Gargan v Commonwealth of Australia and anor

Australian Government Solicitor (first defendant) SOLICITORS : Henry Davis York (second defendant)

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

3997/05 PETER ALEXANDER GARGAN v COMMONWEALTH OF AUSTRALIA AND ANOR JUDGMENT - (ex tempore revised 18 November 2005) 1 HIS HONOUR: By statement of claim filed in this court on 18 July 2005, the plaintiff Peter Alexander Gargan sues the Commonwealth of Australia as first defendant and Telstra Corporation Limited as second defendant for the following relief: 1. An order that judgment be entered for the sum specified in the Bill of Exchange against the Treasurer of the Commonwealth of Australia that the Sovereign of Australia be honoured.

That the filing cost of this claim be postponed until after the matter is heard.

That all proceedings by the second defendant against the Kenneth Clyde Ivory and the Solar-Mesh® entities be stayed permanently.

That the proceeds of the Bill of Exchange claimed under Part 7 Rule 4 be paid into the Supreme court in Sydney, and appropriated in accordance with the wishes of Kenneth Clyde Ivory and the Solar-Mesh® entities which are as follows.

The Kenneth Clyde Ivory and the Solar-Mesh® entities receive the losses assessed and not disputed by the Commonwealth of Australia arising from the loss of the Australian Business opportunities caused by the actions of the second defendant, a sum of $7,670,000.00 to Kenneth Clyde Ivory and a sum of $379,343,767.00 to the Solar-Mesh® Entities. A total of $5,387,013,767.

That One billion dollars of the amount claimed be appropriated on a population basis to the treasuries of the eight governments of the States and Territories.

That four billion dollars be appropriated to a trust fund to be established, to fund charitable organisations in Australia involved in the alleviation of poverty and other worthy causes, and that Kenneth Clyde Ivory and Terence Maxwell Platt, their heirs and successors, be permanent trustees, with a nominee from each of the States and Territories to oversee the investment of the fund and disbursement of the profits generated by the trust, in their absolute discretion, by majority decision of the board of trustees.

2 It will be seen that, in essence, the claim is for a sum said to be due by the Commonwealth under a "bill of exchange" (claim 1), and also for a stay of proceedings pending - against persons not party to the current proceedings - in the Supreme Court of Queensland, on a bill of costs of proceedings in that court (claim 3). Claims 4, 5, 6 and 7 purport to apportion the amount said to be due under the "Bill of Exchange".

3 By motions filed on 29 September and 26 October 2005, the defendants move for summary dismissal of the statement of claim. By motion filed on 24 October 2005, the plaintiff moves for an order that the questions of fact in this matter be tried with a jury.

4 The plaintiff has given notice under the Judiciary Act 1903 (Cth), s 78B to the Attorneys General of what is said to be a matter arising under the Constitution. The plaintiff wishes to argue that he is entitled as of right to a trial by jury on questions of fact that arise in the proceedings. That argument proceeds along the lines first, that this court, because it is entertaining a suit against the Commonwealth, is therefore exercising Federal jurisdiction; and secondly, that Chapter III of the Commonwealth Constitution has the effect that decisions on questions of fact in civil proceedings in Federal jurisdiction either must be by jury and not by single judge sitting alone, or at least must be so if a party so elects. 5 Whether this second proposition is arguable at all, I need not consider, because s 78B of the Judiciary Act provides that the duty of a court not to hear a proceeding, unless and until notice under that section has been given, does not prevent the court from hearing so much of a proceeding as does not involve resolution of the Constitutional question. As I have previously indicated when refusing Mr Gargan's application for an adjournment, the applications for summary dismissal in this case do not involve resolution of the Constitutional question. They involve only whether there are triable issues on the pleading as presently filed, and whether the plaintiff has standing to claim the relief sought. None of those matters presents a constitutional question, and s 78B therefore does not prevent me from proceeding to deal with the motions for summary dismissal. Should I find in favour of the plaintiff in respect of the summary dismissal applications, different considerations would arise in respect of his motion for a trial by jury: it might then be appropriate to adjourn that motion to allow the State and Territory Attorneys more time to respond than they have so far had. However, consideration of that question can be addressed if and when necessary.

6 Essentially, the claim contains two forms of relief: a stay on proceedings of a bill of costs in the Supreme Court of Queensland; and a judgment for an amount said to be due under what is described as a bill of exchange.

7 I shall deal with the latter first. The document sued on is a document entitled "Bill of Exchange", purporting to be a bill of exchange under the Bills of Exchange Act 1909 (Cth) dated 7 February 2005, to which the first party is said to be the Commonwealth, the second party entities called the Solarmesh Entities, and the third party one Kenneth Clyde Ivory. The plaintiff is not a party to the "bill". Neither is there any indication that he is an endorsee of the "bill". The only signatures which appear on the bill are those of Kenneth Clyde Ivory (apparently as issuer), and a notary public of the Australian Capital Territory, one Anthony Clapham who, as the document is drawn, signed as witness to attest execution of the "bill" by Mr Ivory. The "bill" has not been signed by or on behalf of the Commonwealth; nor for that matter by or on behalf of Solarmesh Entities, nor by or on behalf of Telstra. Although there is evidence that the bill and attachments were presented to Senator Coonan, a Minister of the Commonwealth, and referred by her, there is no evidence whatsoever that she (or anyone else on behalf of the Commonwealth) has signed the bill. 8 The only basis upon which the Commonwealth is said to be liable, according to the statement of claim, is on the "bill". The Bills of Exchange Act provides, by s 28, that subject to the section, a person is not liable as drawer, endorser or acceptor of a bill if he has not signed as such. There is nothing else in the section, to which subs (1) is made subject, that is relevant for present purposes.

9 Mr Gargan, in his sometimes ingenious argument, suggested that the signature by the Notary Public was a signature on behalf of the Crown. But it is quite clear that, whatever the status might be of a notary public as an emanation of the Crown, as to which I say nothing, Mr Clapham, the Notary Public, plainly did not sign as endorser or as acceptor but merely as witness to the signature of Mr Ivory. There is simply no basis for a contention that the Commonwealth is liable as alleged on the "bill of exchange". 10 It is therefore unnecessary for me to consider the other argument advanced by Mr Perran as to why the Commonwealth might not be liable on the bill, relating to the question of standing, save to observe that there are enormous obstacles in the way of a person in Mr Gargan's position - who is not a party to or an endorsee of a bill - suing on it, on the basis of what is said to be an agreement that he should have an unspecified share of it. Moreso is that the case where that person is currently a bankrupt, whose after-acquired property (which this cause of action must be) vests in his Trustee of Bankruptcy. But it is unnecessary to explore that further.

11 So far as the application for a stay of the proceedings in the Supreme Court of Queensland is concerned, the second defendant, Telstra, submits that the statement of claim does not disclose any basis upon which those proceedings should be stayed. That submission is correct. No obstacle or impediment to those proceedings is apparent from the pleading at all. 12 More importantly, what is involved is an application to stay proceedings of another superior court in another State. Although, under the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Qld), the jurisdiction of the Supreme Court of Queensland is vested in this court, and theoretically this court could, in the exercise of that jurisdiction, stay a judgment or order of or a proceeding in the Supreme Court of Queensland, ordinarily the appropriate forum for an application for such a stay is the court in which the judgment or order was made or in which the proceeding is pending.

13 The material before me establishes that Mr Gargan has been declared a vexatious litigant in Queensland, and accordingly would need the leave of the Supreme Court of Queensland to institute proceedings in that court. In those circumstances, while ultimately it is a matter of discretion, I do not see how any judge, consistent with principles of comity, could reasonably grant, in this court, on the application of Mr Gargan, a stay of a judgment of, or a proceeding in, the Supreme Court of Queensland. And that is all the moreso the case when he is not a party to the proceedings in Queensland.

14 Accordingly, I conclude that the application for a stay is unarguable for that reason, as well as on the manifest deficiency of the statement of claim.

15 It follows that I must conclude that the proceedings are doomed to failure, and ought to be summarily dismissed. 16 I order that the proceedings be dismissed, and that the plaintiff pay the defendants' costs.

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