BARKER J:
1 Before the Court is a creditor's petition filed by Balwyn Nominees Pty Ltd, the petitioning creditor, seeking the making of a sequestration order against the estate of Rodney Norman Culleton, the respondent debtor, of 51 Fourth Avenue East, Maylands, Perth, Western Australia, who is described in the petition as a businessman.
2 Under s 43 of the Bankruptcy Act 1966 (Cth), this Court has jurisdiction, on a petition presented by a creditor, to make a sequestration order against the estate of a debtor, where:
the debtor has committed an act of bankruptcy; and
at the time when the act of bankruptcy was committed, the debtor, amongst other things, was personally present or ordinarily resident in Australia.
3 The effect of a sequestration order is that, upon its making against the estate of the debtor, the debtor becomes a bankrupt, and continues to be a bankrupt until he or she is discharged by force of s 149(1) of the Bankruptcy Act, or his or her bankruptcy is annulled by force of s 74(5) or s 153A(1) or by s 153B of the Bankruptcy Act. See s 43(2) of the Bankruptcy Act.
4 There are conditions on which a creditor may petition, set out in s 44(1) of the Bankruptcy Act, which prevent a creditor's petition being presented against a debtor unless (relevantly):
there is owing by the debtor to the petitioning creditor a debt that amounts to $5,000;
that debt is a liquidated sum due at law or in equity or partly at law and partly in equity and is payable either immediately or at a certain future time; and
the act of bankruptcy on which the petition is founded was committed within six months before the presentation of the petition.
5 By s 44(2) of the Bankruptcy Act, subject to subs (3), a secured creditor shall, for the purposes of para (1)(a), be deemed to be a creditor only to the extent, if any, by which the amount of the debt exceeds the value of the security.
6 By s 52 of the Bankruptcy Act, at the hearing of a creditor's petition, the Court shall require proof of:
the matters stated in the petition (for which the Court may accept the affidavit verifying the petition as sufficient);
service of the petition; and
the fact that the debtor's debt on which the petitioning creditor relies is still owing;
and, if it is satisfied with the proof of those matters, may make a sequestration order against the estate of the debtor.
7 If the Court makes a sequestration order, by s 52(1A) of the Bankruptcy Act, the creditor who obtained the order must give a copy of it to the Official Receiver before the end of the period of two days beginning on the day the order was made.
8 By s 52(2) of the Bankruptcy Act, if the Court is not satisfied with the proof of any of those matters or is satisfied by the debtor:
that he or she is able to pay his or her debts; or
that for other sufficient causes, a sequestration order ought not to be made;
it may dismiss the petition.
9 The Court also has the power, under s 52(3) of the Bankruptcy Act, if it thinks fit, upon such terms and conditions as it thinks proper, to stay all proceedings under a sequestration order for a period not exceeding 21 days.
10 The concept of an act of bankruptcy is central to the operation of these creditors' petition provisions of the Bankruptcy Act.
11 By s 40(1) of the Bankruptcy Act, a debtor commits an act of bankruptcy in a number of cases there stipulated, including under para (g), which relevantly provides -
if a creditor who has obtained against the debtor a final judgment or final order, being a judgment or order the execution of which has not been stayed, has served on the debtor in Australia … a bankruptcy notice under this Act and the debtor does not:
(i) where the notice was served in Australia - within the time specified in the notice; or
…
comply with the requirements of the notice or satisfy the Court that he or she has a counter‑claim, set‑off or cross demand equal to or exceeding the amount of the judgment debt or sum payable under the final order, as the case may be, being a counter‑claim, set‑off or cross demand that he or she could not have set up in the action or proceeding in which the judgment or order was obtained;
12 In the creditor's petition in this proceeding, the petitioning creditor makes the following allegations, and thereby satisfies the conditions referred to in s 44:
1. The respondent debtor owes the applicant creditor the amount of $271,134.26 being the amount owing pursuant to a final judgement of the District Court of Western Australia proceedings number CIV 2787 of 2011, dated 24 October 2013.
2. The applicant creditor does not hold security over the property of the respondent debtor.
3. At the time when the act of bankruptcy was committed, the respondent debtor:
(a) was personally present in Australia; and
(b) was ordinarily resident in Australia.
4. The following act of bankruptcy was committed by the respondent debtor within 6 months before presentation of this petition:
The respondent debtor failed to comply on or before 29 August 2016 with the requirements of a bankruptcy notice served on him on 8 August 2016 or to satisfy the Court that he had a counter-claim, set-off or cross demand equal to or more than the sum claimed in the bankruptcy notice, being a counter-claim, set-off or cross demand that he could not have set up in the action in which the judgment referred to in the bankruptcy notice was obtained.
13 The respondent debtor, at the time of this proceeding and at the hearing of the creditor's petition on 19 December 2016, is a Senator for Western Australia in the Commonwealth Parliament.
14 The respondent debtor, who, at material times, has been self-represented in this proceeding, on 18 November 2016, filed an appearance and notice stating grounds of opposition to the creditor's petition. In the notice he advised that he intended to oppose the petition on the following grounds:
1. The Matter founding the Petition is listed in the Western Australian Court of Appeal as an Appeal.
2. I had four witnesses in Armadale and none saw the alleged Personal Service.
3. On Equitable Grounds, under S 30 (2) Bankruptcy Act 1996 the alleged Debtor claims an account of mutual dealings between himself and Balwyn Nominees Pty Ltd ( A CN 083 207 890) under S 86 (1) Bankruptcy Act 1996 which states that such an account 'shall' be taken, and must therefore be a Condition Precedent to the making of any Sequestration Order.
4. The alleged agreement between the Petitioning Creditor and the Defendant Company was nothing more than an invitation to treat, not a concluded contract.
5. The evidence does not disclose any dealings with Balwyn Nominees Pty Ltd except an un-concluded invitation to treat which could not found damages for breach of contract.
5. As a consequence the Court is required to go behind the Judgment to determine if there is any amount owing at all.
6. Further the Applicant claims that because the State of Western Australia has removed the requirement for a Judge in this State to swear Allegiance to another authority different to the one a Justice of this Court must swear Allegiance to, this Court cannot recognise an Order from such a body and cannot allow it to found a Bankruptcy Petition.
7. This issue was raised in the Federal Court of Australia before McKerracher J on the 5th October 2016 in Perth and is an issue that involves the Constitution and the obligation of a court not to proceed until Notice under S 78B Judiciary Act 1903. (Cth) is given to all the Attorneys-General of the Commonwealth and since McKerracher J was either reckless or indifferent to his duty, this Court must now deal with that issue
(As in original.)
15 On 18 November 2016, the respondent debtor also filed a notice under s 78B of the Judiciary Act 1903 (Cth) (s 78B notice), addressed to the Attorneys-General of the Commonwealth and the States, in the following terms:
Take NOTICE:
1. This proceeding involves a Matter arising under the Constitution and involving its interpretation in respect of the Removal of Allegiance to the Queen, Her Majesty Elizabeth the Second and it's replacement with a non-Allegiance Oath, effected in Western Australia in S 11 DISTRICT COURT OF WESTERN AUSTRALIA ACT 1969
2. 11. Tenure of office and oath of office
(1) The commission of each District Court judge shall continue in force during good behaviour but the Governor may, upon the address of both Houses of Parliament, remove any District Court judge from his office and revoke his commission
(2) Before a person who is appointed to be a District Court judge, an acting District Court judge, an auxiliary District Court judge, or a commissioner of the Court, performs any function of the office, he or she shall take before the Governor, a Supreme Court judge, or some person authorised for the purpose by the Governor, an oath or affirmation in the form set out in Schedule 1.
3. The Oath in Schedule 1 is as follows:
SCHEDULE I, Curthoys DCJ make oath and say: that I will faithfully serve the people and the State of Western Australia in the office of [ title of office ] of the District Court of Western Australia and I will do right to all manner of people, according to law, without fear or favour, affection or ill will.
[Schedule 1 inserted by No. 24 of 2005 s. 20.]
4. On the Authority of R v Casement [1917] KB 98, a Court exercising the Judicial Power of the Commonwealth cannot entertain an action based upon the Decision of a person attainted of treason which is the proper term for nonAllegiance.
5. On its proper construction, the Treason Act 1351 applied to an act of treason committed by a British subject while outside the realm. In the words of Darling J (who delivered the judgment of the Court), at p 137, 'the subjects of the King owe him allegiance, and the allegiance follows the person of the subject. He is the King's liege wherever he may be, and he may violate his allegiance in a foreign country just as well as he may violate it in this country.'
Accordingly, Casement had properly been convicted of high treason. Appeal against conviction dismissed
6. This unilateral declaration of non-Allegiance by the State of Western Australia infects other States. It infects all aspects of Australian Life, and the removal of The Queen, from the enacting words used by the Parliament in 1991, and its replacement with 'The Parliament of Australia Enacts, could amount to non-Allegiance by the Commonwealth executive at the time, and all Executives since.
(As in original.)
16 On 12 December 2016, the respondent debtor filed an affidavit which, in substance, set out a range of submissions, in the following terms (annexures omitted):
1. I am making an Application for an Account in this matter on the grounds I will set forth in this Affidavit.
2. It is time that this court returned to the hallowed respect in which courts were held prior to 1973, or 1952 whichever date is accepted, and sat with a jury in this matter to determine as a question of fact, under S 30 (3) or under S 80 Constitution whether an alleged Act of Treason was promulgated in 2005 by the Parliament of Western Australia when it removed the requirement of allegiance to the Queen, from Members of Parliament and the Judiciary in this State.
3. In Order to sit as a Justice in the Federal Court of Australia in the same manner as a Senator sits in the Senate a person must take the Oath set out as Schedule 1 to the Commonwealth of Australia Constitution Act 1900 and it is a condition precedent to any judicial act whatsoever: whether legislating or enforcing Statutes.
4. Because that Oath has as a Condition Precedent another Oath, dating back to 1688, which must be taken by the Queen or Sovereign at Her Coronation the Coronation Oath 1688 ( Imp) is incorporated into Australian Law or must be recognised as extrinsic material to assist in understanding what an Oath of Allegiance means when incorporated into an Act by S 15AB Acts Interpretation Act 1901.
5. The Coronation Oath 1688 ( Imp) annexed hereto as Annexure RC4 has provisions in it binding the Queen to abide the Provisions of the Gospels in the execution of Her duties, and as such those provisions must bind all those who serve Her in public office, under the same Oath.
6. That being the case, the words; Will you to the utmost of your power maintain the Laws of God and the true profession of the Gospel. This was amended from the original to accommodate the Roman Catholic and other religious groups, present throughout the world, who while not Protestant Christian still worship in the Christian tradition.
7. The Blessing of Almighty God, called down upon the Commonwealth in the recital to the Commonwealth of Australia Constitution Act 1900 is sought to be re-established, by the adoption and observance of the Gospels which on our behalf, Her Majesty Elizabeth the Second agreed to maintain.
8. The grounds for an Account are that because the Petitioning Creditor failed to accept that the Federal Court of Australia actually had jurisdiction on the 51h October 2016 and was urged not to exercise it, the course of justice in respect of the Judicial Power of the Commonwealth was perverted.
9. this and the attempt to have the Federal Court of Australia accept the legitimacy of the District Court in Western Australia which no longer exercises jurisdiction in the name of the Queen, which when S 33 High Court of Australia Act 1979 is applied to all courts lower in the hierarch y of which it is the Pinnacle, this exercise of jurisdiction is wholly unconstitutional and void; is a further offence.
10. Consequently I have prepared but not filed a Form CP (1) 1, and exhibit it to this my affidavit as Exhibit RC5. A Total of $2,236,000 ought to be imposed for these transgressions.
11. Further I rely upon S 118 Constitution to say that full faith and credit must be given throughout the Commonwealth to the Acts of the States, and S 42 and 43 of the Acts Interpretation Act 1954 (Q) clearly state what should happen in this instance, namely that I as the person aggrieved, under S 4B (4) Crimes Act 1914 ( Cth) get the whole of the penalty. Exhibit RC6.
12. Full faith and credit cannot be given to proceedings that do not comply with the Constitution.
13. By applying the principles set forth in the Constitution the Petitioning Creditor owes me.
(Emphasis as in original.)
17 On 16 December 2016, the respondent debtor filed an interim application claiming:
1. A Right under S 116 Constitution not to have to submit to Judgment by a single individual and claims the Right to Jury Trial, under the Discretion given to a Federal Court of Australia Judge by S 30 (3) Bankruptcy Act 1966.
18 On 16 December 2016, he also filed a "Submission" in the following terms:
I have decided to represent myself in these proceedings, because what I want to say is not something a lawyer will argue in most cases. As you will be aware I asked in the Senate why when S 33 High Court of Australia Act 1979, makes it a statutory command to the High Court to issue process in the name of the Queen why the High Court was not doing so in their Rules. They have indicated there will be New High Court Rules in 2017. Both previous sets of High Court Rules 2004 and the High Court Rules 1952, have no provisions enabling S 13 Crimes Act 1914 ( Cth) to be given effect, so that S 30 Judiciary Act 1903 (Cth) can be activated after a Grand Jury finds an indictment.
The very first step in any Proceeding in a court is to determine the scope and reach of the jurisdiction conferred on the court. I rely on Fencott V Muller [1983] HCA 12; 152 CLR 570, to say that this court has full power to investigate every aspect of this case, and all associated matters including misconduct by the ANZ Banking Corporation that led to the situation arising. This Proceeding is part of a long standing policy of Banks, to bankrupt people to prevent counterclaims.
The very first thing the court should decide is if these proceedings are politically motivated, given that the Petitioning Creditors Lawyer firm also acts for the ANZ Banking Corporation and ANZ is one of the Banks potentially liable for the huge damages if ever made accountable in the Federal Court of Australia. As a Senator, I have been gathering and disseminating evidence against this bank in particular, in an attempt to hold a Banking Royal Commission. It would grant them enormous benefit if I were to be bankrupted and forced to resign from the Senate. To that end it is submitted that this Petition is filed for an improper purpose, as an opportunistic attempt to collaterally protect the ANZ Banking Corporation. If granted the Petitioning Creditor may never get paid, even if it could win, which is doubtful.
I have been very concerned that at other times, High Court Justices have made erroneous Statements directly contradicting the Statutory Commands of the Parliament. One such Statement is in the Forge V ASIC Case at Paragraph 210 Justice Kirby states: The ICCPR is not, as such part of Australia's municipal law. This is a similar mistake to the one I raised with my first question in the Senate, and it is time that the work the Parliament of the Commonwealth does was treated with the respect it deserves. It is an undeniable fact that the International Covenant on Civil and Political Rights is Schedule 2 to the Australian Human Rights Commission Act 1986. It is an undeniable fact that S 268:10 and 268:12 Criminal Code Act 1995 (CTH) is law. It is an undeniable fact that the Dictionary of the Criminal Code Act 1995 (CTH) defines 'Covenant' as the International Covenant on Civil and Political Rights and tells the reader where to find it. It is an undeniable fact that S 138 (3) (f) Evidence Act 1995( Cth) cites it. If it is in fact law, then the 'Kable Principle' finds its Statutory Command in S 268:12 Criminal Code Act 1995 (CTH) and unless a Judge is not a person, as contemplated by s 5 Commonwealth of Australian Constitution act 1900, he must now, to avoid offending that section, try all matters with a jury. Both guilt and sentencing must now be made by a jury.
I cite the Metwally case to say that S 109 Constitution cuases the Judgment of Curthoys DCJ to be totally void.
This is no ordinary proceeding. This is a proceeding where you are being asked to bankrupt a person who was elected as, one of the seventy six who make up the Senate of Australia. In addition to that, this is like a sitting of the Senate, a privileged occasion. What I say here cannot found defamation proceedings, and what is decided here can be appealed to the Senate and that place can decide to enforce any order you may make, or decide that the procedure you have followed in making that decision is flawed and decide that your services are no longer required by the Commonwealth . Just as I can be sacked if I am found to be grossly negligent or otherwise unfit for high Office, so too can you. I trust we are in agreement on that.
I have as a Senator both an obligation and a duty, to supervise the Legislation presented to the Senate and subordinate Legislation passed under delegated power. The recently promulgated Federal Court ( Criminal Procedure ) Rules 2016 are very good as far as they go, but there is no process I have been able to find in them where the provisions of s 13 Crimes Act 1914 (Cth) have been given effect. Unless ordinary people are given a mechanism where they can start a criminal proceeding without fuss, and call to account corruption wherever it is found, this country is not properly governed. Perhaps you can enlighten me and point me to where this can happen. I have had the Federal Court ( Criminal Procedure ) Rules 2016 examined in detail, and just as the High Court Rules 1952 and 2004 omitted provisions for Grand Juries, so too is any mechanism for bringing corrupt conduct to account. I intend to ask the Senate to ensure that all Rules of Court both civil and criminal in Australia comply with the International Covenant on Civil and Political Rights as a guarantee of Australia wide uniformity. They have the force of law so should obey and reflect the law.
Section 51 Placitum (xxxi) Constitution guarantees 'just terms' in the acquisition of any property from any individual by any Authority of the Commonwealth. In University of Wollongong V Metwally (1984) Murphy J at 4, stated that all States are bound by the Constitution in the same way as the Commonwealth is, and therefore the making of an Arbitrary Order against me by Curthoys DCJ taking property from me, offends S 51 Placitum (xxxi) Constitution, and must be void.
This case highlights the corruption of Western Australia by its own Parliament. In or around 2005, it declared itself unilaterally independent from the Commonwealth, and because people in glass houses cannot throw stones, it has lost two thirds of its GST without remedy. I have taken steps to fix the High Court. It is now up to this Court today to fix the corruption in Western Australia. If you are unwilling to do so, and address the abolition of the Queen, the removal of the Monarchy in this State, by legislation unsupported by a referendum, I am sure my Senate Collegues will support efforts to right the wrongs. Either way, I believe you have no authority to use Bankruptcy Law to overrule the wishes of 54,000 plus Western Australia voters who sent me to Canberra to reprtesent their interests and instigate a remedy.
The Commonwealth has been protecting the Banks from the full rigour of the law, and they have been aided and abetted by The Prime Minister who refuses to ACT! To end that we must get back our courts. Real live democratic courts, with twelve real live representatives of the people, as judges of fact, and a presiding Justice whose expertise is the law. That is what I want and I want it to be free of charge. The imposition of punitive Filing Fees on anyone who has a grievance and wants to come to court was abolished in 1400, and should never have been allowed to be reintroduced. I quote: '2 Henry 4 Chapter 1,Section 4 (1400) Every person shall be in peace, All his liege people and subjects may freely and peaceably,in his sure and quiet protection, go and come to his courts, to pursue the laws, or defend the same, without disturbance or impediment of any.'
The States, openly and brazenly say the Laws of the Commonwealth do not apply to them. They have since 1952 merrily created renegade Courts with Judges, one of whom was Curthoys DCJ. A Judge sitting without a jury is open to influence by unscrupulous members of the legal profession. A Judge sitting alone is in breach of S 79 Constitution, because the Constitution provides that the Judicial Power of the Commonwealth shall be exercised by such number of 'judges' as Parliament provides. In the absence of a prescription, the default number is twelve, as in S 80 Constitution. It is not open to a Federal Court of Australia Judge to decide on the basis of cost, because the Commonwealth has appropriated the money to pay for juries in S 40 and 41 Federal Court of Australia Act 1976.
However with a filing fee or tax on access to the Federal Court of Australia of $2,380 it is prohibited to fight a fine in the Federal Court. The States have racked up huge debts and charged them to the people of Australia in the fines registries of every State. They severely deprive people of physical liberty by refusing them the right to drive or register a car using a species of extortion. On their own these people have no remedy except to change the Government and hope for the best every three or four years. For stable government it is essential that the Federal Court of Australia starts working properly. I complement the Federal Court of Australia Judges on your Federal Court ( Criminal Procedure ) Rules 2016. The job just has to be finished to allow ordinary people and honest solicitors advising them, access to the process.
The sum of a Commonwealth Penalty Unit is $180 per unit. For a body corporate it is five times that. I have not asked if King Wood Mallesons is incorporated. If not each and every Partner worldwide could be liable for the sins of any one partner, under the Partnership Act.
It is because of that deficiency in those Rules, that the State of Western Australia has been able to get away with doing away with allegiance to the Queen, by Legislation. This is now remedied to some extent by the new Federal Court ( Criminal Proceedings) Rules 2016, but to some extent these Rules omit a very important part of Representative Democracy, that is enacted into Commonwealth Law as S 13 Crimes Act 1914 ( Cth). That is the right of each and every Australian to commence a criminal prosecution. If that right had been recognised and incorporated into the Rules as it ought to have been, then the Bank profit of $46 billion dollars last year, and their ongoing depredations on Australian Business, would have to have ceased. Today I am asking you to make an order that will fix the Budget deficit, open the way for thousands of people to get justice from the Justice system, and right a lot of wrongs, that the Parliament of the Commonwealth has declared to be crimes.
I am asking for a jury trial under S 30 (3) Bankruptcy Act 1966 introduced in 1966, as a part of the lawyers takeover of Australia that has merged State and Church into a single authority. I am doing this publicly in an Open Court so the people of Australia can look forward to Christmas knowing that from today, when you exercise your authority under S 22 Federal Court of Australia Act 1976 and S 39B (1A) (b) Judiciary Act 1903 (Cth) as a Constitutional Court as well as S 30 (3) Bankruptcy Act 1966 the spirit and principles that underpin the Australian Constitution will be not only law, but enforceable justly and fairly. Those principles have been lost, but must now to be restored.
As a lawyer yourself, you must know what Allegiance to the Queen stands for. It stands for the Principles of Christianity the absolute opposite of the Communist System, where the State considered itself GOD and created Judges to carry out its edicts. You may not know but the Senate and House of Representatives both start each day with Prayers. This was the subject of the very first Petition to the Senate delivered in 1902 by the Presbyterian Church in Sydney as a prayer to that Body. I want to cite the extracts of the Speech made by Alfred Deakin in 1902, explaining what Ch III Constitution ought to mean, and explaining that the Judicature is altogether a Separate department of State equal but separate from any of the States, with the High Court as its head. I also want to cite Standing Order 50 of the Senate Standing Orders. This incorporates the Lord's Prayer from the King James Version of the Holy Bible Matthew 6 Verses 9-13, as a condition precedent to all the Laws of the Commonwealth.
In speaking to the Second Reading of the Judiciary Act 1903 (Cth) Alfred Deakin said: But in its substance, in its influence, in its true character, this is not merely a legal measure. It is a fundamental proposition for a structural creation which is the necessary and essential complement of a federal Constitution. As such it affects the whole of -the citizens of this community ; as such it touches every class ; as such it affects every calling. Indeed, although it relates to legal machinery, the purposes to be served by that machinery are but in a fractional sense legal, are in the main general, and in a very particular sense political - affecting directly not only the businesses and bosoms of our population, but also the representatives of the people in both Chambers of this Parliament; affecting directly the Executive of this country; affecting, in fact, every portion of that Constitution of which this court is created to be the guardian. By S 39B (lA) (b) the Judiciary Act 1903 (Cth) the Federal Court of Australia is now a further guardian, and it must step up.
Australia has grown from around 4 million people in 1900 to 24 million today. We have 39 Federal Court Judges signed the Federal Court (Criminal Practice) Rules 2016. You are not elected , you are appointed, and by S 72 (ii) Constitution you can be removed. Under Part III Crimes Act 1914 ( Cth) you can be prosecuted and this threat is always hanging over a Judges head. The Parliament of the Commonwealth has legislated to allow the Reasons for Judgment of a court to be admitted into evidence against a Judge. S 129 (5) Evidence Act 1995 (Cth) makes that possible. S 34 Crimes Act 1914 (Cth) makes it a crime for a Judge or Magistrate to act when interested. It defines what 'acting when interested' means. It defines the crime as 'perversely exercises jurisdiction in a matter'. It only carries a two year period of imprisonment but when the Salary of a Judge is said to be around $375,000 a year, it could be said you have a very real interest in preserving your position and the other 38 Judges positions.
Because S 268:10 Criminal Code Act 1995 (Cth) makes it a crime against humanity to sit in breach of Article 14 of the International Covenant on Civil and Political Rights and that Article directs that all persons are equal before the law, and that section carries a term of imprisonment of seventeen years jail, I think it is time that the Judges of the Federal Court of Australia accepted it as law. It is referred to again in S 138 (3) (f) Evidence Act 1995 (Cth) as well as S 268:12 Criminal Code Act 1995 (Cth). S 268:10 refers specifically to 'exercises all or any of the powers attaching to a right of ownership' and specifically 'also includes exercise of a power arising from a debt incurred or contract made by a person.' This proceeding is about a debt imposed upon me by another individual, under State law. I have not yet claimed that Liquidated penalty, but it could be under the Crimes Act 1914 ( Cth) the sum of 17 years, 204 months, x 5 as in S 4B Crimes Act 1914 ( Cth), 1,020 penalty units, which ,makes the amount owing by an individual $183,600 and for a Corporation $918,000. This is what the Commonwealth is presently losing. If S 4K is considered which accrues daily.
Further after 2010, the Parliament of the Commonwealth introduced legislation to ban 'cartels'. It is enacted in S 44 ZZRA on in the Criminal Code Act 1995 (Cth). Presently a 'cartel' crossing all State borders, and into the Commonwealth involving lawyers operates. The first thing any Magistrate asks is: 'Have you got legal representation'. The Supreme Court in every State and the Federal Supreme Court are the guardians of this cartel. They maintain a Register of practitioners and only they are entitled, as of right to represent another person in the ordinary 'courts'. An exception is the Court of Bankruptcy, where S 308 (d) Bankruptcy Act 1966 says 'any person may act by his or her agent duly authorised in that behalf.' The High Court has allowed this to happen, and so should this 'court'. The penalties for a breach of this law, are severe. Part IV Restrictive Trade Practices. Part VI s 76 of that Act provides a Penalty of $10,000,000 or ten percent of the Annual Turnover, of the Company benefitted. This is money not being collected by the Commonwealth.
Alfred Deakin explained the purpose and object of the Judiciary Act 1903 (Cth) better than I can. He said: The federal judiciary falls into neither of these classes. It is not to be a distinct and separate federal creation any more than it is to remain solely in the States. On the contrary, the judiciary will form one department in which the States and the Commonwealth will continue to have concurrent powers, the one co-operating with and assisting the other.
In the 'Kable Principle' supposedly established in 1996 the power of the States to legislate for this separate Department was challenged and ruled out of order by a four to two majority. In 2010,in the Melbourne University Law Review, Volume 43 pages 641-668 one Wendy Lacey explains the 'Kable Principle' better than I can. In 2002 the High Court was persuaded to overrule a decision by three judges in the Court of Appeal in Gerlach v Clifton Bricks [2002] HCA 22 and this was decided three Judges to two with Gaudron and McHugh JJ, and Justice Hayne, however an examination of the Transcript published online, Gerlach V Clifton Bricks HCA Trans 574 ( 14th November 2001). reveals that the 'Kable Principle' was not put to that Court and consequently McHugh and Gaudron ruled inconsistently with the 'Kable Principle' . Had they been properly advised by the relevant Counsel, the Budget today would be in surplus, and the rampage caused by the departure from the Principles outlined by Alfred Deakin would have stopped the rampaging illegality of Banks and Insurance Companies, and large Law Firms to be stopped in their tracks. The people of Australia have had to endure fourteen years of bad government.
We now come to my Counterclaim against the ANZ Banking Corporation which goes to the heart of my claim to be solvent. I have made and filed an Affidavit containing admissions made by Permanent Custodians Limited that it is a subsidiary of ANZ Banking Corporation in pleading in a case in Victoria.
I put to the Court previously its duty under S 22 Federal Court of Australia Act 1976. That is a direct duty owed to the Australian people from the Judicature Act 1973 ( Imp) s 24 Subsection (7) and approved by them in voting for Ch III the Judicature in 1899 in the referenda. The Entire Section is entitled Law and Equity to be concurrently administered. It is further enacted as S 32 Judiciary Act 1903 (Cth) in the same terms.
(Emphasis as in original.)
19 The petitioning creditor contends that the Court's jurisdiction under s 43(1) of the Bankruptcy Act to make a sequestration order, is enlivened in the current circumstances for the following reasons:
The respondent debtor has failed to comply with a bankruptcy notice and so has committed an act of bankruptcy pursuant to s 40(1)(g) of the Bankruptcy Act.
There is a relevant final judgment, being that of the District Court of Western Australia made on 24 October 2013, following a trial of an action between the petitioning creditor and the respondent debtor (among other parties). That judgment was assessed at $205,536.50 together with interest of 6% per annum from 1 March 2011 until judgment (plus post-judgment interest). See Dakin Farms Pty Ltd v Elite Grains Pty Ltd [No 2] [2013] WADC 160.
That judgment has been the subject of appeals and challenges by the respondent debtor (and his wife, Mrs Ioanna Culleton) which have been wholly unsuccessful. The judgment has been upheld twice by the Supreme Court of Western Australia.
That judgment still remains wholly outstanding.
20 The petitioning creditor relies on:
(1) the creditor's petition dated 19 October 2016;
(2) the affidavit of Sergeant Matthew David Scott (Sgt Scott), sworn 13 October 2016, as to service of the bankruptcy notice on the respondent debtor in Armidale, New South Wales, on 8 August 2016;
(3) the affidavit of Mr Richard Denis Lester AM, sworn 18 October 2016, verifying the creditor's petition, as required by s 47 of the Bankruptcy Act and R 4.04 of the Federal Court (Bankruptcy) Rules 2016 (Cth);
(4) the affidavit of Mr Michael Grant Lundberg, sworn 19 October 2016, verifying searches of the Federal Court as to applications in relation to the bankruptcy notice, as required by R 4.04 of the Bankruptcy Rules; and
(5) the affidavits of Mr Pierce Tait McMahon, sworn 21 November 2016 and 19 December 2016, as required by R 4.06 of the Bankruptcy Rules.
21 In short, the petitioning creditor contends that the bankruptcy notice and the creditor's petition were duly served, that there is no reason to doubt the validity of the judgment debt, that there is no relevant counter-claim, set-off or cross demand, and that, in the circumstances of this case, there is no need for the Court to delay its dealing with this proceeding by awaiting the outcome of service on the Attorneys-General of the s 78B notice.
22 Having regard to the application of the petitioning creditor and the various contentions, propositions and submissions made by the respondent debtor, prior to the hearing on 19 December 2016, the following matters appeared to be in issue:
(1) Whether the application should be determined by a jury, on the respondent debtor's interim application for an order to that effect.
(2) Whether the bankruptcy notice had been served on him.
(3) Whether the creditor's petition had been served on him.
(4) Whether the Court should not make a sequestration order, having regard to the claim of the respondent debtor that the District Court judgment was liable to be set aside on the grounds of error.
(5) Whether the respondent debtor was otherwise able to demonstrate a relevant counter-claim, set-off or cross demand equal to or exceeding the amount of the judgment debt by reason of other dealings he has had with ANZ Bank, which counter-claim, set-off or cross demand he could not have set up in the District Court proceeding.
(6) Whether the respondent debtor was entitled to an account under s 30(2) of the Bankruptcy Act.
(7) Whether the Court should not make a sequestration order because the respondent debtor has established that he is solvent and in a position to meet the judgment debt.
23 At the commencement of the hearing, the respondent debtor applied for an adjournment of the hearing, which I refused.
24 I will deal first with my reasons for refusing the adjournment, and then I will deal with each of the seven issues identified in [22].