GARGAN v. WOODGATE; GARGAN v. COMMONWEALTH BANK OF AUSTRALIA & ANOR [2004] NSWSC 177

1 GREG JAMES, J: On Friday 20 February 2004, I called on these matters which had been listed in the progressive list together with the matter of Morisset Mega-Market Pty. Limited & Anor v. Peter Alexander Gargan, No. 12688 of 2002 and a further matter of Commonwealth Bank of Australia v. Peter Alexander Gargan, No. 5892 of 2003, in the Equity Division, Corporations List, as it appeared that all of the matters contained a common question of law essential to each matter. 2 I published on that day a short judgment setting out the nature of the matters and how they might proceed before me. 3 In these three matters, application was made for summary judgment by the defendants, the Commonwealth Bank and Mr. Woodgate. The matter in the Equity Division, Corporations List involves the giving of a statutory notice by Mr. Gargan in respect of penalties to which he claims to be entitled and thus that matter, as will be seen, also raises the common question. I stood that matter over to a date to be fixed pending my judgment on these present applications for summary judgment. 4 It was necessary for me to determine applications for summary judgment which have been made by the Commonwealth Bank and Mr. Woodgate in the three common law matters and the Equity Division, Corporations List matter has been stood over to a date to be fixed pending my judgment on those applications. 5 The applications for summary judgment are based on the inherent power and on Part 13 Rule 5 and Part 15 Rule 26 of the Supreme Court Rules. In each case, it is contended that the proceedings commenced by Mr. Gargan in this court are an abuse of the court's process. 6 Since both matters arose out of the same circumstances and it was common ground that was the case, I acceded to the suggestion that matters No. 12499 of 2003 and No. 10001 of 2004 should be consolidated. Nonetheless, separate applications for summary judgment had been made in each matter and I will refer to the applications as they were made in all three matters for the purposes of this determination. 7 In proceedings no. 10001 of 2004, Mr. Gargan has commenced proceedings by summons seeking orders as follows:- "1. An order that the defendant, Giles Geoffrey Woodgate, of Level 14, 25 Bligh Street, Sydney, 2000, appear before a juge of the court to answer to charges: 2. That he did, between 12 October 2002, and until today, fail to take account of mutual dealings had between Ann Carolyn Teese and various of her creditors as required by s.86 Bankruptcy Act 1966, such conduct offending s.43 Crimes Act 1914 as being an attempt in a way not specially defined in the Crimes Act 1914 to obstruct, prevent, pervert and defeat the course of justice in respect of the judicial power of the Commonwealth. 3. This offence liquidates to a penalty of $33,000 by reference to s.4B Crimes Act 1914. 4. The prosecutor further charges that when the defendant was called upon to take accounts before Federal Magistrate Driver, he did, with intent to obtain a financial advantage by falsely pretending that he was and is not obliged to require accounts of mutual dealings to be had, between creditors and Ann Carolyn Teese under s.86 Bankruptcy Act 1966 did obtain a financial advantage, and has been charging $630 per hour for fraudulent services, by deception of the said magistrate, and Ann Carolyn Teese. (Section 134.2 Criminal Code Act 1995). 5. An offence against s.134.2 Criminal Code Act 1995 liquidates to a penalty of $66,000 and the prosecutor claims that amount accordingly, Qui Tam. 6. On Monday 13 October 2003, before Justice David Kirby, the defendant did attempt, by filing a motion, to defeat the course of justice in respect of the judicial power of the Commonwealth by asking the court to circumvent its own Supreme Court Rules, and Supreme Court Act 1970 and by so doing has committed another offence against the s.43 Crimes Act 1914 and is liable, accordingly, to a further penalty of $33,000 liquidated, by reference to s.4B Crimes Act 1914. 8 He has filed an affidavit in support. The summons purports to be filed under Part 75 of the Supreme Court Rules. Rule 1 of that Part provides that, subject to s.17 of the Act, and except as provided in this Part, the Rules do not apply to any of the proceedings in the court which are specified in the Third Schedule to the Act. Included in the Third Schedule are proceedings in the Supreme Court for the prosecution of indictable offences. 9 The Rules, the Criminal Procedure Act 1986 and the Judiciary Act 1903 (Cth) envisage the commencement of criminal proceedings in the court by indictment filed by those lawfully entitled under the law of the State of New South Wales and the law of the Commonwealth to do so. No procedure by way of summons under Form 74A, as has been employed in this case is available for the prosecution of criminal proceedings in this court. 10 Notwithstanding that the summons asserts that the plaintiff is a prosecutor and claims that the defendant has committed offences against s.43 of the Crimes Act 1914 (Cth), s.134.2 of the Criminal Code Act 1995 and claims liquidated penalties in respect thereof. 11 The affidavit in support contains little, if any, fact, although it refers to a trustee in bankruptcy having allegedly instructed counsel or a solicitor to make representations to a judge of the Supreme Court sitting in the exercise of Federal jurisdiction; that Rules contended to be specifically excluded by Supreme Court Rules and the Supreme Court Act, were not in fact excluded and that some process has thereby been caused to be frustrated. Although reference is made to annexures, there is no supporting material by way of fact. Merely, there are abstracted portions of Acts and photocopies of the Rules. The affidavit seems to be intended to present argument rather than evidence and goes on to contend that, if a liquidated penalty was paid in response to a prosecution by a common informer, the Crown is somehow estopped. Obviously, what is sought is that that penalty be paid and that Mr. Gargan receive the benefit of at least substantial portion thereof apparently as a common informer. 12 Accompanying the other documents provided in this case is a letter, or submission, by Mr. Gargan contending that he has commenced the proceedings as a common informer, asserting criminality against the defendant and contending a right to use the summary procedure as otherwise "s.17 and Schedule 3 Supreme Court Act 1970 make it unlawful to use most of the Rules of court, to defeat the effect of the Criminal Procedure Act 1986". 13 The letter appears to contend that the Crown in right of New South Wales is entitled to the benefit of one half of all penalties and that Mr. Gargan would be entitled to the balance. He makes assertions that it is open to the defendant to pay the penalty he has nominated into court to save the cost of being prosecuted and, if the defendant causes no unnecessary delay in the prosecution, then the court can discharge him without conviction, but that if he wishes to contest the allegation, the matter must go to a jury trial. Attached to the letter are photocopied portions of the Criminal Procedure Act 1986. It seems to be envisaged by Mr. Gargan that what he has done is to launch a prosecution which must, unless the defendant takes the courses he refers to, conclude in the holding of a jury trial by way of a prosecution for offences. It may be that what Mr. Gargan has intended is that he is commencing proceedings as a common informer for a penalty. I shall return to these matters later. 14 In matter no. 12499 of 2003, Mr. Gargan has again employed a summons seeking similar orders claiming offences under s.43, asserting various statutory authorities which it is claimed gives him the right to so claim and claiming injunctions to restrain the defendant from further proceeding with the administration in bankruptcy of the estate of one Ann Carolyn Teese and requiring him to provide to the said Ms. Teese monies to release a caveat over her land. However, with the papers provided to me is a notification that the plaintiff does not act on behalf of Ms. Teese. 15 Accompanying that summons is a voluminous mass of written material including photocopies of what are said to be portions of various documents including references, portion of the Fines & Forfeitures to the Crown Act (1670-71) 22 and 23 CAR. 2 C 22, portions of the Crimes Act (Cth) 1914, portions of the Criminal Code Act 1995 and a number of short submissions apparently to support Mr. Gargan's claims that he is entitled to prosecute the defendants and bring a penal action to recover a penalty of which he may receive a proportion. It appears envisaged by Mr. Gargan that by utilising the procedure that he has, he has laid an information. 16 In matter No. 13149 of 2003, both of the defendants, the Commonwealth Bank of Australia and John Henry Bartrop, move to have the proceedings summarily dismissed on the same bases I have referred to when dealing with the other actions. These proceedings, unlike the earlier two proceedings, are commenced by statement of claim. In that statement of claim, the plaintiff seeks the recovery of a liquidated debt. The statement of claim pleads that the second defendant acting on behalf of the first defendant, did attempt to obstruct, prevent, pervert or defeat the course of justice in relation to the judicial power of the Commonwealth and again reliance is placed on s.43 of the Crimes Act (Cth) 1914. It seems to be contended that certain proceedings before a magistrate to which, presumably, Mr. Bartrop was a party, led to Mr. Bartrop misleading the magistrate "by promulgating in collusion with a counsel (sic) named Purnell an argument to the magistrate that was false and misleading in material particulars". It is claimed that this was fraud and reliance is placed on s.133.1 of the Criminal Code (Cth). 17 A number of statutes are referred to which are asserted to render Mr. Bartrop and the Commonwealth Bank liable to penal sanctions which Mr. Gargan appears to claim he is entitled to seek to recover and to recover in this court. Reference is also made to Jowitt's Legal Dictionary and certain paragraphs are included in the document which appears, at best, to contain submissions of law. It is asserted the second defendant and the first defendant attempted to obtain financial advantage by deception and s.134.1 of the Criminal Code Act is invoked. 18 It is contended that portions of the penalties said to be due as a consequence of these matters pleaded are due, at least in part, to the plaintiff, Mr. Gargan, and he asserts that in the event that any of the law to which he contends applies and is set out in the document is disputed, the proceedings should be remitted to the Supreme Court of the Australian Capital Territory. 19 An amount of $1.277 million jointly and severally from the defendants is claimed jointly with the Crown. 20 The particulars of Mr. Gargan's claim are as set out as follows:- "10. The Statute; 22 & 23 CAR. 2 C 22 (Fines and Forfeitures to the Crown) (1670-71). This grants to every Australian who will sue for them, penalties on behalf of the Crown, with a bounty payable to the prosecutor of one half the recovery. It is part of the pyramid of Imperial Laws, on which the Commonwealth of Australia Constitution Act 1990 (Imp) is set at the Crown." 21 At no point in this or any of the proceedings, has Mr. Gargan in any way indicated any particular authority whatsoever from the State of New South Wales or from the Commonwealth of Australia or that either the State of New South Wales or the Commonwealth of Australia are or are not taking any action in the circumstances except so far as he claims the right to recover penalties he claims are due to the State of New South Wales (notwithstanding these charges appear to relate to offences against the laws of the Commonwealth). 22 An extensive affidavit sworn 3 December 2003 has been filed. That affidavit refers to a number of events and refers to the Fines and Forfeitures to the Crown Act. It annexes extracts of a number of statutes, texts, legal dictionaries and other documents. It contains explanatory notes asserting that Mr. Gargan is proceeding as a prosecutor to the intent that he is entitled to use this court to charge indictable criminal offences this way from which he hopes to derive profit. 23 Again it seems Mr. Gargan appears to be contending that he is entitled to sue for penalties by bringing a prosecution in this court, on this occasion under the guise of an action for debt. 24 In each case, detailed submissions in support of the applications have been provided to me by the defendants. However, it was common ground between Mr. Gargan and counsel for the various defendants in the argument before me that the same underlying point was essential to all three of these cases as I had dealt with in the Morisset Mega-Market case. In my decision there, I said:- "The defendant asserted a status as an officer or official of the Commonwealth and claimed an entitlement under what he asserted to be Federal law to recover penalties; to require a jury trial in proceedings; and not to be liable to the ordinary incidents of State judicial procedure as would permit a judge to strike out an incompetent action. In this submissions filed on 18 November 2002, and at various other points where he filed written submissions or wrote letters which have set out his contentions as to legal matters and which have been provided to me, the first defendant has made numerous discursive and to a great extent incomprehensible submissions concerning such matters as the status of the constitution and an entitlement on his part to bring proceedings for penalties in which he says he invokes the judicial power of the Commonwealth. I put those submissions aside, notwithstanding their voluminous nature and the plaintiffs' submissions also of considerable volume which attempted to meet in detail all the defendant's contentions since, distilling, as I attempted to do during the hearing of 14 May, the parties' contentions to those essential to support the orders sought or resisted, I must turn to the effect on the second count of the decision of the High Court in Jamison & Brookmans v. The Queen (1993) 177 CLR 574. Whether the information alleges offences known to the law In that case, the High Court held that parties and their legal representatives cannot be held liable for what was said or done in court, even if what was said was false, as attempting to obtain a benefit by deception. Criminal liability for such acts is to be found only in the offences involving the administration of justice. This principle would appear to dispose of the second count. Further written submissions to this effect dated 14 May 2003 were provided by the plaintiffs in which my attention was drawn to Munnings v. Australian Government Solicitor (1993) 68 ALJR 169 per Dawson, J. at 172. On this question, the first defendant replied in a written submission of 15 May 2003 contending that s.6 of the Supreme Court Act made the Supreme Court Rules prevail over any prior statute and that what had occurred was an attempt to oust the jurisdiction of the court by some executive fiat. It is contended that an affidavit of Mr. Lucas contending that no cause of action exists took the matter "out of the contemplation of what was under consideration in Jamison & Brookmans " and that this was an attempt to oust the jurisdiction of the common law courts which was void at common law and that the High Court justices were bound to affirm such a principle. The submissions attempted to distinguish between words "spoken in office", see Jamison & Brookmans (supra, p.583) and steps taken in proceedings including strike out applications, in particular, because it was asserted that strike out applications of their very nature are designed to oust the jurisdiction of the court and pervert the course of justice and were "ever outside the ambit of the common law". It was claimed that striking out pleadings brings the Sovereign into contempt as playing favourites. I reject those submissions. Jamison & Brookmans (supra) is directly applicable. The allegation of the second offence is plainly not maintainable. The sufficiency of the allegation of the first offence turns upon the defendant's submissions that he had some right to avoid the ordinary procedures in the civil jurisdiction of the District Court. That right could only be found if I accepted his submissions about Federal law and the Constitution. I do not. Those submissions demonstrate a total lack of comprehension of basic legal principle. The first defendant is not a Commonwealth officer or official nor can he, by his own assertion, make himself one or convert matters of State jurisdiction into the exercise of Commonwealth judicial power. His views of the law have apparently led him to believe he can use the courts and the criminal courts to obtain money from defendants by way of penalties. He has no lawful right to do so. So far as he attempts to use the courts for such purposes, he is abusing the processes of the courts. Equally with all others, the first defendant is amenable to ordinary court procedure. The regular employment of court processes does not give rise to any offence against the administration of justice. Therefore the first count alleges no offence under s.43 nor any other offence known to the law." 25 I concluded that the plaintiff's attempts to use an information to claim penalties for such offences in this way before a magistrate was an abuse of process. 26 Those remarks are equally applicable to these proceedings. Not only are all of these proceedings ill commenced, not only are the summons and statement of claim procedures inapt to commence a proceeding by way of a criminal prosecution in this court for a common informer to use to claim penalties, but Mr. Gargan does not have the authority required under the Judiciary Act 1903 (Cth) for a prosecutor to commence proceedings on indictment for offences against the laws of the Commonwealth, s.69 of the Judiciary Act 1903 (Cth), nor to commence proceedings on behalf of the Commonwealth or the State of New South Wales by way of a prosecution on indictment in this court or for recovery of a penalty in this court. 27 Mr. Gargan claims a right to commence proceedings for the recovery of pecuniary penalties as a common informer relying on s.14 of the Criminal Procedure Act 1986. That section provides:- "A prosecution or proceeding in respect of any offence under an Act may be instituted by any person unless the right to institute the prosecution or proceeding is expressly conferred by that Act on a specified person or class of persons." 28 It can be seen that section is limited in its scope and subject to the exception expressly referred to in it. It does not permit Mr. Gargan to commence in this court any proceedings nor does s.13 of the Crimes Act 1914 (Cth). Although a statement of claim in this court might be used to recover pecuniary penalties, eg., under the Customs Act 1901 (Cth), that is because that Act provides specifically for that procedure and for actions to be brought in this court. It contains provisions limiting who may bring such actions. Those provisions do not include Mr. Gargan. Proceedings in this court under the various State and Commonwealth Acts under which penalties may be sought in respect of matters involving proceeds of crime, are commenced in the court by summons. But that is because those Acts provide expressly for a specified person or class of persons to have in those limited circumstances access to this court and that procedure is expressly provided for in respect of that access by the Supreme Court Rules. 29 In addition, for the reasons I gave in the Morisset Mega-Market case, it is not open to the plaintiff to attempt to sue on, or claim, from the asserted commission of the offences he refers to in each of the proceedings. Here, in each case, as in the Morisset Mega-Market case, the plaintiff is attempting to use the processes of this court to obtain a financial penalty in respect of what he asserts to be the commission of crimes upon which it has been held no action lies in the circumstances to which he refers. He is attempting to assert an entitlement to penalties and to assert that the defendants should pay and not contest his allegations lest they be put by the very proceedings he has commenced to a criminal trial. This is an attempt to use the processes of this court to harass defendants into paying money to a person who has no authority to bring the proceedings he has brought here or to make the claims that he does. This procedure is not permitted by the law to a common informer. In Hawkesbury City Council v. Foster & Anor (unreported 18 December 1997), the Court of Appeal held:- ""However the right to initiate a prosecution is distinct from the right to recover any fine imposed on the convicted offender. In Bradlaugh v. Clarke, the Earl of Selborne, LC. referred to the 'incontestable proposition of law' that:- 'where a penalty is created by statute, and nothing is said as to who may recover it, and it is not created for the benefit of a party grieved, and the offence is not against an individual, it belongs to the Crown, and the Crown alone can maintain a suit for it.' ... It rests on a very plain and clear principle. No man can sue for that in which he has no interest; and a common informer can have no interest in a penalty of this nature unless it is expressly, or by some sufficient implication, given to him by statute. The Crown, and the Crown alone, is charged generally with the execution and enforcement of penal laws enacted by public statutes for the public good, and is interested, jure publico, in all penalties imposed by such statutes; and therefore may sue for them in due course of law, where no provision is made to the contrary. The onus is upon a common informer to shew that the statute has conferred upon him a right of action to recover the particular penalty which he claims.' There is no magic in the expression 'common informer'. It means no more than a private person suing for private benefit to recover a statutory penalty. The expression 'common informer' is only used to distinguish that person from a state or official informer, such as the Attorney General or a Director of Public Prosecutions. There have been few more detested figures in the law than the common informer. In 1589 a statute of Elizabeth deplored that common informers 'daily unjustly taxed and disquieted' the Queen's subjects. Coke described them as 'viperous vermin' who under the mantle of law 'did vex and pauperize the subject ... for malice or private ends'. A nineteenth century Treatise on the Police and Crimes of the Metropolis referred to them as 'unprincipled pettifoggers', whose office was a nuisance and 'an instrument of individual extortion, caprice and tyranny'. Nevertheless, in Radzinowicz's words, 'the demand for their services remained as constant as the criticism of their activities was unrelenting'. Over many centuries from about the time of Edward III statutes conferred the right to enforce and recover all or part of a penalty, especially in relation to what would today be regarded as regulatory offences. The qui tam action came to the Australian colonies. An early reported instance is Ex parte Pearce. An authority that illustrates the capacity of an official such as a police constable to assume the mantle of a common informer is Royce v O'Hehir. The judgment of Rowlatt, J. in Orpen v. Haymarket Capitol Ltd reflects the traditional attitude to the common informer, as well as demonstrating the perceived 'usefulness' of that figure. He described the proceedings before him as:- '... a penal action, a form of proceeding invented by Parliament for ensuring that laws should not be a dead letter. In order to provide that laws should not become a dead letter by reason of the circumstance that no prosecutor, official or private, comes forward, Parliament has in these cases enlisted the motive of private greed to ensure that the offender shall be made to smart for his offence, by enabling any person to come forward and claim certain sums of money which, in many cases, as in this case, may be large. Such persons are called 'common informers'.' In 1852, s.15 and s.16 of the Acts Shortening Act of New South Wales addressed the subject in general terms. These were the provisions effectively re-enacted in s.4 - s.6 of the Fines and Penalties Act 1901." 30 That latter Act, not that of Charles II, represented the law in New South Wales. So far as there is still statutory authority for a common informer to launch a prosecution in the hope of recovering a moiety of any penalty awarded, it does not allow procedures of this kind threatening jury trials unless payment is made or proceedings in this court or on these asserted offences. 31 My observations in Morisset Mega-Market that it is not open to bring proceedings to charge an attempt to obtain financial benefit by deception when all that has been done is a regular application to the court and it is not open to charge an attempt to pervert the course of justice when all that has been done is an ordinary and regular application to the court, remain applicable to a good deal of what the plaintiff has alleged in these proceedings. But in any event, the use of the court proceedings for this purpose to attempt to mulct defendants clearly renders them an abuse, as I had held in Morisset Mega-Market. 32 To permit proceedings of this kind on these bases would be to countenance "an instrument of individual extortion, caprice and tyranny". 33 It is not necessary to distinguish between the application of the inherent jurisdiction, Part13 Rule 5, or Part 15 Rule 26. These proceedings are an abuse. They are doomed to fail because they disclose no cause of action nor any cause of action which can be brought by the plaintiff in this court. 34 I should not pass from the matter, however, without referring to the fact that amongst the detailed written submissions that have been filed by the defendants are submissions as to a number of bases upon which the views of Mr. Gargan as expressed in the documents are said to be erroneous and the proceedings an abuse. 35 It is, however, sufficient, in order to dispose of all of these proceedings that I declare them to be an abuse and that in each case under Part 13 Rule 5, rule that the proceedings be dismissed generally. 36 I indicate that I would, if applying Part 15, strike out the whole of Mr. Gargan's pleadings and refuse leave to re-plead, but the more final order would seem to be appropriate, having regard to the multiplicity of the occasions on which Mr. Gargan has asserted, under one guise or another, a right to bring proceedings of this kind. 37 I further conclude that, having regard to the multiplicity of proceedings brought by Mr. Gargan, this judgment should be drawn to the attention of the Attorneys-General for the State and the Commonwealth with a view to their considering whether an application should be made to the court for Mr. Gargan to be declared a vexatious litigant. 38 In each case, costs are sought on an indemnity basis. There is no reason that I can detect as to why costs should not be awarded to the defendants and that the defendants should not be indemnified against the costs of proceedings which were entirely misconceived. I order Mr. Gargan to pay those costs, therefore, on an indemnity basis. **********

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