MIKIPEDIA LAW BLOG: January 2013

Thursday, January 31, 2013

INK DRIES ON LAW TO OUTLAW BIKIES IN TATTOO PARLOURS

YONI BASHAN and ALICIA WOOD The Daily Telegraph January 31, 2013

ORGANISED criminals will be booted out of the tattoo business, starting today.

All tattoo shop owners and their staff now must apply for a three-year licence from NSW Police and Fair Trading.
Police Minister Michael Gallacher said anyone with criminal associations would be denied a licence, and would be fined if they continued to operate.
"It is about cleaning up that industry. It is about recognising that for far too long the tattoo industry has been a feeding ground, a rich ground for outlaw motorcycle gangs," he said.
Licences will cost $700 for tattooists, and more than $2000 for operators of a tattoo parlour.
Can you say revenue raising???
After October 1, every corporation operating a tattoo parlour without a licence will be fined $11,000 a day. Individual owners face fines of $5500 a day, and tattoo artists will receive a one-off fine of $5000.
All workers in tattoo shops will be fingerprinted and their associations scrutinised by NSW Police.
So much for innocent until proven guilty.
Acting Police Commissioner Nick Kaldas said a third of the estimated 300 tattoo parlours in NSW were "influenced or directly controlled" by motorcycle gangs.
A common problem for police was parlours were commonly operated by "cleanskins"' - with no known criminal record
So it follows that - but behind the scenes they were run by members of, or associates of, outlaw motorcycle gangs.
http://www.adelaidenow.com.au/news/national/ink-dries-on-law-to-outlaw-bikies-in-tattoo-parlours/story-fndo1sdf-1226566266697

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TAMI PEPPERMAN WITH SHIRLEY MOORE

NEGOTIORUM GESTIO. Lat. In the civil law. Literally, a doing of business or businesses. A species of spontaneous agency, or an interference by one in the affairs of another, in his absence, from benevolence or friendship, and without authority.

2 Kent, Comm. 616, note; Inst. 3,28,1.

NEGOTIORUM GESTOR. Lat. In the civil law A transactor or manager of business; a person voluntarily constituting himself agent for another; one who, without any mandate or authority, assumes to take charge of an affair or concern for another person, in the latter's absence, but for his interest. One who spontaneously, and without the knowledge or consent of the owner, intermeddles with his property, as to do work on it, or to carry it to another place, etc Story,

Bailin. § 189.

QUEENSLAND POLICE IGNORE PUBLIC SAFETY TO CONCENTRATE ON REVENUE RAISING, POLICE MINISTER REMOVES EMBARRASSING STORY FROM FACEBOOK

Written and reposted from Australian Police Watch facebook group by Simon Dicko.
This was posted on the Queensland Minister for Police and Community Safety's Facebook page today. It was "hidden" almost immediately. Please feel free to post your own comment, or copy and paste the text below and post to http://www.facebook.com/JackDempseyMP

On Tuesday 29 January, a fatal accident occurred at the intersection of Beerwah-Kilcoy Road and Steve Irwin Way, Beerwah. The traffic signals were out following the extreme weather conditions on the Sunshine Coast. On this same day, several radars and speed cameras were set up around the Coast.

While your State Government and QPS continually try to make us believe that increased enforcement action is for "road safety", one has to wonder why QPS didn't have officers directing traffic at this intersection instead of operating radars and speed cameras, especially after a senior SES officer warned QPS about the dangerous situation that existed, just 3 days prior to the crash. Refer http://www.sunshinecoastdaily.com.au/news/fatal-crash-beerwah-intersection-lights-roulette/1737610/

Yesterday, the traffic lights at the Nambour Connection/Foley Road intersection in Woombye (just north of the alleged "black spot") were not working - while this intersection was left unattended, 6km away a radar was set up on Coes Creek Road. Today, these traffic signals were still out and left unattended, yet a police officer was 100m up the road monitoring driver compliance with a stop sign.

As the current Queensland Police Minister, we seek your justification as to why you believe collection of revenue should take priority over ensuring safety for Sunshine Coast road users.

Jack Dempsey

Wednesday, January 30, 2013

FORMER HIGH COURT JUDGE IAN CALLINAN URGES COMMUNITY TO RISE UP

Chris Merritt, Legal Affairs editor From: The Australian January 28, 2013

FORMER High Court judge Ian Callinan has called for widespread community opposition to the federal government's proposed changes to discrimination law, which he says are "outrageous" and a threat to community cohesion.

"Every Australian with an ideal for democracy - and I hope that means most Australians - should do everything they lawfully can to oppose the introduction of this outrageous law," said Mr Callinan, who retired from the nation's highest court in 2007.
"It seems as if each year the Constitution and the cohesion of the Australian community are put at some new and entirely unnecessary risk.
"The dangers of the current one, of the introduction of a new law to criminalise speech which might cause offence to anyone, should not be underestimated."
His intervention in the debate over the government's plan to consolidate five federal anti-discrimination statutes coincides with a warning from Victorian Attorney-General Robert Clark that the scheme could expose state police and prison officers to litigation from suspects, offenders and prisoners.
In an article in The Australian today, Mr Clark writes that the government's proposal appears to apply to police pursuits, the arrest of suspects, the allocation of prison accommodation and facilities and to prosecutors' decisions about which charges to lay.
While the government proposed to exempt its own authorised activities from the proposed scheme, "it proposes no such general exemption for activities authorised under state law".
Their concerns have been triggered by an exposure draft of the government plan that has been widely criticised. ABC chairman Jim Spigelman, a former chief justice of NSW, warned that it would impose unprecedented restrictions on free speech.
If enacted, the scheme would extend the reach of provisions in the Racial Discrimination Act that already impose liability for actions that offend or insult.
Those provisions, used in 2011 against columnist Andrew Bolt, would be extended into all areas of discrimination law so legal action could be launched by anyone who claims to have an attribute protected by the scheme.
Those attributes include sexual orientation, gender identity, social origin, political opinion, disability, sex, age, race, industrial history, medical history, nationality, potential pregnancy and religion.
The onus of proof would be reversed so those accused of offending would be presumed guilty unless they proved their innocence.
Mr Callinan, who is president of the federalist Samuel Griffith Society, used his Australia Day message to members to denounce the scheme.
"Even the imaginative powers of George Orwell would not have conceived of an administration that would dare to try to forbid every member of society from passing adverse comment upon any other member of it," he said.
If "political good sense" did not prevail and the draft scheme were enacted, Mr Callinan said he was optimistic that "it will not survive the scrutiny of the courts".
http://www.theaustralian.com.au/business/legal-affairs/former-high-court-judge-urges-community-to-rise-up/story-e6frg97x-1226563055307

DECODING THE H.R. 3474 HUMAN GENOME CYNTHIA M. BREWER | JEAN KEATING | CAPTAIN JADE

CHAPTER 1 CANONS OF LEGAL ETHICS

[In force January 1, 1992]

These Canons of Legal Ethics are a general guide, and not a denial of the existence of other duties equally imperative and of other rights, though not specifically mentioned.
A lawyer is a minister of justice, an officer of the courts, a client's advocate, and a member of an ancient, honourable and learned profession.
In these several capacities it is a lawyer's duty to promote the interests of the state, serve the cause of justice, maintain the authority and dignity of the courts, be faithful to clients, be candid and courteous in relations with other lawyers and demonstrate personal integrity.

1. To the state
(1) A lawyer owes a duty to the state, to maintain its integrity and its law. A lawyer should not aid, counsel, or assist any person to act in any way contrary to the law.
(2) When engaged as a Crown prosecutor, a lawyer's primary duty is not to seek a conviction but to see that justice is done; to that end the lawyer should make timely disclosure to the defence of all facts and known witnesses whether tending to show guilt or innocence, or that would affect the punishment of the accused.
(3) A lawyer should accept without hesitation, and if need be without fee or reward, the cause of any person assigned to the lawyer by the court, and exert every effort on behalf of that person.
2. To courts and tribunals
(1) A lawyer's conduct should at all times be characterized by candour and fairness. The lawyer should maintain toward a court or tribunal a courteous and respectful attitude and insist on similar conduct on the part of clients, at the same time discharging professional duties to clients resolutely and with self-respecting independence.
(2) Judges, not being free to defend themselves, are entitled to receive the support of the legal profession against unjust criticism and complaint. Whenever there is proper ground for serious complaint against a judicial officer, it is proper for a lawyer to submit the grievance to the appropriate authorities.
(3) A lawyer should not attempt to deceive a court or tribunal by offering false evidence or by misstating facts or law and should not, either in argument to the judge or in address to the jury, assert a personal belief in an accused's guilt or innocence, in the justice or merits of the client's cause or in the evidence tendered before the court.
(4) A lawyer should never seek privately to influence a court or tribunal, directly or indirectly, in the lawyer's or a client's favour, nor should the lawyer attempt to curry favour with juries by fawning, flattery, or pretended solicitude for their personal comfort.
Annotations

3. To the client
(1) A lawyer should obtain sufficient knowledge of the relevant facts and give adequate consideration to the applicable law before advising a client, and give an open and undisguised opinion of the merits and probable results of the client's cause. The lawyer should be wary of bold and confident assurances to the client, especially where the lawyer's employment may depend on such assurances. The lawyer should bear in mind that seldom are all the law and facts on the client's side, and that audi alteram partem is a safe rule to follow.
(2) A lawyer should disclose to the client all the circumstances of the lawyer's relations to the parties and interest in or connection with the controversy, if any, which might influence whether the client selects or continues to retain the lawyer. A lawyer shall not act where there is a conflict of interests between the lawyer and a client or between clients.
(3) Whenever the dispute will admit of fair settlement the client should be advised to avoid or to end the litigation.
(4) A lawyer should treat adverse witnesses, litigants, and counsel with fairness and courtesy, refraining from all offensive personalities. The lawyer must not allow a client's personal feelings and prejudices to detract from the lawyer's professional duties. At the same time the lawyer should represent the client's interests resolutely and without fear of judicial disfavour or public unpopularity.
(5) A lawyer should endeavour by all fair and honourable means to obtain for a client the benefit of any and every remedy and defence which is authorized by law. The lawyer must, however, steadfastly bear in mind that this great trust is to be performed within and not without the bounds of the law. The office of the lawyer does not permit, much less demand, for any client, violation of law or any manner of fraud or chicanery. No client has a right to demand that the lawyer be illiberal or do anything repugnant to the lawyer's own sense of honour and propriety.
(6) It is a lawyer's right to undertake the defence of a person accused of crime, regardless of the lawyer's own personal opinion as to the guilt of the accused. Having undertaken such defence, the lawyer is bound to present, by all fair and honourable means and in a manner consistent with the client's instructions, every defence that the law of the land permits, to the end that no person will be convicted but by due process of law.
(7) A lawyer should not, except as by law expressly sanctioned, acquire by purchase or otherwise any interest in the subject-matter of the litigation being conducted by the lawyer. A lawyer should scrupulously guard, and not divulge or use for personal benefit, a client's secrets or confidences. Having once acted for a client in a matter, a lawyer must not act against the client in the same or any related matter.
(8) A lawyer must record, and should report promptly to a client the receipt of any moneys or other trust property. The lawyer must use the client's moneys and trust property only as authorized by the client, and not co-mingle it with that of the lawyer.
(9) A lawyer is entitled to reasonable compensation for services rendered, but should avoid charges which are unreasonably high or low. The client's ability to pay cannot justify a charge in excess of the value of the service, though it may require a reduction or waiver of the fee.
(10) A lawyer should try to avoid controversies with clients regarding compensation so far as is compatible with self-respect and with the right to receive reasonable recompense for services. A lawyer should always bear in mind that the profession is a branch of the administration of justice and not a mere money-making business.
(11) A lawyer who appears as an advocate should not submit the lawyer's own affidavit to or testify before a court or tribunal except as to purely formal or uncontroverted matters, such as the attestation or custody of a document, unless it is necessary in the interests of justice. If the lawyer is a necessary witness with respect to other matters, the conduct of the case should be entrusted to other counsel.
Annotations

4. To other lawyers
(1) A lawyer's conduct toward other lawyers should be characterized by courtesy and good faith. Any ill feeling that may exist between clients or lawyers, particularly during litigation, should never be allowed to influence lawyers in their conduct and demeanour toward each other or the parties. Personal remarks or references between lawyers should be scrupulously avoided, as should quarrels between lawyers which cause delay and promote unseemly wrangling.
(2) A lawyer should neither give nor request an undertaking that cannot be fulfilled and should fulfil every undertaking given. A lawyer should never communicate upon or attempt to negotiate or compromise a matter directly with any party who the lawyer knows is represented therein by another lawyer, except through or with the consent of that other lawyer.
(3) A lawyer should avoid all sharp practice and should take no paltry advantage when an opponent has made a slip or overlooked some technical matter. A lawyer should accede to reasonable requests which do not prejudice the rights of the client or the interests of justice.
Annotations

5. To oneself
(1) A lawyer should assist in maintaining the honour and integrity of the legal profession, should expose without fear or favour before the proper tribunals, unprofessional or dishonest conduct by any other lawyer and should accept without hesitation a retainer against any lawyer who is alleged to have wronged the client.
(2) It is the duty of every lawyer to guard the Bar against the admission to the profession of any candidate whose moral character or education renders that person unfit for admission.
(3) A lawyer should make legal services available to the public in an efficient and convenient manner that will command respect and confidence. A lawyer's best advertisement is the establishment of a well-merited reputation for competence and trustworthiness.
(4) No client is entitled to receive, nor should any lawyer render any service or advice involving disloyalty to the state, or disrespect for the judicial office, or the corruption of any persons exercising a public or private trust, or deception or betrayal of the public.
(5) A lawyer should recognize that the oaths taken upon admission to the Bar are solemn undertakings to be strictly observed.
(6) All lawyers should bear in mind that they can maintain the high traditions of the profession by steadfastly adhering to the time-honoured virtues of probity, integrity, honesty and dignity.

* * *

ANNOTATIONS:

Canon 2 - To courts and tribunals

Where the issue of liability has been settled and where the issue of quantum is to be argued, and where the plaintiff in the matter dies, a lawyer acting for the plaintiff has a duty to inform both the clerk of the court and opposing counsel of the plaintiffs death.
EC March 1993, item 7
Where a plaintiff in a personal injury litigation dies intestate shortly after judgment is pronounced, where the order reflecting the judgment has not yet been entered and there are outstanding matters to be resolved, and where no administrator has been appointed, plaintiffs counsel is under an ethical obligation to notify forthwith both the court and opposing counsel of the death of his client.
EC April 1994, item 5
In the absence of official court approval or a Law Society rule that stipulates how a lawyer should dress for court, it is inappropriate for a lawyer to depart from customary dress when required to be gowned.
EC May 1997, item 9
A lawyer who is negligent and reckless and displays a casual disregard for the truth in making misrepresentations to the court and to the Law Society, is guilty of professional misconduct.
DCD 01-16
Letters to the Law Society, with copies to the client and another lawyer, which criticize the judiciary and another lawyer are inappropriate. It is not in the best interests of the justice system, clients, or the profession for lawyers to express themselves in a fashion that promotes acrimony or intensifies the stress and difficulty that people are under.
2003 LSBC 30
Lawyers robe should not bear the words duty counsel or any other markings.
EC June 2003, item 5
A lawyers intemperate and disrespectful behaviour in court can amount to professional misconduct and conduct unbecoming a member.
DD 04/02

Canon 3 - To the client

A lawyer billed his client for fees based on a percentage of funds held in trust, even though his retainer agreement required that he bill on an hourly rate. He did so because he realized his neglect in accurately recording his time meant he would otherwise not be remunerated for that time. The bill was far in excess of the value of the services provided when calculated on an hourly basis. His conduct constituted professional misconduct.
DCD 01-27
A lawyer charged and billed to clients approximately $75 in personal disbursements, which he believed represented a fair set-off for disbursements that he paid personally on their behalf while working at home. Although it was done for administrative convenience, it constituted professional misconduct.
2004 LSBC 38
A lawyer was found guilty of professional misconduct for abandoning a criminal client in mid-trial (to attend to a new, unrepresented client in another courtroom) and in treating the judge with disrespect.
2005 LSBC 10
Subject to the caveat that a lawyer must not represent a client who is acting out of malice, a lawyer is entitled to take account of a client’s ability to pay in setting a reduced fee, or in acting without fee, and the lawyer is under no obligation to consider an opposing party’s circumstances in determining the fee.
EC December 2007, item 6

Canon 4 -To other lawyers

When a caveat has been filed in one Supreme Court registry but not in others through inadvertence, it is sharp practice for a lawyer to apply for letters of administration without notifying the lawyer who filed the caveat of the proposed application.
EC March 1996, item 7
The opinion describes situations that the Ethics Committee believes do or do not fall within the rule.
EC May 2009, item 6
A lawyer representing plaintiffs learned from the trial coordinator that the trial had been removed from the trial list and agreed to inform opposing counsel of the adjournment. However, he delayed informing opposing counsel of the adjournment for fear of jeopardizing a settlement opportunity. The lawyers failure to inform opposing counsel constituted professional misconduct.
DCD 97-01
Failure to advise opposing counsel that you are not the lawyer for one of the parties, knowing they believe that to be the case, constitutes professional misconduct.
DCD 99-04
A lawyer who assisted his client to carry out certain corporate procedures using the proxy of an unrepresented shareholder, without the knowledge of or notice to the shareholder, is sharp practice amounting to professional misconduct.
DCD 00-10
Failure to immediately send material to the other party as required by a court order does not constitute professional misconduct if it is due to inadvertence, not impropriety. Failing to provide information to the other party because of limitations of the retainer does not amount to professional misconduct.
DCD 00-16
A lawyer who had an inappropriate verbal exchange with another lawyer during a trial adjournment and pressed his chest against hers was guilty of professional misconduct, even though his actions were unplanned and were not intended to intimidate. Whenever physical contact occurs between lawyers in a confrontational situation, it will be treated as aggravated and unjustified conduct.
DCD 01-09 and DCD 01-15
A lawyer who was representing the vendor in a real estate transaction gave his undertaking to the purchasers solicitor that he would pay all property tax arrears, penalties, and outstanding utility charges from the sale proceeds. He advised the purchasers lawyer that he had completed his undertakings, but the vendor himself had paid the charges with a cheque that was returned for insufficient funds. It was professional misconduct to rely on his client to pay the charges.
DCD 02-09
It is professional misconduct to make statements, at a social gathering, about another lawyers alleged professional negligence, and to make allegations that the lawyer will be disbarred.
DCD 03-10
Purporting to serve a writ by fax, knowing it is not proper service, is professional misconduct.
2003 LSBC 44

http://www.lawsociety.bc.ca/page.cfm?cid=1027&t=Professional-Conduct-Handbook-Chapter-1-Canons-of-Legal-Ethics

PROOF THAT A CANADIAN LAWYERS DUTY IS TO THE STATE AND NOT TO YOU. IS THIS THE SAME IN YOUR COUNTRY?

“A lawyer owes a duty to the state, to maintain its integrity and its law.”

(Chapter 1, Rule 1(1) Canons of Legal Ethics – Professional Conduct Handbook).

This quote was provided as 'evidence' by the British Columbia Law Society in a scandalous hit piece designed to program notaries and lawyers in Canada against the people.

It is in the Law Societies interest to encourage people to be represented by lawyers even though they place the State above and before the needs of the people who pay for their services!!!!!

It is interesting to note that despite the fact that when the British Columbia Law Society used the above quote to try and massage opinion of it's members against the rights of the people it decided against using this quote that is two sentences above the cherry picked quote that CONTRADICTS the opinion that it was trying to peddle, namely:

"These Canons of Legal Ethics are a general guide, and not a denial of the existence of other duties equally imperative and of other rights, though not specifically mentioned."

http://www.lawsociety.bc.ca/page.cfm?cid=1027&t=Professional-Conduct-Handbook-Chapter-1-Canons-of-Legal-Ethics

SO WHY IS THE BRITISH COLUMBIA LIE SOCIETY engaging in FRAUD????

Your thoughts are welcome in the comments thread below.

THE LAW SOCIETY OF BRITISH COLUMBIA RUNS HIT PIECE ON FREEDOM

Practice Tips, by Dave Bilinsky, Practice Management Advisor

The Freeman-on-the-Land movement

we don’t need you
or your rules – this is ours
there’s something to die for…

Lyrics, music and recorded by Integrity

Who are the Freeman-on-the-Land?

This is a new movement that has important implications for both lawyers and notaries. It is not just another fringe group in society. Freeman-on-the-Land is listed on the FBI’s domestic terror watchlist (www.fbi.gov/stats-services/publications/law-enforcement-bulletin/september-2011/sovereign-citizens). People who have been linked to this movement include Terry Nichols and Timothy McVeigh (of the 1995 Oklahoma City bombing).
According to the FBI: “Since 2000, lone-offender sovereign-citizen extremists have killed six law enforcement officers. In 2010, two Arkansas police officers stopped sovereign-citizen extremists Jerry Kane and his 16-year-old son Joseph during a routine traffic stop on Interstate 40. Joseph Kane jumped out of the vehicle and opened fire with an AK-47 assault rifle, killing both officers.”

These are not just people with extremist views

“Freemen” (or Sovereign Citizens, Living Souls or Natural Persons, as they sometimes call themselves) believe that all statute law is contractual. They further believe that law only governs them if they choose or consent to be governed. By implication, they believe that, by not consenting, they can hold themselves independent of government jurisdiction. These individuals believe that they can live under “common (case) law” and “natural laws” (per Wikipedia).
Freemen may number up to 30,000 in Canada and hundreds of thousands in the United States. They believe they can avoid taxes, mortgages, utility bills and more. They state that they have an unfettered right to travel (hence their belief that they do not need driver’s licences, licence plates or insurance). They believe that government-issued identification is somehow different from the “natural person.” They commonly list their names in the format of “First:Last” (using a colon in between). They are loosely affiliated with Canadian “detaxers,” whose tenet is that income taxes do not have to be paid to the government.

Common symbols

Freeman-on-the-Land follows a common formula. Symbols that are associated with the movement, and which are found on their documents, include: Biblical references and religious threats, postage stamps placed on documents, Uniform Commercial Code (UCC) citations in the US, fingerprints and “blood seals” affixed to documents. They use names for documents that are either obscure or not recognized in any legal text.

Claims of the Freeman movement

Freemen claim that the US government (and, in Canada, the Bank of Canada) has established secret bank accounts for every person. This idea relies on their “theory of redemption.” For example (from www.policemag.com/channel/patrol/articles/2012/09/sovereign-citizens-a-clear-and-present-danger.aspx):

This theory claims that the United States went bankrupt in 1933 when it chose to no longer use the gold standard to back up its paper currency. Needing collateral to trade and conduct commerce with other countries, the United States began to use citizens as collateral to ensure the value of its money. Subsequently, secret bank accounts, containing millions of dollars, were supposedly established by the United States Treasury Department on behalf of each citizen, or “strawman,” used as collateral. Redemption is used as a gateway by sovereigns to commit various fraudulent acts all in an attempt to “redeem their strawman” and access these non-existent secret Treasury accounts to satisfy various debts, including mortgages, cars, and credit cards.

Paper “attacks”

Notwithstanding that the Freemen reject the authority of the state, they do file many private prosecutions and claims of legal rights in the courts. Typically, they seek costs and orders against public officials, peace officers and whoever seems to be standing in their way:

The filing of frivolous lawsuits and liens against public officials, law enforcement officers and private citizens, on the other hand, has remained a favorite harassing strategy. These paper “attacks” intimidate their targets and have the beneficial side effect of clogging up a court system that sovereign citizens believe is illegitimate. Frivolous liens became such a problem in the 1990s that a majority of states were forced to pass new laws to make filing them illegal, their removal easier, or both. Today, eager sovereign citizens can use the Internet to download a variety of boilerplate forms and documents to wield against the government. More adventurous types can matriculate at “schools” such as the Erwin Rommel School of Law; additionally, a number of activists, ranging from David Wynn Miller to The Aware Group, hold seminars around the country to teach people — for a price — about the latest tactics and weapons. (www.adl.org/learn/ext_us/SCM.asp?LEARN_Cat=Extremism&LEARN_SubCat=Extremism_in_America& xpicked=4&item=sov)

Freemen rely on bogus documents, such as an “ecclesiastical notice of private agreement” (see www.scribd.com/doc/68105762/Ecclesiastical-Notice-of-Private-Agreement for an example of one such document against Clarke Burnett, in his capacity as a crown prosecutor) or a mandatariat (a demand made on a peace officer to produce his or her oath of office and qualifications to a Freeman).
They also seek to file liens against individuals, which can severely damage a person’s credit rating. Many individuals who have been the subject of these attacks seek to remove their names from public directories for their own protection. For example, in Meads v. Meads, 2012 ABQC 571, the cover page of the reasons for decision states:

Editorial Notice: On behalf of the Government of Alberta personal data identifiers have been removed from this unofficial electronic version of the judgment.

In Meads, Associate Chief Justice J.D. Rooke goes into great detail regarding the “Organized Pseudolegal Commerical Argument [“OPCA”] Litigants” and is an excellent review of the Freeman-on-the-Land movement and how it tries to disrupt court operations and frustrate the legal rights of governments, corporations and individuals.
These Freeman legal matters are also occurring in BC. BC Supreme Court Justice Dev Dley recently had to deal with one Darwin Sorenson, who would not identify himself and spoke of Freeman principles in court.
“I am a declared sovereign” and “My name is Darwin” was stated in court, according to Cam Fortems of the Kamloops Daily News on November 26, 2012. Darwin refused to step into the area of the court where litigants typically speak to the court, saying, “If I enter this area of the courtroom, do I have a contract with the court?” When Justice Dley warned Darwin that he would have him removed from the court, Darwin responded that this would cost the Justice a $30,000 fine.
In another case also before Justice Dley, another Freeman, Brian Alexander, had his appeal dismissed of a justice of the peace’s decision finding him guilty of failing to produce a valid driver’s licence. His appeal stated that the court had no jurisdiction.

How do lawyers and notaries fit into all this?

Freemen have attended law firm and notary offices, seeking to have their documents “notarized.” The documents have strange wordings, stamps, blood and finger seals, UCC and biblical references and the like. They are usually pseudo-legal and completely unlike any legal document that a lawyer or notary would draw or witness.
In one case in BC, a notary witnessed a series of documents with names such as a “Notice of Non Response,” a “Notarial Certificate of Dishonour” and a “Notarial Instrument of Protest,” which led to the creation of a “True Bill and Notice of Accounting” for the sum of $3.5 billion dollars. These were all stated to be against the BC Court of Appeal. In this case, the notary apparently witnessed the documents in her capacity as “Notary Acceptor.” She was disciplined by the Society of Notaries Public for breach of Rule 11.01 of the Notary Rules, and admitted that her conduct was contrary to the best interests of the public and the notarial profession.
Lest one believe that only notaries have witnessed and notarized these documents, there have been instances when BC lawyers too have been approached about acting in this capacity.

Safety

Since one of the tenets of the Freeman-on-the-Land movement is an unrestricted right to possess and use firearms, they raise significant safety and security concerns. They have been known to become angry when lawyers or notaries have refused to notarize their documents or when stopped by police officers.
The CBC did an excellent feature on the Freeman-on-the-Land movement that mentions an affidavit of truth: www.cbc.ca/news/canada/story/2012/02/29/freeman-movement-canada.html. It includes video of a Freeman acting up in court.
YouTube has a video showing a routine traffic stop of a “sovereign citizen” that ended in the death of the two peace officers involved: http://www.youtube.com/watch?v=3sDAyGod5PM.
S. de Léséleuc in Criminal Victimization in the Workplace (Canadian Centre for Justice Statistics, Statistics Canada, 2004 http://www.statcan.gc.ca/pub/85f0033m/85f0033m2007013-eng.pdf) stated that 17 per cent of all self-reported violent crimes occurred at the victim’s place of work. That is over 356,000 incidents of violence in Canadian workplaces in a single year.
While the Freeman movement represents a small but potentially growing threat, there remains the possibility that a law office could face this or other type of security threat. Accordingly, there are two steps that law offices should consider and implement for the safety of their workers.
The first is to have a workplace security plan in place to deal with external threats to those in the office. This plan should include dealing with an angry and possibly armed individual entering the office. It should also extend to dealing with potential bomb threats, suspicious packages being delivered to the office, etc. Everyone in the office should be familiar with the plan and, like a fire drill, it should receive an occasional trial run to ensure that everyone understands their role and what is, and is not, to be done in the circumstances.
Examples of such security plans can be found at:

University of Washington (www.washington.edu/admin/police/prevention/Workplace_Security_Plan_current.pdf)
Michigan Workplace Security Resource Guide (http://www.michigan.gov/documents/CIS_WSH_security_73971_7.htm)

The second is to recognize when a Freeman or sovereign citizen is attending the office and asking to have documents executed, witnessed and/or notarized and to take appropriate action in the circumstances.
Lawyers should determine when they are being asked to notarize documents that they do not recognize and that appear to have no legal purpose. Lawyers should not be acting in a way that gives a patina of credibility to a pseudo-legal litigant. Above all, “A lawyer owes a duty to the state, to maintain its integrity and its law.” (Chapter 1, Rule 1(1) Canons of Legal Ethics – Professional Conduct Handbook).
Being prepared to deal with the Freeman-on-the-Land is simply prudent business planning. After all, notarizing a document isn’t something to die for.
http://www.lawsociety.bc.ca/page.cfm?cid=2627&t=Practice-Tips-The-Freeman-on-the-Land-movement

Tuesday, January 29, 2013

OATH

INDICTING THE IRS - TAMI PEPPERMAN

Monday, January 28, 2013

PART E - ACCESS TO COURT & JUDICIAL REMEDIES - DISCRETION OF COURT TO REFUSE RELIEF - HIGH COURT & GENERAL LAW

DISCRETION OF COURT TO REFUSE RELIEF
2.1   High Court & General Law

-    Allars 13.8.1- the court has a discretion to decline relief even though an administrative action is justiciable, the plaintiff has standing, and a ground of review is established.
-    Prohibition and certiorari may be declined due to delay, prejudice to the respondent outweighing the grant of relief, and futility.
-    Ex Parte Mullen; Re Wigley set out the discretion to decline grant of mandamus, namely, the court will, “refuse an application for the prerogative writ of mandamus where there is an alternative remedy at law which is equally convenient, beneficial and effectual… and where the statute imposing the duty provides a specific remedy for the enforcement of that duty, the remedy of the prerogative writ of mandamus is not available.”
-    Also, they will not grant it if the application is not made in good faith or to achieve some indirect purpose, or there is an ulterior motive.
-    Allars 13.8.2- Injunction and declaration are discretionary remedies. An important principle is that the jurisdiction of the civil courts to grant an injunction to restrain an actual or threatened breach of the criminal law is used only in exceptional cases, like A-G v Harris 1961, here shopkeepers complained their trade was reduced by unfair competition of flower sellers at a stall near a cemetery on Sundays in breach of a regulation. Since the flower sellers were ‘deliberately flouting the law’, and the fines were small compared to the profits, an injunction was granted to restrain the illegal activities.

Re Refugee Review Tribunal; Ex parte Aala (2001) 75 ALJR 52
•   Gleeson, Gaudron & Gummow JJ- conclude the HC can grant remedy of prohibition where there has been a matter of procedural fairness. They regard jurisdiction as an area of procedural fairness. Can  grant prohibition. Use original intent theory.
•   Kirby has different approach to remedies available- rejects the approach of looking at original intent of the framers. Writs of prohibition and mandamus were not fixed for all time when the constitution was framed. Developments in England shouldn’t influence constitutional remedies in Australia.
•   A lack of procedural fairness is an error of jurisdiction.
•   Where PF is breached resulting in excess jurisdiction, prohibition is given almost as of right.
o   Kirby believes certiorari is more appropriate remedy
•   NB: the court says they have discretion- don’t need to grant the remedies if see a reason why they shouldn’t.
•   Relief only withheld where:
o   Compliance with procedural fairness would have made no difference;
o   Where a person has been slow to assert their rights;
o   Where a person may be taken to have waived rights;
o   Where the argument/breach of PF has been trivial;
o   Where decision would result in disproportionate inconvenience or injustice. NB Project Blue Sky
•   Courts must adhere to the fair hearing rules. This means govt officials given power must work within that power, not acting on “some personal predilection”. Similarly, it won’t be necessary have proceedings based on “insignificant, purely formal and immaterial mistakes”.
•   Question of fact- the impact a hearing would have had on the tribunal’s decision.
•   Constitutional writs of mandamus and prohibition are available, as are those of certiorari and injunction

2.2   ADJR Act

Lamb v Moss (1983) 49 ALR 533

Facts: Moss was a doctor charged under the Crimes Act (Cth) of conspiracy to defraud the Commonwealth. In committal proceedings a prima facie case found under a different offence. Magistrate refused to allow cross-examination of Crown witness and indicated he did not propose to discharge Moss under the Justices Act. Moss commenced under ADJR act for review magistrate’s decision.

Held:
-    Nowhere, except in s 10(2)(b) does the Act [ADJR Act] expressly empower the court to refuse relief, although obviously that power must exist when no basis for relief is established.
-    Once jurisdiction of courts properly enlivened under ADJR Act (standing and decision of admin character under an enactment) there is an obligation to entertain an application
-    But basis for relief under the act must be established
-    Federal court has the same discretion to grant or refuse relief as courts do dealing with an application for traditional common law or equitable remedies
-    Order for review in respect of committal proceedings only made in ‘most exceptional circumstances’.
-    Court will always entertain the application so long as grounds made out but they do have the discretion to grant relief.

ADJR Act s 10

S10(1)(a) rights in the act are in addition to any other rights the person has to seek review
(2)(a) can decline to exercise jurisdiction if the applicant has already sought review by another means or they should seek review by another court/body, pursuant to another act.

3.   STANDING, INTERVENTION, JOINDER AND FRIENDS OF THE COURT
4.    STANDING
4.1   Prerogative remedies

The prerogative remedies in public law (used in state courts where codified) are:-
-   Prohibition = stop proceedings to prevent illegality. Can’t be used once a decision is reached.
-   certiorari = quashing of a decision (gives superior cts a supervisory role over decisions made by lessor bodies (on the ground of non juris error, of law on the face of the record, juris error or procedural unfairness)
-   mandamus = compelling order against reluctant administrators to carry out functions lawfully. A person whose legal specific right is affected has standing to seek mandamus.
Injunctions and declarations, from private law, may also be sought in judicial review actions
The principles relating to standing to seek judicial review have differed according to the remedy sought

Availability:
Relief in the nature of C and P will lie: “wherever any body of persons having legal authority to determine questions affecting the rights of subjects, and having the duty to act judicially, act in excess of their legal authority”: R v Electricity Commissioners ex p London Electricity Joint Committee (1924), per Atkin LJ
Lord Atkin’s dictum is still the locus classicus for the availability of the 2 remedies, but over the years there have been some judicial refinements:
*    As to the question of when a body has “legal authority”, the courts now appear to be moving to a position where the essential question is not the formal source of power to determine rights but whether the authority being exercised is sufficiently ‘public’ in nature: see R v City Panel on Takeovers and Mergers; ex p Datafin plc (1987). In the past, relief was held to be unavailable where the body in question was a private or domestic body or where the matter complained of was a private law matter of a public body: see R v BBC; ex p Lavelle (1983)
*    The requirement as to “rights” was relaxed quite early to allow the remedies to lie where rights in the strict legal sense (eg. proprietary rights) were not actually being determined by the body in question. However it is still generally considered necessary that the ‘determination’ in question create or affect rights and obligations in some substantive way (see R v Collins; ex p ACTU-Solo Enterprises Pty Ltd (1976); Greiner v ICA/Moore v ICAC (1992), even if the particular decision is not the final or ultimate one.
*    In contrast, in Hot Holdings v Creasy, it was held that a preliminary decision or recommendation, if it is one to which regard must be paid by the final decision maker, would have the requisite legal effect upon rights to attract certiorari
*    The duty to act “judicially” is now interpreted as a duty to act fairly in thew making of administrative decisions affecting rights, interests and legitimate expectations: see Ridge v Baldwin (1964); Kioa v West (1985)

R v Justices of Surrey (1870) LR 5 QB 466
•   A party aggrieved has standing to seek prohibition or certiorari. The person has to suffer damage to an interest greater than the ordinary members of the public. A person is aggrieved if his or her interests are affected by a decision of a tribunal or inferior court made in excess of jurisdiction.
•   A member of public has standing at the discretion of the court.

Sinclair v Mining Warden at Maryborough (1975) 132 CLR 473
*    Sinclair had standing because as an objector to an application for a mining lease, over 1100 acres of Fraser Island, he had the right to have the hearing of the application conducted according to the law. Objection that sandmining against the public interest because of irreversible damage to the environment.
*    Courts held he has a legal right because has a statutory right to be an objector.  has standing to object in the public interest.
*    Courts often use a ‘sufficient interest’ test or test in ACF instead of the traditional test set out above. Can approach this kind of question using the ACF test.
*    Note► In more recent years, the test of “special interest” (see ACF Inc v Cth (1980)), applicable to actions for equitable relief, has (in the absence of a right of statutory standing) sometimes been applied: see, for example, Mirror Newspapers Ltd v Walker (1985); State Planning Commission; ex p Helena Valley/Boya Assoc Inc (1990)
*    In the absence of a statutory right of standing, a person has a special interest in the subject matter of the proceedings for the purposes of relief in the nature of certiorari and prohibition if the person’s interests may be prejudicially affected in some way and the person is someone other than a “mere busybody”: see R v Liverpool Corporation (1972); R v Corporation of the City of Burnside (1987)
http://www.studentatlaw.com/articles/115/2/Part-E---Access-to-Court-amp-Judicial-Remedies/Page2.html
http://www.studentatlaw.com/articles/115/2/Part-E---Access-to-Court-amp-Judicial-Remedies/Page2.html

PART E - ACCESS TO COURT & JUDICIAL REMEDIES - TYPES OF JUDICIAL REMDIES

1.    TYPES OF JUDICIAL REMDIES

Prerogative Remedies
-    Mandamus – we command  we want an order of mandamus forcing the person to make a decision in accordance with the law. Or want an order now
-    Prohibition – Stop a decision from being made. If you had found out about the decision earlier, we could have granted remedy of prohibition, but too late
-    Habeas Corpus – stopping access to ct; detainment
-    Certiorari – decision affected by unlawfulness, therefore will be set aside. It is as if the decision was never made, becomes null and void. Then it goes back to the decision maker. The minister has to make the decision in accordance with the law. It is an effective remedy because theoretically the decision-maker can’t make the same decision again.

Equitable Law remedies (Private Law remedies)
-    injunction
-    declaration

1.1    Remedies at General Law and under Commonwealth Constitution

Ainsworth v Criminal Justice Commission (1992) 175 CLR 564

Facts: Ainsworth investigated to see whether they were able to be allowed to have gambling in their companies. Claimed breach of PF and asked for any prerogative remedy Ainsworth asked for certiorari, setting aside the report, mandamus and prohibition

Held: MASON CJ, DAWSON, TOOHEY AND GAUDRON JJ:

-    CJC making adverse findings
-    Mandamus (forcing a hearing- ask for when enforcing a statutory duty) not appropriate as CJC not under stat duty to make findings- was done at the request of the minister. Mandamus not appropriate remedy unless can show there is a statutory duty which must be performed.
-    Certiorari (setting aside a decision) not appropriate as no ‘decision’ has been made under the Act- the CJC simply investigating.
-    The function of certiorari is to quash the legal effect or the legal consequences of the decision or order under review. The report made and delivered by the Commission has, of itself, no legal effect and carries no legal consequences, whether direct or indirect. The appellants may be granted a licence in direct opposition to the report. There being no legal effect of the report certiorari will not be appropriate.
-    Certiorari may be granted in a case where rights are subjected to a new hazard, as where a recommendation operates as a precondition or bar to a course of action, or as a step in a process capable of altering rights.
-    Prohibition would be appropriate if advance knowledge that CJC about to make adverse findings aware of the fact certain proceedings are underway and ask court to prevent continuation of conduct. Too late because already made its findings and report.
-    It is now accepted that superior courts have inherent power to grant declaratory relief. However it is confined by the considerations which mark out the boundaries of judicial power.
-    The person seeking relief must have a real interest and relief will not be granted if the question is purely hypothetical.
-    The present case involves no mere hypothetical question. At all stages there has been a controversy as to the Commission’s duty of fairness.
-    Declaration (that CJC should have afforded them the rights of PF) the appropriate remedy for lack of PF. Court has declared proceedings unlawful-  minister can’t rely on the report.
-    The appeal should be allowed. The order of the Full Court of the Supreme Court of Qld should be set aside and, in lieu thereof, it should be declared that, in reporting adversely to the appellants the Commission failed to observe the requirements of procedural fairness. The order nisi for writs of certiorari and mandamus should be discharged. The Commission should pay the appellants’ costs of the proceedings in the Supreme Court and of this appeal.

Hot Holdings Pty Ltd v Creasy (1996) 185 CLR 149

Facts: Hot Holdings Pty Ltd sought certiorari with respect to a recommendatory decision by a mining warden to conduct a ballot for the purpose of determining the party entitled to priority under the Mining Act 1978 (WA). The mining warden’s recommendation was a precondition to a decision by the Minister and had a discernible legal effect upon the Minister’s exercise of discretion.

PRINCIPLE: If recommendation is a precondition to a decision under the statute then certiorari (setting aside the decision) is available.

Held:
-    HC liberalised the test of when certiorari is available. The majority held that certiorari lies where a preliminary decision must be taken into account by a body entrusted with the power to make a decision directly determining legal rights. As a result, certiorari was available with respect to a recommendatory decision by a mining warden to conduct a ballot
-    Following from ABT v Bond- if a recommendation is made as a stat requirement prior to the final decision being made, it is treated as a decision and certiorari is available.

NB.
-    Certiorari is well-known as the remedy issued for error of law on the face of the record, but is also appropriate for jurisdictional error and denial of procedural fairness.
-    Prohibition is available to prevent an excess of jurisdiction or a denial of procedural fairness. Prohibition rather than certiorari is the appropriate remedy where the tribunal or inferior court has not yet completely determined a matter.
-    Mandamus is available to compel the performance of a public duty, including a duty to exercise a statutory discretion. A constructive failure to exercise jurisdiction may attract relief in the form of mandamus. For mandamus however the court must be convinced that the administrator had a duty, not merely a discretionary policy decision.
-    The jurisdiction of a superior court to grant declarations in judicial review is wide and discretionary, and the declaration is now a more common form of relief in judicial review at general law than the prerogative remedies.
-    Interlocutory injunctions are granted where there is a serious question be tried and balance of convenience favours intervention by the court pending the hearing of the application for a final injunction.

Re Refugee Review Tribunal; Ex parte Aala (2001) 75 ALJR 52
Constitution s75 (v)  HC has orig jurisdiction to hear matters against Cth official in which mandamus, prohibition etc is awarded.

-    HC had to decide whether constitution includes the remedy of certiorari even though not expressly in s75 (v). HC said it had the power to grant certiorari under the constitution because it is ancillary and incidental. Read s75 (v) as including the right to grant remedy of certiorari.
-    HCA had to decide whether there were restrictions on granting remedies.
-    Kirby J: shouldn’t call remedies under constitution prerogative remedies. Under constitution remedies are specifically enumerated in constitution s75  they are constitutional remedies.  don’t need to look to CL
-    constitutional not prerogative writs

1.2    ADJR Act Reform

ADJR Act ss 15, 16

S15 – Application to the court under s5 in relation to a decision does not affect the operation of the decision or prevent the taking of an action to implement the decision but
a)    a court may by order (on conditions it thinks fit) suspend the operation of the decision and
b)    the court may order (on conditions it thinks fit) a stay of all or any proceedings under the decision.
The court may make such an order of its own motion or on the application of a person who made the application under s5.

S16 – (1) On application for an order of review of a decision the court may, in its discretion make any of the following orders:
a)    an order to quash or set aside decision or part of decision [certiorari]
b)    an order referring the matter for further consideration by the person who made it.
c)    An order for declaration of rights of the parties [declaration]
d)    An order directing the parties to do any act or thing that the court considers necessary for justice [mandamus]

(2) on application for review of conduct that has been, is being, or will be engaged in to make a decision the court may
a)    order declaring rights
b)    order to do or refrain from act

(3) on application for review of a failure to make a decision court may
a)    order directing the making of a decision
b)    order declaring rights of parties in relation to making a decision
c)    order to do or refrain from act

(4) The court may at any time revoke, vary or suspend the operation of any order made under this section.

Park Oh Ho v Minister for Immigration and Ethnic Affairs (1989) 167 CLR 637

Facts: 7 Korean businessman came to Australia illegally and were arrested. Deportation orders were issued. DPP wanted them to stay as witnesses in prosecution of Korean person and corrupt officers of Customs involved in the illegal immigration scheme. Stayed for 3months until told they were not obligated to stay longer. They sought review under ADJR act and a stay of the execution of the deportation orders. The applicants granted leave to appeal to HC confined to the question whether the Full court was correct in declining to declare that the detention was unlawful from the date of the deportation orders.

Held:
-    Leg purpose of S16- allows flexibility in the framing of orders so that the issues properly raised in the review proceedings can be disposed of in a way which will do justice and avoid unnecessary litigation.
-    In the present case- where the decision is a deportation order which has been found to be null and void ab initio and the person is still in custody of the decision maker, an injunctive order that the respondent do whatever be necessary to procure the applicants release could be properly considered as ‘necessary to do justice between the parties’.
-    Each appellant was entitled to a declaratory order that his detention was unlawful in addition to an order formally quashing the deportation order on which the detention was based.
Appeal allowed.

http://www.studentatlaw.com/articles/115/1/Part-E---Access-to-Court-amp-Judicial-Remedies/Page1.html

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