New South Wales Supreme Court CITATION : Spajic v Robertson & Ors [2007] NSWSC 553 This decision has been amended. Please see the end of the judgment for a list of the amendments. HEARING DATE(S) : 28 May 2007 JUDGMENT DATE : 30 May 2007 JURISDICTION : Common Law JUDGMENT OF : Michael Grove J at 1 DECISION : Summons Dismissed CATCHWORDS : PREROGATIVE RELIEF - CONVICTIONS BY LOCAL COURT FOR OFFENCES RELATING TO UNREGISTERED VEHICLE - EX PARTE HEARING - PROCEDURE ADOPTED BY MAGISTRATE VALID - CHALLENGE TO LEGISLATION MISCONCEIVED - PROCEEDINGS FUTILE AND SHOULD BE DISMISSED LEGISLATION CITED : Criminal Procedure Act 1986 PARTIES : Igor Spajic v Brian Robertson (Director of the State Debt Recovery Office of NSW), Magistrate Ian Barnett and Gary Smith FILE NUMBER(S) : SC 2006/16293 In person (Plaintiff) COUNSEL : Miss B. Baker (1st & 3rd Defendants) Submitting Appearance (2nd Defendant) SOLICITORS : N/A (Plaintiff) I.V. Knight (Crown Solicitor) IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION MICHAEL GROVE J Wednesday 30 May 2007 2006/16293 - IGOR SPAJIC v BRIAN ROBERTSON (DIRECTOR OF THE STATE DEBT RECOVERY OFFICE OF NSW) & ORS JUDGMENT 1 HIS HONOUR: This is a summons brought by the plaintiff, who appears in person, which is titled "application for prerogative remedy". 2 Earlier this week I dealt with a notice of motion and also with an application by the plaintiff for adjournment of the hearing of this summons. 3 Subsequent to the hearing, which occurred consequent upon my refusal of the adjournment, the plaintiff sought leave to supplement what he wished to submit by way of written submissions. I have received those written submissions and they will remain with the papers. 4 It can be said that those written submissions, in substance, add very little to what was contained in an earlier affidavit which itself really amounted to submissions rather than assertions of fact. 5 One of the reasons, in addition to giving the plaintiff the opportunity to make those written submissions, that the matter was adjourned to today was to enable me to look more carefully at written material, including the depositions of proceedings before the magistrate, which I had previously only had the opportunity to scan. As I shall later indicate, the opportunity to read that material in detail rather provided a key to what is necessary to determine this matter. 6 In broad terms, the complaints of the plaintiff for which he seeks relief arise out of proceedings brought against him for offences relating to the non-registration of a vehicle. Those proceedings were commenced in the Local Court by way of the issue of Court Attendance Notices. 7 It is important to observe that those notices had a return date of 19 April 2004 and the records show that the plaintiff appeared in person on that return date. 8 The matters were then listed for hearing at the Sutherland Local Court scheduled to be heard on 25 June 2004. As I have stated, the records show that the plaintiff was present when that fixture was directed. 9 Subsequent to 19 April the plaintiff made applications, in effect, to vacate the date of 25 June 2004 and adjourn the matter to another date. 10 Those applications were made on the basis that his legal representative would not be available on 25 June. 11 As appears from the transcripts the legal representative to whom he referred was somebody whom he nominated as a common law attorney, which he ultimately defined as a "McKenzie" friend. That person is not a qualified barrister or solicitor. Nevertheless, nothing turns upon this in relation to the determination of the present summons. 12 The applications to vacate the hearing date on 25 June failed. The plaintiff then simply absented himself on that date. 13 He must have been well aware that the previous applications to vacate the date had been refused. 14 What happened on that date was that a magistrate dealt with the matters in his absence. He was authorised so to do specifically by provision in the Criminal Procedure Act, relevant to which is section 199(1) which provides: "The court may determine proceedings heard in the absence of the accused person on the basis of the Court Attendance Notice without hearing the prosecutor's witnesses or any other additional evidence of the prosecutor if it is of the opinion that the matters set out in the Court Attendance Notice are sufficient to establish the offence". 15 I observe, as the plaintiff has in his written submissions, that subsection 2 directs the court to consider any written material that may have been submitted. 16 The written material submitted by the plaintiff, in effect, focused upon his desire to vacate the hearing date to some date which would be convenient to the person whom, as I have said, he described as his common law attorney. 17 The submissions by the plaintiff are couched in terms which frequently recite or paraphrase well known legal principles. These are almost invariably quoted out of their context. 18 The plaintiff continues to complain, for example, that the magistrate dealt with the allegations without taking evidence. 19 As I have pointed out, he is specifically authorised so to do by provision in the Criminal Procedure Act. 20 As I have said, however, the key to the determination of this matter can be found in the posture which the plaintiff himself revealed in an exchange with a magistrate in December 2004 when an application by him to annul the ex parte convictions was ultimately refused. 21 Having ascertained from the plaintiff that he was seeking to set aside the various convictions the magistrate then called upon the plaintiff to explain what he contended. 22 I observe, of course, that he again raised the question that the so-called common law attorney was not available. 23 Nevertheless, he informed the magistrate that his arguments "will be founded in common law and constitutional law as well". The magistrate, not surprisingly, asked for some explanation about what the plaintiff was contending. 24 It does not require a paraphrase by me to demonstrate just what the stance of the plaintiff would appear to be. I quote from the transcript of 13 December 2004. "HIS HONOUR: I am not asking you for the technical argument. I am just asking you to give me some overview, if you can, as to why you say there is a technical issue in relation to these matters. . APPLICANT: (That is to say the plaintiff before this court) The matters relate to issues of the legal definition of registration. Registration, I will contend, can occur under common law. It is not a monopoly that can be controlled solely by the State. I believe all the other matters would pertain to that in-- HIS HONOUR: Sorry, I just don't really understand that. Are you saying that because the State under legislation directs that vehicles be registered in a particular way is monopolistic in some sense? APPLICANT: Yes, that is a monopoly. Also-- HIS HONOUR: So, contrary to, in the Act it says, I understand the legislation, you have a registered car before you are entitled to drive it on a road under the State of New South Wales. Are you saying there is an alternative registration process? APPLICANT: There is an alternative method, yes. HIS HONOUR: What would you be submitting that is? APPLICANT: That is an alternative method under common law. HIS HONOUR: Yes. Who do you say you register your car with under common law? APPLICANT: It can be registered with a union of people called Up Mart. HIS HONOUR: Do you have any financial relationship with Up Mart? APPLICANT: I am a member. HIS HONOUR: What is Up Mart? APPLICANT: It is a union of people that have got together for the purpose of protesting the onerous aspects of existing statute legislation and providing an alternative. It is about uplifting the common wheel (sic). It is about empowering people through tools of natural law and common law. It is basically a social justice movement, your worship". 25 I can derive from that material the stance of the plaintiff, which is that legislation is for some reason invalid, and that it is not obligatory upon him to comply with the requirements of the legislation. 26 As I have said, in his written submission he has quoted, generally out of context, all sorts of general principles. But when it comes down to what his complaint really is, it is that he has been convicted pursuant to statute and he does not wish to comply with that statute. As I have pointed out, the procedure undertaken by the magistrate was expressly authorised by legislation. 27 The constitutional arrangements of the State of New South Wales are such that it reposes within the legislature the power to make the laws. Those laws include traffic laws which require registration of vehicles which are used upon the roads. 28 There is no basis upon which some group of people, whether they are called Up Mart or anything else can establish an alternative regime. 29 It is, in my view, futile to proceed further with this summons. It is entirely misconceived and involves, in essence, a challenge to the existing order of constitutional arrangements by which this State is governed. 30 There is no merit whatever in this application and the summons is dismissed with costs. ********** 01/06/2007 - The file number on the coversheet was transposed - Paragraph(s) Nil 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. 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