20151102-Schorel-Hlavka O.W.B. to Mr Peter Kidd CJ County Court of Victoria-Re Buloke Shire Council -APPEAL-15-2502- Re COMPLAINT -Supplement 2

8/20/2019 20151102-Schorel-Hlavka O.W.B. to Mr Peter Kidd CJ County Court of Victoria-Re Buloke Shire Council -APPEAL-15-…

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p1 2-11-2015 Supplement 2 © G. H. Schorel-Hlavka O.W.B.

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Mr Peter Kidd CJ 2-11-2015Email: [email protected]

Cc: Buloke Shire Council [email protected]

Mr Martin Pakula, Attorney-General [email protected] & [email protected]

Daniel Andrews Premier Victoria [email protected]

Elliott Stafford and Associated [email protected]

Re: 20151102-Schorel-Hlavka O.W.B. to Mr Peter Kidd CJ County Court of Victoria-

Re Buloke Shire Council -AP-15-2502 -Re COMPLAINT -Supplement 2

Sir,

because my objection is also against His Honour Mullaly to preside over any further/other proceedings I am obviously obligated to show cause why His Honour Mullaly should bedisqualified from doing so and hence provide Supplement 2 as to further highlight matters.

It appears to me that His Honour Mukllaly didn’t understand or didn’t known the legal principles

set out in the Hobsons Bay City Council v Viking Group Holdings Pty Ltd [2010] VSC 386 (27 August 2010)Authority.

It also ought to be considered that this litigation is some year after the Fire Prevention Noticewas issued and as such if the matter was that important why did Buloke Shire Council wait untilthe time it finally instituted litigation rather than do so immediately if there was a real danger tolife and property? And as my writings such as the ADDRESS TO THE COURT indicated

while Buloke Shire Council is seeking to enforce or purportedly seek to enforce State legislationreality is that all and any Infringement Notices fines are payable to itself. As such if a FirePrevention Notice were to be issued against Buloke Shire Council then it pays itself if it fails tocomply. This in itself may underline the system is hijacked for financial purposes and underminethe intent of the Country F ir e Authori ty Act 1958 to hold all persons and councils legallyaccountable.

Counsel for Buloke Shire Council submitted to His Honour Mullaly that one witness Mr WayneWall will be called and his evidence will take a mere 5 minutes.Mr Wayne Wall is the Municipal Fire Prevention Officer who issued the fire prevention Noticeand as such it is appalling that Council didn’t set out if this witness will be called as an “expert

witness” and if so what his qualifications are etc.I have over the decades cross-examined “expert witnesses” who during cross-examination attimes proved not to have the qualifications/training/expertise to be held an “expert witness”. Assuch I view His Honour Mullaly (if His Honour Mullaly had invoked jurisdiction, which Imaintain His Honour Mullaly never did)should have ensure that with the lack of the(preliminary) brief having been provide Buloke Shire Council should ensure that I am provideappropriate details of the witness concerned to enable me to prepare my case.After all why embark upon a court hearing exercise about Mr Wayne Wall having an “opinion”as required by the Country F ir e Authority Act 1958 if in fact it turns out that Mr Wayne Wallnever had an appropriate training and/or experiences as to make the required “opinion” to be able

to issue a Fire Prevention Notice? After all where Mr Wayne Wall issued as I alleged ongoing

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Fire Prevention Notices all in violation of the legal provisions of the Country F ir e Author ity Act1958 then this in itself places in doubt he is a competent “expert witness”.

While courts ordinary expect a party to appear before a court as otherwise the proceedings may be deemed EX PARTE, this however is not a fast rule nor is always applicable.Indeed it would be utter and sheer nonsense for a person charged with a traffic offence allegedlyhaving occurred in Melbourne having to travel all the way to Melbourne to attend to anInfringement Court hearing only to discover there is no such “open court”. Indeed, the motorist

may OBJECTE TO THE JURISDICTION of the court on the basis he/she never travelled inMelbourne (neither so the registered motor vehicle) and so the Infringement Notice has no legal

basis.There was this incident where Tenix Solutions Pty Ltd operating as Civic Compliance Victoriaaccessed the wrong data and in error issued about 2,000 Infringement Notices to NSW owners ofregistered motor vehicles. It would be absurd to hold that each and every registered owner thenwould have to incur huge cost to travel to Melbourne to a non-existing court hearing and thenappeal the matter, where a mere sending in an OBJECTION TO JURISDICTION would besufficient. After all it would be ridiculous to expect a person to incur hundreds if not thousandsof dollars in cost to attend to a non-existing “open court” hearing where a mere OBJECTION TOJURISDICTION can achieve the same.

.I have been involved in telephone hearings (where I was not physically in court) as well asconducted cross-examination via video and as such well aware that the term Ex Parte can onlyapply if a party has not whatsoever provided any submissions/information to the court and theother party appears in court without having any information as to why this party was not in court.

In my case I notified the magistrates Court of Victoria at St Arnaud in writing of ill health aswell as of the OBJECTION TO JURISDICTION and by the rules it issued to me if the matter ischallenged then the matter cannot be heard but will be adjourned to another date.

The fact that my OBJECTION TO JURISDICTION was known to the Legal RepresentativesBuloke Shire Council can be ascertained from their 2 September 2015 correspondence, in

particular the last paragraph.

QUOTE (Alison J May LEGAL Practitioner ES&a 2-9-2015 correspondence) We act on behalf of the Buloke shire Council in the above prosecution.

The above matter was listed for before the Magistrates’ Court at St Arnaud on 20 August 2015 and weacknowledge your numerous items of correspondence. We do not propose to respond to a majority of thematters raised therein.

The purpose of this letter is to confirm that as you did not appear the matter has been adjourned for hearing atthe St Arnaud Magistrates’ Court on 17 September 2015 at 8.30am In the event you do not appear on that

date the matter will proceed in your absence.

We confirm that the St Arnaud Magistrates’ Court is the appropriate venue for th is matter as the offence took place in Berriwillock. The only Court which is closer to the location of the offence is the Magistrates’ Court

ar Swan Hill which is a greater distance from your residence. Council will not consent to any change ofvenue and we note that the Collingwood Magistrates’ Court is not the appropriate venue for your matter inany event as it deals with matters only where the offence has taken place within the strict boundary of a small

proportion of the City of Yarra or where the accused resides within that same boundary.

We note your purported objection to jurisdiction contained in your letter dated 17 August 2015 and stronglysuggest that you take legal advice with respect to same.

END QUOTE (Alison J May LEGAL Practitioner ES&a 2-9-2015 correspondence)

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Again:QUOTE (Alison J May LEGAL Practitioner ES&a 2-9-2015 correspondence)

We note your purported objection to jurisdiction contained in your letter dated 17 August 2015 and stronglysuggest that you take legal advice with respect to same.

END QUOTE (Alison J May LEGAL Practitioner ES&a 2-9-2015 correspondence)

The correspondence didn’t show that the Magistrates Court of Victoria on 20 August 2015 had“adjourned” the matter of OBJECTION TO JURISDICTION” to be determined on 17 September

2015 and as such any purported orders for a hearing on 17 September 2015 were without legalvalidity. The court could only have adjourned the matter of the Summon charge subject to theOBJECTION TO JURISDICTION first to be heard and determined and only if the OBJECTIONTO JURISDICTION were to be dismissed.

This the court on 20 August 2015 failed to order as such and hence its orders of 20 august 2015were without legal force/justification.

His Honour Mullaly claimed that on an EX PARTE hearing no evidence in a criminal trial isrequired, on that basis any police officer could have an EX Parte application and then seek ordersand any warrant without the need of any evidence. This I view is utter and sheer nonsense.

But, as Counsel for Buloke Shore Council didn’t suggest or even claim that there was“”evidence” before the magistrates court of Victoria at St Arnaud on 17 September 2015, as I

stated the recording shows no evidence was given from the witness box, etc, then clearly therewas no “evidence” before the magistrates Court of Victoria at St Arnaud as to have grounds to

dismiss the OBJECTION TO JURISDICTION. While His Honour Mulally held no “reason of

judgment” was required I do not accept this because the authorities I presented makes it very

clear that the Court must prove there is jurisdiction. Without any “evidence” and without any

sealed orders and/or pronounced order and without any “reason of judgment” there clearly never

was any “consideration” as to if the court could or couldn’t invoke jurisdiction, and hence itnever did. Upon that basis His Honour Mullaly was bound to hold that the lack of any relevant

information that the Magistrates Court of Victoria at St Arnaud dismissed the OBJECTION TOJURISDICTION and there be no evidence to attempt to prove jurisdiction then the court mustbe deemed to have dismissed the summons charge for want of jurisdiction and its purportedorders otherwise are without legal validity and set aside.

Because there was an alive “OBJECTION TO JURISDICTION” AND SO FILED ALSOBEFORE His Honour Mulally then His Honour Mullaly couldn’t get around the “OBJECTION

TO JURISDICTION” but was bound to deal with it as to ascertain if there was any matter at all

to be heard De Novo. After all if it was deemed that in the circumstances the Magistrates Courtof Victoria at St Arnaud should have “struck -out/dismissed the summons charge for want of

jurisdiction” then those were to have been the orders of His Honour Mullaly and then the appeal

before him was to be upheld. As an appeal can be filed against orders a court failed to make butshould have made in the circumstances prevailing before the court.

As His Honour Mullaly failed to dispose of my OBJECTION TO JURISDICTION His HonourMullaly neither invoked jurisdiction as to order a hearing De Novo of the summon charge, andhence the orders are invalid Ab Initio.

While ordinary a judge must warn an appellant that he/she can face a higher penalty/cost with anappeal in the circumstances where His Honour Mullaly failed to invoke jurisdiction then this

became as a form of intimidation/threat and was uncalled for.

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It must be clear that Buloke Shire Council and its legal representatives as well as the MagistratesCourt of Victoria at St Arnaud were notified of the OBJECTION TO JURISDICTION on 20August 2015 by way of ADDRESS TO THE COURT (written submissions) and Buloke ShireCouncil nor its legal representatives provided any appropriate response to this other than to statewhat was in its 2 September 2015 correspondence (well after the 20 August 2015 hearing) itwasn’t going to respond. As such, its conduct was to escalate problems and no court could thenorder cost in favour of Buloke Shire Council where it failed to act appropriately. In deed not eventhe requested (preliminary) brief was provided!

http://www.austlii.edu.au/au/cases/vic/VSC/2011/140.html

QUOTE Hobsons Bay City Council v Viking Group Holdings Pty Ltd [2010] VSC 386 (27 August 2010)

Conclusion and orders

176 For these reasons the plaintiff Council is entitled to relief, substantially in the form it seeks, against

all of the defendants and the defendants’ counterclaims must be dismissed. I will hear counsel as to the

appropriate form of orders to give effect to these conclusions.

Costs

177 In view of the fact that the plaintiff did not plead or rely upon the statutory answers to the

defendants’ estoppel claims until after the Court raised the matter on the first day of the hearing,

whereby delay and extra cost were encountered; and in view of the additional time, trouble and

expense to which the parties and the Court have been put as a result of non-compliance with the pre-

trial direction for an agreed statement of facts and as a result of the case not being properly prepared

for hearing on either side, for all of which the plaintiff Council appears to be partly responsible, I am

provisionally inclined to make considerable allowance in favour of the defendants in relation to costs. I

will hear counsel on that issue as well.

END QUOTE

QUOTE 20150113-G. H. Schorel-Hlavka to Buloke Shire Council care of J Groves

Marriage of Baines (No. 2) (1981) 7 Fam LR 232 at 237;-"We recognise that each party is entitled to a Fair and Proper trial and to an adequateopportunity to adduce relevant evidence and to test the quality and veracity of theevidence adduced by the other party."

Sorell v Smith (1925) Lord Dunedin in the House of Lords“In an action against a set person in combination, a conspiracy to injure, followed byactual injury, will give good cause for action, and motive or instant where the act itself isnot illegal is of the essence of the conspiracy.”

Bringinshaw v Bringinshaw (1938) 60 CLR 336 at 361,362“Not inexact proof, indefinite testimony or indirect inference (By prosecution)”

Re: Ratten (Vic Full Supreme Court) (1974) VR201 at 214Fair Trial Present Evidence

END QUOTE 20150113-G. H. Schorel-Hlavka to Buloke Shire Council care of J Groves

Despite of this and numerous other writings to Buloke shire Council and its legal representativesat no time was any “evidence” provided to me as to what Buloke Shire Council purported was

its evidence. And as was proven on 17 September 2015 no evidence was given at that day. Assuch to a FAIR MINDED PERSON it can be held that there never was any “evidence” merely an

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allegation. Therefore Buloke Shire Council and its legal representatives went on a path ofcausing utter frustration to me not providing any information as to if it had or not any “evidence” as for me to be able to prepare any response. At times “evidence” claimed by one party mayrequire the opposing party to gather contradictory evidence thatcould take considerable time andeven perhaps arrange witnesses to attend to court, and hence one cannot accept that a Prosecutoruses any alleged “evidence” at the court without allowing the other party a reasonable period of

time to prepare any response, that may even disprove the alleged “evidence”. It should also be

noted that I forwarded correspondence to both the email addresses of Buloke Shire Council aswell as to nits legal representatives as to avoid any claim that either one of them were not awareof my requests, etc.Hence, I view it is absurd that His Honour Mulaly held no “evidence” is required for an ex partecriminal case because it would allow lawyers to deceptively obtain court orders to deceptivelyfinancially benefit themselves and/or their client. Hence the Hobsons Bay City Council v Vi king GroupHoldings Pty Ltd principle is very much applicable.

http://www.austlii.edu.au/au/cases/vic/VSC/2011/140.html

QUOTE Hobsons Bay City Council v Viking Group Holdings Pty Ltd [2010] VSC 386 (27 August 2010)

6 After the Magistrate awarded costs in the sum of $180.80[1] he was asked to give reasons for his order. Hethen stated:

The application for legal costs is refused on the basis that I think that they’re disproportionate to thecriminality of the defendant’s conduct. I believe we’ve had this discussion in the past Mr Prosecutor, but thesame reasons apply. It seems to me to be unfair to award costs based on the defendant’s bad luck in being

prosecuted by a council rather than by the police as a matter of principle, it cannot be or should not be thedefendant that incurs the additional liability of substantial costs based on who prosecutes. It strikes me asunfair that an award of costs against the defendant when thieves, drug traffickers and other wrongdoers whodo far more harm than the defendant has, are not asked to pay costs. Additionally, citizens pay rates and taxesfor services, including the cost of prosecuting, supervising and imprisoning wrongdoers. It seems to me that

principle ought to apply to this prosecution as well and as I also say that the costs are disproportionate to thecriminality of the defendants conduct (sic). In the exercise of my discretion, the application for costs isrefused.[2]

END QUOTE Hobsons Bay City Counci l v Viking Group Holdings Pty Ltd [2010] VSC 386 (27 August 2010)

While His Honour Mullaly may have the view that despite of In the Marriage of Tennant (1980) 5 FLR 777 at 780 the court is not required to provide any “reason of judgment” I holdthat nevertheless where it issue orders against me (apart of being without jurisdiction) then I amentitled to know on what legal consideration!

QUOTE In the Marriage of Tennant (1980) 5 FLR 777 at 780As no grounds for appeal are required to be specified in the notice of Appeal, which, onfiling institutes the appeal (reg 122), there is no limitations of the scope of the appeal and allfindings of fact and law made in the lower court in relation to the decree appealed are inchallenge and cannot be relied on by the appellant or the respondent. All the issues (unless

by consent) must be reheard. This of course brings me to the point of the absence of reasonfor the magistrate’s decision in this case. Perhaps reasons were given orally but not recorded

for the record. Apart from the requirement of such reason for the purpose of the appeal process, there is the basic ground of criticism that litigants who go to court, put theirwitnesses up, argue their case and attempt to controvert the opposing case are entitled toknow, if they lose, why they lost. I f they are given no reason they may be entitled to feel

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the decision against them was conceived in prejudice, bias, or caprice . In such a case notonly the litigant, but justice itself, is the loser.

Magistrates should realise, even more than they seem to do, that this class of business is notmere ordinary trivial work, and they should deal with these cases with a due sense ofresponsibility which administrations of the summary jurisdiction Act and the far reachingconsequences of the orders that they make thereafter entail. [Baker v Baker (1906) 95 LT549; In Robinson v Robinson (1898) p135; and again in Cobb v Cobb (1900) p145] it wasstated that when making orders of this kind, from which lies an appeal to other courts, it isthe duty of the magistrate not only to cause a note to be made of the evidence, and of hisdecision, but to give the reasons for his decision and to cause a note to be made of hisreasons... Elaborate judgements are not required, but the reasons which lead the magistrateto make his order must be explicitly stated.

END QUOTE

QUOTE 20150820-ADDRESS TO THE COURT-in the matter Buloke Shire Council v Schorel-Hlavka

http://www.austlii.edu.au/au/cases/vic/VSC/2010/386.htmlQUOTE

Hobsons Bay City Council v Viking Group Holdings Pty Ltd [2010] VSC 386 (27 August 2010)

Last Updated: 27 August 2010

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

VALUATION, COMPENSATION & PLANNING LIST

No. 689 of 2010

and No. 690 of 2010

HOBSONS BAY CITY COUNCIL Appellant

v

VIKING GROUP HOLDINGS PTY LTD (ACN133 909 145)

Respondent

and

HOBSONS BAY CITY COUNCIL Appellant

v

VIKING ASSET MANAGEMENT PTY LTD(ACN 112 893 884)

Respondent

---

JUDGE: OSBORN J

WHERE HELD: Melbourne

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DATE OF HEARING: 13 August 2010

DATE OF JUDGMENT: 27 August 2010

CASE MAY BE CITED AS: Hobsons Bay City Council v Viking

MEDIUM NEUTRALCITATION:

[2010] VSC 386

---

COMMON LAW – Appeal from Magistrates’ Court cost award in criminal proceeding – Costs awardedcovered disbursements fees only - Review of discretionary judgments - Presumption in favour of thecorrectness of the decision - Appellant must demonstrate a vitiating error of law - It was open to theMagistrate to exercise his discretion in award of costs – Consistency of cost awards - Proportionality of costawards - Magistrates Court Act 1989 s 131(1)

---

APPEARANCES: Counsel Solicitors

For the Appellant Mr A Marshall Brand Partners CommercialLawyers

For the Respondent Mr J Searle Viking Group

TABLE OF CONTENTS

HIS HONOUR:

1 These appeals relate to orders made in the Magistrates’ Court at Sunshine in January 2010.

2 In the first proceeding, the presiding Magistrate, following conviction of the respondent in respect of sixcharges under the Victorian Road Rules relating to parking offences, ordered that the respondent pay anaggregate fine of $600 and costs in the amount of $180.80.

3 In the second proceeding the presiding Magistrate convicted the respondent of two further such offencesand fined it an aggregate fine of $250 and ordered it to pay costs in the sum of $65.20.

4 In each proceeding the matters were initially listed for hearing on a mention day and following noappearance by the respondent were listed for ex parte hearing.

5 At the conclusion of the first case the solicitor for the appellant applied for costs comprising legal fees of$1,470.26, service fees of $91.10, filing fees of $66.60 and a courtesy letter of $23.10. The solicitor deposesthat these were a true calculation of the amounts properly incurred by the Council in the prosecution of thecase.

6 After the Magistrate awarded costs in the sum of $180.80[1] he was asked to give reasons for his order. He

then stated:

The application for legal costs is refused on the basis that I think that they’re disproportionate to the

criminality of the defendant’s conduct. I believe we’ve had this discussion in the past Mr Prosecutor , but thesame reasons apply. It seems to me to be unfair to award costs based on the defendant’s bad luck in being

prosecuted by a council rather than by the police as a matter of principle, it cannot be or should not be thedefendant that incurs the additional liability of substantial costs based on who prosecutes. It strikes me asunfair that an award of costs against the defendant when thieves, drug traffickers and other wrongdoers whodo far more harm than the defendant has, are not asked to pay costs. Additionally, citizens pay rates and taxesfor services, including the cost of prosecuting, supervising and imprisoning wrongdoers. It seems to me that

principle ought to apply to this prosecution as well and as I also say that the costs are disproportionate to thecriminality of the defendants conduct (sic). In the exercise of my discretion, the application for costs isrefused.[2]

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7 At the conclusion of the second case the Magistrate again received an application for costs consisting oflegal fees of $170.50, filing fees of $42.10 and a courtesy letter of $23.10. The solicitor for the appellantagain deposes that the costs for which application was made comprised a true and correct calculation ofamounts properly incurred by the appellant in the prosecution of the case.

8 The Magistrate refused the greater portion of the application for costs ‘on the same basis’ as he had refused

the greater portion of the application for costs in the first matter .[3]

9 It can be seen that the Magistrate’s reasons invoke notions of proportionality and consistency.

10 The appellant acknowledges:

(a) the power of the Court to award costs is contained in s 131(1) of the Magistrates Court Act 1989 whichstates:

The costs of, and incidental to, all proceedings in the Court are in the discretion of the Court and the Courthas full power to determine by whom, to whom and to what extent the costs are to be paid.

(b) such discretion is effectively unfettered.

11 As counsel for the respondent emphasised, the latter part of s 131(1) emphasises the ‘full power’ of theCourt to determine the question of costs.

12 The grounds of appeal allege that the Magistrate failed to exercise his discretion properly or at all, and inthe alternative that he purported to act for improper reasons and/or took into account irrelevant matters. In thefurther alternative it is alleged that the Magistrate failed to take relevant considerations into account.

13 The fundamental question raised by the appeal is whether it was open to the Court to exercise itsdiscretion as it did. The general principles governing appeals from the exercise of discretion as to costs wereexpressed by Kitto J in Australian Coal and Shale Employees’ Federation v The Commonwealth:[4]

..the true principle limiting the manner in which appellate jurisdiction is exercised in respect of decisionsinvolving discretionary judgment is that there is a strong presumption in favour of the correctness of the

decision appealed from, and that that decision should therefore be affirmed unless the court of appeal issatisfied that it is clearly wrong. A degree of satisfaction sufficient to overcome the strength of the

presumption may exist where there has been an error which consists in acting upon a wrong principle, orgiving weight to extraneous or irrelevant matters, or failing to give weight or sufficient weight to relevantconsiderations, or making a mistake as to the facts. Again, the nature of the error may not be discoverable,

but even so it is sufficient that the result is so unreasonable or plainly unjust that the appellate court may inferthat there has been a failure properly to exercise the discretion which the law reposes in the court of firstinstance: House v. The Kin g[5]....

14 His Honour went on to endorse the following statement by Jordan CJ in Schweppes Limited v Archer :[6]

In appeals as to costs, the principles to be applied are these. The Court will always review a decision of a

Taxing Officer where it is contended that he has proceeded upon a wrong principle, for the purpose ofdetermining the principle which should be applied; and an error in principle may occur both in determiningwhether an item should be allowed and in determining how much should be allowed. Where no principle isinvolved, and the question is, whether the Taxing Officer has correctly exercised a discretion which he

possesses and is purporting to exercise, the Court is reluctant to interfere. It has undoubted jurisdiction toreview the Taxing Officer's decision even where an exercise of discretion only is involved, and will do sofreely on a proper case, using its own knowledge of the circumstances, but it will in general interfere onlywhere the discretion appears not to have been exercised at all, or to have been exercised in a manner which ismanifestly wrong; and where the question is one of amount only, will do so only in an extreme case.(Citations omitted)

15 In Urban No 1 Co-operative Society v Kilavus & Anor ,[7] Hedigan J observed that in cases involving thereview of discretionary judgments there is a strong presumption in favour of the correctness of the decision

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appealed from and the general rule is that the decision should be affirmed unless the appellate court of reviewis satisfied that it is clearly wrong.

16 In Kenyon v Drissen,[8] Ashley J (as he then was) observed:

It is true that an exercise of discretion is not to be tested by an appeal court asking itself whether it wouldhave exercised the discretion in the same or a different way to the way in which it was exercised in fact. Onthe other hand, the appeal court, before it interferes with an exercise of discretion, must be satisfied that thedecision was clearly wrong. In my opinion the correct approach is that in considering that question an appeal

court is not constrained to hold that an exercise of discretion was wrong only by reason that weight was givento some irrelevant consideration, or by reason only of complaint that insufficient weight was given to somerelevant consideration. It may be, despite such matters, that the decision was very evidently supportable by

pertinent grounds relied upon by the decision-maker.

17 These observations and the observations of Hedigan J were made in the context of appeals from theMagistrates’ Court to this Court. These reflect the need for an appellant in an appeal on questions of law todemonstrate not only that an error of law occurred but that it was a vitiating error .[9]

18 In Kymar Nominees Pty Ltd v Sinclair ,[10] Cavanough J stated:

There is a strong presumption in favour of the correctness of a discretionary judgment of a court, and all the

more so in relation to the taxation of costs. Although, strictly speaking, the present question is not one oftaxation of costs but of the extent of the parties’ respective liability, a reviewing court will rarely interfere on

such a question, especially in an appeal limited to questions of law.

19 The right of appeal to this Court from final orders within criminal proceedings of the Magistrates’ Court isone on questions of law only.[11] Accordingly, just as it is not open to challenge the weight given to relevantfactors in reaching a conclusion of fact, it is not open to challenge the weight given to relevant factors bearingon the exercise of a discretion.[12] The critical question is whether it was open to the Magistrate to concludeas he did having regard to relevant factors.[13]

Preliminary questions

20 The appellant relied on the decision in Latoudis v Casey.[14] It must be recognised however that the present case is not one such as Latoudis, where a successful defendant, having been brought to Court by theinformant, is ordinarily entitled to his or her costs.

21 In Oshlack v Richmond River Council[15] Kirby J observed:[16]

The decision in that case [ Latoudis] does not, and could not, lay down a general rule that the onlyconsideration to be taken into account in the exercise of a statutory costs discretion is the compensation of thesuccessful party for the recoverable expense to which it has been put by the litigation. With respect to thelearned judges of the Court of Appeal, this reads too much into Latoudis. Such a rule was required neither bythe matter which was before this Court for decision in that case nor by the majority's reasons.

22 Likewise, cases such as Ohn v Walton,[17] which was concerned with a power in the Medical Tribunal of New South Wales to order ‘the complainant ... to pay such costs to such person as the Tribunal may

determine,’ are of no real assistance in the present case.

23 It was next submitted that if costs were not ordinarily recoverable by the Council then the Council would be deterred from bringing further prosecutions of the type in issue. I do not accept this inference should bedrawn. Such prosecutions enforce a system of parking regulation from which municipal councils derivesignificant revenue and the evidence simply does not establish the conclusion contended for.

24 The appellant also placed substantial emphasis on the following observations by McHugh J inOshlack :[18]

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Nor is the status of the respondent as a public authority presently relevant. The law judges persons by theirconduct not their identity. In the exercise of the costs discretion, all persons are entitled to be treated equallyand in accordance with traditional principle. The fact that a successful respondent is a public authority shouldnot make a court less inclined to award costs in its favour. Gone are the days when one could sensibly speakof a public authority as having ‘available to them almost unlimited public funds’.[19] Moreover, if costsawards are not made in favour of successful respondents such as the Council, the public services which thoseauthorities provide must be adversely affected. Every irrecoverable dollar spent on litigation is one dollar lessto spend on the services that public authorities do and ought to provide. Often enough the services that will bereduced will be those that favour the politically weak – children, the unemployed, the disabled and the aged.

Such results cannot be in the public interest.

25 These observations do not assist the appellant because:

• I do not accept that the learned Magistrate refused the appellant costs simply because it is a municipalcouncil. Rather as I have said, he considered the issue of costs by reference to broader notions of consistencyand proportionality.

• Oshlack was concerned with fundamentally different proceedings. It was concerned with the costs of asuccessful council responding to an unsuccessful claim for injunctive relief, brought by a member of the

public seeking to ventilate issues of the public interest.

• McHugh J’s observations were made in dissent and the majority of the High Court affirmed the breadth ofthe discretion available to the Court of first instance.

Consistency

26 I turn then to the underlying bases of the Magistrate’s reasons. In my view it cannot be said that it was notopen to the learned Magistrate to take into account questions of consistency. Counsel for both parties referredto the observations of Mason and Deane JJ in Norbis v Norbis[20] (a case concerning the exercise ofdiscretion as to costs under the Family Law Act 1975 (Cth)):

The point of preserving the width of the discretion which Parliament has created is that it maximizes the possibility of doing justice in every case. But the need for consistency in judicial adjudication, which is theantithesis of arbitrary and capricious decision-making, provides an important countervailing considerationsupporting the giving of guidance by appellant courts, whether in the form of principles or guidelines.

27 Brennan J, who agreed generally with the reasons of Mason and Deane JJ stated at 536:

The orderly administration of justice requires that decisions should be consistent one with another anddecision-making should not be open to the reproach that it is adventitious ... An unfettered discretion is aversatile means of doing justice in particular cases, but unevenness in its exercise diminishes confidence inthe legal process.

28 In the present case it should be noted that breaches of the Victorian Road Rules with respect to parkinginfringements may be prosecuted either by a police officer, an authorised council officer or certain otherauthorised persons.[21]

29 It was open to the Magistrate to form the view that the discrepancy in costs outcomes between police prosecutions and council prosecutions in respect of the same offence and more generally raised a relevantissue of consistency. Inconsistent outcomes do not support a system in which the public may be expected tohave confidence. They give rise to a system which may appear adventitious and arbitrary in its outcomes.

Proportionality

30 Likewise the related issue of proportionality was a relevant factor. In some jurisdictions, achieving proportionality of procedural costs to the dispute in issue is an explicit obligation of civil casemanagement.[22]

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31 The same underlying concept is relevant here, but in the criminal jurisdiction of the Magistrates’ Court the

notion of proportionality has a further dimension. Proportionality is a touchstone of just outcomes of thecriminal justice system. In Hoare v The Queen[23] the High Court stated:

Secondly, a basic principle of sentencing law is that a sentence of imprisonment imposed by a court shouldnever exceed that which can be justified as appropriate or proportionate to the gravity of the crime consideredin the light of its objective circumstances (see Veen v The Queen [No 2]).[24]

32 In R v Young[25] the Victorian Court of Appeal addressed a sentence in which Veen [No 2] and

associated cases had been misinterpreted. The Court said at 953:

... there is nothing whatever new in what the learned judge called the principle of proportionality. We shallhave to return to the question later but for the moment it is sufficient to say that for as long as any member ofthe court can remember it has been the law in Victoria that an offender must not be sentenced to a moresevere punishment than is appropriate or proportionate to the offence which he has committed...

33 Proportionality in sentencing is necessarily a matter of judgment on which individual views may differ. InThe Queen v S[26] the Court of Appeal adopted with approval the following further statement in Young:[27]

What is a sentence proportionate to an offence is a matter of discretion and there must in most cases be arange of sentences open to a sentencing judge which are proportionate to the offence.

34 I accept that the purpose of an award of costs is not to punish the unsuccessful party but to indemnify thesuccessful party. Nevertheless, in the present case the Magistrate was in my view entitled to compare totaloutcomes in terms of fines plus costs, with other outcomes of the summary prosecution system not only asinforming a view as to consistency, but also as informing a conclusion as to the proportionality of the costssought to the criminality of the conduct in issue.

35 It was in turn open to him to conclude that the costs sought were disproportionate to the criminality of therespondent’s conduct. The conclusion he reached was one by a member of the court which is confronted with

a large number of summary offences on a daily basis and accordingly, the issue is one on which theMagistrate was well placed to form an opinion.

36 I am not persuaded that it was not open to him to conclude that the costs sought were disproportionate tothe criminality of the respondent’s conduct.

37 It is submitted for the appellant that the notion of proportionality might have justified the award of a lesseraward of costs, but it could not justify the award of effectively no professional costs. This submission entersinto questions of the weight of relevant factors. It is not for this Court however to weigh up the relevantfactors. It is simply for this Court to ensure that the Magistrates’ Court did not have regard to irrelevant

factors and reached a conclusion open to it. I accept that the view put forward on behalf of the Council might be accepted, but not that it was the only view open to the Magistrate.

38 It is clear from the terms of his reasons that the Magistrate regarded his conclusions as to proportionalityas fundamental to the proper exercise of his discretion. In turn his discretionary decision must stand if, as Ihave said, the view he reached is regarded as open to him.

Irrelevant considerations

39 Insofar as the appeal is put on the basis that the Magistrate failed to take into account relevantconsiderations, there is no evidence that, save in one respect, the matters relied on were expressly urged uponhim and I am not able to infer that a failure to refer to them in his reasons means that he did not take accountof them. The matters allegedly overlooked are stated in the amended notice of appeal as follows:

... relevant material considerations including:

(a) the cost to municipal councils in properly prosecuting council by-laws and other laws;

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(b) prevention of breaches of council by-laws;

(c) failure of the respondent to pay on-the-spot fines;

(d) deterrence to wrongdoers.

40 Factor (a) was of course squarely put before the Magistrate and factors (b), (c) and (d) were implicitlycaught up in the question of proportionality.

41 The relevant principle is that in some circumstances a failure to advert to particular matters in reasons willenable an inference to be drawn that regard was not had to those matters in reaching the decision in issue. Inothers it will not.[28] This is not a case in which an inference adverse to the Magistrate can be drawn.

Conclusion

42 In order to succeed in an appeal of this type the appellant must satisfy the Court that the Magistrate’sdecision was vitiated by reason of the matters to which he or she had regard, or that the decision was simplynot open to him or her.

43 In my view the factors upon which the Magistrate based his decision in the present case were capable of being regarded as relevant to the exercise of his discretion and the consequent exercise of that discretion wasopen to him.

44 Accordingly the appeal must be dismissed.

[1] The summation of the disbursement charges plus the courtesy letter.

[2] Affidavit of Lloyd Dewar sworn 15 February 2010, [7].

[3] The cost award was the summation of the disbursement charge and courtesy letter.

[4] [1953] HCA 25; (1953) 94 CLR 621, 627.

[5] [1936] HCA 40; (1936) 55 CLR 499, 504-505.

[6] (1934) 34 SR (NSW) 178, cited in Australian Coal and Shale Employees’ Federation v TheCommonwealth [1953] HCA 25; (1953) 94 CLR 621, 628-9.

[7] [1993] VicRp 69; [1993] 2 VR 201.

[8] Unreported decision, 6 October 1994.

[9] Portland Properties Pty Ltd v Melbourne & Metropolitan Board of Works (1971) 38 LGRA 6, 18 and 22.

[10] [2006] VSC 488, [61].

[11] Criminal Procedure Act 2009, s 272(1).

[12] Secombs (a firm) v Sadler Design Pty Ltd [1999] VSC 79, [58]-[59]; Transport Accident Commission v Hoffman [1989] VicRp 18; [1989] VR 197, 199.

[13] S v Crimes Compensation Tribunal [1998] 1 VR 83, 89 per Phillips JA.

[14] [1990] HCA 59; (1990) 170 CLR 534.

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[15] [1998] HCA 11; (1998) 193 CLR 72 (‘Oshlack ’).

[16] Ibid, 118.

[17] (1995) 36 NSWLR 77.

[18] [1998] HCA 11; (1998) 193 CLR 72, 107.

[19] Kent v Cavanagh (1973) 1 ACTR 43, 55, cited in Oshlack .

[20] [1986] HCA 17; (1986) 161 CLR 513, 518.

[21] Road Safety Act 1986 , s 87(1) read with s 77(2).

[22] See, eg Calabro v Zappia [2010] NSWDC 127.

[23] [1989] HCA 33; (1989) 167 CLR 348, 354.

[24] [1988] HCA 14; (1988) 164 CLR 465, 472, 485-486, 490-491, 496, cited ibid, 354.

[25] [1990] VicRp 84; [1990] VR 951 (‘Young ’).

[26] [2006] VSCA 134.

[27] At 960 as cited ibid, [20].

[28] The accepted test is stated by Sholl J in Yendall v Smith Mitchell & Co Lt d [1953] VicLawRp 53; [1953]VLR 369, 379 as set out by his Honour in Harrison v Mansfield [1953] VicLawRp 60; [1953] VLR 399, 404.

END QUOTE Hobsons Bay City Counci l v Viking Group Holdings Pty Ltd [2010] VSC 386 (27 August 2010)

END QUOTE 20150820-ADDRESS TO THE COURT-in the matter Buloke Shire Council v Schorel-Hlavka

Why on earth should I not be able to claim for my considerable work in seeking to obtain justicein the courts merely because I represent myself as a CONSTITUTIONALIST and ProfessionalAdvocate? In particular that those acting as legal practitioners in my view acted miserablywithout showing any competence in presenting a proper submissions to the court such as therelevant Authorities even those against their client (which I provided plenty of) as required bythe foster legal principle..

Foster (1950) S.R. (N.S.W.) 149, at p151 (Lord Denning, speaking on the role of an advocate)

QUOTE As an advocate he is a minister of Justice equally with a judge, A Barrister cannot pick or choose his

clients...He must accept the brief and do all he honourably can on behalf of his client. I say 'All he

honourably can' because his duty is not only to his client. He has a duty to the court which isparamount. It is a mistake to suppose that he is a mouthpiece of his client to say what he wants: or

his tool to do what he directs. He is none of those things. He owes his allegiance to a higher cause. It is

the cause of truth and Justice. He must not consciously misstate the facts. He must not knowingly

conceal the truth. He must not unjustly make a charge of fraud, that is, without evidence to supportit. He must produce all relevant authorities, even those that are against him. He must see that his clientdiscloses, if ordered, all relevant documents, even those that are fatal to his case. He must disregard the

specific instructions of his client, if they conflict with his duty to the court. END QUOTE .

In the end His Honour Mullaly failed to deal with the OBJECTION TO JURISDICTION,which also was directed against the County Court of Victoria itself, as I successfully did beforethe County Court of Victoria on 19 July 2006 in both appeals then before the court.

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.

It might be extra ordinary for an Appellant to OBJECT TO THE JURISDICTION of the court but in these circumstances it is appropriately to do so. After all where the court were to find thatthe Magistrates Court of Victoria never invoked jurisdiction and as such its orders were invalidAb Initio, then its jurisdiction is limited to amend the purported orders to indicate that thesummons charge was struck out for want of jurisdiction and the court then cannot further hearand determine any summon charge as it has been dismissed for want of jurisdiction preventingthe court to deal with it further De Novo.

As once a judge asked me as I recall it; “If I make orders in your favour you will appeal it, If I

make orders against you then you will appeal it, if I make no orders at all you will appeal it, sowhat orders do you want me to make?” My response was orders that were legally valid. And the

orders that were issued in my favour I appealed and the full court upheld my appeal. It might beextra ordinary for a successful litigant to appeal orders in his favour, but to me I do not come to acourt to win a case but to obtain “justice” and if the court issue orders that are legally wrong it is

not relevant to me if they are in my benefit or not as those orders would set a dangerous precedent if left on record.

http://www.accc.gov.au/business/business-rights-protections/fines-penalties QUOTE

Definitions

Fines are monetary fines (criminal penalty) imposed by courts in criminal proceedings. Criminalstandard of proof is required.

Pecuniary penalties are monetary fines imposed and collected by civil courts. The civil standard of proof is applied (namely the balance of probabilities).

A number of factors are taken into account by the Court in determining the appropriate fine or level of penalty.

END QUOTE

Contrary to His Honour Mullaly claim that no evidence is required (it was a criminal matter) andconsidering that as a CONSTITUTIONALIST I rely upon provisions of the constitution,including to that I referred to constitutional issues relating to the 19 July 2006 litigation of mysuccessful appeals in the County Court of Victoria exercising federal jurisdiction, then for all

purpose and intend the proceedings before the Magistrates Court of Victoria at St Arnaud as wellas the proceedings before His Honour Mullaly on 30 October 2015 were in the federal

jurisdiction of the courts. Hence the OBJECTION TO JURISDICTION in both courts had to beheard and determined within federal jurisdiction.Again:http://www.accc.gov.au/business/business-rights-protections/fines-penalties QUOTE

Fines are monetary fines (criminal penalty) imposed by courts in criminal proceedings. Criminalstandard of proof is required.

END QUOTE

“Criminal standard of proof is required.” and as such regardless if the proceedings were deemedex parte on 17 September 2015 before the Magistrates Court of Victoria at St Arnaud (not that Iconcede it had invoked jurisdiction) it nevertheless would have required “evidence” as to makeany finding of guilt, regardless if a conviction is or is not recorded. The Magistrates Court ofVictoria at St Arnaud having implied a guilt (by applying a fine/penalty) by me as it issuedorders against me set a dangerous precedent that any landowner having a building on his

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property could be found guilty for having this “combustible structure” on his property. That issimply totally unacceptable. No one in his right mind expect property holders to remove for thecurrent fire danger period from 19 October 2015 to 1 May 2015 to remove all wooden fence

poles, to rip out their walls and remove all internal combustible items in their buildings andsheds, etc, whereas no such thing is required by the Country F ir e Author ity Act 1958 . Indeed itwould be absurd to claim that the Captain of the fire brigade who places his own life as well ashis crew on the line doing firefighting would not understand fire dangers, and erect a woodenfence and have this as some alleged fire danger on the property for about 30 years! Yet by theterm of the Fire Prevention Notice his fencing must be removed, as it is part of our fence! Thelegislation refer to the “opinion” of the Municipal Fire prevention Officer” and not that of the

landholder and as such it is not if the landholder has an opinion that having his motor vehicle parked on his property is not a fire danger or that the building and content thereof and the fencingare not a “combustible” fire danger within the meaning of the act, but that the Municipal Fire

Prevention Officer must have formed an “opinion” that requires “removal of all combustible

material”! Therefore the notice is either valid and is within the meaning of the act and the court

can exercise in that jurisdiction or the notice is invalid as it exceeds the legislative powers provided for to the Municipal Fire Prevention Officer and as such cannot provide jurisdiction tothe court either to enforce it and/or use it as a legal basis for litigation against the land holder.

Because this is a State legislation and Buloke Shire Council is acting within s114 of theconstitution to enforce State legislation, at least it pretends doing so then Hobsons Bay CityCouncil v Vik ing Group Holdings Pty L td [2010] VSC 386 (27 August 2010) Authority, legal

principle applies for this also.

http://www.austlii.edu.au/au/cases/cth/HCA/1904/50.html QUOTE Sydney Municipal Council v Commonwealth [1904] HCA 50- (1904) 1 CLR 208 (26 April 1904

The term "the Crown" as used in the Sydney Corporation Act must be taken to mean the Crown in its capacityas representing the State of New South Wales. In the Act of 1879, passed before the establishment of theCommonwealth, it obviously had that meaning, and no wider one can be given to it in the re-enactment of1902. The argument, therefore, sought to be founded upon the assent of the Crown, given through theGovernor of New South Wales, to the taxation of Crown lands, fails, since land vested in the Commonwealthor in the Crown in right of the Commonwealth is not Crown land within the meaning of the Sydney Act. Nor,

in my judgment, can the liability of the land, while Crown land of New South Wales, to municipal taxation beregarded as a liability running with the land, any more than if the land had afterwards been granted for a

purpose which would exempt it from such liability.It was pointed out in the argument that under the Sydney Act the municipal rates are not, as in somemunicipal Acts, such as that which we had to consider in Borough of Glebe v. Lukey (ante, p. 158), made acharge upon the land, but are a personal liability of the owner or occupier, and may be levied by distress uponthe chattels found upon the land. But this distinction does not affect the substantial character of theimposition, which is a tax in respect of property. All such taxes primarily impose a personal liability uponindividuals, and it is, in my opinion, immaterial whether the land does or does not itself become subject to acharge in the nature of an encumbrance. In either case the tax is in substance a "tax on property" in the sensein which these words are commonly understood, and certainly in the sense in which they are used in sec. 114 of the Constitution .

END QUOTE Sydney Municipal Council v Commonwealth [1904] HCA 50- (1904) 1 CLR 208 (26 April 1904

QUOTE Sydney Municipal Council v Commonwealth [1904] HCA 50- (1904) 1 CLR 208 (26 April 1904For these reasons I am of opinion that the rates sought to be recovered in this action are taxes within themeaning of sec. 114 of the Constitution , that they are taxes imposed upon property, and that the impositionof them upon property of the Commonwealth is prohibited by the express words of sec. 114 of theConstitution . I am of opinion further, for the reasons given in that case, that sec. 110 of the Sydney Act of1902 should be construed as not applying to the lands in question.

END QUOTE Sydney Municipal Council v Commonwealth [1904] HCA 50- (1904) 1 CLR 208 (26 April 1904

The essence is that where the Court held that council exercising delegated powers of the Statethen had the position of the state. Numerous other Authorities are of the same findings. This thenapplies also where a council seeks to enforce State legislation as is with Buloke Shire Council it

then is in a standing of the position of the State and must comply with the limitations provided

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for by State legislation being the Country F ir e Authority Act 1958 and cannot upon its ownundertaking exceeds the legislative powers delegated to a council Municipal Fire PreventionOfficer. Therefore, where the Country F ir e Author ity Act 1958 excludes building and contentthen the Municipal Fire Prevention Officer has no powers to demand “removal of all combustiblematerials” as it is in violation of the delegated powers. Using the terminology “all combustiblematerial” in itself indicates a violation of the exclusion provided f or in the legislation as well asthat the Municipal Fire Prevention Officer continually year after year issuing such wordednotices never really understood nor applied appropriately his powers as a Municipal FirePrevention Officer. In my view a Fire Prevention Notice should be containing for example suchas “The removal of the 4 drums marked HAZARD that are situated at the left side of the frontgate.” While I do not have such drums and merely use it as an example, it is however anotification the land holder then knows what precisely is held to be a fire danger. The landownermay then request the Municipal Fire Prevention Officer to amend his fire Prevention Notice say

because the drums do not contain hazardous materials but contains sand/soil as to form a protection against motor vehicles accidentally driving onto the yard. As such a Fire Prevention Notice must be specific as to allow the land holder to dispute any matter stated and the Municipalfire prevention officer who may have had the “opinion” based on the marking of the drums therecould be a fire danger then may find that the content is not a fire danger and then amend or

withdraw the Fire Prevention Notice. However a general fire prevention Notice would deny alandowner to be aware what precisely was the issue that the Municipal Fire Prevention Officerformed his “opinion”, and as such denied to be able to reasonably comply with the FirePrevention Notice. It might very well be that the Fire prevention Notice may have an issue withthe location of wood stacked up for an open fire and so may hold that it should be moved toanother location within the property to avoid for example sparks from the chimney toaccidentally put the fire wood on fire. As such the “removal of all combustible material” wouldfail to be a proper indication as to what might be the real issue and denied the landholder hisFEE SIMPLE rights in general. Numerous properties have fire wood stacked up because ofusage for open fires and the direction “removal of all combustible material” would undulyinterfere with a landholders rights and not intended as such with the provisions of the Country

F ir e Author ity Act 1958 . It is absurd to hold that because a building may exist (on a property) thatis of combustible material then a Fire Prevention Notice is justified and without any evidencethen the landholder can be found guilty this even so the Country F ir e Author ity Act 1958 has nosuch intention!

While His Honour Mullaly appeared to me to indicate that I sought somehow to be excludedfrom enforcement of legislation the truth is that I pursue the correct enforcement of legislation(albeit without conceding the legislation to be valid in law – as that is another constitutionalissue). Because any property ordinary contains ‘combustible materials” which may not at all be afire hazard, the usage of the wording “removal of all combustible materials” indicates thattherefore the Municipal Fire Prevention Officer didn’t form an “opinion” because the Fire

Prevention Notice is not issued specifically to the circumstances of a particular property butrather is a general usage to whatever condition and circumstances there may exist and as suchviolated the legal requirements of the Municipal Fire Prevention Officer to form an “opinion”.The usage of the word “opinion” must in the context of the legislation be deemed to imply thatthe Municipal Fire Prevention Officer has a proper training and understanding as to what is a firedanger and the notice will specify what are the particular issues. The usage of “removal of all combustible materials” doesn’t state what specific issue is to be addressed and leaves it up to thelandholder to guess what on earth was intended by the Municipal Fire Prevention Officer.Clearly this is not what the legislation (Country Fir e Authority Act 1958 ) intended!

Because unreported cases and its transcripts still can be used the danger that His Honour Mullaly

stated that ex parte hearings do not require “evidence” this even so being a criminal matter, I

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Documents

20151102-Schorel-Hlavka O.W.B. to Mr Peter Kidd CJ County Court of Victoria-Re Buloke Shire Council -APPEAL-15-2502- Re COMPLAINT -Supplement 2