Gargan, Ex parte - Re Lindgren & Ors S130/2003 [2003] HCATrans 767 (2 June 2003)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S130 of 2003

In the matter of -

An application for a Writ of Prohibition against KEVIN LINDGREN, A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

First Respondent

ROLF DRIVER, A MAGISTRATE OF THE FEDERAL MAGISTRATES COURT

Second Respondent

PETER ROWLANDS CLINCH CARRYING ON BUSINESS AS CLINCH NEVILLE LONG (A FIRM)

Third Respondent

JOHN CHIPPENDALL

Fourth Respondent

GILES GEOFFREY WOODGATE

Fifth Respondent

ANN CAROLYN TEESE

Sixth Respondent

Ex parte -

PETER ALEXANDER GARGAN

Applicant/Prosecutor

HEYDON J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON MONDAY, 2 JUNE 2003, AT 9.52 AM

Copyright in the High Court of Australia

__________________

MR P.A. GARGAN appeared in person.

MR B.J. SKINNER: May it please your Honour, I appear for the third-named respondent, the fourth-named respondent and the fifth-named respondent. (instructed by Australian Government Solicitor)

HIS HONOUR: Who exactly is the fifth-named respondent?

MR SKINNER: The fifth-named respondent is the trustee in bankruptcy of the sixth-named respondent.

HIS HONOUR: I see thank you. The Registrar has supplied a certificate indicating that she has been informed by the solicitor for the first and second respondents, namely, the Honourable Justice Lindgren and Federal Magistrate Driver, that the first and second respondents submit to any order of the Court, save as to costs, and, accordingly, do not intend to appear at the hearing. That, I think, leaves only Ann Carolyn Teese.

MR J. BRYANT: Your Honour, I appear as an agent for Ann Carolyn Teese, who is in court, your Honour.

HIS HONOUR: I see. Are you a solicitor?

MR BRYANT: No, your Honour.

HIS HONOUR: Are you a barrister?

MR BRYANT: No, your Honour. The sixth respondent is a bankrupt and she is entitled to have an agent appear for her.

HIS HONOUR: By virtue of what - - -

MR BRYANT: By the Bankruptcy Act 1966 .

HIS HONOUR: Is that so, Mr Skinner?

MR SKINNER: I do not oppose Mr Bryant being here, your Honour.

HIS HONOUR: Yes. Now, Mr Gargan, I have the following documents. One is an outline of submissions that was filed on 29 May and I have some authorities. I also have a notice under section 78B of the Judiciary Act 1987 - - -

MR GARGAN: That given from April 2003?

HIS HONOUR: It was dated 9 April 2003 and filed in the Registry on 11 April.

MR GARGAN: Yes, that is right.

HIS HONOUR: Has that been served?

MR GARGAN: It has. There have been responses from all of them, basically submitting they have not intended to appear.

HIS HONOUR: Right. Do we need to have that strictly proved, do you think, Mr Skinner?

MR SKINNER: Not in the light of what is raised, your Honour.

HIS HONOUR: The next and most important document I have is your affidavit of 8 April 2003, which has three exhibits to it. Do you rely on that affidavit?

MR GARGAN: That is correct. Yes, I do rely on that, your Honour.

HIS HONOUR: Do you have any objection to that?

MR SKINNER: No objection to that, your Honour.

HIS HONOUR: That affidavit of 8 April 2003 of Peter Alexander Gargan will be treated as read and the three exhibits will be admitted into evidence under their existing exhibit numbers, namely, PG1, PG2 and PG3. I have read the outline of submissions, Mr Gargan. Is there anything you want to stress in them or add to them?

MR GARGAN: Your Honour, what I would like to stress is that basically this is entirely concerned with statute. There is a pile of statutes there. They are all federal statutes except the High Court Rules which are made under subordinate authority by the Judges of the High Court. I would like to read the list. I think they are on my list of authorities, if they are accepted as read. The application is made under the Bankruptcy Act, under 303, which gives me locus to bring it, basically because Justice Lindgren refused leave for Ms Teese to appeal. So all her appellate rights in the Federal Court are gone.

HIS HONOUR: She could apply for leave to appeal against his interlocutory order - - -

MR GARGAN: Perhaps she could, but the chances of getting it up are, on my experience in the Federal Court, zilch or nil. But what has happened is the Criminal Code Act has been passed, promulgated into law and declared to be a law of the Commonwealth. In that what Magistrate Driver and Justice Lindgren had done is classified in section 142.2, as I put in my written submission, as abuse of public office. They are triable on indictment, if that is the way that it has to go, but what I would prefer to do is to have the High Court follow its own Rules on this and allow pleadings in prohibition under Order 55 rule 34, which I have put in writing.

Now, the reason I say pleadings are required - I have set out the substantive issues between Ms Teese and the various respondents, and Ms Teese has a grievance, a genuine grievance. She should not have been made bankrupt on 20 August. There are two ways the Court can go. It can allow pleadings or you can refer it to the Full Court for prohibition to quash. They do say a single Judge can make an order nisi absolute in the first instance. I disagree with that.

Since 1973 the Parliament of the Commonwealth has got stuck into the High Court and basically turned it into a court that is not a court within the definitions in Chapter III of the Constitution. There are certain sections of statutes passed by Parliament which are outside their authority under 77(i) of the Constitution. They cannot interfere with your jurisdiction. You are the federal supreme court and section 3 of the Judiciary Act, which they purported to repeal in 1973, set a statutory mandatory quorum for the High Court, that is five Judges.

Now, I have supplied to you a copy of the speech of Alfred Deakin that was made in 1902 in the House of Representatives. By section 16 of the Parliamentary Privileges Act, that can be considered by a court in interpreting a statute. In that, Alfred Deakin stated what the High Court was to be and what was put to the Australian people and what they agreed to in the referendum, and that was this, that the High Court would be a federal supreme court, not an ivory tower court that you could only approach after exhausting all appeals. What has happened is that with the Criminal Code Act 1995 it is now not safe for any justice to sit alone without a jury. I do not care what court he sits in.

The reason for this is that included in Chapter III are the words "the judicature". The judicature was known to the people of Australia when they passed this referendum that introduced that. The Constitution is a unique Act, as Alfred Deakin pointed out. It is a document approved by the Australian people, one of the first documents ever approved by the Australian people.

In 1900, when Joseph Chamberlain introduced it to the Imperial Parliament for approval, he recognised that it was the will of the Australian people, and instead of having a war to get independence, we had a referendum. But, nevertheless, we are entitled to have a federal supreme court. You understand, I am sure, the principles laid down by Justice Marshall in Marbury v Madison. Australia was given a bigger and stronger federal supreme court than the United States. It was given original jurisdiction and it is not in any way within the competence of the single Justice to overrule that.

What has to happen is either five or seven Judges have to come together, as in the United States with their Supreme Court, before the federal supreme court can make any valid law. A Judge can give directions - there is no problem with that - but the Court does not come together until there are five Justices there.

HIS HONOUR: So you do not think I can grant an order nisi?

MR GARGAN: I beg your pardon?

HIS HONOUR: So your submission is that I alone cannot grant an order nisi?

MR GARGAN: I do not believe you can, your Honour. I think you could grant an order nisi by convention. People have accepted it. You could certainly grant it by consent - there is no problem with that, if the other side consents, but I do not think, if they object, that you could. I think it has to be a Full Court. But I think that the preferable course to follow would be to allow pleadings and allow Ms Teese to air her grievances. I have some grievances which I would like to air as well.

HIS HONOUR: If Ms Teese wants to air grievances, she can air grievances or try and get her trustee in bankruptcy to do so.

MR GARGAN: Of course.

HIS HONOUR: But why should you be allowed an order nisi for - - -

MR GARGAN: Well, I have independent reasons for wanting to deliver pleadings and they are found in Order 13 rule 1 of the High Court Rules. Order 13 rule 1 - - -

HIS HONOUR: Yes.

MR GARGAN: - - - reproduces section 24(2) of the Commonwealth Procedure Act 1899 of New South Wales.

HIS HONOUR: Which subrule or rule do you fall under?

MR GARGAN: Order 13 rule 1(1)(a)(iii), "on a statute". Now, statutes in Australia are largely regarded by many people as wall decoration. There is or has been no way of enforcing them easily and cheaply. The introduction of the Criminal Code Act 1995 , which sat on the table for six years to allow anyone to object and has now been promulgated into law as a law of the Commonwealth, now makes it cheap and easy for anyone to prosecute anyone else for breach of statute.

I am a Queenslander and Queensland is in a mess. High Court judgments there are regarded as a joke. There is no enforcement procedure, so, in the words of an old farmer, the cattle are running wild because there is nothing to keep them in the paddock. It is the High Court's job to keep the Parliament in the paddock and that is what should have been done. In the United States, since 1900, 125 federal statutes and over 1,000 State statutes have been knocked over. In Australia I think it is less than 10.

Now, this is just unfortunate, but we are coming into the 21^st century. We need a strong High Court and we need a High Court that is not afraid to keep the Parliament in its paddock. The Commonwealth Bank Case, Bank of New South Wales v Commonwealth, in 1948 was one instance. The High Court saved a civil war in 1950 in the Communist Party Case. In 1996 you made binding rulings on the States, which they have largely ignored, that they cannot change the Supreme Courts and that they must keep them in a condition to accept Chapter III jurisdiction, not as they found them from time to time as changed, but as they found them in 1903 when they passed 39(2) of the Judiciary Act 1914 .

So we have statute. We have sanctions in the Crimes Act, which in Kidman v The King was held a valid statement of the common law. We have any Australian can commence a prosecution under section 13 of that, and that has been held valid in Brebner v Bruce in 1950. So it is all there. The wheel has now gone full circle. In 1973 and 1976 the Whitlam and Fraser governments undermined and gutted the High Court. Prior to that, any justice of any court could refer matters of law straight to the High Court. They have isolated you. Once again the wheel has gone full circle. The Criminal Code Act 1966 has been enacted.

I find it difficult to accept that a Justice who is bound to follow statute law has trouble accepting that the International Covenant on Civil and Political Rights is incorporated into Australian law. You are bound by section 5 of the Commonwealth of Australia Constitution Act to apply federal statutes. They bind you. The Acts Interpretation Act in sections 12 and 13 say that a schedule is part of an Act. The international covenant was validly enacted and the enactment is recorded in Hansard into Australian domestic law and to deny that it is there could be said to be a dishonest act within the meaning of 142.2 of the Criminal Code Act.

So we have a real major shift in what has been a lawyers party since 1972. Once again, the Australian people have the right and ability to apply sanctions, if what their Parliament has enacted is not applied by the courts. This is what this is all about. The Bankruptcy Act, Gye v McIntyre in 1992 the High Court ruled on what section 86 of the Bankruptcy Act 1903 is about. It says there must be accounts taken if there be mutual dealings. This is ignored at will and has been ignored by the trustee of Ms Teese's estate.

She employed me as agent to look into her estate and when I looked into it, I was appalled at what I found and I am aggrieved by and interested in seeing the statute law enforced. I am not just a busybody in that. Ms Teese has a grievance. I have a grievance because I stood in court in front of Magistrate Driver, asked for an adjournment, which he should have granted. He granted a stay instead, which was not honoured, and there is a flaw in the computer system there. Ms Teese arranged enough money to pay the petition creditor but she could not get it because the bankruptcy had, it is said, taken effect, despite the existence of a stay. This is serious - it could be alleged to be serious corruption of the system.

We went before Magistrate Driver again with the intention of having him order an account between Ms Teese and the Commonwealth Bank. I am sure you are familiar with Clayton's Case (1816) where if money is appropriated, particularly if it is appropriated in writing or instructions are given in writing to appropriate it, to clear up accounts between a bank and a customer, it must be appropriated in a certain way. This was not done. Unsolicited accounts were raised by the bank. The bank made affidavits claiming unsolicited funds, which is an offence against the ASIC Act. ASIC will not do anything because they are hamstrung. They are a handmaiden of the government and they do not allow anyone to prosecute under their Act except them.

So we have a real problem in this particular case and what I would urge you to do is either allow pleadings or refer it to the Full Court so it can be argued in full.

HIS HONOUR: Yes, thank you.

The prosecutor seeks an order either that the respondents show cause why prohibition should not issue against the fifth respondent, Mr Woodgate, or that a direction be made under Order 55 rule 34 directing him to deliver to the other parties a statement of claim setting forth the facts upon which his claim to a writ of prohibition is founded. If that direction were made, the proceedings would carry on as if they had been initiated by way of statement of claim in an action.

The background is as follows. The prosecutor was, to use his own words, "engaged" by the sixth respondent, Ms Teese, to "speak for her" on 20 August 2002 at a hearing before Mr Driver, a federal magistrate. On that day, the magistrate made a sequestration order against Ms Teese's estate. The background to that event was that a firm of solicitors known as Clinch Neville Long had been acting for Ms Teese in bankruptcy proceedings brought against her by the State Bank of New South Wales and by Mr Fox. According to the prosecutor, she paid out those creditors on 26 March 2002 and Mr Long of that firm became substituted as petitioning creditor.

The prosecutor claims to be owed money, namely, $5,840, for services which he rendered to Ms Teese in relation to the hearing on 20 August 2002. The prosecutor claims that Mr Peter Clinch, a member of the firm of Clinch Neville Long, obtained the sequestration order from the magistrate by representing falsely that there was no written costs agreement between Ms Teese and Mr Long. On 28 March 2003 Justice Lindgren refused to grant an extension of time for appealing from the magistrate's orders. The parties are as follows. The first respondent is Justice Lindgren and the second is the magistrate. The third respondent is Mr Clinch. The fourth respondent is counsel engaged by Clinch Neville Long to act on behalf of their client. The fifth respondent is Ms Teese's trustee in bankruptcy and the sixth respondent is Ms Teese.

The prosecutor drafted and served notices under section 78B of the Judiciary Act (Cth). He informed the Court that he had been advised by the Attorneys-General that none of them wished to attend to present argument today. The prosecutor did submit that it was not possible for a single Justice of the High Court to grant an order nisi unless by consent, but it is not necessary to go into that question. Whichever of the two orders which the prosecutor seeks to be made - - -

MR GARGAN: Your Honour, can I correct - I did not say you could not grant an order nisi. What I submitted, and I would like to just clarify it, is that you cannot make an order nisi absolute, in my submission.

HIS HONOUR: Yes, all right.

The prosecutor has, by his intervention which has been recorded, indicated his position. In my opinion, neither an order nisi nor a direction under Order 55 rule 34 ought to be made because there is no sufficient prima facie case to grant either form of relief. The grounds asserted for the grant of the order nisi set out various matters of complaint about the proceedings before the magistrate and the proceedings before Justice Lindgren. Whether or not there is any force in those matters of complaint are questions which a party to those proceedings could complain of on appeal against Justice Lindgren's orders.

The prosecutor himself does not appear to have been a party to the proceedings before Justice Lindgren and that in turn indicates that his standing in this Court to raise those complaints is highly questionable. If Ms Teese wished to agitate those complaints, it would be a matter for her or the trustee in bankruptcy.

In large measure, the written submissions of the prosecutor rely on the International Covenant on Civil and Political Rights and on passages in the New Testament. Neither document is as such part of the domestic law of Australia. The prosecutor submitted that the magistrate and Justice Lindgren had been guilty of abuse of public office and were therefore in breach of section 142.2 of the Criminal Code Act 1995 . The prosecutor submitted that he therefore had standing to complain of that breach of statute. The contention has insufficient prospects of success to justify the grant of either of the forms of the relief sought and the same is true of the other contentions of the prosecutor. Accordingly, the application is dismissed.

MR SKINNER: May it please the Court. Your Honour, I seek an order for costs in respect of the third, fourth and fifth respondents.

MR BRYANT: No costs sought, your Honour.

HIS HONOUR: No costs sought?

MR BRYANT: Yes.

HIS HONOUR: What do you say to the application of Mr Skinner on behalf of the third, fourth and fifth respondents that you pay their costs?

MR GARGAN: Your Honour, what I say about costs is that costs follow the event. There is no event here today. You do not have jurisdiction, sitting alone, to represent the High Court of Australia, irrespective of the statutes that supposedly give it to you. You may continue, if you wish, but I say that you are in breach of the Constitution because it says in 71 "The High Court shall consist of a Chief Justice" and two other Justices. You are not three people.

HIS HONOUR: Yes, very well.

MR GARGAN: There is no arbitrary power granted to you. So I object to costs. I say there has been no event and that anything that has happened here today has been a nullity.

HIS HONOUR: The prosecutor opposes the application of Mr Skinner on behalf of the third, fourth and fifth respondents that he pay their costs of this application on the ground that the proceedings today have been a nullity because a single Justice of the Court has no power to entertain the application made by the prosecutor. I reject that submission and I order the prosecutor to pay the costs of the third, fourth and fifth respondents of this application.

The Court will now adjourn.

AT 10.19 AM THE MATTER WAS CONCLUDED