Is the Supreme Court Valid under the Constitution?

Thursday , 10, December 2015 Leave a comment


Case Study of :

Shaw v Attorney-General for the State of Victoria [2011] VSCA 63 (4 February 2011)

Shaw a declared vexatious litigant tries to argue  in an Application to disqualify judge,  the Court held there was No arguable basis for disqualification.

Shaw then tries to argue Whether leave should be granted to commence proceeding (being a declared vexatious litigant he requires leave (permission) from the Court.  In this case he would need to satisfy the Court  that proceeding would not be an abuse of process.

The Court finds his Contentions unintelligible in law,  the Applicant does not recognise Court as validly-constituted court.

Extract :

“One form of abuse of process is commencing a proceeding which has no prospect of success, that is, is hopeless or, as his Honour said, is ‘foredoomed to fail’. Where a proceeding has no legal merit whatsoever, it would be a waste of the Court’s time to have to deal with it.

The reason for that requirement in the Supreme Court Act is obvious enough. A person is declared a vexatious litigant when the Court has been persuaded, on the application of the Attorney-General, that the person has persistently engaged in litigation of a vexatious or hopeless kind.

Beach J concluded, for reasons which his Honour gave, that the proceeding proposed by Mr Shaw was hopeless, that it was without legal merit and was therefore foredoomed to fail. Mr Shaw had failed all together to satisfy him that the proposed proceeding would not be an abuse of process. His Honour came to precisely the opposite conclusion, namely that the proposed proceeding would be an abuse of process and accordingly that he was bound by law to refuse the application.

It is important to point out that the characterisation of the proposed proceeding as ‘an abuse of process’ does not suggest that Mr Shaw is not genuine in his concerns. It is clear enough from the way he presents his argument, both orally and in writing, that he believes passionately in the matters which he argues. Nor does the conclusion imply that Mr Shaw is acting dishonestly or improperly or deceitfully. The question, quite simply, is whether the proposed proceeding has any legal merit. As I have said, this Court has to focus on those matters which do have merit and not spend time on those that do not.

The difficulty (and it is insoluble) is that Mr Shaw and those in court supporting him are very firmly – passionately – of the view that his arguments do have legal merit and, moreover, that this Court should entertain them. That is a problem to which the Supreme Court can provide no solution, as none of the arguments proposed by Mr Shaw has any legal merit at all, and this Court has no jurisdiction to consider the kinds of matters that Mr Shaw wants to ventilate.

This is just the latest in a series of rulings by different judges expressing essentially the same view, that the arguments advanced by Mr Shaw are legally unintelligible. His propositions do not engage any of the principles of law which this Court is bound to apply. Applying those rules, Beach J was entirely correct and I would therefore refuse leave to appeal.

So far as Byrne v Armstrong is concerned, a difficulty for Mr Shaw is that that decision was overruled in Re Shaw & Anor. However, Mr Shaw counters by saying that the Court is “estopped” from relying on this judgment (Re Shaw & Anor). It is not immediately clear on what basis the Court can be “estopped” from relying upon one of its own decisions – let alone a decision of the Court of Appeal in which five judges sat

If the Constitution Act 1975 (Vic) is invalid, it follows that this is not a validly–constituted court and, if it is not a valid court, then there is no point in Mr Shaw’s being here. That is a fundamental obstacle. The very arguments which Mr Shaw wants to present are arguments which show that the court does not exist, has no valid powers and is comprised of judges who were not validly appointed.

He also said in the course of his submissions something along these lines: “If you’re pooling writs and trading birth certificates, you’re not the Supreme Court, you’re a branch of the stock exchange.” This statement highlights the inescapable internal contradiction in Mr Shaw’s spending time arguing his case before a non-existent court.

Mr Shaw went so far as to say that there was a “secret government”. Mr Shaw says that the agenda of that secret government is the “destruction of each State economy and each State government”. He went on to say: “Something absolutely destructive is happening.”

If there was any truth in these assertions, it would be of great concern to citizens. He should be spending his time alerting other members of the community, rather than two judges who have no power to deal with these matters.”

Courtesy of : Freeman Delusion



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