WITHOUT PREJUDICE

Senior Member Ms Preuss vcat@vcat.vic.gov.au 27-1-2010

5 Cc; * Mr & Mrs Colosimo, 72 Shuter Avenue, Greendale, Vic 3341 francesco.c@live.com.au
* Mr Lindsay M Vowels Phd FAPS MAPA aeiou@netspace.net.au
* Maddocks (for Moorabool Shire Council) (Ref MYM:KJM:5285015
Email Annie.Bird@maddocks.com.au
* Deputy Registrar Ashe Whitaker VCAT – Guardian List) vcat@vcat.vic.gov.au
10 * Mr Brendan Hoysted brendan.hoysted@justice.vic.gov.au
* Mr. Peter Sier, Peter.sier@statetrustees.com.au
* Moorabool Shire Council Councillors info@moorabool.vic.gov.au
Cr Michael Tudball mtudball@moorabool.vic.gov.au
Cr Allan Comrie Cr Pat Griffin Cr Pat Toohey Cr Tom Sullivan
15 Cr Russell Hendry Cr Philip Flack and/or any other councillor

Ref; G54449/00 (including V2/2007 & P194/2007 and other related proceedings) Mr Francis James Colosimo Re
Ms Preuss – Re (Partial) DRAFT NOTICE OF ISSUES - etc.
.
20 . Ms Preuss – Re (Partial) DRAFT NOTICE OF ISSUES- etc
Madam,
As it appears you are determined to proceed with the VEXATIOUS litigation I
foreshadow that Mr Francis James Colosimo may pursue within s75(v) of The Commonwealth
of Australia Constitution Act 1900 (UK) for orders of mandamus, injunction and/or prohibition
25 .
QUOTE
75 Original jurisdiction of High Court
In all matters:
(i) arising under any treaty;
30 (ii) affecting consuls or other representatives of other countries;
(iii) in which the Commonwealth, or a person suing or being sued
on behalf of the Commonwealth, is a party;
(iv) between States, or between residents of different States, or
between a State and a resident of another State;
35 (v) in which a writ of Mandamus or prohibition or an injunction
is sought against an officer of the Commonwealth;
the High Court shall have original jurisdiction.
END QUOTE
.
40 Below I have quoted “(partial) DRAFT NOTICE OF CONSTITUTIONAL MATTERS”
which is intended to be filed would VCAT not abort further VEXATIOUS litigation regarding
G54449 against Mr Francis James Colosimo and as indicated this is a mere DRAFT and may
further contain additional claims including the validity of VCAT to seek to oust ordinary
adjudication by the courts. There can be absolutely no doubt that Mr Francis James Colosimo
45 from onset, and further subsequently assisted by myself, did pursue OBJECTIONS TO THE
JURISDICTION in regard of VCAT but time and time again VCAT showed a total disregard to
the RULE OF LAW and so also continue the VEXATIOUS litigation harassment upon Mr
Francis James Colosimo without legal justification and obviously if you are not prepared to stop
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 this utter and sheer nonsense then I view there is no alternative but to pursue orders that may
finally stop VCAT continue its kind of modus operandi against Mr Francis James Colosimo and
perhaps also against others.

5 In view of this correspondence I foreshadow that the 1 and 2 February 2010 listed hearings
would not then be able to proceed because VCAT would have no legal position to do so the
moment the NOTICE OF CONSTITUTIONAL MATTERS has been filed within VCAT,
which is anticipated on or before 1 February 2010..
.
10 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.
.
15 QUOTE In the marriage of Smith v Saywell (1980) Fam LR 6 245 at 258
Where a case pending in a federal court other than the HIGH COURT or in a court of a state
or territory involves a matter arising under the Constitution involving its interpretation, it is
the duty of the court not to proceed in the cause unless and until the court is satisfied that
notice of the cause, specifying the nature of the matter has been given to the Attorney
20 General of the commonwealth and (a) if the cause is pending in a court of a state - to the
Attorney General of that state; or (b) if the cause is pending in a Federal court and was
initiated in a state - to the Attorney General of that state, and for a reasonable time elapsed
since the giving of the notice for consideration by that Attorney General or by those
Attorney General, of the question of intervention in the proceedings or the removal of the
25 cause to the HIGH COURT.
END QUOTE
.
The following will also make clear that the Framers of the Constitution intended to have CIVIL
RIGHTS and LIBERTIES principles embedded in the Constitution;
30 HANSARD 17-3-1898 Constitution Convention Debates (Official Record of the Debates of
the National Australasian Convention)
QUOTE Mr. CLARK.-
for the protection of certain fundamental rights and liberties which every individual
citizen is entitled to claim that the federal government shall take under its protection and
35 secure to him.
END QUOTE
.
HANSARD18-2-1898 Constitution Convention Debates (Official Record of the Debates of
the National Australasian Convention)
40 QUOTE Mr. ISAACS.-
The right of a citizen of this great country, protected by the implied guarantees of its
Constitution,
END QUOTE
.
45 Held by the High Court of Australia that a State Court, the appellated jurisdiction of which is
limited by a State Act, has no federal appellated jurisdiction beyond those limits. R. v.
Whitfield and Others’ Ex parte Quon Tat, (1013) 15 C. L.R. 689; 19 A.L.R. 97
.
Held by the High Court of Australia that under this section the Courts of the several States have
50 federal appellated jurisdiction, as regard the matters enumerated in ss75 and 76 of the
Constitution, to the same extent that, and subject to the same conditions as, under the State laws
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 they have appellated jurisdiction in matters to which State laws apply. Ah Yick v Lehmert,
(1905) 2 C.L.R. 593; 11 A.L.R. 306
.
Held by the High Court of Australia (Williams J.) that under this section 40 of the Judiciary Act
5 1903 the Attorney-General for the Commonwealth or a State may apply for the removal into the
High Court of a cause or part of a cause whether or not he is a party to the proceedings in which
the cause arises, and if the cause really and substantially arises under the Constitution or involves
its interpretation, the court MUST grant the removal as of right notwithstanding that the matter is
apparently concluded by authority. Any distinct and divisible question may be “part” of such a
10 cause within the meaning of this section. In re an Application by the Public Service Association
of N.S.W. , (1947) 75 C.L.R. 430
.
Per Evatt J. ; Each question as to the limits inter se is involved where State Legislature is
challenged on the grounds that it contravenes s. 90 of the Constitution. Hopper v Egg and
15 Egg Pulp Marketing Board (Vic), (1939) 61 C.L.R. 665, at p 681; A.L.R. 249, at p 255
.
Per Evatt J.; Each question of the validity of the Commonwealth legislation in s51 of the
Constitution (and a fortiori in s. 52) necessarily raised a question as to the limits of
Commonwealth and State powers. Ibid at p. 682 C.L.R. and p 255 A.L.R.
20 .
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
.
25 Judiciary Act 1903 (Cth)

39 Federal jurisdiction of State Courts in other matters

QUOTE
(1) The jurisdiction of the High Court, so far as it is not exclusive of the jurisdiction of
any Court of a State by virtue of section 38, shall be exclusive of the jurisdiction of
30 the several Courts of the States, except as provided in this section.
(2) The several Courts of the States shall within the limits of their several jurisdictions,
whether such limits are as to locality, subject-matter, or otherwise, be invested with
federal jurisdiction, in all matters in which the High Court has original jurisdiction or
in which original jurisdiction can be conferred upon it, except as provided in section
35 38, and subject to the following conditions and restrictions:
(a) A decision of a Court of a State, whether in original or in appellate jurisdiction,
shall not be subject to appeal to Her Majesty in Council, whether by special
leave or otherwise.

Special leave to appeal from decisions of State Courts though State law prohibits
40 appeal
(c) The High Court may grant special leave to appeal to the High Court from any
decision of any Court or Judge of a State notwithstanding that the law of the
State may prohibit any appeal from such Court or Judge.

Exercise of federal jurisdiction by State Courts of summary jurisdiction

45 (d) The federal jurisdiction of a Court of summary jurisdiction of a State shall not
be judicially exercised except by a Stipendiary or Police or Special Magistrate,

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 or some Magistrate of the State who is specially authorized by the
Governor-General to exercise such jurisdiction, or an arbitrator on whom the
jurisdiction, or part of the jurisdiction, of that Court is conferred by a prescribed
law of the State, within the limits of the jurisdiction so conferred.
5 END QUOTE
.

39A Federal jurisdiction invested in State Courts by other provisions

QUOTE
(1) The federal jurisdiction with which a Court of a State is invested by or under any
10 Act, whether the investing occurred or occurs before or after the commencement of
this section, including federal jurisdiction invested by a provision of this Act other
than the last preceding section:
(a) shall be taken to be invested subject to the provisions of paragraph (a) of
subsection (2) of the last preceding section; and
15 (b) shall be taken to be invested subject to the provisions of paragraphs (c) and (d)
of that subsection (whether or not it is expressed to be invested subject to both
or either of those provisions), so far as they are capable of application and are
not inconsistent with a provision made by or under the Act by or under which
the jurisdiction is invested;
20 in addition to any other conditions or restrictions subject to which the jurisdiction is
expressed to be invested.
(2) Nothing in this section or the last preceding section, or in any Act passed before the
commencement of this section, shall be taken to prejudice the application of any of
sections 72 to 77 (inclusive) in relation to jurisdiction in respect of indictable
25 offences.
END QUOTE
.
From the above it already ought to be clear that a State Court, subject to certain provisions, can
exercise Federal jurisdiction.
30 While the authorities below are USA Authorities, the legal concepts nevertheless are of a general
nature that can be applied within the Commonwealth of Australia.
.
QUOTE
 JURISDICTION the power to hear and determine a case. 147 P.2d 759, 761. This power
35 may be established and described with reference to particular subjects or to parties who fall
into a particular category. In addition to the power to adjudicate, a valid exercise of
jurisdiction requires fair notice and an opportunity for the affected parties to be heard.
Without jurisdiction, a court's judgment is void. A court must have both SUBJECT
MATTER JURISDICTION and PERSONAL JURISDICTION (see below). See also
40 territorial jurisdiction; title jurisdiction."
SUBJECT MATTER JURISDICTION refers to the competency of the court to hear
and determine a particular category of cases. Federal district courts have "limited"
jurisdiction in that they have only such jurisdiction as is explicitly conferred by
federal statutes. 28 U.S.C. §1330 [EDITOR'S NOTE: see also 40 U.S.C.S. §255] et seq.
45 See LIMITED [SPECIAL] JURISDICTION. Many state trial courts have "general"
jurisdiction to hear almost all matters. The parties to a lawsuit may not waive a
requirement of subject matter jurisdiction.
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 TERRITORIAL JURISDICTION the territory over which a government or a
subdivision thereof has jurisdiction, 147 P.2d 858, 861; relates to a tribunal's power
with regard to the territory within which it is to be exercised, and connotes power
over property and persons within such territory. 94 N.E. 2d 438, 440.
5 TERRITORIAL COURT a court established by Congress under Art. IV, Sec. 3, Cl. 2
of the Constitution, which gives Congress the power to make "all needful rules and
regulations respecting the territory or other property belonging to the United States."
370 U.S. 530, 543; 371 F.2d 79, 81. Above definitions from: Barron's Law Dictionary,
Fourth Edition.
10 END QUOTE
.
Commonwealth v Brisbane Milling Co. Ltd. (1916) 21 C.L.R. 559; A.L.R. 272.
QUOTE Barton J,
the parliament cannot give the word a meaning not warranted by s73 of the
15 Constitution.
END QUOTE
The State Court is acting under normal legal procedures applicable to State Court rules and the
Commonwealth of Australia has no constitutional powers to interfere with this. It can only
provide legislation regarding certain matters provided they do not seek to interfere with the State
20 Courts legal procedures.
.
QUOTE Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163 (24 October 1995)
Jurisdictional error
10. In considering what constitutes "jurisdictional error", it is necessary to distinguish
25 between, on the one hand, the inferior courts which are amenable to certiorari and, on the
other, those other tribunals exercising governmental powers which are also amenable to the
writ. Putting to one side some anomalous exceptions, the inferior courts of this country are
constituted by persons with either formal legal qualifications or practical legal training.
They exercise jurisdiction as part of a hierarchical legal system entrusted with the
30 administration of justice under the Commonwealth and State constitutions. In contrast, the
tribunals other than courts which are amenable to certiorari are commonly constituted,
wholly or partly, by persons without formal legal qualifications or legal training. While
normally subject to administrative review procedures and prima facie bound to observe the
requirements of procedural fairness, they are not part of the ordinary hierarchical judicial
35 structure. In what follows, the anomalous courts or tribunals which fall outside the above
broad descriptions can be ignored. Since the District Court of South Australia is
undoubtedly a court, the primary focus of discussion will be upon what constitutes
jurisdictional error on the part of an inferior court.

40 11. An inferior court falls into jurisdictional error if it mistakenly asserts or denies the
existence of jurisdiction or if it misapprehends or disregards the nature or limits of its
functions or powers in a case where it correctly recognises that jurisdiction does exist. Such
jurisdictional error can infect either a positive act or a refusal or failure to act. Since
certiorari goes only to quash a decision or order, an inferior court will fall into
45 jurisdictional error for the purposes of the writ where it makes an order or decision
(including an order or decision to the effect that it lacks, or refuses to exercise, jurisdiction)
which is based upon a mistaken assumption or denial of jurisdiction or a misconception or
disregard of the nature or limits of jurisdiction.
END QUOTE
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 And
QUOTE
22. Judge Russell's conclusion that the appellant "could not receive a fair trial unless he is
properly represented by counsel" and his order staying the proceedings were based on a
5 number of particular preliminary findings of fact. Those findings were directed to the
matters identified in the above extract from the judgment of Mason CJ and McHugh J in
Dietrich. They included the following: that the appellant was charged with "major
indictable offences"; that the appellant was "an indigent accused" who had "been refused
legal aid" and had "no means, or no sufficient means, to fund the cost of (proper)
10 representation"; that it could not be said that the appellant's lack of legal representation
resulted from any "fault" on his part; that there were no "exceptional circumstances which
would prevent" the making of a stay order; that the appellant had no legal training and
suffered from an impediment of speech. Clearly, if those findings are accepted, the present
case was one in which the decision of this Court in Dietrich required that the
15 proceedings should be adjourned, postponed or stayed. Indeed, the extract from the
transcript which has been set out earlier in this judgment indicates that counsel for the
Crown effectively conceded that that was so. The Crown's attack on his Honour's order
staying the proceedings has, at all stages, been directed at one of those findings, namely,
the finding that the appellant's inability to obtain legal representation had not been brought
20 about through his own fault. The basis of the Full Court's decision that an order in the
nature of certiorari should be made was a conclusion of the majority judges that that
finding was vitiated by error amounting to jurisdictional error.
END QUOTE
.
25 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
30 exercising its State jurisdiction
END QUOTE
.
Thompson v Tolmie 27 U.S. 157 (1829) Page 27 U.S. 157, 169
QUOTE
35 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.'
40 END QUOTE
And
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
45 be rejected upon direct collateral attack.
END QUOTE
.
Uniform Tax \case, 1942 (65CLR 373 at 408) 23-7-1942
QUOTE
50 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
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 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
5 invalid ab initio.
END QUOTE
.
QUOTE R. Watson; Ex Parte Armstrong: Full Court of the HIGH COURT: (1976) 1 FLR
11, 297; 9 ALR 551;(1976) FLC 90-059
10 exercises judicial power and must discharge his duties judicially.
END QUOTE
This about a judge of the Family Court, even so having the ability of exercising a very wide
discretion (ref R108 (2))
.
15 QUOTE (partial) DRAFT NOTICE OF CONSTITUTIONAL MATTERS
FORM 69

NOTICE OF A CONSTITUTION MATTER O 73 r 1 High Court Rules

20 UNDER SECTION 78B of the JUDICIARY ACT 1903

VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL No. of 2010

FRANCIS JAMES COLOSIMO Defendant

25 and

Mr Brendan Hoysted, Duty Officer, Office of the Public Advocate Plaintiff

and
30
Mr Preuss VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL Tribunal member

NOTICE OF CONSTITUTIONAL MATTER

35
1. The Defendant FRANCIS JAMES COLOSIMO gives notice that the proceedings
involves a matter arising under the constitution or involving its interpretation within the
meaning of section 78B of the judiciary Act 1903.

40 2. That the Defendant objected to the jurisdiction of VICTORIAN CIVIL AND

ADMINISTRATIVE TRIBUNAL to hear the matters arising of the proceedings
instituted by the applicant in regard of matters relating to the litigation instituted on 22
January 2007 by Moorabool Shire Council, which proceedings resulted to the Guardian
and Administration litigation the Defendant is subjected to.
45
3. The said VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL (VCAT) from
onset had declines to consider an OBJECTION TO JURISDICTION made from onset
by me and has persisted in a line of litigation that denies my constitutional rights,
NATURAL JUSTICE, the RULE OF LAW, etc. Such as at each hearing VCAT
50 refused to appropriately deal with the OBJECTION TO JURISDICTION and is not a

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 court that can invoke federal jurisdiction. Further, that Her Honour Harbison J who
requested (as for the purpose of establishing the mental competence of the Defendant to
stand trail for CONTEMPT) for the Office of the Public Advocate to investigate matters
as to my competence to stand trail for CONTEMPT was not a suitable person in view that
5 Her Honour Harbison J as a sitting judge of the County Court of Victoria, having to be an
impartial member of the judiciary could not at the same time be a member of VCAT
which is a organ of the State government due to the conflict of duties responsibilities,
liabilities and impartiality, where a judge of the County Court of Victoria is to be and
remain impartial. Further, Her Honour Harbison J despite holding 6 CONTEMPT
10 hearings at no time had formally charged me with CONTEMPT and in the end on 16
March 2009 accepted the submission of Mr Gerrit Hendrik Schorel-Hlavka who was
assisting me in the litigation as a CONSTITUTIONALIST that the CONTEMPT
proceedings should be PERMANENTLY STAYED. Further, that my objection against
Moorabool Shire Council to litigate against me in the first place not being recognise as a
15 kind of level of government within The Commonwealth of Australia Constitution Act
1900 (UK) as such had no legal position to institute proceedings for this also. Further,
that Ms Preuss a senior member of VCAT failed to adhere, as other VCAT members did
previously, to required legal procedures that are applicable to litigation and by this
grossly denied the Defendant of his constitutional rights by this also. Further, that
20 members of VCAT are required to be legal practitioners and legal practitioners can only
be admitted to the bar of the Supreme Court of Victoria provided they have an oath of
alliance as an “Australian citizen” purportedly being a nationality even so no such
nationality exist and as such are not validly admitted to the bar and neither therefore are
validly appointed. Further, that Mr Brendan Hoysted, Duty Officer of the Office of the
25 Public Advocate instead of being to assist a Defendant has set out to become so to say
effectively the enemy in litigation. Further, that VCAT has failed to deal with various
breaches of its orders by the State Trustees Limited and as such showed to be bias and
allowed ongoing harm upon me, whereas when it viewed I was in breach of orders, albeit
never formally charging me, it pursued a term of imprisonment for me. Further, VCAT
30 fails to apply proper procedures that where it is not a court and cannot either invoke
federal jurisdiction then where it is faced with an OBJECTION TO JURISDICTION it
should, which it failed to do, hold the prosector (then Moorabool Shire Council)
responsible to obtain such orders of the Supreme Court of Victoria and/or the High Court
of Australia, which ever is the appropriate venue for this, as to a finding that VCAT can
35 invoke jurisdiction. Further, that Ms Preuss conduct on 22 October 2009 having ruled that
there is no supportive material to sustain the application for Administration, that is under
review, abused and misused her powers, for so far there existed any, to nevertheless
persist in holding a trail and seeking to place the onus upon the Defendant to provide
evidence against himself as to try to justify the continuation of Administration orders.
40 Further, that VCAT albeit being a tribunal and not a court cannot disregard the rule of
NATURAL JUSTICE and issue orders of enforcement even so the enforcement related
to non-existing charges. Further, albeit unconstitutionally, that VCAT is not an ordinary
tribunal that acts as a organ for the State government but is in fact conducting matters as
if it is replacing the judiciary system albeit with a gross denial of rights ordinary
45 permissible in a court of law.

4. The outline of the case at hand and is as follows;

(a) The Defendant was born
(b) The Defendant became lawfully married to .
50 (c) The Defendant was at that time.

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 This affidavit was filed by the applicant FRANCIS JAMES COLOSIMO

Of:

Phone number: 03 –

5 (d) The Defendant,

(e) The Defendant applied.
rd
Dated the of Day of January, 2010 (Signed, the Defendant)

10 END QUOTE (partial) DRAFT NOTICE OF CONSTITUTIONAL MATTERS

.
This correspondence will be transmitted to VCAT at about 7 am on 27 January 2010 as such well
before any proceedings on 27 January as to Direction hearing will take place, scheduled for 10
AM.
15 .
I provide this notification so you are aware that to continue this VEXATIOUS litigation may
have severe legal consequences.
.
This correspondence is not intended and neither must be perceived to set out all relevant matters!
20 .

MAY JUSTICE ALWAYS PREVAIL®

.

Awaiting your response, G. H. Schorel-Hlavka

25

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