Culleton v Dakin Farms Pty Ltd

Federal Court of Australia|2016-10-05|Before: McKerracher J

The urgent application before commencement of a proceeding filed 30 September 2016 be dismissed.
The prospective applicant pay the costs of Balwyn Nominees Pty Ltd, Dakin Farms Pty Ltd and Mr Lester, to be assessed if not agreed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

AN APPLICATION FOR URGENT RELIEF 1 The prospective applicant, Senator Rodney Culleton (Mr Culleton), seeks urgent relief before commencing a proceeding and does so by relying upon a written outline of submissions, an affidavit and arguments he has advanced to the Court. The nature of the hearing today is a little unusual in that Mr Culleton relies on r 7.01 of the Federal Court Rules 2011 (Cth) (FCR), which reads as follows: 7.01 Order before start of proceeding (1) If a matter is urgent, a person who intends to start a proceeding (a prospective applicant) may apply to the Court, without notice, as if the prospective applicant had started the proceeding and the application had been made in the proceeding, for an order: (a) granting an injunction; or (b) if the matter relates to property: (i) for the detention, custody, preservation or inspection of the property; and (ii) to authorise any person to enter any land, or do any other act or thing, for the purpose of giving effect to the order; or (c) if the matter relates to the right of a prospective applicant to an amount in a fund - that the amount in the fund be paid into Court or otherwise secured; or (d) appointing a receiver with the power of a receiver and manager. (2) An application mentioned in subrule (1) must be in accordance with Form 12 and accompanied by an affidavit stating the facts on which the prospective applicant relies. (3) A prospective applicant seeking an order under this rule must give an undertaking to the Court to start a proceeding in relation to the subject matter of the application within 14 days after the application has been determined. Note: Without notice is defined in the Dictionary. 2 Usually such an order provides for preservation of property, something in the nature of a freezing order or otherwise historically known, particularly in State jurisdictions, as a Mareva injunction after the famous case Mareva Compania Naviera SA v International Bulkcarriers SA [1980] 1 All ER 213 per Lord Denning MR, Roskill and Ormrod LLJ who followed a then recent case, Nippon Yusen Kaisha v Karageorgis [1975] 1 WLR 1093. See practice note CM 9 which notes: 6. A freezing order should be viewed as an extraordinary interim remedy because it can restrict the right to deal with assets even before judgment, and is commonly granted without notice. 7. The respondent is often the person said to be liable on a substantive cause of action of the applicant. However, the respondent may also be a third party, in the sense of a person who has possession, custody or control, or even ownership, of assets which he or she may be obliged ultimately to disgorge to help satisfy a judgment against another person. Rule 7.35(5) addresses the minimum requirements that must ordinarily be satisfied on an application for a freezing order against such a third party before the discretion is enlivened. The third party will not necessarily be a party to the substantive proceeding, (see Cardile v LED Builders Pty Ltd (1999) 198 CLR 380) but will be a respondent to the application for the freezing or ancillary order. Where a freezing order against a third party seeks only to freeze the assets of another person in the third party's possession, custody or control (but not ownership), the example form will require adaptation. In particular, the references to 'your assets' and 'in your name' should be changed to refer to the other person's assets or name (e.g. 'John Smith's assets', 'in John Smith's name'). 3 Generally speaking, that sort of an application is brought before a hearing, in effect, without notice to the party whose assets it is intended to affect in order to freeze those assets before commencing proceedings so as to preclude the assets being dissipated. Here, in fact, it is the substantive judgment debtor rather than creditor who is seeking to obtain injunctive relief, and it is in respect of a judgment given some three years ago in the District Court of Western Australia by his Honour Judge Curthoys, as his Honour then was. In respect of this judgment there have been two appeals to the Court of Appeal of Western Australia, each of which has been decided adversely either to Mr Culleton or to his wife. (The second appeal being from the decision of Troy DCJ dismissing an application by Mrs Culleton to suspend or stay enforcement of the judgment.)

BACKGROUND MATTERS 4 Mr Culleton says today that he has, in effect, not had any true right of appeal to the Supreme Court because of complications of a bankruptcy during the first substantive appeal, which bankruptcy order was set aside by consent (see Culleton v Macquarie Leasing Pty Ltd (No 2) [2015] FCA 1478 per Perry J). Nonetheless, that question was dealt with fairly comprehensively in the decision of the Court of Appeal (in Culleton v Dakin Farms Pty Ltd [2015] WASCA 183 at [44] and [46]). In particular, I note Murphy JA's reference (at [46], Martin CJ and Newnes JA agreeing) to the fact that Mr Culleton's appeal had 'in any event, been shown to have no substantive merit.' 5 Another question raised in passing today by Mr Culleton, but I think not so as to affect the urgent relief that he seeks, is that the Court should issue notices under s 78B of the Judiciary Act 1903 (Cth) of a constitutional matter. I note the observations of Wheeler JA in Glew v Shire of Greenough [2006] WASCA 260 (at [28]), with whom Pullin and Buss JJA agreed, that s 78B does not have the effect of rendering 'invalid' any proceeding in which a notice should have been but was not given, and it is not intended to apply where there is merely an allegation that a constitutional point arises if that point is unarguable or vexatious. Her Honour cited Shaw v McGinty [2006] WASCA 231 (at [42]). So the question of whether a constitutional issue arises will be determined in part on my conclusion on whether or not the contentions advanced today are arguable or not. 6 There is a further unusual aspect of today's hearing in that, commendably, it seems Mr Culleton has given notice of the proceeding to the judgment creditors whose interests he seeks to affect. And in consequence of that, the proceedings today are not pursued just by Mr Culleton ex parte, but Mr Lundberg appears on behalf of the judgment creditors.

THE URGENT RELIEF SOUGHT 7 I turn then to the actual relief which is sought. Mr Culleton seeks five orders. He has confirmed again today that he pursues them all (transcribed without amendment): 1. An Injunction restraining Dakin Farms Pty Ltd (ABN 081 866 373), Balwyn Nominees Pty Ltd (ACN 083 207 890) and Richard Dennis Lester from continuing with any further action in connection with an impugned decision of Curthoys DCJ until the Federal Court of Australia receives and deals with the substantive application the applicant desires to file. 2. The Applicant is entitled to an Appeal and the Federal Court of Australia is to be asked to declare that By [sic] reference to S 2 Judiciary Act 1903 (Cth) that Curthoys DCJ is a Judge, and the District Court of Western Australia is a Court within the definition of Appeal in S 2. 3. The Federal Court of Australia further is to be asked to declare under S 21 and 22 Federal Court of Australia Act 1976, that it has Original Jurisdiction under S 398 (1A)(b) Judiciary Act 1903 (Cth) to hear and deal with any matter arising under the Constitution or involving its interpretation. 4. The Federal Court of Australia is to be asked to declare Since [sic] 2005 when Judges were ordered to cease swearing Allegiance to Her Majesty Elizabeth the Second the Lawful Sovereign of the Commonwealth, no valid proceedings have been conducted in the Courts of Western Australia. 5. The cause of the Applicants discomfort by the time Curthoys DCJ made his decision on the 24th October 2013, was serious harassment and coercion from the ANZ Banking Group, starting in March 2010, when money to continue trading was denied to the Applicant. The Applicant wishes under S 22 Federal Court of Australia Act 1976 determine completely the cause of the trouble and the specific results of its implementation and be compensated accordingly.

THE APPLICANT'S CONTENTIONS 8 I stress that primary amongst those matters clearly is proposed order 1, and that is an injunction to restrain any further enforcement action in connection with the decision of Judge Curthoys. Mr Culleton has reiterated that the essential basis of such an action would be the contention advanced in proposed order 4 as to the invalidity of proceedings conducted and orders made in Western Australia due to the 'order' to cease swearing allegiance to the Queen. 9 Mr Culleton's application is supported by a bulky affidavit. I pause to observe that no objection has been taken to the material in the affidavit, although it is clear that much of the material is by way of submission rather than evidence. But I will treat what is apparently submission as being a submission. In summary, he confirms that he is a senator for the State of Western Australia. He refers to the question he raised with Senator Brandis concerning swearing allegiance to the Queen and the reference of that question to the High Court Rules Committee, which he has also raised in argument in the course of this hearing. He says it is highly likely that, after the High Court complies with the High Court of Australia Act 1979 (Cth), 'all courts of judicature in Australia will have to issue process writs in the name of the Queen and amend their rules accordingly.' 10 Mr Culleton contends that he has been denied a remedy and appeal from the decision of Judge Curthoys and annexes communication from the Supreme Court of Western Australia. He refers to the heading in Ch III of the Constitution dealing with courts adjudicating disputes between Australian subjects, and suggests that new rules will be necessary to deal with the grievance to which he directs attention. He refers to the teachings of Henry J Abraham in his treatise The Judicial Process: An Introductory Analysis of the Courts of the United States, England, and France (Oxford University Press, 1962), which is annexed to the affidavit and which I have read. He also makes submissions concerning procedure in the High Court and in this Court and refers to the nature of the oath. 11 Mr Culleton then makes the point that the executive government of the Commonwealth 'adopted the UNIDROIT Treaty with Rome' in 1973. (I will take this as a reference to the Convention providing a Uniform Law on the Form of an International Will. Opened for signature 26 October 1973. Which entered into force for Australia on 10 March 2015.) In reliance on that 'Treaty', he refers to the allegiance to the United Nations, and says that by taking the oath of allegiance, every judge is likewise bound, as is the Queen, by the 'Holy Gospels'. He also says that, by reference to s 15AB of the Acts Interpretation Act 1901 (Cth), the words of the Holy Bible must be taken into consideration in finding the true meaning of a provision of an Act. One example of a biblical passage that Mr Culleton says is relevant is from 'the King James version of the Holy Bible bearing the royal seal of [the Queen] … in the chapter of Matthew 7, verse 1', which reads 'Judge not that thou shalt not be judged.' 12 Then, coming to the crux of the matter, Mr Culleton says that: Judges in the courts in Western Australia have not since 2005 been taking an Oath of Allegiance to Her Majesty Elizabeth the Second and as such their judgments, sentences of imprisonment, possession orders in favour of mortgagees, and allegations of contempt of court are at least voidable, if not void. 13 Elsewhere in his affidavit Mr Culleton continues to deal with the role of the judicature under Ch III of the Constitution, including the requirement under s 118 of the Constitution for full faith and credit to be given throughout the Commonwealth to the laws, public Acts and records, and judicial proceedings of every State, and refers to the Kable principle, which has not been expressly relied upon in argument this morning, but I will treat that as being incorporated into the argument. He then reiterates that the legislature in Western Australia has, by the passing of legislation, no longer required that judges swear allegiance to the Queen and says that the effect of that is to deprive them of jurisdiction 'totally'. 14 Mr Culleton then deals with a summary of the effect of s 154 of the Bankruptcy Act 1966 (Cth) and the definition of 'property' in s 5. He also refers to the nature of the appeal from the judgment of Judge Curthoys, and history of certain conduct of the ANZ Bank which he says lead to the dispute before Curthoys DCJ. He annexes certain material to that affidavit. As I noted earlier, the affidavit contains a fair amount of submission, and I treat the submission there, taken with Mr Culleton's oral submissions this morning, as being the submissions he advances in support of his application.

CONSIDERATION 15 It is not necessary for this morning's urgent application that Mr Culleton satisfy me that he has a watertight case or anything like it. He would have to satisfy me that he has an arguable case to grant the relief that he seeks, and he stresses that the arguable case he advances is based on the legislation passed in Western Australia no longer requiring judges to swear allegiance to the Queen. He seeks to appeal from the District Court of Western Australia to this Court, and he seeks to cross-vest to this Court proceedings in the Supreme Court of Western Australia, possibly the appeal which he says that the Court of Appeal has now accepted for filing (he says within an hour of the urgent application in this Court being accepted for filing). 16 The question for me is twofold. First is whether there is an arguable case that I have jurisdiction and power, and if so, on either of those matters, whether I should exercise a discretion to make any of the orders sought by Mr Culleton. The orders are opposed by the parties represented by Mr Lundberg, to whom I will refer as the judgment creditors, who stress that they have been attempting to pursue the judgment debt since 2013 when judgment was delivered assessing judgment in their favour for $205,536.50 together with interest of 6% per annum plus post-judgment interest. They stress that the judgment has been upheld twice by the Court of Appeal in Western Australia, and the judgment debt still remains totally outstanding. There is no creditor's petition filed against either Mr or Mrs Culleton at this stage, however, Mr Lundberg has made clear in open court that the judgment creditors do intend to pursue that course which is presently unimpeded. The submission advanced for the judgment creditors is that there is no basis to restrain enforcement of the pursuit of the judgment debt by the judgment creditors, or for Mr Culleton to pursue injunctive relief in this Court or to pursue some form of appellate review in this Court which they contend would be an abuse of process. 17 The details of these primary submissions of the judgment creditors are as follows. First, that this is in essence not the form of relief which might be sought under r 7.01 FCR. I can say, nonetheless, that I would not take a technical view on the matter and, if there was an arguable case supporting the grant of urgent relief, such relief could be granted. There is ample power in an appropriate case. The judgment creditors contend that there is no basis for injunctive relief at this stage for a variety of reasons, most importantly being that the underlying cause of action is without any merit. 18 Turning then to the particular orders that are sought, it will be recalled that the first of the orders sought by Mr Culleton was to restrain execution of any action by the judgment creditors to seek to enforce the judgment debt obtained in the District Court of Western Australia which has been the subject of appeals. 19 If there is a basis for that injunction it is to turn on the issue of the validity of judgments made and steps taken by judges in Western Australia having regard to the allegiance argument. Therefore, I will come back then to consider that order. 20 Proposed order 2 and proposed order 3 really do not take the matter any further for present purposes. 21 Proposed order 4 raises the allegiance contention that is pursued today and would be pursued if proceedings were issued. 22 I hasten to add that there is no impediment at all to proceedings being issued. The question is whether urgent relief should be granted today. 23 The application is for this Court to declare that since 2005 no valid proceedings have been conducted in the courts of Western Australia because judges have been ordered to cease swearing allegiance to Her Majesty Elizabeth II, the lawful sovereign of the Commonwealth. This assertion is perhaps traced back to the introduction in Western Australia of the Acts Amendment and Repeal (Courts and Legal Practice) Act 2003 (WA) (Courts and Legal Practice Act) in practical effect which removed reference to Her Majesty and the Crown from a large number of Acts within Western Australia, including the District Court of Western Australia Act 1969 (WA). 24 Mr Culleton may not be aware that this issue has been raised before in the Supreme Court of Western Australia and, in particular, a number of attempts have been made to advance the same argument and the contention has been rejected as being unarguable or dismissed with even stronger criticism. In particular, I refer to Shaw both at first instance (Shaw v Attorney General [2005] WASC 149) and on appeal (Shaw v McGinty [2006] WASCA 231), Glew at first instance (Glew v The Governor of Western Australia [2009] WASC 14) and on appeal (Glew v Shire of Greenough [2006] WASCA 260) and on an application for special leave to the High Court from the decision of the Court of Appeal in Glew where the argument was dismissed as 'entirely lacking in legal merit' on the special leave application by Gummow and Heydon JJ: Glew v Shire of Greenough [2007] HCA Trans 520. So this argument has been well and truly looked at in the Supreme Court of Western Australia, at first instance and on appeal, and has been considered, albeit briefly, in the High Court of Australia. 25 It is clear that the citizen's duty of allegiance and a judge's duty of allegiance is still owed to the Crown in its various forms, but the point of the legislation, as observed by Wheeler JA in Glew v Shire of Greenough [2006] WASCA 260 is that the legislation changes the terminology only, not the constitutional reality. That is, it does not attempt to alter the relationship between the Crown and the various bodies contained within the Acts which were amended by the Courts and Legal Practice Act. Her Honour noted in that case (at [18]) that there was no constitutional prohibition upon the alteration of the terminology which refers to the Crown or to Her Majesty. Further, the changes of terminology contained with the Courts and Legal Practice Act are consistent with constitutional reality. 26 The observation was also made by McKechnie J in Shaw v Attorney General [2005] WASC 149 (at [33]-[36]) that arguments of this nature must be examined against the background of the Australia Act 1986 (Cth) and the associated collection of legislation which was passed at that time and which, in part, abolished the requirement of reservation of certain Acts for Her Majesty's assent. The validity of that legislation has also been upheld, although that legislation has not been expressly raised by Mr Culleton in this application. 27 So it follows that the argument which Mr Culleton would seek to advance to support the relief for which he contends today is entirely erroneous, and these matters can have no effect on the judgment obtained in the District Court of Western Australia or the decisions of the Court of Appeal made thereafter, or, indeed, if there be one, as Mr Culleton understands that there is, a current appeal to the Court of Appeal of the Supreme Court of Western Australia. Mr Culleton asked me to cross-vest that appeal to this Court. Quite apart from the difficulty in the present circumstances of taking that course, that is a matter to be raised, if at all, on another day in another place. It has nothing to do with today's application. 28 Until other action is taken, the judgment creditors continue to have the benefit of an enforceable judgment as against Mr and Mrs Culleton. It was obtained following a full trial and upheld on appeal. 29 It must be said that while these events are troublesome and concerning to Mr Culleton, there are also judgment creditors who are waiting for the fruits of their litigation victory and have been waiting for some three years. 30 I should mention in passing Mr Culleton's reference to the ANZ Bank. He asserts that he was the subject of serious harassment and coercion from the bank from 2010 when he says money to continue trading was denied to him. Taking that assertion at face value, and I stress that it is only an assertion which has not been properly tested by evidence in any application before me, even if this was so, nothing in that would constitute a basis to prevent the judgment creditors being entitled to the fruits of their victory from the District Court of Western Australia. There was some dispute or confusion as to whether there was or had been related ANZ litigation in the Supreme Court of Western Australia. The short point is that, either way, it is quite irrelevant to today's argument.

CONCLUSION 31 In short, I am satisfied that the substantive argument which would underlie any application as presently framed for urgent relief today is entirely unarguable and this Court does not have jurisdiction or power to make the orders sought and, in any event, in the circumstances I have described even if I did have the jurisdiction or power, I am not satisfied that discretion should be exercised to make those orders. In those circumstances, the application by Mr Culleton for urgent relief will be dismissed with costs. I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice McKerracher.

Acts Amendment and Repeal (Courts and Legal Practice) Act 2003(WA)

Bankruptcy Act 1966(Cth)ss 5, 154

Judiciary Act 1903(Cth)ss 39B(1A)(b), 78B

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