2, but in the course of its long travails through Victorian statutory history that provision has lost the reference to the judges it originally had and now, as s 88AA, covers only employees in the Public Service, which the Judges definitely are not.[9]

13 At the conclusion of the argument, the judge reserved his decision for a short period. Later that afternoon, the judge made orders dismissing the applicant's summons and proceeding.[10] The judge accepted that the applicant had explained the delay in his appeal.[11] The judge, however, dealt with the applicant's substantive arguments and concluded that the applicant's contentions did not provide any arguable basis upon which an appeal might be allowed.[12]

14 In concluding that the applicant's contentions did not provide any arguable basis upon which an appeal might be allowed, the judge referred to Rutledge and a decision of Byrne J in Smart v City of Greater Geelong,[13] as authority for the proposition that the Constitution Act 1975 was properly assented to.[14] His Honour also said that s 143(1)(a) of the Evidence Act 2008 was enacted to prevent arguments like those being made by the applicant.[15] The judge then went on to conclude that these matters indicated that the applicant had failed to establish that the Supreme Court of Victoria, or the Constitution Act 1975, or the other legislation to which the applicant referred, was invalid.[16]

15 As to the applicant's argument that the Local Government Act 1989 was unlawful and that the City of Wodonga did not exist, the judge observed that the argument was without merit, incorporated cities having existed in Victoria at least since the time Melbourne became a city in 1847.[17]

16 On 8 December 2017, the applicant applied for an extension of time to file an application for leave to appeal against the orders made by Ginnane J. In support of his application, the applicant filed an application for leave to appeal, a written case, an application other than leave to appeal and a summary for the Court of Appeal. The application for leave to appeal contains a compendious rolled up ground of appeal. The ground starts with a recitation of the history of the case and some of the applicant's submissions. Part of the ground provides:

I was invited [in the hearing before Ginnane J] to put my case on my application for a common law court, I cherry picked my case by mentioning only the parts that challenge the validity of the court, I deliberately withheld the out of time argument until the judge could announce a decision on the court's validity to hear this case. He adjourned for lunch saying he will announce his decision I was expecting the judge to come back and give a ruling on the validity of the court dealing with this case, but when he came back he ruled on the out of time element. I had no opportunity to put my case regarding out of time and my defence regarding my dog fine and criminal status. In his ruling which came from the Common Law Division of the Supreme Court (p 59) saying I breached s 10 of the Domestic Animal Act 1994. As this Act doesn't exist see page 14 'non-existence of documents' his Hon went on to say that legislation was in place in 1864 under the Dog Act page 64 section 21-24 I was not charged under the Dog Act 1864 I was charged under 1994 Domestic Animal Act, the Attorney-General's letter says it doesn't exist. The judge introduced me to section 44[1] [sic, s 143(1)] of the Evidence Act 2008 this is the most unconstitutional piece of legislation I have seen, 'proof is not required' page 62 section 10 and section 11 'that section was enacted to prevent argument like Mr Sills being made' that statement is truly breathtaking.

17 The reference in the applicant's ground of appeal to the 'non-existence of documents' is a reference to a letter ('the VGSO letter') from the Victorian Government Solicitors Office, dated 8 July 2016, written on behalf of the Attorney-General in response to subpoenas to produce copies of various pieces of legislation 'bearing a "wet ink signature of the Governor and a wet ink signature with the Royal Seal of Her Royal Majesty Queen Elizabeth the Second".' The letter resisted the production of any documents pursuant to the subpoenas, saying (amongst other things) that no such documents existed. It is from this proposition that the applicant contended that the Domestic Animals Act 1994, and various other pieces of legislation, did not exist.

18 On 19 March 2018, Irving JR refused the applicant's application for an extension of time.[18] In doing so, and after analysing the applicant's arguments, the judicial registrar concluded that the application for leave to appeal was 'so devoid of merit that it would be futile to grant an extension of time'.[19]

19 On 5 July 2018, the applicant sent an email to the Court applying under Rule 64.42(8) of the Supreme Court (General Civil Procedure) Rules 2015 ('the Rules') for the Judicial Registrar's decision to be reviewed by a judge of appeal. This is the review of the Judicial Registrar's decision.[20]

20 Ginnane J was plainly correct when he refused the applicant's application for an extension of time within which to appeal from the Magistrate's Court and then dismissed the applicant's proceeding. There was and is no substance in any of the applicant's points.[21] Each of the various State and Commonwealth Acts that the applicant seeks to impugn as unlawful and treasonous are valid enactments for the reasons given by his Honour. The judge was correct to conclude that none of the applicant's arguments were reasonably arguable or had any real prospect of success. The judge's reliance upon Hayne J's decision in Rutledge and the operation of s 143 of the Evidence Act 2008[22] is unimpeachable. The same should be said of the balance of the judge's reasons.

21 Contrary to the applicant's submissions, s 143(1) of the Evidence Act is not unconstitutional. As the judge observed, the section precludes arguments of the kind made by the applicant which have as their foundation a requirement for proof of the existence of the Act or its coming into operation. The section does not preclude the taking of legitimate arguments about the constitutionality of a particular statutory provision. Arguments, however, about whether there exists a copy of an Act 'bearing a "wet ink signature of the Governor and a wet ink signature with the Royal Seal of Her Royal Majesty Queen Elizabeth the Second" '[23] (whatever that might mean) are precluded. The judge was undoubtedly correct when, having considered all of the applicant's arguments, he said that the applicant had failed to establish the invalidity of any relevant legislation or appointment.

22 In addition to the very thorough reasons given by the judge for making the orders he made, one might also observe that the applicant's arguments premised upon the non-existence of the Queen of Australia are totally without merit, flying as they do in the face of the High Court's decisions in Pochi v Macphee[24] and Nolan v Minister for Immigration and Ethnic Affairs.[25] As was observed by Gibbs CJ[26] in Pochi, 'the allegiance which Australians owe to Her Majesty is owed not as British subjects but as subjects of the Queen of Australia'. As was observed by the plurality[27] in Nolan, the words 'subject of the Queen' in the Constitution,[28] should be treated as referring, 'in a modern context, to a subject of the Queen in right of Australia: cf Royal Style and Titles Act 1973 (Cth)'. Put bluntly, Australian citizens owe allegiance to the Queen of Australia, not the Queen of the United Kingdom.

23 It remains to deal with the applicant's argument that he was deprived of an opportunity to put part of his case before Ginnane J. A close examination of the transcript simply does not bear out that proposition. The judge conducted a very careful, thorough and fair hearing. He was at pains to identify as best he could all of the arguments that the applicant relied upon in support of his application for an extension of time within which to appeal from the Magistrates' Court. He was also at pains to tell the applicant during the course of argument that if the applicant had any other arguments on the merits of his proposed appeal then the judge needed to know what they were in order to determine whether the applicant should be given leave to appeal out of time. At one point in the argument, the judge said:

I need to be convinced, you've given me an explanation as to why there was a delay and that was because you went to the County Court but I've got to be satisfied that you've got arguments that provide a basis for giving leave, in other words, that the Magistrates' Court order imposing the fine for non-registration of the dog was not a lawful order. I've understood these six points I've written down were your arguments.

If there are any others, I need to know them because ultimately ... I've got to decide whether you should be given leave to appeal out of time.

You've made a number of points that I've written down and I've read back to you. If there's anything else you want to raise, but you need to know - you need to understand, Mr Sill, very clearly, that anything you want to say about why you should be allowed to appeal against the Magistrates' Court's order, you need to say it now. Now is your chance. There's no second chance later on. ...

I want to know if you've got any other arguments going to the penalty the magistrate imposed or anything like that. This is your only chance to put these arguments. There will be no later chance.

24 The transcript of the hearing before Ginnane J records that the applicant appeared to cavil with his Honour about the need to put all his arguments, saying:

But I'm facing a court that's unlawful so why should I - if I start to defend myself for this dog thing that I've got, then I'm admitting or allowing this Court to rule on me which is - - -

I can't see how the Court can do anything but rule itself out because if the Constitution is unlawful and the appointment of the governor is unlawful and the Act doesn't exist as per the letter from the Attorney-General, what do we have to decide here?

25 Notwithstanding the applicant's apparent cavilling with the judge, in my view the judge made it plain that the applicant was required to advance all of his arguments about the merits of his appeal. The applicant cannot now complain that he was deprived of an opportunity to put any part of his case.

26 The applicant's proposed appeal to this Court has no real prospect of success. Indeed, for the reasons given by the judge and the judicial registrar and the reasons given above, the applicant's proposed appeal is totally without merit. If his application for leave to appeal had been filed within time, leave would inevitably have been refused and the application would, if necessary, have been held to be totally without merit.[29] It follows that the judicial registrar was plainly correct when he refused the applicant an extension of time within which to seek leave to appeal. It also follows that the applicant's application pursuant to r 64.42(8) of the Rules to set aside the decision of the judicial registrar made on 19 March 2018 must be refused.

[1] The apparent paradox in seeking to appeal to, and to obtain relief from, a Court that was said by the applicant, at some points in the argument, to be invalid, was never adequately explained by the applicant. In the circumstances, it is probably better to say nothing further about that.

[2] The applicant said to the judge that he would not put his arguments 'into a Commercial Court' because he had been told that he would lose whether he liked it or not.

[3] Section 2 of the Royal Style and Titles Act 1973 gave the assent of the Commonwealth Parliament to the adoption by Her Majesty, for use in relation to Australia and its territories, of the style and titles set forth in the schedule to the Act upon the publication of the Queen's proclamation. The Queen's proclamation was published on 19 October 1973. The schedule contained the style and titles:

Elizabeth the Second, by the Grace of God Queen of Australia and Her other Realms and Territories, Head of the Commonwealth.

[4] Section 143(1)(a) relevantly provides:

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

[5] [2013] HCA 60; (2013) 251 CLR 457 ('Rutledge').

[6] I take this to be a reference to the 1988 referendum that failed to insert proposed s 119A into the Constitution, namely:

[Proposed section 119A] Each State shall provide for the establishment and continuance of a system of local government, with local government bodies elected in accordance with the laws of the State and empowered to administer, and to make bylaws for, their respective areas in accordance with the laws of the State.

[8] Magistrates' Court General Regulations 2000 reg 201(1) and Schedule 2 Part 1.

[9] Taylor, The Constitution of Victoria, p 415. (citations in original). As to the current position with respect to judicial registrars of the Supreme Court, see s 113GB of the Supreme Court Act 1986.

[10] Sill v City of Wodonga [2017] VSC 671 ('Reasons').

[13] [2005] VSC 71.

[18] Sill v City of Wodonga (Unreported, Court of Appeal, Irving JR, 19 March 2018) ('Application Reasons').

[19] Ibid [35]. See further, Application Reasons [7]-[14] and [27]-[34].

[20] As to the procedure to be followed, including determining that it is neither necessary nor desirable to have an oral hearing, see rr 64.14 and 64.15 of the Rules.

[21] Although the sixth point identified by the judge as being raised by the applicant may be accepted as correct (namely that the applicant is a human being and not an entity), the acceptance of this point is not capable of founding an argument that the Magistrates' Court erred in law as required by the operation of s 272 of the Criminal Procedure Act 2009.

[24] [1982] HCA 60; (1982) 151 CLR 101, 109 ('Pochi').

[25] [1988] HCA 45; (1988) 165 CLR 178, 186 ('Nolan').

[26] With whom Mason and Wilson JJ agreed (Murphy J delivered a separate concurring judgment).

[27] Mason CJ, Wilson, Brennan, Deane, Dawson and Toohey JJ.

[28] See ss 34(ii) and 117 of the Constitution.

[29] See ss 14C and 14D of the Supreme Court Act 1986.