Page 1

Mr Peter Kidd CJ

17-11-2015

Email: feedback@countycourt.vic.gov.au
Cc: Buloke Shire Council buloke@buloke.vic.gov.au
Mr Martin Pakula, Attorney-General martin.pakula@parliament.vic.gov.au & attorney-general@justice.vic.gov.au
Daniel Andrews Premier Victoria daniel.andrews@parliament.vic.gov.au
Elliott Stafford and Associated
lawyers@elliottstafford.com.au
Mr Garry McIntosh, Associate to His Honour Mullaly J. judgemullaly.chambers@countycourt.vic.gov.au
Re: 20151117-Schorel-Hlavka O.W.B. to Mr Peter Kidd CJ County Court of VictoriaRe Buloke Shire Council -AP-15-2502 -Re COMPLAINT -Supplement 3

Sir,
I am concerned as to the judicial competence of His honour Mullaly J where I understood His
Honour on 30 October 2015 stated that no evidence is required on an ex parte (criminal) matter
before the courts. In my view NATURAL JUSTICE, Due Process, and Fair and Proper hearings
are basics of litigation. Where it relates to matters in question such as the opinion of the
alleged informant, then any relevant evidence as to how this informant established his opinion in
my view is required.
http://www.lawphil.net/judjuris/juri1999/feb1999/gr_121099_1999.html
G.R. No. 121099 February 17, 1999, FIDEL T. SALAMERA, petitioner, vs. SANDIGANBAYAN, FIRST
DIVISION, respondent.
QUOTE
One more point. Admittedly, there was no evidence submitted to the court of the value of the gun to
enable the court to fix the penalty to be imposed on the accused. Assuming that petitioner
malversed the gun, in malversation, the penalty for the offense is defendent on the value of the
public funds, money or property malversed. In this case, the Sandiganbayan did not base the
penalty on the minimum value of the gun in the absence of evidence of its true worth. It took judicial
notice of its market value and estimated its "reasonable value" at P5,000.00. This is a grievous
error.
The Sandiganbayan could not take judicial notice of the value of the gun. It must be duly proved in
evidence as a fact. The court can not take judicial notice of a disputed fact. The court may take
judicial notice of matters of public knowledge, or which are capable of unquestionable
demonstration, or ought to be known to judges because of of their judicial functions. Otherwise, the
court must receive evidence of disputeds facts with notice to the parties. This is an innovation
introduced in the Revised Rules of Evidence the Supreme Court adopted on July 1, 1989, which
should not be unknown to the lower
courts. 9 The new rule of evidence governs this case, since it was decided in 1995, six years after
its effectivity.
END QUOTE

What we have is that His honour Mullaly J is making clear that regardless where there is a
question of evidenced it merely is to be assumed that even without evidence the court will
convict. Albeit no conviction but a fine was applied it still is in essence a conviction as it implies
guilt.
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Page 2
.
Without any evidence having been placed before the Magistrates of Victoria at St Arnaud, the
whole premises of the orders upon the Fire Protection Notice which within s43 of the Country
Fire Authority Act 1958 is provided for as follows;
Country Fire Authority Act 1958
QUOTE
41Fire prevention notices
(1) In the country area of Victoria, the fire prevention officer of a municipal council may serve a fire
prevention notice on the owner or occupier of land in the municipal district of that council (other
than a public authority) in respect of anything
(a) on that land, other than a building or in a building;
(b) on the adjacent half width of any private street that abuts that land
(other than a prescribed thing or class of things) that by its nature, composition, condition or
location constitutes or may constitute a danger to life or property from the threat of fire.
(2) A fire prevention notice may be served only if the fire prevention officer forms the opinion
(a) that it is necessary, or may become necessary, to do so to protect life or property from the
threat of fire; and
(b) that there is no procedure under any other Act or regulations made under any Act that is more
appropriate in the circumstances to address that threat.
(3) A fire prevention notice
(a) must be in the prescribed form;
(b) may require the owner or occupier to take the steps specified in the notice to remove or
minimise the threat of fire;
(c) must specify the time (not less than 7 days) within which the owner or occupier must
comply with the notice;
(d) must contain any prescribed information.
END QUOTE

Therefore where there was an OBJECTION TO JURSIDCITION including to the fact that all
combustible material in the Fire Prevention Notice violated the legislative provisions then it is
not for a court that is supposed to be impartial (Letters Patent published in the Gazette 2-1-1901)
it was not for His Honour Mullaly J without hearing any details to the dispute somehow affirm
the Magistrates Court of Victoria at St Arnaud decision as having been appropriate to make
orders without any evidence whatsoever. Effectively His Honour Mullaly had pre-emptied the
appeal without hearing any details.
As like the Authority about the value of the revolver not being for the court to assume its value,
likewise I view it is not for a court to assume that the opinion of an informer is correct. In my
view there is no static and chartered evidence as to what any persons opinion stands for.
Indeed it varies as to in the circumstances of each case, relevant to observations of each
individual.
Indeed, I have cross examined members of the medical profession and their opinions as stated
in Affidavit material proved to be on the basis what was known to them and turning out to be
totally different from the actual facts that were before the courts. As such, a witness/an expert
witness opinion may or may not be relevant pending the facts before the courts which may
show the witness/expert witness formed an opinion based upon different circumstances as
known to the witness/expert witness but not being the true circumstances of the case.

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Page 3
What we had was a Judicial Registrar making a decision upon an alleged opinion which was
assumed to be correct without any evidence to show how this opinion was arrived at, and so
denying the accused any ability to challenge the alleged opinion.
What eventuated was that the Judicial Registrar simply assumed that the opinion was sufficient
in law as evidence regardless that no evidence was tendered to prove this.
.

Marriage of Baines (1981) 7 Fam LR 226 at 229

QUOTE
The adversary system involves the presentation of facts ascertained by questions put to witnesses, or legal
representations to the court. The role of the judge is that of adjudicator. This does not mean that he can ask
no questions but he is at common law restricted in that he cannot in general call witnesses himself.
END QUOTE

I consider this a very serious matter, as His Honour Mullaly J comments form part of records and
as such could be misused and abuse in other cases besides that of my own.
Considering that I understood His Honour Mallaly J to commence from onset that I was a person
who appeared to hold that the law applies to everyone but myself I view there was an implied
bias by His Honour Mullaly J against me. Also, it appeared to me that His Honour Mullaly J
having failed to read from onset omitted to read my ADDRESS TO THE COURT (containing
written submissions) failed to realise that I referred to the Commonwealth of Australia
Constitution Act (UK) constitutional rights and as such failed to invoke from onset federal
jurisdiction, and didnt seem to be aware after finally reading my ADDRESS TO THE COURT
(only because I made known to pursue a Judicial Review) that the matter was one to invoke
federal jurisdiction,.
http://www.ndcourts.gov/Court/Briefs/20120446.atb.htm
State of North Dakota, Plaintiff and Appellee, Supreme Court Supreme Court No. 20120446,
District Court Case No. 02-2011-CR-00059, VS. Christopher A. Ratteray, Jr., Defendant and
Appellant
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.
IV. CONCLUSION
[32] Based on all the foregoing reasons, Christopher Ratteray respectfully requests that his criminal
convictions be in all things reversed, or in the alternative that the matter be remanded back to the District
Court for proper consideration of sentencing.
END QUOTE
Kane v. University of British Columbia, Supreme Court of Canada, Martland, Ritchie, Pigeon, Dickson,
Beetz, Estey and McIntyre JJ. Ritchie J. (dissenting):
QUOTE
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Page 4
30 2. As a constituent of the autonomy it enjoys, the tribunal must observe natural justice which, as
Harman L.J. said (Ridge v. Baldwin, [1963] 1 Q.B. 539, [1962] 1 All E.R. 834 at 850, reversed on other
grounds [1964] A.C. 40, [1963] 2 All E.R. 66 (H.L.)) is only "fair play in action". In any particular case,
the requirements of natural justice will depend on "the circumstances of the case, the nature of the
inquiry, the rules under which the tribunal is acting, the subject-matter that is being dealt with, and so
forth": per Tucker L.J. in Russell v. Norfolk (Duke), [1949] 1 All E.R. 109 at 118. To abrogate the rules
of natural justice, express language or necessary implication must be found in the statutory
instrument.
END QUOTE
http://egiewcms-test-auth.elasticbeanstalk.com/legal/fox-and-others-v-p-g-wellfair-ltd-fisher-and-another-v-p-gwellfair-ltd/
Arbitration Fox and others v P G Wellfair Ltd ; Fisher and another v P G Wellfair Ltd
QUOTE
In 1969 a block of flats was built in London. Seven storeys high: 30 flats all told. There were many defects in
construction. The flat-dwellers claimed damages against the builders. The dispute was submitted to arbitration. An
arbitrator was appointed. He was of acknowledged competence and skill. He conducted the proceedings before him with
the utmost diligence and the utmost good faith. The hearings spread over 10 days. Experts of high repute gave evidence.
The arbitrator knocked down the amount from 93,000 to only 13,000. The flat-dwellers were so aggrieved that they
made complaint against the arbitrator. The judge upheld their complaint. He has removed the arbitrator for misconduct.
The judge has set aside his award and has ordered some other person to be appointed in his place. It is a serious matter for
the parties because of all the time and money that have been wasted. It is a serious matter for the arbitrator. That goes
without saying.
The most extraordinary feature of the whole case is, however, that only the flat-dwellers were represented at the hearings
before the arbitrator. The builders were unrepresented. Yet the flat-dwellers lost and the builders won. The arbitrator
knocked down the claim by 86%.

END QUOTE

In my view the same can be stated for a Judicial Registrar assuming guilt without any proper
evidence and for His Honour Mullaly J to support such kind of conduct without even being
aware of the matters that were at the time before the Judicial registrar.
http://www.mrlegal.com.au/mrhomepage.nsf/da1fe4c2dda549bd48257afc00091ad9/e2809bf638
556f5a48257c3d000db900!OpenDocument
QUOTE
Right to be heard
Per Kirby J in Allesch v Maunz [2000] HCA 40
It is a principle of justice that a decision-maker, at least one exercising public power, must ordinarily afford a
person whose interests may be adversely affected by a decision an opportunity to present material
information and submissions relevant to such a decision before it is made. The principle lies deep in the
common law. It has long been expressed as one of the maxims which the common law observes as "an
indispensable requirement of justice" Re Brook and Delcomyn (1864) 16 CB (NS) 403 at 416 per Erle CJ
[143 ER 1184 at 1190]. The maxim is audi alteram partem, audiatur et altera pars. See Broom, A Selection
of Legal Maxims, 10th ed (1939) at 65; cf Cameron v Cole (1944) 68 CLR 571 at 589; The Commissioner of
Police v Tanos (1958) 98 CLR 383 at 395-396.. It is a rule of natural justice or "procedural fairness" Kioa v
West (1985) 159 CLR 550 at 583.. It will usually be imputed into statutes creating courts and adjudicative
tribunals R v The Chancellor, Masters and Scholars of the University of Cambridge ("Dr Bentley's Case")
(1723) 1 Str 557 [93 ER 698]; Cooper v Wandsworth Board of Works (1863) 14 CB (NS) 180 [143 ER 414];
Hopkins v Smethwick Local Board of Health (1890) 24 QBD 712.
END QUOTE
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Page 5

Brook & Delcomyn 1864 UK

I will only refer to one case which occurred whilst I was a member of the court of Queen's Bench,The
Queen v. The Archbishop of Canterbury, Ellis & Ellis, 545. There, the archbishop, on an appeal against the
revocation of a curate's licence, under the 1 & 2 Vict. c. 106, s. 98, had confirmed the revocation without a
hearing; but merely upon the statements made by the curate in his petition of appeal, and the written
documents referred to in such petition : and the court issued a mandamus commanding him " to hear the said
appeal and decide the merits thereof." Lord Campbell said : " It is one of the first principles of justice, that no
man should be condemned without being heard. We do not say whether the archbishop's decision was right or
wrong. We only say that he has not heard the petition.
'Qui statuit aliquid, parte inaudita altera, sequum licet statuerit, aquus baud fuit.'
The legislature here gives an appeal from the bishop to the archbishop : that implies that the appellant is
entitled to an opportunity of being heard.

In my view there is not and cannot be a single rule that dictates that during ex parte hearings the
prosecutor doesnt have to prove anything by way of evidence. Indeed, in AEC v SchorelHlavka before the Magistrates Court of Victoria at Heidelberg on 4 August 2005 the matter
before the court was that within the Commonwealth Electoral Act 1918 the AEC didnt have to
prove anything by invoking averment. After submissions of both parties the Magistrate held that
the commonwealth had to provide all evidence it sought to rely upon. When counsel for the AEC
commented that this would involve truckloads of documentation the Magistrate made clear that it
was between the parties how to organise this.
As such, the mere fact that legislation may provide for averment doesnt mean it is legally
enforceable, at least not when it violates a persons constitutional rights!
In FELTON v. MULLIGAN [1971] HCA 39; (1971) 124 CLR 367 (2 September 1971) the High
Court said: Menzies J: As the Court said in Lorenzo v. Carey (1921) 29 CLR 243, at p 252 : (at
p383)
QUOTE
A State Court must recognize the laws of the Commonwealth and be guided by them in
exercising its State jurisdiction
END QUOTE
The claim and exercise of Constitutional Rights cannot be converted into a crime. Miller v.
Kansas 230 F 2nd 486, 489:
In that case I successfully claimed that compulsory voting was in violation of my constitutional
rights of political liberty.
For a crime to exist, there must be an injured party (Corpus Delicti) There can be no sanction or
penalty imposed on one because of this Constitutional right. Sherer v. Cullen 481 F. 945:
The matter on appeal before His Honour Mullaly J was that the Magistrates Court of Victoria at
St Arnaud never invoked jurisdiction where I had OBJECTED TO THE JURISDICTION of
the court. As such I view that His Honour Mullaly J failed to understand relevant legal
procedures to claim that the appeal hearing would be De Novo, because where the Magistrates
Court of Victoria had not invoked jurisdiction then the matter itself decided without any
evidence cannot be heard De Novo.
If any Tribunal (court) finds absence of proof of jurisdiction over a person and subject matter, the
case must be dismissed. Louisville v. Motley 2111 US 149, 29S. CT 42. The Accuser Bears
the Burden of Proof Beyond a Reasonable Doubt.
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
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Page 6

As there was no evidence before the Judicial Registrar it means that the Prosecutor (Buloke
Shire Council) never provided any evidence to prove jurisdiction either, the so to say first
cab of the rank! It was not for the Judicial Registrar to assume jurisdiction as he should
be and remain to be impartial! It was for the Prosecutor to prove jurisdiction. Where no
evidence was presented then no jurisdiction could have been implied or otherwise be
deemed to have been proven! In my view, it was wrong in law for His Honour Mullaly J to
indicate that nevertheless in ex parte litigation no evidence is required, where an OBJECTION
TO JURISDICTION was before the court and so known to the Prosecutor.
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
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 Joyce v. US, 474 F2d 215.
There is no discretion to ignore that lack of jurisdiction.
END QUOTE
Thompson v Tolmie 27 U.S. 157 (1829) Page 27 U.S. 157, 169
QUOTE
When a court has jurisdiction, it has a right to decide every question that occurs in the cause; and whether its
decisions be correct or not, its judgment, until reversed, is regarded as binding in every other court. But if it
acts without authority, its judgments and orders are regarded as nullities. They are not voidable, but
simply void; and form no bar to a recovery sought in opposition to them even prior to a reversal.'
END QUOTE
.

Thompson v Tolmie 27 U.S. 157 (1829) Page 27 U.S. 157, 169

QUOTE
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
.

As Counsel for Buloke Shire Council on 30 October 2015 in my view was misleading His
Honour Mullaly J as to the request for the brief to have been made yesterday this when in fact
it was another 2 days earlier, then I view the following authority is relevant as CONTEMPT IN
THE FACE OF THE COURT, this clearly where His honour Mullaly J was as it appeared to
me swayed by this submission to allow for more time.
In LEWIS v. JUDGE OGDEN [1984] HCA 28; (1984) 153 CLR 682 (15 May 1984 High Court of Australia
Mason(1), Murphy(1), Wilson(1), Brennan(1) and Dawson(1) JJ.
QUOTE
At common law words or conduct in the face of the court or in the course of proceedings, in order to
constitute contempt, "must be such as would interfere, or tend to interfere, with the course of justice"
(Parashuram Detaram Shamdasani v. King-Emperor (1945) AC 264, at p 268 ). Instead of making
interference, or tendency to interfere, with the course of justice an element in the offences which it created,
subs. (1) introduces the new element of conduct which is wilful in pars. (a) and (c). In these two paragraphs
the word "wilfully" means "intentionally", or "deliberately", in the sense that what is said or done is intended
as an insult, threat, etc. Its presence does more than negative the notion of "inadvertently" or "unconsciously"
(Bell v. Stewart (1920) 28 CLR 419, at p 427 ). The mere voluntary utterance of words is not enough.
"Wilfully" imports the notion of purpose. (at p688)
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Page 7
END QUOTE

In any event, I view that His Honour Mullaly J because of bias (implied or otherwise) no longer
should be involved in the case and any contempt proceedings against Buloke Shire Council legal
representatives should be heard and determined by another judge, where the court recording can
be used as evidence. After all the refusal to consider the written submission in the ADDRESS
TO THE COURT from onset it all went horribly wrong.
.

The book "Law Made Simple" by Colin F. Padfield, LL.B.,D.P.A.(Lond.) on page 55:
QUOTE
"The Rule against Bias. A true judicial decision can be reached only if the judge himself is impartial. This is
an obvious requirement in a court of law or a tribunal. In R. v Rand (1866) it was held that a judge is
disqualified where (i) he has a direct pecuniary interest, however small, in the subject-matter in dispute; or (ii)
there is real likelihood that the judge would have a bias in favour of one of the parties.
END QUOTE
R v. Lusink and another; Ex Parte Shaw (1980) 6 FLR 235 and 236
QUOTE
However in some cases the words or conduct of a judge may be suck as to lead the parties reasonably to think
that the judge has prejudged an important question in the case, and then prohibition may issue. Of course, the
court which is asked to grant prohibition will not lightly conclude that the judge may reasonably be suspected
of bias in this sense; it must be "firmly established" that such a suspicion may reasonably be engendered in
the minds of the parties or the public, as was made clear by the court in R v Commonwealth Conciliation and
arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546 at 553-4, in the passage cited in R v
Watson; Ex parte Armstrong (132 CLR at 262).
The critical question, however, is not whether a judge believes he or she has prejudged a question, but
whether that is what a party or the public might reasonably suspect has occurred (see per Lord Denning
MR in Metropolitan Properties Co. (FGC Ltd v Lannon (1969) 1 QB 577 at 599, a judgment cited with
approval by this court in R v Commonwealth Conciliation and Arbitration Commission; Ex Parte Angliss
Group (1969) 122 CLR 546 at 553; In some circumstances repeated denials of prejudging might well convey
the impression of "protesting to much"...
END QUOTE

One has to ask why on earth is it that I am constantly having to spend my time to prepare
documents setting out a range of Authorities where from onset I objected to the jurisdiction of
the court but it is being constantly disregarded/ignored? It does however indicate a modus
operandi by judicial officer to blatantly disregard their duties and obligations as a judicial officer!
Regretfully, as I understand it from having since 1982 conducted a special lifeline, this is what
causes many to contemplate suicide, because they simply lost everything because of how judicial
officers made adverse decision in violation of legal provisions/Authorities.
In my view legal representatives cannot enjoy a greater privileges than that ordinary their
client is entitled to, as otherwise equality before the law is denied! Hence, hold them also
legally accountable!
In my view His Honour Mullaly J should be disqualified from presiding over any proceedings
involving my person this is because I view a FAIR MINDED PERSON would reading the
transcript of the 30 October 2015 proceedings reasonably conclude that His Honour Mullaly J
was bias and denied NATURAL JUSTICE and Due Process.
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!)
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