Attorney General in and for the State of NSW v Gargan

[2010] NSWSC 1192

CITATION:	Attorney General in and for the State of NSW v Gargan [2010] NSWSC 1192
HEARING DATE(S):	30 August 2010
JUDGMENT DATE :	1 November 2010
JURISDICTION:	COMMON LAW
JUDGMENT OF:	Davies J
DECISION:	(1) Pursuant to s 8(7)(b) Vexatious Proceedings Act 2008 Peter Alexander Gargan is prohibited from instituting proceedings in New South Wales other than with leave of an appropriate court under that Act. (2) Any legal proceedings instituted by Peter Alexander Gargan in any court or tribunal in New South Wales before the date of this order are hereby stayed. (3) Order that Peter Alexander Gargan is not to be allowed to file and is hereby restrained from filing and also from serving any Notice of Motion in any proceedings currently before any court or tribunal in New South Wales, and is not to be allowed to make and is hereby restrained from making any oral application in such proceedings without the leave of a judge of an appropriate court under that Act. (4) The Defendant is to pay the Plaintiff’s costs of the proceedings.
CATCHWORDS:	PROCEDURE - application for vexatious proceedings order pursuant to s 8 Vexatious Proceedings Act - whether proceedings are vexatious - whether vexatious proceedings were instituted or conducted frequently - repeated re-litigation of issues determined against the Defendant - failure to pay costs orders in respect of dismissed proceedings.
LEGISLATION CITED:	Bankruptcy Act 1966 (Cth) Crimes Act 1914 (Cth) Criminal Code Act 1995 (Cth) Criminal Procedure Act 1986 (NSW) Federal Court of Australia Act 1976 (Cth) Federal Court Rules (Cth) Fines Act 1996 (NSW) Supreme Court Act 1970 Uniform Civil Procedure Rules Vexatious Litigants Act 1981 (Qld) Vexatious Proceedings Act 2008
CATEGORY:	Principal judgment
CASES CITED:	Attorney General of NSW v Wilson [2010] NSWSC 1008 Commonwealth Bank of Australia v Gargan [2004] FCA 707; (2004) 206 ALR 571 Gargan v Commonwealth of Australia and anor [2005] NSWSC 1178 Gargan v Director of Public Prosecutions and anor [2004] NSWSC 10 Gargan and Federal Court of Australia [2009] AATA 135 Gargan v Kippin Investments Pty Ltd [2008] FCA 1718 Gargan v Magistrate Dillon & Anor [2005] NSWSC 1106 Gargan v Woodgate; Gargan v Commonwealth Bank of Australia & Anor [2004] NSWSC 177 Hawkesbury City Council v Foster (1997) 97 LGERA 12 Jamison & Brugmans v The Queen (1993) 177 CLR 574 Jones v Cusack (1992) 66 ALJR 815 Lohe v Gargan [2000] QSC 140 Morisset Mega-Market Pty Ltd & Anor v Gargan [2003] NSWSC 1199 Official Trustee in Bankruptcy v Gargan (No 2) [2009] FCA 398 Perrett v Ray [2007] FCA 1920 Peter Alexander Gargan v Commonwealth of Australia and Others [2007] NSWDC 14 Ray v Perrett [2007] FCA 1624 Ray v Perrett [2007] FCA 1672 Slack v Bottoms English Solicitors [2003] FCA 1337 Teese v Clinch Neville Long [2003] FCA 274 Voskuilen v Morisset Megamarket Pty Ltd [2004] FCA 1727 Voskuilen v Morisset Mega Market Pty Ltd [2005] FCAFC 72
PARTIES:	Attorney General in and for the State of NSW (Plaintiff) Peter Alexander Gargan (Defendant)
FILE NUMBER(S):	SC 2009/296963
COUNSEL:	M England (Plaintiff) In person (Defendant)
SOLICITORS:	Crown Solicitor's Office (Plaintiff) In person (Defendant)

- 2 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

DAVIES J

1 NOVEMBER 2010

2009/296963 ATTORNEY GENERAL IN AND FOR THE STATE OF NSW V GARGAN

JUDGMENT

1 The Attorney General of NSW moves by Summons for a vexatious proceedings order pursuant to s 8, Vexatious Proceedings Act 2008 in relation to the Defendant, Peter Alexander Gargan. The orders sought are orders envisaged by s 8(7)(a) and s 8(7)(b) that all proceedings instituted by the Defendant before the date of the order be stayed and that the Defendant shall not without the leave of the Court institute any legal proceedings in any court.

2 The application is made because of Mr Gargan’s involvement in more than 30 different proceedings in this Court, the District Court, the Federal Court, the High Court and some other courts, the details of which I will discuss presently.

The legislative scheme

3 Section 8 relevantly provides:

Making of vexatious proceedings order

(1) When orders may be made
An authorised court may make an order under this section (a vexatious proceedings order ) in relation to a person if the court is satisfied that:
(a) the person has frequently instituted or conducted vexatious proceedings in Australia, or

(b) the person, acting in concert with a person who is subject to a vexatious proceedings order or who is referred to in paragraph (a), has instituted or conducted vexatious proceedings in Australia.

(2) For the purposes of subsection (1), an authorised court may have regard to:

(a) proceedings instituted or conducted in any Australian court or tribunal (including proceedings instituted or conducted before the commencement of this section), and

(b) orders made by any Australian court or tribunal (including orders made before the commencement of this section).

(3) An authorised court must not make a vexatious proceedings order in relation to a person without hearing the person or giving the person an opportunity of being heard.

(4) Orders may be made on court’s own motion or on application

An authorised court may make a vexatious proceedings order of its own motion or on the application of any of the following persons:

(a) the Attorney General,

…

(7) Orders that may be made by Supreme Court

The Supreme Court may make any one or more of the following vexatious proceedings orders in relation to a person:

(a) an order staying all or part of any proceedings in New South Wales already instituted by the person,

(b) an order prohibiting the person from instituting proceedings in New South Wales,

(c) any other order that the Court considers appropriate in relation to the person.

…

4 Section 6 defines vexatious proceedings as follows:

Meaning of “vexatious proceedings”
In this Act, vexatious proceedings includes:

(a) proceedings that are an abuse of the process of a court or tribunal, and

(b) proceedings instituted to harass or annoy, to cause delay or detriment, or for another wrongful purpose, and

(c) proceedings instituted or pursued without reasonable ground, and

(d) proceedings conducted in a way so as to harass or annoy, cause delay or detriment, or achieve another wrongful purpose.

5 Section 4 defines proceedings as follows:

Meaning of “proceedings”

In this Act, proceedings includes:

(a) any cause, matter, action, suit, proceedings, trial, complaint or inquiry of any kind within the jurisdiction of any court or tribunal, and

(b) any proceedings (including any interlocutory proceedings) taken in connection with or incidental to proceedings pending before a court or tribunal, and

(c) any calling into question of a decision, whether or not a final decision, of a court or tribunal, and whether by appeal, challenge, review or in another way.

6 Section 5(1)(a) provides that institute in relation to proceedings includes:

for civil proceedings - the taking of a step or the making of an application that may be necessary before proceedings can be started against or in relation to a party, and …

Legal principles

7 I discussed in Attorney General of NSW v Wilson [2010] NSWSC 1008 at [9]-[17] the principles associated with the making of an order under s 8(1)(a) of the Act. Those matters may be summarised as follows:

(a) the test of “frequently” is a less demanding test than was required under s 84 Supreme Court Act 1970;
(b) the term “frequently” is a relative term and must be looked at in the context of the litigation being considered;
(c) the number of proceedings considered may be small if the proceedings are an attempt to re-litigate an issue already determined against the person;
(d) regard may be had to applications made by the person in proceedings commenced against that person;
(e) regard may be had to the way the person has behaved and conducted himself or herself in the proceedings before the Court;
(f) regard may be had to proceedings in any Australian court or tribunal;
(g) regard may be had to the findings and result in the proceedings under consideration.

8 In these proceedings, reference has been made to the judgment of Perram J in Official Trustee in Bankruptcy v Gargan (No 2) [2009] FCA 398 where his Honour eloquently expresses the principles relating to vexatious litigants at [2]-[12]. Whilst acknowledging that the test his Honour had to consider was the test under s 84 Supreme Court Act and is, as I have noted, a more demanding test than is required under the Vexatious Proceedings Act 2008, much of what his Honour sets out is relevant to the determination in the present case.

[2] A comprehensive explanation of what makes a proceeding vexatious is difficult to proffer for the boundary between the persistent and over-zealous on the one hand, and the vexatious on the other, may at times be indistinct. However, the following principles are, at least, well-established. First, the making of such an order is an extreme remedy depriving its object of recourse to the enforcement of the law which is every citizen’s ordinary right. It is, therefore, not lightly to be made.

[3] Secondly , the purpose of the order is not to impose condign punishment for past litigious misdeeds; it serves instead to shield both the public, whose individual members might be molested by vexatious proceedings, and the Court itself, whose limited resources and needs must be carefully managed and protected from the expense, burden and inconvenience of baseless and repetitious suits.

[4] Thirdly , as might naturally be expected, such a severe power is not enlivened by the mere single occurrence of a vexatious claim. To err is human and transient lapses of judgment, even serious ones, may be found in the most reasonable of places. Instead, the power to make the order is conditional upon the litigant having commenced not only a single vexatious proceeding but also upon having commenced similar such proceedings in this Court or in other Australian courts.

[5] Fourthly, the qualities of vexation to which O 21 is addressed are to be found, as the terms of r 1(1) show, in the commencement by the litigant of proceedings which lack reasonable grounds and where the litigant’s institution of such proceedings may fairly be said to be both habitual and persistent.

[6] Fifthly , whether a proceeding is instituted without reasonable grounds is a different question to, although not wholly disconnected from, the inquiry into a proceeding’s legal merits. The wheat, no doubt, must be separated from the chaff but in this area the question is whether what is before the Court contains any wheat at all. Although, often enough, no great guidance is obtained by exchanging one formula of words with another, it will be usually of some assistance, limited perhaps, to ask whether the issues brought to the Court for determination are manifestly hopeless or devoid of merit. It is, in that context, important to distinguish the difficult from the ridiculous and the unlikely from the hopeless.

[7] Sixthly , although the ways in which unreasonable grounds may manifest themselves are myriad, one form often to be found in the baggage of the vexatious is a failure, often a refusal, to understand the principles of finality of litigation which rescue court and litigant alike from a Samsara of past forensic encounters.

[8] Seventhly , it is the related quality of repetition which underpins, in part, a need for the institution of the proceedings to deserve the appellations habitual and persistent. The litigant’s conduct will be habitual where the commencement of proceedings occurs as a matter of course when appropriate conditions for their commencement are present as was explained by Roden J in Attorney-General v Wentworth (1988) 14 NSWLR 481 at 492. That formulation may not wholly explain the litigant who commences proceedings on any occasion and without the presence of any conditions, whether appropriate or otherwise. In such cases, the idea of constant repetition driven by habit and symptomatic of an inability not to engage in the behaviour may be more useful. Persistence, on the other hand, generally suggests stubborn determination but, in the context of the vexatious, carries with it the capacity to endure failure beyond the point at which a rational person would abandon the field.
[9] Eighthly , each of these notions – the want of reasonable grounds, habitual institution and persistent institution – are to be gauged objectively. But this does not mean that a litigant’s own protestation as to his or her own mental state is irrelevant; frequently enough, the vexatious are betrayed out of their own mouths. Rather, the need for objective determination protects courts from the vexatious litigant who is genuinely, but misguidedly, persuaded as to the correctness of his or her own conduct.

[10] Ninthly , the power to make the order arises when proceedings commenced in the way described are found to exist. But the notion of a proceeding is a broad one including a substantive proceeding directed at the attainment of final relief and collateral applications within such a proceeding; further, it extends outside the proceeding itself and embraces appeals therefrom and applications which, whilst not made in the proceeding, are properly to be seen as collateral thereto – so much flows from the definition of proceeding in s 4 of the Federal Court of Australia Act 1976 (Cth).

…

[12] Finally , once it is concluded that the Court’s power to prevent a litigant from commencing or pursuing proceedings has been enlivened, the considerations germane to the exercise of that power are unconfined. However, the factors which will be relevant are informed by the protective purpose which the order serves. Where a litigant displays insight into their previous litigious history this will, no doubt, be relevant for it will suggest – although not determine – a diminution in the risk posed to the public. On the other hand, the manner in which a litigant conducts herself in her affairs generally is also capable of throwing light on whether the commencement of further vexatious proceedings is likely. Those general affairs include the litigant’s defence to the proceedings by which the order restraining him is sought. Because of the protective nature of the jurisdiction it is also relevant to know the extent of the damage and inconvenience the litigant’s forays into the courts have caused, pecuniary or otherwise.
Jurisdictional challenge

9 Mr Gargan appeared unrepresented on the application. He took a preliminary point as to the jurisdiction of the Court to make the order sought by the Attorney General. The jurisdictional argument seemed to have 2 bases. The first was that since the State of NSW stopped enacting legislation in the name of the Queen its legislation was invalid. Secondly, because Mr Gargan claimed to be a Commonwealth public official acting under the law of the Commonwealth when taking or intervening in proceedings, the State of NSW had no power under the Vexatious Proceedings Act or otherwise to prevent him so acting.

10 I rejected these challenges to the jurisdiction of the Court. The fact that the form of the title to Acts passed by the Parliament has been altered so that there is no reference to the Queen or the Houses of Parliament does not make the Act invalid. There is no suggestion that it was not duly passed by both Houses of Parliament and that assent was not given to it by the Governor.

11 In relation to the claim that Mr Gargan is a Commonwealth official who cannot be prevented from acting in the way he has by an Act of the State Parliament, it is necessary to explain Mr Gargan’s position, particularly so that the analysis, which follows, of the proceedings he has been involved in, can be better understood. This claim does not seem to me to amount to a jurisdictional challenge. Rather, if made out, it may be an answer to the Attorney General’s claim that he is a vexatious litigant.

Mr Gargan’s modus operandi

12 First, Mr Gargan claims that he is a common informer by virtue of s 14 Criminal Procedure Act 1986 (NSW) which provides:

A prosecution or proceeding in respect of any offence under an Act may be instituted by any person unless the right to institute the prosecution or proceeding is expressly conferred by that Act on a specified person or class of persons.

13 He then points to s 4B Crimes Act 1914 (Cth) which relevantly provides:

4B Pecuniary penalties - natural persons and bodies corporate

…

(2) Where a natural person is convicted of an offence against a law of the Commonwealth punishable by imprisonment only, the court may, if the contrary intention does not appear and the court thinks it appropriate in all the circumstances of the case, impose, instead of, or in addition to, a penalty of imprisonment, a pecuniary penalty not exceeding the number of penalty units calculated using the formula:
Term of imprisonment x 5
where:

Term of Imprisonment is the maximum term of imprisonment, expressed in months, by which the offence is punishable.

14 He then claims pursuant s 122 Fines Act 1996 (NSW) that he is entitled to half of the fine ordered to be paid on the basis that he is the prosecutor. Section 122 relevantly provides:

(1) This section applies where:
(a) the Act imposing or authorising the imposition of a fine or other penalty does not make any provisions for its application when recovered, and
(b) the prosecutor is not a police officer.
(2) The court before which proceedings are taken to recover any such fine or other penalty may direct that such portion of it (not exceeding one-half) is to be paid to the prosecutor.

15 The case concerning the bankruptcy of Stephen Glenn Heinrich is a good example of a number of the proceedings relied upon by the Attorney General in the present case. On 6 December 2000 Mansfield J in the Federal Court ordered a sequestration order be made against Mr Heinrich and appointed Alan Geoffrey Scott as trustee of Mr Heinrich’s estate. Mr Heinrich purported to appeal from that decision to the Full Court of the Federal Court. For reasons that are not made clear the Full Court permitted Mr Gargan to appear as agent for Mr Heinrich. Mr Gargan argued that in reliance on s 86 of the Bankruptcy Act 1966 (Cth) an order should be made that an account be taken of the mutual dealings of Mr Heinrich and the Commonwealth Bank, the petitioning creditor. The appeal was dismissed on 28 May 2001.

16 On 2 October 2003 Mr Gargan commenced proceedings in the Common Law Division of this Court against Mr Scott and the Commonwealth Bank relevantly seeking these orders:

1. An order in the nature of a liquidated penalty under section Section 43 Crimes Act 1914 in the sum of $33,000 from the first defendant for a contumelious disregard of the provisions of Section 86 Bankruptcy Act 1966 in respect of the estate of Stephen Glenn Heinrich no (sic)

2. A further order in the nature of a liquidated penalty against the second defendant of $330,000 for dishonestly obtaining, by representations made to the Federal Court of Australia a dispensation from obedience to Section 86 Bankruptcy Act 1966.

…

5. The plaintiff claims one half that penalty for himself, and one half for the Crown in right of the State of New South Wales as agent for Her Majesty, ELIZABETH THE SECOND, owner and administrator of this Honourable Court exercising federal jurisdiction.

It should be noted that s 43 Crimes Act (Cth) made it an offence to obstruct, prevent, pervert, or defeat, the course of justice in relation to the judicial power of the Commonwealth, and provided a penalty of imprisonment for 5 years.

17 In support of the Summons Mr Gargan filed an Affidavit which claimed an entitlement to represent people in bankruptcy matters by virtue of s 308 Bankruptcy Act (presumably para (d)) and claimed the right as a common informer “on behalf of the Crown” to insist on the duties he alleged the trustee and the Bank owed to Mr Heinrich.

18 The Defendants to the Summons moved to strike out the proceedings and that application was heard by Adams J who delivered judgment on 27 October 2003. His Honour noted in his judgment that Mr Gargan informed him that he (Mr Gargan) had no interest in any of the assets or liabilities of Mr Heinrich or any claim made by or against Mr Heinrich, nor did he have any have any authority from Mr Heinrich or any person claiming under him to commence the proceedings. His Honour then noted the basis Mr Gargan alleged for bringing the proceedings under the various provisions of the Crimes Act (Cth) and went on to say:

[4] I have no doubt that Mr Gargan's proceeding is a gross abuse of the process of this Court. My reasons for so saying can fortunately be stated briefly. There can be no question but that Mr Gargan is seeking the payment of a penalty which is, by its inherent character, criminal and not civil. The penalty is punishment, not compensation. Although Mr Gargan claims that he is entitled to proceed as a common informer, by virtue of s14 of the Criminal Procedure Act 1986 (NSW), the power to prosecute or proceed in respect of offences under both the Crimes Act 1914 and the Criminal Code Act 1995 does not reside in a private individual such as Mr Gargan by an action of the kind he is here taking. At all events, there are no matters alleged, either in the summons or in the statement of claim or in Mr Gargan's affidavit, which sufficiently set out any of the allegations necessary to prove offences under the specified sections.

[5] It is obvious from the litigation that has already taken place in relation to the substance of his allegations in other courts that it would be pointless to permit amendment, either of the summons or the statement of claim.

[6] I have no doubt that it is not possible, by proceeding in the way in which Mr Gargan has proceeded, for him in effect to prosecute Commonwealth offences for the purpose of obtaining (as he must), in effect, a conviction and hence a pecuniary reward. Accordingly, claims 1 and 2 in the summons are dismissed.

[7] Claim 3 seeks an interlocutory injunction preventing the first defendant from further proceeding with the administration of the estate of Stephen Glenn Heinrich until he has fully complied with s86 of the Bankruptcy Act 1966. Even assuming, and I feel bound to say this assumption appears to be totally unwarranted, that this Court has jurisdiction in relation to the administration of estates under the Bankruptcy Act, the character of the alleged failure to comply or suggested failure to comply, the fact that it did not occur in this State and that Mr Gargan has no interest of any kind in the administration of the estate, except as a meddler, leads inevitably to the conclusion that this Court would not exercise its discretion in relation to the grant of any such injunction.

19 Although Mr Gargan filed a Notice of Appeal he subsequently discontinued that appeal.

20 Mr Gargan also frequently relies upon alleged breaches of ss 134.1 and 134.2 Criminal Code Act 1995 (Cth) as an alternative to, or in addition to, s 43 Crimes Act 1914 (Cth). Those sections relevantly provide:

134.1 Obtaining property by deception

(1) A person is guilty of an offence if:

(a) the person, by a deception, dishonestly obtains property belonging to another with the intention of permanently depriving the other of the property; and
(b) the property belongs to a Commonwealth entity.


Penalty: Imprisonment for 10 years.

…

134.2 Obtaining a financial advantage by deception

(1) A person is guilty of an offence if:

(a) the person, by a deception, dishonestly obtains a financial advantage from another person; and
(b) the other person is a Commonwealth entity.

Penalty: Imprisonment for 10 years.

21 I turn now to consider the other proceedings relied upon by the Attorney General.

The Voskuilen v Mega-Market proceedings

22 Mr Voskuilen had a contractual licence to operate a market stall at a weekend market conducted by Morisset Mega-Market. Morisset Mega-Market purported to terminate the licence and Mr Voskuilen commenced proceedings against Morisset Mega-Market in the District Court at Newcastle. The proceedings were struck out by Judge Nield on 28 August 2002.

23 On 16 September 2002 Mr Gargan laid an information and filed a Summons against Morisset Mega-Market and Norman Lucas (who represented Morisset Mega-Market), where he described himself as a Statutory Commonwealth Public Officer. The information alleged 2 offences, one contrary to s 43 Crimes Act 1914 (Cth), and one contrary to s 134.1 of the Criminal Code Act 1995 (Cth) by urging Judge Nield to strike out the Statement of Claim.

24 Morisset Mega-Market and Mr Lucas commenced proceedings in the Common Law Division of this Court to strike out the Local Court proceedings commenced by Mr Gargan. Orders in the nature of certiorari in relation to the acceptance of the information and the issuing of the Summons were sought together with a prayer for a declaration that the laying of the information and the issue of the Summons were an abuse of process, and an order restraining Mr Gargan from laying any information against Morisset Mega-Market and Mr Lucas without leave.

25 The proceedings were heard by Greg James J who gave judgment on 17 December 2003: Morisset Mega-Market Pty Ltd & Anor v Gargan [2003] NSWSC 1199. In those proceedings Mr Gargan asserted his right as an Officer of the Commonwealth and claimed an entitlement to recover penalties in the manner I have earlier described.

26 In relation to the alleged offence under s 134.1 of the Code Greg James J held that the High Court’s decision in Jamison & Brugmansv The Queen (1993) 177 CLR 574 was directly applicable in that legal representatives and parties could not be held liable for what was said or done in court even if what was said was false, such as attempting to obtain a benefit by deception.

27 In relation to the alleged offence under s 43 Crimes Act his Honour said this:

[33] The sufficiency of the allegation of the first offence turns upon the defendant's submissions that he had some right to avoid the ordinary procedures in the civil jurisdiction of the District Court. That right could only be found if I accepted his submissions about Federal law and the Constitution. I do not. Those submissions demonstrate a total lack of comprehension of basic legal principle. The first defendant is not a Commonwealth officer or official nor can he, by his own assertion, make himself one or convert matters of State jurisdiction into the exercise of Commonwealth judicial power. His views of the law have apparently led him to believe he can use the courts and the criminal courts to obtain money from defendants by way of penalties. He has no lawful right to do so. So far as he attempts to use the courts for such purposes, he is abusing the processes of the courts. Equally with all others, the first defendant is amenable to ordinary court procedure. The regular employment of court processes does not give rise to any offence against the administration of justice. Therefore the first count alleges no offence under s.43 nor any other offence known to the law. (emphasis added)

28 His Honour then quashed the information and the Summons.

29 In their Summons Morisset Mega-Market and Mr Lucas had sought orders that Mr Gargan be declared a vexatious litigant (this, of course, pre-dated the present Act and would, presumably, have been an application under s 84 Supreme Court Act 1970).

30 When that aspect of the matter came before Greg James J on 20 February 2004 his Honour said this concerning that application:

[4] Similar questions and similar submissions of law to those raised by Mr. Gargan in this matter apparently in law affect a number of other actions in the court. They include two matters brought against a Mr. Woodgate in this division, No. 13499/03 and No. 10001/04, a matter brought by Mr. Gargan against the Commonwealth Bank & Anor, No. 113149/03 , and a matter in the corporations list in which the Commonwealth Bank has brought proceedings against Mr. Gargan to set aside a statutory notice under the Corporations legislation, No. 5892/02.

[5] It has become apparent that there was this mass of litigation and it has become further apparent that there has been a considerable deal of litigation, both in New South Wales and elsewhere, which has resulted in a number of decisions on submissions put by Mr. Gargan. I directed that all these matters come before me today for the purpose of seeing if there was some expeditious and effective method of disposing of them with a view to minimising costs and the court's time by the resolution of such common questions as might affect all of the actions with a view to reaching a final determination such as would enable Mr. Gargan, if he wished, if the determinations were against him, or the other parties, if they wished, if the determinations were against them, to have determined at an appellate level those questions. It seems to me that it was likely that those questions would likely have affected not only that litigation that has been decided in this and other courts but also that which remains pending in this court and which might be launched in the future. Some discussion has occurred with a view to such a course being taken.

31 As matters transpired, the Plaintiffs abandoned their application to have Mr Gargan declared a vexatious litigant. They sought costs of the proceedings on an indemnity basis and his Honour made an order to that effect. His Honour was critical of Mr Gargan making the allegation against Mega-Market and its solicitor and in that regard said this:

[15] Putting aside the technical aspect of the law, this is a most serious allegation to be made against a practitioner alleging that practitioner was utilising the Court system for personal criminal purposes. It was, in my view, on a proper view of the law, never maintainable.

32 On 21 December 2004 Mr Gargan, as agent for Mr Voskuilen, made application to annul Mr Voskuilen’s bankruptcy. The application was refused by Jacobson J (Voskuilen v Morisset Megamarket Pty Ltd [2004] FCA 1727) and Mr Voskuilen appealed to the Full Court of the Federal Court. Leave was again granted to Mr Gargan to represent Mr Voskuilen. It must be supposed that neither Jacobson J nor the Full Court was referred to the decision of Spender J in Slack v Bottoms English Solicitors [2003] FCA 1337 who had held that s 308 Bankruptcy Act did not provide a basis for a person in Mr Gargan’s position acting on behalf of the bankrupt, and there was no other power in the Federal Court of Australia Act 1976 (Cth) or Rules which would have permitted him so to act.

33 The judgment of the Full Court was delivered on 5 May 2005 (Voskuilen v Morisset Mega Market Pty Ltd [2005] FCAFC 72) in the course of which they said:

[1] This appeal is totally devoid of merit. The appellant, Mr Voskuilen, has not been well served by having Mr Gargan appear as his agent, as he has done both before the primary judge, Jacobson J, and before us. The main effect of Mr Gargan's participation, it seems, has been to cause Mr Vosuilken to incur unnecessary liability for costs. The matters raised by Mr Gargan are not fairly arguable.

34 Thereafter on 13 July 2005 Mr Gargan commenced fresh proceedings in the Equity Division of this Court against the Registrar of Burwood Local Court claiming (on behalf of Mr Vosuilken) an order that the Registrar register a bill of exchange and its protest as a judgment. It appears that the bill of exchange was drawn on an unnamed bank in an endeavour to recover from Mr Vosuilken what Mr Gargan thought he was entitled to from Mega-Market.

35 Application was made by the Attorney General (who had been added as a Second Defendant) to have the proceedings dismissed. That application came before McLaughlin AsJ who said this:

What I glean, however, both from what appears in the statement of claim and also from the written submissions of the plaintiff, is that the plaintiff seeks to avail himself of certain provisions of the Crimes Act 1914 of the Commonwealth of Australia and of the Criminal Code Act 1995 of the Commonwealth in order to pursue a monetary penalty against, presumably, the person to whom the bill of exchange was presented. That is, the plaintiff seeks to place himself in a position similar to that which was available in earlier times to a common informer and to obtain for himself a monetary benefit from the person to whom the bill of exchange was presented and who was not paid the amount referred to therein.

…

And for that purpose, the plaintiff is desirous that the bill of exchange should be registered by the Registrar of the Burwood Local Court. The plaintiff does not seek to obtain the totality of the monetary amount in the bill of exchange, which as I have already observed was not disclosed in any way either in the pleading or in the written submissions or in any other evidentiary material, but submits that his entitlement is to one half of any monetary penalty, the other one half being the entitlement of the Crown.

36 McLaughlin AsJ then noted that one of the difficulties for the Plaintiff was his assertion that he was entitled to pursue the procedure in his capacity as a Commonwealth Public Official. His Honour made reference to what Greg James J had said in Morisset Mega-Market Pty Limited v Gargan in that part of the judgment I have set out above (para [27]). McLaughlin AsJ said he agreed with what Greg James J had said in that passage, and went on to hold that the proceedings were an abuse of the process of the Court and that the pleading disclosed no reasonable cause of action.

The Teese proceedings

37 Ann Carolyn Teese was made bankrupt on 20 August 2002 by Magistrate Driver in the Federal Magistrate’s Court. The sequestration order was stayed for 21 days. When that stay lapsed Ms Teese made application for a further stay where Mr Gargan not only acted as her agent (presumably by the leave of the Court) but swore an affidavit in the proceedings. The application alleged contempt on the part of the petitioning creditor because the Insolvency Registrar did not record the stay and that, it was alleged, prevented Ms Teese from being able to borrow further monies.

38 Thereafter, Ms Teese filed an application for annulment of the bankruptcy and claimed a civil penalty against the petitioning creditor. Mr Gargan swore a lengthy Affidavit in those proceedings saying he was engaged by Ms Teese to handle her affairs in connection with the petitioning creditor’s application for a sequestration order.

39 Ultimately these proceedings were discontinued by the filing of a Notice of Discontinuance signed by Mr Gargan as Ms Teese’s agent. Magistrate Driver granted leave to Ms Teese to file a Notice of Discontinuance in Court and ordered that no further application for annulment was to be accepted for filing without the leave of the Court.

40 On 9 December 2002 Ms Teese filed an application for an extension of time in which to appeal against the sequestration order made by Magistrate Driver. This application was heard by Lindgren J who refused leave on the basis that there was insufficient doubt as to the correctness of the orders made by Magistrate Driver: Teese v Clinch Neville Long [2003] FCA 274.

41 That led Mr Gargan to commence proceedings in the High Court seeking a Writ of Prohibition against the trustee in bankruptcy of Ms Teese. The proceedings also named as respondents Lindgren J, Magistrate Driver, Mr Clinch (a partner of the firm of solicitors who were acting for the petitioning creditors), Mr Chippendall (a barrister who appeared for the petitioning creditors) and Ms Teese herself. The basis of Mr Gargan’s claim was (as is disclosed in the judgment of Heydon J who heard the application) that he was owed $5,840 for having acted for and represented Ms Teese in the bankruptcy proceedings.

42 In the course of his judgment Heydon J said this:

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.

43 Thereafter, Mr Gargan appeared before Greg James J (presumably as Duty Judge) on 26 June 2003 asking that he be allowed to file an indictment against Magistrate Driver alleging an offence under s 43 Crimes Act (Cth) by reason of the fact that he made a sequestration order against Ms Teese. The form of the indictment was contained in an affidavit sworn by Mr Gargan.

44 It is sufficient to set out passages of the judgment of Greg James J to understand what was being asserted and the Judge’s decision on the matter:

[4] Exhibit 1 to the affidavit is a form of indictment. It asserts that Peter Alexander Gargan is acting on behalf of her Majesty the Queen and authorised to act to present the indictment by s.55 of the Criminal Procedure Act . The affidavit is accompanied by a summons which purports to set out the authority of Mr. Gargan and asserts that the defendant engaged in corrupt conduct seeking to obtain a corrupt benefit for a fellow officer by making a sequestration order without enquiring into the matter thoroughly. So that the offence, Mr. Gargan refers to, he asserts, was committed.

[5] He claims a liquidated penalty of $33,000 by virtue of s.4B of the Crimes Act 1914, half of which he asserts is payable to himself and half to the State of New South Wales.

[6] He also seeks the setting aside of the sequestration order and the restitution of damage "your criminal act has caused to Ann Carolyn Teese in the interim period".

[7] Accompanying that is a document asserting dereliction of duty of the High Court justices and threatening them with criminal action.

[8] He contends that these proceedings are entitled to be commenced in this way as of right and criticises an asserted propensity on behalf of judicial officers to deny access to the High Court of Australia by refusing to file process.

[9] I have said sufficient to show that this claim is in my view entirely untenable, frivolous and vexatious.

[10] The magistrate, on the face of this material, appears to have been acting within lawfully conferred jurisdiction.

[11] Any appeal may be brought to the Federal Court in accordance with the provisions of the Federal Court Act to the Federal Court. There is no suggestion of any such appeal. There is nothing in this material that indicates in any way that the act, performed by the magistrate in making the sequestration order, might justifiably be categorised as criminal. Nor is there any power in the Supreme Court of New South Wales under s.55 of the Criminal Procedure Act to indict a judicial officer performing judicial duties, acting apparently within jurisdiction, for the commission of a criminal offence in so doing. That officer is immune from criminal responsibility if performing an act within jurisdiction.

[12] In addition, Mr. Gargan is not a person empowered to present an indictment under Commonwealth law. Further, there appears to be no basis of any rational kind whereby the magistrate's conduct should so be called in question.

45 On 25 September 2003, Mr Gargan commenced proceedings by Summons in the Common Law Division of this Court against the trustee in bankruptcy claiming orders in the nature of liquidated penalties pursuant to s 43 Crimes Act by reason of alleged breaches of s 86 Bankruptcy Act, half of which were penalties Mr Gargan claimed for himself.

46 On 26 November 2003 he filed a Statement of Claim in the Common Law Division of this Court against the Commonwealth Bank and John Henry Bartrop (who acted for the Bank) seeking various penalties because of alleged breaches of s 43 Crimes Act (Cth) in connection with (it would seem) Ms Teese’s bankruptcy. Precisely where the Commonwealth Bank fitted into the scheme of things was not made clear, but I note that it had been added as a party (although subsequently removed) in the application for annulment filed in the Federal Magistrate’s Court on 5 September 2002.

47 It appears from documents annexed to an Affidavit Mr Gargan swore in those proceedings that he had laid an information and obtained a Summons against the Commonwealth Bank in the Magistrate’s Court of the Australian Capital Territory in July 2003. On 5 August 2003 the Deputy Registrar of that Court made orders that the Summons upon that information be dismissed and that Mr Gargan pay the Commonwealth Bank’s costs assessed at $2000. It is also clear from those documents that Mr Gargan filed an appeal in the Supreme Court of the Australian Capital Territory against that dismissal on 8 August 2003. The Commonwealth Bank moved to strike out that appeal, and on 5 December 2003 Master Harper struck it out.

48 On 2 January 2004 Mr Gargan filed a Summons in the Common Law Division of this Court against the trustee in bankruptcy asking for orders that the trustee appear before a Judge of the Court to answer the charge that he contravened s 43 Crimes Act (Cth) by failing to take an account of mutual dealings between Ms Teese and her various creditors. He also alleged an offence against s 134.2 Criminal Code Act and sought penalties.

49 The 3 separate proceedings that I have identified in paras [45], [46] and [48] above came before Greg James J on Motions by the 2 Defendants for summary dismissal. Greg James J gave judgment on 19 March 2004 (Gargan v Woodgate; Gargan v Commonwealth Bank of Australia & Anor [2004] NSWSC 177). Greg James J noted that it was common ground between Mr. Gargan and the defendants that the same underlying point was essential to all 3 cases as the Judge had dealt with in Morisset v Mega-Market.

50 His Honour then set out a lengthy passage from Morisset v Mega-Market and went on to say this:

[25] I concluded that the plaintiff’s attempts to use an information to claim penalties for such offences in this way before a magistrate was an abuse of process.

[26] Those remarks are equally applicable to these proceedings. Not only are all of these proceedings ill commenced, not only are the summons and statement of claim procedures inapt to commence a proceeding by way of a criminal prosecution in this court for a common informer to use to claim penalties, but Mr. Gargan does not have the authority required under the Judiciary Act 1903 (Cth) for a prosecutor to commence proceedings on indictment for offences against the laws of the Commonwealth, s.69 of the Judiciary Act 1903 (Cth), nor to commence proceedings on behalf of the Commonwealth or the State of New South Wales by way of a prosecution on indictment in this court or for recovery of a penalty in this court.

[27] Mr. Gargan claims a right to commence proceedings for the recovery of pecuniary penalties as a common informer relying on s.14 of the Criminal Procedure Act 1986. That section provides:

"A prosecution or proceeding in respect of any offence under an Act may be instituted by any person unless the right to institute the prosecution or proceeding is expressly conferred by that Act on a specified person or class of persons."


[28] It can be seen that section is limited in its scope and subject to the exception expressly referred to in it. It does not permit Mr. Gargan to commence in this court any proceedings nor does s.13 of the Crimes Act 1914 (Cth). Although a statement of claim in this court might be used to recover pecuniary penalties, eg., under the Customs Act 1901 (Cth), that is because that Act provides specifically for that procedure and for actions to be brought in this court. It contains provisions limiting who may bring such actions. Those provisions do not include Mr. Gargan. Proceedings in this court under the various State and Commonwealth Acts under which penalties may be sought in respect of matters involving proceeds of crime, are commenced in the court by summons. But that is because those Acts provide expressly for a specified person or class of persons to have in those limited circumstances access to this court and that procedure is expressly provided for in respect of that access by the Supreme Court Rules.

[29] In addition, for the reasons I gave in the Morisset Mega-Market case, it is not open to the plaintiff to attempt to sue on, or claim, from the asserted commission of the offences he refers to in each of the proceedings. Here, in each case, as in the Morisset Mega-Market case, the plaintiff is attempting to use the processes of this court to obtain a financial penalty in respect of what he asserts to be the commission of crimes upon which it has been held no action lies in the circumstances to which he refers. He is attempting to assert an entitlement to penalties and to assert that the defendants should pay and not contest his allegations lest they be put by the very proceedings he has commenced to a criminal trial. This is an attempt to use the processes of this court to harass defendants into paying money to a person who has no authority to bring the proceedings he has brought here or to make the claims that he does. This procedure is not permitted by the law to a common informer. …

[30] My observations in Morisset Mega-Market that it is not open to bring proceedings to charge an attempt to obtain financial benefit by deception when all that has been done is a regular application to the court and it is not open to charge an attempt to pervert the course of justice when all that has been done is an ordinary and regular application to the court, remain applicable to a good deal of what the plaintiff has alleged in these proceedings. But in any event, the use of the court proceedings for this purpose to attempt to mulct defendants clearly renders them an abuse, as I had held in Morisset Mega-Market .

[31] To permit proceedings of this kind on these bases would be to countenance "an instrument of individual extortion, caprice and tyranny".

[32] It is not necessary to distinguish between the application of the inherent jurisdiction, Part 13 Rule 5, or Part 15 Rule 26. These proceedings are an abuse. They are doomed to fail because they disclose no cause of action nor any cause of action which can be brought by the plaintiff in this court.
…

[35] It is, however, sufficient, in order to dispose of all of these proceedings that I declare them to be an abuse and that in each case under Part 13 Rule 5, rule that the proceedings be dismissed generally.

[36] I indicate that I would, if applying Part 15, strike out the whole of Mr. Gargan's pleadings and refuse leave to re-plead, but the more final order would seem to be appropriate, having regard to the multiplicity of the occasions on which Mr. Gargan has asserted, under one guise or another, a right to bring proceedings of this kind.

[37] I further conclude that, having regard to the multiplicity of proceedings brought by Mr. Gargan, this judgment should be drawn to the attention of the Attorneys-General for the State and the Commonwealth with a view to their considering whether an application should be made to the court for Mr. Gargan to be declared a vexatious litigant. (emphasis added)

The Bickford proceedings

51 Russell Bickford stood trial in 2003 in the Penrith District Court on a charge of assault with intent to rob. On 19 March 2003 he was found guilty by a jury of that charge and was sentenced to 2 years imprisonment by Judge Gibb on 25 July 2003. Mr Bickford lodged a Notice of Intention to Appeal to the Court of Criminal Appeal but did not proceed with that appeal.

52 On 28 August 2003 Mr Gargan filed a Summons in this Court seeking Habeas Corpus for Mr Bickford and an order that his conviction be quashed. Neither in that document nor in the Affidavit he swore in support of the Summons was it disclosed what Mr Gargan’s interest in the matter was.

53 However, the Affidavit disclosed that he had made a similar application to Justice Connolly of the ACT Supreme Court. That Judge, he said, declined to make the order, suggesting that Mr Gargan approach this Court. I note in passing that the Affidavit says that Mr Gargan applied to Justice Connolly on 15 August 2001 (2 years prior to Mr Bickford’s sentence) but I assume that that is a typographical error and the date should be 15 August 2003.

54 On 15 September 2003 Mr Gargan filed a Notice of Motion in those proceedings seeking orders that Mr Bickford be granted bail pending the disposal of the proceedings and that the Summons be amended by adding the Governor of Silverwater Correctional Centre as a Defendant.

55 Two paragraphs in the proposed Amended Summons highlight the misguided approach Mr Gargan took to this and other proceedings in which he became involved. The proposed Amended Summons said this:

[16] The mistake most have been making is in failing to ask whether the person sitting upon the bench is a Christian. More in point is he a Protestant Christian. A Protestant Christian, as is the Queen is bound by the New Testament, and there are a number of parts of the scriptures, the word of Jesus, which do not allow a Protestant Christian to sit without a jury, and more again particularly in Paul's letter to the Romans, where he explains the function of judges.

[17] In Romans 2, particularly the word of God is that the best way to go to damnation is to be a judge. As all judges and magistrates are delegates of Her Majesty, they must not sit without a jury either, or they are offending God's law. Anyone may sit on the bench, as a president of a Court, Christian, Jew, Moslem, or atheist, but as he or she exercises the delegated power of the Queen or God, he or she is bound by the same oath as the Queen herself.

56 On 11 November 2003 Mr Gargan filed in the same proceedings (whether with or without leave does not appear) a Statement of Claim against the Director of Public Prosecutions and the Governor of Silverwater Correctional Centre seeking a declaration that Mr Bickford’s detention was unlawful and claiming damages pursuant to the Crimes Act (Cth). On the same day he filed a Notice of Motion in the proceedings seeking orders that the Governor of Silverwater Correctional Centre be joined as a Defendant (an order he had already sought in his Notice of Motion in the proceedings filed 15 September 2003) and an order that on the Statement of Claim being “delivered in this action” Mr Bickford be released forthwith.

57 The proceedings were heard by O’Keefe J who gave judgment on 28 January 2004 (Gargan v Director of Public Prosecutions and Anor [2004] NSWSC 10). The basis for Mr Gargan’s involvement in the proceedings was not discussed by O’Keefe J. His Honour dismissed the proceedings and ordered Mr Gargan to pay the costs of Defendants and the Attorney General who was given leave to intervene. In relation to what Mr Gargan submitted derived from his resort to the Bible, his Honour said this:

[66] In view of the conclusion to which I have come in relation to the effect of the decision by the High Court in relation to the validity of s 54(b) of the Jury Act 1977 I do not consider it is necessary to deal with these arguments in great detail. It suffices to say that:

(i) the appeal to scripture, that is to a moral principle higher than parliamentary sovereignty, is “out of line with the mainstream of current constitutional theory as applied in our courts” ( BLF v Minister for Industrial Relations (1986) 7 NSWLR 372 at 384 per Kirby P). The same principle was applied by Lord Reid in British Railway Board v Pickin (1974) AC 765 in which he said:
“In earlier times many learned lawyers seem to have believed that an Act of Parliament could be disregarded insofar as it was contrary to the law of God or the law of nature or natural justice, but since the supremacy of parliament was finally demonstrated by the Revolution of 1688 any such idea has become obsolete” (at 782)

To a like effect is the decision of the Privy Council in Liyanage v The Queen ( 1967) AC 259 in which it was held that an Act of the Parliament of Ceylon could not be challenged on the basis that it was contrary to the fundament principles of justice.
This argument fails.
The Gargan bankruptcy proceedings

58 It will be recalled that the ACT Magistrate’s Court ordered Mr Gargan to pay the costs of the Commonwealth Bank assessed at $3000 in respect of an information and Summons he filed against the Bank (para [47] above). Mr Gargan failed to pay those costs and the Bank issued a Bankruptcy Notice against him. He failed to comply with that Bankruptcy Notice and the Bank presented a petition for the sequestration of his estate.

59 Mr Gargan opposed the making of a sequestration order and the matter was heard by Hely J in the Federal Court. It appears from the judgment of Hely J given on 4 June 2004 (Commonwealth Bank of Australia v Gargan [2004] FCA 707; (2004) 206 ALR 571) that the opposition to the position by Mr Gargan was based on the fact that the Bank owed him numerous penalties he had claimed against it totalling $104,000,000.

60 His Honour first made reference to the judgments of Adams J and Greg James J that I have referred to in paras [18], [27] and [30] above. His Honour then noted that Mr Gargan had commenced proceedings in the Supreme Court of Tasmania, supposedly on behalf of the State of Tasmania, to bring an indictment against the Bank for an offence under s 43 Crimes Act (Cth) and claiming a penalty of $104,000,000.

61 His Honour noted (at [18]) that that was the same claim as was dismissed by the ACT Magistrate, and held to be an abuse of process by Greg James J. His Honour then went on to say:

[24] Adams J and Greg James J dismissed as an abuse of process the respondent’s broader claim against the CBA, and those decisions are a barrier in the way of the respondent’s contention that he has a genuine and serious claim against the CBA which is likely to succeed if he is permitted to litigate the claim.

62 Hely J also concluded, by reference to a number of decisions including Hawkesbury City Council v Foster (1997) 97 LGERA 12 (a decision of the NSW Court of Appeal) that:

[30] These authorities support the conclusion drawn by the Law Reform Committee of South Australia referred to above that only offences created by statutes which expressly or by necessary implication provide for a Qui Tam action may be prosecuted by a common informer. The common informer must be able to point to a statutory provision which either ‘gives’ the penalty to the common informer, or creates a right to demand payment of the penalty.

63 In relation to Mr Gargan’s claimed rights to institute private prosecutions his Honour said:

[33] The offence created by s 43 of the Crimes Act is an indictable offence (s 4G). However, it may be dealt with summarily if both the prosecutor and the defendant consent (s 4J). Section 13 of the Crimes Act enables ‘any person’ to institute committal proceedings in respect of an indictable offence, or proceedings for summary conviction in respect of offences punishable on summary conviction. The Director of Public Prosecutions may ‘take over’ any such proceeding: Director of Public Prosecution Act 1983 (Cth) s 9(5). Under s 69 of the Judiciary Act 1903 (Cth) indictable offences against the laws of the Commonwealth are to be prosecuted by indictment in the name of the Attorney-General of the Commonwealth or such other person as the Governor-General appoints in that behalf.

[34] Thus, it is at least doubtful whether the respondent could institute or maintain a private prosecution against the CBA in relation to the indictable offences particularised. In any event he has not done so.

[35] If a body corporate is convicted of an offence s 4B of the Crimes Act provides the Court with a discretion to impose pecuniary penalties. But no Commonwealth law to which my attention has been drawn awards those penalties to a common informer, or creates a right in a common informer to demand payment of those penalties.
[36] Section 122 of the Fines Act 1969 (NSW) provides:
(1) This section applies where:
(a) the Act imposing or authorising the imposition of a fine or other penalty does not make any provisions for its application when recovered, and
(b) the prosecutor is not a police officer.
(1) The Court to which proceedings are taken to recover any such fine or other penalty may direct that such portion of it (not exceeding one half) is to be paid to the prosecutor.
(2) For the purposes of this section, fine does not included an amount of the kind referred in section 4(1)(e) or (f).

[37] It may be that this provision is picked up by s 79 of the Judiciary Act . I will assume in the respondent’s favour that this is so as no detailed argument was advanced on the question. Even if it be so, s 122 merely creates a discretion in the Court to direct that a portion of a penalty is to be paid to the prosecutor, rather than creating any right in the prosecutor to receive or to recover any particular part of the penalty.
[38] Thus, it is also doubtful, that any part of any penalty imposed on the CBA if it were convicted would be payable to the respondent, even if the respondent could institute and maintain a private prosecution against the CBA.

64 His Honour then concluded by saying:

[41] The respondent has misconceived his case and has proceeded on an assumption which the authorities referred to above confirm to be false; namely that he is entitled to commence proceedings against the CBA independently of the ordinary criminal process and obtain a moiety of the penalties to which he says the CBA is liable. The decisions of Adams J and Greg James J confirm that the respondent’s contentions in this respect are misconceived. If the respondent has any prospect of obtaining any share in any penalties which might be imposed on the CBA, should it ever be convicted of an indictable offence, it is only through the ordinary criminal process augmented, should the statute prove to be applicable, by s 122 of the Fines Act . However, as I have indicated there are substantial doubts as to whether and to what extent the respondent can either undertake or benefit from such a process. At best, such a claim is highly speculative, and falls well short of demonstrating sufficient cause for dismissing the Creditor’s Petition.

65 Hely J then proceeded to make a sequestration order against the estate of Mr Gargan.

66 Mr Gargan failed to file a Statement of Affairs pursuant to s 54(1) Bankruptcy Act 1966 (Cth). The Commonwealth DPP commenced proceedings against him. The proceedings were heard by Magistrate Dillon in the Local Court on 3 May 2005, at which time Mr Gargan challenged the Magistrate’s jurisdiction to deal with the proceedings. The Magistrate, in a reserved decision, dismissed the challenge on 18 July 2005.

67 On 27 July 2005 Mr Gargan filed a Statement of Claim in the Equity Division of this Court seeking orders against Magistrate Dillon and the Official Trustee in Bankruptcy. Mr Gargan claimed orders setting aside Magistrate Dillon’s decision on the basis that he had no power to hear the proceedings. He also claimed that the sequestration order made by Hely J was “utterly void”.

68 The Official Trustee moved to have the proceedings dismissed as they affected him. Mr Gargan filed a Notice of Motion seeking an order that “the questions of fact in this matter in Federal jurisdiction be tried with a jury”. Both Notices of Motion were heard by Barrett J (Gargan v Magistrate Dillon & Anor [2005] NSWSC 1106) who delivered judgment on 4 November 2005.

69 The Statement of Claim that had been filed by Mr Gargan need not be detailed. It is sufficient to note that, as with most of his other pleadings and affidavits, there was much reference to the Bible, to various Acts of the United Kingdom Parliament from the time of Magna Carta onwards, and to the International Covenant on Civil and Political Rights. His particular complaint about the Federal Court was said to be that the Federal Court was a communist institution which was not Christian. In relation to Mr Gargan’s reliance upon the Bible, Barrett J said that the Plaintiff must have known the submission was wrong because 2 Courts had previously told him so. His Honour then set out a passage in Hely J’s judgment in Gargan v Commonwealth Bank of Australia at [4]-[5] and then set out at length the passage from O’Keefe J in Gargan v Director of Public Prosecutions, some of which I have extracted at para [57] above.

70 In relation to Mr Gargan’s reliance upon the provisions of the International Covenant Barrett J said at [22] that Mr Gargan was well aware of the limited relevance of those provisions in Australian law because Hely J had said so in his judgment.

71 His Honour then concluded by saying:

[30] I am, as I have said, satisfied that none of the propositions for which the plaintiff contends requires reconsideration of the conclusion stated at paragraph [16] above. That, coupled with what I have said at paragraph [29] about the inability of this court to question or review a final order made by the Federal Court, means that none of the claims the plaintiff seeks to advance by means of his statement of claim discloses any reasonable cause of action and that the proceedings instituted by him are an abuse of process. 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.

[31] As I have said, the second defendant seeks an order of summary dismissal insofar as the proceedings affect it and the first defendant submits to such order as the court may make, except as to costs. The gross deficiencies in the plaintiff’s case are not, however, confined to aspects that affect only the second defendant. They are of an all-pervasive character so as to affect the totality of the claims. They therefore apply also to the aspects concerning the first defendant. To the extent that there is a general expectation that an application for any order for summary dismissal be an application by all defendants (see, for example, Wickstead v Browne (1992) 30 NSWLR 1), it is therefore an expectation that does not apply to a case of this kind.

[32] The appropriate outcome is accordingly an order pursuant to rule 13.4 of the Uniform Civil Procedure Rules that the proceedings be dismissed generally as against both defendants named in the statement of claim.

72 Mr Gargan then commenced proceedings in the Federal Court seeking an annulment of both his 1993 and 2004 bankruptcies, and making claims against Kippin Investments Pty Ltd (a company that had acquired property as a result of the 1993 bankruptcy) and the Official Trustee in Bankruptcy.

73 Both Respondents filed Notices of Motion for summary dismissal of the proceedings, and those Motions were determined by Perram J on 29 October 2008 (Gargan v Kippin Investments Pty Ltd [2008] FCA 1718). Amongst the claims that were made by Mr Gargan was alleged to be a right to civil compensation under s 13 Crimes Act 1914 (Cth) and s 14 based on the fact that he was a common informer.

74 Perram J dismissed Mr Gargan’s proceedings. In so doing he made these comments:

[27] Insofar as the argument is advanced based upon s 13 of the Crimes Act 1914 (Cth), that is, on the common informer provisions, I respectfully adopt what was said by Hely J in Commonwealth Bank of Australia v Gargan [2004] FCA 707; (2004) 140 FCR 1, where his Honour dismissed the same argument. I should note for completeness that at [11] Hely J relied upon what Adams J had said in Gargan v Scott (unreported, Supreme Court of New South Wales, 27 October 2003) and I respectfully adopt what Adams J said at [4]. I do not think that the argument based upon s 13 has any substance whatsoever.

75 The Respondent sought indemnity costs from Mr Gargan. Perram J acceded to that request and said this:

[42] The first and second respondents apply for indemnity costs orders in relation to the dismissal which I have just ordered. It seems to me that in the exercise of the costs discretion the following matters are pertinent. First, the current proceeding involves attempts to re-litigate a number of matters which Mr Gargan has extensively litigated in the past and unsuccessfully. Secondly, in relation to the annulment application, he has made at least one prior annulment application before Kiefel J and failed. Thirdly, he has sought to articulate an argument based upon s 86 of the Bankruptcy Act 1966 (Cth), which operation has been determined, to his knowledge, in a contrary way by the Full Court in Heinrich .

[43] Finally, I take into account as a matter of overall impression, that this proceeding commenced by Mr Gargan, in common with a number of other proceedings commenced by him, involve what appear on their face sometimes to be engaging, if obscure, legal questions. However, those arguments are rarely thought through to their final conclusion, and despite Mr Gargan’s protestation of having studied law for two years, seem to indicate a desire more to be involved in the disposition of clever legal arguments in court rather than any focused attention upon what the consequences of his actions might be in relation to the parties against whom he brings his proceedings.

76 Mr Gargan then made application to the Administrative Appeals Tribunal for leave to appeal against Perram J’s decision. The application made a large number of allegations of fraud against Justice Perram and Kippin Investments. The fraud allegations were said to be based on Mr Gargan’s usual sources, namely, the Bible, various imperial Acts and the Australian Constitution.

77 The AAT dismissed the application on the obvious basis that it did not have the power or jurisdiction to hear an application to review a judgment of the Federal Court (Gargan and Federal Court of Australia [2009] AATA 135).

78 In the proceedings Mr Gargan commenced and which Perram J heard, the Official Trustee in Bankruptcy filed a cross-claim claiming that Mr Gargan was a vexatious litigant in seeking orders that he be prevented from filing further proceedings. The application was made on the basis of O 21 r 1(1) Federal Court Rules which relevantly provides:

(1) If a person institutes a vexatious proceeding and the Court is satisfied that the person has habitually, persistently and without reasonable grounds instituted other vexatious proceedings in the Court or any other Australian court (whether against the same person or against different persons), the Court may order:

(a) that any proceeding instituted by the person may not be continued without leave of the Court; and
(b) that the person may not institute a proceeding without leave of the Court.

79 I have already made reference to Perram J’s judgment and indicated that a number of the principles he set out were relevant principles despite the different test that applies in the present proceedings. On the basis of the more demanding test which Perram J was considering he determined that Mr Gargan had habitually, persistently and without reasonable cause instituted vexatious proceedings in the Federal Court and in other Australian courts. He drew attention to the repetitive arguments that he presented before different judges. He referred to the fact that Mr Gargan showed no insight into his behaviour or any understanding of the inconvenience that he inflicted upon other people by his actions. He noted that there was evidence that the Official Trustee in Bankruptcy had expended $238,892.36 in dealing with 18 claims involving Mr Gargan since 1995.

The Telstra v Ivory proceedings

80 It appears that Telstra brought proceedings against a person called Kenneth Ivory in the Supreme Court of Queensland for debt. It is not clear to what stage those proceedings had progressed when Mr Gargan filed a Statement of Claim in this Court naming the Commonwealth of Australia as First Defendant and Telstra Corporation as the Second Defendant. The Statement of Claim sought an order that judgment be entered for a sum specified in a bill of exchange against the Commonwealth of Australia notwithstanding that Mr Gargan was not a party to the bill of exchange and it had never been signed by the Commonwealth or anyone on its behalf to render the Commonwealth liable under the bill.

81 The Statement of Claim also sought an order that the proceedings in the Supreme Court of Queensland against Mr Ivory and an entity called the Solar-Mesh entities be stayed permanently. There were some other ridiculous claims that the Commonwealth pay losses to Mr Ivory and the Solar-Mesh entities of more than $5 billion of which $1 billion should be paid to the Treasuries of the State and Territory Governments and that $4 billion be appropriated to a trust fund for the alleviation of poverty and other worthy causes.

82 The Defendants sought by Notices of Motion to have the proceedings dismissed and Mr Gargan moved that the questions of fact in the matter be tried with a jury.

83 Not surprisingly, Brereton J had no difficulty dismissing the proceedings (Gargan v Commonwealth of Australia and anor [2005] NSWSC 1178) on 3 November 2005. In the course of his judgment, Brereton J noted that Mr Gargan had already been declared to be a vexatious litigant in Queensland.

84 On 20 August 2007 Mr Gargan commenced proceedings in the District Court of NSW against Telstra Corporation and Donald McGauchie (Telstra’s CEO). It is very difficult to work out what Mr Gargan was seeking in this claim. All that can be discerned from what appears in the Statement of Claim is that it was some sort of complaint about the way Brereton J dealt with the Supreme Court proceedings. In any event, on 16 January 2008 the District Court dismissed the proceedings under r 13.4 UCPR, ordered Mr Gargan to pay the Defendants’ costs on an indemnity basis, and made an order that Mr Gargan was not to bring any further proceedings against the Defendants without the prior leave of the Court.

The Ray v Perrett proceedings

85 A person called Greg Ray filed a Creditor’s Petition in the Federal Magistrate’s Court on 12 July 2007 seeking a sequestration order against the estate of Paul Perrett. By an order dated 2 October 2007 the proceedings were transferred to the Federal Court.

86 On 8 October 2007 a Notice of Motion was filed in the proceedings signed by Mr Perrett but his address for service was identified as “Agent: 8/369 Glebe Point Road, Glebe, 2037”, an address used by Mr Gargan. The Notice of Motion sought an order that questions of fact in the matter be tried and determined by a jury. Eighteen questions of fact were listed.

87 When the Notice of Motion came before Graham J for Directions on 11 October 2007 (Ray v Perrett [2007] FCA 1624) Mr Gargan announced his appearance for Mr Perrett claiming a right based on s 308 of the Bankruptcy Act. Graham J did not determine whether s 308 gave Mr Gargan authority but granted him leave to appear as Mr Perrett’s agent.

88 His Honour expressed the opinion that not one of the 18 so called questions of fact answered the description of a question of fact within the meaning of s 30(3) Bankruptcy Act. Graham J granted leave to Mr Perrett to file and serve an Amended Notice of Motion to enable him to give consideration whether he wished to redefine the questions of fact which might warrant trial by jury on the hearing of the Creditor’s Petition.

89 When an Amended Notice of Motion came back before Graham J on 26 October 2007 (Ray v Perrett [2007] FCA 1672) he said there was no basis on which it could be said that any of the so-called questions of fact identified in the Amended Notice of Motion were questions of fact that could be tried by a jury. Graham J said that the application was totally without merit and had involved an enormous waste of expense in the preparation of affidavit material that had no bearing whatsoever on the issues raised by the Motion. He dismissed the Amended Notice of Motion and ordered Mr Perrett to pay indemnity costs.

90 On 29 October 2007 Mr Perrett sought leave to appeal from Graham J’s dismissal of the Notice of Motion (Perrett v Ray [2007] FCA 1920).

91 It is noteworthy that Mr Perrett had a Dr J Walsh (apparently from Melbourne) appearing for him instructed by a solicitor Mr D Knaggs. Dr Walsh appeared on the second occasion before Graham J although with a different solicitor.

92 Mr Gargan does not appear to have had overt involvement in the application before Lindgren J although the Amended Notice of Motion has Mr Gargan’s style written all over it. Further, Lindgren J noted that Mr Perrett apparently did not know that Dr Walsh was appearing for him on the application for leave to appeal.

93 Lindgren J dismissed the application for leave to appeal and ordered that Mr Perrett pay the costs of the Respondent on an indemnity basis. Because Mr Gargan’s role in that application is far from clear I do not take it into consideration when considering whether an order should be made under the Act.

Other recent proceedings – District Court

(a) Gargan v Commonwealth of Australia :

94 On 31 October 2006 Mr Gargan commenced proceedings against the Commonwealth in relation to a right he had to a Newstart Allowance. His complaint appears to have been that Centrelink required him to sign an Activity Agreement which he said Centrelink had no right to impose. He sought a penalty against the Commonwealth for $165,000 for every time it offended in that way.

(b) Harding and Gargan v Australian Government Solicitor and ors :

95 These proceedings appear to concern a tax liability incurred by Mr Harding where it was said the Australian Government Solicitor wrongly denied Mr Harding a trial by jury. The Plaintiffs claimed that the Commonwealth pay a penalty of $561,000.

(c) Dixon and Gargan v Lewin and the Commonwealth of Australia :

96 On 27 November 2006 a Ms Sandra Dixon and Mr Gargan commenced proceedings against one Hank Joseph Lewin who was alleged to have been a former partner of Ms Dixon in some sort of personal or domestic relationship, and against the Commonwealth of Australia. It appears that there were Family Court proceedings between Ms Dixon and Mr Lewin. Mr Gargan pleaded that Ms Dixon approached him with her concerns about the legality of the Family Court and requested that he (although the pleading wrongly refers to the Second Defendant rather than the Second Plaintiff) enter into a partnership with her with a view to recovering a penalty from Mr Lewin and from the Commonwealth of Australia which created the Family Court. The penalty claimed against Mr Lewin was $33,000 and the penalty against the Commonwealth of Australia was $165,000 for every time it was said to have offended s 43 Crimes Act 1914 (Cth).

(d) Gargan v Australian Government Solicitor :

97 On 28 November 2006 Mr Gargan commenced proceedings against the Australian Government Solicitor and a number of other persons including the Commissioner of Police for Queensland. It appears that one William Ketelhohm had had his licence suspended. Mr Ketelhohm was not a party to the District Court proceedings. However, Mr Gargan alleged that a police sergeant at Longreach persisted in interfering with the free passage of Mr Ketelhohm as a driver contrary to s 92 of the Constitution. Injunctions and damages were sought. Further, a statutory penalty of $165,000 was sought against the Australian Government Solicitor for every time it offended s 43 Crimes Act 1914 (Cth) and penalties were sought against some of the other Defendants for $33,000 each.

98 These 4 actions came before Judge Balla in the District Court on Notices of Motion filed by the Defendants in each of the actions for the proceedings to be dismissed.

99 In the course of her judgment (Peter Alexander Gargan vCommonwealth of Australia and Others [2007] NSWDC 14), Judge Balla noted that a submission made by Mr Gargan relying on the International Covenant on Civil and Political Rights had been unsuccessfully made in the Supreme Court proceedings of Gargan v Magistrate Dillon & Anor [2005] NSWSC 1106. Her Honour held that there was no legal basis on which any of the Plaintiffs’ submissions could be successful. She held that the actions were doomed to fail and the hearing would involve an unjustifiable waste of court time and cost to the Defendants.

100 At the end of her judgment, her Honour said this:

[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] NSWSC 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.

(e) Gargan v Australian Government Solicitor:

101 On 7 February 2007 Mr Gargan commenced proceedings in the District Court against the Australian Government Solicitor and a number of individual solicitors who acted for the Defendants in the proceedings that were before Judge Balla on 9 February 2007. The usual allegations of conspiracy to pervert the course of justice seem to have been pleaded and contraventions of various sections of the Crimes Act (Cth) as well as the International Covenant on Civil and Political Rights were alleged. Mr Gargan claimed, as usual, to be entitled to a penalty for the criminal breaches amounting to half of the penalty sought.

102 Judge Gibson held that the proceedings were hopeless and should be dismissed, that the action was frivolous and

vexatious and that no reasonable cause of action was disclosed. She dismissed the proceedings and ordered the Plaintiffs to pay the Defendants’ costs.

(f) O’Bryan and Gargan v Levine :

103 Gabrielle Levine was the Sheriff for the State of Victoria. She attempted to enforce fines that had remained unpaid by Mr O’Bryan.

104 On 27 June 2007 Mr O’Bryan and Mr Gargan commenced proceedings against her asserting that the monies claimed were a tax that only the Commonwealth could levy pursuant to s 86 of the Constitution. Accordingly, the Sheriff was said to have committed an offence under s 43 of the Crimes Act (Cth) and the Plaintiffs claimed a penalty of $33,000 for every time she offended that section. As usual, there was resort to the International Covenant on Civil and Political Rights.

105 The Defendants filed a Notice of Motion to have the proceedings dismissed. On 27 September 2007 Judge Johnstone dismissed the proceedings and ordered the Plaintiffs to pay the Defendant’s costs on an indemnity basis. He also ordered that any proceedings by the Plaintiffs against Ms Levine were not to be recommenced without prior leave of the Court.

(g) Gargan v Flexible Packaging Pty Ltd and ors :

106 There were District Court proceedings brought by AC&M Prince Pty Ltd against Flexible Packaging Pty Ltd. Prince’s former solicitors, Slater & Gordon (the Third Defendant in these proceedings by Mr Gargan) issued a statutory demand for payment of legal fees in the amount of $48,000. In mid-June 2007 Prince commenced proceedings in the Federal Court in Melbourne to set aside the statutory demand. Those proceedings were dismissed in July 2007 as an abuse of process.

107 On 1 August 2007 Mr Gargan commenced proceedings in the District Court in Sydney naming amongst the Defendants Slater & Gordon and 2 individuals who appear to have been solicitors there. The Statement of Claim, like most of Mr Gargan’s pleadings, is very difficult to understand, but it appears that the basis of the claim was the issuing of the statutory demand by Slater & Gordon. In a manner that is not at all clear that was said to be, amongst other things, an offence against s 43 Crimes Act (Cth).

108 Whether because Mr Gargan recognised on this occasion that the proceedings were ridiculous or for some other reason, the parties agreed that the Plaintiff could file a Notice of Discontinuance with each party bearing their own costs of the proceedings. Mr Gargan also consented to an order that prevented him from commencing any further proceedings against any of the named Defendants as well as against Moray & Agnew and QBE Australia Ltd. Quite what the involvement was of Moray & Agnew and QBE does not appear.

Other recent proceedings – Supreme Court

109 On 13 March 2007 Mr Gargan commenced proceedings with David John Foster against the Australian Government Solicitor, a number of lawyers and a person described as Commissioner Robert Atkinson. The matter claimed restitution of monies arising out of many of the proceedings I have discussed earlier in this judgment and claimed a liquidated penalty of $1,372,000. As Mr Gargan does not appear to have paid any monies in relation to the earlier proceedings it is not clear how restitution was relevant.

110 In any event, the Defendants moved to have the proceedings dismissed. On 16 April 2007 Harrison J said that, doing the best he could with regard to the Statement of Claim, he found it difficult to come to the view that it disclosed any cause of action known to the law. He said that it was close to incomprehensible. In the circumstances he dismissed the proceedings and ordered the Plaintiffs to pay the Defendants’ costs.

Other proceedings – High Court

111 On 4 August 1997 Mr Gargan filed an application for an order nisi for a Writ of Certiorari in the High Court directed to a Stipendiary Magistrate of the Mareeba Magistrate’s Court. A Writ of Mandamus was also sought to direct the Magistrate to determine the questions of fact necessary for the committal to trial of Mr Gargan and Lance Kippen.

112 McHugh J directed that all further proceedings in the action be remitted to the Federal Court in Brisbane. Little else appears to be known about these proceedings. I do not take them into account in considering whether an order under the Act should be made.

113 On 25 May 2000 Mr Gargan filed an application for leave to issue process in the High Court relating to proceedings brought in the Queensland Supreme Court by the Queensland Crown Solicitor for a declaration that Mr Gargan was a vexatious litigant.

114 On 14 February 2002 Gleeson CJ dismissed the application. He said the Writ and the Statement of Claim disclosed no cause of action. The Writ was an abuse of the process of the Court. He said the Statement of Claim was based “upon an unexplained and unsubstantiated assertion that the Applicant is a de facto officer of the Commonwealth”.

115 On 10 July 2002 Mr Gargan commenced proceedings in the Maitland Local Court against Chief Justice Gleeson arising out of his Honour’s dismissal of the application for the Writ. The proceedings were dismissed by that Court on 28 August 2002 for want of jurisdiction.

Orders in other jurisdictions

116 On 22 May 2000 on application by the Crown Solicitor for Queensland, Holmes J in the Supreme Court of Queensland declared Mr Gargan to be a vexatious litigant pursuant to s 3(1) of the Vexatious Litigants Act 1981 (Qld). Section 3(1) provides as follows:

If the Supreme Court or a Judge thereof is satisfied that a person has frequently and without reasonable ground instituted vexatious legal proceedings or procured vexatious subpoena, summonses to a witness, warrants or process to be issued or that any other person acting in concert with such a person has without reasonable ground instituted vexatious legal proceedings or procured vexatious subpoena, summonses to a witness, warrants or process to be issued, the Supreme Court or such Judge may after hearing such person and, if the case require it, such other person, or giving him, her or them an opportunity of being heard, by its, his or her order, declare such person and such other person to be a vexatious litigant.

117 It is to be noted that the test under that section is similar but narrower than the test under the present legislation in New South Wales. The word “frequently” is employed but it must be established that the proceedings instituted have been “without reasonable ground”. That is but one of the bases under s 6 of the NSW Act.

118 In his judgment (Lohe v Gargan [2000] QSC 140), Holmes J explained and demonstrated how the proceedings instituted in Queensland and, to some extent in the Federal Court, could be traced back to a judgment given against Mr Gargan by Thomas J on 12 March 1993. Mr Gargan was ordered to pay some $60,000 in damages arising out of those proceedings and, when that money was not paid, it ultimately led to his first bankruptcy on 22 March 1993.

119 Holmes J noted that Mr Gargan had a grievance arising out of those proceedings which he had repeatedly sought to re-litigate. He then went on to say:

[56] Over time, the grievance has extended to incorporate other persons. Mr Gargan has summonsed members of the legal profession, accusing them of fraud and other misdeeds, apparently for no better reason than that they put a contrary case to his on the instructions of their clients. Many of the proceedings he has sought to mount have been, on their face, insupportable; because they involved non-existent causes of action (for example the action against the Commonwealth for appointment of the Official Trustee, brought on the new claim in no 4 of 1994); because he had no authority to proceed (as with the conspiracy charges brought under the Crimes Act 1914); or because he was proceeding in a court which had no jurisdiction to hear the matter (as with his repeated attempts since 1996 to have the Supreme Court deal with matters within the bankruptcy jurisdiction of the Federal Court). He has repeatedly put others to the expense of applying to strike out futile applications and actions with, of course, an associated cost to the public purse. It is not to the point that he believes there has been an injustice to him ( Jones v. Skyring (1992) 66 A.L.J.R. 810). The fact, as I find it, is that he has repeatedly launched vexatious proceedings without reasonable ground. The inescapable conclusion is that the application is properly brought and that the declaration ought to be made.

120 I have already drawn attention to the judgment of Perram J in Official Trustee in Bankruptcy v Gargan (No 2) wherein, on 23 April 2009, his Honour found Mr Gargan to be a vexatious litigant.

Were these vexatious proceedings?

121 As in the matter of Attorney General of NSW v Wilson [2010] NSWSC 1008 I have approached this matter with some care because no intelligible arguments were put to me by any person to contradict the Attorney General’s claims. Mr Gargan seemed unable to focus on the nature of the present proceedings despite my repeated attempts during the course of argument to remind him of what was being sought and the matters he needed to address to avoid an order being made.

122 I have examined all of the court processes filed by Mr Gargan in the proceedings that I have detailed above, and I have read the written submissions he presented in those matters. Even if I had not had the benefit of the various judgments to which I have referred, I would have had no doubt that in almost all of the cases Mr Gargan’s claims and applications were either an abuse of the process of the Court, were frivolous and vexatious, or disclosed no reasonable cause of action. The judgments given by the various judicial officers in those proceedings only confirm the views I hold. Most of the proceedings he commenced were attempts to re-litigate matters which had already been determined against him, and sometimes more than once. This was a matter pointed out by some of the Judges who dismissed particular claims he had brought.

123 Despite it being made very clear in the judgment of Adams J on 27 October 2003, and reiterated by Greg James J on 17 December 2003, Mr Gargan repeatedly purported to make claims based on an asserted right that he was entitled to prosecute Commonwealth crimes, to have penalties imposed and for him to receive a portion, generally half, of the penalty concerned. In some cases ridiculous amounts of money were claimed by way of penalty. Mr Gargan must have known that he had no right to make the claims on the basis he did and he must have known that there was no prospect of him being successful in obtaining any penalties let alone those that were assessed in the billions of dollars.

124 For someone who claims to have studied law for a year or more he appears to have a very limited understanding of jurisdictional matters. Commencing proceedings in the District Court of NSW, for example, against the Sheriff of Victoria for acts she did in Victoria, and commencing proceedings in the Maitland Local Court against the Chief Justice of Australia because of an order he made against Mr Gargan, were so self-evidently doomed to fail that they cause me to have doubts that Mr Gargan’s motives in commencing many of the proceedings were genuine or bona fide.

125 Proceedings instituted or conducted in a way to achieve a wrongful purpose fall within paras (b) and (d) of the definition of vexatious proceedings. It is not, however, necessary to come to a conclusion about Mr Gargan’s motives in that regard. It is sufficient to find, as I do, that with the exception of the 2 sets of proceedings I have noted that are not taken into account, all of the other proceedings were either an abuse of process of the Court or were instituted without reasonable ground or both.

Were they instituted or conducted frequently?

126 Between 2002 and the present time Mr Gargan has commenced at least 29 sets of proceedings in either this Court, the District Court, the Local Court, the Federal Court or the High Court which were commenced without reasonable ground or were an abuse of process or both. In addition, he has filed at least 8 applications in proceedings where similar relief was sought. For similar reasons to those that I gave in Wilson at [146], and relying on what Toohey J said in Jones v Cusack (1992) 66 ALJR 815 at 816, the proceedings Mr Gargan has instituted have been instituted “frequently”.

127 They additionally satisfy that term because almost all of them after the first and/or second of them have been attempts to re-litigate matters already determined against him, most particularly his claim to be a common informer, to have the right to prosecute and to claim half of any penalty imposed.

128 The requirement for the frequent institution of proceedings is satisfied.

Should an order be made?

129 Unlike the position discussed by Holmes J in Lohe v Gargan where a series of proceedings arose out of a genuine grievance, almost all of the proceedings under consideration in New South Wales have involved Mr Gargan wrongly interfering in litigation against other people or brought on their behalf by Mr Gargan. In none of the cases did Mr Gargan have a legal interest that justified his involvement. That matter, together with the fact that Mr Gargan was informed by the judgments of Adams J and Greg James J at an early stage that he had no right to be intervening in proceedings in the way he was doing, result in there being no justification for the proceedings instituted by Mr Gargan since that time. Nothing seems to dissuade him from continuing in the same fashion.

130 It seems to me relevant to have consideration of the matter that Mr Gargan is an undischarged bankrupt. He is in that position because of a costs order made against him in one set of proceedings. Although the sequestration order was made on 4 June 2004 Mr Gargan remains an undischarged bankrupt. The likelihood, therefore, of his being able to pay any costs orders ordered against him is remote.

131 Further, I asked Mr Gargan during the course of his address if he had paid any of the costs orders ordered against him. He said he had not because “the King and his Privy Council have no jurisdiction of any man’s estate, and because of that, a King's Privy cannot make a costs order against me. It is void, according to the Imperial Act. I have not had any money because nobody wants to pay.”

132 It is clear, therefore, that costs are no sanction to Mr Gargan commencing baseless proceedings. Even if he had the wherewithal to pay the costs orders, that would not, of itself, be sufficient for him to avoid a vexatious proceedings order if it was otherwise justified. However, his inability and/or refusal to pay costs orders is an added reason that a vexatious proceedings order should be made.

Conclusion

133 Accordingly, I make the following orders:

(1) Pursuant to s 8(7)(b) Vexatious Proceedings Act 2008 Peter Alexander Gargan is prohibited from instituting proceedings in New South Wales other than with leave of an appropriate court under that Act.

(2) Any legal proceedings instituted by Peter Alexander Gargan in any court or tribunal in New South Wales before the date of this order are hereby stayed.

(3) Order that Peter Alexander Gargan is not to be allowed to file and is hereby restrained from filing and also from serving any Notice of Motion in any proceedings currently before any court or tribunal in New South Wales, and is not to be allowed to make and is hereby restrained from making any oral application in such proceedings without the leave of a judge of an appropriate court under that Act.

(4) The Defendant is to pay the Plaintiff’s costs of the proceedings.

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