Sunteți pe pagina 1din 70

Page 1

(Revised format) AP 2502


Hearing date 22-2-2006 (or alternative date if allocated)
ADDRESS TO THE COURT (Written submissions)
County Court of Victoria
Ballarat venue (and/or alternative venue)
Cc:

Elliott Stafford and Associated


lawyers@elliottstafford.com.au
Daniel Andrews Premier Victoria daniel.andrews@parliament.vic.gov.au
Mr Martin Pakula, martin.pakula@parliament.vic.gov.au & attorney-general@justice.vic.gov.au

Reference AP 2502 Buloke Shire Council for State of Victoria (s114 of the constitution) v Schorel-Hlavka

Sir/Madam,
as a (retired) Professional Advocate I have spent a lot of time researching
Authorities, knowing too well that the High Court of Australia in its early days had its judgments
riddled with references to foreign jurisdictions Authorities, in particular relating to the U.S.A. As
a CONSTITUTIONALIST I am however aware that one has to be very careful to not take all
Authorities as gospel. One has to carefully consider each Authority and so as to how it may fit
within the constitutional context and so embedded legal principles of the Commonwealth of
Australia Constitution Act 1900 (UK)
Further below I will set out an explanation of the ADDRESS TO THE COURT being written
submission to the court and why it has been endorsed by appellate courts in successful appeals,
as well as used in the High Court of Australia.
It may be extra ordinary that an Appellant would challenge the jurisdiction of the court to hear
and determine the appeal the Appellant filed by this removing the jurisdiction of the court to hear
and determine the appeal but having to consider the OBJECTION TO JURISDICTION as the
only issue before the court, but legally there is nothing wrong in this. After all, if the
jurisdictional hearing were to conclude that the court cannot invoke jurisdiction because the
orders appealed against were issue without the magistrates court of Victoria at St Arnaud having
invoked jurisdiction then I have achieved what I did set out to do and have a judgment that
basically nullifies the purported 17 September 2015 orders.
.

I will with the same email which is used to forward a copy of this ADDRESS TO THE
COURT also the audio transcript I had to pay for of the 17 September 2015 hearing before the
Magistrates Court of Victoria at St Arnaud.
.

I challenged the validity of the St Arnaud venue also as it is not the proper venue regarding
Berriwillock, where the alleged offence was claimed to have occurred as this is Swan Hill or near
my residential place in Heidelberg (due to water damage to the Heidelberg venue the Magistrates
Court of Victoria in Melbourne City (William Street) is an alternative venue. It is an absurdity
that I having OBJECTED TO THE JURISDICTION of the Magistrates Court of Victoria at St
Arnaud now am forced to travel to Ballarat as this rewards the wrong doer Buloke Shire Council
and its legal representatives instead of ruling according to law. The fact that the Magistrates
Court of Victoria at St Arnaud disregarded my OBJECTION TO JURISDICTION on both
hearing days cannot overcome that it never invoked jurisdiction.
In my view the jurisdictional issue should be a Melbourne venue hearing and not Ballarat. The
Fact that His Honour Mullaly J issued His Honour Mullaly J orders before finally considering
the ADDRESS TO THE COURT containing my submissions including the OBJECTION TO
JURISDICTION cannot be deny me my legal rights. His Honour Mullaly J as such never
invoked jurisdiction.
Any attendance by me to a court venue therefore is not intended and must neither be
perceived to relinquish my objections. I persist in my rights unabated.
It must be clear from what is set out below that I am not nor can be deemed to be prepared for
any De Novo hearing, besides I submit no legal power exist to proceed with a De Novo hearing
where the court omitted to invoke jurisdiction.
p1

2-2-2016

Hearing date 22-2-2016 Ballarat venue

Mr G. H. Schorel-Hlavka O.W.B.

Appeal 15-2502

Deponent: Mr G. H. Schorel-Hlavka O.W.B. 107 Graham Road, Viewbank 3084, Victoria admin@inspector-rikati.com

(Buloke Shire Council) Prosecutors legal representatives ES&a Lawyers

Page 2 (Revised format) AP 2502


Hearing date 22-2-2006 (or alternative date if allocated)
I have never been served with a proper full brief despite my 27 October 2015 written request
for this regarding the 17 September 2015/20 August 2015 hearings.
It may be a legal requirement but it appears obvious that Buloke Shire Council and aided with its
legal representatives couldnt give a darn about the rule of law as they so to say seem to have the
court as a puppet on a string to do as it is told.
I do not have a copy of the court file nor was despite various request provided with sealed orders
and had to file an appeal without having any proper information as to the precise orders or better
to state purported orders of 17 September 2015.

And I will now also quote the 17 September 2015 ADDRESS TO THE COURT that was filed
before hand by way of 16 August 2015 email
QUOTE 20150816 -Schorel-Hlavka O.W.B. to Magistrates Court of Victoria at St Arnaud cc ES&a LA-05-06-Re
Buloke Shire Council- LSC-COM-2015-0873

Magistrates Court of Victoria at St Arnaud

16-8-2015

c/o the coordinator starnaudcoordinator@magistratescourt.vic.gov.au


Cc:

Elliott Stafford and Associated lawyers@elliottstafford.com.au


Buloke Shire Council buloke@buloke.vic.gov.au
Daniel Andrews Premier Victoria daniel.andrews@parliament.vic.gov.au
George Williams george.williams@unsw.edu.au
Cr Reid Mather (Mayor) MALLEE WARD crmather@buloke.vic.gov.au
Cr David Pollard (Deputy Mayor) LOWER AVOCA WARD crpollard@buloke.vic.gov.au
Cr Leo Tellefson MOUNT JEFFCOTT WARD crtellefson@buloke.vic.gov.au
Cr Stuart McLean LOWER AVOCA WARD crmclean@buloke.vic.gov.au
Cr Graeme Milne MOUNT JEFFCOTT WARD crmilne@buloke.vic.gov.au
Cr Gail Sharp MOUNT JEFFCOTT WARD crsharp@buloke.vic.gov.au
Cr Ellen White, MALLEE WARD, crwhite@buloke.vic.gov.au
Re: 20150816 -Schorel-Hlavka O.W.B. to Magistrates Court of Victoria at St Arnaud
cc ES&a LA-05-06-Re Buloke Shire Council- LSC-COM-2015-0873

Sir/Madam,

I indicated to (Buloke Shire Council) the prosecutor s legal representatives to have the
matter without conceding jurisdiction transferred to the Magistrates Court of Victoria at
Heidelberg, which is about 4 kilometres from my residence, also considering that ES&a Lawyers
are located in Clifton Hill (Melbourne).
Due to health conditions concerning my wife as well as myself having become ill it is unlikely I
could attend on 20 August 2015 to the court in St Arnaud. I request hereby that the matter,
without that I concede jurisdiction is transferred to the Magistrates Court of Victoria at
Heidelberg. I may also raise the issue that St Arnauds court location only sits on Thursdays,
whereas at Heidelberg I understand it sits every day. As I enclose hereby a copy of my
ADDRESS TO THE COURT that includes an OBJECTION TO JURISDICTION then the
matter could in my view not be heard and determined on 20 August 2015.
I submit that it wouldnt be appropriate to argue legal issues that may take more than likely more
than a day in a court location that only sits once a week. It would be an injustice to because to
travel time and time again to St Arnaud for this.
See the document 20150820-ADDRESS TO THE COURT-in the matter Buloke Shire
Council v Schorel-Hlavka that will be attached to the same email as this correspondence.
I look forwards to your confirmation that the matter has been transferred to the Magistrates Court
of Victoria at Heidelberg and so the attached ADDRESS TO THE COURT.
This correspondence is not intended and neither must be perceived to state all issues/details.
Awaiting your response,
G. H. Schorel-Hlavka O.W.B. (Gerrit)

p2

2-2-2016

Hearing date 22-2-2016 Ballarat venue

Mr G. H. Schorel-Hlavka O.W.B.

Appeal 15-2502

Deponent: Mr G. H. Schorel-Hlavka O.W.B. 107 Graham Road, Viewbank 3084, Victoria admin@inspector-rikati.com

(Buloke Shire Council) Prosecutors legal representatives ES&a Lawyers

Page 3

(Revised format)

AP 2502

Hearing date 22-2-2006 (or alternative date if allocated)

MAY JUSTICE ALWAYS PREVAIL


Our name is our motto!)

END QUOTE 20150816 -Schorel-Hlavka O.W.B. to Magistrates Court of Victoria at St Arnaud cc ES&a LA-0506-Re Buloke Shire Council- LSC-COM-2015-0873
QUOTE 20150820-ADDRESS TO THE COURT-in the matter Buloke Shire Council v Schorel-Hlavka

ADDRESS TO THE COURT


Magistrates Court of Victoria
AT: St Arnaud ( or alternative court location)
IN THE MATTER:
Buloke Shire Council v Schorel-Hlavka
Hearing date 20-8-2015
Sir/Madam,
I object to the jurisdiction of this court, as I indicated to Buloke Shire Council.
As I have encountered in the past judicial officers who failed to understand/comprehend the legal
processes involved in an OBJECTION TO JURISDICTIONI I will attempt to explain this.
.

In 1988 I relied upon a Supreme Court of Victoria decision that my then 2 year old daughter had
been wrongly arrested by Warrant, which the court held was in violation to the existing Supreme
Court of Victoria orders, as to sue the State of Victoria. At the hearing however counsel for the
State of Victoria suddenly stated to object to the jurisdiction of the court. His Honour explained I
had to prove jurisdiction failing this the case would go no further. I outlined the Courts previous
findings, the relevant State laws I relied upon, etc. His Honour however held that I failed to
prove the legislation was validly gazette, etc, and as such dismissed my case for want of
jurisdiction. His Honour did make known that he could understand I would not be too pleased
with this, but counsel didnt have to disprove jurisdiction as merely to object to the jurisdiction
was placing the onus upon me to prove jurisdiction. Until that time I had been researching the
Commonwealth of Australia Constitution Act 1900 (UK) but now found myself confronted with
what is referred to as the Victorian Constitution Act 1975.
I accepted that His Honour facing an OBJECTION TO JURISDICTION was bound by law to
deal with this matter first as to determine if the court had jurisdiction before it could consider any
other matter.
I decided to research the Victorian Constitution Act 1975 and to my horror discovered it was
named Victorian Constitution Act 1975 was not a constitution at all. It is merely an act of
Parliament.
And this is where my knowledge regarding the Commonwealth of Australia Constitution Act
1900 (UK) is so important. This because the Framers of the constitution having provided for that
the Colonies upon federation would become States embedded the legal principle:
HANSARD 10-03-1891 Constitution Convention Debates
QUOTE
Dr. COCKBURN: All our experience hitherto has been under the condition of parliamentary
sovereignty. Parliament has been the supreme body. But when we embark on federation we throw
parliamentary sovereignty overboard. Parliament is no longer supreme. Our parliaments at present are
not only legislative, but constituent bodies. They have not only the power of legislation, but the power
of amending their constitutions. That must disappear at once on the abolition of parliamentary
sovereignty. No parliament under a federation can be a constituent body; it will cease to have the
power of changing its constitution at its own will. Again, instead of parliament being supreme, the
parliaments of a federation are coordinate bodies-the main power is split up, instead of being vested in
one body. More than all that, there is this difference: When parliamentary sovereignty is dispensed
with, instead of there being a high court of parliament, you bring into existence a powerful judiciary
p3

2-2-2016

Hearing date 22-2-2016 Ballarat venue

Mr G. H. Schorel-Hlavka O.W.B.

Appeal 15-2502

Deponent: Mr G. H. Schorel-Hlavka O.W.B. 107 Graham Road, Viewbank 3084, Victoria admin@inspector-rikati.com

(Buloke Shire Council) Prosecutors legal representatives ES&a Lawyers

Page 4 (Revised format) AP 2502


Hearing date 22-2-2006 (or alternative date if allocated)
which towers above all powers, legislative and executive, and which is the sole arbiter and interpreter
of the constitution.
END QUOTE
Hansard 1-3-1898 Constitution Convention Debates (Official Record of the Debates of the National
Australasian Convention)
QUOTE
Mr. GORDON.-Well, I think not. I am sure that if the honorable member applies his mind to the subject he
will see it is not abstruse. If a statute of either the Federal or the states Parliament be taken into court the court
is bound to give an interpretation according to the strict hyper-refinements of the law. It may be a good law
passed by "the sovereign will of the people," although that latter phrase is a common one which I do not care
much about. The court may say-"It is a good law, but as it technically infringes on the Constitution we will
have to wipe it out." As I have said, the proposal I support retains some remnant of parliamentary
sovereignty, leaving it to the will of Parliament on either side to attack each other's laws.
END QUOTE

As I understand it the so called Victorian Constitution Act 1975 is not a constitution or


amendment of a constitution approved by the State electors, and therefore it cannot be relied
upon as a valid constitution.
As the Framers of the Constitution made clear that the sovereign Parliaments of the colonies
would become constitutional Parliaments upon federation.
Hansard 2-2-1898 Constitution Convention Debates
QUOTE Mr. DEAKIN (Victoria).The record of these debates may fairly be expected to be widely read, and the observations to which I
allude might otherwise lead to a certain amount of misconception.
END QUOTE
.

HANSARD 17-3-1898 Constitution Convention Debates


QUOTE
Mr. HOLDER.-I hope that the time which was spent in Adelaide was as pleasant to the visiting
representatives as the time which we have spent under the care and hospitality of the Government of Victoria
has been to us. I think that a word is due to those who have laboured, not merely to make our stay pleasant,
but to assist us in accomplishing that which we have had in view. Speaking for myself, I consider that the
reporting of our debates has been remarkably good. There has hardly been the need of even trifling verbal
alterations, and the way in which the speeches have been reported, transcribed, and committed to print has
[start page 2494] left nothing to be desired. I am quite sure that in the permanent record of our proceedings
we have a document entirely worthy of the purpose we have in view.
END QUOTE
Hansard 8-3-1898 Constitution Convention Debates (Official Record of the Debates of the National Australasian
Convention)
QUOTE Mr. ISAACS.We want a people's Constitution, not a lawyers' Constitution.
END QUOTE
.

Hansard 19-4-1897 Constitution Convention Debates


QUOTE
Mr. CARRUTHERS:
This is a Constitution which the unlettered people of the community ought to be able to understand.
END QUOTE
.

Hansard 21-9-1897 Constitution Convention Debates (Official Record of the Debates of the National
Australasian Convention)
QUOTE
The Right Hon. C.C. KINGSTON (South Australia)[9.21]: I trust the Drafting Committee will not fail to
exercise a liberal discretion in striking out words which they do not understand, and that they will put in
words which can be understood by persons commonly acquainted with the English language.
END QUOTE
END QUOTE 20150820-ADDRESS TO THE COURT-in the matter Buloke Shire Council v Schorel-Hlavka
And

QUOTE 20150820-ADDRESS TO THE COURT-in the matter Buloke Shire Council v Schorel-Hlavka
p4

2-2-2016

Hearing date 22-2-2016 Ballarat venue

Mr G. H. Schorel-Hlavka O.W.B.

Appeal 15-2502

Deponent: Mr G. H. Schorel-Hlavka O.W.B. 107 Graham Road, Viewbank 3084, Victoria admin@inspector-rikati.com

(Buloke Shire Council) Prosecutors legal representatives ES&a Lawyers

Page 5 (Revised format) AP 2502


Hearing date 22-2-2006 (or alternative date if allocated)
I do not accept that this court can grand the summons to be withdrawn, for that unless it deals
with the OBJECTION TO JURISDICTION first, this as it has no judicial powers to invoke to
allow for the summons to be withdrawn.
.

As this is an OBJECTION TO JURISDICTION the court cannot take any plea.


As the Magistrates Court of Victoria at St Arnaud only sits one day a week it would be
inappropriately to have matters heard at the St Arnauds location, as matters will likely be
tasking more than one day.
END QUOTE 20150820-ADDRESS TO THE COURT-in the matter Buloke Shire Council v Schorel-Hlavka

There can be absolutely no doubt about it that I file for legal proceedings an ADDRESS TO
THE COURT containing written submissions and did so (where I notified all parties and the
court) that I was too ill to travel what I submitted, including the OBJECTION TO
JURISDICTION and it all is silent to any evidence of the prosecutor or any witness it proposed
to call because to my knowledge I was never served, as is statutory required, at least 14 days
prior to the hearing with a full brief and even despite my written request of 27 October 2015
and His Honour Mullaly J orders of 30 October 2015 to post such a full brief by no later than 9
November to me via Australian Post this never eventuated. As such, I have no clue what
precisely was filed with the court.
I was purportedly provided with a full brief indicating an 18 March 2013 hearing date which is
absurd considering it was dated 25 November 2015.
Again, where somehow Buloke Shire Council seeks to rely upon a witness and upon alleged
photos which were to my understanding never filed with the Magistrates Court of Victoria at St
Arnaud and so prevented me to challenge and as such denied me then any proper preparation of
in response then obviously it may appear to a FAIR MINDED PERSON that the courts are no
more but a tool for the prosecutor, and its numerous violations of legal requirements are
disregarded, no matter my objections to it.
Ordinary a party who fails to file/serve in time is required to seek leave to file and serve out of
time and as set out below the court must consider relevant issues if such leave is to be granted.
Well Buloke Shire Council couldnt give a hood about the court because so to say it has it in its
pocket and as proved even His Honour Mullaly J didnt question Counsel purportedly appearing
for Buloke Shire Council what on earth he was doing appearing when no Notice of appearance
was filed with the Court, nor served. If I on the other hand was to have made any kind of error it
likely would have been fatal to my litigation.
As author of books in the INSPECTOR-RIKATI series on certain constitutional and other
legal issues I can assure you that these proceedings and the surrounding nonsense will be
prominently exposed in my forthcoming book.
I do not fear the courts because I have not been guilty of any wrongdoing no matter what Buloke
Shire Council may purport. One can only ascertain the guilt of innocence by the proper
application of the rule of law (as set out below) and if anything Buloke Shire Council and its
legal representatives have been making overtures to seeking to disregard the rule of law time and
time again to what I consider to be of criminal conduct. And regretfully the courts in the process
appears to be aiding and abetting in this.
.

Authorities of foreign jurisdictions are as quoted below merely of persuasive weight where no
local authority may be available, or may be of complimentary persuasive weight to existing
Authorities. Having stated so Authorities that are enshrined in Australian law because they were
part of English law with the settlers obviously are as much binding as other Australian generated
authorities.
http://caselaw.findlaw.com/wi-supreme-court/1491020.html Supreme Court of Wisconsin.
p5

2-2-2016

Hearing date 22-2-2016 Ballarat venue

Mr G. H. Schorel-Hlavka O.W.B.

Appeal 15-2502

Deponent: Mr G. H. Schorel-Hlavka O.W.B. 107 Graham Road, Viewbank 3084, Victoria admin@inspector-rikati.com

(Buloke Shire Council) Prosecutors legal representatives ES&a Lawyers

Page 6 (Revised format) AP 2502


Hearing date 22-2-2006 (or alternative date if allocated)
Walter J. OLSON, Plaintiff-Appellant, v. TOWN OF COTTAGE GROVE, Defendant-Respondent-Petitioner. No.
2005AP2257. Decided: May 30, 2008
QUOTE
87 Although the WEAC II court of appeals reversed the circuit court's judgment on the basis that
the first two conditions of a justiciable controversy were unfulfilled as a matter of law,21 the
standard of review set forth by the court of appeals expressly applied to all four conditions of
justiciability, including ripeness.
88 The majority opinion finds support for its conclusion that de novo review is proper in case law
from other jurisdictions.22 Case law from other states is merely of persuasive weight. Prior
Wisconsin case law is precedent. The approach the majority opinion should be taking is to follow
binding precedent of this court or to explain why it is deviating from precedent.
89 Applying the clear, binding precedent of this court and the court of appeals, I conclude that the
question whether an issue is ripe for judicial determination under the Declaratory Judgments Act
lies within the discretion of the circuit court and that this court should review the circuit court's
decision to determine whether the circuit court erroneously exercised its discretion.
90 For the reasons set forth, I write separately. END QUOTE

As I understand it there never was any evidence filed by the prosecutor in the Magistrates
Court of Victoria at St Arnaud then the court even if it were to somehow hold it can invoke
jurisdiction (not that I concede it legally can or will) then the purported evidence it now seeks to
rely upon in the full brief for the 22 February 2016 hearing cannot be permitted. Nor so any
evidence from its claimed witness Mr Wayne Wall, this besides the alleged evidence having
been unlawfully obtained!
.

QUOTE Braddock v Tillotson's Newspapers Ltd.; Court of Appeal (1949)(1950) 1KB 47 (1949) 2 ALL E.R.
306;65 T.L.R. 553: 93 S.J. 464
Leave to call fresh evidence on appeal in relation to an issue will be granted only when the evidence could
not reasonably have been discovered before the trial, and would probably have led to a different result.
When the fresh evidence relates to the credit of a witness, its effect must be more certain.
END QUOTE

THERE IS AN OBVIOUS REASON FOR THIS ALSO THAT THE COURTS


WOULDNT LIKE AN AVELANCHE OF APPEALS WHICH COULD HAVWE BEEN
AVOIDED HAD THE PROSECUTOR SO TO SAY REVEALS IT HAND DISCLOSING
ALL RELEVANT DETAILS.
What legal practitioners could now engineer is to pursue orders without using any evidence
perhaps knowing a crooked judge and then when a party appeals legitimately then it comes up
with purported evidence as to seek to railroad the appeal and so in the process cause unwanted
protracted litigation which for them is to make plenty of moneys of their wrongdoing.
If therefore a prosecutor conceals relevant details from the court in the first instance than it must
not be permitted to rely upon it on any appeal, regardless any hearing De Novo as it would be a
gross misuse of the legal processes and may cause a party to appeal which may have been
altogether have been avoided had the Prosecutor from onset revealed all details. (Richardson
principle- see below)
The Court also should keep in mind
QUOTE Australian Agricultural Co Ltd. v F.E.D.F.A of Australasia (1913) 17 CLR 261 and 278
The oath of a justice of this court is ' to do right to all manner of people according to law' Our sworn duty is
to the law itself and to the organic nature of the constitution first of all. If, then, we find the law to be
plainly in conflict with what we or any of our predecessors errornously thought it to be, we have, as I
conceive no right to choose between giving effect to the law, and maintaining an incorrect interpretation, It
is not, in my opinion, better that the court should be persistently wrong than that it should be ultimately
right..
Whatever else may be said with respect to previous decisions - and it is necessary here to consider the
principals upon which a court should act in particular cases - so much at least emerges as is undoubtedly
beyond challenge, that where a former decision is clearly wrong, and there are no circumstances
p6

2-2-2016

Hearing date 22-2-2016 Ballarat venue

Mr G. H. Schorel-Hlavka O.W.B.

Appeal 15-2502

Deponent: Mr G. H. Schorel-Hlavka O.W.B. 107 Graham Road, Viewbank 3084, Victoria admin@inspector-rikati.com

(Buloke Shire Council) Prosecutors legal representatives ES&a Lawyers

Page 7 (Revised format) AP 2502


Hearing date 22-2-2006 (or alternative date if allocated)
countervailing the primary duty of giving effect to the law as the court finds it, the real opinion of the court
should be expressed.
END QUOTE
QUOTE Australian Agricultural Co Ltd. v F.E.D.F.A of Australasia (1913) 17 CLR 261 and 278
In my opinion, where the prior decision is manifestly wrong, then, irrespective of the consequences, it is the
paramount and sworn duty of this court to declare the law truly....
END QUOTE

This matter now has also place in question the integrity of the County Court of Victoria as
His Honour Mullaly J verbal attack upon my person, without even a shred of evidence being
before the court to legally justify this underlines that I am facing a very hostile environment in
the county court of Victoria and can expect that any legal trickery or for that illegal trickery will
be used to try to railroad my objections, etc.
The court refused a printout transcript albeit I have on request been provided with an audio
recording of the 30 October 2015 pre-trail hearing before His Honour Mullaly J.
The numerous breaches of legal procedures both by Buloke Shire Council, its legal
representatives and the courts themselves as well as by the premier of the State of Victoria and
the Attorney-General demands a proper impartial investigation, this as it appears to me this is a
modus operandi in which litigation far too often eventuates and most unlettered persons would
be grossly denied upon their constitutional rights of a proper adjudication and this must stop, as
too often as I understand it people resort to suicide as result.
The Richardson principle ( of the U.S.A) as quoted below may also underline that we must not
convict for the sake of what a prosecutor may desire to reveal but must be based upon all relevant
available evidence.
http://www.leagle.com/decision/19711017246So2d771_1825/RICHARDSON%20v.%20STATE
QUOTE
RICHARDSON v. STATE
No. 39692.
246 So.2d 771 (1971)
William H. RICHARDSON, Petitioner, v. STATE of Florida, Respondent.
Supreme Court of Florida.
March 31, 1971.
Rehearing Denied May 7, 1971.
View Case
Cited Cases
Citing Case
Thomas J. Hanlon, Tampa, for petitioner.
Robert L. Shevin, Atty.Gen., and Charles Corces, Jr., Asst.Atty.Gen., for respondent.

MASON, Circuit Judge:


We granted certiorari to the District Court of Appeal, Second District of Florida, to review the decision of
that court which affirmed the judgment of the Hillsborough County Criminal Court of Record convicting the
petitioner of the crime of arson following jury trial. Richardson v. State, Fla.App., 233 So.2d 868.
The State challenges this Court's jurisdiction to review the decision below, claiming that no conflict has been
shown between the decision and a decision of another district court or of this court.
Petitioner contends there exists a conflict between the District Court's decision
[246 So.2d 773]
p7

2-2-2016

Hearing date 22-2-2016 Ballarat venue

Mr G. H. Schorel-Hlavka O.W.B.

Appeal 15-2502

Deponent: Mr G. H. Schorel-Hlavka O.W.B. 107 Graham Road, Viewbank 3084, Victoria admin@inspector-rikati.com

(Buloke Shire Council) Prosecutors legal representatives ES&a Lawyers

Page 8 (Revised format) AP 2502


Hearing date 22-2-2006 (or alternative date if allocated)
and a rule promulgated by this Court, viz, Rule 1.220(e) of the Florida Rules of Criminal Procedure, 33
F.S.A. which became effective December 31st, 1967, and which was in effect when the case was tried in the
trial court below. This rule requires the prosecution, upon written request filed in the cause by the defendant,
to furnish to the defendant a list of all witnesses known to the prosecuting attorney to have information which
may be relevant to the offense charged, and to any defense of the person charged with respect thereto. The
rule requires that the list be furnished by the prosecuting attorney within five days after receipt by him of the
defendant's offer to furnish to the prosecuting attorney his list of prospective witnesses with their addresses.
Paragraph (g) of the Rule provides that in the event either party fails to comply with any provision of the
Rule the court may impose certain sanctions against such party, including the granting of a continuance or the
prohibiting of such party from calling a witness whose name has not been disclosed, or it may enter such
other order as it deems just under the circumstances.
The District Court held, in effect, that the record of the proceedings in the trial court disclosed that there was
not strict compliance with the Rule by the prosecuting attorney in the disclosure of witnesses, as required by
the Rule, but that the record further disclosed that the petitioner (Appellant below) was not prejudiced by
respondent's (Appellee's below) noncompliance. By way of obiter dicta and as a guideline and warning for
the future, the District Court went on to say that in the future it will expect the State to comply with the
Florida Rules of Criminal Procedure, and that non-compliance "could very well require reversal or a new
trial."
We have jurisdiction to review the decision below because of the provision contained in Section 4(2) of
Article V of the Florida Constitution F.S.A., (1968) which confers jurisdiction upon this Court to review a
decision of a District Court of Appeal "which affects a class of constitutional or state officers."
The decision below reviewed the failure of the prosecuting attorney of the Criminal Court of Record of
Hillsborough County to comply with the discovery requirements of the Rule in question, and the effect
of such failure upon the validity of the trial in which the petitioner was convicted. In doing so it also
reviewed the exercise of the trial court's discretion in refusing to grant petitioner's motion for mistrial based
upon the failure of the prosecuting attorney to disclose the name of a witness who, the petitioner claimed, had
knowledge of facts "relevant to the offense charged" and to the defense of the petitioner, and whose name
was required, in the view of the petitioner, to be furnished him by the express provision of the Rule. Thus the
decision of the District Court which holds that non-compliance with the discovery requirements of the Rule
does not ipso facto constitute ground for reversal of a conviction even though it is made to appear that the
Rule has not been strictly complied with, and that such reversal depends upon whether or not the person
charged has been prejudiced by non-compliance, affects two classes of constitutional or state officers, viz,
prosecuting officers and trial courts in the exercise of their respective powers and duties in the prosecution
and trial of criminal cases.
It is true that the decision below was determinative only of the cause reviewed by the appellate court,
but the ultimate effect of it affects all prosecuting attorneys and trial judges in the trial of criminal
cases. This Court, in Florida State Board of Health v. Lewis, Fla., 149 So.2d 41, speaking of this particular
provision of the Constitution, said:
The obvious purpose of the subject constitutional provision was to authorize this Court to review decisions
which, in the ultimate, would affect all constitutional or state officers exercising the same powers, even
though only one of such officers might be involved in the particular litigation. To like effect is State v.
Robinson, Fla., 132 So.2d 156. The decision below in the ultimate affects all prosecuting attorneys insofar as
it interprets their duties in connection with compliance with Rules of Criminal Procedure promulgated by this
Court, and all trial judges when called upon to interpret the effects of non-compliance by such
prosecuting attorneys. Its pronouncement presents to this Court the duty to determine if the District Court of
Appeal has properly interpreted the respective duties, powers and obligations of such officers under such
Rules, and particularly Rule 1.220. We thus have jurisdiction, and now turn to the merits of the cause before
us. In so doing we hold that the violation of a rule of procedure prescribed by this Court does not call for a
reversal of a conviction unless the record discloses that non-compliance with the rule resulted in prejudice or
harm to the defendant. All of the four District Courts of Appeal have now so held and we now place our
stamp of approval upon this principle. See Howard v. State, Fla.App., 239 So.2d 83; Wilson v. State,
Fla.App., 220 So.2d 426, 427; Buttler v. State, Fla.App., 238 So.2d 313; Rhome v. State, Fla., 222 So.2d 431;
Ramirez v. State, Fourth District, Fla., 241 So.2d 744, Opinion filed October 14, 1970. This is particularly
true in view of the purpose of the Florida Rules of Criminal Procedure. As stated in Rule 1.020 of the rules
themselves: These rules are intended to provide for the first determination of every criminal
p8

2-2-2016

Hearing date 22-2-2016 Ballarat venue

Mr G. H. Schorel-Hlavka O.W.B.

Appeal 15-2502

Deponent: Mr G. H. Schorel-Hlavka O.W.B. 107 Graham Road, Viewbank 3084, Victoria admin@inspector-rikati.com

(Buloke Shire Council) Prosecutors legal representatives ES&a Lawyers

Page 9 (Revised format) AP 2502


Hearing date 22-2-2006 (or alternative date if allocated)
proceeding. They shall be construed to secure simplicity in procedure and fairness in administration.
Furthermore, the Rule in question must be considered by an appellate court in pari materia with the
provisions of our harmless error statute, viz, F.S. 924.33, F.S.A. which provides that rulings or
proceedings in criminal cases that are not prejudicial or harmful do not require reversal. As stated in
Howard v. State, supra: The cited statute is but a codification of the `harmless error' doctrine which has been
developed by judicial decision to avoid reversal in cases where it appears that justice has been served and that
in all probability a new trial with the same admissible evidence would not alter the end result. See Urga v.
State, 155 So.2d 719, Fla.App., 1963, and cases cited therein. Therefore, petitioner's contention that the
State's non-compliance with the Rule entitles him, as a matter of right, to have a non-listed witness excluded
from testifying, or to have a mistrial where it becomes evident during the trial that there existed a witness
who probably had knowledge of facts relevant to petitioner's defense, is not tenable. The Rule was designed
to furnish a defendant with information which would bona fide assist him in the defense of the charge
against him. It was never intended to furnish a defendant with a procedural device to escape justice. Yet such
a result would be inescapable if the State's non-compliance with the rule necessarily required the exclusion of
the non-listed witnesses from testifying, or a mistrial under the circumstance just stated. See Ramirez v. State,
supra. On the other hand, if it is evident from the record that the non-compliance with the Rule by the
State resulted in harm or prejudice to a defendant through failure to furnish the names of witnesses,
and such witnesses were permitted to testify in behalf of the State, or if it should affirmatively appear
that the State failed to furnish to the defendant the name of a witness known to the State to have
information relevant to the offense charged against the defendant, or to any defense of the defendant
with respect thereto, and the latter situation resulted in harm or prejudice to the defendant, an
appellate court reviewing his conviction must reverse. The trial court has discretion to determine whether
the non-compliance would result in harm or prejudice to the defendant, but the court's discretion can be
properly exercised only after the court has made an adequate inquiry into all of the surrounding
circumstances. We think that the District Court of Appeal for the Fourth District has succinctly stated
the burden that the Rule places both upon the prosecuting attorney and upon the trial court in the
following quoted extract from its opinion in Ramirez v. State, supra: The point is that if, during the
course of the proceedings, it is brought to the attention of the trial court that the state has failed to comply
with Rule 1.220(e) CrPR, the court's discretion can be properly exercised only after the court has made an
adequate inquiry into all of the surrounding circumstances. Without intending to limit the nature or scope
of such inquiry, we think it would undoubtedly cover at least such questions as whether the state's
violation was inadvertent or wilful, whether the violation was trivial or substantial, and most
importantly, what effect, if any, did it have upon the ability of the defendant to properly prepare for
trial. Once the court has considered all of the circumstances, it has authority to enter such order as it deems
just. Rule 1.220(g) CrPR. However, in those cases where the court determines that the state's noncompliance
with the rule has not prejudiced the ability of the defendant to properly prepare for trial, we deem it essential
that the circumstances establishing non-prejudice to the defendant affirmatively appear in the record. In the
cases of Buttler v. State, supra; Richardson v. State, supra; and Newman v. State, Fla. 1967, 196 So.2d 897,
the determination that the state's failure (to furnish the defendant with information on witnesses) was nonprejudicial to the defendant appears to have been based upon the finding that such non-prejudice to the
defendant affirmatively appeared in the record. Our examination of the facts before the trial court bearing
upon the issue of the State's noncompliance with the Rule discloses that the petitioner (defendant in the
trial court) complained, and now complains, about the State's use at the trial of the witness, John
Robert Davis, who had been jointly charged with the petitioner in the offense, and whose name was not
furnished to petitioner's counsel until the day before the trial as a State's witness. The name of this
witness was not given to petitioner's counsel by the prosecuting attorney at the time the latter
respondent to the petitioner's demand for the State's list of witnesses made several days before the
beginning of the trial. The reason given by the State for omitting this witness's name from the list was that
he was a co-defendant in the information. As such he was, of course, known to the petitioner as a party
allegedly having knowledge of the offense with which both he and the petitioner were charged. On the day
before trial this co-defendant was granted immunity from prosecution in return for his offer to testify for the
State and his name given to petitioner's counsel as a State witness. The State tendered this witness to
petitioner's counsel for interview on the same day. For reasons of his own such counsel did not avail himself
of such opportunity. Up until that time he was a co-defendant in the information, and the State was in no
position to offer him to petitioner's counsel for questioning. Counsel complained to the trial court and the
court offered to let counsel interview the State's witnesses, including John Robert Davis, before the beginning
of the trial. A recess was taken for that purpose. During such recess petitioner's counsel interviewed all of the
State's witnesses except John Robert Davis. When the court was called to order petitioner's counsel informed
the court that he had not questioned Davis, giving as his reason that he wanted to ask him certain specific
questions before a court reporter. He had not asked for a reporter nor was one denied him. The witness did
not refuse to be interviewed by petitioner's counsel. When court resumed counsel asked for a continuance of
the trial, stating that he wanted further opportunity to interview this particular witness. This request was
p9

2-2-2016

Hearing date 22-2-2016 Ballarat venue

Mr G. H. Schorel-Hlavka O.W.B.

Appeal 15-2502

Deponent: Mr G. H. Schorel-Hlavka O.W.B. 107 Graham Road, Viewbank 3084, Victoria admin@inspector-rikati.com

(Buloke Shire Council) Prosecutors legal representatives ES&a Lawyers

Page 10 (Revised format) AP 2502


Hearing date 22-2-2006 (or alternative date if allocated)
denied by the Court, a jury was selected and the case proceeded to trial. At the close of the first day of
testimony and after court had recessed until the following morning, petitioner's counsel during the evening
did interview the witness, John Robert Davis. No error was committed by the court for such denial of a
continuance for the State's failure to furnish this witness' name. As a result of his interview petitioner's
counsel learned of the name of one Dick Davis who was supposed to be the contact man between the owner
of the building which burned and who was with the owner when the fire occurred. Later in the trial John
Robert Davis testified that this Dick Davis helped set up the arrangements and price to be paid by the owner
for the arson. When the trial resumed on the second day, petitioner's counsel moved for a mistrial or a
continuance because of the failure of the State to furnish him the name of Dick Davis prior to trial. This
motion was denied by the court and the trial resumed, resulting in the petitioner's conviction. There is reason
to believe that the State knew that a co-defendant, John Robert Davis, was claiming that there was one Dick
Davis who was supposed to be the contact man between the owner, Grooms, and such co-defendant and the
petitioner, Richardson. Such co-defendant, Davis, testified that Dick Davis was such contact man and that he
had given his name as such to the State in a statement made by him prior to trial and shortly after he was
released on bond. The State did not attempt to refute this at the trial. The question is, was the State obligated,
under these circumstances, by Rule 1.220(e), to furnish the name of this alleged person to petitioner's counsel
as a witness known to the prosecuting attorney to have information which may be relevant to the offense
charged or to any defense of the person charged. It is evident that the prosecuting attorney had knowledge of
the supposed existence of one Dick Davis who supposedly had information which may be relevant to the
offense charged, and had this name been furnished to petitioner's counsel in response to his request for a list
of the State's witnesses such counsel would have had the opportunity to seek out the witness and endeavor to
learn from him what information he did have which may be relevant to the offense charged. It is true that no
such witness, Dick Davis, was called by the State to testify, but his name should have, under the mandatory
requirement of the Rule, been furnished to the petitioner. And we should not speculate as to whether there
was in fact such a witness as Dick Davis, nor whether, if so, he had information relevant to the offense
charged or to any defense of the petitioner who was charged with respect thereto. At least, petitioner's
counsel should have had an opportunity before trial to investigate him and determine if any information he
had would be of value to petitioner in his defense of the charge against him. As stated in Ramirez, supra,
when it is brought to the attention of the trial court during the course of the proceedings that the State has
failed to comply with the Rule the Court has a discretion to determine if such failure has prejudiced the
defendant on trial. But, as there noted, the trial court's discretion can be properly exercised only after the
court has made an adequate inquiry into all of the surrounding circumstances. When this matter was brought
to the trial court's attention at the beginning of the second day of the trial the record is completely silent as to
any excuse of the State for not having furnished the name of Dick Davis to petitioner's counsel. Furthermore,
the court made no inquiry to determine whether there was in fact such a person as Dick Davis, and, if so,
whether he had and would furnish information to the petitioner which would aid him in his defense. It is
entirely possible that if Dick Davis were found that he would refuse to help petitioner because of selfincrimination, but at least, in fairness to petitioner this was a matter that should have been inquired into by the
trial court before proceeding with the trial. If necessary, he should have declared a recess to give petitioner an
opportunity to locate Dick Davis, if possible. At least, he should have offered to do so. Instead, he denied
petitioner's motion for mistrial, and ordered the trial forthwith to proceed. We think in so doing he did so to
the prejudice of the petitioner and that the conviction must be set aside for that reason. We hold that this
conviction must be reversed for another reason, and that is the attempt of the State to use a witness
implicated in the offense charged against the petitioner and who the State knew would refuse to testify
on the ground of self-incrimination. The owner of the building which was burned was one Reuben W.
Grooms. One of the co-defendants in the prosecution, John Robert Davis, testified that Grooms hired him and
the petitioner, Richardson, to burn the building so that he could collect the insurance upon it. Grooms'
counsel informed the prosecuting attorney before Richardson's trial that Grooms would refuse to testify on
the ground of self-incrimination. Yet, the State placed Grooms on the stand and asked him if he was the
owner of the building that was burned, knowing at the time that he was an accomplice in the crime. Grooms
refused to testify, claiming his right against self-incrimination. Whereupon, petitioner's counsel promptly
moved for a mistrial, which was denied. The Court did not instruct the jury, either then or in its closing
charge, not to consider such failure of the witness to testify as evidence against the petitioner. Immediately
upon Grooms' refusal to testify the prosecuting attorney called one Esther L. Sanchez to the stand, had the
witness Grooms brought back into the courtroom, whereupon this witness indentified Grooms as being the
owner of the building which was burned. We think this combination of fact and circumstance highly
prejudicial to the petitioner. We are forced to conclude that this was a studied attempt on the part of the State
to bring to the attention of the jury the refusal of Grooms to testify on his claim of the Fifth Amendment, with
the attendant inference to be drawn by the jury that not only was Grooms guilty, but also the petitioner, an
alleged co-accomplice with Grooms in the crime. It is to be noted in this connection that the State did not
have to resort to this tactic, for it had other evidence to establish Grooms' ownership of the building. We feel
that reason and justice require us to hold that petitioner suffered irreparable damage and injury in the eyes of
p10

2-2-2016

Hearing date 22-2-2016 Ballarat venue

Mr G. H. Schorel-Hlavka O.W.B.

Appeal 15-2502

Deponent: Mr G. H. Schorel-Hlavka O.W.B. 107 Graham Road, Viewbank 3084, Victoria admin@inspector-rikati.com

(Buloke Shire Council) Prosecutors legal representatives ES&a Lawyers

Page 11 (Revised format) AP 2502


Hearing date 22-2-2006 (or alternative date if allocated)
the jury by Grooms being ordered to take the stand and thereby being forced to plead the Fifth Amendment.
See Kaplow v. State, Fla.App., 157 So.2d 862; Farnell v. State, Fla.App., 214 So.2d 753, and cases cited
therein. We reverse and remand to the District Court of Appeal, with direction to that Court to order the trial
court to grant a new trial to the petitioner. It is so ordered. ROBERTS, C.J., ERVIN, CARLTON, BOYD and
DREW (Retired), JJ., and HALL, Circuit Judge, concur.
END QUOTE

The Prosecution is not there to score convictions but to place before the court all relevant
evidence, both in favour of and against its own case, so the Court can determine upon all
evidence before the court by consideration of it all if it should hand down a judgment against or
in favour of the Defendant.
The Courts function is not to act as a STAR CHAMBER COURT/KANGAROO COURT to
blatantly disregard compliance with proper legal procedures to score a conviction ratio that may
assist it to gain more funding from the Government of the Day, it must hear and determine
matters according to law and upon proper consideration hand down a judgment which may or
may not include a conviction.
.

Again, it was not until about 25 November 2015 that the prosecutor Buloke Shire Council
revealed to me the kind of photographs it seeks to rely upon, as this was part of its 25 November
2015 brief to an alleged 18 March 2013 hearing date, this even so the photographs are claimed
to be taken in November 2014. I submit that no judicial officer in his/her right mind could
accept that a full brief for a purported 18 March 2013 Magistrates Court of Victoria hearing
could have contained photos taken some 20 months later. Yet this is the nonsense produced by
the prosecutors legal representatives.
I below quote part of the 2 September 2015 correspondence received from ES&a Lawyers acting
allegedly for Buloke Shire Council, I have however at the end of this ADDRESS TO THE
COURT included a s canned copy of the correspondence in full.
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 we
acknowledge your numerous items of correspondence. We do not propose to respond to a majority of the
matters raised therein.
The purpose of this letter is to confirm that as you did not appear the matter has been adjourned for hearing at
the 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 this 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 of
venue and we note that the Collingwood Magistrates Court is not the appropriate venue for your matter in
any 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 strongly
suggest that you take legal advice with respect to same.
END QUOTE (Alison J May LEGAL Practitioner ES&a 2-9-2015 correspondence)

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

It is therefore absolutely clear that ES&a lawyers were fully aware about my OBJECTION TO
JURISDICTION. The fact they desired not to respond to them also must be taken into account
p11

2-2-2016

Hearing date 22-2-2016 Ballarat venue

Mr G. H. Schorel-Hlavka O.W.B.

Appeal 15-2502

Deponent: Mr G. H. Schorel-Hlavka O.W.B. 107 Graham Road, Viewbank 3084, Victoria admin@inspector-rikati.com

(Buloke Shire Council) Prosecutors legal representatives ES&a Lawyers

Page 12 (Revised format) AP 2502


Hearing date 22-2-2006 (or alternative date if allocated)
as a failure to prove jurisdiction, this as the court cannot assume jurisdiction but the prosecutor
had to prove jurisdiction by evidence. A refusal to do so is no legal excuse and therefore the
Court on 20 August 2015 had an uncontested OBJECTION TO JURISDICTION.

The OBJECTION TO JURISDICTION that was for the 20 August 2015 hearing at the
Magistrates Court of Victoria at St Arnaud obviously on that already was well justified. Yet I am
relentlessly pursued with this kind of idiotic conduct and this from legal practitioners?
The current proceedings before this court have absolutely no legal validity as it purports to be a
hearing De Novo which His Honour Mullaly J ordered on 30 October 2015 with a total disregard
to the OBJECTIONS TO JURISDICTION that have existed all along.
If this court were to proceed with a hearing De Novo it would exercise no judicial powers but the
judicial officer would be acting in private capacity and any orders would be a nullity.
As set out below, when an OBJECTION TO JURISDICTION is made then the other party
must provide sufficient evidence to overcome the objection and this includes each and every
issue the objector may raise complimentary to the OBJECTION TO JURISDICTION.
I ended up in 1988 that the Supreme Court of Victoria dismissed my application suing the State
of Victoria for want of jurisdiction, where counsel for the State of Victoria merely uttered to
object to the jurisdiction of the court and His Honour, correctly pointed out, that unless I could
prove each and every relevant legal issue, including if relevant legislation had been Gazetted, etc,
I would face, as eventuated, the application to be dismissed for want of jurisdiction.
As set out below Buloke Shire Council being the prosecutor under delegated powers by the State
of Victoria then likewise now had to prove jurisdiction. So far it failed to do so on 20 August
2015 and on 17 September 2015 before the magistrates court of Victoria at St Arnaud and also
before His Honour Mullaly J on 30 October 20125. In fact counsel for Buloke Shire Council had
no legal standing to appear as no Notice to appeal was filed or served.
At no time did I ever criticise the Supreme Court of Victoria having dismissed my case for want
of jurisdiction, this also because His Honour did take the time to explain that he was bound by
the rule of law. Yet, I find that when I object to the jurisdiction of the court then I end up in
endless years of battles because somehow judicial officers are bias towards the government and
seek to circumvent dealing with an OBJECTION TO JURISDICTION, this even so legally
they have no judicial powers they can invoke if an OBJECTION TO JURISDICTION has not
been disposed of.
Let me explain that I as a CONSTITUTIONALIST on 19 July 2006 I comprehensively
defeated the Commonwealth in both appeals in the County Court of Victoria on FAILING TO
VOTE on constitutional issues, including that the County Court of Victoria is not a constitutional
validly operating court because of its ABN registration to be Business Unit 19 with the
Department of Justice, instead of what is required by the legal principles embedded in the
Commonwealth of Australia Constitution Act 1900 (UK) to be independent as part of the
constitution (Not part of the government!) and by the 2 January 1901 published Letters Patent in
the Victorian Gazette to be impartial administration of justice! This in addition to numerous
other constitutional issues including that compulsory voting is a violation of the political
liberty enshrined in the constitution. While at the time the then Victorian Attorney-General Mr
rob Hulls stated to abide by the courts decision it now is that I view Mr Martin Pakula AttorneyGeneral is violating this regarding allowing Buloke Shire Council to litigate against me (on
behalf of the State of Victoria) in clear violation to the rights I obtained by the successful appeals
of 19 July 2006. In my view this constitutes CONTEMPT OF COURT!
County Criminal Court: APPELLATE PROCEDURE Appealability Jury Trial/Improper Relief
Under the law of the case doctrine, the same legal question cannot be re-determined on a subsequent appeal
in the same case when the facts remain the same. Conviction and sentence affirmed. Richard Jason
Kirkendall v. State of Florida, No. CRC10-008274-CFAES (Fla. 6th Cir. App. Ct. November 28, 2011).
p12

2-2-2016

Hearing date 22-2-2016 Ballarat venue

Mr G. H. Schorel-Hlavka O.W.B.

Appeal 15-2502

Deponent: Mr G. H. Schorel-Hlavka O.W.B. 107 Graham Road, Viewbank 3084, Victoria admin@inspector-rikati.com

(Buloke Shire Council) Prosecutors legal representatives ES&a Lawyers

Page 13 (Revised format) AP 2502


Hearing date 22-2-2006 (or alternative date if allocated)
The following authority (http://supreme.justia.com/cases/federal/us/209/123/case.html) Ex Parte Young - 209
U.S. 123 (1908) may underline that State officials can be held in CONTEMPT OF COURT even
being an Attorney General. As even judges can be held in CONTEMPT OF COURT, then I
view nothing can save a Premier, former premier, Sheriff and others who are participating or
remain silent about the misuse and/or abuse of the courts processes.
It is a matter of criminal law that when a person observes someone to commit a crime and fails to
report this or take such action as may be deemed appropriate in the circumstances.
http://supreme.justia.com/cases/federal/us/209/123/case.html
Ex Parte Young - 209 U.S. 123 (1908)
QUOTE
A temporary restraining order was made by the Circuit Court, which only restrained the railway company
from publishing the rates as provided for in the act of April 18, 1907, and from reducing its tariffs to the
figures set forth in that act, the court refusing for the present to interfere by injunction with regard to the
orders of the commission and the act of April 4, 1907, as the railroads had already put them in operation; but
it restrained Edward T. Young, Attorney General, from taking any steps against the railroads to enforce the
remedies or penalties specified in the act of April 18, 1907.
Copies of the bill and the restraining order were served, among others, upon the defendant Mr. Edward T.
Young, Attorney General, who appeared specially and only for the purpose of moving to dismiss the bill as to
him, on the ground that the court had no jurisdiction over him as Attorney General; and he averred that the
State of Minnesota had not consented, and did not consent, to the commencement of this suit against him as
Attorney General of the State, which suit was, in truth and effect, a suit against the said State of Minnesota
contrary to the Eleventh Amendment of the Constitution of the United States.
The Attorney General also filed a demurrer to the bill on the same ground stated in the motion to dismiss. The
motion was denied and the demurrer overruled.
Thereupon, on the 23d of September, 1907, the court, after a hearing of all parties and taking proofs in regard
to the issues involved, ordered a temporary injunction to issue against the railway company restraining it,
pending the final hearing of the cause, from putting into effect the tariffs, rates, or charges set forth in the act
approved April 18, 1907. The court also enjoined the defendant Young, as Attorney General of the State of
Minnesota, pending the final hearing of the cause, from taking or instituting any action or proceeding to
enforce the penalties and remedies specified in the act above mentioned, or to compel obedience to that act, or
compliance therewith, or any part thereof.
Page 209 U. S. 133
END QUOTE

Likewise, the Attorney-General for the State of Victoria allowing Buloke Shire Council to
litigate on its behalf as to purportedly enforce legal provisions of the Country Fire Authority Act
1958 by this clearly acts by this in violation of my rights obtained on 19 July 2o006.
If the Attorney-General didnt like the 19 July 2006 court ruling based upon my submission of
constitutional issues (and a S78B NOTICE OF CONSTITUTIONAL MATTERS was at the
time served upon all Attorney-Generals then the Attorney-General could have placed his
objections at the time. Now about 10 years later it is beyond the courts power to allow for this
kind of litigation in clear violation of my successful appeals.
As the High Court of Australia in HCA 27 of 1999 Wakim made clear the same parties cannot
re-litigate the same constitutional issues between them.
As such on that basis also I maintain my OBJECTION TO JURISDICTION.
Some legal principles I hold very relevant to mention some;
https://law.resource.org/pub/us/case/reporter/F.Cas/0003.f.cas/0003.f.cas.0221.pdf
BENNETT V. BOGGS.
QUOTE
We cannot declare legislative act void because it conflicts with our opinions of policy, expediency or
justice. We are not the guardians of the rights of the people of a state unless they are secured by some
constitutional provision which comes within our judicial cognizance. The remedy for unwise or
oppressive legislation, within constitutional bounds, is by an appeal to the justice and patriotism of the
representatives of the people. If this fails, the people in their sovereign capacity can correct the evil; but
courts cannot assume their rights.
END QUOTE
p13

2-2-2016

Hearing date 22-2-2016 Ballarat venue

Mr G. H. Schorel-Hlavka O.W.B.

Appeal 15-2502

Deponent: Mr G. H. Schorel-Hlavka O.W.B. 107 Graham Road, Viewbank 3084, Victoria admin@inspector-rikati.com

(Buloke Shire Council) Prosecutors legal representatives ES&a Lawyers

Page 14 (Revised format) AP 2502


Hearing date 22-2-2006 (or alternative date if allocated)
https://www.gov.uk/government/speeches/the-rule-of-law-and-the-future-of-the-sector
Speech The Rule of Law and the Future of the Sector
From: Attorney General's Office and The Rt Hon Jeremy Wright QC MP
QUOTE
I do not want this speech to be a historical overview of the rule of law but the English philosopher John
Locke made the point in 1690 that Wherever law ends, tyranny begins. The classic modern definition of the
Rule of Law and by modern I mean 1885 - comes from the jurist and constitutional theorist AV Dicey. I
wont read the whole of what he said but two parts of it are of particular importance to the success of the City
of London and its commercial and legal sectors. Firstly, Dicey said that the rule of law meant that no man is
punishable or can be lawfully made to suffer in body or goods except for a distinct breach of law
established in the ordinary legal manner before the ordinary Courts of the land. He also said that when
we speak of the rule of law we mean not only that with us no man is above the law, but that here every
man, whatever be his rank or condition, is subject to the ordinary law of the realm and amenable to the
jurisdiction of the ordinary tribunals.
END QUOTE
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 is
paramount. 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 support
it. He must produce all relevant authorities, even those that are against him. He must see that his
client discloses, 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

The word transcript must not be wrongly interpreted to relate only to the written version of
what was recorded by a court reporter. . these days transcripts are created from what is the court
audio transcript recording. As such transcript includes the Audio recording. As after all where
there is no court reporter sitting in the court room and any transcript is created from the audio
court transcript recording then the audio recording it self is deemed to be the transcript.
As a matter of fact over the decades I had to alert Auscript that it had wrongly transcribed audio
recordings as much as 8 errors on a page. For example where a party had stated told Mr Allen
that Scott was the husbands (in a paternity case) the court reported had transcribed this as told
Mr Allan that Scottish bastard. While upon review Auscript corrected the transcript,
nevertheless it does underline that the audio recording is more reliable then the written
transcribing of it.
The audio transcript underlines there never was any witnesses to have given evidence from the
witness box, and that includes the lawyer.
County Small Claims Court: APPELLATE PROCEDURE record - To show error, the appellant must provide
the appellate court with an adequate record of the trial proceedings so that the court can properly consider all
relevant factual issues and determine if the trial courts judgment was supported by the evidence and whether the
issues were properly preserved for appeal - Without a transcript of the hearing in this case and no error of law
appearing on the face of the final judgment, appellant could not overcome presumption of correctness of trial courts
decision and demonstrate reversible error Final judgment affirmed. Henderson v. Kotadia, No. 02-6529-CI-88A
(Fla. 6th Cir. App. Ct. Jan. 8, 2003).
County Criminal Court: APPELLATE PROCEDURE Record Trial courts judgment clothed with a
presumption of correctness, and cant be disturbed in absence of record demonstrating error. Judgment affirmed.
Smith v. State, No. CRC 05-15 APANO, (Fla. 6th Cir.App.Ct. June 28, 2006).
County Criminal Court: APPELLATE PROCEDURE Record Judgment and sentence are presumed correct
unless the appellate court is provided with a record sufficient to evaluate the appellants claim of error. No record
p14

2-2-2016

Hearing date 22-2-2016 Ballarat venue

Mr G. H. Schorel-Hlavka O.W.B.

Appeal 15-2502

Deponent: Mr G. H. Schorel-Hlavka O.W.B. 107 Graham Road, Viewbank 3084, Victoria admin@inspector-rikati.com

(Buloke Shire Council) Prosecutors legal representatives ES&a Lawyers

Page 15 (Revised format) AP 2502


Hearing date 22-2-2006 (or alternative date if allocated)
presented, thus judgment and sentence affirmed. Shanklin v. State, No. CRC 05-64 APANO, (Fla. 6th Cir.App.Ct.
May 17, 2006).
County Civil Court: APPELLATE PROCEDURE Record Since an appellate court cannot consider facts
outside the record, the judgment must be affirmed. Cheryl Wise v. Citibank, N.A., No. 12-AP-000011-WS (Fla. 6th
Cir. App. Ct. March 19, 2013).
County Civil Court: APPELLATE PROCEDURE Record To show error, Appellant must provide the
appellate court with an adequate record of the trial proceedings; without a transcript of the hearing in this case and
no fundamental error of law appearing on the face of the final judgment, Appellant could not overcome presumption
of correctness of trial courts decision and demonstrate reversible error. Judgment affirmed. Joseph Rainier v. State,
No. 11-CF-001413-WS (Fla. 6th Cir. App. Ct. July 20, 2012).
County Civil Court: APPELLATE PROCEDURE Record To show error, the appellant must provide the
appellate court with an adequate record of the trial proceedings; without a transcript of the hearing in this case and
no fundamental error of law appearing on the face of the final judgment, appellant could not overcome presumption
of correctness of trial courts decision and demonstrate reversible error. Judgment affirmed. Cordas v. Periatomby,
No. 08-000049AP-88A (Fla. 6th Cir. App. Ct. February 16, 2010).

County Civil Court: APPELLATE PROCEDURE Record To show error, the appellant must provide the appellate
court with an adequate record of the trial proceedings; Without a transcript of the hearing in this case and no error of law
appearing on the face of the final judgment, appellant could not overcome presumption of correctness of trial courts decision and
demonstrate reversible error no transcript-Judgment affirmed. Reyes v. Linder, No. 51-2008-AP-10 (Fla. 6th Cir App. Ct. April
16, 2009).

County Traffic Court: APPELLATE PROCEDURE Record Appellant has failed to demonstrate in the record
any error in the trial court's decision. Cusma v. State, CRC0400140CFAES (Fla. 6th Cir. App.Ct. August 11, 2005).
County Criminal Court: APPELLATE PROCEDURE Record Since electronic recording system was not
properly engaged, there is no transcript of the proceedings available. Therefore, the defendant is entitled to a new
trial because the matters raised in the appeal are unable to be resolved without reference to the transcript of the
proceedings. Judgment and sentence reversed. Tadlock v. State, No. CRC 04-7 APANO, (Fla. 6th Cir.App.Ct. July
7, 2005).
County Civil Court: APPELLATE PROCEDURERecord: Appellate court had to accept propriety of trial
courts denial of motion to vacate when no transcript or approved statement of evidence was filed. Lazaro v. Robert
A. Dempster Reporting Co., No. 04-0013AP-88A (Fla. 6th Cir. App. Ct. Jan. 24, 2005).
County Small Claims Court: APPELLATE PROCEDURE record - Without a transcript of the hearing in this
case and no error of law appearing on the face of the final judgment, appellant could not overcome presumption of
correctness of trial courts decision and demonstrate reversible error Final judgment affirmed. Strickland v. Doyne,
No. 02-4722-CI-88A (Fla. 6th Cir. App. Ct. Jan 8, 2003).
The Appellant has not specified any errors of the lower court nor presented any issues for review and the record
shows that no error was committed in the proceedings below. As the Appellant has not shown any basis for reversal
of the lower court, the lower courts Final Judgment is affirmed. Heideman v. Colton and Associates, No. 99-8466CI-88A (Fla. 6th Cir. Ct. August 24, 2000).

I in 1985 created the concept of the ADDRESS TO THE COURT (written submissions) which
since has been used in all level of courts, including the High court of Australia.
I was sick and tired how judicial officer prevent a party to have a fair and proper opportunity to
make submissions to the court and hence designed this concept.
When a judge refused to consider my ADDRESS TO THE COURT and issued orders adverse
to me I successfully appealed this and the full Court did set aside the orders making clear that the
trail judge had to consider the written submissions in the ADDRESS TO THE COURT.
As the orders by the Magistrates Court of Victoria at St Arnaud on 17 September 2015 were
without evidence and without consideration, and the comments of His Honour Mullaly J on 30
p15

2-2-2016

Hearing date 22-2-2016 Ballarat venue

Mr G. H. Schorel-Hlavka O.W.B.

Appeal 15-2502

Deponent: Mr G. H. Schorel-Hlavka O.W.B. 107 Graham Road, Viewbank 3084, Victoria admin@inspector-rikati.com

(Buloke Shire Council) Prosecutors legal representatives ES&a Lawyers

Page 16 (Revised format) AP 2502


Hearing date 22-2-2006 (or alternative date if allocated)
October 2015 may be considered in light of the following questions also, as bias, legally
inappropriate, etc.
http://www.ndcourts.gov/Court/Briefs/20120446.atb.htm
State v. Ratteray District Court Case No. 02-2011-CR-00059
QUOTE
A. Standard Of Review.
B. There was Insufficient Evidence to Support Convictions on all the Charges.
1. There was Insufficient Evidence to Establish the Offenses of Gross Sexual Imposition Under the Law.
2. There was Insufficient Evidence to Establish the Offense of Creation of Sexually Expressive Images.
C. The Sentence in this Matter was Excessive or Based on Impermissible Factors.
END QUOTE
http://www.ndcourts.gov/Court/Briefs/20120446.atb.htm
State v. Ratteray District Court Case No. 02-2011-CR-00059
QUOTE
[24] In this case the Court held an evidentiary hearing after a pre-sentence investigation. The Court in this
case noted that Chris did not have a prior criminal record. (App. 100, ln. 14). However, the Court continued
"That doesn't mean you didn't get caught at anything or that you didn't do something that you didn't get
caught at, but suffice it to say you didn't basically have any prior record." (App. 100, lns. 17-20). These
comments by the court show a predilection by the court not to believe that Chris did not have a
previous criminal record. Such a consideration is improper under the law.
END QUOTE
http://www.ndcourts.gov/Court/Briefs/20120446.atb.htm
State v. Ratteray District Court Case No. 02-2011-CR-00059
QUOTE
[26] Finally, Mr. Ratteray contends that the court took his race into consideration. This issue has been
addressed before by the United States Supreme Court. See McCleskey v. Kemp, 481 U.S. 279, 107 S.Ct.
1756, 95 L.Ed.2d 262 (1987). The McCleskey court held that a study in and of itself was insufficient to
support an inference that the sentence was discriminatory. Id., 481 U.S. at 297, 107 S.Ct. at 1770, 95 L.Ed.2d
at 281-282. The North Dakota Supreme Court appears to accept this analysis in State v. Halton (535 N.W.2d
734). Although McCleskey dealt with death penalty cases, North Dakota appears to have recognized and
affirmed the discrimination analysis in Halton. The fundamental notion in McCleskey is that the accused
must show "that the decisionmakers in his case acted with discriminatory purpose." McCleskey, 292,
emphasis in original.
END QUOTE
http://www.ndcourts.gov/Court/Briefs/20120446.atb.htm
State v. Ratteray District Court Case No. 02-2011-CR-00059
QUOTE
[30] In this case, Mr. Ratteray is African American. That fact is not in dispute. Mr. Ratteray received a
sentence of eight (8) years, with none suspended. Mr. Ratteray had no previous criminal history, and had filed
numerous letters of support from his family. (App. 98, lns. 6-9). Mr. Ratteray had been enrolled in college at
the time of incident. Relying on statistical notations and the findings of the North Dakota Commission to
Study Racial and Ethnic Bias, and a further actual case where Mr. Ratteray received a much harsher sentence
than a similarly situated Defendant is sufficient to call into question to prove the discriminatory intent of the
decision maker in this case. Mr. Ratteray further contends that the comments regarding that Mr.
Ratteray "didn't get caught at anything or that you didn't do something that you didn't get caught at"
reflects a bias toward believing that Mr. Ratteray did indeed not have a prior criminal record.
[31] Because Christopher Ratteray contends that other factors which were not appropriate pursuant to the law
and constitutional requirements, his sentence should be reconsidered under the law.
END QUOTE

QUOTE Padfield v Minister of Agriculture & Fisheries and Food (1968) AC 997 (1968) 1
ALL ER 694 House of Lords - Lord Upjohn and Lord Hodson Upjohn: - (Irrelevant
consideration)
Here let it be said at once, he and his advisers have obviously given a bona fide and
painstaking consideration to the complaints addressed to him; the question is whether the
consideration was sufficient in law.
END QUOTE
.

p16

2-2-2016

Hearing date 22-2-2016 Ballarat venue

Mr G. H. Schorel-Hlavka O.W.B.

Appeal 15-2502

Deponent: Mr G. H. Schorel-Hlavka O.W.B. 107 Graham Road, Viewbank 3084, Victoria admin@inspector-rikati.com

(Buloke Shire Council) Prosecutors legal representatives ES&a Lawyers

Page 17 (Revised format) AP 2502


Hearing date 22-2-2006 (or alternative date if allocated)
QUOTE Bringinshaw v Bringinshaw (1938) 60 CLR 336 at 361,362
Not inexact proof, indefinite testimony or indirect inference (By prosecution)
END QUOTE

As to legal principles of authorities:


QUOTE Duncan v Queensland (1916) 22 CLR 556, 582 (per Griffith C.J.)
That case (a previous decision of the High Court, Foggit, Jones & Co v NSW (1915) 21 CLR 357) was
very briefly, and I regret to say, insufficiently argued and considered on the last day of the Sydney
sitting..... The arguments which now commend themselves to me as conclusive did not find entrance to
my mind. In my judgment that case was wrongly decided, and should be overruled.
END QUOTE

On 30 October 2015 I appeared before His Honour Mullaly J in the County Court of Victoria and
was immediately subjected to a derogative comment by His Honour Mullaly J this even so there
was nothing in my conduct to legally justify this. Neither was there any evidence to legally
justify this. His Honour Mullaly J made it clear His Honour Mullaly J was not going to waste
court time to read my then 11 pages of ADDRESS TO THE COURT. The critical fatal error
was that His Honolur Mullaly J by this never was aware that he blatantly disregard my
submission that the Magistrates court of Victoria had not invoked jurisdiction as it never
disposed of my OBJECTION TO JURISDICTION and as such His Hon our Mullaly J neither
could invoke jurisdiction to order a De Novo hearing for 22 February 2016 without first having
dealt with and disposed of the OBJECTION TO JURISDICTION.
(Not that I seek to imply that His Honour Mullaly J had legal grounds to dismiss the
OBJECTION TO JURISDICTION)
It was at the about 12 minute time of the hearing that I alerted His Honour Mullaly J that I would
seek as judicial review regarding His Honour Mullaly J refusal to consider the written
submissions in the ADDRESS TO THE COURT as I had previously successfully appealed as
judge refusal to do so.
It was then that His Honour Mullaly J decided to adjourn as to read the ADDRESS TO THE
COURT and upon His Honour Mulally J returning then raised the issue of the full brief and
issued orders that the full brief was to be posted via Australia Post by no later than 9 November
2015. This neve r eventuated.
QUOTE
HYNDMAN
V
WALLST/ARMS
higc3453
(https://www.courtsni.gov.uk/enGB/Judicial%20Decisions/PublishedByYear/Documents/2001/2001%20NIQB%2024/j_j_HIGC3453.htm)
In Davis v NI Carriers [199] NI 19 Lowry LCJ (as he then was) said at page 20:
Where a time-limit is imposed by statute it cannot be extended unless that or
another statute contains a dispensing power. Where the time is imposed by rules
of court which embody a dispensing power, such as that found in Order 64, rule
7, the court must exercise its discretion in each case, and for that purpose the
relevant principles are:
(1)
whether the time is sped: a court will, where the reason is a
good one, look more favourably on an application made before the time
is up;
(2)
when the time-limit has expired, the extent to which the party
applying is in default;
(3)
the effect on the opposite party of granting the application and,
in particular, whether he can be compensated by costs;
(4)
whether a hearing on the merits has taken place or would be
denied by refusing an extension;
(5)
whether there is a point of substance (which in effect means a
legal point of substance when dealing with cases stated) to be made
which could not otherwise be put forward; and
p17

2-2-2016

Hearing date 22-2-2016 Ballarat venue

Mr G. H. Schorel-Hlavka O.W.B.

Appeal 15-2502

Deponent: Mr G. H. Schorel-Hlavka O.W.B. 107 Graham Road, Viewbank 3084, Victoria admin@inspector-rikati.com

(Buloke Shire Council) Prosecutors legal representatives ES&a Lawyers

Page 18

(Revised format)

AP 2502
Hearing date 22-2-2006 (or alternative date if allocated)
(6)
whether the point is of general, and not merely particular
significance.

To these I add the important principle:


(7)

that the rules of court are there to be observed.

In this connection I could not hope to improve on what Lord Guest has said in
Ratnam v. Cumarasamy [1965] 1 W.L.R. 8, 12:
The rules of court must prima facie be obeyed, and in order to
justify a court in extending the time during which some step in
procedure requires to be taken there must be some material
upon which the court can exercise its discretion. If the law
were otherwise, a party in breach would have an unqualified
right to an extension of time which would defeat the purpose
of the rules, which is to provide a time table for the conduct of
litigation.
The importance of the rules and compliance with them cannot be overlooked.
END
QUOTE
HYNDMAN
V
WALLST/ARMS
higc3453
(https://www.courtsni.gov.uk/enGB/Judicial%20Decisions/PublishedByYear/Documents/2001/2001%20NIQB%2024/j_j_HIGC3453.htm)

Despite numerous writings about the issue of a party needing to apply for Leave to file and/or
serve out of time to both Buloke Shire Council and its legal representatives I am not aware any
such application was made either as to the Notice of appearance and/or the full brief. As the
Form 11 statement (Re brief) was dated 25 November 2015 then clearly it never could have been
as was ordered by His Honour Mulally J posted on or before 9 November 2015 via Australia Post
Basically Buloke Shire Council and its legal representatives seems to be not the least concerned
to follow proper legal procedures and requirements and it is in my submission not for the court to
tolerate this let alone to ignore this deliberate blatant disregard to comply with legal
requirements.
Another legal issue that ought to be considered is that while the Infringement Notice was darted
17 November 2014 somehow Buloke Shire Council didnt bother to institute proceedings until In
August 2015. If there had been a real fire danger existing in November 2014 just prior to the
summer then surely a FAIR MINDED PERSON would hold that Buloke Shire Council would
have sought as soon as possible to have the matter placed before the Court as to obtain a judicial
determination. If the was a real and not a fictional fire danger then why leave a situation existing
that places firefighters at the peril of fire dangers? In my submission the lack of proper and
immediate action to pursue matters may only underline that this was more of a monetary
collection issue nothing to do with any real fire danger. As such I submit a deliberate abuse of
the purpose of the Country Fire Authority Act 1958 as well as the legal processes.
In fact Buloke Shire Council legal representatives has not even filed a Notice of Appearance as
to have any legal standing to appear before His Honour Mullaly J and yet His Honour Mullaly J
seemed to fail to raise this.
County Civil Court: APPELLATE PROCEDURE Preservation of Error Florida Rules of Civil
Procedure, Rule 1.540 a motion for relief from judgment under Rule 1.540 cannot be used to overcome a
litigants failure to file a timely notice of appeal appellate court does not have jurisdiction to review new
claims or evidence - Judgment affirmed. McCloskey v. Amelia Auto Transport, Inc., Appeal No. 06-0041AP88A (Fla. 6th Cir. App. Ct. Feb. 7, 2007).
County Civil Court: CIVIL PROCEDURESummary JudgmentEntry of final summary judgment with
discovery pending not abuse of discretion when non-moving party failed to act diligently to pursue
discovery. Trial court entitled to believe real purpose of late-filed discovery is merely for delay Order
affirmed. Janet Dean v. Citibank (South Dakota) d/b/a Citi Visa Card, Appeal No. 12-000054AP-88A (Fla.
6th Cir. App. Ct. November 22, 2013).

p18

2-2-2016

Hearing date 22-2-2016 Ballarat venue

Mr G. H. Schorel-Hlavka O.W.B.

Appeal 15-2502

Deponent: Mr G. H. Schorel-Hlavka O.W.B. 107 Graham Road, Viewbank 3084, Victoria admin@inspector-rikati.com

(Buloke Shire Council) Prosecutors legal representatives ES&a Lawyers

Page 19 (Revised format) AP 2502


Hearing date 22-2-2006 (or alternative date if allocated)
Likewise where the prosecutor failed to file any evidence whatsoever and failed for the appeal
to file in time a Notice of Appearance then essentially there was no appearance by Buloke Shire
council on 30 October 2015.

When then purported brief was emailed to me it related to an 18 March 2013 hearing date. This
in itself in my view was a deceptive conduct as the Form 11 which was signed by the legal
Representative for Buloke Shire Council clearly ought to have known that you cannot have a
court hearing listed for 18 March 2013 when the Infringement Notice itself was dated 17
November 2014. The Form 11 was signed by the lawyer on 25 November 2015, which clearly
never could have been the full brief for the 18 March 2013 alleged court hearing (to which I
never had any prior knowledge) nor could have been used for the 290 Augusts 2015 and/or the
17 September 2015 hearings before the Magistrates Court of Victoria at St Arnaud.
While Counsel for Buloke Shire Council from the Bar table claimed that it had not received my
request for a brief until yesterday (referring to 29 October 2015) the truth is that it was
requested on 27 October 2015. I consider it an offense and indeed CONTEMPT IN THE FACE
OF THE COURT for a barrister to use his privileged position at the Bar table to deceive a
judicial officer as to pervert the course of justice. After all had counsel correctly stated that the
request was made on 27 October 2015 regarding the full brief that was purportedly or should
have existed for the 20 August 2015 and/or17 September 2015 hearings then it is clear that all
the legal representatives for Buloke Shire council had to do was to photo copy the brief and
surely they could have had this ready before the 30 October 2015 hearing before His Honour
Mullaly J. Indeed His Honour Mullaly J was loath to allow a week for Buloke shire council to
provide the brief but was convinced doing so because of counsel for Buloke Shire Council
claiming the yesterday and the issue of photos. Again, where the full brief should have been
in existence at least since 17 September 2015 then anyone who ever used a photo copier would
be aware that it may at most take a mere few minutes to copy it all. Even if the legal
representatives had no photo copier or were to claim it was out of order then Office works are all
around where they could have had the documents copied.
County Criminal Court: CRIMINAL LAW Municipal Code Violations Code provision prohibiting the
parking of commercial vehicles in residential areas is not unconstitutionally vague code uses words of
common usage that gives a person of ordinary intelligence fair notice of what conduct is prohibited
undisputed facts of case provide competent substantial evidence to support trial courts finding of guilt -Order affirmed. Spaulding v. State, No. 03-00066 APANO (Fla. 6th Cir. App. Ct. Sept. 9, 2004).

Any Fire Prevention Notice using the wording all combustible material I submit cannot be
perceived by code uses words of common usage that gives a person of ordinary intelligence fair notice of
what conduct is prohibited but to include all combustible materials, including fire wood, etc.
.
QUOTE Grey v Pearson (1857) 6 H.L.C. (per Lord Wensdayle)
In construing wills and indeed, statutes and all written documents, the grammatical and ordinary sense of
the word is to be adhered to unless that would lead to some absurdity, or some repugnance or inconsistency
with the rest of the instrument, in which case the grammatical or ordinary sense of the words may be
modified so as to avoid that absurdity and inconsistency but no further.
END QUOTE
.

QUOTE Abley v Dale (1850) 20 L.J.C.P. 35 (per Jervis C.J.)


We assume the function of legislation when we depart from the ordinary meaning of the precise terms used,
merely because we see, or fancy to see, an absurdity or manifest injustices from an adherence to their literal
meaning
END QUOTE
.

QUOTE Camden Marquis v Inland Revenue Commissioners (1914) 1 KB 641 (per Latham C.J.)
In Bendixon v Coleman (1945) 68 CLR 401 at 415
Stitt v Radford (1926) 26 SR (NSW) 263 at 265 43 WN at 75
Re Rippon housing confirmation order 1938
White v Minister for Health (1939) 2 KB 838
p19

2-2-2016

Hearing date 22-2-2016 Ballarat venue

Mr G. H. Schorel-Hlavka O.W.B.

Appeal 15-2502

Deponent: Mr G. H. Schorel-Hlavka O.W.B. 107 Graham Road, Viewbank 3084, Victoria admin@inspector-rikati.com

(Buloke Shire Council) Prosecutors legal representatives ES&a Lawyers

Page 20 (Revised format) AP 2502


Hearing date 22-2-2006 (or alternative date if allocated)
The court takes judicial notice of the meaning of ordinary words, and evidence is not admissible to expound
their meaning; though the court, in addition to using its own knowledge, may refer to standard authors and
authoritative dictionaries in order to obtain assistance in interpretation.
END QUOTE
.

QUOTE Powell v Trantor (1984) 3 H & C 458 at p461 (159 E.R. 610 at 611)
The golden rule of construction is, that words are to be construed according to their natural meaning, unless
such a construction would render them senseless, or would be opposed to the general scope and intent of
the instrument, or unless there is some cogent reason of convenience in favour of a different interpretation.
END QUOTE
.

QUOTE Maxwell, Interpretation of Statutes 8th Ed. p2;


Hotel Kingston Ltd. v Federal Commissioner of Taxation (1944) 69 CLR 221; 28 Austin Digest 752
The first and most elementary rule of construction is that it is to be assumed that the words and phrases are
to be used in their technical meaning if they have acquired one and in their popular meaning if they have
not, and that the phrases and sentences are to be construed according to the rules of grammar; and from this
presumption it is not allowable to depart, where the language admits to no other meaning, nor, where it is
susceptible of another meaning, unless adequate grounds are found, either in the history or cause of the
enactment or in the context or in the consequences which would result from the literal interpretation, for
concluding that that interpretation does not give the real intention of the legislature.
END QUOTE

As is set out below the Fire Prevention Notice itself was in violation of the provisions of the
Country Fire Authority Act 1958 as it demanded me to do something which was specifically
excluded by the legislation! For example it required to remove all combustible material from
property which in itself would be an utter and sheer nonsense as not only are buildings and its
content excluded by the legislation but no one in his/her right mind can accept that a property
owner has to remove all buildings, wooden fence poles, trees, etc, for a duration of a declared
fire danger period. And the 100 mm height which the Municipal Fire Prevention Officer also
insisted upon growth was effectively to legislate beyond the powers delegated to him. So to say
no one in the world (including any judicial officers!) could reasonably be expected to remove all
buildings, trees, wooden fence posts and wooden railings from a property and this neither was
within the intend of the legislation or indeed within that of the legislators. In law this is a
Notice that violates the legislative provisions and hence is invalid.
Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28 (28 April 1998)
Dawson J pointed out in Hunter Resources Ltd v Melville when discussing the statutory provision in that
case: "substantial compliance with the relevant statutory requirement was not possible. Either there
was compliance or there was not."
The reasoning of Fullagar J in Clayton v. Heffron (supra) in relation to the provisions of s 5B of the
Constitution Act 1902 (NSW) is material in this context:
"A manner and form are prescribed by section 5B, and that manner and form must be observed if a valid
law is to be produced. Any prescription of manner and form may be repealed or amended, but, while it
stands, the process prescribed by it must be followed. That was decided Trethowan's case and I think
that the whole of what is prescribed by section 5B relates to manner and form. It does not seem to me to be
possible to say that some of the requirements of the section are matters of manner and form while others are
not. The section describes one entire process - a series of steps, one following on another - and only the
completion of the entire process can produce a valid law." (Supra at 262)

And the same applies to the Infringement Notice that was issued subsequently that relied upon
the invalid Fire prevention Notice.
When a notice is issued that prevent any person in the world to reasonably comply with it then
the sanity of the person issuing the notice as well as those seeking to enforce it must be
questioned. How many judicial officer would hold it normal to remove every tree from their
property every year before the fire danger period and then have them returned months
later? Surely the absurdity of that alone ought to make it very clear that the Fire Prevention
Notice was utter and sheer nonsense in law and never should have been pursued by competent
legal practitioners.
p20

2-2-2016

Hearing date 22-2-2016 Ballarat venue

Mr G. H. Schorel-Hlavka O.W.B.

Appeal 15-2502

Deponent: Mr G. H. Schorel-Hlavka O.W.B. 107 Graham Road, Viewbank 3084, Victoria admin@inspector-rikati.com

(Buloke Shire Council) Prosecutors legal representatives ES&a Lawyers

Page 21 (Revised format) AP 2502


Hearing date 22-2-2006 (or alternative date if allocated)
And yet the Judicial Registrar/Magistrate without a shred of evidence and without any full
brief and so without any consideration issued orders against me. Despite my litany of
explanations regarding this Buloke Shire Council continues, as it has done over the years, to
issue the same kind of Fire Prevention Notices. After all it demands payment to itself rather than
to the State Consolidated Revenue Funds and if they can have a judicial officer idiotic enough to
enforce this nonsense then why not? In my view any fair dinkum judge would issue warrants for
all those involved to appear before the court as to show cause why they should not be dealt with
for having separately or by conspiracy (as set out in my various writings) perverted the course
of justice. I view a failure by a judge to do so maybe seen as making him/her complicit to this
elaborate fraud upon society.
This may deem to be harsh words but considering my elaborate writings and the lack of any
sanity by those involved, and this include the Premier of Victoria Mr Daniel Andrews, the
Attorney-General, the County fire Officer who failed to respond to my request despite being
limited to 14 days by the provisions of the Country Fire Authority Act 1958, the Shire council
itself, and their legal representatives as well as the judiciary questions what really is going on.
As a matter of fact despite my 20151209-Schorel-Hlavka O.W.B. to Daniel Andrews Premier
Victoria -Re APPEAL-15-2502Re Request for information-details (FOI)-etc and 20151211Schorel-Hlavka O.W.B. to Daniel Andrews Premier Victoria -Re APPEAL-15-2502Re Request
for information-details (FOI)-etc-Supplement-01 no response what so ever was received. This
regardless that the information requested relates to the details regarding Infringement Notices
issued by Buloke Shire Council, etc.
QUOTE
Daniel Andrews Premier Victoria
daniel.andrews@parliament.vic.gov.au
Cc:

9-12-2015

Mr Martin Pakula, martin.pakula@parliament.vic.gov.au & attorney-general@justice.vic.gov.au


Ref; 20151209-Schorel-Hlavka O.W.B. to Daniel Andrews Premier Victoria -Re APPEAL-15-2502Re Request for information-details
(FOI)-etc

Sir,

this is a request for details/information, etc, as to assist/aid in court litigation currently


before the County Court of Victoria (Scheduled again for hearing on 22 February 2016 and as
such information/documentation/details are to be provided well before that date.) and as such any
refusal/omission to provide relevant details I would consider to be an conduct to pervert the
course of justice. If you refuse/deny to provide the information/details (as referred to below)
and/or any part thereof then consider it a request for so far refused/denied to be a request within
the FOI Act. As to avoid huge cost on paperwork, etc, I view that the providing of the
details/information/documentation, etc, in electronic format on a DVD would be acceptable.
As a senior citizen and holding a pension card 301-602-799V I seek all and any charges ordinary
being applicable to an FOI request to be waived, this also as this is a matter of public interest.
END QUOTE

Again:
QUOTE

this is a request for details/information, etc, as to assist/aid in court litigation currently


before the County Court of Victoria (Scheduled again for hearing on 22 February 2016 and as
such information/documentation/details are to be provided well before that date.)
END QUOTE

Therefore there can be absolutely no doubt about it that the (FOI) request related to the 22
February 2016 hearing.
Considering that the original request was dated 9 December 2015 and that ordinary there is a 45
day period allowed by the FOI act to provide what was requested then one has to consider the
following time table:
p21

2-2-2016

Hearing date 22-2-2016 Ballarat venue

Mr G. H. Schorel-Hlavka O.W.B.

Appeal 15-2502

Deponent: Mr G. H. Schorel-Hlavka O.W.B. 107 Graham Road, Viewbank 3084, Victoria admin@inspector-rikati.com

(Buloke Shire Council) Prosecutors legal representatives ES&a Lawyers

Page 22

(Revised format)

AP 2502

9 December 2015 Wednesday (Day of Request)


10 December 2015 Thursday Day 1
11 December 2015 Friday
Day 2 (Suppl 1)
12 December 2015Saturday
Day 3
13 December 2015 Sunday
Day 4
14 December 2015 Monday
Day 5
15 December 2015 Tuesday
Day 6
16 December 2015 Wednesday Day 7
17 December 2015 Thursday Day 8
18 December 2015 Friday
Day 9
19 December 2015 Saturday Day 10
20 December 2015 Sunday
Day 11
21 December 2015 Monday
Day 12
22 December 2015 Tuesday
Day 13
23 December 2015 Wednesday Day 14
24 December 2015 Thursday Day 15
25 December 2015 Friday
Day 16
26 December 2015 Saturday Day 17
27 December 2015 Sunday
Day 18
28 December 2015 Monday
Day 19
29 December 2015 Tuesday
Day 20
30 December 2015 Wednesday Day 21
31 December 2015 Thursday Day 22

Hearing date 22-2-2006 (or alternative date if allocated)


1 January 2016 Friday
Day 23
2 January 2016 Saturday Day 24
3 January 2016 Sunday
Day 25
4 January 2016 Monday
Day 26
5 January 2016 Tuesday
Day 27
6 January 2016 Wednesday Day 28
7 January 2016 Thursday Day 29
8 January 2016 Friday
Day 30
9 January 2016 Saturday
Day 31
10 January 2016 Sunday
Day 32
11 January 2016 Monday
Day 33
12 January 2016 Tuesday
Day 34
13 January 2016 Wednesday Day 35
14 January 2016 Thursday Day 36
15 January 2016 Friday
Day 37
16 January 2016 Saturday Day 38
17 January 2016 Sunday
Day 39
18 January 2016 Monday
Day 40
19 January 2016 Tuesday
Day 41
20 January 2016 Wednesday Day 42
21 January 2016 Thursday Day 43
22 January 2016 Friday
Day 44
23 January 2016 Saturday Day 45
24 January 2016 Sunday
Day 46
25 January 2016 Monday
Day 47

In the circumstances where a date falls in a weekend then the next business day is deemed to be
appropriate to comply and as such 25 January 2016 was the last day to provide the FOI requested
material
Even if for argument sake the date was to be calculated from the date of the Supplement 1 then
still the last date would be 25 January 2016.
What we have however is that currently the original calculations from 9 December 2015
continues as follows:
26 January 2016 Tuesday
Day 48
27 January 2016 Wednesday Day 49
28 January 2016 Thursday Day 50
29 January 2016 Friday
Day 51
30 January 2016 Saturday Day 52
31 January 2016 Sunday
Day 53
1 February 2016 Monday

Day 54

And obviously this continues to go on.


Any proper investigation will establish that the Premier and the Attorney-General all along were
made aware of the litigation conducted by Buloke Shire Council on behalf of the State
Government and as such there ought to be no excuse of it obstructing the course of justice by
failing to act appropriately as required by the legal provisions of the FOI Act.
If on the other hand the Government makes a demand and say allows only 7 days then the courts
will go against a person failing to comply with a 7 day period. I view the courts in this regard
must act likewise. Again it seems to me that the government so to say has the judiciary in its
pocket and the judges simply will jump when told to do so.
It should be understood that as Buloke Shire Council is acting allegedly by delegated State
powers then in real terms the State Government is the litigator (Prosecutor) and as such the
refusal by the Premier to provide the requested FOI details/material is to obstruct the course of
p22

2-2-2016

Hearing date 22-2-2016 Ballarat venue

Mr G. H. Schorel-Hlavka O.W.B.

Appeal 15-2502

Deponent: Mr G. H. Schorel-Hlavka O.W.B. 107 Graham Road, Viewbank 3084, Victoria admin@inspector-rikati.com

(Buloke Shire Council) Prosecutors legal representatives ES&a Lawyers

Page 23 (Revised format) AP 2502


Hearing date 22-2-2006 (or alternative date if allocated)
justice. Clearly by refusing the requested details/information the State Government must be seen
to deliberately obstruct my rights to prepare for a hearing.

As a copy was at the same time sent via email to the Attorney-General who is the first law officer
then he too appears to hold himself in contempt with the Parliament to ignore my FOI request.
Again the request was made ordinary but in case it was to be refused then to be considered an
FOI request. As such, the premier and the Attorney-General could have provided relevant
details/information without the need to invoke any FOI request. But failing to do so then the FOI
request became applicable from the date of the request.
The legal doctrine of ex turpi causa non oritur action denies any remedy to a litigant
(including a prosecutor) who does not come to court with clean hands.
If your own action is very unlawful and very unethical, if you come to court with Dirty Hands
best not to question others legality, morality, and ethics!
The issue of OBJECTION TO JURISDICTION in fact provides the Court with jurisdiction to
decide this objection and it then can also order exemplary damages against the State
government/Buloke Shire Council and its legal representatives. As referred to in my
correspondence 20160110-Schorel-Hlavka O.W.B. to Mr Wayne Wall & ORS-Re APPEAL-152502-Re exemplary damages-etc
QUOTE 20160110-Schorel-Hlavka O.W.B. to Mr Wayne Wall & ORS-Re APPEAL-15-2502-Re exemplary
damages-etc
Mr Wayne Wall, Municipal Fire Prevention Officer
10-1-2016
buloke@buloke.vic.gov.au
Cc: (Not listed in any order of importance)
Buloke Shire Council (Councillors) buloke@buloke.vic.gov.au
Daniel Andrews Premier Victoria daniel.andrews@parliament.vic.gov.au
Mr Martin Pakula, martin.pakula@parliament.vic.gov.au & attorney-general@justice.vic.gov.au
Elliott Stafford and Associated (EA&a) lawyers@elliottstafford.com.au
Mr Peter Kidd CJ County Court of Victoria, feedback@countycourt.vic.gov.au
Mr Garry McIntosh, Associate to His Honour Mullaly J. judgemullaly.chambers@countycourt.vic.gov.au
Chief Officer
Country Fire Authority
cfa-customer-support@cfa.vic.gov.au
Magistrates Court of Victoria at St Arnaud c/o the coordinator starnaudcoordinator@magistratescourt.vic.gov.au

Cr Reid Mather (Mayor) MALLEE WARD crmather@buloke.vic.gov.au


Cr David Pollard (Deputy Mayor) LOWER AVOCA WARD crpollard@buloke.vic.gov.au
Cr Leo Tellefson MOUNT JEFFCOTT WARD crtellefson@buloke.vic.gov.au
Cr Stuart McLean LOWER AVOCA WARD crmclean@buloke.vic.gov.au
Cr Graeme Milne MOUNT JEFFCOTT WARD crmilne@buloke.vic.gov.au
Cr Gail Sharp MOUNT JEFFCOTT WARD crsharp@buloke.vic.gov.au
Cr Ellen White, MALLEE WARD, crwhite@buloke.vic.gov.au
Ian Grey Chief Magistrate, Magistrates Court of Victoria 233 William Street Melbourne Vic 3000, C/o
help@magistratescourt.vic.gov.au
Infringment Court Registrar c/o attorney-general@justice.vic.gov.au
Mr Brendan Facey Department of JUSTICE IM&ES Brendan.Facey@justice.vic.gov.au
Tenix Solutions IMES Pty Ltd
Traffic_Inquiries@tenixsolutions.com
Mr Robert Clark MP former Attorney-General robert.clark@parliament.vic.gov.au
Dennis Napthine (former Premier of Victoria) c/o attorney-general@justice.vic.gov.au
Mr Peter Lauritsen Chief Magistrate, Magistrates Court of Victoria help@magistratescourt.vic.gov.au
Judicial Registrar starnaudcoordinator@magistratescourt.vic.gov.au
VEC c/o Aileen.Duke@vec.vic.gov.au
His Honour Mullaly J County Court of Victoria C/o judgemullaly.chambers@countycourt.vic.gov.au
Ref; 20160110-Schorel-Hlavka O.W.B. to Mr Wayne Wall & ORS- Re APPEAL-15-2502 -Re legislative enforcement powers-etc

Wayne,
I have written a lot in recent times and will now seek to set out in a limited matter why I view
exemplary damages ought to be awarded against all those listed above in the matter currently before the
County Court of Victoria regarding my OBJECTION TO JURISDICTION.
p23

2-2-2016

Hearing date 22-2-2016 Ballarat venue

Mr G. H. Schorel-Hlavka O.W.B.

Appeal 15-2502

Deponent: Mr G. H. Schorel-Hlavka O.W.B. 107 Graham Road, Viewbank 3084, Victoria admin@inspector-rikati.com

(Buloke Shire Council) Prosecutors legal representatives ES&a Lawyers

Page 24

(Revised format)

AP 2502

Hearing date 22-2-2006 (or alternative date if allocated)

Ordinary one cannot seek legal redress against say a judge of a court unless one can prove that the judicial
officer acted without jurisdiction and with malice, etc.
.

Hansard 1-3-1898 Constitution Convention Debates


QUOTE Sir JOHN DOWNER.I think we might, on the attempt to found this great Commonwealth, just advance one step, not beyond
the substance of the legislation, but beyond the form of the legislation, of the different colonies, and say
that there shall be embedded in the Constitution the righteous principle that the Ministers of the
Crown and their officials shall be liable for any arbitrary act or wrong they may do, in the same way as
any private person would be.
END QUOTE
END QUOTE 20160110-Schorel-Hlavka O.W.B. to Mr Wayne Wall & ORS-Re APPEAL-15-2502-Re exemplary
damages-etc

In my submission no court can permit this kind of utter rubbish to go on unpunished where the
prosecutor disregard any sensible conduct and seems to have aborted any responsible conduct.
QUOTE 20160110-Schorel-Hlavka O.W.B. to Mr Wayne Wall & ORS-Re APPEAL-15-2502-Re exemplary
damages-etc

I pursue the enforcement of relevant legislation and Rules of the Court to anyone without
exemption but it appears to me that His Honour Mullaly J and his Associate have no desire to
enforce the rule of law and court orders when it comes to legal representatives of Buloke Shire
Council.
Well any fair dinkum judge will so to say have a convulsion about this kind of conduct and will
make an exemplary damage award when dealing with the OBJECTION TO JUJRISDICTION
that is and remains to be on foot that should run in the millions of dollars.
Sure there is at least one decent judge who can and will stand up for the oath he/she made to serve
as a judicial officer and use exemplary damages to be awarded against all who participated in this
gross abuse and misuse of the law.
Considering that reportedly 10 people a day commit suicide and I perceive it cost about $2 million
a person to investigate the suicide of a person then even if this court could hand down a judgment
that would severely rebuke those who abuse and misuse their powers and say order a $100million
for exemplary damages spread over the persons referred to in the heading so that I could finally set
up the much promoted OFFICE-OF-THE-GUARDIAN (Dont Forget the Hyphens!) a
constitutional council that advises the government, the People, the Courts and the parliament about
the true meaning and application of the constitution and any laws enacted within it then we may
dramatically reduce the number of suicides/murder.
People have lost confidence in what they generally refer to being a corrupt legal system, this
because too often judges have fraternised with one of the parties and hand down orders totally
unjustified on basis of the evidence before the court, that is if there was any evidence at all before
the court, and it wasnt merely as a modus oprandi to issue orders regardless no evidence existed to
justified the issue of such orders.
END QUOTE 20160110-Schorel-Hlavka O.W.B. to Mr Wayne Wall & ORS-Re APPEAL-15-2502-Re exemplary
damages-etc
QUOTE 20160110-Schorel-Hlavka O.W.B. to Mr Wayne Wall & ORS-Re APPEAL-15-2502-Re exemplary
damages-etc
http://www.bailii.org/cgi-bin/redirect.cgi?path=/uk/cases/UKHL/1964/1.html
ROOKES (A.P.) v. BARNARD and ors
QUOTE
Exemplary damages are essentially different from ordinary damages. The
object of damages in the usual sense of the term is to compensate. The
object of exemplary damages is to punish and deter. It may well be thought
that this confuses the civil and criminal functions of the law; and indeed,
so far as I know, the idea of exemplary damages is peculiary to English law.
There is not any decision of this House approving an award of exemplary
damages and your Lordships therefore have to consider whether it is open
to the House to remove an anomaly from the law of England.
END QUOTE
p24

2-2-2016

Hearing date 22-2-2016 Ballarat venue

Mr G. H. Schorel-Hlavka O.W.B.

Appeal 15-2502

Deponent: Mr G. H. Schorel-Hlavka O.W.B. 107 Graham Road, Viewbank 3084, Victoria admin@inspector-rikati.com

(Buloke Shire Council) Prosecutors legal representatives ES&a Lawyers

Page 25 (Revised format) AP 2502


Hearing date 22-2-2006 (or alternative date if allocated)
QUOTE 20160105-Schorel-Hlavka O.W.B. to ES&a Your ref LA-05-06-Re APPEAL-15-2502 -Re TO
WITHDRAW OR NOT-etc
http://www.bailii.org/cgi-bin/redirect.cgi?path=/uk/cases/UKHL/1964/1.html
ROOKES (A.P.) v. BARNARD and ors
QUOTE
It must be remembered that in many cases of tort damages are at large, that is to say, the award is not limited
to the pecuniary loss that can be specifically proved. In the present case, for example, and leaving aside any
question of exemplary or aggravated damages, the Appellant's damages would not necessarily be confined to
those which he would obtain in an action for wrongful dismissal. He can invite the jury to look at all the
circumstances, the inconvenience caused to him by the change of job and the unhappiness maybe by a change
of livelihood. In such a case as this, it is quite proper without any departure from the compensatory principle
to award a round sum based on the pecuniary loss proved.
Moreover, it is very well established that in cases where the damages are at large the jury (or the judge if the
award is left to him) can take into account the motives and conduct of the defendant where they aggravate the
injury done to the plaintiff. There may be malevolence or spite or the manner of committing the wrong may
be such as to injure the plaintiff's proper feelings of dignity and pride. These are matters which the jury can
take into account in assessing the appropriate compensation. Indeed, when 35 one examines the cases in
which large damages have been awarded for conduct of this sort, it is not at all easy to say whether the idea of
compensa-tion or the idea of punishment has prevailed.
But there are also cases in the books where the awards given cannot be explained as compensatory, and
I propose therefore to begin by examining the authorities in order to see how far and in what sort of
cases the exemplary principle has been recognised. The history of exemplary damages is briefly and
clearly stated by Professor Street in his recent work on the law of damages at page 28. They originated just
200 years ago in the cause celebre of John Wilkes and the North Briton in which the legality of a
general warrant was successfully challenged. Mr. Wilkes' house had been searched under a general warrant
and the action of trespass which he brought as a result of it is reported in Wilkes v. Wood (1763) Lofft, 1.
Serjeant Glynn on his behalf asked at page 3 for " large and exemplary " damages" since trifling
damages, he submitted, would put no stop at all to such proceedings. Pratt, C.J., in his direction to the
jury said at 18: " Damages are designed not only as a satisfaction to the injured person, but " likewise
as a punishment to the guilty, to deter from any such proceeding " for the future, and as a proof of the
detestation of the jury to the action " itself ". The jury awarded 1,000. It is worth noting that at page 19
the Chief Justice referred to " office precedents " which, he said, were not justification of a practice in itself
illegal, though they might fairly be pleaded in mitigation of damages. This particular direction exemplifies
very clearly his general direction, for a consideration of that sort could have no place in the assessment of
compensation.
In Huckle v. Money (1763) 2 Wils. K.B. 205 the plaintiff was a journeyman printer who had been taken into
custody in the course of the raid on the North Briton. The issue of liability having already been decided the
only question was as to damages and the jury gave him 300. A new trial was asked for on the ground that
this figure was " most outrageous ". The plaintiff was employed at a weekly wage of one guinea; he had
been in custody for only about 6 hours and had been used " very civilly by treating " him with
beefsteaks and beer ". It seems improbable that his feelings of wounded pride and dignity would have
needed much further assuagement; and indeed the Chief Justice said that the personal injury done to him was
very small, so that if the jury had been confined by their oath to consider mere personal injury only, perhaps
20 would have been thought sufficient. But they had done right in giving exemplary damages. The
award was upheld.
In Benson v. Frederick (1766) 3 Burr. 1845 the Plaintiff a common soldier, obtained damages of 150 against
his Colonel who had ordered him to be flogged so as to vex a fellow officer. Mansfield C.J. said that the
damages " were very great, and beyond the proportion of what the man " had suffered ". But the sum
awarded was upheld as damages in respect of an arbitrary and unjustifiable action and not more than
the defendant was able to pay.
These authorities clearly justify the use of the exemplary principle; and for my part I should not wish,
even if I felt at liberty to do so, to diminish its use in this type of case where it serves a valuable purpose
in restraining the arbitrary and outrageous use of executive power.
END QUOTE

I wrote elaborate on numerous occasions to various persons with copies being provided to
others and yet you as Municipal Shire Prevention Officer having the power to withdraw a
defective Fire Prevention Notice failed to do so, despite that you gave me the understanding
on 5 November 2015 when you personally discussed matters with me, that you read every
p25

2-2-2016

Hearing date 22-2-2016 Ballarat venue

Mr G. H. Schorel-Hlavka O.W.B.

Appeal 15-2502

Deponent: Mr G. H. Schorel-Hlavka O.W.B. 107 Graham Road, Viewbank 3084, Victoria admin@inspector-rikati.com

(Buloke Shire Council) Prosecutors legal representatives ES&a Lawyers

Page 26

(Revised format) AP 2502


Hearing date 22-2-2006 (or alternative date if allocated)
email and attachment I forwarded to you. And while Councillor Milne indicated in his email
to me not to (as I would put it) not to understand the issues nevertheless he and his fellow
councillors took no action seeking to abort the litigation. Likewise the legal representatives
for Buloke Shire Council were in blatant disregard to what I view they ought to have done, if
they were competent legal advisors and that is to advise Buloke Shire Council that the Fire
Prevention Notice was invalid in law and so the Infringement Notice based upon this and
likewise the summons.
There appears to be no system in place that an enforcement agency can be removed from
being an enforcement agency when misusing/abusing powers.
Contrary to the OPCA Litigant who may claim the laws do not apply to him/her without
his/her consent, I pursue that all people are to be equal before the law, provided that the legal
provisions sought to be enforced is constitutionally valid!

END QUOTE 20160110-Schorel-Hlavka O.W.B. to Mr Wayne Wall & ORS-Re APPEAL-15-2502-Re exemplary
damages-etc

It ought to be clear that the ongoing unlawful conduct by or on behalf of the Prosecutor has
caused me to engage in an enormous amount of research and I view my charge as a
CONSTITUTIONALIST can be reasonably estimated to be about $20,000.00 a day considering
I represented lawyers such as a QC (queens council) who charge this on a daily basis against his
clients. Because the Hobson legal principle was so to say thrown out of the window by the
Prosecutor on 17 September 2015 then I view the court must respond now and make clear it
cannot tolerate this wanton disregard of legal provisions by the Prosecutor and this amount to
that it implies it never had a case against me.
The Summons itself relies upon the Infringement Notice this even so the Infringement Notice
should have been first withdrawn before the Summons could have been issued.
Infringement Act 2006
QUOTE
11Withdrawal of official warning
(1) An issuing officer or enforcement agency must withdraw an official warning if
(a) proceedings are to be commenced against the person on whom an official warning was
served in respect of the infringement offence; or
(b) an infringement notice in respect of the infringement offence is to be served on the person on
whom an official warning was served.
(2) An official warning may be withdrawn at any time before the expiry of the prescribed period.
(3) An official warning must be withdrawn by serving a withdrawal of an official warning on the
person on whom the official warning was served.
(4) A withdrawal of an official warning must
(a) be in writing; and
(b) contain the prescribed details.
END QUOTE

I am not aware that Buloke Shire Council followed this legal requirement and well if its legal
representatives dont understand this either then well we end up with an escalation of an utter
mesh.
.

Because there was an OBJECTION TO JURISDICTION against the Magistrates Court of


Victoria (at St Arnaud) regarding the 20 August 2015 and the 17 September 2015 hearings then
this remains on foot and was so before His Honour Mullaly J just that His Honour Mullaly J
never seemed to understand/comprehend that His Honour Mullaly J couldnt invoke any judicial
powers as to order a hearing De Novo for 22 February 2016 unless His Honour Mullaly J first
p26

2-2-2016

Hearing date 22-2-2016 Ballarat venue

Mr G. H. Schorel-Hlavka O.W.B.

Appeal 15-2502

Deponent: Mr G. H. Schorel-Hlavka O.W.B. 107 Graham Road, Viewbank 3084, Victoria admin@inspector-rikati.com

(Buloke Shire Council) Prosecutors legal representatives ES&a Lawyers

Page 27 (Revised format) AP 2502


Hearing date 22-2-2006 (or alternative date if allocated)
had disposed of the OBJECTION TO JURISDICTION. Not that I seek to imply this would
have been judicially appropriate to dismiss the OBJECTION TO JURISDICTION.

It means that the order of His Honour Mullaly J to order a hearing De Novo for 22 February
2016 was without jurisdiction and as such no valid hearing can be held.
.

As a CONSTITUTIONALIST (and now retired) Professional Advocate) I spend about 4


decades at the Bar table and find it very offensive that legal practitioners are misusing and
abusing their position at the Bar table, a sanctuary and privileged place) to gain inappropriate
advantage in litigation. Worse is that judicial officers are not just allowing this but seem to
condone and go along with this.
.

For example the Judicial Registrar/Magistrate on 17 September 2015 issued purported orders
without having invoked jurisdiction and without a shred of evidence before him and yet His
Honour Mullaly J on 30 October 2015 stated that during an ex parte (criminal) matter no
evidence is required. So, despite that the legislation required that a full brief must be served at
least 14 days prior to the hearing, and which appears never to have existed but seems to have
been made up in a deceptive manner on 25 November 2015 a Judicial Registrar/Magistrate
somehow can issue orders?
Surely His Honour Mullaly J had some basic legal training in legal requirements and legal
procedures to understand/comprehend that His Honour Mullaly J cannot condone that which is
violate legal provisions as enacted by the legislators!
Documents not a part of the record developed below will not be considered by the appellate court. It is
inappropriate, and will subject the movant to sanctions, to inject matters into the appellate proceedings that
were not before the lower court. Lindsay-Stokes v. Liberty Mutual Ins. Co., No. 01-557-CI-88A (Fla. 6th Cir.
Ct. February 6, 2001).

In my submission the Court cannot allow Buloke Shire Council to submit documents/material/etc
that it had in its possession all along but elected not to present at the hearings before the
Magistrates Court of Victoria at St Arnaud on 20 August 2015 and/or 17 September 2015.
The audio recording of the proceedings before the Magistrates Court of Victoria at St Arnaud
indicates that the hearing lasted about 3 minutes. Due to ill health (As I advised to both Buloke
Shire Council, its legal representatives and to the Court) I was neither able to attend to this
hearing in person but had again provided my written submissions OBJECTING TO THE
JURISDICTION of the court in my ADDRESS TO THE COURT.
County Civil Court: CIVIL PROCEDURESummary JudgmentUpon de novo review Court
concludes that trial court erred when it entered Final Summary Judgment for Respondent based on affidavit
that is insufficient as a matter of law. Affiant did not swear or affirm that she had personal knowledge of
specific facts and that statements made therein are true and correct. Summary Final Judgment reversed and
case remanded for further proceedings. Tom Brown v. Neighborhood F Homeowners' Association, Inc., No.
13-000016AP-88A(Fla. 6th Cir. App. Ct. August 19, 2013).
http://definitions.uslegal.com/r/richardson-hearing/ (Re Richardson v. State, 245 So.2d 771 (Fla. 1971). )
QUOTE
A Richardson hearing is a hearing to conduct an inquiry into the surrounding facts and circumstances of an
alleged discovery violation. For example, a Richardson hearing might be requested because the opposing
party attempts to call a witness not included on their witness list. The court will attempt to determine whether
discovery violations are inadvertent or willful, trivial or substantial, or affected the defendant's ability to
properly prepare for his\her case. The question of prejudice does not depend on whether the undisclosed
evidence might have affected the outcome of the trial, but whether the violation affected the defendant's
ability to prepare.
END QUOTE
http://www.istilldefendliberty.com/id53.html
QUOTE
p27

2-2-2016

Hearing date 22-2-2016 Ballarat venue

Mr G. H. Schorel-Hlavka O.W.B.

Appeal 15-2502

Deponent: Mr G. H. Schorel-Hlavka O.W.B. 107 Graham Road, Viewbank 3084, Victoria admin@inspector-rikati.com

(Buloke Shire Council) Prosecutors legal representatives ES&a Lawyers

Page 28 (Revised format) AP 2502


Hearing date 22-2-2006 (or alternative date if allocated)
In Florida, this is known as a Richardson hearing from the case Richardson v. State, 245 So.2d 771 (Fla.
1971). This process will prevent the State from calling witnesses at trial that were previously undisclosed to
the Defense.
END QUOTE

No disclosure was made by way of any brief by the prosecutor (Buloke Shire Council) as to
any evidence and/or witness/witnesses) it sought to rely upon on 17 September 2015and none
was provided to the court.
Where now the 25 November 2015 dated full brief purporting to be of the 17 September 2015
hearing refers to evidence and a witness Mr Wayne Wall (Municipal Fire Protection officer),
despite the audio recording no such evidence/witness having been presented to the court, then
clearly this is and remains to be a falsehood and as it was never served upon me then it
undermines the intentions of the legislators to ensure that any such brief was served no later
than 14 days before the hearing. It is unknown, as the audio recording doesnt indicate this, if a
full brief was at the time on court file but never served.
In any event the Court cannot consider something that was unknown to me at the time. Neither so
could His Honour Mullaly J consider on 30 October 2015 something on the courts records but
unknown to me. It is the duty of the court to ensure that any details it considers is known to both
parties appearing before it. In particular where I had filed the ADDRESS TO THE COURT
making known I was unaware what precisely had eventuated on 20 august 2015 and on 167
September 2015 and was not provided with any sealed court orders, as such I understood that the
OBJECTION TO JURISDICTION in each hearing had not been disposed of as had it been
there had to be a formal order and reason of judgment setting out why it was dismissed. Such a
jurisdictional hearing must be conducted separately of any trail and clearly no such
jurisdictional hearing was notified to me. And as a matter of fact His Honour Mullaly J failed
also to order a jurisdictional hearing but seems to have the misconception that jurisdictional
and other legal issues related to this can be disposed of at a hearing De Novo. No objector should
be forced to go through preparation and expenses of a trail where the jurisdictional hearing
could very well result that the OBJECTION TO JURISSDICTION is upheld and the
Summons then is dismissed for want of jurisdiction.
It is the role of the appellate court, in reviewing a summary judgment, to view the facts in the light most
favorable to the party against whom judgment is granted. The Appellant could not sue her insurance
company for past bills once an assignment had been accepted by her health care provider. Therefore, the
Appellant lacked standing to bring her suit. Romano v. Continental Insurance Company, et al., No. 99-4424CI-88A (Fla. 6th Cir. Ct. August 25, 2000).

As such where an Affidavit filed is not confirmed then surely the use of purported documentation
not filed as an exhibit cannot be used to obtain orders for cost.
Remarkably the lawyer for Buloke Shire Council claimed in excess of $1,651 cost regarding
what she claimed was my more than 200 pages writings. This I view was yet again a gross
misuse and abuse from the Bar table because one cannot give evidence from the Bar table and as
such the lawyer not having entered to witness box to having first filed the documentation as
exhibits and then confirm the same from the witness box there was no evidence before the
court that I had written those documents. Neither was there any consideration by the Judicial
Registrar/Magistrate as to the content of the alleged writings if they were relevant to the case as
for all I know it could have been nothing but a draft manuscript of some play that the lawyer
might have been writing. After all the lawyer representing Pauline Hanson turned out to be
writing a play, and I was the one who published a book on 30 September 2003 INSPECTORRIKATI on CITIZENSHIP (And I provided a copy to Pauline Hanson as well to her sister
Judy Smith for the upcoming appeal) setting out why the convictions were without legal basis
and subsequently the Queensland Criminal Court of Appeal in November 2003 upheld the
appeals precisely upon the grounds I had set out in my book.

p28

2-2-2016

Hearing date 22-2-2016 Ballarat venue

Mr G. H. Schorel-Hlavka O.W.B.

Appeal 15-2502

Deponent: Mr G. H. Schorel-Hlavka O.W.B. 107 Graham Road, Viewbank 3084, Victoria admin@inspector-rikati.com

(Buloke Shire Council) Prosecutors legal representatives ES&a Lawyers

Page 29 (Revised format) AP 2502


Hearing date 22-2-2006 (or alternative date if allocated)
Because the lawyer for Buloke Shire Council claimed and obtained cost regarding the alleged
writings then it must be implied that then those documents are part of the proceedings. Yet, so far
I have not been served with any copies of the alleged writings.

Granted my writings so far are a serious attack upon the many and I view well justified. Since
1982 I have been conducting a special lifeline service under the motto MAY JUSTICE
ALWAYS PREVAIL and too aware how the so called corruptive conduct within the legal
profession and courts result in people committing suicide.
After about 4 decades having been involved in litigation and how people end up committing
suicide as I understand it often because of having so to say been railroaded by the legal
profession and that includes the courts then the only way to seek to raise this issue to attention is
not niceties but a sledge hammer approach that is like a demolition derby to seek to get rid of the
falsehood perpetrated upon the community.
I am used to judicial officers trying to take me on for daring to expose the rot with CONTEMPT
OF COURT but my writings prove they never succeeded because the truth never can be
contempt of court.
What essentially has been the courts correspondence file has now indirectly become part of the
court file because with Buloke Shire Council having claimed cost on 17 September 2015 and
orders granted then the correspondence file must be deemed now part of the ordinary court file.
In my view there ought to be an impartial investigation conducted in what I have stated in my
numerous writings concerning the litigation by Buloke Shire Council upon me, etc, and let us see
then what the result of an independent investigation comes to. Albeit, independent cannot be a
legal practitioner who is an OFFICER OF THE COURT and so bound to go along with any rot
of the courts. Neither can it be some judicial officer as it must be clear from my writings as a
CONSTITUTIONALIST we effectively have no validly operating courts/judiciary. We have a
pretended corporate entity purportedly acting as a judiciary.
This as I view it corrupt conduct within the legal system needs to be extracted like a cancer as we
cannot allow this upon society at large:
<http://revisionistreview.blogspot.com/2015/11/5-months-in-jail-in-ireland-for.html> .
QUOTE
Judge Durcan said that by his actions, Mr Mulqueen "behaved in the most offensive way, not merely towards
a particular section of society but towards society generally".
The judge said that Mr Mulqueen's behaviour on the day would be regarded with abhorrence and
repugnance by any reasonable minded human and by the vast, vast majority of people.
END QUOTE

I submit the same applies to the legal profession, The Premier Mr Daniel Andrews, Victorians
Attorney-General Mr Martin Pakula Attorney, the Chief Officer of the Country Fire Authority,
the Municipal Fire Prevention Officer Mr Wayne Wall, Buloke Shire Council and its legal
representatives, the Judicial Registrar/Magistrate of the Magistrates Court of Victoria at St
Arnaud, His Honour Mullaly J and not to overlook the chief justices of the courts.
I understand that Mr Peter Kidd stated that he would be an advocate for judges but I view Mr
Peter Kidd CJ would be better to stick to his job to be an advocate for justice.
Hansard 8-3-1898 Constitution Convention Debates
QUOTE
Mr. GLYNN.-I think they would, because it is fixed in the Constitution. There is no special court, but
the general courts would undoubtedly protect the states. What Mr. Isaacs seeks to do is to prevent the
question of ultra vires arising after a law has been passed.
[start page 2004]
Mr. ISAACS.-No. If it is ultra vires of the Constitution it would, of course, be invalid.
END QUOTE
p29

2-2-2016

Hearing date 22-2-2016 Ballarat venue

Mr G. H. Schorel-Hlavka O.W.B.

Appeal 15-2502

Deponent: Mr G. H. Schorel-Hlavka O.W.B. 107 Graham Road, Viewbank 3084, Victoria admin@inspector-rikati.com

(Buloke Shire Council) Prosecutors legal representatives ES&a Lawyers

Page 30 (Revised format) AP 2502


Hearing date 22-2-2006 (or alternative date if allocated)
As a CONSTITUTIONALIST since February 2011 I challenged the constitutional validity of
the Infringement Act 2006 and so the constitutional validity of the Infringement Court, and yet
despite of this we now have that Buloke Shire Council seeks to enforce an Infringement Notice,
even so because of my constitutional challenge this is ULTRA VIRES Ab Initio.
While what purports to be the judiciary ignores my numerous OBJECTION TO
JURISDICTION this in itself doesnt validity their orders. In fact the moment they issue orders
violating my rights as an objector then they are acting outside the rule of law and are in fact not
acting as judicial officers but are acting no more but as an any other private person, albeit
purporting to be judicial officers. They have by this turn a court into a STAR CHAMBER
COURT/KANGAROO COURT system!
.

Obviously the question is that even if (without seeking to indicate it will) the court were to hear
and determine matters as to the alleged failure to comply with the Fire Protection Notice, then
considering there never was any full report filed nor any evidence filed by Buloke Shire
Council then the appeal couldnt now allow for them to so to say have a second guess.
Clearly, Buloke Shire Council elected at the time not to present any evidence and I suspect that
this might have been so to say that the Judicial Registrar/Magistrate was in bed with it, and so the
court on appeal even so hearing the matter De Novo must consider as to why should it allow what
purports to be evidence to be used that Buloke Shire council itself withheld from presenting to
the Court when clearly it then had every opportunity to do so.
We seem to have a Premier for Victoria who seems to be more interested to unconstitutionally
create a Republic then to first address the gross failures within the legal system. Because I
forwarded to the Premier ongoing copies of the correspondences, as I did with the AttorneyGeneral it cannot be held that they were unaware of it all. They just couldnt give a darn.
.

We have citizens offering their time and safety as fire fighters volunteers and that to place
themselves at the peril of fire dangers that could often be avoided by proper management. When
one have a Municipal Fire protection Officer who to me appears to be more interested to generate
monies for Buloke Shire Council by Infringement Notices then to attend to the real fire dangers
along the highway then surely the last I expect would be a competent judicial officer to go along
with this.
Sydney Municipal Council v Commonwealth [1904] HCA 50; (1904) 1 CLR 208 (26 April 1904)
QUOTE
But to get at the real meaning we must go beyond that, we must examine the context, consider the
Constitution as a whole, and its underlying principles and any circumstances which may throw light upon the
object which the Convention had in view, when they embodied it in the Constitution. This is a sound rule in
the interpretation of Statutes, and is well explained by Lord Blackburn in the River Wear Commissioners v.
Adamson , 2 App. Cas., at p. 763, as follows:"In all cases the object is to see what is the intention
expressed by the words used. But, from the imperfection of language, it is impossible to know what that
intention is without inquiring further and seeing what the circumstances were with reference to which the
words were used, and what was the object, appearing from those circumstances, which the person using them
had in view; for the meaning of words varies according to the circumstances with respect to which they are
used." Before examining the words of the section, it will be useful to advert to the circumstances which the
Convention had in view in framing this section, and their purpose and object in relation to those
circumstances.
END QUOTE

As I indicated in my elaborate writings judicial officers are not my peers if they do not hold
Victorian citizenship. And well to my understanding no legislation exist so far to provide for
Victorian Citizenship. And as Australian Citizenship is a constitutional term used by the
Framers of the Constitution that a person who holds State Citizenship then automatically has
p30

2-2-2016

Hearing date 22-2-2016 Ballarat venue

Mr G. H. Schorel-Hlavka O.W.B.

Appeal 15-2502

Deponent: Mr G. H. Schorel-Hlavka O.W.B. 107 Graham Road, Viewbank 3084, Victoria admin@inspector-rikati.com

(Buloke Shire Council) Prosecutors legal representatives ES&a Lawyers

Page 31 (Revised format) AP 2502


Hearing date 22-2-2006 (or alternative date if allocated)
Australian Citizenship then not a single judicial officer then holds Australian citizenship
either!
ADDRESS TO THE COURT, Part 2
County Court of Victoria, Case numbers T01567737 & Q10897630
QUOTE

QUOTE 19-11-2002 correspondence to Victorian Attorney-General


WITHOUT PREJUDICE
Attorney General
19-11-2002
Victoria
Fax 9651 0577
AND TO WHOM IT MAY CONCERN
URGENT
Sir/Madam
Since 27-9-2002 I sought clarification about what, if any State citizenship I have
as to be able to obtain Australian citizenship, yet, in the recent 18 November 2002 response it
was stated;
As explained in my previous letter, citizenship is a matter for the Commonwealth,
not the States. You indicated that you were naturalized in 1994. As result of that, you
are an Australian citizen.
This utter ridiculous response was provided by RUVANI WICKS, Assistant Director, Civil
Branch of the Department of Justice.
Edmund Barton (later becoming the first Prime Minister of Australia and thereafter a judge of the
High Court of Australia) made very clear during the convention, that if it isnt in the
Constitution, then the Commonwealth had no legislative powers.
RUVANI WICKS refers me to the Commonwealth Government to sort out matters, however this
is clearly unacceptable, this, as the State of Victoria and not the Commonwealth deals or must
deal with State Citizenship!
Unless you can point out when there was a reference of legislative powers from the State of
Victoria to the Commonwealth approved within Section 128 of the Commonwealth constitution,
I view, there never was and still is no constitutional legislative powers by the Commonwealth to
determine State or any other citizenship!
At most, the Commonwealth, could determine citizenship as the local law for the Act and
Northern Territory through the parliaments governing those Territories (being Quasi States) as
they are not limited to constitutional provisions, however there never was any Constitutional
powers for the Commonwealth to grant citizenship to any resident of a State, neither determine
citizenship of a citizen of a State!
If your Department nevertheless maintains that the Commonwealth has the legislative powers to
determine citizenship of residents of the State of Victoria then please do set out in which
Constitutional manner the Commonwealth had this power from on set, if any, and/or how it
obtained this legislative power since the formation of the Commonwealth!
If anything, the Department of justice ought to be well aware that unless it is done lawfully it is
ULTRA VIRES!
END QUOTE 19-11-2002 correspondence to Victorian Attorney-General
No further reply was received by me upon this.

p31

2-2-2016

Hearing date 22-2-2016 Ballarat venue

Mr G. H. Schorel-Hlavka O.W.B.

Appeal 15-2502

Deponent: Mr G. H. Schorel-Hlavka O.W.B. 107 Graham Road, Viewbank 3084, Victoria admin@inspector-rikati.com

(Buloke Shire Council) Prosecutors legal representatives ES&a Lawyers

Page 32 (Revised format) AP 2502


Hearing date 22-2-2006 (or alternative date if allocated)
What was shown was that the Victorian government also had seemingly gone along to confuse
Australian citizenship with state citizenship! And that is the real problem. Somehow everyone,
other then me, seems to have lost reality as to what is applicable.
Likewise, other States seemed to have gone along, despite constitutionally the purported
Australian citizenship could never substitute the constitutional powers of the states to
legislate for State citizenship. No State citizenship then no Commonwealth citizenship and so no
electoral rights either! Yet, even this basic issue still seems to remain unresolved! Still, Section
245 of the Commonwealth Electoral Act 1918 cannot be enforced unless the CDPP can show to
the Court that somehow I did obtain State citizenship (political rights) and so invoked Section
41 of the Constitution to obtain electoral rights in Commonwealth citizenship.
END QUOTE

ADDRESS TO THE COURT, Part 2


County Court of Victoria, Case numbers T01567737 & Q10897630
QUOTE

The term citizenship was not at all associated with nationality but rather covered any
subject of the Queen residing within the Commonwealth of Australia or for that the continent
Australia.
The terms Australian citizen, Australian citizens , Australian citizenship,
Commonwealth citizens, federal citizen, citizen of the Commonwealth were used ongoing
by the Framers of the Constitution, as shown below, and as such were terms not as to
nationality but in regard of citizenship as being a resident in the colonies (now States) and the
Commonwealth of Australia. Therefore any constitutionalist, as I am, is or should be aware that
the term Australian citizenship cannot be held to relate to nationality. Neither that there can be
an Australian nationality merely because some judges happen to desire to make such a
declaration as the proper powers to legislate for this is to follow the procedures within Section
128 of the Constitution.
13-02-1890 Re; Australian citizen
13-03-1891 Re; Australian citizens
25-03-1897 Re; Australian citizens
Re; dual citizenship
26-03-1897 Re; citizen of the Commonwealth
29-03-1897 Re; Dual citizenship
30-03-1897 Re; federal citizen
Re; dual citizenship
31-03-1891 Re; Australian citizen
Re; citizen of the Commonwealth
Re; dual citizenship
12-04-1897 Re; citizen of the Commonwealth
14-04-1897 Re; citizen of the Commonwealth
15-04-1897 Re; Dual citizenship
15-09-1897 Re; citizen of the Commonwealth
Re; Commonwealth citizenship
Re; dual citizenship
17-09-1897 Re; citizen of the Commonwealth
24-01-1898 Re; Australian citizen
28-01-1898 Re; Australian citizenship
Re; Commonwealth citizens
04-02-1898 Re; citizen of the Commonwealth
08-02-1898 Re; Australian citizenship
Re; Commonwealth citizenship
p32

2-2-2016

Hearing date 22-2-2016 Ballarat venue

Mr G. H. Schorel-Hlavka O.W.B.

Appeal 15-2502

Deponent: Mr G. H. Schorel-Hlavka O.W.B. 107 Graham Road, Viewbank 3084, Victoria admin@inspector-rikati.com

(Buloke Shire Council) Prosecutors legal representatives ES&a Lawyers

Page 33

(Revised format) AP 2502


Hearing date 22-2-2006 (or alternative date if allocated)
Re; citizen of the Commonwealth
Re; federal citizenship
Re; dual citizenship
15-02-1898 Re; citizen of the Commonwealth
23-02-1898 Re; citizen of the Commonwealth
24-03-1898 Re; citizen of the Commonwealth
01-03-1898 Re; Australian citizens
Re; citizen of the Commonwealth
02-03-1898 Re; citizen of the Commonwealth
Re; federal citizenship
Re; Commonwealth citizenship
Re; dual citizenship
03-03-1898 Re; citizen of the Commonwealth
Re; federal citizenship
Re; Commonwealth citizenship
04-03-1898 Re; citizen of the Commonwealth
10-03-1898 Re; Australian citizenship
END QUOTE

As such Australian citizenship is a constitutional term for citizenship and nothing to do with
naturalization!
It must be clear that the terminology used by the Framers of the Constitution are; British
subject, to make persons subjects of the British Empire., with the consent of the Imperial
authority, What is meant is a dual citizenship in Mr. Trenwith and myself. That is to say, I am
a citizen of the state and I am also a citizen of the Commonwealth; that is the dual citizenship.,
we are all alike subjects of the British Crown. We have a High Court of Australia that appears
to me being political motivated to try to alter the Constitution by stealth by endorsing a substitute
Constitution! The question is if the judges of the High Court of Australia committed TREASON?
Hansard 2-3-1898 Constitution Convention Debates
QUOTE
Mr. SYMON.-Very likely not. What I want to know is, if there is anybody who will come under the
operation of the law, so as to be a citizen of the Commonwealth, who would not also be entitled to be a
citizen of the state? There ought to be no opportunity for such discrimination as would allow a section of a
state to remain outside the pale of the Commonwealth, except with regard to legislation as to aliens. Dual
citizenship exists, but it is not dual citizenship of persons, it is dual citizenship in each person. There may
be two men-Jones and Smith-in one state, both of whom are citizens of the state, but one only is a
citizen of the Commonwealth. That would not be the dual citizenship meant. What is meant is a dual
citizenship in Mr. Trenwith and myself. That is to say, I am a citizen of the state and I am also a citizen
of the Commonwealth; that is the dual citizenship. That does not affect the operation of this clause at all.
But if we introduce this clause, it is open to the whole of the powerful criticism of Mr. O'Connor and those
who say that it is putting on the face of the Constitution an unnecessary provision, and one which we do not
expect will be exercised adversely or improperly, and, therefore, it is much better to be left out. Let us, in
dealing with this question, be as careful as we possibly, can that we do not qualify the citizenship of this
Commonwealth in any way or exclude anybody [start page 1764] from it, and let us do that with precision
and clearness. As a citizen of a state I claim the right to be a citizen of the Commonwealth. I do not want
to place in the hands of the Commonwealth Parliament, however much I may be prepared to trust it,
the right of depriving me of citizenship. I put this only as an argument, because no one would anticipate
such a thing, but the Commonwealth Parliament might say that nobody possessed of less than 1,000 a year
should be a citizen of the Federation. You are putting that power in the hands of Parliament.
Mr. HIGGINS.-Why not?
Mr. SYMON.-I would not put such a power in the hands of any Parliament. We must rest this
Constitution on a foundation that we understand, and we mean that every citizen of a state shall be a
citizen of the Commonwealth, and that the Commonwealth shall have no right to withdraw, qualify, or
restrict those rights of citizenship, except with regard to one particular set of people who are subject to
disabilities, as aliens, and so on.
END QUOTE
p33

2-2-2016

Hearing date 22-2-2016 Ballarat venue

Mr G. H. Schorel-Hlavka O.W.B.

Appeal 15-2502

Deponent: Mr G. H. Schorel-Hlavka O.W.B. 107 Graham Road, Viewbank 3084, Victoria admin@inspector-rikati.com

(Buloke Shire Council) Prosecutors legal representatives ES&a Lawyers

Page 34 (Revised format) AP 2502


Hearing date 22-2-2006 (or alternative date if allocated)
Hansard 2-3-1898 Constitution Convention Debates
QUOTE
Mr. SYMON.-The honorable and learned member is now dealing with another matter. Would not the
provision which is now before us confer upon the Federal Parliament the power to take away a portion of this
dual citizenship, with which the honorable and learned member (Dr. Quick) has so eloquently dealt? If that is
the case, what this Convention is asked to do is to hand over to the Federal Parliament the power, whether
exercised or not, of taking away from us that citizenship in the Commonwealth which we acquire by joining
the Union. I am not going to put that in the power of any one, and if it is put in the power of the Federal
Parliament, then I should feel that it was a very serious blot on the Constitution, and a very strong reason why
it should not be accepted. It is not a lawyers' question; it is a question of whether any one of British blood
who is entitled to become a citizen of the Commonwealth is to run the risk-it may be a small risk-of
having that taken away or diminished by the Federal Parliament! When we declare-"Trust the
Parliament," I am willing to do it in everything which concerns the working out of this Constitution, but I am
not prepared to trust the Federal Parliament or anybody to take away that which is a leading inducement for
joining the Union.
END QUOTE
.
Hansard 8-2-1898 Constitution Convention Debates
QUOTE
Mr. SYMON (South Australia).-I think the honorable member (Mr. Wise) has expanded the spirit of
federation far beyond anything any of us has hitherto contemplated. He has enlarged, with great emphasis, on
the necessity of establishing and securing one citizenship. Now, the whole purpose of this Constitution is
to secure a dual citizenship. That is the very essence of a federal system. We have debated that matter again
and again. We are not here for unification, but for federation, and the dual citizenship must be recognised as
lying at the very basis of this Constitution.
END QUOTE

It follows that the High Court of Australia in Sue v Hill acted outside its judicial powers as it
purported to amend the constitution by backdoor manner as to what citizenship is about as if it
was a nationality. Senator Hill in my view as a CONSTITUTIONALIST was a legitimate
Senator!
QUOTE Thomas Jefferson:
"The germ of destruction of our nation is in the power of the judiciary, an irresponsible body - working
like gravity by night and by day, gaining a little today and a little tomorrow, and advancing its noiseless
step like a thief over the field of jurisdiction, until all shall render powerless the checks of one branch over
the other and will become as venal and oppressive as the government from which we separated.".
END QUOTE

ADDRESS TO THE COURT, Part 2


County Court of Victoria, Case numbers T01567737 & Q10897630
QUOTE ADDRESS TO THE COURT
Talbot v. Janson, 3 U.S. 133 (1795)
Yet, it is to be remembered, and that whether in its real origin, or in its artificial state, allegiance, as well
as fealty, rests upon lands, and it is due to persons. Not so, with respect to Citizenship, which has arisen
from the dissolution of the feudal system and is a substitute for allegiance, corresponding with the new
order of things. Allegiance and citizenship, differ, indeed, in almost every characteristic. Citizenship is
the effect of compact; allegiance is the offspring of power and necessity. Citizenship is a political tie;
allegiance is a territorial tenure. Citizenship is the charter of equality; allegiance is a badge of inferiority.
Citizenship is constitutional; allegiance is personal. Citizenship is freedom; allegiance is servitude.
Citizenship is communicable; allegiance is repulsive. Citizenship may be relinquished; allegiance is
perpetual. With such essential differences, the doctrine of allegiance is inapplicable to a system of
citizenship; which it can neither serve to controul, nor to elucidate. And yet, even among the nations, in
which the law of allegiance is the most firmly established, the law most pertinaciously enforced, there are
striking deviations that demonstrate the invincible power of truth, and the homage, which, under every
modification of government, must be paid to the inherent rights of man.

And
These are tacit acknowledgments of the right of expatriation, vested in the individuals; for, though they are
instances of adopting, not of discharging, subjects; yet, if Great Britain would (ex gratia) protect a Russian
naturalized by service, in her fleet, it is obvious that she cannot do so without recognizing his right of
expatriation to be superior to the Empress's right of allegiance. But it is not only in a negative way, that these
p34 2-2-2016 Hearing date 22-2-2016 Ballarat venue Mr G. H. Schorel-Hlavka O.W.B.
Appeal 15-2502
Deponent: Mr G. H. Schorel-Hlavka O.W.B. 107 Graham Road, Viewbank 3084, Victoria admin@inspector-rikati.com

(Buloke Shire Council) Prosecutors legal representatives ES&a Lawyers

Page 35 (Revised format) AP 2502


Hearing date 22-2-2006 (or alternative date if allocated)
deviations in support of the general right appear. The doctrine is, that allegiance cannot be due to two
sovereigns; and taking an oath of allegiance to a new, is the strongest evidence of withdrawing
allegiance from a previous, sovereign.

And
The power of naturalizing has been vested in several of the state governments, and it now exists in the
general government; but the power to restrain or regulate the right of emigration, is no where
surrendered by the people; and it must be repeated, that, what has not been given, ought not to be
assumed. It may be said, however, that such a power is necessary to the government, and that it is
implied in the authority to regulate the business of naturalization. In considering these positions, it
must be admitted, that although an individual has a right to expatriate himself, he has not a right to
seduce others from their country. Hence, those who forcibly, or seductively, take away a citizen,
commit an act, which [p*143] forms a fair object of municipal police; and a conspiracy or combination,
to leave a country, might, likewise be properly guarded against. Such laws would not be an infraction
of the natural right of individuals; for, the natural rights of man are personal; he has no right to will
for others, and he does so, in effect, whenever he moves the mind of another to his purpose, by fear, by
fraud, or by persuasion.

And
But naturalization and expatriation are matters of internal police; and must depend upon the
municipal law, though they may be illustrated and explained by the principles of general
jurisprudence. It is true, that the judicial power extends to a variety of objects; but the Supreme Court
is only a branch of that power; and depends on Congress for what portion it shall have, except in the
cases of ambassadors, &c. particularly designated in the constitution. The power of declaring whether
a citizen shall be entitled in any form to expatriate himself, or, if entitled, to prescribe the form, is not
given to the Supreme Court; and, yet, that power will be exercised by the court, if they shall decide
against the expatriation of Captain Talbot. Let it not, after all, be understood, that the natural, locomotive, right of a free citizen, is independent of every social obligation. In time of war, it would be
treason to migrate to any enemy's country and join his forces, under the pretext of expatriation. 1 Dall.
Rep. 53, and, even in time of peace, it would be, reprehensible (say the writers on the law of nature and
nations) to desert a country labouring under great calamities. So, if a man acting under the obligations
of an oath of office, withdraws to elude his responsibility, he changes his habitation, but not his
citizenship. It is not, however, private relations, but public relations; private responsibility, but public
responsibility; that can affect the right: for, where the reason of the law ceases, the law itself must, also,
cease. There is not a private relation, for which a man is not as liable by local, as by natural,
allegiance;--after, as well as before, his expatriation: He must take care of his family, he must pay his
debts, wherever he resides; and there is no security in restraining emigration, as to those objects, since,
with respect to them, withdrawing is as effectual, as expatriating. Nor is it enough to impair the right of
expatriation, that other nations are at war; it must be the country of the emigrant. No nation has a right to
interfere in the interior police of another: the rights and duties of citizenship, to be conferred, or released, are
matter of interior police; and yet, if a foreign war could affect [p*145] the question, every time that a fresh
power entered into a war, a new restraint would be imposed upon the natural rights of the citizens of a neutral
country; which, considering the constant warfare that afflicts the world, would amount to a perpetual
controul. But the true distinction appears to be this:--The citizens of the neutral country may still exercise the
right of expatriation, but the belligerent power is entitled to say, "the act of joining our enemies, flagrante
bello, shall not be a valid act of expatriation." By this construction, the duty a nation owes to itself, the sacred
rights of the citizen, the law of nations, and the faith of treaties, will harmonize, though moving in distinct
and separate courses. To pursue the subject one step further: A man cannot owe allegiance to two
sovereigns. 1Bl. Com. He cannot be citizen of two republics. If a man has a right to expatriate, and
another nation has a right and disposition to adopt him, it is a compact between the two parties,
consummated by the oath of allegiance. A man's last will, as to his citizenship, may be likened to his
last will, as to his estate; it supersedes every former disposition; and when either takes effect, the party,
in one case, is naturally dead, in the other, he is civilly dead;--but in both cases, as good Christians and
good republicans, it must be presumed that he rises to another, if not to a better, life and country. An
act of expatriation, likewise, is susceptible of various kinds of proof. The Virginia law has selected one,
when the state permits her citizens to depart; but it is not, perhaps, either the most authentic, or the
most conclusive that the case admits. It may be done obscurely in a distant county court; and even
after the emigrant is released from Virginia, to what nation does he belong? He may have entered no
other country, nor incurred any obligation to any other sovereign. Not being a citizen of Virginia, he
cannot be deemed a citizen of the United States. Shall he be called a citizen of the world; a human
balloon, detached and buoyant in the political atmosphere, gazed at wherever he passes, and settled
wherever he touches? But, on the other hand, the act of swearing allegiance to another sovereign, is
unequivocal and conclusive; extinguishing, at once, the claims of the deserted, and creating the right of
the adopted, country. Sir William Blackstone, therefore, considers it as the strongest, though an ineffectual,
p35

2-2-2016

Hearing date 22-2-2016 Ballarat venue

Mr G. H. Schorel-Hlavka O.W.B.

Appeal 15-2502

Deponent: Mr G. H. Schorel-Hlavka O.W.B. 107 Graham Road, Viewbank 3084, Victoria admin@inspector-rikati.com

(Buloke Shire Council) Prosecutors legal representatives ES&a Lawyers

Page 36 (Revised format) AP 2502


Hearing date 22-2-2006 (or alternative date if allocated)
effort to emancipate a British subject from his natural allegiance; and the existing constitution of France
declares it expressly to be a criterion of expatriation. The same principle operates, when the naturalization
law of the United States provides, that the whole ceremony of initiation shall be performed in the American
courts; and if it is here considered as the proof of adoption, shall it not be considered, also, as the test of
expatriation? If America [p*146] makes citizens in that way, shall we not allow to other nations, the privilege
of the same process? In short, to admit that Frenchmen may be made citizens by an oath of allegiance to
America, is, virtually, to admit, that Americans may be expatriated by an oath of allegiance to France. After
this discussion of principles, forming a necessary basis for the facts in this case, it is insisted, 1st, That Talbot
was a naturalized citizen of the French Republic at the time of receiving a commission to command the
privateer, and of capturing the Magdalena. He left this country with the design to emigrate; and the act of
expatriation must be presumed to be regular, according to the laws of France, since it is certified by the
municipality of Point a Pitre, by the French Consul, and by the Governor of Guadaloupe. 2d, That Redick
was also, a naturalized citizen of the French Republic, when he purchased the vessel, and received a
commission to employ her as a privateer.

And
Ballard was a citizen of Virginia, and also of the United States.

Within the united States of America a person granted naturalization is also granted citizenship,
whereas the Commonwealth of Australia Constitution Act 1900 (UK) does not provide for this.
Section 51(xix) provides for naturalization.
END QUOTE ADDRESS TO THE COURT

And this brings me to another issue and that is the misuse/misconception/misinterpretation of


Section 92 of the constitution.
Lawyers who are qualified in a certain field within a State despite whatever the High Court of
Australia may claim otherwise, simply cannot by this claim that because of s92 then they can
practice in another other state.
The States have complete different jurisdictions and it is beyond the judicial powers of the High
Court of Australia to rule that lawyers of one state can operate in another state. The Framers of
the Constitution made clear that the Commonwealth couldnt intrude upon the State legislative
powers. The same, as I understand it, is that the High Court of Australia purports that barristers
cannot be sued
.
Hansard 1-3-1898 Constitution Convention Debates
QUOTE Sir JOHN DOWNER.I think we might, on the attempt to found this great Commonwealth, just advance one step, not beyond
the substance of the legislation, but beyond the form of the legislation, of the different colonies, and say
that there shall be embedded in the Constitution the righteous principle that the Ministers of the
Crown and their officials shall be liable for any arbitrary act or wrong they may do, in the same way as
any private person would be.
END QUOTE

As such there is no such thing as a barrister to be free from being sued when a Minister and
his/her officials can be.
One of the legal principles embedded in the Commonwealth of Australia Constitution Act 1900
(UK) within which the States are created in s106 subject to this constitution is:
.

Hansard 19-4-1897 Constitution Convention Debates


QUOTE
Mr. CARRUTHERS:
This is a Constitution which the unlettered people of the community ought to be able to understand.
END QUOTE
.

Hansard 8-3-1898 Constitution Convention Debates (Official Record of the Debates of the National Australasian
Convention)
QUOTE Mr. ISAACS.We want a people's Constitution, not a lawyers' Constitution.
END QUOTE
p36

2-2-2016

Hearing date 22-2-2016 Ballarat venue

Mr G. H. Schorel-Hlavka O.W.B.

Appeal 15-2502

Deponent: Mr G. H. Schorel-Hlavka O.W.B. 107 Graham Road, Viewbank 3084, Victoria admin@inspector-rikati.com

(Buloke Shire Council) Prosecutors legal representatives ES&a Lawyers

Page 37

(Revised format)

AP 2502

Hearing date 22-2-2006 (or alternative date if allocated)

As such an ordinary person should be able to read and understand legislation enacted within the
ambit of the constitution without needing any lawyer to explain it. Yet, I find it despite spending
decades at the bar table horrific to try to decipher what really is or isnt applicable.
The language employed in legislative provisions are often even beyond the
understanding/comprehension of legal practitioners, and the poor client then has to pay for the
cost of litigation if the legal practitioner proved to be utterly wrong.
Aggregate Industries UK Ltd., R (on the application of) v English Nature and & Anor [2002]
EWHC 908 (Admin) (24th April, 2002) and Judgments - Mark (Respondent) v. Mark
(Appellant), OPINIONS, OF THE LORDS OF APPEAL for judgment IN THE CAUSE,
SESSION 2005-06 [2005] UKHL 42 on appeal from: [2003] EWCA Civ 168
QUOTE
39. Now I may gather the threads together. We are dealing with a state of affairs in which a first
instance decision-maker, whose determination touches the citizens civil rights, does not meet the
standards imposed by ECHR Article 6(1). Such a state of affairs arises within a setting or regime
created by Act of Parliament. There will generally be access to a court by way of review or appeal
against the first decision. It may be provided by the Act itself. If the Act is silent, then at common
law recourse may be had to the judicial review court. If the Act gives a right of appeal to a court on
the merits, factual as well as legal, Article 6 is plainly complied with: such a court on any view
possesses full jurisdiction. But the commoner situation is where the right of appeal is on law only.
Subject to the remedies provided for (and to any points of procedure), that will be equivalent to
judicial review. The critical question, then, is this: in these two-tier cases, what are the conditions
which determine whether the court process at the second tier, taken with the first instance process,
guarantees compliance with Article 6(1)?
40. As I have shown, the extent to which the first instance process may be relied on to produce fair
and reasonable decisions is plainly an important element. But it is not to be viewed in isolation. The
matter can only be judged by an examination of the statutory scheme as a whole; that is the
necessary setting for any intelligent view as to what is fair and reasonable. Where the schemes
subject matter generally or systematically involves the resolution of primary fact, the court will
incline to look for procedures akin to our conventional mechanisms for finding facts: rights of crossexamination, access to documents, a strictly independent decision-maker. To the extent that
procedures of that kind are not given by the first instance process, the court will look to see how far
they are given by the appeal or review; and the judicial review jurisdiction (or its equivalent in the
shape of a statutory appeal on law) may not suffice. Where however the subject-matter of the
scheme generally or systematically requires the application of judgment or the exercise of discretion,
especially if it involves the weighing of policy issues and regard being had to the interests of others
who are not before the decision-maker, then for the purposes of Article 6 the court will incline to be
satisfied with a form of inquisition at first instance in which the decision-maker is more of an expert
than a judge (I use the terms loosely), and the second instance appeal is in the nature of a judicial
review. It is inevitable that across the legislative board there will lie instances between these
paradigms, sharing in different degrees the characteristics of each. In judging a particular scheme the
court, without compromise of its duty to vindicate the Convention rights, will pay a degree of
respect on democratic grounds to Parliament as the schemes author.
41. I intend the whole of this approach to be consonant with Lord Hoffmans reasoning in
Alconbury and I believe it to be so. And what was said by Lord Hoffman in Alconbury at
paragraph 79 is, I think, reflected by the circumstance that civil rights are more likely to be
directly engaged in a scheme where the finding of fact is a general or systematic feature; but where
judgment, discretion, and issues of policy predominate, the scheme is more likely to be one in which
decisions made under it determine or affect civil rights.
END QUOTE
Version No. 194 Magistrates' Court Act 1989 No. 51 of 1989
Version incorporating amendments as at 12 August 2015
QUOTE
p37

2-2-2016

Hearing date 22-2-2016 Ballarat venue

Mr G. H. Schorel-Hlavka O.W.B.

Appeal 15-2502

Deponent: Mr G. H. Schorel-Hlavka O.W.B. 107 Graham Road, Viewbank 3084, Victoria admin@inspector-rikati.com

(Buloke Shire Council) Prosecutors legal representatives ES&a Lawyers

Page 38 (Revised format) AP 2502


Hearing date 22-2-2006 (or alternative date if allocated)
16K
Appeal from or review of determination of Court constituted by judicial registrar
END QUOTE
Version No. 194 Magistrates' Court Act 1989 No. 51 of 1989
Version incorporating amendments as at 12 August 2015
QUOTE
Division 4Appeals and re-hearings
Error! Bookmark not defined.
109
Appeal to Supreme Court from final order made in civil proceeding
110
Re-hearing
END QUOTE
Version No. 194 Magistrates' Court Act 1989 No. 51 of 1989
Version incorporating amendments as at 12 August 2015
QUOTE
16KAppeal from or review of determination of Court constituted by judicial registrar
(1) The rules may provide for appeals from or reviews of a determination of the Court constituted by a
judicial registrar
(a) whether in respect of
(i) the hearing and determination of any proceeding (whether criminal or civil); or
(ii) any interlocutory application; and
(b) whether in respect of specified kinds of application or proceeding or generally; and
by specifying whether the procedure is by way of appeal or review or both; and

(c)

(d)by specifying the way in which the Court may be constituted for those appeals or reviews.
(2) The powers in subsection (1) are in addition to and do not limit any power to make rules under
section 16I.
(3) Unless the rules otherwise provide, a determination of the Court constituted by a judicial registrar
may be appealed from or reviewed
(a) on application of a party to the proceeding; or
(b) on the Court's own motion.
(4) If the rules do not provide for an appeal from or a review of a determination of the Court
constituted by a judicial registrar, the determination is to be subject to a review or an appeal
conducted
(a) by way of hearing de novo by the Court constituted by a magistrate; and
(b) otherwise in accordance with the rules, if any.
END QUOTE

MAGISTRATES' COURT (COMMITTALS) RULES 1999-mcr1999378 do not refer to the


wording of appeal, review or even judicial registrar. As such where the act provides for
by way of hearing de novo by the Court constituted by a magistrate then there can be no
hearing De Novo of a Judicial Registrar before the County Court of Victoria. The problem is
however that despite my numerous written request at no time did the Magistrates court of
Victoria at St Arnaud provide me with sealed copies of orders. And the problem is and remains
that the hearings on 20 August 2015 and 17 September 2015 appears to have been before a
Judicial Registrar. Then again the Registrar at the Magistrates Court of Victoria at the time I
attended to file an appeal commented that the Judicial Registrar was now a Magistrate. I will not
assume he was promoted for ensuring my case was railroaded, albeit it may be something people
may wonder about. It is however totally absurd that despite my best efforts I am still unknown if
it was a Judicial Registrar or a Magistrate who was dealing with the matters on 20 August 2015
and/or 17 September 2015. It is also absurd that a person subjected to purported court orders
could have an appeal railroaded for no other reason but the court itself concealing the position of
p38

2-2-2016

Hearing date 22-2-2016 Ballarat venue

Mr G. H. Schorel-Hlavka O.W.B.

Appeal 15-2502

Deponent: Mr G. H. Schorel-Hlavka O.W.B. 107 Graham Road, Viewbank 3084, Victoria admin@inspector-rikati.com

(Buloke Shire Council) Prosecutors legal representatives ES&a Lawyers

Page 39 (Revised format) AP 2502


Hearing date 22-2-2006 (or alternative date if allocated)
the judicial officer, by its ongoing refusal to provide sealed orders with the identity of the judicial
officer who made the orders.
Version No. 194 Magistrates' Court Act 1989 No. 51 of 1989
Version incorporating amendments as at 12 August 2015, Schedule 8Savings and transitionals
QUOTE
21

(1)The amendments of this Act made by sections 9, 13 and 14 of the Magistrates' Court (Amendment) Act
1999 apply only with respect to appeals to the County Court where notice of appeal is given on or
after 1 July 1999.
(2) The repeal of section 87 effected by section 10 of the Magistrates' Court (Amendment) Act 1999
does not affect an appeal to the County Court where the notice of appeal was given before 1 July
1999.

(3) Section 88AA, as inserted by section 11 of the Magistrates' Court (Amendment) Act 1999,
applies only with respect to appeals to the County Court where notice of appeal is given on or after
1 July 1999.
END QUOTE
MAGISTRATES' COURT (COMMITTALS) RULES 1999-mcr1999378
QUOTE
ORDER 7
HAND-UP BRIEFS
7.01 Material to be included in a hand-up brief
In addition to any other requirements concerning what is to be contained in a hand-up brief in
clause 6(1) of Schedule 5 to the Act, the informant must include in the hand-up brief
(a) a statement of the material facts relevant to the charge; and
(b) a list of material in Form 7A.
DEFENCE NOTICE
8.01 Defence notice in response to hand-up brief
Notice by the defendant in response to service of a hand-up brief that the defendant
(a) intends to seek leave to cross-examine a specified person or persons; or
(b) requires specified items listed in the hand-up brief to be produced for inspection or a copy
given; or
(c) is prepared or is not prepared to proceed or proceed further with the hearing of the committal
proceeding while a forensic procedure, examination or test described in the hand-up brief
remains uncompleted
under clause 12(1) of Schedule 5 to the Act, must be in Form 8A.
ORDER 9
CROSS-EXAMINATION
9.01 Notice by informant in response to application for leave to cross-examine a witness
For the purposes of clause 12(2A) of Schedule 5 to the Act, notice in writing to the defendant and
the registrar must be in Form 9A.
END QUOTE
MAGISTRATES' COURT (COMMITTALS) RULES 1999-mcr1999378
QUOTE
FORM 8A
Rule 8.01
p39

2-2-2016

[heading as in Form 2A]


Hearing date 22-2-2016 Ballarat venue Mr G. H. Schorel-Hlavka O.W.B.

Appeal 15-2502

Deponent: Mr G. H. Schorel-Hlavka O.W.B. 107 Graham Road, Viewbank 3084, Victoria admin@inspector-rikati.com

(Buloke Shire Council) Prosecutors legal representatives ES&a Lawyers

Page 40

(Revised format)

AP 2502
Hearing date 22-2-2006 (or alternative date if allocated)
NOTICE OF DEFENDANT IN RESPONSE TO HAND-UP BRIEF
(clause 12(1) of Schedule 5 to the Magistrates' Court Act 1989)

TO: The informant


AND TO: The Director of Public Prosecutions or the person or body authorised at law to prosecute in the committal
proceeding
AND TO: The registrar
TAKE NOTICE that the defendant
*1. intends to seek leave to cross-examine [name of person(s)] at the committal proceeding.
An issue to which the proposed questioning relates and a reason as to why the evidence is relevant to the issue
are set out as follows
[insert details]
*2. requires the following specified items as listed in the hand-up brief in accordance with clause 6(1)(j), (k) or (l)
of Schedule 5 to the Magistrates' Court Act 1989
[specify statements or documents]
to be produced for inspection or a copy given to the defendant on or before [insert committal mention date].
*3. is prepared to proceed, or proceed further, with the hearing of the committal proceeding while a forensic
procedure, examination or test described in the hand up brief in accordance with clause 6(1)(j) of Schedule 5 to
the Magistrates' Court Act 1989 remains uncompleted.
OR

*3.
is not prepared to proceed, or proceed further, with the hearing of the committal
proceeding while a forensic procedure, examination or test
END QUOTE

While legislators may provide for legal provisions and court rules it all becomes utterly useless if
a respondent/defendant is from onset denied any knowledge of relevant details to be able to
follow and comply with procedures.
Having paid for audio recording of the 17 September 2015 hearing before the Magistrates Court
of Victoria at St Arnaud one of the files contained on the CD produces the following:
F12748095_112250_17092015_1.TXT 17/09/2015 12.26 PM 2 KB
QUOTE
24,4
cw 0,20
cw 1,55
cw 2,72
cw 3,239
cw 4,73
cw 5,197
cw 6,188
cw 7,64
cw 8,64
cw 9,253
cw 10,81
cw 11,64
cw 12,64
cw 13,64
cw 14,64
cw 15,88
cw 16,64
cw 17,54
cw 18,60
cw 19,78
cw 20,64
p40

2-2-2016

Hearing date 22-2-2016 Ballarat venue

Mr G. H. Schorel-Hlavka O.W.B.

Appeal 15-2502

Deponent: Mr G. H. Schorel-Hlavka O.W.B. 107 Graham Road, Viewbank 3084, Victoria admin@inspector-rikati.com

(Buloke Shire Council) Prosecutors legal representatives ES&a Lawyers

Page 41 (Revised format) AP 2502


Hearing date 22-2-2006 (or alternative date if allocated)
cw 21,64
cw 22,64
cw 23,64
1,0,Elapsed
2,0,Action
3,0,Parties / Notes
4,0,Date
5,0,Magistrate
6,0,Court
7,0,Position
8,0,Real Time
9,0,FileName
10,0,FileTime
11,0,Event
12,0,Case Number
13,0,Operator Name
14,0,Operator Initial
15,0,Committal
16,0,Closed Court
17,0,Location
18,0,Court Num
19,0,Sitting Time
20,0,Parent
21,0,BlockStatus
22,0,Block Number
23,0,Camera/Suppression
1,1,000:00:00
2,1,New Case
3,1,Party 1: SCHOREL-HLAVKA, GERRIT Party 2: BULOKE SHIRE COUNCIL Agency: BULOKE
4,1,17/09/15
5,1,MITHEN P
6,1,St. Arnaud Magistrates' Court - Court 1
7,1,0
8,1,11:22:50
9,1,F12748095_112250_17092015_1.ogg
10,1,00:00:00
12,1,F12748095
13,1,MCCONVILLE J
14,1,1288
15,1,No
17,1,114
18,1,01
19,1,000:03:35
20,1,Primary_Case
1,2,000:00:00
2,2,Operator
3,2,New Recording started
4,2,17/09/15
5,2,MITHEN P
6,2,St. Arnaud Magistrates' Court - Court 1
7,2,856
8,2,11:22:50
9,2,F12748095_112250_17092015_1.ogg
10,2,00:00:00
11,2,Y
12,2,F12748095
13,2,MCCONVILLE J
14,2,1288
1,3,000:03:35
2,3,Operator
3,3,Recording completely stopped
4,3,17/09/15
p41

2-2-2016

Hearing date 22-2-2016 Ballarat venue

Mr G. H. Schorel-Hlavka O.W.B.

Appeal 15-2502

Deponent: Mr G. H. Schorel-Hlavka O.W.B. 107 Graham Road, Viewbank 3084, Victoria admin@inspector-rikati.com

(Buloke Shire Council) Prosecutors legal representatives ES&a Lawyers

Page 42 (Revised format) AP 2502


5,3,MITHEN P
6,3,St. Arnaud Magistrates' Court - Court 1
7,3,6917930
8,3,11:26:26
9,3,F12748095_112250_17092015_1.ogg
10,3,00:03:35
11,3,Y
12,3,F12748095
13,3,MCCONVILLE J
14,3,1288
END QUOTE

Hearing date 22-2-2006 (or alternative date if allocated)

From this the file refers to 5,2,MITHEN P, 5,3,MITHEN P, 13,1,MCCONVILLE J,


13,3,MCCONVILLE J
When opening the DigitalRecorder.exe file to play back the title Magistrate is shown and then
next to it the name MITHEN P is shown next to it in a window. However, this doesnt mean that
MITHEN J is a Magistrate but could be a Judicial Registrar wrongly identified as a Magistrate.
QUOTE
The Hon Robert Clark MP
Attorney-General
Minister for Finance
Minister for Industrial Relations
Visit www.premier.vic.gov.au for more news
Media release
Tuesday 4 June 2013
New Magistrates Court appointments
Attorney-General Robert Clark today announced the appointments of Peter Mithen and
Cynthia Toose to the Magistrates Court of Victoria.
Mr Clark said both Mr Mithen and Ms Toose brought extensive and diverse legal experience
to the bench.
Mr Mithen has served in Victorias courts for almost 40 years. He started work as an assistant
Registar/Clerk of Courts in the Magistrates Court in 1974, and subsequently worked as an
Assistant Registrar, Deputy Registrar and Registrar of the Magistrates Court and the
Childrens Court, as well as for three years as a Manager in the Courts Advice Unit of the
Department of Justice.
Mr Mithen obtained his law degree from Deakin University in 1999 and was admitted to
practice in 2000. He subsequently became a Senior Registrar in 2001 and a Judicial
Registrar in 2008.
Ms Toose was admitted to practice in 1980 and has over 30 years experience as a solicitor,
including as principal of her own firm.
Ms Toose has practised in Mildura for many years, principally in family law, criminal law and
family violence matters. Ms Toose has also served as President of the North West Law
Association.
I congratulate Mr Mitchen and Ms Toose on their appointments and wish them every success
in their future contributions to Victorias legal system, Mr Clark said.
Media contact: James Copsey 0419 984 371 james.copsey@minstaff.vic.gov.au
END QUOTE

If indeed if Mr Peter Mithen was the magistrate presiding on 17 September 2015 and his claimed
experiences are as is listed in the Media release by the then Mr Robert Clark MP then the
conduct of Mr Mithen P to conduct a trail as he did without witnesses and any evidence and with
a total disregard to deal with the OBJECTION TO JURISDICTION in the first place in my
submission questions the competence of Mr Mithen and may also indicate that no matter what a
person may bring along it doesnt at all prove that then such a person will be a competent
magistrate. In my submission his conduct should be properly investigated if this was an isolated
case or this is his modus operandi showing a blatant disregard to following legal processes, etc.!
p42

2-2-2016

Hearing date 22-2-2016 Ballarat venue

Mr G. H. Schorel-Hlavka O.W.B.

Appeal 15-2502

Deponent: Mr G. H. Schorel-Hlavka O.W.B. 107 Graham Road, Viewbank 3084, Victoria admin@inspector-rikati.com

(Buloke Shire Council) Prosecutors legal representatives ES&a Lawyers

Page 43

(Revised format)

AP 2502

Hearing date 22-2-2006 (or alternative date if allocated)

https://www.magistratescourt.vic.gov.au/about-us/about-court/magistracy-victoria
QUOTE

Magistracy of Victoria
Below is a list of Magistrates who currently sit in the Magistrates Court of Victoria. Reserve Magistrates are former
Magistrates who sit on an as needed basis in the absence of full time Magistrates on leave or due to sickness.
Chief Magistrate Mr Peter Lauritsen
Deputy Chief Magistrates
Ms Jelena Popovic
Ms Felicity Anne Broughton
Mr Lance Ivan Martin
Mr Barry Bernard Braun
State Co-ordinating Magistrate Mr Franz Johann Holzer
Regional Co-ordinating Magistrates
Bendigo

Mr Richard Wright

Broadmeadows

Mr Patrick Southey

Dandenong

Mr Jack Vandersteen

Frankston

Mr Paul Smith

Geelong

Mr Ronald Saines

Grampians

Ms Michelle Hodgson

Heidelberg

Ms Susan Wakeling

Latrobe Valley

Ms Fiona Hayes

Ringwood

Mr Nunzio La Rosa

Shepparton

Ms Stella Stuthridge

Sunshine

Ms Noreen Toohey

Drug Court Magistrate Mr Anthony William Parsons

p43

2-2-2016

Hearing date 22-2-2016 Ballarat venue

Mr G. H. Schorel-Hlavka O.W.B.

Appeal 15-2502

Deponent: Mr G. H. Schorel-Hlavka O.W.B. 107 Graham Road, Viewbank 3084, Victoria admin@inspector-rikati.com

(Buloke Shire Council) Prosecutors legal representatives ES&a Lawyers

Page 44

(Revised format)

AP 2502

Hearing date 22-2-2006 (or alternative date if allocated)

Neighbourhood Justice Centre Magistrate Mr David Kevin Fanning


Magistrates
Mr Ian Christopher Alger
Ms Susan Jane Armour
Ms Megan Aumair
Mr Julian Ayres
Ms Donna Bakos
Mr Thomas Arthur Dent Barrett
Ms Luisa Rita Bazzani
Mr John Stephen Bentley
Ms Angela Joy Bolger
Mr Timothy Bourke
Ms Jennifer Carolyn Anne Bowles
Mr Gerard Robert Bryant
Mr Darrin Craig Cain
Ms Suzanne Lara Cameron
Mr Andrew Thomas Capell
Ms Rosemary Elizabeth Carlin
Mr Michael Patrick Coghlan
Ms Ann Elizabeth Collins
Mr Gregory Thomas Connellan
Mr David Bruce Sidney Cottrill
Mr Rodney Leslie Crisp
Ms Jillian Mary Crowe
Ms Sharon Elizabeth Cure
Ms Sarah Kingsley Dawes
Mr John William Doherty
Mr Peter Gordon Dotchin
Mr Peter Stewart Dunn
Ms Michelle Pauline Elizabeth Ehrlich
Ms Caitlin Creed English
Ms Rosemary Elizabeth Falla
Mr David John Faram
Mr Bernard Robert FitzGerald
Ms Lesley Ann Fleming
Mr Simon Gerard Garnett
Mr Timothy Gattuso
Ms Jane Catherine Gibson
Mr Phillip Ginnane
Mr Phillip Goldberg
Ms Jennifer Anne Benn Goldsbrough
Mr Martin Leon Grinberg
Ms Jennifer Margaret Grubissa
Ms Carolene Gwynn
Ms Margaret Gill Harding
Mr John William Hardy
Ms Annabel Mary Hawkins
Ms Kate Isabella Hawkins
Ms Fiona Ann Hayes
Ms Michelle Therese Hodgson
Ms Gail Anne Hubble
Ms Audrey Graham Jamieson
Ms Meagan Keogh
Mr Graeme Douglas Keil
Mr Jonathan George Klestadt
Ms Elizabeth Anne Lambden
Ms Catherine Frances Lamble
Mr Dominic Lennon
Mr John Leon Lesser
Mr Gerard Michael Lethbridge
Ms Denise Mary Livingstone
Ms Mary-Anne Elizabeth MacCallum
Ms Jan Maree Maclean
Ms Kay Helen MacPherson
Mr Ross Graeme Maxted
Ms Ann Judith McGarvie
Mr Andrew Richard McKenna

p44

2-2-2016

Hearing date 22-2-2016 Ballarat venue

Mr G. H. Schorel-Hlavka O.W.B.

Appeal 15-2502

Deponent: Mr G. H. Schorel-Hlavka O.W.B. 107 Graham Road, Viewbank 3084, Victoria admin@inspector-rikati.com

(Buloke Shire Council) Prosecutors legal representatives ES&a Lawyers

Page 45

(Revised format)

AP 2502

Hearing date 22-2-2006 (or alternative date if allocated)

Mr Gregory Laurence McNamara


Mr Peter Harry Mealy
Mr Peter Mellas
Ms Johanna Margaret Metcalf
Mr Peter Patrick Mithen
Mr Stephen Paul Myall
Mr John O'Brien
Mr John Lawrence O'Callaghan
Ms Julie Ann O'Donnell
Ms Kim Michelle Willmott Parkinson
Mr Richard John Pithouse
Ms Roslyn Porter
Mr Reginald Hugh Storrier Radford
Mr Peter Anthony Reardon
Mr Duncan Keith Reynolds
Ms Mary Kay Robertson
Mr Gregory Stuart Robinson
Mr Charles Schol Rozencwajg
Mr Marc Anthony Sargent
Mr Barry John Schultz
Mr Michael Leslie Smith
Ms Sharon Elizabeth Smith
Mr Patrick Richard Christian Southey
Ms Paresa Antoniadis Spanos
Ms Pauline Therese Spencer
Ms Fiona Margaret Stewart
Mr Mark Francis Stratmann
Mr Charles Tan
Ms Cynthia Anne Toose
Ms Jennifer Beatrix Tregent
Ms Belinda Jane Wallington
Mr Timothy John Walsh
Mr Ian John Watkins
Mr Michael Gerard Wighton
Mr Brian Robert Wright
Mr Richard Thomas Wright
Mr Francis Patrick Zemljak
Reserve Magistrates
Mr Henry Clive Howard Alsop
Mr Brian Stirtevant Barrow
Mr Ross Frederick Betts
Mr John Douglas Bolster
Mr Lewis Phillip Byrne
Mr Brian Joseph Clifford
Ms Jacinta Heffey
Mr Frank William Dudley Jones
Mr Robert Krishnan Ashok Kumar
Mr Gregory John Zalman Levine
Mr Ian Thomas McGrane
Mr John Martin Murphy
Mr Peter Thomas Power
Mr Steven Raleigh
Mr Alan John Spillane
Mr Ian Maxwell von Einem
Mr William Peter White
Mr Terry John Wilson
Judicial Registrars
Ms Ruth Andrew
Mr Michael Bolte
Mr Graeme John Horsburgh
Mr Barry Raymond Johnstone
Mr David McCann
Ms Sharon Lea McRae

p45

2-2-2016

Hearing date 22-2-2016 Ballarat venue

Mr G. H. Schorel-Hlavka O.W.B.

Appeal 15-2502

Deponent: Mr G. H. Schorel-Hlavka O.W.B. 107 Graham Road, Viewbank 3084, Victoria admin@inspector-rikati.com

(Buloke Shire Council) Prosecutors legal representatives ES&a Lawyers

Page 46

(Revised format)

AP 2502

Hearing date 22-2-2006 (or alternative date if allocated)

Mr Richard O'Keefe
Ms Angela Assunta Soldani
State Coroner Judge Sarah Hinchey
Deputy State Coroner Mr Iain Treloar West

END QUOTE

The list doesnt include any 13,1,MCCONVILLE J identity as a Magistrate or Judicial Registrar,
and so perhaps after all it might have been a toddler from prep who adjudicated, or perhaps the
Girl Friday?
This to me shows gross incompetence by the judiciary.
Standard of Review
County Criminal Court: APPELLATE PROCEDURE Standard of Review trial court did not err in denying motion
for judgment of acquittal - in reviewing trial courts denial of defendants motion for judgment of acquittal, when defendants
criminal conviction is based upon both direct and circumstantial evidence, the appellate court applies a de novo standard of
review. Trial courts finding of guilt was based on competent, substantial evidence - Judgment and sentence affirmed. Carter v.
State,No. CRC10-00007APANO (Fla. 6th Cir. App. Ct. September 29, 2010).

County Civil Court: APPELLATE PROCEDURE Standard of review issue of statutory interpretation is entitled to de
novo review on appeal. Check cashing service was not, under the Uniform Commercial Code, a holder in due course of a
check as the check was not taken in good faith. Check cashing service did not act in good faith when it failed to adhere to
reasonable commercial standards of fair dealing by making no effort to authenticate an out-of-state personal check for an amount
not typically cashed by the service. Final judgment reversed. Latek v. McBride Enterprises, Inc., Appeal No.07-000054AP-88A
(Fla. 6th Cir.App.Ct. Nov. 13, 2008).

County Civil Court:

STANDARD OF REVIEW preservation of error - non-jury trial trial courts findings are
clothed with a presumption of correctness and these findings will not be disturbed unless clearly erroneous trial court is charged
with resolving conflicting evidence - Appellant unable to demonstrate findings are clearly erroneous and judgment is supported
by competent substantial evidence - Court cannot rule on issues not presented to the trial court - Final Judgment affirmed. Sabala
v. Harper, Kynes, et. al., Appeal No. 07-0026AP-88A ( Fla. 6th Cir. App. Ct. Dec. 21, 2007).

County Civil Court:

STANDARD OF REVIEW non-jury trial trial courts findings are clothed with a presumption
of correctness and these findings will not be disturbed unless clearly erroneous Appellant unable to demonstrate findings are
clearly erroneous and judgment is supported by competent substantial evidence courts will not re-try cases on appeal no
transcript of the hearing supports affirmance of the trial courts ruling Final Judgment affirmed. Brady v. Stoupas, Appeal No.
07-0013AP-88B ( Fla. 6th Cir. App. Ct. November 30, 2007).

County Civil Court:

STANDARD OF REVIEW non-jury trial defamation - trial courts findings are clothed with a
presumption of correctness and these findings will not be disturbed unless clearly erroneous Appellant unable to demonstrate
findings are clearly erroneous and judgment is supported by competent substantial evidence courts will not re-try cases on
appeal statements in petition for injunction were privileged and could not support defamation claim Final Judgment affirmed.
Alexeev v. Johnson, Appeal No. 07-0015AP-88A ( Fla. 6th Cir. App. Ct. Oct. 16, 2007).

A de novo standard of review is applied when reviewing an order granting a motion to dismiss. Jenkins v. City of St.
Petersburg Police Dept., No. 01-4498-CI-88A (Fla. 6th Cir. Ct. September 20, 2001).

APPELLATE PROCEDURE
Appealability/Improper Relief
In filing his petition for writ of common law certiorari, the Petitioner failed to show that there has been a violation of
a clearly established principle of law resulting in the miscarriage of justice or that the lower courts order would
cause material injury that could not be remedied on appeal from a final judgment. Certiorari is not designed to serve
as a writ of expediency and should not be granted merely to relieve petitioners from the expense and inconvenience
of trial. Leverone v. Liberty Mutual Insurance Co., No. 01-7096-CI-88A (Fla. 6th Cir. Ct. October 11, 2001).

p46

2-2-2016

Hearing date 22-2-2016 Ballarat venue

Mr G. H. Schorel-Hlavka O.W.B.

Appeal 15-2502

Deponent: Mr G. H. Schorel-Hlavka O.W.B. 107 Graham Road, Viewbank 3084, Victoria admin@inspector-rikati.com

(Buloke Shire Council) Prosecutors legal representatives ES&a Lawyers

Page 47 (Revised format) AP 2502


Hearing date 22-2-2006 (or alternative date if allocated)
Had the Appellant attached all orders sought to be reviewed to her Notice of Appeal, as required by the Florida
Rules of Appellate Procedure, Rule 9.110(d), the Court would have ruled at the outset that it had no jurisdiction to
review those orders that were not timely appealed. Additionally, the traditional test for whether an order of the
lower court is final for review purposes, is whether decree disposes of cause on its merits leaving no questions open
for judicial determination except for execution or enforcement of decree if necessary. Alecia Lindsay-Stokes v.
Liberty Mutual Insurance Company, No. 01-557-CI-88A (Fla. 6th Cir. Ct. August 31, 2001).

I will now quote also my 20160130-Schorel-Hlavka O.W.B. to Associate Mr Garry McIntosh to His Honour Mullaly J CCVRe APPEAL-15-2502 -Re Location Ballarat Venue-unsworn statement abolished-etc and this also makes clear that at this
time of preparing the ADRESS TO THE COURT I havent even been provided with contact
details let alone the physical address of the Ballarat venue.
QUOTE 20160130-Schorel-Hlavka O.W.B. to Associate Mr Garry McIntosh to His Honour Mullaly J CCV-Re
APPEAL-15-2502 -Re Location Ballarat Venue-unsworn statement abolished-etc

Mr Garry McIntosh, Associate to His Honour Mullaly J.


judgemullaly.chambers@countycourt.vic.gov.au
Cc:

30-1-2016

Mr Peter Kidd CJ County Court of Victoria, feedback@countycourt.vic.gov.au


Buloke Shire Council buloke@buloke.vic.gov.au
Daniel Andrews Premier Victoria daniel.andrews@parliament.vic.gov.au
Mr Martin Pakula, martin.pakula@parliament.vic.gov.au & attorney-general@justice.vic.gov.au
Elliott Stafford and Associated
lawyers@elliottstafford.com.au
County Court of Victoria crim.reg@countycourt.vic.gov.au
Re: 20160130-Schorel-Hlavka O.W.B. to Associate Mr Garry McIntosh to His Honour Mullaly J CCV-Re APPEAL-15-2502
-Re Location Ballarat Venue-unsworn statement abolished-etc

Sir,

after 3 months having passed since the pre appeal hearing held before His Honour Mullaly J
ON 30 October 2015 the court still has not to my knowledge managed to perform a basic legal
requirement and that is to advise me the location of the Ballarat venue. It is not uncommon that a
court/tribunal hold a hearing other than its ordinary physical court venue location and this may
even eventuate upon a short notice, such as due to certain water damage or otherwise. It is for
this important that the courts has the not just decency and courtesy but the competence to advise
a party, without this party having to request this, what the physical location address will be where
the hearing or any further hearing is to eventuate, and this including the time, etc. In my view
that the county court of Victoria has been unable to manage this in 13 weeks (3 months) I view
underline its gross incompetence to deal with basic legal requirements.
When will the court manage such simple basic task and provide me with the relevant
details?
Failure of due process.
QUOTE Merritt v. Hunter, C.A. Kansas 170 F2d 739.
Where a court failed to observe safeguards, it amounts to denial of due process of law, court is deprived of
juris.
END QUOTE

From onset there was a total failure of due process. While Buloke Shire Council and its legal
representatives were alerted to the fact that due to ill held I couldnt travel, nevertheless despite
legal requirements no full brief was served upon me and this is the modus oprandi that has so
far persisted throughout. Despite that a full request was made for a copy of the brief on 27
October 2015 as after all with the pre-appeal hearing it was important for me to know what was
at the time on 20 August 2015 and subsequently on 17 September 2015 placed before the
Magistrates Court of Victoria at the St Arnaud venue, to date no attempt was made to serve such
a brief. This also in violation of the orders of His Honour Mullaly J on 30 October 2015 that
the brief was to be posted to me by no later than 9 November 2015 via Australian Post.
p47

2-2-2016

Hearing date 22-2-2016 Ballarat venue

Mr G. H. Schorel-Hlavka O.W.B.

Appeal 15-2502

Deponent: Mr G. H. Schorel-Hlavka O.W.B. 107 Graham Road, Viewbank 3084, Victoria admin@inspector-rikati.com

(Buloke Shire Council) Prosecutors legal representatives ES&a Lawyers

Page 48 (Revised format) AP 2502


Hearing date 22-2-2006 (or alternative date if allocated)
In fact neither did Buloke Shire Council legal representatives file any Notice of Appearance as
required by the rules of the court and this may underline the disrespect/disregard by Buloke Shire
council legal representatives as to compliance with the rules of the court as well as with the
rights of myself as a defendant/objector.
This has been aggravated by the courts themselves, as while it was known that there was an
objection to jurisdiction submitted in writings in my ADDRESS TO THE COURT including
my written submissions OBJECTION TO JURISDICTION for the 20 August 2015 hearing
and again in regard of the 17 September 2015 hearing the court at no time dealt with the
OBJECTION TO JURISDICTION and as such never invoked jurisdiction.

I below quote part of the 2 September 2015 correspondence received from ES&a Lawyers acting
allegedly for Buloke Shire Council, I have however at the end of this ADDRESS TO THE
COURT included a scanned copy of the correspondence in full.
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 we
acknowledge your numerous items of correspondence. We do not propose to respond to a majority of the
matters raised therein.
The purpose of this letter is to confirm that as you did not appear the matter has been adjourned for hearing at
the 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 this 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 of
venue and we note that the Collingwood Magistrates Court is not the appropriate venue for your matter in
any 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 strongly
suggest that you take legal advice with respect to same.
END QUOTE (Alison J May LEGAL Practitioner ES&a 2-9-2015 correspondence)

It is therefore absolutely clear that ES&a lawyers were fully aware about my OBJECTION TO
JURISDICTION. The fact they desired not to respond to them also must be taken into account
as a failure to prove jurisdiction, this as the court cannot assume jurisdiction but the prosecutor
had to prove jurisdiction by evidence. A refusal to do so is no legal excuse and therefore the
Court on 20 August 2015 had an uncontested OBJECTION TO JURISDICTION. See also set
outs further below under different headings.
Actore non probante reus absolvitur. When the plaintiff does not prove his case, the
defendant is absolved.
Ei incumbit probatio qui dicit, non qui negat. The burden of the proof lies upon him who
affirms, not he who denies.
The same eventuated on 30 October 2015 before His Honour Mullaly J on the pre-appeal hearing
where His Honour Mullaly J without a shred of evidence being before the court to justify this
outburst/tirade His Honour Mullaly J commenced to attack my person, also refusing to follow
Due Process such as to consider the written submission stated in the ADDRESS TO THE
COURT that was already on court file as well as submitted from the Bar table, and by this
totally ignored the written submission OBJECTION TO JURISDICTION regarding the
appeal.
p48

2-2-2016

Hearing date 22-2-2016 Ballarat venue

Mr G. H. Schorel-Hlavka O.W.B.

Appeal 15-2502

Deponent: Mr G. H. Schorel-Hlavka O.W.B. 107 Graham Road, Viewbank 3084, Victoria admin@inspector-rikati.com

(Buloke Shire Council) Prosecutors legal representatives ES&a Lawyers

Page 49 (Revised format) AP 2502


Hearing date 22-2-2006 (or alternative date if allocated)
It may be in legal terms extra ordinary that an Appellant objects to the jurisdiction of the court to
hear and determine an appeal, but to the court what should be relevant is what the correct process
is in law. If I can achieve the same end result desired with an OBJECTION TO
JURISDICTION then so be it. In the end when I submitted that I would seek a judicial review
His Honour Mullaly J then announced to adjourn matters so His Honour Mullaly J could read the
11 page written submission being the ADDRESS TO THE COURT, however upon return
totally failed to deal with the OBJECTION TO JURISDICTION albeit did raise the issue of
the full brief. It also should be understood that Buloke Shire Council legal representatives
purportedly served a brief regarding a 18 March 2013 court hearing which was long before the
17 November 2014 Infringement Notice was issued. As such it appears that Buloke Shire
Council legal representatives had purportedly a hearing listed long before the alleged offence had
been committed. Then it purported to amend the brief to a 22 February 2016 date but this
doesnt in any way then provide the full brief I was all along entitled upon that was before the
court, if at all, on 20 August 2015 and/or 17 September 2015. More over in the purported brief
the only witness listed is Mr Wayne Wall and one then has to ask if the legal representatives of
Buloke Shire Council are not listed as witnesses how can they then purport to give evidence from
the bar table by making unsworn statements from the bar table (Itself a violation of the sanctity
of the bar table) by producing a stack of papers claiming to be my writings.
In my view it is a serious matter to file and/or serve a false brief with a hearing date that is a
fabrication of the person signing the document. Yet, even in that regard the court has so far failed
to address this issue also.
County Civil Court: CIVIL PROCEDUREDismissal. It is not apparent from the face of the complaint that the
issues raised involve the same parties and facts previously litigated and ruled on, and that dismissal was warranted
based on the affirmative defense of res judicata. Reversed and remanded for further proceedings. Joseph John
Libertino v. Mario Vavoulis and Rock Bottom Auto Sales, Inc., No. 13-AP-0017-WS (Fla. 6th Cir. App. Ct. June 15,
2015).

As on 19 July 2006 (about 10 years earlier) I then already had successfully objected to the
jurisdiction of the County Court of Victoria involving the Commonwealth as well as
State/Territorial Attorney-Generals and the Attorney-General for the State of Victoria then made
known to abide by the courts decision, then clearly where Buloke Shire Council is seeking to
purportedly enforce State legislative provisions it cannot now on behalf of the State of Victoria
violates this undertaking. This also because it was a constitutional issue and the same parties
cannot re-litigate a constitutional issue.
His Honour Mullaly J clearly disregarding the OBJECTION TO JURISDICTION by this
violated cardinal critical legal requirements and the moment His Honour Mullaly J did so His
Honour Mullaly J no longer continued as an judicial officer but as a private person, basically as I
view it conducting a STAR CHAMBER COURT/KANGAROO COURT. This I view is a
criminal matter in itself.
The following Authority while dealing with the U.S.A likewise is applicable to the judiciary in
then commonwealth of Australia.
Note: Any judge who does not comply with his oath to the Constitution of the
United States wars against that Constitution and engages in acts in violation
of the supreme law of the land. The judge is engaged in acts of treason.
The U.S. Supreme Court has stated that "no state legislator or executive or
judicial officer can war against the Constitution without violating his undertaking
to support it". See also In Re Sawyer, 124 U.S. 200 (188); U.S. v. Will, 449 U.S.
200, 216, 101 S. Ct. 471, 66 L. Ed. 2d 392, 406 (1980); Cohens v. Virginia,
QUOTE:-

p49

..However, the judiciary has no power to amend or modernize the Constitution to give effect to what
Judges think is in the best public interest. The function of the judiciary, including the function of this
Court, is to give effect to the intention of the makers of the Constitution as evinced by the terms in which
2-2-2016 Hearing date 22-2-2016 Ballarat venue Mr G. H. Schorel-Hlavka O.W.B.
Appeal 15-2502

Deponent: Mr G. H. Schorel-Hlavka O.W.B. 107 Graham Road, Viewbank 3084, Victoria admin@inspector-rikati.com

(Buloke Shire Council) Prosecutors legal representatives ES&a Lawyers

Page 50 (Revised format) AP 2502


Hearing date 22-2-2006 (or alternative date if allocated)
they expressed that intention. That necessarily means that decisions, taken almost a century ago by
people long dead, bind the people of Australia today even in cases where most people agree that those
decisions are out of touch with the present needs of Australian society.
":.. The starting point for a principled interpretation of the Constitution is the search for the intention of its
makers"
Gaudron J (Wakim, HCA27\99)
"... But in the interpretation of the Constitution the connotation or connotations of its words should
remain constant. We are not to give words a meaning different from any meaning which they could have
borne in 1900. Law is to be accommodated to changing facts. It is not to be changed as language changes.
"
Windeyer J (Ex parte Professional Engineers' Association)

Causing me to attend to the Ballarat venue in my view is a form of extortion to force me unduly
to travel to an inappropriate court venue and face further denial of justice and incur cost which
His Honour Mullaly J ought to have avoided.
Essentially His Honour Mullaly J grossly denied me JUSTICE, because as I had set out from
onset having OBJECTED TO THE JURISDICTION of the courts then the court shouldnt
manipulate its powers as to cause me to engage in protracted litigation where it should have
addressed the OBJECTION TO JURISDICTION in the first place.
Extract from the Nuremberg Judgment within the International Military Tribunal 1 st October
1946 bottom of page 100
QUOTE
Many of these men have made a mockery of the soldier's oath of obedience to military orders. When it suits
their defence they say they had to obey; when confronted with Hitler's brutal crimes, which are shown to
have been within their general knowledge, they say they disobeyed.
The truth is they actively participated in all these crimes, or sat silent and acquiescent, witnessing the
commission of crimes on a scale larger and more shocking than the world has ever had the misfortune to
know. This must be said: Where the facts warrant it, these men should be brought to trial
so that those among them who are guilty of these crimes should not escape punishment.
END QUOTE

The same applies to judicial officers/OFFICER OF THE COURT who knowingly ignore the
Rule of law and persist in enforcing invalid court orders. Despite my elaborate writings nothing
was done to address these invalid orders.
.

Uniform Tax \case, 1942 (65CLR 373 at 408) 23-7-1942


QUOTE
Common expressions such as: 'The Courts have declared a statute invalid'," says Chief Justice Latham,
"sometimes lead to misunderstanding. A pretended law made in excess of power is not and never has been a
law at all. Anybody in the country is entitled to disregard it. Naturally, he will feel safer if he has a
decision of a court in his favor, but such a decision is not an element, which produces invalidity in any law.
The law is not valid until a court pronounces against it - and thereafter invalid. If it is beyond power it is
invalid ab initio.
END QUOTE
Re Wakim; Ex parte McNally; Re Wakim; Ex parte Darvall; Re Brown; Ex parte Amann; Spi [1999] HCA 27
(17 June 1999)
QUOTE
For constitutional purposes, they are a nullity. No doctrine of res judicata or issue estoppel can prevail
against the Constitution. Mr Gould is entitled to disregard the orders made in Gould v Brown. No doubt, as
Latham CJ said of invalid legislation, "he will feel safer if he has a decision of a court in his favour".
That is because those relying on the earlier decision may seek to enforce it against Mr Gould.
END QUOTE
.

I have sought to cooperate to follow legal procedures regardless that I view the orders are and
remain to be invalid and without legal force.
p50

2-2-2016

Hearing date 22-2-2016 Ballarat venue

Mr G. H. Schorel-Hlavka O.W.B.

Appeal 15-2502

Deponent: Mr G. H. Schorel-Hlavka O.W.B. 107 Graham Road, Viewbank 3084, Victoria admin@inspector-rikati.com

(Buloke Shire Council) Prosecutors legal representatives ES&a Lawyers

Page 51 (Revised format) AP 2502


Hearing date 22-2-2006 (or alternative date if allocated)
Uniform Tax \case, 1942 (65CLR 373 at 408) 23-7-1942
QUOTE
Common expressions such as: 'The Courts have declared a statute invalid'," says Chief Justice Latham,
"sometimes lead to misunderstanding. A pretended law made in excess of power is not and never has been a
law at all. Anybody in the country is entitled to disregard it. Naturally, he will feel safer if he has a decision
of a court in his favor, but such a decision is not an element, which produces invalidity in any law. The law is
not valid until a court pronounces against it - and thereafter invalid. If it is beyond power it is invalid ab
initio.
END QUOTE
Re Wakim; Ex parte McNally; Re Wakim; Ex parte Darvall; Re Brown; Ex parte Amann; Spi [1999] HCA 27 (17
June 1999)
QUOTE
For constitutional purposes, they are a nullity. No doctrine of res judicata or issue estoppel can prevail against
the Constitution. Mr Gould is entitled to disregard the orders made in Gould v Brown. No doubt, as Latham
CJ said of invalid legislation, "he will feel safer if he has a decision of a court in his favour". That is because
those relying on the earlier decision may seek to enforce it against Mr Gould.
END QUOTE

The judiciary however has shown to be blatantly ignorant of what is Due process of law and that
should be of grave concern to anyone.
While the Infringement Notice was to have been withdrawn prior to any summons having been
issued it now is that the summons relies upon the Infringement Notice. As such it appears to me
that Buloke Shire Council legal representatives so to say are a bunch of amateurs not knowing
how to properly litigate and by this inflict undue harm upon me. Surely I should be entitled to
have competent litigation being conducted against me and not be subjected to this kind of utter
rubbish, and then they dare to pursue cost for their utter disgraceful rubbish?
They have consistently violated Due process and aided so by the judiciary, hence it is
reasonable to suspect for a FAIR MINDED PERSON that because the courts share the same
ABN number as to State of Victoria it no longer provides due process but rather are so to say
in my view participant and so aiding and abetting in the perverting of justice.
Federal jurisdiction versus State jurisdiction, etc.
While the matter that was instituted for hearing before the Magistrates Court of Victoria at St
Arnaud was one as to State of Victoria legislation the fact that as the objector and
CONSTITUTIONALIST relies upon the legal principles embedded in the Commonwealth of
Australia Constitution Act 1900 (UK) then this means the matter became a federal jurisdictional
matter, albeit past litigation on constitutional issues which on 19 July 2006 were decided in my
favour are beyond re-litigation and as such Buloke Shire Council acting for the State of Victoria
is bound by this.
.

The High Court of Australia held that where a party pleads the non-application of a State Act
because of Commonwealth legislation then the State Court is exercising Federal jurisdiction.
(However only if the State Court can invoke jurisdiction, which VCAT cannot and neither is a
court!) Troy v Wrigglesworth (1919) 26 C.L.R. 305; 25 (1926) 38 C.L.R. 441; 33 A.L.R. 66.
.

Held that a State Court exercising federal jurisdiction when it erroneously applies
Commonwealth Act to subject matter before the Court. Commonwealth v Cole, (1923) 32 C.L.R.
602 and Commonwealth v Dalton, (1924) 33 C.L.R.. 452; 30 A.L.R. 85
QUOTE Basso v. Utah Power & Light Co., 495 F 2d 906, 910.
Jurisdiction can be challenged at any time." and "Jurisdiction, once challenged, cannot be assumed
and must be decided.
END QUOTE

p51

2-2-2016

Hearing date 22-2-2016 Ballarat venue

Mr G. H. Schorel-Hlavka O.W.B.

Appeal 15-2502

Deponent: Mr G. H. Schorel-Hlavka O.W.B. 107 Graham Road, Viewbank 3084, Victoria admin@inspector-rikati.com

(Buloke Shire Council) Prosecutors legal representatives ES&a Lawyers

Page 52 (Revised format) AP 2502


Hearing date 22-2-2006 (or alternative date if allocated)
QUOTE Stuck v. Medical Examiners, 94 Ca 2d 751. 211 P2d 389.
Once challenged, jurisdiction cannot be assumed, it must be proved to exist.
END QUOTE
QUOTE Basso v. Utah Power & Light Co., 495 2nd 906 at 910,
Jurisdiction can be challenged at any time, even on final determination.
END QUOTE
QUOTE Dillon v. Dillon, 187 P 27
Thus, where a judicial tribunal has no jurisdiction of the subject matter on which it assumes to act, its
proceedings are absolutely void in the fullest sense of the term. .
END QUOTE
QUOTE Hagens v. Lavine, 415 U.S. 533,
Once jurisdiction is challenged, it must be proven
END QUOTE
QUOTE HALSBURYS LAWS OF AUSTRALIA says under (130-13460):
Consent to summary jurisdiction The consent to be tried summarily must be clear and unequivocal and a
failure to carry out the procedures for obtaining the consent will deprive the court of jurisdiction to determine
the matters summarily.
END QUOTE
QUOTE Hill Top Developers v. Holiday Pines Service Corp., 478 So. 2d. 368 (Fla 2nd DCA 1985)
Defense of lack of jurisdiction over the subject matter may be raised at any time, even on appeal.
END QUOTE
QUOTE In Re Application of Wyatt, 300 P. 132; Re Cavitt, 118 P2d 846.
Jurisdiction is fundamental and a judgment rendered by a court that does not have jurisdiction to hear
is void, ab initio.
END QUOTE
QUOTE (Jagens v. Lavine, 415 S.Ct.768).
Once jurisdiction is challenged, it must be proven.
END QUOTE
QUOTE Joyce v. US, 474 F2d 215.
There is no discretion to ignore that lack of jurisdiction.
END QUOTE
QUOTE Latana v. Hopper, 102 F. 2d 188; Chicago v. New York, 37 F Supp. 150.
Court must prove on the record, all jurisdiction facts related to the jurisdiction asserted.
END QUOTE
QUOTE Main v. Thiboutot, 100 S. Ct. 2502 (1980).
The law provides that once State and Federal jurisdiction has been challenged, it must be proven.
END QUOTE
QUOTE Melo v. US, 505 F2d 1026.
Once jurisdiction is challenged, the court cannot proceed when it clearly appears that the court lacks
jurisdiction, the court has no authority to reach merits, but, rather, should dismiss the action.
END QUOTE
QUOTE Norwood v. Renfield, 34 C 329; Ex parte Giambonini, 49 P. 732.
A universal principle as old as the law is that a proceedings of a court without jurisdiction are a nullity
and its judgment therein without effect either on person or property.
END QUOTE
QUOTE Rosemond v. Lambert, 469 F2d 416.
The burden shifts to the court to prove jurisdiction."
END QUOTE
QUOTE Standard v. Olsen, 74 S. Ct. 768,
p52 2-2-2016 Hearing date 22-2-2016 Ballarat venue

Mr G. H. Schorel-Hlavka O.W.B.

Appeal 15-2502

Deponent: Mr G. H. Schorel-Hlavka O.W.B. 107 Graham Road, Viewbank 3084, Victoria admin@inspector-rikati.com

(Buloke Shire Council) Prosecutors legal representatives ES&a Lawyers

Page 53 (Revised format) AP 2502


Hearing date 22-2-2006 (or alternative date if allocated)
No sanctions can be imposed absent proof of jurisdiction.
END QUOTE
QUOTE Thompson v. Tolmie, 2 Pet. 157, 7 L.Ed. 381; Griffith v. Frazier, 8 Cr. 9, 3L. Ed. 471.
Where there is absence of jurisdiction, all administrative and judicial proceedings are a nullity and
confer no right, offer no protection, and afford no justification, and may be rejected upon direct
collateral attack.
END QUOTE

Legal Position of Buloke Shire Council to sue.


It should be understood that Buloke Shire Council c is standing in the legal position of the state
of Victoria when it sues regarding alleged enforcement of state legislation such as the Country
Fire Authority Act 1958. See also Sydney City council v Commonwealth 1904 where the court
held that council by delegated legislative powers was exercising within s114 of the constitution
taxation powers. As such councils alleged incurred legal cost is self-inflicted and should not be
reclaimable against me. As I had informed Buloke Shire Council long before it commenced to
institute legal proceedings that I would challenge the jurisdiction of the courts, etc, then it cannot
use the extensive writings as a burden as it owns conduct (so that of its legal representatives) was
the cause of it all. See also http://www.austlii.edu.au/au/cases/vic/VSC/2011/140.html
Hobsons Bay City Council v Viking Group Holdings Pty Ltd [2010] VSC 386 (27 August
2010)
It should be of concern that what I consider is fraudulent conduct that Buloke Shire Council
required by Infringement Notice to make a payment to itself rather than to the State of Victoria
Consolidated Revenue Funds, as is constitutionally applicable.

Administrative versus judicial hearing.


QUOTE ASIS v. US, 568 F2d 284.
A judge ceases to sit as a judicial officer because the governing principle of administrative law provides
that courts are prohibited from substituting their evidence, testimony, record, arguments, and
rationale for that of the agency. Additionally, courts are prohibited from substituting their judgment
for that of the agency. Courts in administrative issues are prohibited from even listening to or hearing
arguments, presentation, or rational.
END QUOTE
QUOTE Burns v. Sup. Ct., SF, 140 Cal. 1.
Ministerial officers are incompetent to receive grants of judicial power from the legislature, their acts
in attempting to exercise such powers are necessarily nullities.
END QUOTE
QUOTE Thompson v. Smith, 154 SE 583.
When acting to enforce a statute and its subsequent amendments to the present date, the judge of the
municipal court is acting as an administrative officer and not in a judicial capacity; courts in
administering or enforcing statutes do not act judicially, but merely ministerially.
END QUOTE

In this case the courts sharing the same ABN (Australian business Number) with that of the
government, allowing the government to access its computers and having the courts listed as
Business Unit 19, etc, (see my recent extensive writings about this) cannot adjudicate merely
because a summons was issued with a charge as if the Municipal Fire Prevention Officer Mr
Wayne Wall for the court divided my guilt, this despite that the Fire Prevention Notice itself was
in violation of the legal provisions of the Country Fire Authority Act 1958! The mere fact that
no evidence was filed nor orally presented to the court on 17 September 2015 at the Magistrates
Court of Victoria at St Arnaud underlines that the legal principle embedded in the constitution
that a judicial determination can only be made after hearing both sides has been violated.
p53

2-2-2016

Hearing date 22-2-2016 Ballarat venue

Mr G. H. Schorel-Hlavka O.W.B.

Appeal 15-2502

Deponent: Mr G. H. Schorel-Hlavka O.W.B. 107 Graham Road, Viewbank 3084, Victoria admin@inspector-rikati.com

(Buloke Shire Council) Prosecutors legal representatives ES&a Lawyers

Page 54

(Revised format)

AP 2502

Hearing date 22-2-2006 (or alternative date if allocated)

Magistrates order versus Judicial Registrar order


http://www.austlii.edu.au/cgibin/sinodisp/au/cases/cth/HCA/1991/9.html?stem=0&synonyms=0&query="otherwise%20fell%20outside%20its%2
0jurisdiction%20"
Harris v Caladine [1991] HCA 9; (1991) 172 CLR 84 (17 April 1991)
QUOTE
The Full Court on appeal from Maxwell J. held that the review of the Deputy Registrar's decision was
confined to an inquiry whether the parties did in fact consent to the terms of the order and whether the terms
agreed upon were in a form appropriate to the type of order sought and were enforceable. But the order made
by the Deputy Registrar must have been made pursuant to s.79 - the section which confers power upon the
Court to order a settlement of or an alteration in the property interests of the parties. The Court could not
make an order which otherwise fell outside its jurisdiction merely because the parties consented to it
and it follows, a fortiori, that a Registrar, exercising a delegated power, could not do so. Thus, for instance,
under s.80(1)(j) of the Act the Court may make an order by consent, but only in exercising its powers under
Pt VIII. Section 37A(1)(g) allows the delegation to the Registrar of the power to make an order by consent,
but only where it is a power of the Court. And O.36A, r.2(1)(n) delegates to the Registrar the power referred
to in s.37A(1)(g).
END QUOTE

While an appeal lies to the County Court of Victoria regarding a judicial determination of a
Magistrate in my view where it relates to a Judicial Registrar then not an appeal but a review of
the Judicial Registrars decision is the appropriate way. Whereas on appeal an appellate court
may uphold the decision of a magistrate it cannot do so in regard of a Judicial Registrar, because
the moment the court commences a review the Judicial Registrars decision is to so say wiped
from the face of the earth. (See also http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/HCA/1991/9.htm
Harris v Caladine [1991] HCA 9; (1991) 172 CLR 84 (17 April 1991))

Yet, despite this by this day I have still not received formal orders of the purported 20 August
2015 and purported 17 September 2015 hearings and reasons of judgments. As such, the court
has operated as to what I view is a STAR CHAMBER COURT and a KANGAROO COURT
in secrecy without that I am allowed what precisely went on and neither so the general
community.
.

QUOTE In the Marriage of Tennant (1980) 5 FLR 777 at 780


As no grounds for appeal are required to be specified in the notice of Appeal, which, on filing institutes the
appeal (reg 122), there is no limitations of the scope of the appeal and all findings of fact and law made in the
lower court in relation to the decree appealed are in challenge 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 reason for the magistrates 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 their witnesses up, argue their case and attempt to
controvert the opposing case are entitled to know, if they lose, why they lost. If they are given no reason they
may be entitled to feel the decision against them was conceived in prejudice, bias, or caprice. In such a case
not only the litigant, but justice itself, is the loser.
Magistrates should realise, even more than they seem to do, that this class of business is not mere ordinary
trivial work, and they should deal with these cases with a due sense of responsibility which administrations of
the summary jurisdiction Act and the far reaching consequences of the orders that they make thereafter entail.
[Baker v Baker (1906) 95 LT 549; In Robinson v Robinson (1898) p135; and again in Cobb v Cobb (1900)
p145] it was stated that when making orders of this kind, from which lies an appeal to other courts, it is the duty
of the magistrate not only to cause a note to be made of the evidence, and of his decision, but to give the reasons
for his decision and to cause a note to be made of his reasons... Elaborate judgements are not required, but the
reasons which lead the magistrate to make his order must be explicitly stated.
END QUOTE
.

In fact I filed my appeal without having any proper records as to what was if at all ordered by the
court on 20 August 2015 and/or on 17 September 2015. This to me underling the gross abuse of
p54

2-2-2016

Hearing date 22-2-2016 Ballarat venue

Mr G. H. Schorel-Hlavka O.W.B.

Appeal 15-2502

Deponent: Mr G. H. Schorel-Hlavka O.W.B. 107 Graham Road, Viewbank 3084, Victoria admin@inspector-rikati.com

(Buloke Shire Council) Prosecutors legal representatives ES&a Lawyers

Page 55 (Revised format) AP 2502


Hearing date 22-2-2006 (or alternative date if allocated)
the legal processes and one may wonder if the Judicial Registrar/Magistrate could so to say
manage to run a kindergarten?

The State of Victoria abolished the right to make an unsworn statement.


See also Justification as to orders for cost. regarding confirming under oath a statement
made at the Bar table as to become evidence.
Evidence Act 1995 (Cth) Act No. 2 of 1995 as amended
QUOTE
25 Rights to make unsworn statements unaffected
This Act does not affect any right that a defendant in a criminal proceeding has under a law of a State
or a Territory to make an unsworn statement.
Note:
END QUOTE

The NSW Act has no equivalent provision for section 25.

Azzopardi v The Queen [2001] HCA 25 (3 May 2001)


QUOTE
9.

When, in the late nineteenth century, legislatures decreed that people accused of crime should have the
capacity to testify in their own defence, it was well understood that this would bring some consequences
that were potentially unfavourable to some accused persons. This understanding is reflected in the
reasoning of the various judges in R v Kops[12], a case decided soon after the 189 New South Wales
legislation. There was a well-founded apprehension that, when juries became aware that an accused person
was entitled to testify, there would, in some cases, be a practical compulsion to do so. A practical
compulsion to testify frequently arises from circumstances that have nothing to do with the problem now
under consideration. It may arise from the facts of a particular case, or the nature of an accused person's
defence. It may arise because of the accidental unavailability of a witness who could give evidence of some
fact important to the defence case. The existence of a practical compulsion to testify is not inconsistent with
the immunities which together make up the right of silence. Giving an accused the choice of making an
unsworn statement, and prohibiting judicial comment on the exercise of such a choice, was not a
satisfactory solution. Unsworn statements were sometimes abused, especially in sexual cases, where
complainants might be publicly vilified and humiliated by statements that could not be challenged or tested
in cross-examination. Juries came to know that an accused could give evidence on oath, if he or she wished
to do so. Judicial silence on the topic could leave an accused person exposed to unguided reasoning that
might be far more dangerous than the reasoning legitimately available.
10. The problem that arose, when accused persons were given the capacity to testify, concerned the onus of
proof. The onus remained on the prosecution; and the standard remained proof beyond reasonable doubt.
But there was a change in the forensic context. Lord Mansfield's maxim that "all evidence is to be weighed
according to the proof which it was in the power of one side to have produced, and in the power of the other
to have contradicted"[13] always applied to criminal as well as civil trials. It is exemplified by R v
Burdett[14], a case decided in 1820. However, it took on an altered significance when the power to
contradict extended to the power to contradict by sworn testimony of the accused.
11. To express the question as one concerning the probative significance of silence may be misleading. The
question concerns the significance of an accused's silence, either generally or on a particular subject, when
evaluating either the whole or part of the evidence. In the context of a jury trial, the question only arises if
the prosecution has established a case fit to go to the jury; that is to say, if there is evidence which, if
accepted by the jury, is capable of establishing the guilt of the accused beyond reasonable doubt. If that
condition is satisfied, then it is the task of the jury to evaluate the evidence for the purpose of deciding
whether it proves the guilt of the accused beyond reasonable doubt. A corresponding process of evaluation
must be undertaken by a magistrate dealing with a summary offence, or by a judge trying a case without a
jury. The silence of the accused cannot add to the evidence. Nor can it be treated as an implied admission of
guilt. But there are circumstances in which it can legitimately be used in the evaluation of evidence.
12. Between 1993 and 2000, trial judges, and intermediate appellate courts, bound by decisions of this Court,
looked to Weissensteiner for guidance as to the principles according to which, at a criminal trial, the silence
of an accused legitimately may be considered in evaluating some or all of the evidence in the case. In both
of the cases presently before the Court, the trial judges gave directions which were obviously based upon
the majority judgments in Weissensteiner. Courts of Criminal Appeal, bound by Weissensteiner, referred to
p55

2-2-2016

Hearing date 22-2-2016 Ballarat venue

Mr G. H. Schorel-Hlavka O.W.B.

Appeal 15-2502

Deponent: Mr G. H. Schorel-Hlavka O.W.B. 107 Graham Road, Viewbank 3084, Victoria admin@inspector-rikati.com

(Buloke Shire Council) Prosecutors legal representatives ES&a Lawyers

Page 56 (Revised format) AP 2502


Hearing date 22-2-2006 (or alternative date if allocated)
that decision in considering instructions to juries, and decisions of trial judges sitting without juries, and in
their own reasoning[15].
13. In the reasons of the majority in Weissensteiner, the focus of attention was the failure of an accused to
explain or contradict evidence. That expression, "explain or contradict", has been used repeatedly in this
context, at least since 1820, when it was used by Abbott CJ in R v Burdett[16].
14. In Weissensteiner, Mason CJ, Deane and Dawson JJ said[17]:
"We have quoted rather more extensively from the cases than would otherwise be necessary in order to
show that it has never really been doubted that when a party to litigation fails to accept an opportunity to
place before the court evidence of facts within his or her knowledge which, if they exist at all, would
explain or contradict the evidence against that party, the court may more readily accept that evidence. It is
not just because uncontradicted evidence is easier or safer to accept than contradicted evidence. That is
almost a truism. It is because doubts about the reliability of witnesses or about the inferences to be drawn
from the evidence may be more readily discounted in the absence of contradictory evidence from a party
who might be expected to give or call it. In particular, in a criminal trial, hypotheses consistent with
innocence may cease to be rational or reasonable in the absence of evidence to support them when that
evidence, if it exists at all, must be within the knowledge of the accused." (emphasis added)
15. It seems unlikely that, in the hypothetical case concerning the tattoo earlier considered, their Honours
would have rejected the proposition that the failure of the accused to deny that he had a tattoo on his left
arm could make it easier or safer to accept the evidence of the witness who testified to that effect. If they
would have done so, the language of the above passage is, to say the least, unguarded.
16. Brennan and Toohey JJ[18], after referring to the need for a jury to be properly instructed as to the onus of
proof, said:
"But the jury may draw inferences adverse to the accused more readily by considering that the accused,
being in a position to deny, explain or answer the evidence against him, has failed to do so." (emphasis
added)
17. In 2000, this Court decided RPS v The Queen[19]. The trial judge had directed the jury in terms which
evidently attempted to follow the majority judgments in Weissensteiner. There was an added feature in that
case. Section 20 of the Evidence Act applied. The applicant was given leave to raise, in this Court, a new
ground of appeal, concerning instructions given by the trial judge as to the significance which the jury
might properly attach to the appellant's failure to give evidence. This Court held that the instructions were
erroneous, and ordered a new trial. The criticisms went well beyond a conclusion that the instructions were
in some respects inconsistent with s 20. Those criticisms had potential application to trials before
magistrates, and before judges sitting without juries. They are, in my view, and with respect to those of a
contrary opinion, in some respects impossible to reconcile with the majority judgments in Weissensteiner.
18. The issue concerns the evaluation of evidence. The evidence against an accused may be direct, or
circumstantial, or partly direct and partly circumstantial. The problems of evaluating the evidence might
concern the reliability of particular witnesses, on the safety of drawing inferences from established facts, or
the reasonableness of competing hypotheses. In relation to such problems, the maxim stated by Lord
Mansfield in Blatch v Archer might be of significance. As the judgments in Weissensteiner recognised, that
significance could be diminished, and might sometimes be eliminated, by considerations which flow from
the circumstance that, at a criminal trial, there are reasons why it may be dangerous to treat an accused's
silence in the same way as one would treat the silence of a party to civil litigation. Those considerations
were taken into account in the majority judgments, and allowance was made for them. But they do not turn
upon the difference between direct and circumstantial evidence, or between facts already the subject of
evidence and additional facts, or between facts known only to the accused and other facts.
19. As a matter of logic, a rigid distinction between failure to contradict and a failure to explain, (a distinction
which is inconsistent with almost 200 years of authority), is difficult to sustain. Nor is it logical to
distinguish between commenting upon an accused's failure to give evidence and commenting on an
accused's failure to give an innocent explanation of some apparently incriminating fact or circumstance.
The lack of logic is even more evident if the occasion to make a comment of the second kind only arises
when the accused is the only person who would be likely to know of the innocent explanation, if it existed.
If that is the case, then the difference between failing to explain and failing to give evidence is purely
semantic.
20. There is, in my view, no justification for distinguishing between a failure to give or call evidence about
some additional fact and a failure to give or call evidence about some fact already the subject of evidence.
And there is no justification for limiting the occasion for comment to facts known only to the accused. How
does a trial judge, or a jury, know whether some fact is known only to the accused? There is a large
p56

2-2-2016

Hearing date 22-2-2016 Ballarat venue

Mr G. H. Schorel-Hlavka O.W.B.

Appeal 15-2502

Deponent: Mr G. H. Schorel-Hlavka O.W.B. 107 Graham Road, Viewbank 3084, Victoria admin@inspector-rikati.com

(Buloke Shire Council) Prosecutors legal representatives ES&a Lawyers

Page 57 (Revised format) AP 2502


Hearing date 22-2-2006 (or alternative date if allocated)
difference between saying that, if a certain fact existed, the accused would know of it, and saying that the
accused is the only person who knows the fact.
END QUOTE
Azzopardi v The Queen [2001] HCA 25 (3 May 2001)
QUOTE
71. In the course of his charge to the jury, the trial judge (Nield DCJ) told the jury, in unexceptionable terms,
that an accused may give evidence on his or her trial, but is not under any obligation to do so because the
prosecution bears the onus of proving beyond reasonable doubt the guilt of the accused of the offence or
offences with which the accused is charged. The judge went on, again in unexceptionable terms, to remind
the jury that because the appellant had decided not to give evidence, the jury
"must not think that he decided not to give evidence because he is, or believes himself to be, guilty of the
offence with which he stands charged. It would be completely wrong of you to think that. His decision not
to give evidence must not be thought by you to be an admission of guilt on his part. There may be many
reasons why an accused person may decide not to give evidence. I tell you, members of the jury, that you
must not speculate as to why the accused decided not to give evidence."
He went on to say, in the passage of his charge which now is impugned, that:
"However, members of the jury, when assessing the value of the evidence presented by the Crown, you are
entitled to take into account the fact that the accused did not deny or contradict evidence about matters
which were within his personal knowledge and of which he could have given direct evidence from his
personal knowledge. This is because, members of the jury, you may think that it is logic and common-sense
that, where only two persons are involved in some particular thing - the complainant and/or a witness and
the accused - so that there are only two persons able to give evidence about the particular thing, and where
the complainant's evidence or the witness's evidence is left undenied or uncontradicted by the accused, any
doubt which may have been cast upon that witness's evidence may be more readily discounted and that
witness's evidence may be more readily accepted as the truth."
72. The impugned passage of the judge's charge gave the jury instructions which cannot be reconciled with the
earlier instructions given to them. The jury were told, correctly, that the appellant bore no burden, onus or
obligation to prove anything. Yet, at the same time, by the impugned passage, the jury were invited to
conclude, from the fact that the appellant did not give evidence, that "any doubt which may have been cast
upon [the prosecution evidence] may be more readily discounted and [that evidence] may be more readily
accepted as the truth". That would be so if, and only if, the circumstances were such as to require response
by the appellant. Yet the judge had correctly told the jury that the law required no response from him.
END QUOTE

In the State of Victoria unsworn statement was abolished.


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 hold
that nevertheless where it issue orders against me (apart of being without jurisdiction) then I am
entitled to know on what legal consideration!
QUOTE In the Marriage of Tennant (1980) 5 FLR 777 at 780
As no grounds for appeal are required to be specified in the notice of Appeal, which, on filing institutes the
appeal (reg 122), there is no limitations of the scope of the appeal and all findings of fact and law made in the
lower court in relation to the decree appealed are in challenge 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 reason for the magistrates 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 their witnesses up, argue their case and attempt to
controvert the opposing case are entitled to know, if they lose, why they lost. If they are given no reason they
may be entitled to feel the decision against them was conceived in prejudice, bias, or caprice. In such a case
not only the litigant, but justice itself, is the loser.
p57 2-2-2016 Hearing date 22-2-2016 Ballarat venue Mr G. H. Schorel-Hlavka O.W.B.
Appeal 15-2502
Deponent: Mr G. H. Schorel-Hlavka O.W.B. 107 Graham Road, Viewbank 3084, Victoria admin@inspector-rikati.com

(Buloke Shire Council) Prosecutors legal representatives ES&a Lawyers

Page 58

(Revised format)

AP 2502

Hearing date 22-2-2006 (or alternative date if allocated)

Magistrates should realise, even more than they seem to do, that this class of business is not mere ordinary
trivial work, and they should deal with these cases with a due sense of responsibility which administrations of
the summary jurisdiction Act and the far reaching consequences of the orders that they make thereafter entail.
[Baker v Baker (1906) 95 LT 549; In Robinson v Robinson (1898) p135; and again in Cobb v Cobb (1900)
p145] it was stated that when making orders of this kind, from which lies an appeal to other courts, it is the duty
of the magistrate not only to cause a note to be made of the evidence, and of his decision, but to give the reasons
for his decision and to cause a note to be made of his reasons... Elaborate judgements are not required, but the
reasons which lead the magistrate to make his order must be explicitly stated.
END QUOTE

As elsewhere set out in this writing lawyers cannot misuse/abuse the sanctity of the Bar table to
make statements without being confirmed as evidence in the witness box as being unsworn
statements from the Bar table. Even an self-represented accused party must vacate the sanctity
of the bar table (stand aside) to be charges, be served with documents and/or and make any
unsworn statement (if the court were to permit any unsworn statement to be made) and yet we
have a party that engages a legal practitioner then to have benefits not provided to the selfrepresented litigant, in clear violation to the rule that every party is equal before the court.
Regretfully to my knowledge the judiciary has been bias to allow this gross abuse/misuse by
legal practitioners from the Bar table for decades and I view THIS MUST STOP!
As I have set out below as to the issue of cost, it violated the criminal burden of prove without
reasonable doubt where a lawyer merely claims a certain amount of documentation where the
court then issue orders as if the documentation was part of evidence beyond reasonable doubt
an in violation to the Hobsons Bay City Council v Viking Group Holdings Pty Ltd principle
also. It would be absurd in fact idiotic to hold that a Judicial Registrar/Magistrate in mere
seconds could have peruse the 200 odd pages the lawyers claimed to seek cost for as to judicially
determine if the writings did or didnt legally justify orders for cost in spite of the Hobsons Bay
City Council v Viking Group Holdings Pty Ltd principle. In my view the Judicial
Registrar/Magistrate involved should be suspended from adjudicating and be retrained to
learn/understand/comprehend the basic legal requirements involving legal processes/procedures
and in particular regarding criminal litigation.
Fraud by prosecutor nullifies prosecution case.
I understand that in the case of MORIATY v LONDON, CHATMAM & DOVER RY Queens
Bench 1870 L.R. 5 Q.B. 314;39 L.T.Q.B. 109;22 L.T. 163;34 J.P. 692;18 W.R. 625 in which the
plaintiff sued a railway company for personal injuries sustained and this plaintiff has gone about
suborning false evidence and it was held by the Court that even so the plaintiff would have had a
genuine and justify to case to sue normally, by the plaintiff conduct to suborn false evidence
this was seen by the Court that this conduct amounted to an admission that he had no case.
Corrsepondence file versus court file & WITHOUT PREJUDICE & Justification as to
orders for cost.
Hansard 20-4-1897 Constitution Convention Debates (Official Record of the Debates of the National
Australasian Convention)
QUOTE Mr. HIGGINS:
I think it is advisable that private people should not be put to the expense of having important
questions of constitutional law decided out of their own pockets.
END QUOTE

While according to an audio recording for which I scandalously was required to pay for to obtain
some information as to what transpired on 17 September 2015 at the Magistrates Court of
Victoria at St Arnaud that the legal representatives for Buloke Shire Council submitted for cost
regarding my writings, the Judicial Registrar/Magistrate appeared to immediately respond with
p58

2-2-2016

Hearing date 22-2-2016 Ballarat venue

Mr G. H. Schorel-Hlavka O.W.B.

Appeal 15-2502

Deponent: Mr G. H. Schorel-Hlavka O.W.B. 107 Graham Road, Viewbank 3084, Victoria admin@inspector-rikati.com

(Buloke Shire Council) Prosecutors legal representatives ES&a Lawyers

Page 59 (Revised format) AP 2502


Hearing date 22-2-2006 (or alternative date if allocated)
ordering cost submitted for this. This without that any evidence was filed to prove such writings
neither for the Judicial Registrar/Magistrate to consider the validity of the writings the legal
representatives claimed I had written. For what it might be worth they may have simply placed
empty pages of a ream of paper before them with placing some page on top claiming the lot was
written documentation by me, and the Judicial Registrar/Magistrate simply couldnt bother to
check if indeed this claim from the Bar table was justified. In my view the Judicial
Registrar/Magistrate ought to have indicated that as no evidence can be provided from the Bar
table if therefore the lawyer representing Buloke Shire Council was to give evidence under oath
from the witness box.
SCHOREL v. SCHOREL (1982) C 66117 of 1982 Unreported Transcript 11-3-82 and 12-3-82 before Emery SJ.

(In regard of the former husbands statements from the bar table earlier during the proceedings
about matters on the lists)
QUOTE Page 115: (Emery SJ examine-in-chief Mr Schorel in the witness box)
You made or gave me some information while you were standing at the bar table just a little while ago
about the two lists of furniture that your wife produced this morning, exhibits A and B. What you said
from the bar table is true, is that right?- - - That is correct, your Honour.
Yes. Well, that makes it all evidence that you have given instead of just a statement.
END QUOTE
.

The Judicial Registrar/Magistrate couldnt have had a clue if this correspondence was written
WITHOUT PREJUDICE or not and if so if the Defendant consented to it being used in court
as evidence.
No list of the alleged documents were filed either which prevents the accused therefore to check
if indeed the documentation referred claimed to have been written by him were in fact so.
Where documentation refers to constitutional issues then even if they were to be admitted as
evidence with consent or otherwise then the aforementioned legal principle embedded in the
constitution that a party shouldnt be out of pocket regarding constitution issues is relevant.
.

Because of the total failure from onset of Buloke Shire Council to itself comply with the legal
requirements of the Country Fire Authority Act 1958 then the court had to consider if the
content of each writings were justified or not and cannot order cost regarding writings which
points out, even if extensive, the breaches of law by Buloke Shire Council and/or its legal
representatives.
Maugham v. Hubbard Kings Bench: 1828 6 L.J (o.s.) K.B. 229
QUOTE
While a witness memory can be refreshed as to use a document written by him it must be realized that unless
the document so used is actually filed as an exhibit it (the document) itself is not part of evidence.
However a party that calls for inspection a document in the possession of another party is required then to use
it as evidence (See Wharam v. RoutledgeNisi Prius: 1805 5 Esp. 235:170 E.R. 797
END QUOTE

Because correspondence to the court doesnt form part of the court file but becomes part of the
correspondence file, then only if each particular the correspondence is filed as an exhibit can the
court consider it and again subject to the afore stated. It is totally irrelevant for criminal
proceedings if a party wrote hundreds of books and/or miles of reams of paper if they do not
form part of the case and have not been submitted as exhibits.
Qui inique non erit aequi - He who has committed iniquity, shall not have equity. Francis' Max., Max. 2.
Semper necessitas probandi incumbit qui agit. The claimant is always bound to prove: the burden of
proof lies on him.

And, if the legal representatives were to claim cost as to the writings then the court had to
consider the relevant and so the content of all the writings and the legal representatives therefore
were bound to submit to the court all Authorities relevant to the case. This is what they appeared
p59

2-2-2016

Hearing date 22-2-2016 Ballarat venue

Mr G. H. Schorel-Hlavka O.W.B.

Appeal 15-2502

Deponent: Mr G. H. Schorel-Hlavka O.W.B. 107 Graham Road, Viewbank 3084, Victoria admin@inspector-rikati.com

(Buloke Shire Council) Prosecutors legal representatives ES&a Lawyers

Page 60 (Revised format) AP 2502


Hearing date 22-2-2006 (or alternative date if allocated)
to conceal and as such the orders for cost were I view obtained by fraud/deception/concealment
and failing due process of law.

As in criminal matters the prosecutor must prove beyond reasonable doubt matters it cannot
be argued that somehow this doesnt apply to seeking orders for cost. In particular not where the
cost sought by far outstrip the cost of the fine.
Marriage of Baines (No. 2) (1981) 7 Fam LR 232 at 237;QUOTE
We recognise that each party is entitled to a Fair and Proper trial and to an adequate opportunity to adduce
relevant evidence and to test the quality and veracity of the evidence adduced by the other party.
END QUOTE
.

Legal practitioners and indeed so the judiciary must understand that to order cost in a criminal
matter merely upon the say so of a lawyer at the Bar table without that this lawyer takes the
witness box and can be duly cross-examine as to the cost claim and any material relied upon is
in itself a gross denial of justice. It denied equal accountability before the courts. It basically
allows a lawyer to misuse and abuse the sanctity of the Bar table to commit fraud and pervert the
course of justice.
OMYCHUND v BARKER (1744) Chancery 1 Atk, 21; Willes 538; 1 Wils K>B> 84; 26 E. R. 15
QUOTE LORD Hardwickle L.C.
Suppose a Heathen, not an alien enemy, should bring an action at common law, and the defendant should
bring for an injunction, would anybody say that the plaintiff at law should not be admitted to put in an answer
according to his own form of an oath? If otherwise, the injunction must be perpetual, and this would manifest
denial of justice
This falls in exactly with what Lord Strair, Puffendorf, etc say, that it has been the wisdom of all nations to
administer such oaths, as are agreeable to the notion of the person taking, and does not at all effect the
conscience of the person administering, nor does it in any respect adopt such religion: it is not near so much a
breaking in upon the rule of law, as admitting a person to be an evidence in his own cause
Upon the special circumstances of this case, I concur in opinion with my Lords the Judges, that the
depositions of those witnesses ought to be read as evidence in this cause, and do not therefore order that the
objection be overruled, and the depositions read.
END QUOTE
See also; Phipson 482, 483; Nokes 392 as to various modes to administer oaths to non-Christians.
R. v. Moore (1892) 61 L.J.M.C. 80 (C.C.R.), Nash v Ali Khan (1892) 8 T.L.R. 444 (C.A.), R.
v.Clark[1962] 1 W.L.R. 180 (C.C.A.)
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. He then
stated:
The application for legal costs is refused on the basis that I think that theyre disproportionate to the
criminality of the defendants conduct. I believe weve had this discussion in the past Mr Prosecutor, but the
same reasons apply. It seems to me to be unfair to award costs based on the defendants 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 the
defendant that incurs the additional liability of substantial costs based on who prosecutes. It strikes me as
unfair that an award of costs against the defendant when thieves, drug traffickers and other wrongdoers who
do far more harm than the defendant has, are not asked to pay costs. Additionally, citizens pay rates and taxes
for 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 the
criminality of the defendants conduct (sic). In the exercise of my discretion, the application for costs is
refused.[2]
END QUOTE Hobsons Bay City Council v Viking Group Holdings Pty Ltd [2010] VSC 386 (27 August 2010)

My attendance to any court hearings or purported court hearings is not intended and neither must
be perceived that I waive my objections. I rather am aware that what I view corrupt conduct by
the judiciary if I were not to attend, well within my legal rights, then the judicial officer more
than likely will use this against me no matter that in view of the OBJECTION TO
p60

2-2-2016

Hearing date 22-2-2016 Ballarat venue

Mr G. H. Schorel-Hlavka O.W.B.

Appeal 15-2502

Deponent: Mr G. H. Schorel-Hlavka O.W.B. 107 Graham Road, Viewbank 3084, Victoria admin@inspector-rikati.com

(Buloke Shire Council) Prosecutors legal representatives ES&a Lawyers

Page 61 (Revised format) AP 2502


Hearing date 22-2-2006 (or alternative date if allocated)
JURISDICTION I cannot be compelled to attend where it undermines some of the essence of
my OBJECTION TO JURISDICTION, which I continue to maintain throughout.

VACATING 22 February 2016 hearing at Ballarat venue.


In my view the court cannot proceed with any De Novo hearing on 22 February 2016 (as
directed by His Honour Mullaly J) for that I am not ready to proceed as I am still denied a copy
of the full brief of the proceedings that eventuated in the magistrates court of Victoria at st
Arnaud and still denied copies of sealed orders setting out the precise orders issued on 20 august
2015 and on 17 September 2015.
Also in view of the failure by Buloke Shire Council and its legal representatives to comply with
the order to serve the full brief by sending it by Australian Post by no later than 9 November
2015 then I view the matter should be returned to the Court for any further directions/orders.
It also would be an absurdity for the Court to pursue a De Novo hearing in violation of the
OBJECTION TO JURISDICTION as well as that the Court would be in no position to enforce
(not that I seek to concede this may be legally justifiable) the orders of the Magistrates Court of
Victoria at St Arnaud where I am still denied to even prepare my case (not that I concede the
OBJECTION TO JURISDICTION might fail)
As I also have refused to accept the NOTICE OF APPEARANCE by Buloke Shire Council
legal representatives which was filed out of time and without having applied for and obtained
any leaved to file and serve out of time a NOTICE OF APPEARNACE then I maintain that
Buloke Shire Council legal representatives had NO LEGAL STANDING to appear before His
Honour Mullaly J on 30 October 2015 and still has no business to appear before the court to
represent Buloke Shire Council. As I view counsel for Buloke Shire Council misled His Honour
Mullaly J on 30 October 2o015 as to claim from the Barf table yesterday and so conceal the
true date when the written request was received regarding the full brief/brief then this may
have constituted contempt in the face of the court and perverting the course of justice, and as
such should be dealt with before the court could deal with any other matters. The same should
apply with the failure to comply with the orders to server via Australian Post by no later than 9
November 2015 the full brief and also with the deceptive full brief date of 18 March 2013.
It should be understood that the OBJECTION TO JURISDICTION doesnt contain all legal
issues, this because even if the court were to dismiss my OBJECTION TO JURISDICTION
(Not that I seek to imply or concede this to eventuate) then the alleged evidence of Mr Wayne
Wall also will be subjected to a rigorous legal challenge. I have in the past during cross
examination of so called EXPERT WITNESSES proven that what they had stated in their
Affidavits and what actually turned out to be evidence before the court were distinctly different
circumstances.
I request that the 22 February 2016 ordered hearing at Ballarat is vacated.
Again any appearance by me to attend to any ordered hearing is not intended and neither
must be perceived I relinquish my objections.
This correspondence is not intended and neither must be perceived to state all issues/details.

Awaiting your response,

G. H. Schorel-Hlavka O.W.B. (Gerrit)

MAY JUSTICE ALWAYS PREVAIL


(Our name is our motto!)
END QUOTE 20160130-Schorel-Hlavka O.W.B. to Associate Mr Garry McIntosh to His Honour Mullaly J CCVRe APPEAL-15-2502 -Re Location Ballarat Venue-unsworn statement abolished-etc
QUOTE 20150914-Schorel-Hlavka O.W.B. to Magistrates Court of Victoria at St Arnaud cc ES&a LA-05-06-Re
Buloke Shire Council-PERSONAL APPEARANCE NOTREQUIRED-BIAS issues

Magistrates Court of Victoria at St Arnaud

14-9-2015

c/o the coordinator starnaudcoordinator@magistratescourt.vic.gov.au


p61

2-2-2016

Hearing date 22-2-2016 Ballarat venue

Mr G. H. Schorel-Hlavka O.W.B.

Appeal 15-2502

Deponent: Mr G. H. Schorel-Hlavka O.W.B. 107 Graham Road, Viewbank 3084, Victoria admin@inspector-rikati.com

(Buloke Shire Council) Prosecutors legal representatives ES&a Lawyers

Page 62 (Revised format) AP 2502


Hearing date 22-2-2006 (or alternative date if allocated)
Cc: Elliott Stafford and Associated lawyers@elliottstafford.com.au
Daniel Andrews Premier Victoria daniel.andrews@parliament.vic.gov.au
George Williams george.williams@unsw.edu.au
Re: 20150914 -Schorel-Hlavka O.W.B. to Magistrates Court of Victoria at St Arnaud
cc ES&a LA-05-06-Re Buloke Shire Council-PERSONAL APPEARANCE NOT REQUIRED-BIAS issues

Sir/Madam,
in law the fact that a party is or is not legally represented by a legal practitioner cannot
give the person any different right, in that the court cannot give favouritism to legal practitioners.
Having appeared for about 4 decades at the Bar table I am too well aware that judges tend to give
special allowances to legal practitioners and their staff not provided to unrepresented parties.
I am however aware that when one makes an objection to a judicial officer one must provide
grounds and then the judicial officer must rule upon this as to if there is a bias or implied bias as
that from the point of view of an FAIR MINDED PERSON. On that basis I provide a set out
below for this also. Also as to why personal appearance is not required by a person when
having objected to the jurisdiction of a court.
On 16 August 2015 I forwarded via email to the Magistrates Court of Victoria at St Arnaud my
16 August 2015 correspondence to which the Court never replied upon not even acknowledged
the correspondence(s) then or since then. In my submission there is something wrong and
drastically need to be attended to stop this scandalous/bias conduct. As a party to proceedings
having made an OBJECTION TO JURISDICTION I was at least entitled to have the court
confirming it had received this correspondence.
I will quote the correspondence:
QUOTE 16-8-2015 CORRESPONDENCE

Magistrates Court of Victoria at St Arnaud

16-8-2015

c/o the coordinator starnaudcoordinator@magistratescourt.vic.gov.au


Cc:

Elliott Stafford and Associated lawyers@elliottstafford.com.au


Buloke Shire Council buloke@buloke.vic.gov.au
Daniel Andrews Premier Victoria daniel.andrews@parliament.vic.gov.au
George Williams george.williams@unsw.edu.au
Cr Reid Mather (Mayor) MALLEE WARD crmather@buloke.vic.gov.au
Cr David Pollard (Deputy Mayor) LOWER AVOCA WARD crpollard@buloke.vic.gov.au
Cr Leo Tellefson MOUNT JEFFCOTT WARD crtellefson@buloke.vic.gov.au
Cr Stuart McLean LOWER AVOCA WARD crmclean@buloke.vic.gov.au
Cr Graeme Milne MOUNT JEFFCOTT WARD crmilne@buloke.vic.gov.au
Cr Gail Sharp MOUNT JEFFCOTT WARD crsharp@buloke.vic.gov.au
Cr Ellen White, MALLEE WARD, crwhite@buloke.vic.gov.au
Re: 20150816 -Schorel-Hlavka O.W.B. to Magistrates Court of Victoria at St Arnaud
cc ES&a LA-05-06-Re Buloke Shire Council- LSC-COM-2015-0873

Sir/Madam,

I indicated to (Buloke Shire Council) the prosecutor s legal representatives to have the
matter without conceding jurisdiction transferred to the Magistrates Court of Victoria at
Heidelberg, which is about 4 kilometres from my residence, also considering that ES&a Lawyers
are located in Clifton Hill (Melbourne).
Due to health conditions concerning my wife as well as myself having become ill it is unlikely I
could attend on 20 August 2015 to the court in St Arnaud. I request hereby that the matter,
without that I concede jurisdiction is transferred to the Magistrates Court of Victoria at
Heidelberg. I may also raise the issue that St Arnauds court location only sits on Thursdays,
whereas at Heidelberg I understand it sits every day. As I enclose hereby a copy of my
ADDRESS TO THE COURT that includes an OBJECTION TO JURISDICTION then the
matter could in my view not be heard and determined on 20 August 2015.

p62

2-2-2016

Hearing date 22-2-2016 Ballarat venue

Mr G. H. Schorel-Hlavka O.W.B.

Appeal 15-2502

Deponent: Mr G. H. Schorel-Hlavka O.W.B. 107 Graham Road, Viewbank 3084, Victoria admin@inspector-rikati.com

(Buloke Shire Council) Prosecutors legal representatives ES&a Lawyers

Page 63 (Revised format) AP 2502


Hearing date 22-2-2006 (or alternative date if allocated)
I submit that it wouldnt be appropriate to argue legal issues that may take more than likely more
than a day in a court location that only sits once a week. It would be an injustice to because to
travel time and time again to St Arnaud for this.
See the document 20150820-ADDRESS TO THE COURT-in the matter Buloke Shire
Council v Schorel-Hlavka that will be attached to the same email as this correspondence.
I look forwards to your confirmation that the matter has been transferred to the Magistrates Court
of Victoria at Heidelberg and so the attached ADDRESS TO THE COURT.

This correspondence is not intended and neither must be perceived to state all issues/details.
Awaiting your response,
G. H. Schorel-Hlavka O.W.B. (Gerrit)

MAY JUSTICE ALWAYS PREVAIL


Our name is our motto!)

END QUOTE 16-8-2015 CORRESPONDENCE

One Thing I often came across is that legal Practitioners (mind you OFFICERS OF THE
COURT) would deceptively claim that they never received the email) and so I sure to forward a
copy to myself at the same time I sent it out, as evidence to disprove the fraudulent claims.
The following is an electronic copy of the email that was sent out.
QUOTE 16-8-2015 EMAIL 9,30pm

see attachments Re Buloke Shire Council v Schorel-Hlavka 20-8-2015


From

Mr G. H. Schorel-Hlavka O.W.B.

To

starnaudcoordinator@magistratescourt.vic.gov.au

Cc

admin@inspector-rikati.com
buloke@buloke.vic.gov.au
,
george.williams@unsw.edu.au
crpollard@buloke.vic.gov.au
crmclean@buloke.vic.gov.au
crwhite@buloke.vic.gov.au

Reply-To

admin@inspector-rikati.com

Date

2015-08-16 21:30

, lawyers@elliottstafford.com.au
,
daniel.andrews@parliament.vic.gov.au
,
, crmather@buloke.vic.gov.au
,
, crtellefson@buloke.vic.gov.au
,
, crmilne@buloke.vic.gov.au
, crsharp@buloke.vic.gov.au

20150816 -Schorel-Hlavka O.W.B. to Magistrates Court of Victoria at St Arnaud cc ES&a LA-05-06Re Buloke Shire Council- LSC-COM-2015-0873.pdf

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


Magistrates Court of Victoria at St Arnaud

16-8-2015

c/o the coordinator starnaudcoordinator@magistratescourt.vic.gov.au


Cc:

Elliott Stafford and Associated lawyers@elliottstafford.com.au


Buloke Shire Council buloke@buloke.vic.gov.au
Daniel Andrews Premier Victoria daniel.andrews@parliament.vic.gov.au
George Williams george.williams@unsw.edu.au

Cr Reid Mather (Mayor) MALLEE WARD crmather@buloke.vic.gov.au


Cr David Pollard (Deputy Mayor) LOWER AVOCA WARD crpollard@buloke.vic.gov.au
p63 2-2-2016 Hearing date 22-2-2016 Ballarat venue Mr G. H. Schorel-Hlavka O.W.B.

Appeal 15-2502

Deponent: Mr G. H. Schorel-Hlavka O.W.B. 107 Graham Road, Viewbank 3084, Victoria admin@inspector-rikati.com

(Buloke Shire Council) Prosecutors legal representatives ES&a Lawyers

Page 64 (Revised format) AP 2502


Hearing date 22-2-2006 (or alternative date if allocated)
Cr Leo Tellefson MOUNT JEFFCOTT WARD crtellefson@buloke.vic.gov.au
Cr Stuart McLean LOWER AVOCA WARD crmclean@buloke.vic.gov.au
Cr Graeme Milne MOUNT JEFFCOTT WARD crmilne@buloke.vic.gov.au
Cr Gail Sharp MOUNT JEFFCOTT WARD crsharp@buloke.vic.gov.au
Cr Ellen White, MALLEE WARD, crwhite@buloke.vic.gov.au
Re: 20150816 -Schorel-Hlavka O.W.B. to Magistrates Court of Victoria at St Arnaud
cc ES&a LA-05-06-Re Buloke Shire Council- LSC-COM-2015-0873

Sir/Madam,
see attachments
20150816 -Schorel-Hlavka O.W.B. to Magistrates Court of Victoria at St Arnaud cc ES&a LA-05-06-Re
Buloke Shire Council- LSC-COM-2015-0873 &
20150820-ADDRESS TO THE COURT-in the matter Buloke Shire Council v Schorel-Hlavka
--

Mr G. H. Schorel-Hlavka O.W.B.
MAY JUSTICE ALWAYS PREVAIL
107 Graham Road
Viewbank 3084, Victoria, Australia
Author of INSPECTOR-RIKATI books on certain constitutional and other legal issues.
THE MORAL OF A SOCIETY CAN BE MEASURED BY HOW IT PROVIDES FOR THE DISABLED

END QUOTE 16-8-2015 EMAIL 9.30pm

Therefore, it can be verified that the correct email addresses were used.
While Buloke Shire Council legal representatives ES&a Lawyers also have in my view the same
scandalous conduct not to acknowledge having received correspondence when they are received
the fact they did receive it, albeit refer to 17 August 2015 (the date to which it may have
attended to the email,) instead of 16 August 2015 being the date on which it was sent out,
nevertheless indicates by way of 2 September 2015 that it was received as well as that it
acknowledged the issue of OBJECTION TO JURISDICTION being submitted to the court.
END QUOTE 20150914-Schorel-Hlavka O.W.B. to Magistrates Court of Victoria at St Arnaud cc ES&a LA-0506-Re Buloke Shire Council-PERSONAL APPEARANCE NOTREQUIRED-BIAS issues
QUOTE 20150912 -Schorel-Hlavka O.W.B. to Magistrates Court of Victoria at St Arnaud cc ES&a LA-05-06-Re
Buloke Shire Council

see attachments ADDRESS TO THE COURT &


20150912 -Schorel-Hlavka O.W.B. to
Magistrates Court of Victoria at St Arnaud cc
ES&a LA-05-06-Re Buloke Shire Council
From

Mr G. H. Schorel-Hlavka O.W.B.

To

starnaudcoordinator@magistratescourt.vic.gov.au

Cc

admin@inspector-rikati.com
, lawyers@elliottstafford.com.au
,
daniel.andrews@parliament.vic.gov.au
, george.williams@unsw.edu.au

Reply-To

admin@inspector-rikati.com

Date

2015-09-11 16:40

p64

2-2-2016

Hearing date 22-2-2016 Ballarat venue

Mr G. H. Schorel-Hlavka O.W.B.

Appeal 15-2502

Deponent: Mr G. H. Schorel-Hlavka O.W.B. 107 Graham Road, Viewbank 3084, Victoria admin@inspector-rikati.com

(Buloke Shire Council) Prosecutors legal representatives ES&a Lawyers

Page 65

(Revised format)

AP 2502

Hearing date 22-2-2006 (or alternative date if allocated)

20150912 -Schorel-Hlavka O.W.B. to Magistrates Court of Victoria at St Arnaud cc ES&a


LA-05-06-Re Buloke Shire Council.pdf
20150917-ADDRESS TO THE COURT-in the matter Buloke Shire Council v Schorel-Hlavka
also Re OBJECTION TO JURISDICTION.pdf

Magistrates Court of Victoria at St Arnaud


2015

12-9-

c/o the coordinator starnaudcoordinator@magistratescourt.vic.gov.au

Cc:

Elliott Stafford and Associated lawyers@elliottstafford.com.au


Daniel Andrews Premier Victoria daniel.andrews@parliament.vic.gov.au
George Williams george.williams@unsw.edu.au

Re: 20150912 -Schorel-Hlavka O.W.B. to Magistrates Court of Victoria at St Arnaud


cc ES&a LA-05-06-Re Buloke Shire CouncilSir/Madam,

see attachment ADDRESS TIO THE COURT & 20150912 -Schorel-Hlavka O.W.B. to Magistrates Court of
Victoria at St Arnaud cc ES&a LA-05-06-Re Buloke Shire Council

--

Mr G. H. Schorel-Hlavka O.W.B.
MAY JUSTICE ALWAYS PREVAIL
107 Graham Road
Viewbank 3084, Victoria, Australia
Author of INSPECTOR-RIKATI books on certain constitutional and other legal issues.
THE MORAL OF A SOCIETY CAN BE MEASURED BY HOW IT PROVIDES FOR THE DISABLED

END QUOTE 20150912 -Schorel-Hlavka O.W.B. to Magistrates Court of Victoria at St Arnaud cc ES&a LA-0506-Re Buloke Shire Council

It is clear from the last quoted document the 12 September 2015 email that the ADDRESS TO
THE COURT for the 17 September 2015 hearing had been emailed to the court.
Also the correspondence 20150916-Schorel-Hlavka O.W.B. to Magistrates Court of Victoria at
St Arnaud cc ES&a LA-05-06-Re Buloke Shire Council-Ill health to travel-etc notified the
court as well as Buloke shire Council and its legal representatives that I was too ill to travel.
The correspondence 20150915-Schorel-Hlavka O.W.B. to Magistrates Court of Victoria at St
Arnaud cc ES&a LA-05-06-Re Buloke Shire Council-Court to reserve judgement referred to
judgment to be reserved, which neither was done.

p65

2-2-2016

Hearing date 22-2-2016 Ballarat venue

Mr G. H. Schorel-Hlavka O.W.B.

Appeal 15-2502

Deponent: Mr G. H. Schorel-Hlavka O.W.B. 107 Graham Road, Viewbank 3084, Victoria admin@inspector-rikati.com

(Buloke Shire Council) Prosecutors legal representatives ES&a Lawyers

Page 66 (Revised format) AP 2502


Hearing date 22-2-2006 (or alternative date if allocated)
I should be understood that a person may say reside in Queensland and an Infringement Notice
might be issued against this person, say for $245.00. The person makes an OBJECTION TO
JURISDICTION that in the persons view the court has no jurisdiction. Why on earth should a
person have to travel from Queensland at huge time and cost as a multiple cost then the
Infringement Notice might be and then just to challenge the jurisdiction of the court? Obviously,
when the person does make an OBJECTION TO JURISDICTION than this is specifically to
avoid the person having to engage in expensive traveling and overnight accommodation cost.
The court must provide for a system where any objector can do so by correspondence and then it
is up to the prosecutor to so to say accept the challenge and prove jurisdiction or to discontinue
the charge/Infringement Notice. The current system seems to ignore a common sense solution
and Infringement Notices do not provide for an OBJECTION TO JURISDICTION. It seeks to
place the onus upon the accused to choose to go to court. This to me is utter and sheer nonsense.
While His Honour Mullaly J so much referred to not wanting to waste the courts time, reality is
that considerable amounts of court time is wasted by vexatious Infringement Notices and other
charges. There was this reported incident where more than 2,000 NSW motorist in error had been
issued with an Infringement Notice having allegedly driven without payment on Tullamarine
Freeway this even so none had done so. It seems the wrong data bank was accessed and so more
than 2,000 innocent NSW motorist were issued with Infringement Notices. This absurdity
underlines that the courts should not be allowing this kind of nonsense to occupy court time. The
onus must be upon the enforcement agency to prove it has jurisdiction. , when so challenged.
And not that the courts as part of the Business Unit 19 willingly go along with an elaborate
fraud against innocent citizens.
After all, if a motorist challenge the jurisdiction of the court on basis the person never say was in
the State of Victoria neither the vehicle owned by this person then the enforcement agency
may realise it made an error and rectify this immediately. However, as the current system stands
the courts will in disregard of the true circumstances order whatever to so to say please the
enforcement agency as I view like the appeasement of the British government to Adolf Hitler
regarding Czechoslovakia. Appeasement will only make the system worse.
As I canvassed in past writings a council issued me with a Infringement Notice for exceeding 3
hours parking, this even so by their own records I have been recorded having parked for 2 hours
and 29minuites. While it took a lot of writing to get the lawyers finally to understand that 2 hours
and 29 minutes is less than 3 hours, other motorist who copped the same may have ended up
paying lacking sufficient guts and determination to take on the council. As the then Perin Court
Registrar made known that 95% of people would pay up because it was cheaper then losing a
days pay. Still to me this is extortion and the courts are willingly cooperating with this. The
government can afford hiring expensive lawyers who will get paid from taxation while the poor
innocent accused person has so to say hope in hell to engage an expensive lawyer but face the
cost of paying for the other party. After all Buloke Shire Council legal representatives proved
this on 17 September 2015 that without a shred of evidence the court was willing to order
$1,651.00 cost merely on the say so of the lawyer at the Bar table. Whereas His Honour Mullaly
J on 30 October 2015 made clear that I was not entitled to cost representing myself. And this I
view underlines what I consider the corruption in the courts. After all regardless if as a
CONSTITUTIONALIST and (retired) Professional Advocate I represent myself or a lawyer in
the end there ought to be no iota of different to me being able to charge for representation. This is
underlined with the Legal service commissioner v H.J. Johnson QC where I represented Mr H. J.
Johnson QC on 4 occasions. In that case Mr H. J. Johnson QC had represented himself in
personal litigation matters and it was held that nevertheless he representing himself was bound
by the so called code of ethics and so should not have criticised fellow lawyers. It would be utter
and sheer nonsense to hold that a legal practitioner when representing himself in personal
litigation nevertheless can be held accountable as much as he represents some other party but
cannot charge for such representation.
p66

2-2-2016

Hearing date 22-2-2016 Ballarat venue

Mr G. H. Schorel-Hlavka O.W.B.

Appeal 15-2502

Deponent: Mr G. H. Schorel-Hlavka O.W.B. 107 Graham Road, Viewbank 3084, Victoria admin@inspector-rikati.com

(Buloke Shire Council) Prosecutors legal representatives ES&a Lawyers

Page 67 (Revised format) AP 2502


Hearing date 22-2-2006 (or alternative date if allocated)
While there are lawyers who claim to be constitutional lawyers an oxymoron because it is
contradiction as a lawyer seeks to twist and infringe upon legislative provisions such as to try to
have his client succeeding in a case whereas a constitutionalist is bound by the true meaning and
application of the constitution and so any legislation validly enacted within the ambit of the
constitution.

It doesnt matter if a person may perceive that this alleged fire notice issue is a mere so to say
hick up or not. What is in issue is what appears to me the corrupt conduct of the courts
themselves. This also to allow the misuse and abuse of the Bar table by members of the legal
profession unabated.
His Honour Mullaly J derogative comments to my person on 30 October 2015 without a shred of
evidence before His Honour Mullaly J to legally justify such comments so to say may
underline how low the courts and so its legal proceedings have gone down the gutter.
The irony is that the courts are adjudicate on cases of workplace bullying and yet I view this
was what His Honour Mullaly J engaging in when he was so to say overboard in his verbal attack
upon my person. While I am accustomed albeit I do not approve of this kind of behaviour to be
part of the judiciary it surely should be stopped! Ordinary citizens facing this kind of derogative
comments may feel intimidated and may as result be fearing to present their case or simply be
unable to do so. This time however so to say His Honour Mullaly J picked upon the wrong
person! Perhaps His Honour Mullaly J has some anger management problem or other complex
against a person representing himself and needs badly some medical or other assistance to assist
him to deal with that. It may be stated that His Honour Mullaly J appeared to so to say change his
tune after reading the ADDRESS TO THE COURT and appeared to refer to it as being
impressive. As such had His honour Mullaly J acted judicially appropriate and from onset
considered the content of the ADDRESS TO THE COURT then His Honour Mullaly J could
have avoided this ugly scene and could have acted more competently in dealing with the matters
before the court.
While not seeking to condone the conduct of His Honour Mullaly J in any way by hindsight it
served me to expose this rot within the judiciary, as I understand this is a common practice by
judicial officers to intimidate self-represented parties appearing before the courts.
Not uncommon judges over the decades have asked me if they had the judicial powers to issuer
certain orders, this because they recognised that often I am more superior in knowledge to
relevant legal issues then they or the opponent lawyers are. And this was also the basis by a
Queens Counsellor to argue that the Court was not required to follow proper legal procedures
against me because of my extensive knowledge. Just that the Full Court held that no matter my
extensive knowledge I was entitled as anyone else that proper legal procedures were followed by
a judge.
With the obstruction by Buloke Shire Council so its legal representatives as well as Premier
Daniel Andrews and others to comply with legal requirements I submit that no proceedings can
lawfully be held.
For any jurisdictional hearing the court must ensure that the Prosecutor provide all relevant
details including FOI requested details/information.
The irony might be that purportedly the Prosecutor is taking me on alleged failure to comply with
the rule of law where in fact it is the Prosecutor who should be facing the legal consequences for
blatant disregard of legal requirements and deliberately acting in violation of legal requirements.
It would be utterly wrong to hold that the matter has blown out of proportion that this was a mere
alleged fire prevention issue, as no matter what a matter might be the courts themselves must
maintain a proper lawful conduct within the true meaning and application of the constitution
(Commonwealth of Australia Constitution Act 1900 (UK)) and if the general community cannot
have any confidence in the independence and/or impartiality of the judicial system then no one
can be certain if he/she next can be robbed of their constitutional rights.
p67

2-2-2016

Hearing date 22-2-2016 Ballarat venue

Mr G. H. Schorel-Hlavka O.W.B.

Appeal 15-2502

Deponent: Mr G. H. Schorel-Hlavka O.W.B. 107 Graham Road, Viewbank 3084, Victoria admin@inspector-rikati.com

(Buloke Shire Council) Prosecutors legal representatives ES&a Lawyers

Page 68 (Revised format) AP 2502


Hearing date 22-2-2006 (or alternative date if allocated)
As I have extensively canvassed also the impartial administration of justice cannot exist
where the purported Infringement Act 2006 is one where the Government and its appointed
enforcement agencies are those who only can pursue matters in clear violation of having a
purported Infringement court that can hand out orders/warrants like lollies and innocent
persons are then subjected to what I view is nothing less than government sponsored terrorism
instead of having their constitutional rights provided for such as the legal principle embedded in
the constitution:
Hansard 8-2-1898 Constitution Convention Debates
QUOTE
Mr. OCONNOR.-No, it would not; and, as an honorable member reminds me, there is a decision on the
point. All that is intended is that there shall be some process of law by which the parties accused must be
heard.
Mr. HIGGINS.-Both sides heard.
Mr. OCONNOR.-Yes; and the process of law within that principle may be [start page 689] anything
the state thinks fit. This provision simply assures that there shall be some form by which a person
accused will have an opportunity of stating his case before being deprived of his liberty. Is not that a
first principle in criminal law now? I cannot understand any one objecting to this proposal.
END QUOTE

Each time a judge goes along with the enforcement of the Infringement Court orders/warrants the
judge makes a cardinal error of his judicial obligations to support an unconstitutional legislation
and an unconstitutional court system that undermines the independence/impartiality of the
judiciary.
HANSARD 9-2-1898 Constitution Convention Debates
QUOTE
Mr. HIGGINS.-No, because the Constitution is not passed by the Parliament.
END QUOTE

Therefore as I indicated above the purported Victorian Constitution Act 1975 is unconstitutional.
Since federation the Colonial Sovereign Parliaments had become State constitutional Parliaments
and no longer was it within the ambit of power of the parliament to amend and/or create its own
constitution. Hence the purported Victorian constitution act 1975 is ULTRA VIRES.
Surely it would therefore be important for any judicial officer to first ascertain what is the true
State constitution and if this is still the 1855 colonial constitution but subject to the provisions of
the Commonwealth of Australia Constitution Act 1900 (UK) then the judiciary must declare so.
And if this means that particular legislative provisions are beyond the powers of the State
Parliament then the judiciary has a duty to declare this,
It is my submission that any judicial officer who cannot bother to ascertain what is
constitutionally applicable is not fit to be a judicial officer!
I didnt seek any litigation but when someone so to say enter my private space and seeks to deny
me my constitutional rights then I for one will not be silenced.
The litigation by Buloke Shire Council (for and on behalf of the State of Victoria) and its legal
representatives as well as by the state of Victoria itself has been a litany of errors, defiance of
legal provisions and even court order. And they purport to crucify me for an alleged offence that
in reality never existed? And this is what the judiciary is to condone and join into?
Surely there must be at least one judicial officer who can apply if anything common sense and
will take appropriate action to expose the rot for all it is?
As I understand it there are many who contemplate and indeed succeed in suicide because they
held they were robbed of justice in the courts. The image of the judiciary has been tainted by the
litany of abuses/misuses by the judiciary itself as the then Supreme Court of Victoria Phillips J is
on record to have made known about the Business Unit 19 status.
The judiciary must throw of the cloak of government interference and make a robust stand to
adhere but only to the rule of law within the ambit of the legal principles embedded in the
Commonwealth of Australia Constitution Act 1900 (UK).
p68

2-2-2016

Hearing date 22-2-2016 Ballarat venue

Mr G. H. Schorel-Hlavka O.W.B.

Appeal 15-2502

Deponent: Mr G. H. Schorel-Hlavka O.W.B. 107 Graham Road, Viewbank 3084, Victoria admin@inspector-rikati.com

(Buloke Shire Council) Prosecutors legal representatives ES&a Lawyers

Page 69

(Revised format)

AP 2502

Hearing date 22-2-2006 (or alternative date if allocated)

Because I have a habit to inspect the court files, well aware that far too often the court files
contain documents unbeknown to the other party as the party filing it failed to serve it on the
other party, and also that I have first-hand knowledge by exposing it in court during hearings
how Affidavits have been tampered with without having been re-sworn/re-affirmed and as such
during cross-examination of witnesses it eventuated that the differences in content was exposed
and upon close inspection of the trail judge copy (the original) found up to 8 amendments a page
having been made without the Affidavit having been re-sworn and neither made known to the
other party. Also where the Court was provided with the Original and then I exposed that the
purported copy of the Affidavit in fact contained a complete different version! There are
numerous other problems with the court system that I wonder if they could even competently run
a kindergarten. The problem is however that for a judge upon the file before him/her the reason
of judgment might be justified in law, whereas to the unsuspected aggrieved party it was a
ridiculous judgment. This, because the legal representatives having hoodwinked the court into
having a file with details totally different then what is known to the aggrieved party.
When the courts cannot even manage fair and proper legal proceedings then surely it badly needs
an overhaul. Ordinary members of the legal profession cannot afford to criticise this
dysfunctional court system as Mr H. J. Johnson Q.C discovered you cannot criticise the system,
whereas I am not an OFFICER OF THE COURT and so have no such alliance and can
robustly expose it all for what it is.
Never mind my self-professed crummy English what is important is that I pursue the true
meaning and application of the constitution, which I view not only every politician but certainly
ever judicial officer should do!
In my view there is a cancerous growth within the court system and this needs to be badly
removed as it undermines the confidence of the general community in the judiciary.
If the proceedings are Buloke Shire Council as agency then it has a conflict of interest in
that it cannot both represent rate payers (As commonly albeit wrongly referred to) as well as
the State interest.
When however we have a judiciary to facilitate legal practitioners to have a direct contact ability
with it and so a party represented by members of the legal profession then have a better standing
than a party not represented by members of the legal profession then this underlines who much in
grounded the denial of impartiality exist in the judicial system. And where over a period of 3
months the Court cannot even manage to provide its physical address of the Ballarat court room
then one has to ask how competent is it to adjudicate when it cannot manage such a simple issue?
Even if this court were to now decide it will hold a jurisdictional hearing (and considering the
denial of details by the Prosecutor (including the State of Victoria) the enormous gross denial
of justice has already been inflicted upon me, by the protracted litigation that should have been
avoided from onset, prevents me currently to prepare for any full blown hearing.
If this court determines that the Fire Prevention Notice was invalid then it cannot invoke
any jurisdiction other than to dismiss the summons charge for want of jurisdiction and
provide with it orders for exemplary cost in my favour as a way to indicate to the
Prosecutor that it must act responsible and not use the judicial system for
unethical/unlawful purposes, etc. A proper reason of judgment is required for this!
It should not be ignored that where I can expose this litany of legal abuses, etc, then one has to
wonder how many other cases are likewise eventuating but the aggrieved person simply lacks the
ability/knowledge/etc to stand up for himself/herself to expose it all?
Because there is to my knowledge no evidence on the court record that the OBJECTION TO
JURISDICTION was dismissed and neither any records of any reason of judgment setting out
the legal grounds as to why the OBJECTION TO JURISDICTION was dismissed then that on
p69

2-2-2016

Hearing date 22-2-2016 Ballarat venue

Mr G. H. Schorel-Hlavka O.W.B.

Appeal 15-2502

Deponent: Mr G. H. Schorel-Hlavka O.W.B. 107 Graham Road, Viewbank 3084, Victoria admin@inspector-rikati.com

(Buloke Shire Council) Prosecutors legal representatives ES&a Lawyers

Page 70 (Revised format) AP 2502


Hearing date 22-2-2006 (or alternative date if allocated)
its own is sufficient to accept that there was a clear failure by the Magistrates court of Victoria at
St Arnaud to deal with matters in a lawful manner.

The following Audio files can be provided regarding the 30 October 2015 hearing before His
Honour Millaly J, which are not included in this email due to the large size of each file.
20151030-CCV-Mullaly J-01 Track 1 11.2MB
20151030-CCV-Mullaly J-02 Track 2 13.5MB
The audio tape of the 17 September 2015 Magistrates Court of Victoria 17 September 2015
hearing so far resisted to be copied.
This written submission is not intended and neither must be perceived to address all relevant
issues and oral supplement may be made. After all it is unknown to me what, if any, other matter
may arise before the hearing is held.
Appellant

p70

2-2-2016

G. H. Schorel-Hlavka O.W.B.

Hearing date 22-2-2016 Ballarat venue

Mr G. H. Schorel-Hlavka O.W.B.

Appeal 15-2502

Deponent: Mr G. H. Schorel-Hlavka O.W.B. 107 Graham Road, Viewbank 3084, Victoria admin@inspector-rikati.com

(Buloke Shire Council) Prosecutors legal representatives ES&a Lawyers

S-ar putea să vă placă și