Peter Alexander Gargan v The Commonwealth of Australia and Ors

District Court of NSW|2007-02-09|Before: Kirby J

CITATION: Peter Alexander Gargan v The Commonwealth of Australia and Ors [2007] NSWDC 14 This decision has been amended. Please see the end of the judgment for a list of the amendments.

DECISION: 1. First four actions dismissed; 2. Fifth action (a) Leave to file Notice of Motion refused (b) Leave to file Notice of Motion returnable on 23/2/07; ;

CASES CITED: Kirby J in Re Kavanagh's Application (2003) 78 ALJR 305 at [10]-[14]; (Forge v ASIC (2006) 229 ALR 223); Kable v DPP (1996) 189 CLR 51; Gargan v Magistrate Dillon and Anor [2005] NSWSC 1106 at paragraph 30.

Peter Alexander Gargan (Plaintiff) Robert Harding (Plaintiff) Sandra Judith Dixon (Plaintiff) Henricus Voskuilen (Plaintiff) The Commonwealth of Australia (Defendant) Australian Government Solicitor (Defendant) Emma Whan (Defendant) Angus Tainsh (Defendant) Matthew Walsh (Misnamed Foley) (Defendant) PARTIES: Amala Jayaratne (Defendant) Sarah Oliver (Defendant) Barry Cosgrove (Defendant) Commissioner Atkinson of Qld Police Service (Defendant) Hank Lewin (Defendant) Murray Allatt (Defendant) Georgina Wright (Defendant) Colin Michael Stoten (Defendant)

FILE NUMBER(S): 5231/06; 5635/06; 5718/06; 5700/06; 418/07

Plaintiffs in Person Ms G Wright (Defendant) SOLICITORS: Mr C Stoten (Defendant) Mr M Allatt (Defendant) Mr M Murray (Defendant)

1 There are five actions listed before me today. Three unrepresented plaintiffs appeared. All of the defendants were represented.

2 Four of the matters were listed for the hearing of the defendants' Notices of Motion for each of the Statements of Claim to be dismissed.

3 The fifth matter has only recently been commenced. In that matter the defendants seek leave to file a Notice of Motion for the same relief and have it heard with the other four applications.

4 Peter Alexander Gargan is the plaintiff. The action is against the Commonwealth of Australia.

5 The plaintiff is unemployed. Pursuant to the relevant legislation, he has signed an agreement to be able to receive a Newstart allowance. He asserts in the Statement of Claim that the allowance can be stopped for eight weeks if three participation failures occur in 12 months. A participation failure is defined in the legislation as acts such as failing to sign the agreement.

6 The plaintiff claims that this is a draconian penalty and outside the authority of a public servant. He pleads "The course of justice in relation to the judicial power of the Commonwealth is defeated when a public servant or agent of the Commonwealth by threats and intimidation can acquire property namely a binding contract without providing recourse to a Ch III Constitution Court".

7 The plaintiff asserts that this means a court constituted as it had been in 1900 "as a Court of Judicature and give litigants the choice available under Rule 30 The Supreme Court of Judicature Act 1873". That provision, it is asserted, required actions to be tried either by a Judge, a Judge sitting with assessors, a Judge and jury or an official or special referee i.e. there were four choices. The relevant legislation only gives him one option, that is to deal with a public servant, but "an Australian subject of Her Majesty … must be given four choices or the law is not complying with the requirement of a Court of Judicature". The defendants, he says, were accordingly attempting to pervert the course of justice.

8 He claims that this means that he should be paid a penalty of $165,000.

9 He also claims a right to have his action determined by a jury.

10 Robert Harding and Peter Alexander Gargan are the plaintiffs. Their action is brought against the Australian Government Solicitor, Emma Whan, Angus Tainsh, Matthew Walsh (misnamed Foley) and Amala Jayartne.

11 The plaintiffs claim that they "are aggrieved because the Commonwealth and the four other defendants have conspired together to defeat the Judicial Power of the Commonwealth by having a justice grant them a pecuniary benefit contrary to law and sections 28 and 43 of the Crimes Act 1914."

12 This apparently relates to a hearing before Judge Kearns of this court involving a taxation liability on the part of Mr Harding. The plaintiffs were unsuccessful. The plaintiffs say that the defendants are in contempt because they refused to assist the Judge correctly. They assert they are entitled to damages for the defendants' attempt to pervert the course of justice and for the defendants' breaches of the law.

13 Again they assert that they should have been given four choices, that they should be provided with a jury and a differently constituted court.

14 Peter Alexander Gargan is the plaintiff. The action is brought against the Australian Government Solicitor, Sarah Oliver, Barry Cosgrove and Commissioner Rob Atkinson of the Queensland Police Service.

15 In the Statement of Claim the plaintiff asserts that "the driving licence issued to William John Ketelhohn used for interstate truck driving is a privileged document and beyond the competence of the Queensland Police Service to seek to have a magistrate suspend".

16 The particulars of the claim assert that a police officer has interfered with the free passage of Mr Ketelhohn contrary to the Constitution. The plaintiff, it is said "is qualified by the Parliament of the Commonwealth to enforce the correct procedure in respect of the course of justice in respect of the Judicial power of the Commonwealth".

17 Mr Gargan claims that he is authorised by section 5 of the Partnership Act to enter into a partnership with a complainant to recover a pecuniary penalty.

18 Again the plaintiff asserts that he should be provided with a jury and a differently constituted court and that Mr Ketelhohn should have been given four choices.

19 Sandra Dixon and Peter Alexander Gargan are the plaintiffs. Their action is brought against Hank Joseph Lewin and the Commonwealth of Australia.

20 It is asserted in the Statement of Claim that Ms Dixon was in a relationship with Mr Lewin. He abused her civil rights by harassing and threatening her. The relationship ended. He brought proceedings in the Family Court for access to their child. Orders were made.

21 The Statement of Claim asserts that this is an action to have the constitutional validity of the Family Court of Australia tested against a decision of the High Court. The plaintiffs also claim that they are entitled to be paid a penalty.

22 Again the plaintiffs assert that they should be provided with a jury and a differently constituted court and that the Commonwealth must enter into an agreement with them giving them four choices.

23 The Statement of Claim in this matter was filed on 7 February 2007.

24 There is no indication from the Court file that the plaintiffs were informed that the matter would be listed today. One of the four plaintiffs was not in court.

25 The legal representative of one of the defendants submitted that there was no basis on which their action could succeed against his client. I consider however that it would be a denial of natural justice to strike out all or part of a claim in circumstances where a plaintiff had not been given an opportunity to be heard.

26 In these circumstances I do not propose to give the defendants leave to file a Notice of Motion returnable for hearing on 9 February 2007 for the dismissal of the proceedings.

27 However I do give them leave to file a Notice of Motion for that relief returnable for hearing on 23 February 2007 when there is another related matter being plaint no 100 of 2007 listed before the Court. I direct that any such Notice of Motion should be filed by 15 February 2007 and served on the addresses for service set out in the Statement of Claim by 5.00 p.m. 19 February 2007.

28 I was informed by Mr Gargan that the plaintiff Mr Henrikus Voskuilen does not reside at the address shown on the Statement of Claim. I direct Mr Voskuilen to file an amended Statement of Claim complying with UCPR 4.2 by 23 February 2007. Mr Voskuilen is to be informed of this Order in writing by the Registrar at the address shown in the Statement of Claim.

29 In relation to the first four actions the relief is sought pursuant to UCPR 13.4 and 14.28. They relevantly provide: 13.4 (1) If in any proceedings it appears to the court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings: (a) the proceedings are frivolous or vexatious, or (b) no reasonable cause of action is disclosed, or (c) the proceedings are an abuse of the process of the court, the court may order that the proceedings be dismissed generally or in relation to that claim. (2) The court may receive evidence on the hearing of an application for an order under subrule (1). 14.28 (1) The court may at any stage of the proceedings order that the whole or any part of a pleading be struck out if the pleading: (a) discloses no reasonable cause of action or defence or other case appropriate to the nature of the pleading, or (b) has a tendency to cause prejudice, embarrassment or delay in the proceedings, or (c) is otherwise an abuse of the process of the court. 30 In deciding whether to exercise the discretion I take into account the following:

31 The defendants say that each of the propositions advanced by the plaintiffs which can be understood are so unsupported by legal authority that the claims are entirely devoid of merit and are a waste of court time. 32 The plaintiffs rely on breaches of the International Covenant on Civil and Political Rights asserting that it is part of Australian law.

33 The same submission was made in another claim by Mr Gargan heard in the NSW Supreme Court (Gargan v Magistrate Dillon and Anor [2005] NSWSC 1106 at paragraph 20). It was rejected. The Court held: The plaintiff's third proposition … proceeds on the footing that Australian courts are bound to give effect to the provisions of the International Covenant on Civil and Political Rights as part of Australian law. This is simply incorrect. A succinct statement of the status of the provisions of the covenant in Australian law may be found in the judgment of Kirby J in Re Kavanagh's Application (2003) 78 ALJR 305 at [10]-[14] (with footnotes omitted): "It is clear from the proceeding presented by the applicant, and from the terms of his affidavit, that he seeks to rely on Art 14.1 of the International Covenant on Civil and Political Rights ('ICCPR') to support the proceeding. Australia is a party to the ICCPR. It has also subscribed to the First Optional Protocol to the ICCPR. That Protocol permits persons in the position of the applicant to communicate to the Human Rights Committee of the United Nations where they contend that, in particular respects, Australia is in breach of its obligations under the ICCPR. This, it appears, the applicant has done, or intends to do, in consequence of his complaints about the outcome of the foregoing proceedings. Although at various times, it has been suggested that the ICCPR should be made part of Australia's domestic law, by the enactment of legislation giving it direct local effect, no such law has, to this time, been enacted." 34 I am not persuaded that there is any likelihood of the plaintiff successfully relying on the International Covenant on Civil and Political Rights.

35 In each action the plaintiffs seek orders for the payment to them of a penalty under section 4B of the Crimes Act 1914. That section provides that a court can impose a pecuniary penalty instead of or in addition to a period of imprisonment.

36 Section 15F of the Crimes Act does permit the bringing of a civil action in respect of conduct which is an offence under the Act. In each action the plaintiffs claim a breach of section 43 of the Crimes Act - that is that there has been an attempt to pervert the course of justice. I am not persuaded that the Crimes Act provides for the plaintiff, if successful, to be awarded a "prescribed penalty" of $165,000 as pleaded.

37 In each matter the plaintiffs assert a right to a trial by jury. The legal basis on which the entitlement to a jury trial is made is not clear - the plaintiffs refer to a failure to provide a "pure and clear"… "stream of justice" unless a jury is provided. There is also a reference to the International Covenant on Civil and Political Rights, which I have already dealt with. Lastly it is asserted: There is no room in Australian jurisprudence for the substitution of the Judicial Power of a State, for the Judicial Power of the Commonwealth and the Judicial Power of the Commonwealth must remain as it was in 1900, be exercised in the name of the Queen on behalf of Almighty God and in a "Court" reflecting the law of the New Testament which means with a jury". 38 I am not persuaded that there is any likelihood of the plaintiff successfully arguing that he is entitled to a jury trial.

39 As I have outlined in detail in relation to the first action, each of the plaintiffs claim a right to four choices in each action. The plaintiffs say that where a State Court exercises a Commonwealth jurisdiction under section 39 (2) of the Judiciary Act 103, that Court must be constituted as it would have been in 1900 so that four choices are available. The same principle is said to also apply to public servants.

40 I accept the submission made by the defendants in relation to the interpretation to be given to section 39 (2) - that is that the Commonwealth must take State Courts as it finds them (Forge v ASIC (2006) 229 ALR 223) and that it is inapplicable to other entities or persons.

41 I am not persuaded that there is any legal basis on which the plaintiffs' submissions could be successful.

42 In each matter the plaintiffs will rely on the decision of the High Court in Kable v DPP (1996) 189 CLR 51 as establishing the principle that "no single Judge can exercise Statutory powers over any other subject of Her Majesty Elizabeth the Second resident in Australia".

43 In that case the Court was considering the validity of the Community Protection Act 1994 (NSW) which empowered the Supreme Court to make a detention order against one person.

44 I am not persuaded that the decision has ever been interpreted in the manner suggested by the plaintiffs. In addition in relation to the actions individually

45 it is difficult to understand the legal basis on which the first action is brought. There is a reference to the Constitution. Paragraphs 4 & 5 assert: "When the Parliament of Australia was given authority and consent to make unemployment benefits by a referendum in 1946 included in the consent was a clause (but so as to not authorise any form of civil conscription)

The Parliament of the Commonwealth and Executive Government is bound by these words and by using the threat of withholding my daily bread, as they pray for when passing laws in Parliament, unless I enter into a compulsory agreement when they have stepped outside their granted powers". 46 Later on in the document, the plaintiff pleads that the defendant has breached the Constitution by failing to provide "just terms".

47 I am not persuaded that there is any likelihood of the plaintiff successfully relying on either provision - the first section applies to medical and dental services and the second relates to the acquisition of property from the plaintiff.

48 In relation to the second action, I am not persuaded that Mr Gargan has shown any legal basis on which he could be joined as a party. There is also no clear cause of action relied on by Mr Harding. On the basis of the pleadings, I do not consider that there is any real prospect of Mr Harding showing contempt or conspiracy even if they were available causes of action resulting in the remedies pleaded.

49 In the second action there is a claim for damages based on the defendants opposition to a jury trial. This is based on a breach of section 28 of the Crimes Act which provides: "Any person who by violence or threats of intimidation of any kind, hinders or interferes with the free exercise or performance by any other person of any political right or duty shall be guilty of an offence." 50 I am not persuaded that there is any prospect that such a claim could succeed.

51 In relation to the third action, there is no explanation of the relationship between the plaintiff and Mr Ketelhohn other than a reference to the Partnership Act. There is no pleading disclosing any other basis on which the plaintiff says he has standing to bring the action.

52 I accept that the fact that the plaintiff has no standing to bring the action is sufficient to show that it is frivolous, vexatious that no reasonable cause of action is disclosed and that the proceedings are an abuse of the process of the court.

53 There may be other legal propositions in the Statement of Claim relating to the third action. However it is discursive and principally recounts matters of fact and opinion. I accept the description given by the representative of the fourth defendant in 5718 of 2006 who described the pleadings as "incomprehensible" and "nonsensical". It is not possible to follow Mr Gargan's assertions regarding the operation and interaction of different pieces of legislation and various historical events. I also accept that some of the allegations are properly described as fanciful such as paragraph 26 of the Statement of Claim in the third action where it is asserted: "This illegal Act (the Supreme Court of Queensland Act 1991) is supported by the Queensland Police Service which now acts like an occupying Roman Army in Queensland, going to an equivalent of Pontius Pilate for Judgment against Commonwealth subjects and the person responsible for allowing this is the fourth defendant". 54 In the third action, the plaintiff seeks a declaration that any decision by a single Judge in the Supreme Court of Queensland must be void. I accept the submission made by the defendants that this relief is beyond the jurisdiction of this Court.

55 In relation to the fourth action, Mr Gargan relies on section 15F of the Crimes Act and the Partnership Act (NSW) as entitling him to be joined as a plaintiff.

56 In relation to section 15F Mr Gargan says: "The plaintiffs are both qualified by the Parliament of the Commonwealth to take an action to enforce the correct procedure in respect of the course of justice in respect of the Judicial power of the Commonwealth. The power and authority is derived from section 15F Crimes Act 1914 (Com) and is available to all Commonwealth subjects and only requires to be claimed" 57 Section 15F provides: Nothing in this Act shall affect the right of any person aggrieved by any act or omission which is punishable as an offence against this Act to institute civil proceedings in any court in respect of such act or omission. 58 I am not persuaded that this section gives Mr Gargan any standing to be joined as a plaintiff. I am also not persuaded that their partnership, being a request from Ms Dixon for Mr Gargan to enter into a partnership "with a view to recovering a penalty from the first defendant and the Commonwealth" has been shown by Mr Gargan to give him standing to be joined as a plaintiff.

59 The Statement of Claim in the fourth action is also discursive and principally recounts matters of fact and opinion. The causes of action are difficult to distill. There is a large overlap between the claims made and the remedies sought in the fourth action and the other three proceedings.

60 I accept that the first to fourth claims are doomed to fail and a hearing would involve an unjustifiable waste of court time and cost to the defendants.

I am satisfied that each of the four actions are: (a) frivolous and vexatious; and (b) that no reasonable cause of action is disclosed; I order that each of the four proceedings be dismissed pursuant to UCPR 13.4.

Other matters 61 Mr Gargan has been declared a vexatious litigant in Queensland.

62 I agree with the observations made by Barrett J made in unrelated action brought by Mr Gargan: "Many aspects of his submissions involve what Young CJ in Eq, writing extra-judicially, has called "pseudo technical legal rubbish": see (2004) 78 ALJ at p.767. A number of the submissions have been made by the plaintiff in other proceedings and rejected. There is a strong element of perversity in his persisting with them." (Gargan v Magistrate Dillon and Anor, Supra, at paragraph 30).

63 I note that in Gargan v Woodgate [2004] NSWC 177 James J said: "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" 64 I was informed that this has not occurred. I agree with this conclusion and again suggest that such steps should be taken.

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Community Protection Act 1994(NSW)

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