Chapter 11 — Bonus Report 3: Court Cases

The Know Your Rights group has been extremely fortunate to connect with some amazing legal researchers, such as Darryl O’Bryan and David Woods, who have generously provided us with numerous court cases that they have discovered and used themselves with great success.

We have included for you below many of those very valuable case precedents which have been set over the years and that people can rely on in various situations. This chapter also includes a number of other court cases which we believe will be interest and/or value to you.

To make it easier to find the cases that are relevant to you and any particular situation you might currently be facing, we have grouped them under a number of specific headings.

Traffic Related Cases

The case of Vico v Car Park Pty Ltd (Civilian Claims) [2014] VCAT 565 (2 May 2014) proves that all private parking fines are illegal, and recent changes in Victorian legislation have actually stopped private car park operators from being able to petition the Court to access your private registration details.  There is some additional legal commentary on that case on this website that you might also like to read.

The case of Director of Consumer Affairs Victoria v Parking Patrols Vic Pty Ltd & Anor [2012] VSC 137 (13 April 2012) is another great case that proves that all private parking fines are illegal. And here is the Consumer Affairs Victoria official Press Release regarding that case.

The case of Hobson’s Bay City Council v Viking Group Holdings Pty Ltd [2010] VSC 386 (27 August 2010) is another interesting case because it shows that a local council cannot charge you court costs, even if you lose: if, for example, you are being charged over a so-called ‘criminal offence’ such as a parking fine.

In the 25 November 2011 Supreme Court case of the DPP v Hamilton, Justice Kaye clearly stated that you don't have to stop and speak to police unless you're under arrest.  Obviously, once you have been arrested, you then have a right to remain silent, so you still don’t have to speak to them!

There is some interesting commentary on this case that you may want to read through here.  And this article details how that case directly applies to motorists, which we know is going to be of interest to most people.

In the case of Lee v NSW Crimes Commission [2013] HCA 39 (9 October 2013) Chief Justice French deals with the presumption of innocence against self-incrimination where he asserts that, “The presumption of innocence, the privilege against self-incrimination and the right to silence are important elements of the ‘accusatorial system of justice’ which generally prevails in the common law world.”

Here is a commentary on the case, again explaining why you do not have to answer any questions that may incriminate you.

As we mentioned in the Fines chapter, another argument that is coming up more and more nowadays is the principle of ‘owner onus’, where the Prosecution will try and claim that, because you are the registered owner or operator, that you are deemed to be guilty of the offence. Unfortunately for them, the Supreme Court case in the matter of Dolheguy v Becker & Anor dictates that principle does not always apply – if you know how to argue it correctly.  A great commentary on that case can be found here .

In the case of Liberato v R [1985] HCA 66: (1985) 159 CLR 507 (17 October 1985) – Justice Brennan made it clear that, in any criminal case, the burden of proof is firmly on the Prosecution.  So, when a police Prosecutor or some Magistrate tries to tell you about ‘owner onus’ applying, because you didn’t nominate a driver, you will know how to respond.  This is also why the minute that you get on the stand and clearly state “I was not speeding” or “I did come to a complete stop”, etc., the Prosecution’s case fails because you have introduced reasonable doubt, and they have failed to comply with their burden of proof requirements.

Chu Kheng Lim v Minister for Immigration Local Government & Ethnic Affairs [1992] HCA 64; (1992) 176 CLR 1 (8 December 1992)  McHugh. J: Paragraphs 27, 29 and 33 quoting judicial power from previous cases Quote: “27. Section 71 of the Constitution vests the ‘judicial power of the Commonwealth’ in the High Court, in such other federal courts as the Parliament creates, and in such other courts as are invested with federal jurisdiction. This Court has decided that((128) Reg. v. Kirby; Ex parte Boilermakers' Society of Australia [1956] HCA 10; (1956) 94 CLR 254, at p 270.): "it is beyond the competence of the Parliament to invest with any part of the judicial power any body or person except a court created pursuant to s.71 and constituted in accordance with s.72 or a court brought into existence by a State".”

Once again, this clearly dictates that entities such as the purported ‘Infringement Court”, or agencies such as CCV, SDRO, SPER, etc. are not proper courts.

Following on from that, in the matter of Burdett v Abbot Kings Bench 1811 (Contempt of Parliament, Trespass and warrants case.)  Quote by Lord Ellenborough C.J on page 528 at paragraph 71, “The House of Lords indeed, is a Court of Record, and the difference between the usages of the two Houses, in respect to persons guilty of contempts before them, seems to be founded upon the essential difference, that the one is a Court of Record, and the other is not. For commitments for contempts by the House of Lords are for a time certain; and they frequently impose fines, which operate by way of punishment of the offender, as well as for the immediate removal of the obstruction to their proceedings; and no Court, which is not of record, can fine.”

Again, this confirms that those private corporations mentioned above have absolutely no lawful right to issue fines!

Unlawful arrest

More and more people are starting to challenge the police in regards to their fines, which is great. Many people are doing this at the time that they are being pulled over, which is even better. People are referring to many of the cases in this chapter that dictate that you have the right not to incriminate yourself, you have the right not to identify yourself,  and you do not have to speak to the police unless you are under arrest.

We have heard from some people that they are being threatened with arrest if they don’t identify themselves and, as this article explains that is unlawful. Please be sure to refer to the matter of Randall v State of New South Wales [2013] NSWDC 277 (5 December 2013) and remind the police of it if they threaten you with unlawful arrest. You may also want to look up the Canadian case of Koechlin v Waugh & Hamilton as well.

Public Transport Case

Anyone who has ever used public transport in Melbourne should read the following article from “The Age” newspaper, regarding the fact that Myki fines are failing in court.  This is great news for anyone challenging any public transport fines, especially for Victorians, with all the new signs around trying to coerce people into paying smaller on-the-spot amounts rather than larger fines.

Chapter III courts and the validity of certain Acts

In Lane v Morrison & Anor [2009] HCA 29 (26 August 2009) it was determined that “the treatment of the jurisdiction conferred by s 75(v) of the Constitution with respect to prohibition directed to officers of the Commonwealth constituting military tribunals  appears to have been influenced in the way described by Mason J and by Deane J. It may explain the frame of mind in which statements have been made, notably by Starke J in R v Bevan; Ex parte Elias and Gordon[54], that although military tribunals did not exercise ‘the judicial power of the Commonwealth’ identified in s. 71, they did exercise ‘judicial power’. But the only judicial power which the Constitution recognises is that exercised by the branch of government identified in Ch III.”

The Justices declared that the military tribunal was not in accordance with Chapter III of the Commonwealth Constitution.  As we said in the Fines chapter – and was confirmed in the Constitution chapter – all Courts must comply with Chapter III of the Commonwealth Constitution to be valid Courts.

And here is a further confirmation that all courts must comply with Chapter III of the Commonwealth Constitution.

We referred to the ‘Kable decision’ earlier on, in our Fines chapter and in that case of Kable v Director of Public Prosecutions (NSW) [1996] HCA 24; (1996) 189 CLR 51 (12 September 1996) Justice Gummo stated that, “The guilt of the citizen of a criminal offence and the liability of the citizen under the law, either to a fellow citizen or to the State, can be conclusively determined only by a Ch III court acting as such, that is to say, acting judicially. For its part, the Parliament cannot legislate either to destroy the entrenched safeguards of Ch III or to itself assume the exercise of judicial power."

In the matter of South Australia v Totani [2010] HCA 39 (11 November 2010)  Chief Justice French stated that even Magistrate's Courts must be in accordance with Chapter III of the Commonwealth Constitution.  As we detailed in the Constitution chapter, a Magistrate’s Court is actually a Star Chamber, and these were outlawed in 1641.

This article summarises the South Austrtalia v Totani case  and you should compare that to how Infringements Courts (and the like) issue Enforcement Orders without any evidence, and without the opportunity to challenge any evidence, etc.

In the case of Port of Portland v State of Victoria [2010] HCATrans 221 (27 August 2010)  all 7 justices confirmed the validity of the Imperial Acts Application Act 1980 and the Bill of Rights 1688.

In the case of Hospital Provident Fund Pty Ltd v Victoria [1953] HCA 8; (1953) 87 CLR 1 (11 March 1953) Justice Williams talks about Section 2 of the Victorian Acts Interpretation Act, which dictates that all Acts are subject to the Commonwealth Constitution, and that a court should ensure the Constitutional validity of any Act.

The case of Munday v Gill [1930] HCA 20; (1930) 44 CLR 38 (14 August 1930) ties in perfectly with the aforementioned Hospital Provident Fund Pty Ltd v Victoria case, where Justice Dixon states that “Of course the burden rested upon the informant of proving every ingredient in the offence charged, including the lawfulness of the acts from which those intimidated were compelled to abstain.”

This is why the Notice of Discovery process is so powerful: because it requires them to provide a copy of the Proclamation Certificate for every Act that they intend to rely on and, if they can’t produce it – which they can’t – then their case fails before it even begins.

In the case of Attorney- General (WA) v Marquet  [2003[ HCA 67; 217 CLR 545l 202 ALR 233; 78 ALJR 105 (13 November 2003)   Justice Kirby states very clearly, between paragraphs 203 and 213, that the purported Australia Act (which the Government agencies rely on for authority in all manner of cases on a daily basis) is illegal and void because it purports to alter the Commonwealth Constitution without complying with Section 128, which dictates that can only happen by way of a Referendum - as we detailed in our Constitution chapter.

This fact is further confirmed in the case of King v Jones [1972] HCA 44; (1972) 128 CLR 221 (1 September 1972) where, at paragraph 10, Justice Barwick again stated that the Constitution can only be changed pursuant to Section 128, which is by way of a Referendum.

In the case of Mobil Oil Australia Pty Ltd v Victoria [2002] HCA 27; 211 CLR 1; 189 ALR 161; 76 ALJR 926 (26 June 2002), Justice Kirby stated that “The decision of this Court in Re Wakim; Ex parte McNally contradicts the proposition that the conferral by statute of jurisdiction and power on a superior court is immune from the restrictions of the Constitution. Any deployment of public power in Australia must conform to the Constitution. This applies to a purported conferral of jurisdiction and power upon a State court as well as on a federal court, as considered in Wakim.”

Rental Fees

The case of Palmer v Hutchinson (Residential Tenancies) [2013] VCAT 873 (29 May 2013) dealt with illegal debit fees being charged to tenants by Real Estate agents for making their monthly rental payments by direct debit.  If you know anyone who rents, and makes their rental payments by direct debit, please make sure they read this case.

Here is a great summary, or overview, of the case as well.

Trespass Cases

One of the most powerful and well known cases regarding the issue of trespass is the matter of Plenty v Dillon [1991] HCA 5; (1991) 171 CLR 635 (7 March 1991) where four officers came to a private property to serve a warrant on Mr Plenty’s child, who was not there.  The officers were repeatedly asked to leave, but refused to do so, and Mr Plenty exercised his Common Law rights to use reasonable force to cause them to leave.  He was subsequently arrested and charged with assault, despite being significantly assaulted by the officers (who outnumbered him 4 to 1), and he counter-sued for trespass.  His case failed, as did his numerous appeals, until he got all the way to the High Court, where justice was finally served, and he was awarded damages.

Here is an excellent summary of this, and related cases, and how the Courts and Parliaments must obey Common Law

And here is another great website dealing with trespass cases.

Banking

The case of Andrews v Australia and New Zealand Banking Group Ltd [2012] HCA 30 (6 September 2012) deals with the fact that bank fees are a penalty, and are therefore illegal, because only courts can impose penalties.  Paragraph 63 is also very interesting, because the Court stipulates that “it is equity, not the law, that is to prevail.”  So, the law is irrelevant if there is no ‘equity’, which clearly there isn’t as we detailed in our Banking chapter.

Another important point to note about this case is that there were some 57,000 plaintiffs, so the High Court was ‘forced’ to rule correctly.  As we mentioned in the Local Government chapter, this is why we need as many people as possible to sign up for the Local Government Class Action.

Appearing on behalf of a company

One of the primary aims of this e-book is to teach people how to stand up for their rights without using liars-for-hire (lawyers).  Many people incorrectly believe or, more importantly, are told by the courts, that you must have a lawyer to represent a Pty. Ltd. Company.

The matter of Permanent Custodians Limited v Virgin Investments Pty Ltd is a case that proves that you can speak on behalf of a company, without a lawyer.

In fact, the Director of Virgin Investments Pty Ltd spoke on behalf of the company on more than 10 occasions at the Supreme Court, Masters’ Court, (now the Supreme Court Associate Judges’ Court), the Supreme Court Practice Court and the Supreme Court, Court of Appeal, so there is absolutely no denying that you can do it!

Corporation has no power over the living

As we detailed in the Strawman chapter, a Corporation cannot exercise power over the living man or woman.  The case of Rundle v Delaware & Raritan Canal Company, 55 U.S. 14 How.8080 (1852) is the crucial case that deals with that fundamental legal principle.

Again, as we explained in the Strawman chapter, this is why the Government has corporatised all our names – in order to ‘do business’ with us and so that they can exercise power over us in their corporate courts.

Letter from Sir Harry Gibbs

We strongly recommend that you read the following letter from the ex-Chief Justice of the High Court, Sir Harry Gibbs, which explains that “the current and political system in use in Australia and its States and territories has no basis in law”, and how he advises that you handle any legal challenge.

We hope you find this collection of court cases useful. Please feel free to e-mail any others that you come across to us at [email protected] and we will update this section with new cases, as they come to hand.

Go back to Chapter 10 or move onto Chapter 12.