Deputy Commissioner of Taxation v Bonaccorso (No.3)
[2016] NSWSC 1018
•5 August 2016
|
New South Wales |
Case Name: | Deputy Commissioner of Taxation v Bonaccorso (No.3) |
Medium Neutral Citation: | [2016] NSWSC 1018 |
Hearing Date(s): | On the papers |
Date of Orders: | 5 August 2016 |
Decision Date: | 5 August 2016 |
Before: | Garling J |
Decision: | (1) The Defence filed by the defendant on 30 May 2016 is struck out. |
Catchwords: | PROCEDURE – civil – pleadings – application to strike out Defence – where Defence contains unintelligible and irrelevant allegations and fails to plead material facts – whether pleading is embarrassing – whether defendant should be given the opportunity to re-plead |
Legislation Cited: | Civil Procedure Act 2005 |
Cases Cited: | Banque Commerciale SA v Akhil Holdings Ltd [1990] HCA 11; (1990) 169 CLR 279 |
Texts Cited: | Not Applicable |
Category: | Consequential orders (other than Costs) |
Parties: | Deputy Commissioner of Taxation (P) |
Representation: | Solicitors: |
File Number(s): | 2014/52642 |
Publication Restriction: | Not Applicable |
JUDGMENT
On 19 February 2014, the plaintiff, the Deputy Commissioner of Taxation (“the Deputy Commissioner”) commenced proceedings against the defendant, Garry Bonaccorso, claiming a sum in excess of $1.5M, being income tax for the financial year ended 30 June 2008.
A Notice of Amended Assessment was issued on 12 May 2010 with respect to that income and it fell due on 4 June 2010. The sum claimed was the outstanding amount on the defendant’s running balance account under the relevant statutory provisions. The sum claimed included interest and administrative penalties.
Since that time, there has been a complex series of interlocutory steps. On 12 May 2016, for the reasons which were then published, Schmidt J granted leave to the defendant to file a further Defence within 21 days: see Deputy Commissioner of Taxation v Bonaccorso [2016] NSWSC 595. Her Honour’s comprehensive reasons sufficiently outlined the history of these proceedings. There is no need for me to repeat that material.
On 30 May 2016, the defendant filed a document entitled “Further Amended Defence to Amended Statement of Claim”.
On 16 June 2016, the plaintiff filed a Notice of Motion seeking the following orders:
“1. Pursuant to UCPR 14.28, the Further Amended Defence to Amended Statement of Claim filed in these proceedings on 30 May 2016, be struck out.
2. The defendant be refused leave to file any further Amended Defence to the Amended Statement of Claim.
3. The defendant pay the plaintiff’s costs.”
The matter came before the Court on 22 June 2016. The defendant did not appear. On that day, I made the following orders:
“1. Order that the plaintiff file and serve all submissions upon which it relies in writing on or before 4pm on 6 July 2016;
2. Order the defendant to file and serve all submissions upon which he wishes to rely in opposition to the Notice of Motion filed 16 June 2016 on or before 4pm 20 July 2016.
3. Order the plaintiff to file any submissions in response to the defendant’s submissions by 4pm 29 July 2016.
4. Order that the Notice of Motion filed 16 June 2016, be determined on the papers.
5. Direct the solicitor for the plaintiff to notify the defendant by 4pm 22 June 2016, by email, of these orders.”
This judgment deals with the Motion filed 16 June 2016.
Further Amended Defence
The Further Amended Defence consists of over 33 pages in total. It is plain that the defendant denies, on a very large number of bases, that there is any debt due by him to the Commonwealth of Australia, or that he is liable to make any payment to the Deputy Commissioner.
The defendant is self-represented and the Defence has been drafted by him without any legal assistance. In considering this motion, it is necessary to keep in mind that some latitude ought to be allowed to the defendant with respect to the pleading’s form and content.
It is appropriate, however, to set out in this judgment some parts of the Further Amended Defence so as to understand the plaintiff’s submissions in support of the orders sought in the Notice of Motion.
Before doing so, it is convenient to set out the summary of the pleading given by the Deputy Commissioner in its written submissions to the Court. The Deputy Commissioner submitted:
“18. The Defendant’s pleading is 33 pages long and comprised either of allegations which are either irrelevant or not capable of being material facts or other material which is completely irrelevant in nature, including numerous quotes from a number of irrelevant sources, including:
18.1. transcripts of proceedings between the parties in the Federal Circuit Court (page 8);
18.2. transcripts of proceedings in the High Court of Australia, in respect of which no judgment was given, and in respect [of] which the Defendant was not a party (page 12);
18.3. sections of the Crimes Act 1914 which have been repealed (page 14);
18.4. passages of the Bible (page 15);
18.5. “ancient legal latin maxims” (page 15);
18.6. the Encyclopaedia Britannica (page 25);
18.7. Oxford Reference, a Dictionary of Law (page 26);
18.8. The Magna Carta (page 27);
18.9. The “Confirmation of the Charters, 1297” (page 27);
18.10. “The Petition of Right, 1627” (page 27);
18.11. an anonymous source (page 30);
18.12. an “Essay on trial by Jury” by Lysander Spooner (page 31).”
In my view, this is an accurate summary of the defendant’s Defence.
It is now appropriate to set out here some of the contents of the pleading so that its general sense and nature can be readily comprehended. It includes the following material:
“3. As to parragraphs (11), (12), (13), (14), (15), (16) and (23) of the staement of Claim the defendant does not admit and denies any of the contents therein, and rebuts the Claim under these parragraphs as they have no substance or evidence to support the claim. The defendant relies on Common Law of the United Kingdom as Garry Bonaccorso is a subject of the Queen of the United Kingdom, Garry Bonaccorso is not an employee of the Australian Taxation Office and is not a citizen of the Queen of Australia and as such does not partake in the Fraud which is being thrust upon the subject Garry :Bonaccorso through the Commonwealth of Australia registered with the U. S. Securities Exchange Commission CIK# 0000805157. I make reference to Affidavit of Truth of Garry: Bonaccorso sent to the Australian Taxation office with the non-lodgement advice for 2008 – 2010 also 2011 – 2015 which there was aceptance of delivery and was returned certified mail on the 18 April 2016…
…
11. …
a. Collution between the Parties and an abuse of Process By the Commissioner against Mr Bonaccorso in Page 916 of the defendant Court book vol 3 submitted in court 29th April 2016, shows The Deputy Commissioner Michael O'Niell advising that the settlemet is designed to fence Bonaccorso of so that the ATO and the Commissioner can continue action against him which is and abuse of process and Misfeance in public office.page 917 of the defendant Court book vol 3 submitted in court 29th April 2016, shows The Deputy Commissioner Michael O'Niell advising Philip Grimaldi's solicitor that "He will talk to the Crimes Commission in a view to influencing them to withdraw their proceedings againnst all the parties save for Bonaccorso". this is a direct attack on the defendant and an attempt to pervert the cause of Justice. Also collusion to obtain an unjust enrichment. And against any charter of The ATO and civil rights.
…
c. In parragraph 10 of the statement of Claim Garry Bonaccorso has not conducted a business, nor does he have an ABN number and therefore does not fall under any BAS provision (business activity statement) as fraudulently alledged. The allegation is rebutted and therefore under common Law enphasis of proof is on the Commissioner. The defendent say as per page 953 and 954 that the Taxation Administration Act 1953 and the Income Tax assesment Act 1997 has not been Gazzeted and therefore has no Royal assent under section 58 of the Constitution. Notice to produce and the Subpoenas demanded by the defendent to produce certified proclamation documents for the Taxation Administration Act 1953 and the Income Tax assesment Act 1997 as well as all the amendments up the current day. Section 58 is the constitutional requirement for Royal assent which is what a proclamation is proof of.
Under common Law of the United kingdom, which a living man is only bound to Silence and Concealment is an admission of Guilt, By the Commissioner under Common Law.
The defendent presses and pleads and says that there is no profit involved whatsoever, in fact there can never be any profit as it is an equal exchange system. I give away $100 worth of energy, and I get $100 in return. It is a non profit situation.
The defendent presses and pleads and says that Garry Bonaccorso is a subject of the Queen of the United Kingdom. Garry Bonaccorso is not an employee of the Australian Taxation Office and is not a citizen of the Queen of Australia and as such does not partake in the Fraud which is being thrust upon the subject Garry :Bonaccorso through the Commonwealth of Australia registered with the U. S. Securities Exchange Commission CIK# 0000805157. Ref document Page 1239 of the defendant Court book vol 3 filed in court 29"* April 2016
…
Therefore, since I am not making any profits, not agreeable to be transformed into a legal entity, and not wanting to do busines under false contract without consent, with the Australian Taxation office or Commonwealth of Australia. There is no jurisdiction under Common law to force a living man into a fraudulent contract throught deception and concealment. Which is illegal under the Bill of Rights. And an offence of misleading and deseptive conduct under the Trades Practices Act 1974. Sect 52, Misleading or deceptive conduct.
…
18. The Defendant believes and says that and pleads and presses That the alleged Deputy commissioner produce :
Deputy Commissioner of Taxation to produce Certified Copies of Proclamation Certificate clearly showing the appointment of the Federal Commissioner of Taxation and the Deputy Commissioner of Taxation as acclaimed by" The Parliament" or" The Parliament of the Commonwealth
The defendant relies on section 24,(2) and 68 of the Crimes Act 1914. (
"Any person who, without lawful Authority (proof whereof shall lie upon Him).
and with intent to deceive, makes any mark resembling, or apparently intended to resemble or pass for, any authorized official stamp or mark of any department of the Commonwealth or any of its public authority under the Commonwealth, shall be guilty of an offence")
Ref Page 971-974 of the defendant Court book vol 3 filed in court 29th April 2016
19. The Defendant believes and says that and pleads and presses That the Deputy commissioner produce :
Deputy Commissioner of Taxation to produce Certified Copies of Proclamation Certificate clearly showing the date which the Act the Deputy Commissioner of Taxation is relying on came into operation as well as a Proclamation Certificate for any amendments to the ACT which were certified by the Commonwealth.
under section 24,(2) and 68 of the Crimes Act 1914. ("Any person who, without lawful Authority (proof whereof shall lie upon Him). and with intent to deceive, makes any mark resembling, or apparently intended to resemble or pass for, any authorized official stamp or mark of any department of the Commonwealth or any of its public authority under the Commonwealth, shall be guilty of an offence")
20. …
The Parliament of Australia is not the Legislative power according to section 1 of the Commonwealth Constitution and as such cannot bring about any legislation affecting the living Man
Garry of the Bonaccorso family is a living being that belongs to God NOT the State.
"Render to Caesar what is Caesars and to God what is Gods" (Mathew 22.21) Jeasus Died on the Cross for our sins and we are free on earth and not bound by any restraints or form as slaves under a defacto Government or State-Under fraudulent concealment.
DE JURE SOLUM ET NATURALE
Ancient Latin legal maxim literally meaning "concerning (the) law of (the) land and nature". Sometimes quoted in abbreviated form de jure soli. In COMMON LAW
I Garry of the Bonaccorso family have recently learned that with the status of being a free liability free will man, and with no intentions or knowledge of being any form or type of incorporated entity or of being commercial "also known as" or of my being ward of the Crown am NOT a "person" limited liability legal fiction.
I therefore believe I am not a "legal entity" known as a 'taxpayer' subject to income Tax Act of Australia.
Further, I have learned that I have been defrauded by the Crown
(Commonwealth of Australia) and deceptively induced by the propaganda of the Australian Taxation office (ATO), into making a presumed contract of incorporation.
This takes the form of a presumed contract with the Crown by status changed to a legal fiction called a "person" by my having filed a return of income.
The presumption being that my status as a flesh and blood man was changed into a "person resident in Australia" and a "taxpayer"; and therefore supposedly making me subject to income tax by that assumed contract.
This act by the Crown [the alleged Federal Government of Australia] is believed by me to be a violation of contract law and is a trespass upon my life and my property.
As the injured party, I hereby revoke and void any such supposed or assumed contract, past, present and future; and, hereby declare my sovereign status as a flesh and blood full liability free will man with absolute rights under Anglo-Saxon Common Law.
I hereby make claim upon any item of value in commerce collected, banked, or invested by Garry Bonaccorso, (TFN 256319763 ) as agent in commerce resulting from the exchange of my labour and/or skills with any party.
As GARRY BONACCORSO is a created fiction, I hereby disclaim any responsibility for any debts of GARRY BONACCORSO (and any numerical representation of it as assigned by the ATO e.g.: ABN, TFN), incurred as debts owed to the Crown.
…
21. The Defendant believes and says that and pleads and presses
That anyone who was involved in the legislation or prosecution of the Living free spirited "Man" must show that they have NO allegiance to the POPE or any of his princes as per the Bill of Rights 1688-69 and that comes in under section 51(xxv) and section 118 of the Commonwealth Constitution as it is an inherited laws of England and beyond any legislator to amend or repeal.
The defendant seek from the court a declaration from the applicant for such undertakings.
…
28. The Defendant believes and says that and pleads and presses the following.
Seeks to challenge the Jurisdiction of the court including Judges:
This Challenge to the Jurisdiction of the Court is made on all grounds, including Subject Matter, Relationship and Competency.
In any action, both parties must give their clear and unequivocal consent to be without a Jury. Without that consent, the Court has no Jurisdiction to proceed summarily and the Jurisdiction of the Court must be challenged. This Challenge can only be judged by a Special Jury. Should a Judge or Magistrate disregard or dismiss this Challenge, then he or she is liable to imprisonment for 5 years. Should a Judge or Magistrate disregard or dismiss this Challenge, that is a violation of Due Process and the Rule of English Common Law.
Due Process is a course of legal proceedings according to rules and principles that have been established in a system for jurisprudence for the enforcement and protection of private rights. Due Process derives from early English Common Law. The first concrete expression of the Due Process idea embraced by Anglo-American law appeared in the 39th Article of Magna Carta 1215. (Encyc. Brit.)
"Once jurisdiction is challenged, it must be proven." (Jagens v. Lavine, 415 S. Ct. 768). "Jurisdiction can be challenged at any time, even on final determination." {Basso v. Utah Power & Light Co., 495 2nd 906 at 910). "Where there is an absence of jurisdiction, all administrative and judicial proceedings are a nullity and confer no right, offer no protection, and afford no justification, and may be rejected upon direct collateral attack." {Thompson v. Tolmie, 2 Pet. 157, 7L.Ed. 382; Griffith v. Frazier, 8 Cr. 9, 3L. Ed. 471).
I do not consent to be without a Jury. The Court has not obtained my consent to be without a Jury which is clear and unequivocal. I have not signed a Memorandum of Consent to be without a Jury and allow this Court to proceed summarily.
I am a flesh and blood human being and "have liberty in Christ Jesus" (Galatians 2:4).
The Right to Trial by Jury is an inalienable Right of all Freemen (Part 1 -Constitutional Enactments listed in the NSW Imperial Acts Application Act 1969 No. 30, Second Schedule).
It is the Rule of Law that is (1.) The supremacy of law. and (2) a feature attributed to the UK constitation by Professor Dicey {Law of the Constitution, 1885). It embodied three concepts: the absolute predominance of regular law, so that the government has no arbitrary authority over the citizen; the equal subjection of all (including officials) to the ordinary law administered by the ordinary courts; and the fact that the citizen's personal freedoms are formulated and protected by the ordinary law rather than by abstract constitutional declarations.(Oxford Reference, A Dictionary of Law, Oxford University Press)
I am not a bonded slave and not a legal fiction.
Garry Bonaccorso is a subject of the queen of the united kingdom, the equal of any other living man, and have the Right to the lawful Judgment of a congregation of twelve other Freemen gathered together as a Jury, with each Juror asking "So help me God", in order that they can administer Justice.
I am a sovereign human being created by God.
A Legal Maxim says, "Rights never die".
The words of the Royal Coat of Arms say, "Honi soit qui mal y pense" and "Dieu et mon droit".
I am of the People and Australia is a Democracy, which translates from the Greek to "People Rule". We the People exercise our Sovereignty, ie: our ultimate authority to make and impose laws, through the unanimous Judgments from Trials by Juries. These Judgments are the Common Law.
"Common law doth control Acts of Parliament and adjudge them when against common right to be void" (Lord Edward Coke).
No Act of Parliament can take away my Right to Trial by Jury.
No "evil counsellors, judges and ministers" can be allowed to subvert and/or extirpate the laws and liberties of the People (see: Bill of Rights 1688).
To deny Trial by Jury is to deny Democracy and to deny Democracy is
Treason, ie: a violation of allegiance.
MAGNA CARTA 1215, CAP XXXIX: "No freeman shall be taken indeed imprisoned, either dispossessed, or outlawed, or exiled, or in any manner destroyed, nor pass over him, nor send over him, except by means of the legal judgment of his own equals indeed the law of the land. To no one will we sell, to no one will we deny or delay, Right or Justice.".
The CONFIRMATION OF THE CHARTERS, 1297 says: "...that the Great Charters of Liberties and the Charter of the Forest, which were made by common assent of all the realm, in the time of King Henry our father, shall be kept in every point without breach.. ..we have granted that they shall be observed in all points, and that our justices, sheriffs, mayors, and other officials which under us have to administer the laws of our land, shall allow the said charters in pleas before them and in judgments in all their points.. ..And we will that if any judgment be given from henceforth, contrary to the points of the charters aforesaid, by the justices or by any other ministers that hold plea before them against the points of the charters, it shall be undone and holden for naught"
The PETITION OF RIGHT, 1627 says: in section 3. "And where also by the statute called, The Great Charter of the Liberties of England, it is declared and enacted, That no freeman may be taken or imprisoned, or be desseised of his freehold or liberties or his free customs, or to be outlawed or exiled, or in manner destroyed, but by the lawful judgment of his peers, or by the law of the land.1" and in section 8. uThat the awards, doings and proceedings, to the prejudice of your people in any of the premises, shall not be drawn hereafter into consequence or example”
The SUPREME COURT PROCEDURE ACT No. 49,1900 says under section 3. "(1) In any action by consent of both parties the whole or any one or more of the issues of fact in question may be tried, or the amount of any damages or compensation may be assessed by a Judge without a jury".
The COMMON LAW PROCEDURE ACT No: 21,1899 are relevant to the conduct of proceedings in this or any matter before the Supreme Court of New South Wales: "s.256. Upon the hearing of any motion or summons, the Court or Judge may, upon such terms as the Court of Judge thinks reasonable, order any document to be produced, and any witness to appear and be examined viva voce, either before the Court or a Judge or before a commissioner for affidavits; and upon hearing such evidence or reading the deposition may make such rule or order as may be just".
and
"s.257. (1) The Court or Judge may by such rule or order, or by any subsequent rule or order, command the attendance of the witnesses named therein for the purpose of being examined or the production of any document mentioned therein ".
and
"s.259. The Court or judge may amend any notice of motion, rule nisi, writ, pleading, affidavit, jurat or tide of affidavit, record, praecipe, or other proceeding used before the Court or Judge not likely to mislead the opposite party on any point essential to the merits of the case, and may award such reasonable costs of such amendment as to the Court or Judge seem fit."
The INTERPRETATION ACT No. 15,1987 says under section 30. "(1) The amendment or repeal of an Act or statutory rule does not: ...(c) affect any right, privilege, obligation or liability acquired, accrued or incurred under the Act or statutory rule".
Every person is entitled to NATURAL JUSTICE which is described as the "Rules of fair play, originally developed by the court of equity to control the decisions of inferior courts and then gradually extended (particularly in the 20th century) to apply equally to the decisions of administrative and domestic tribunals and any authority exercising an administrative power that affects a person's status, rights and liabilities. Any decision reached in contravention of natural justice is void as ultra vires. There are 2 principal rules: (1) The first is the rule against bias (ie: against departure from the standard of even-handed justice required of those who occupy judicial office) - nemo judex in causa sua (or in propria causa). This means that any decision, however fair it may seem, is invalid if made by a person with any financial or other interest in the outcome or any known bias that might have affected his impartiality. The second rule is known as audi alteram partem (hear the other side). It states that a decision cannot stand unless the person directiy affected by it was given a fair opportunity both to state his case and to know and answer the other side's case.".(Oxford Reference A Dictionary of Law, Oxford University Press, Third Edition).
HALSBURY'S LAWS OF AUSTRALIA says under (130-13460): "Consent to summary jurisdiction The consent to be tried summarily must be clear and unequivocal and a failure to carry out the procedures for obtaining the consent will deprive the court of jurisdiction to determine the matters summarily.”
No Statutory Laws nor Rules nor Regulations can take away my Right to Trial by Jury.
Lord Edward Coke once said, "Common law doth control Acts of Parliament and adjudges them when against common right to be void.".
Common Law is the Law of the People, by the People and for the People.
Acts of Parliament (ie: mere Statute Law) endeavouring to take away the Right to trial by Jury are ultra vires.
People are not subject to Statute Law, which is inferior to Common Law, and are only accountable to Common Law that is made and imposed by their I equals, ie: accountable only to Juries.
It is the duty of a Sheriff "to ensure that people can exercise their rights in court in safety". Sheriffs who enforce the denial of the Right to Trial by Jury are as culpable as the Judge or Magistrate committing that treasonous offence.
"A man who exercises his rights harms no one"... a Legal Maxim.
"Trial by Jury is the Palladium of Liberty" (anon).
The denial of my Right to Trial by Jury is sinister, vile and reprehensible.
All Acts of Parliament in Australia since 1919, with the signing of the Treaty of Versailles, have not been lawfully enacted due to the fact that there have been no Orders in the Privy Council, ie: the Queen-in-Council, for the Appointments of any Vice Regal executive representatives of the Crown of the United Kingdom to grant the "Royal Assent" to enact Statute Laws, which was the procedure when the Commonwealth of Australia was "under the Crown of the United Kingdom" as per the Act of the UK Parliament to Constitute the Commonwealth of Australia (Victoria 63 & 64, Chapter 12, 9th July 1900). It follows that all the Appointments of Judges and Magistrates are also fraudulent.
"A Judge without jurisdiction is to be disobeyed with impunity"... a Legal Maxim.
Australia is a Democracy which literally means that the PEOPLE RULE, ie: Sovereignty lies with the People who exercise that "ultimate authority to make and impose laws" by way of the unanimous Judgments of 12 Free Men empanelled as Jurors who ask, :"So help me God", in order that they can administer Justice
I, therefore, Challenge the Jurisdiction of the Court. This Challenge can only be determined by a Special Jury.
All law hangs on loving God and loving one's neighbour as oneself (Matthew 22: 40) and legislation which endeavours to take away the Rights of the People are no law, at all.” (sic)
Applicable Principles
Pleadings are fundamentally important because they assist courts in achieving the overriding purpose of facilitating the just, quick and cheap resolution of the real issues in the proceedings: s 56 Civil Procedure Act 2005; McGuirk v The University of NSW [2009] NSWSC 1424 at [24] per Johnson J.
From the perspective of the parties, pleadings serve to define the issues between them and provide the basis upon which evidence may be gathered by the parties. Such evidence may then be ruled admissible or inadmissible at trial on the basis of its relevance to the pleaded issues: Banque Commerciale SA v Akhil Holdings Ltd [1990] HCA 11; (1990) 169 CLR 279 at 286, 296, 302-3; Dare v Pulham [1982] HCA 70; (1982) 148 CLR 658 at 664.
Not only does the pleading inform the opposing party of the case which is to be made against it and therefore the case which it has to meet, but a pleading must also set out the material facts upon which a party relies to make good its claim. Those facts must be set out with sufficient particularity to enable a fair trial to be conducted: see Kirby v Sanderson Motors Pty Ltd [2002] NSWCA 44; (2001) 54 NSWLR 135 at 142-143; Gunns Ltd v Meagher [2005] VSC 251 at [14].
A pleading is embarrassing if it does not adhere to the principles which I have just articulated, and where it is “unintelligible, ambiguous, vague or too general”: Gunns Ltd at [14].
As Ward J (as her Honour then was) said in Szanto v Bainton [2011] NSWSC 985 at [107]:
“Thus a pleading is embarrassing if it is unintelligible, ambiguous, or so imprecise in its identification of material factual allegations as to deprive the opposing party of proper notice of the real substance of the claim or defence … or it if contains inconsistent, confusing or irrelevant allegations …”
Discernment
The Defence raises a number of “constitutional issues” which are not intelligibly set out. On the one hand it appears that the defendant challenges the capacity of the Federal Parliament, although created under the Constitution, to validly enact legislation. If that is what the defendant is asserting, then such an assertion is obviously untenable and ought to be struck out.
Similarly, the pleading that, in a case such as this, Mr Bonaccorso is entitled to a trial by jury is just nonsense. He has no such right. Such an assertion is wholly untenable and ought to be struck out.
There are very few material facts pleaded by the defendant upon which the Court could determine that he has any valid defence to the claim of the Deputy Commissioner. In paragraph 26 of the Defence, the defendant makes a claim for damages. He is not entitled so to do in a defence. In paragraphs 17, 19 and 20, he makes a claim for some orders under the Crimes Act 1914 (Cth). Again, given that these are civil proceedings for the recovery of a debt, a claim for orders under the Crimes Act is obviously irrelevant, and the inclusion in a defence of such claims is plainly embarrassing within the meaning of the Uniform Civil Procedure Rules 2005 (“UCPR”).
The Deputy Commissioner submits that this pleading has significant similarities with the previous version of the Defence, which was struck out by the Court on 12 May 2016. The Deputy Commissioner points to the fact that Schmidt J concluded, by way of an example, that a claim for an order for the assessment of damages in favour of the defendant could not be entertained by the Court in the manner in which it had been raised. Yet, the latest version of the Defence seems largely to advance a similar claim. This claim should be accepted.
It is entirely possible that some words, lines or parts of a paragraph in the Defence which I am considering could, standing alone, be said to be properly pleaded. The difficulty for Mr Bonaccorso, however, is that those allegations do not stand alone, and are inextricably mixed with irrelevant material in the context of a pleading which is itself embarrassing. This pleading could not be cured by striking out a few words, or a few lines, or perhaps a small number of whole paragraphs. It is not possible for the Court to edit the pleading in that way.
I am abundantly satisfied that the Defence complies neither with the requirements of the UCPR, nor with the principles of pleading to which I have earlier referred. It is unintelligible and embarrassing.
As well, the pleading does not disclose any reasonable defence and has a clear tendency to cause delay in the proceedings. Viewed as a whole, and having regard to the substance of what is alleged, given what was said in the judgment of Schmidt J just a few months ago, I have also concluded that the pleading is an abuse of the process of the Court.
The only available conclusion is that the Defence must be struck out. The first order sought in the Notice of Motion must be granted.
Re-pleading
The Deputy Commissioner submits that the Court should order that the defendant not be granted leave to file a further amended pleading.
Schmidt J, in [75]-[76] of her judgment, articulated in general terms a possible available defence for the defendant and referred to facts which, if proved, could make out such a defence. There is nothing in the defendant’s current pleading which addresses that defence. However, there is every reason to think that a defence which is reasonably arguable could be drafted by the defendant if he were to pay attention to the UCPR requirements, the authorities which have been articulated in this case, and the terms of the judgment of Schmidt J.
In those circumstances, and notwithstanding that the defendant has now had four attempts at pleading a valid defence, it would not be right to forever bar the defendant from defending these proceedings with a properly formulated and pleaded defence.
However, it would not be fair to the Deputy Commissioner simply to allow the defendant to draft another pleading of the same form and content as the pleading dealt with in this judgment. That would neither reflect the overriding purpose in s 56 of the Civil Procedure Act, nor reduce the costs incurred by the Deputy Commissioner in forcing him to file a Motion seeking to strike out the defence.
The appropriate approach is to order that if the defendant wishes to defend these proceedings, then he ought to do so by filing a Notice of Motion seeking leave to file a proper pleading. Such a Notice of Motion ought, in the first instance, to be dealt with on the papers. That would have the effect of minimising the costs incurred by the Deputy Commissioner.
Whether or not the defendant chooses to comply with the orders formulated to give effect to the conclusion just reached, I will make an order that the proceedings be listed before the Registrar, at an appropriate time, so that regardless of the defendant’s compliance, it would be open to the Deputy Commissioner to seek to have the matter finally disposed of.
Orders
I make the following orders:
(1)The Defence filed by the defendant on 30 May 2016, is struck out.
(2)If the defendant wishes to file any further Defence in these proceedings, then he must first seek leave to do so by filing and serving a Notice of Motion and affidavit in support, which includes the proposed Defence.
(3)Together with the Notice of Motion and affidavit, the defendant is to file and serve written submissions, no more than 10 pages in length, setting out the basis upon which the Court ought grant leave to file the Notice of Motion.
(4)Within 7 days after service of the Notice of Motion upon the plaintiff, the plaintiff is to file and serve any written submissions in opposition to the leave being sought.
(5)The Notice of Motion will, unless otherwise ordered by a Judge of the Court, be dealt with on the papers.
(6)The costs of the Notice of Motion dated 16 June 2016 filed by the plaintiff are to be paid by the defendant.
(7)The proceedings are fixed for further directions before the Registrar of the Common Law Division on Monday 5 September 2016 at 9am.
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