New South Wales Supreme Court CITATION : Murphy v The Magistrate, Burwood Local Court [2001] NSWSC 524 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 30033/01; 11197/01 HEARING DATE(S) : Wednesday 20 June 2001 JUDGMENT DATE : 20 June 2001 PARTIES : David Murphy v The Magistrate, Burwood Local Court JUDGMENT OF : Michael Grove J at 1 COUNSEL : In Person (Plaintiff) N/A (Defendant) SOLICITORS : N/A CATCHWORDS : CIVIL PROCEDURE - PURPORTED INITIATION OF PROCEEDINGS BY FILING APPLICATION FOR MAGISTRATE TO STATE A CASE AND UNSIGNED DRAFT CASE STATED DECISION : Listing struck out. THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION ADMINISTRATIVE LAW LIST MICHAEL GROVE J Wednesday 20 June 2001 30033/01 - DAVID MURPHY v THE MAGISTRATE 11197/01 BURWOOD LOCAL COURT JUDGMENT 1 HIS HONOUR: There is a file before the Court which has been raised, pursuant to an order made on 7 May last, transferring proceedings to what was described as the Administrative Law Division. As at the time of the order, that division had been absorbed within the Common Law Division, although there is maintained a separate Administrative Law list. I do not consider this a matter of critical consequence. 2 Mr Murphy, who is the moving party to the proceedings, who has described himself in documents to which I shall refer as "the appellant" has appeared in person. Neither on 7 May, nor today has there been any other appearance. 3 The documentation describes the other party to the proceedings as the Magistrate Burwood Local Court. Mr Murphy informs me, and for present purposes I accept, that the documents that I have mentioned have been submitted to Burwood Local Court. In addition, he has tendered to me a Registered Post receipt dated 1 May 2001 showing that material was dispatched to Fadi and Fatima Sabih at their address 7/88 The Broadway, Punchbowl. Mr Murphy informs me that what was contained in the packet were copies of the documents and, for present purposes, I accept that that was so. 4 The documents were accepted by the registry and bear filing stamps dated 26 April 2001. The first is described as a request to state a case and is signed by Mr Murphy. The second document is entitled "Stated Case" and has annexed to it various documents which it is unnecessary to schedule. 5 One significant matter and, indeed, a critical matter is that the stated case does not bear any signature of a magistrate. There is no originating summons and these proceedings have not been instituted in accordance with applicable rules of Court. 6 Mr Murphy informs me, and again I accept what he says, that he has made inquiries of registry staff and has also made a search of information available on the internet in order to comply with requisite procedures for bringing his complaint before the Court. 7 The complaint arises out of a determination made by a magistrate at Burwood Local Court on 29 March 2001. I am able to observe from the documents that Mr Murphy brought a claim against Fatima and Fadi Sabih pursuant to an amended statement of liquidated claim in which he sought the sum of $2,712 together with a little less than $650 interest plus some costs. 8 It is unnecessary to detail the basis of Mr Murphy's claim, but it arises out of a promotion of what Mr Murphy says has turned out to be a pyramid selling scheme. The reason that the detail does not matter is that what is involved is a claim by Mr Murphy seeking judgment in a sum of money against the Sabihs. They are not parties, even on the face of the proceedings, which have been brought before this Court. I leave to one side the procedural deficiencies of the documents filed. 9 What Mr Murphy is seeking is that, in some way or another, the decision of the magistrate be overturned and that in lieu of judgment in favour of the defendants there be judgment in his favour for either the sum claimed or, in any event, a sum of money. 10 As I have related, the only knowledge that the Sabihs would have, assuming they received the documents dispatched to them, is that Mr Murphy was requesting that a case be stated and they would have a copy of an unsigned stated case. They are not parties to the litigation and it is, therefore, entirely unsurprising that they are not here today. 11 I have pointed out to Mr Murphy that it is, therefore, inconceivable that I would enter judgment in his favour against people who are not parties to the litigation and whose notice of what is occurring today is limited to the presumed receipt of the documents which I have mentioned. 12 The documents are not in any way, shape or form appropriate for the initiation of proceedings in this Court. Mr Murphy has not suggested any way that this could be repaired. This is not a criticism of him and, for my part, I see no way that this documentation in its current condition could be amended so as to remedy the fundamental defects. 13 Although the registry has accepted the documents they perform no function at all in bringing any matter for determination before this Court. In an explanation which I offered early earlier to Mr Murphy, I indicated that they were a nullity and I confirm my final view to that effect. 14 Mr Murphy was invited to make submissions and indicated that he wished to proceed to obtain the relief which he seeks, namely judgment in his favour against the Sabihs, but that will not be available in relation to the listing today. MURPHY: Your Honour, if I may, can I withdraw the documents and correct the deficiencies? 15 HIS HONOUR: Mr Murphy has risen to his feet and asked whether he can withdraw the documents and correct the deficiencies. As I have already indicated, I do not believe that this can be done. In my view, the only course available to the Court is to strike the matter out of the list, as it is based upon documents which are nullities and Mr Murphy may take such further steps, if any, as he may determine or as he may be advised. 16 In the circumstances, I did not mark the registration receipt as an exhibit and I direct that that be returned to Mr Murphy. 17 The formal order I make is that the listing today and the documents upon which it is based are struck out. ********** Last Modified: 06/25/2001 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.