Bankruptcy Act 1966 (Cth), s 7A, s 27, s 43, s 52(1), s 54(1)(a), s 54(3), s 86(1), s 273(3)

Crimes Act 1914 (Cth), s 4AA, s 4H

Criminal Appeals Act 2004 (WA)

Criminal Code (Cth), s 1.1, s 6.1, s 9.2, s 9.5, ch 2

Federal Magistrates Act 1999 (Cth), s 3(1), s 8(1), s 102

Federal Magistrates Court (Bankruptcy) Rules 2006 (Cth)

Federal Magistrates Court (Delegation to Registrars) Rules 2000 (Cth) (repealed), r 1.4

Federal Magistrates Court Rules 2001(Cth)

Hire-Purchase Act 1959 (WA)

Human Rights and Equal Opportunity Commission Act 1986 (Cth), sch 2

International Covenant on Civil and Political Rights, article 14, article 26

Judiciary Act 1903 (Cth), s 68(2), s 78B

Justices Act 1902 (WA) (repealed), s 20(1), s 33(1), s 189(1), s 206C

Law and Justice Legislation Amendment (Application of Criminal Code) Act 2001 (Cth)

Supreme Court Act 1995 (Qld)

Application for an extension of time within which to appeal dismissed

Respondent : Commonwealth Director of Public Prosecutions

1 WHEELER JA: I have had the advantage of reading in draft the reasons for decision of Buss JA. I agree with those reasons and have nothing to add.

3 BUSS JA: On 11 April 2003, an applicant creditor, by a creditor's petition, applied to the Federal Magistrates Court of Australia, at Sydney, for a sequestration order under s 43 of the Bankruptcy Act 1966 (Cth) ("the Act") against the estates of Max and Dorothy Wilson. The creditor's petition provided, relevantly, that:

"1 [Max and Dorothy Wilson] owe the Applicant Creditor the amount of [$168,740.18] being the amount of moneys due to and guaranteed in favour of the Applicant Creditor by [Max and Dorothy Wilson] for the hire of goods on account of the company, Transearth Australia Pty Limited, and for which sum judgment was entered in the District Court at Parramatta (Proceedings No 710/02) on 19 November 2002 for $167,870.93 and which together with interest thereon...makes a total of $168,740.18.

1. The Applicant Creditor does not hold security over the property of [Max and Dorothy Wilson].
2. At the time when the act of bankruptcy was committed, [Max and Dorothy Wilson]:
   • were personally present in Australia
   • were ordinarily residents in Australia

4 On 19 June 2003, Registrar Tesoriero, in the Federal Magistrates Court, made a sequestration order against their estates. The date of the act of bankruptcy was 7 February 2003. On 20 February 2004, Max and Dorothy Wilson were served with complaints that, having been notified of the sequestration order, they failed, within 14 days of such notice, to make out and file with the Official Receiver a statement of affairs, contrary to s 54(1)(a) of the Act. They were also served with summonses to appear in the Court of Petty Sessions at Kalgoorlie, before a Magistrate, and were subsequently convicted.

5 On 10 August 2004, Max and Dorothy Wilson filed, in the Supreme Court, an application for leave to appeal against their convictions. On 1 December 2004, Simmonds J dismissed their application. On 20 January 2005, Max and Dorothy Wilson filed an application for leave to appeal, and for an extension of time to appeal, against the judgment of Simmonds J. On 23 February 2005, Roberts-Smith and McLure JJA made orders that the applications for leave to appeal and for an extension of time be heard before this Court, together with the appeal, on any grounds on which leave may be granted. Before 16 January 2007, Dorothy Wilson filed a notice of discontinuance of her appeal. Max Wilson is now the only appellant.

6 Although the application is expressed, in part, to be for leave to appeal to the Full Court of the Supreme Court, s 189(1) of the Justices Act 1902 (WA) conferred on the appellant an appeal as of right against the refusal of Simmonds J to grant leave to appeal. See Asciak v Asciak [2000] WASCA 391 at [2].

7 The application is, in substance, a notice of appeal combined with an application for an extension of time to appeal. I will deal with it on that basis.

8 Section 38 of the Acts Amendment (Court of Appeal) Act 2004 (WA), which came into force on 1 February 2005, was a transitional provision which provided, relevantly, that if on the commencement of the Acts Amendment (Court of Appeal) Act, an appeal was pending before the Full Court of the Supreme Court, the appeal was to be taken to have been commenced or made and to be pending before the Court of Appeal.

9 Accordingly, in the present case, the appeal is to be taken to have been commenced or made and to be pending before the Court of Appeal. The Criminal Appeals Act 2004 (WA) did not come into force until 2 May 2005. The Justices Act, and not the Criminal Appeals Act, applies, and at all material times has applied to the appeal, in that the appeal was commenced or made and was pending before the repeal of the Justices Act and the commencement of the Criminal Appeals Act.

10 As I have mentioned, on 23 February 2005, this Court ordered that the applications for leave to appeal and for an extension of time be heard with the appeal. On that date this Court also ordered that the proceedings otherwise be adjourned pending the service by Max and Dorothy Wilson of notices pursuant to s 78B of the Judiciary Act 1903 (Cth).

Application for an extension of time to appeal: applicable principles

11 Simmonds J delivered his reasons for dismissing Max and Dorothy Wilson's application for leave to appeal on 1 December 2004. The appellant should have filed and served a notice of appeal by 22 December 2004. The application was not filed until 20 January 2005, about a month late. At that time, s 206C of the Justices Act empowered the Full Court to extend or shorten the time allowed under that Part or by rules of court for doing any act.

12 In Esther Investments Pty Ltd v Markalinga Pty Ltd (1989) 2 WAR 196, Kennedy J said, at 198:

"In Palata Investments Ltd v Burt & Sinfield Ltd [1985] 1 WLR 942 at 946; [1985] 2 All ER 517 at 520, the Court of Appeal accepted that, in relation to an application for an extension of time for appealing, there are four major factors to be considered in the exercise of the discretion which is conferred upon the court. They are, first, the length of the delay, secondly, the reasons for the delay, thirdly, whether there is an arguable case and, fourthly, the extent of any prejudice to the respondent. There may in a particular case be additional factors, but I accept that the foregoing are the major factors in the present case."

Where the failure to appeal within time is attributable to the act or default of the applicant's solicitor (and not the applicant), that is a material consideration in the exercise of the Court's discretion. See Esther Investments per Kennedy J at 199 and per Rowland J at 204.

13 In Gallo v Dawson [1990] HCA 30; (1990) 64 ALJR 458, McHugh J examined the applicable principles in relation to an application to extend time to appeal to the High Court. The relevant provision in the rules of the High Court empowered the Court to extend time upon such terms "as the justice of the case may require". His Honour said, at 459:

"The grant of an extension of time under this rule is not automatic. The object of the rule is to ensure that those Rules which fix times for doing acts do not become instruments of injustice. The discretion to extend time is given for the sole purpose of enabling the court or Justice to do justice between the parties: see Hughes v National Trustees Executors & Agency Co of Australasia Ltd [1978] VicRp 27; [1978] VR 257 at 262. This means that the discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the applicant. In order to determine whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time: see Avery v No 2 Public Service Appeal Board [1973] 2 NZLR 86 at 92; Jess v Scott (1986) 12 FCR 187 at 194-195. When the application is for an extension of time in which to file an appeal, it is always necessary to consider the prospects of the applicant succeeding in the appeal: see Burns v Grigg [1967] VicRp 113; [1967] VR 871 at 872; Hughes (at 263-264); Mitchelson v Mitchelson (1979) 24 ALR 522 at 524. It is also necessary to bear in mind in such an application that, upon the expiry of the time for appealing, the respondent has 'a vested right to retain the judgment' unless the application is granted: Vilenius v Heinegar (1962) 36 ALJR 200 at 201. It follows that, before the applicant can succeed in this application, there must be material upon which I can be satisfied that to refuse the application would constitute an injustice. As the Judicial Committee of the Privy Council pointed out in Ratnam v Cumarasamy [1965] 1 WLR 8 at 12; [1964] 3 All ER 933 at 935:

'The rules of court must prima facie be obeyed, and in order to justify a court in extending the time during which some step in procedure requires to be taken there must be some material upon which the court can exercise its discretion.'"

Also see Jackamarra v Krakouer [1998] HCA 27; (1998) 195 CLR 516.

14 The appellant relies upon the so-called grounds of appeal that were before Simmonds J, and some additional so-called grounds filed before this Court. The "grounds" before the learned Judge were:

"1. The appellants are Australian citizens, and were prosecuted in Federal jurisdiction for an offence allegedly committed against the Bankruptcy Act 1966, before a magistrate at Kalgoorlie.

1. The Criminal Code Act 1995 specifically states in Schedule 1, s 1.1, that the only offences against the laws of the Commonwealth are those offences created by, or under the authority of, this Code or any other Act. Section 2.1 says the purpose of Chapter 2 is to codify the general principles of criminal responsibility under laws of the Commonwealth. It contains all the general principles of criminal responsibility that apply to any offence, irrespective of how the offence is created.
2. The appellants rely on the Preamble, that the Australian Constitution was made with the blessing of Almighty God, Section 5 Commonwealth of Australia Constitution Act 1900 and Sections 106 - 109 Australian Constitution as grounds for claiming, that as the Parliament of the Commonwealth has provided Section 9.5 Criminal Code Act 1995 a claim of right without intention to defraud, is available as a complete answer to any attempt before a magistrate to obtain a conviction.
3. The magistrate refused to apply this binding federal law, which gives effect to the common law defence, and refused to indict or discharge the appellants as is their right.
4. The Criminal Code Act 1995 has in its dictionary, the Covenant, which is defined as the International Covenant on Civil and Political Rights and the Criminal Code Act 1995 tells all judges and magistrates where to find it as Schedule 2 to the Human Rights and Equal Opportunity Commission Act 1986.
5. The appellants claim that law of the Commonwealth the International Covenant on Civil and Political Rights by article 26 of the law, bans discrimination absolutely, and once they claim their right to be indicted and treated equally, under the Bankruptcy Act 1966 the same as any other alleged criminal, then they must be indicted or discharged, and those are the only two options available to a Magistrate sitting in federal jurisdiction, since the advent of the Criminal Code Act 1995, and its proclamation on the 16th October 2001.
6. It is then the duty of a criminal jury to decide if their claim that the bankruptcy was tainted with fraud, because the original judgment was tainted with fraud, and a registrar of a Federal Court in Sydney should not have made a sequestration order without investigating that alleged fraud, and that the sequestration order is therefore void absolutely, was rightly held, and if it is rightly held, then the criminal jury has the right to decide to not bring in a verdict of guilty, and the defendants in Kalgoorlie, the appellants here believe that this is what should have happened.
7. The appellants believe that since they are Christians, they should not have to submit to the jurisdiction of a Commonwealth public official as defined in the Criminal Code Act 1995 but have an absolute right under Section 116 Australian Constitution to be tried in a Christian Court, with a jury of 12 the same number of jurors as were disciples of Jesus Christ, as provided for in the Scriptures of the King James version of the Holy Bible in Matthew 7 verses 1 - 5, and Matthew 18 verses 15 - 20. The appellants will ask that the jurors swear their oath on the Holy Bible and not otherwise, and judge in the name of Jesus Christ, as the scriptures provide."

The additional "grounds" upon which the appellant seeks to rely are:

"1. Section 86(1) Bankruptcy Act 1966 is a mandatory provision of the said Act and until the Official Trustee in Bankruptcy complies with that mandated section there is no right to demand from an alleged bankrupt a state of Affairs because until the Official Trustee in Bankruptcy demands an account of mutual dealings between the person who prosecuted the bankruptcy, and the Bankrupt, a bankrupt is unable to render a true Statement of Affairs.

1. The High Court says s 86(1) Bankruptcy Act 1966 is a mandatory provision and may only be ignored at the peril of any person who has had mutual dealings with a bankrupt or responsibility for the administration of a bankruptcy.
2. The High Court in Gye v McIntyre [1982] HCA 34; (1981) 171 CLR 609 F.C. 91/002 (7 June 1982) at Paragraph 18 all stated the law thus: [extract omitted].
3. Claim of Right based upon a belief of that nature, that the Official Trustee in Bankruptcy was obliged to require the taking of accounts, renders nugatory any allegation of guilt and the so called Strict Liability provisions of the Bankruptcy Act 1966 are dependent on the proper conduct of the Official Trustee in Bankruptcy before he attempts to obtain a criminal conviction in a Magistrates Court.
4. The Right to jury trial is deeply entrenched in the common law, and all judgments made without a jury, without consent represent an usurpation by Parliament of the judicial function, and a grant by Parliament of judicial power to a magistrate, which the Parliament itself has no power to confer.
5. The Heading The Judicature in the Constitution in Ch III is part of the Constitution by reference to Section 13(1) Acts Interpretation Act 1901 (Cth), and consequently any Court erected contrary to the provisions of the Judicature Act 1873 (Imp) re-enacted in Queensland in 1876, and brought into the Constitution by Section 118 on the 9th July 1900, make any other Court a nullity.
6. A Court of Judicature must comply with Section 2 Judicature Act 1876, (Q) and Common Law Procedure Act, which is now relocated into the Supreme Court Act 1995 (Q) and says this: [extracts of ss 51, 240, 242 and 259 of the Supreme Court Act 1995 (Qld) omitted]. By the use of the word Judicature, as the heading to Ch III Australian Constitution it is crystal clear that a Court must comprise a judge and jury, and any other Court or tribunal is unconstitutional.
7. Justice Simmonds rejected the authority of Kable v DPP for NSW 1996 [1996] HCA 24; (1996) 138 ALR 577: [extracts from Kable omitted].
8. [extract from Kable omitted].
9. The ratio decidendi of Kable v DPP for NSW 1996 [1996] HCA 24; (1996) 138 ALR 577 is that States are not free to tamper with the composition of Courts, by vesting judicial and administrative power in one person and directing a verdict, as happened in that case, and it is time the Courts gave respect to the logic of the High Court, and its position as the unifying force of all law administration in Australia and recognise that the Commonwealth of Australia is also a State and not a divine creation above the Constitution from which it is born.
10. The appellants contend that the creation of summary judgment and the purported compulsory submission of a subject of the Queen to summary judgment is an assumption of divine power, and suppression of Christian principles, by the Parliament of the Commonwealth and its self proclamation that it, and not God Almighty is Sovereign, and that the Acts of Parliament of the Commonwealth are beyond the scrutiny of the Courts even if they are manifestations of the creation of a compulsory State religion totally contrary to Section 116 Constitution and the Christian principles that underlie the Constitution (since adopting the Doctrine of Parliamentary Supremacy the United Kingdom has lost its empire and its Rule of Law).
11. The assertion by the Parliament of the Commonwealth that a fine is payable as a strict liability is an exercise by the Parliament of the Commonwealth of judicial and arbitrary power and is not authorised by the Constitution.
12. S 43 Crimes Act 1914 makes it an indictable offence to attempt to pervert the Course of justice in respect of the Judicial Power of the Commonwealth and it can be argued that to sit without a jury, in a contested matter is to offend that section, and to fail to require an account of mutual dealings before demanding a Statement of Affairs is to impose unjust terms, and the Parliament of the Commonwealth has no right to compel Federal or State appointed officials to break Commonwealth law.
13. Where the Lord is present there is liberty. From the arch of the Presbyterian Church Pitt Street Sydney."

Simmonds J's reasons on the so-called grounds of appeal before him

15 On 1 December 2004, Simmonds J gave oral reasons for dismissing the application for leave to appeal on the "grounds" before him. His Honour said, relevantly:

"The grounds of appeal seemed to reduce to two basic issues. The first had to do with a claim that the manner in which the Magistrate had proceeded in dealing with the charges and in convicting the Wilsons was unlawful by virtue of the provisions about discrimination contained in the International Covenant on Civil and Political Rights.

The Wilsons maintained that these provisions from that Covenant were part of the law of Australia by virtue of Criminal Code (Cth) s 9.5 or other provisions in the Code or other provisions of other Federal statutes which referred to the Covenant. A number of such other statutes were referred to in the course of the Wilsons' submissions to me.

The effect, it was said, of the Covenant was that it had binding force on the Magistrate and it required the Magistrate to have the matter referred to a Court which could deal with the matter with a jury. The Court before which the Wilsons were, so far as it appeared to me, concerned to have their prosecutions heard was this Court with, as I have said, a jury.

The Wilsons maintained that the way in which the Magistrate dealt with their references to Code s 9.5 and their written submissions to him, written submissions unfortunately I did not have the benefit of, but whose existence I am prepared for the sake of these proceedings to assume, made it plain his attention had been drawn to the Covenant, and to the need for which the Wilsons argued to call on the Commonwealth Director of Public Prosecutions to show why the Covenant did not have the effect the Wilsons claimed for it.

The answer with respect to this ground, as I indicated at the hearing with the parties, lies in the authorities, most notably Minogue, a decision of the Full Federal Court of Australia, [2000] FCA 125, particularly at [21] and [22]. As that authority indicated, High Court authorities referred to there indicate that the International Covenant is not part of the municipal law of Australia. This except to the extent it has an influence on, depending on the circumstances, the development of Australian common law.

There is a complex of legislative provisions from the Bankruptcy Act and the Crimes Act that make it clear that offences of the sort with which the Wilsons were charged are summary ones and not indictable ones: Bankruptcy Act [1966 (Cth)], s 54(1), read with s 273(3) and Crimes Act 1914 (Cth), s 4H. It follows they are properly dealt with by a Magistrate such as in this case and do not require the trial to proceed before a Judge and a jury, or even allow for such a possibility.

This ground, couched as I have described it, is therefore one which in the terms of section 187 of the Justices Act 1902 (WA) as that section is to be understood in relation to an application for leave to appeal as explained in authorities such [as] Dempster v National Companies and Securities Commission (1993) 9 WAR 215, a decision of the Full Court of the Supreme Court of this State, require me to determine not simply that a matter is something that might appropriately be considered by a Court, as I have done here, but has a prospect, if not a substantial prospect, of success. I have been unable to determine that such a ground has such a prospect of success and therefore could not give leave to appeal on that ground.

I should not leave this aspect of the matter, however, without referring to the complex position which the Wilsons face. The exchanges they had with me through Mr Wilson today made clear the gravamen of the concern they have with the sequestration order that was made by the Registrar of the Federal Magistrates Court - and I return shortly to the fact that it was a Registrar who made the order here, because that goes to another ground of appeal.

The gravamen of that concern related to a decision of the District Court of New South Wales in Parramatta in relation to an alleged agreement for the sale of equipment to which the Wilsons said they had a complete defence, but which was a judgment which formed the basis of the Registrar's decision. The implications of that to which the Magistrate in this matter drew the Wilsons' attention when the matter was before him is that setting aside the Registrar's decision, would, at least in the first instance, appear to be a matter of seeking review of that decision under the terms of the bankruptcy legislation and the Federal Magistrates Court legislation.

I reminded Mr Wilson that there are officers of that Court in this State in which the process of review could be initiated. The position may be more complicated than that, however, depending on the terms for reconsideration of sequestration orders that might require Mr Wilson to seek review of the District Court of New South Wales decision, an altogether more difficult enterprise for a litigant located in this State.

However, even if that is the position, it remains that the Magistrate in Kalgoorlie exercising Federal jurisdiction under the Bankruptcy Act was not in a position to address the gravamen of the concern of the Wilsons and would have been stepping outside his jurisdiction had he done so. This is because of the nature of the jurisdiction of the District Court of New South Wales, on the one hand, and the exclusive jurisdiction of the Federal Magistrates Court, Federal Court and the High Court in bankruptcy matters by virtue of section 7A [sic] of the Bankruptcy Act, on the other.

That takes me then to the other basis or ground for appeal in this case. That basis or ground lies in the argument that the decision of the Registrar was void or of no effect because the Registrar had not been validly vested with Federal jurisdiction to make that decision and she had not been validly vested with it. This was said to be because the Federal Magistrates Court is not a Court for the purposes of the Constitution which is the source of the power of the Federal Parliament to give jurisdiction in bankruptcy matters to adjudicators.

The argument could be stated at two levels. The first level is that the Federal Magistrates Court is not a Court because it is made up of single judicial officers. There does not appear to me to be a good argument that can be made in support of that proposition. It is true that Courts include many bodies which have the possibility for more than one judge to sit as in an appeal. This Court is one of them. Equally, however, there are many Courts which are like the Federal Magistrates Court in having single judicial officers sitting.

[The] District Court of this State and for all I know the District Court of New South Wales in Parramatta would fall into the same category. Mr Wilson did not shrink from the implications of his submission. However, as I understood it he suggested that just as the Federal Magistrates Court is not a Court, neither is the District Court of Western Australia or the District Court of New South Wales.

However, there is no authority so establishing and the position does not commend itself to me. Also, it would appear to be inconsistent with a consistent view undertaken in respect of the propriety of vesting federal jurisdiction as it is vested in bodies like the District Court of Western Australia, the District Court of New South Wales and for that matter the Court of Petty Sessions in Kalgoorlie.

Accordingly, it seems to me that there is no prospect of success of an argument that the Federal Magistrates Court was not validly vested with federal jurisdiction, or for that matter, that the Court of Petty Sessions in Kalgoorlie was not validly vested with federal jurisdiction.

However, I should add that the written grounds of appeal had suggested to me the appeal would be on the basis that s 9.5 of the Criminal Code in its own terms gave the Wilsons a defence. I say that the written grounds of appeal suggested this to me because of the way s 9.5 is referred to in a number of the paragraphs. Section 9.5 of the Criminal Code, if it had been directly in issue, and not as I have indicated earlier by virtue of the way in which it is said to refer to the International Covenant on Civil and Political Rights, would not in my view have sustained a ground of appeal with a prospect of success. I say that because of the terms of s 9.5, the only portion of which, s 9.5(2) which would appear to have any relevance does not seem to me to apply to the facts of this case. Section 9.5(2) says:

'A person is not criminally responsible for any other offence arising necessarily out of the exercise of the proprietary or possessory right that he or she mistakenly believes to exist.'

It does not seem to me that there is established here or a basis for establishing here that the failure to file the statement of affairs arose necessarily out of the exercise of the proprietary or possessory right which the accused mistakenly believed to exist. To put the matter another way, section 9.5(2) would only arise, it seems to me, if there had been an indication in the materials before the Magistrate or before me that that failure arose necessarily out of the exercise of proprietary or possessory rights, and there was no such exercise or necessary connection claimed or established otherwise or a basis for its establishment shown in this matter.

...

... I should ... add ... why in my view the Registrar of the Federal Magistrates Court was properly vested with federal jurisdiction.

Altogether, apart from other considerations, the Registrar forms part of a Court. The Registrar as part of the Court and an officer of the Court is subject to the disciplines of the Court. It has not been established, and there is no basis it seems to me in the materials here for establishing that the Registrar was not properly vested with federal jurisdiction as a consequence, in part because the Registrar's decisions are of course themselves reviewable - a matter of some importance to my conclusion, as I have indicated previously."

The merits of the so-called grounds of appeal before Simmonds J

16 The appellant did not allege or identify any error in the reasons of Simmonds J. The issues in the "grounds", as summarised by his Honour in his oral reasons, are these:

(a) whether s 9.5 of the Criminal Code (Cth) ("the Code") provides the appellant with a complete defence to the charge under s 54(1)(a) of the Act;

(b) whether the International Covenant on Civil and Political Rights forms part of the law of Australia, pursuant to which the appellant should have been indicted and tried before a judge and jury; and

(c) whether the Registrar's decision was void or of no effect because the Registrar had not been validly vested with Federal jurisdiction and because the Federal Magistrates Court is not a court for the purposes of the Constitution.

The appellant, in his "grounds", also made an appeal to moral principles derived from scripture.

17 The Code commenced on 1 January 1997. By s 1.1 of the Code, the only offences against laws of the Commonwealth are those offences created by, or under the authority of, the Code or any other Act. Under s 38(1) of the Acts Interpretation Act 1901 (Cth), "Act" means an Act passed by the Parliament of the Commonwealth. Accordingly, offences may be contained in the Code or other Commonwealth legislation.

18 Chapter 2 of the Code sets out the general principles of criminal responsibility. By s 7A of the Act, Ch 2 of the Code applies to all offences against the Act. Section 7A was inserted into the Act by the Law and Justice Legislation Amendment (Application of Criminal Code) Act 2001 (Cth), and came into force on 24 May 2001.

19 Where a sequestration order is made, a bankrupt is required to file a statement of affairs with the Official Receiver (and provide a copy to a private trustee, if one is appointed) within 14 days after being notified of the bankruptcy. If the statement is not filed, the administration of the bankruptcy is hindered. Section 54 of the Act provides, relevantly:

"(1) Where a sequestration order is made, the person against whose estate it is made shall, within 14 days from the day on which he or she is notified of the bankruptcy:

(a) make out and file with the Official Receiver for the District in which the sequestration order was made a statement of his or her affairs; and

(b) furnish a copy of the statement to the trustee.

Penalty: 5 penalty units.

...

(3) Subsections (1) and (2) are offences of strict liability.

Note: For strict liability, see section 6.1 of the Criminal Code."

A penalty unit means $110: see s 4AA Crimes Act 1914 (Cth). Subsection (3) of s 54 was also inserted into the Act by the Law and Justice Legislation Amendment (Application of Criminal Code) Act, and came into force on 24 May 2001. By s 6.1(1) of the Code, if a law that creates an offence provides that the offence is an offence of strict liability, there are no fault elements for any of the physical elements of the offence, and the defence of mistake of fact under s 9.2 of the Code is available. Subsection (3) of s 6.1 of the Code provides that the existence of strict liability does not make any other defence unavailable.

20 The appellant contends that s 9.5 of the Code provides him with a complete defence to the charge under s 54(1)(a) of the Act. Section 9.5 is headed "Claim of right" and provides, relevantly:

"(1) A person is not criminally responsible for an offence that has a physical element relating to property if:

(a) at the time of the conduct constituting the offence, the person is under a mistaken belief about a proprietary or possessory right; and

(b) the existence of that right would negate a fault element for any physical element of the offence.

(2) A person is not criminally responsible for any other offence arising necessarily out of the exercise of the proprietary or possessory right that he or she mistakenly believes to exist.

..."

21 The offence created by s 54(1)(a) of the Act does not contain a physical element relating to property and, as a result, s 9.5(1) of the Code does not apply. The elements of the offence comprise, relevantly, a failure to make out and file with the Official Receiver a statement of affairs, within the stipulated period. None of the elements of the offence is a "physical element relating to property", within s 9.5(1). In any event, it is not apparent that:

(a) when the appellant failed to make out and file a statement of his affairs, he was under a mistaken belief about a proprietary or possessory right, within s 9.5(1)(a); or

(b) the appellant's failure to comply with s 54(1)(a) arose necessarily out of the exercise of a proprietary or possessory right that he mistakenly believed to exist, within s 9.5(2).

The International Covenant on Civil and Political Rights

22 The Dictionary in the Schedule to the Code defines "Covenant" to mean the International Covenant on Civil and Political Rights ("the Covenant"), a copy of the English text of which is set out in Schedule 2 to the Human Rights and Equal Opportunity Commission Act 1986 (Cth).

23 The appellant argued that the Covenant formed part of the law of Australia, and that the Magistrate contravened the provisions of the Covenant relating to discrimination by convicting the appellant instead of requiring that the charge be tried before a judge and jury. The Covenant has not been incorporated into, or become part of, Australian domestic law by virtue of the reference to it in the Code or its reproduction in the Human Rights and Equal Opportunity Act. See Dietrich v The Queen (1992) 177 CLR 292 per Mason CJ and McHugh J at 305 - 306, per Brennan J at 321, per Dawson J at 348 - 349, per Toohey J at 359 - 360; Minister of State for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 per Mason CJ and Deane J at 286 - 287; Victoria v The Commonwealth (1996) 187 CLR 416 at 480-482; Sinanovic v The Queen (1998) 72 ALJR 1050 at 1054 [25]; Minogue v Human Rights and Equal Opportunity Commission (1999) 84 FCR 438 at 447 - 448; Minogue v Williams (2000) 60 ALD 366 at 372 - 373 [21] - [25].

24 The appellant's submission that he should have been tried before a judge and jury is misconceived. The penalty for an offence against s 54(1)(a) of the Act is a fine. Section 273(3) of the Act provides, relevantly, that an offence against the Act, that is punishable by a fine only, is punishable by a court of summary jurisdiction. In other words, an offence under s 54(1)(a), which is punishable by a fine only, is a summary, and not an indictable, offence. A summary offence is defined in s 4H of the Crimes Act to include, relevantly, offences against a law of the Commonwealth, being offences which are not punishable by imprisonment. Section 68(2) of the Judiciary Act confers on State and Territory courts exercising State or Territory jurisdiction with respect to summary conviction, like jurisdiction with respect to offences against the Commonwealth. Section 5(1) of the Act defines "court of summary jurisdiction", but only so as to include certain Territory courts. The general definition contained in s 26(d) of the Acts Interpretation Act therefore applies:

"In any Act, unless the contrary intention appears:

...

(d) Court of summary jurisdiction shall mean any justice or justices of the peace or other magistrate of the Commonwealth or part of the Commonwealth, or of a State or part of a State, or of an external Territory, sitting as a court (other than the Federal Magistrates Court) for the making of summary orders or the summary punishment of offences under the law of the Commonwealth or part of the Commonwealth or under the law of the State or external Territory or by virtue of his or their commission or commissions or any Imperial Act."

At the material time, s 1(1) of the Criminal Code (WA) provided that the term "summarily" meant before a court of petty sessions. At the material time, by s 20(1) and s 33(1) of the Justices Act, a Magistrate had power to sit alone in the Court of Petty Sessions to hear and determine summary offences. The appellant was therefore not entitled to be indicted and tried before a judge and jury for failing to file a statement of affairs, contrary to s 54(1)(a). He was rightly tried in a court of petty sessions before a Magistrate sitting alone.

25 Section 80 of the Constitution provides, relevantly, that the trial on indictment of any offence against any law of the Commonwealth shall be by jury. See Kingswell v The Queen [1985] HCA 72; (1985) 159 CLR 264; Cheng v The Queen [2000] HCA 53; (2003) 203 CLR 248. That section does not, however, apply to the offence created by s 54(1)(a) of the Act, which, as I have explained, is a summary, and not an indictable, offence.

26 Finally, in this context, in any event, there is no evidence that the appellant was treated contrary to the discrimination provisions in the Covenant. See, relevantly, Articles 14 and 26.

The Registrar's decision and jurisdiction, and the Federal Magistrates Court

27 Simmonds J articulated what he called the "gravamen" of the appellant's concern in relation to the sequestration order made by the Registrar in the Federal Magistrates Court:

"The gravamen of that concern related to a decision of the District Court of New South Wales in Parramatta in relation to an alleged agreement for the sale of equipment to which the Wilsons said they had a complete defence, but which was a judgment which formed the basis of the Registrar's decision. The implications of that to which the Magistrate in this matter drew the Wilsons' attention when the matter was before him is that setting aside the Registrar's decision, would, at least in the first instance, appear to be a matter of seeking review of that decision under the terms of the bankruptcy legislation and the Federal Magistrates Court legislation."

28 At the material time, s 27 of the Act provided that the Federal Court and the Federal Magistrates Court had concurrent jurisdiction in bankruptcy, and that jurisdiction was exclusive of the jurisdiction of all courts other than the jurisdiction of the High Court under s 75 of the Constitution. In the present case, the Magistrate did not have jurisdiction to determine the validity of a sequestration order made by a Registrar in the Federal Magistrates Court. The learned Judge was correct in saying that:

"...the Magistrate in Kalgoorlie exercising Federal jurisdiction under the Bankruptcy Act was not in a position to address the gravamen of the concern of the Wilsons and would have been stepping outside his jurisdiction had he done so. This is because of the nature of the jurisdiction of the District Court of New South Wales, on the one hand, and the exclusive jurisdiction of the Federal Magistrates Court, Federal Court and the High Court in bankruptcy matters by virtue of section 7A [sic] of the Bankruptcy Act, on the other."

29 The appellant contends that the Registrar's decision to make the sequestration order was void or of no effect in that the Registrar had not been validly vested with Federal jurisdiction and the Federal Magistrates Court is not a court for the purposes of the Constitution.

30 There is no merit in the appellant's submission that the Federal Magistrates Court is not a court for the purposes of the Constitution. Section 3(1) of the Federal Magistrates Act 1999 (Cth) states the main object of that Act to be the creation of the Federal Magistrates Court under Chapter III of the Constitution. Section 8(1) provides that "[a] federal court, to be known as the Federal Magistrates Court, is created by this Act". The note to s 8 states, accurately, that "[t]he Parliament may create federal courts under Chapter III of the Constitution".

31 Further, there is no merit in the appellant's submission that the Registrar (that is, Registrar Tesoriero) was not validly vested with Federal jurisdiction, with respect to the making of the sequestration order, or generally. Rule 1.4 of the Federal Magistrates Court (Delegation to Registrars) Rules 2000 (Cth), which commenced on 23 June 2000, delegated, to each Registrar of the Federal Magistrates Court, certain powers under the Act, including the power to make sequestration orders pursuant to s 43(1) and s 52(1) of the Act. The sequestration order was made on 19 June 2003, after the commencement of the Federal Magistrates Court (Delegation to Registrars) Rules, but before their repeal on 3 November 2003 and their re-location into the Federal Magistrates Court Rules 2001 (Cth). (They are now to be found in the Federal Magistrates Court (Bankruptcy) Rules 2006 (Cth).) Finally, in this context, there is no merit in the appellant's general assertion that Registrars are not validly vested with Federal jurisdiction. Section 102 of the Federal Magistrates Act allows certain powers of the Federal Magistrates Court to be exercised by a Registrar of that Court.

The appeal to moral principles derived from scripture

32 Commonwealth laws with respect to the making of a sequestration order, and the creation of an offence for failing to provide a statement of affairs after a sequestration order has been made, do not establish a religion, impose a religious observance, or prohibit the free exercise of any religion, contrary to s 116 of the Constitution. Any moral principles derived from scripture do not derogate from the sovereignty of the Parliament. See Gargan v Director of Public Prosecutions (NSW) (2004) 144 A Crim R 296 at 312 - 313 [66]. Also see Gargan v Magistrate Dillon [2005] NSWSC 1106 at [24] - [25].

The merits of the so-called additional grounds of appeal

33 The additional "grounds", as drawn by the appellant and to the extent that they are coherent, can be summarised as follows:

(a) Pursuant to s 86(1) of the Act, the Official Trustee in Bankruptcy must demand an account of mutual dealings between the person who prosecuted the bankruptcy and the bankrupt, before demanding a statement of affairs from the bankrupt, and failure to do so is unlawful.

(b) The appellant should have been tried by a judge and jury, and the failure to do so constituted an attempt to pervert the course of justice.

(c) Any court not "erected" in accordance with the Judicature Act 1876 (Qld) (repealed and relocated into the Supreme Court Act 1995 (Qld)) is a nullity, and any court or tribunal that does not comprise a judge and jury is unconstitutional.

(d) The learned Judge did not apply Kable v Director of Public Prosecutions (NSW) [1996] HCA 24; (1996) 189 CLR 51.

(e) The Constitution does not authorise the imposition of a fine for a strict liability offence.

Account of mutual dealings - Section 86(1) of the Act

34 Section 86(1) of the Act deals with mutual credits and set-off. It provides, relevantly:

"Subject to this section, where there have been mutual credits, mutual debts or other mutual dealings between a person who has become a bankrupt and a person claiming to prove a debt in the bankruptcy:

(a) an account shall be taken of what is due from the one party to the other in respect of those mutual dealings;

(b) the sum due from the one party shall be set off against any sum due from the other party; and

(c) only the balance of the account may be claimed in the bankruptcy, or is payable to the trustee in the bankruptcy, as the case may be."

35 In Heinrich v Commonwealth Bank of Australia [2001] FCA 661, Branson J (with whom Heerey and Lindgren JJ agreed), said, at [8]:

"It is to be noticed first that s 86 of the Bankruptcy Act only has application where a person has become a bankrupt. That is, any application under s 86 of the Bankruptcy Act assumes the validity of the sequestration order made against the bankrupt's estate. Secondly, s 86 is a provision governing the administration of a bankrupt estate. This court is not presently concerned with the administration of [the appellant's] estate but with a purported appeal from the judgment of [the Judge who made the sequestration order]."

36 Similarly, in the present case, the application of s 86(1) of the Act is premature and misconceived in that the appellant has failed to file a statement of affairs and, further, this Court is not presently concerned with the administration of his bankrupt estate. See the additional observations of Lindgren J in Heinrich at [20]. Also see Commonwealth Bank of Australia v Heinrich [2003] SASC 322 at [51].

37 I have already dealt with this point. It is fanciful to contend that a failure to afford the appellant a trial by jury involved a perversion of, or an attempt to pervert, the course of justice.

38 The Supreme Court Act 1995 (Qld) and the Judicature Act 1876 (Qld) (repealed and relocated into the Supreme Court Act 1995 (Qld)), being enactments of the Queensland Parliament, have no application in Western Australia. There is no basis for the appellant's assertions that any Court "erected" contrary to the provisions of those Acts is a nullity, or that any Court or tribunal which does not comprise a judge and jury is unconstitutional.

39 It is not a precondition to the exercise of Federal jurisdiction that a "Court" comprise a judge and jury. The validity of the exercise, by courts of summary jurisdiction, of Federal jurisdiction was accepted in Ly v Jenkins (2001) 114 FCR 237 at 260 [73], 271 [119], 271 - 272 [121] and 273 [125].

40 The appellant contends in his submissions that Simmonds J "rejected the authority of Kable". The learned Judge did not mention Kable in his reasons. The "Kable principle" was recently analysed by this Court in Gypsy Jokers Motorcycle Club Inc v Commissioner of Police [2007] WASCA 49. See the reasons of Steytler P at [77] - [95].

41 In Kable, the High Court considered the Community Protection Act 1994 (NSW), which had been enacted for the continued detention of a specified individual who had been convicted of manslaughter and was soon due for release. The Act authorised the making of an order by the Supreme Court for that individual's detention on certain conditions being satisfied. The High Court held that the Act was invalid in that it contravened Ch III of the Constitution. Functions may not be conferred on State courts that are incompatible with the exercise of Federal judicial power pursuant to Ch III. The exercise of jurisdiction under the Act in question was incompatible with the integrity, independence and impartiality of the Supreme Court in that the Court was made "an instrument of executive government policy", detention could be ordered without a trial or any finding of guilt, and the statute applied only to a specified individual. See Kable per Toohey J at 98 - 99, per Gaudron J at 106 - 107, per McHugh J at 124, and per Gummow J at 134.

42 The facts and circumstances of Kable are far removed from the present case. First, the Act pursuant to which the present appellant was convicted is an Act of the Commonwealth, not an Act of a State. Secondly, the Act is not invalid for contravening Ch III of the Constitution, in that the Magistrate in the Court of Petty Sessions, in exercising summary jurisdiction with respect to a Federal offence (under s 68(2) of the Judiciary Act), and convicting the appellant under the Act, acted in a manner compatible with the exercise of Federal judicial power. Thirdly, the Act is of general application and not directed to a named individual.

Strict liability offence - Section 54(1)(a) of the Act

44 The Commonwealth Parliament may specify, in an Act which creates an offence, the penalty for that offence. The appellant's argument that to do so is an exercise of "judicial and arbitrary power", which is not authorised by the Constitution, is bad. Section 1 of the Constitution vests the legislative power of the Commonwealth in the Federal Parliament which it created. By s 51 of the Constitution, the Parliament has power to make laws for the peace, order and good government of the Commonwealth with respect to, amongst other things, bankruptcy and insolvency (s 51(xvii)).

45 A strict liability offence simply means that no mental element is required to be established to prove the offence. As I have mentioned, by s 6.1 of the Code, the existence of strict liability does not make unavailable the defence of mistake of fact under s 9.2 of the Code, or any other defence.

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

46 The appellant submits, in effect, in his written submissions dated 23 May 2006, in his further submissions dated 1 June 2006, and in his written submissions in reply dated 19 July 2006, that since the passage of the Acts Amendment and Repeal (Courts and Legal Practice) Act 2003 (WA), the Courts of Western Australia do not have lawful authority to administer law within the State.

47 This argument was dealt with recently by this Court in Glew v Shire of Greenough [2006] WASCA 260. See the reasons of Wheeler JA (with whom Pullin JA and I agreed), at [16] - [20]. I adopt and apply the reasoning of the Court in Glew. The appellant's argument is flawed.

48 The appellant, in his further submissions dated 1 June 2006, also refers to various sections of the Hire-Purchase Act 1959 (WA). This Act does not have any relevance to the present proceedings.

The balance of the so-called grounds of appeal before Simmonds J and the balance of the so-called additional grounds of appeal before this Court

49 The balance of the "grounds" before Simmonds J, and the balance of the additional "grounds" before this Court, which I have not specifically dealt with in these reasons, are unintelligible.

50 By an application dated 19 July 2006, made by the appellant in the appeal, the appellant applied for:

"The matter be brought in a court of Competent Jurisdiction, by Fresh proceedings, with the correct respondent in attendance".

51 The appellant's proceedings in this Court were erroneously commenced against the Director of Public Prosecutions, as respondent, rather than against Jeremy White, who made the complaint alleging the offence under s 54(1)(a) of the Act. The issue was raised before us in argument and we ordered that Mr White be named as the respondent instead of the Director. At all material times, the Director has acted for Mr White in connection with these proceedings.

52 The appellant's application dated 19 July 2006 appears to be based, in part, on the Director having been erroneously named as the respondent and, in part, on the appellant's submissions in relation to the Acts Amendment and Repeal (Courts and Legal Practice) Act. For the reasons I have already given, this Court is a court of competent jurisdiction in relation to the issues in these proceedings. The correct respondent was joined at the hearing. The application should be dismissed.

53 Simmonds J did not err in refusing to grant leave to appeal on the "grounds" before him. Each of those "grounds" is hopeless. Further, the additional "grounds" of appeal do not have any prospect of success.

54 Accordingly, I would refuse to grant an extension of time within which to appeal.