Court of Appeal Supreme Court New South Wales

• Medium Neutral Citation: Baker v Attorney General for New South Wales [2013] NSWCA 329
• Hearing dates: 30 August 2013
• Decision date: 30 August 2013
• Before: Basten JA; Ward JA

Decision

(1) On 30 August 2013, the application for leave to appeal in the summons dated 30 April 2013 was dismissed.

Further orders:

(2) Direct that the Attorney General for New South Wales be named as the respondent.

(3) To the extent that it is necessary, extend the time for service of the notice of intention to appeal and the summons seeking leave to appeal until 30 April 2013.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

• Catchwords: ADMINISTRATIVE LAW - judicial review - error of law - claimed right to trial by jury with respect to traffic offences - question of validity of judicial appointments; APPEAL - extension of time - notice of intention to appeal and summons seeking leave to appeal filed in time - no evidence as to timeliness of service of documents; CONSTITUTIONAL LAW - validity of appointment of judicial officers - right to trial by jury with respect to traffic offences; CRIMINAL LAW - traffic offences - claimed right to trial by jury
• Legislation Cited: Constitution, s 80; Constitution Act 1902 (NSW), s 9A; Criminal Procedure Act 1986 (NSW), ss 6, 7; Imperial Acts Application Act 1969 (NSW), s 6; Judiciary Act 1903 (Cth), s 78B; Local Court Act 2007 (NSW), s 8; Police Act 1990 (NSW), s 4; Supreme Court Act 1970 (NSW), ss 40, 53, 69, 69B, 85, 101
• Cases Cited: Byrnes v The Queen [1999] HCA 38; 199 CLR 1; Galea v New South Wales Egg Corporation [1989] NSWCA 81
• Texts Cited: A Twomey, The Constitution of New South Wales (Federation Press, 2004), 118, 146, 607-618
• Category: Principal judgment
• Parties: Cyril Brett Baker (Applicant); Attorney General for New South Wales (Respondent)
• Representation: Applicant (Self-represented); Ms B K Baker (Respondent); Applicant (Self-represented); I V Knight, Crown Solicitor (Respondent)
• File Number(s): CA 2013/059944

Decision under appeal

• Jurisdiction: 9111
• Citation: Baker v New South Wales Police [2013] NSWSC 57
• Date of Decision: 2013-02-07 00:00:00
• Before: Latham J
• File Number(s): SC 2012/106554

Judgment

1 THE COURT: On 9 March 2012 Cyril Brett Baker (the applicant) was convicted and fined $1,168 and disqualified from holding a driver's licence for 12 months. These penalties were imposed for four offences which took place in mid-2011 (the date or dates are not identified in the papers before this Court), for failing or refusing to undergo a breath test, refusing to produce a licence and state his name, exceeding the speed limit by more than 10km per hour, and failing or refusing to undergo a breath analysis.

2 The applicant had rights of appeal pursuant to the Crimes (Appeal and Review) Act 2001 (NSW), but on 24 April 2012 he sought judicial review of the judgment and orders of the Local Court pursuant to ss 69 and 69B of the Supreme Court Act 1970 (NSW). An amended summons was filed on 14 May 2012. That summons was listed for hearing on 31 January 2013 before Latham J in the Common Law Division. On 7 February 2013 she dismissed the amended summons with costs: Baker v New South Wales Police [2013] NSWSC 57.

3 The present proceeding is an application for leave to appeal from that judgment. Leave to appeal was refused at the hearing of the application. The reasons for that order are as follows.

Commencement of proceedings in this Court

4 On 26 February 2013 the applicant filed a notice of intention to appeal, from the judgment of the primary judge. On 30 April 2013 he filed a summons seeking leave to appeal.

5 The respondent named in the proceedings initially was the "NSW Police Force". That body is established by s 4 of the Police Act 1990 (NSW) but is not an individual or a body corporate capable of being sued in that name. The proceedings against the applicant were probably the subject of an information (court attendance notice) issued by a police officer, although that does not appear from the papers. The appropriate respondent was the officer who was the informant in the Local Court. It is sufficient to name the Attorney General for New South Wales. Because the arguments foreshadowed by the applicant purported to raise a constitutional issue, notices were issued under s 78B of the Judiciary Act 1903 (Cth) to the Attorneys of the Commonwealth and the various States. The Attorney General for New South Wales was joined on his application in response to that notice.

6 The Crown Solicitor filed a "response" to the application for leave to appeal which asserted that neither the notice of intention to appeal nor the summons was served within time. A copy of the white folder, including the notice and the summons were said to have been served on the Attorney on 30 April 2013. The Crown Solicitor submitted that an extension of time was required and should be refused because the proposed appeal lacked merit.

7 While it is true that there is no evidence that the documents had been filed in a timely fashion, there was no evidence that they had not. Accordingly, to the extent that it is necessary to extend time the applicant should have an extension of time until 30 April 2013.

Grounds of appeal - right to a jury

8 The gravamen of the applicant's complaint in the Court below was that he had an "inalienable right to trial by jury and the lawful judgment of my equals that has been guaranteed forever by Magna Carta 1215, the Confirmation of Charters 1297, the Petition of Rights 1627, the Habeas Corpus Act 1640 (to Abolish the Star Chamber) and the Bill of Rights 1689 which are entrenched common law in Australia". He also claimed damages in the amount of $250,000 for breach of the Habeas Corpus Act 1640.

9 The primary judge noted that the offences for which he had been brought before the Local Court were offences against the Road Transport (Safety and Traffic Management) Act 1999 (NSW) and the Road Transport (General) Act 2005 (NSW). The primary judge further noted that the applicant had sought to invoke s 80 of the Constitution, which provides (in part) that "[t]he trial on indictment of any offence against any law of the Commonwealth shall be by jury ...". The applicant was not charged with an offence against any law of the Commonwealth, which is a different juristic entity from the State. Section 80 was irrelevant. For that incontrovertible proposition, the primary judge cited authority, namely Byrnes v The Queen [1999] HCA 38; 199 CLR 1 at [70] (Gaudron, McHugh, Gummow and Callinan JJ).

10 The applicant also sought to rely upon the various Imperial statutes to which reference has been made above. The operation of those statutes (to the extent that they are relevant) depends upon the effect of the Imperial Acts Application Act 1969 (NSW). Those Imperial enactments not set out in the First Schedule to the 1969 Act (which were abolished) and those enactments which are set out in the Third Schedule (none of which are presently relevant) remain in force, except to the extent that they have been affected by any State Act: s 6(b); Galea v New South Wales Egg Corporation [1989] NSWCA 81 at p 6(20)-(35).

11 As the primary judge explained, the charges were properly dealt with as summary offences pursuant to the Criminal Procedure Act 1986 (NSW), s 6(1)(c). They were to be dealt with in the Local Court: Criminal Procedure Act, s 7(1). The Local Court was properly constituted by a magistrate to hear and determine such proceedings: Local Court Act 2007 (NSW), s 8. Accordingly, the applicant had no right to a trial by jury. (It is not necessary to explore the fallacious proposition that he had a right to trial by jury under the Imperial Acts upon which he sought to rely.)

Jurisdiction

12 The applicant also alleged he had a right to trial by jury of the judicial review proceedings heard by Latham J, a proposition which she rejected. There was no error in the primary judge's conclusion that, as a single judge of the Court, she had jurisdiction to determine the judicial review proceedings (pursuant to ss 40 and 53 of the Supreme Court Act) and that, in the absence of an order otherwise, the proceedings were to be heard without a jury (pursuant to s 85(1) of that Act): at [19]. Indeed, there can be no jury trial in civil proceedings in this State (other than defamation proceedings) unless the court is affirmatively satisfied that "the interests of justice require a trial by jury": s 85(2)(b).

13 The court could not in any event have been so satisfied. Proceedings for prerogative relief were not traditionally heard by a judge with a jury. The conventional role of a jury is to determine facts and none were in issue in this case.

14 The summons seeking leave to appeal from the judgment of the primary judge stated that it was brought under s 101 of the Supreme Court Act. That was correct: leave was required pursuant to s 101(2)(r). In the course of submissions, the applicant claimed that he had a right of appeal without leave, as a "common law right". That was not correct: there is no common law right of appeal.

Validity of Judicial Appointments

15 Mr Baker contends that the primary judge was not lawfully appointed to the Supreme Court because the Supreme Court Act is not lawful "due to not ever receiving valid Royal Assent". The basis for that contention was that the Governor of New South Wales, who gave assent to that legislation, was not validly appointed by "Her Majesty Queen Elizabeth the Second as there have been no Orders from the Privy Council creating that office": summary of argument [10], [20].

16 The primary judge rejected the challenge to the validity of her appointment. She said, correctly, that the Privy Council does not appoint the Governor of New South Wales: [27]. Prior to 1987, the Governor of New South Wales was appointed by Commission issued under the Royal Sign Manual and Signet, pursuant to Letters Patent constituting the Office of Governor of the State of NSW. Since 1987, the Governor of New South Wales is appointed "by Commission under Her Majesty's Sign Manual and the Public Seal of the State": Constitution Act 1902 (NSW), s 9A, and see generally, A Twomey, The Constitution of New South Wales (Federation Press, 2004), 118, 146, 607-618.

Conclusion

17 The grounds upon which the applicant sought to appeal from the decision of the primary judge were all untenable. For these reasons leave to appeal was refused at the hearing of the application. The Court should direct that the Attorney General be named as the respondent. The Attorney did not seek costs.

18 In addition to the order already made dismissing the application, the Court makes the following further orders:

(1) Direct that the Attorney General be named as the respondent.

(2) To the extent that it is necessary, extend the time for service of the notice of intention to appeal and the summons seeking leave to appeal until 30 April 2013.

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Decision last updated: 10 October 2013