Gargan and Federal Court of Australia

[2009] AATA 135

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 135

ADMINISTRATIVE APPEALS TRIBUNAL      )

)           No 2009/0013

GENERAL ADMINISTRATIVE DIVISION		)
Re		PETER GARGAN

Applicant

And FEDERAL COURT OF AUSTRALIA

Respondent

DECISION

Tribunal Mr Julian Block, Deputy President

Date5 March 2009

PlaceSydney

Decision The application for an extension of time is refused.

.................[sgd].............................

Mr Julian Block
  Deputy President

CATCHWORDS

PRACTICE AND PROCEDURE – application for an extension of time – application seeks review of a judgment of the Federal Court – powers and functions of this Tribunal – no jurisdiction – extension application refused

Administrative Appeals Tribunal Act 1975 – sections 25, 29(7)

REASONS FOR DECISION

5 March 2009 Mr Julian Block, Deputy President            

1. On 5 January 2009 the Applicant, pursuant to section 29(7) of the Administrative Appeals Tribunal Act 1975 (“the AAT Act”), lodged an application (“the extension application”) for an extension of time within which to seek the review of a judgment (incorrectly described by the Applicant in the extension application as an “administrative decision”) made by His Honour Justice Nye Perram, a judge of the Federal Court of Australia (“the Court”), on 29 October 2008.

2.       The Tribunal had before it (inter alia) the extension application and in addition a copy of the judgment referred to in clause 1 (and referred to in these reasons as “the judgment”); the judgment, is cited as Gargan v Kippin Investments Pty Ltd [2008] FCA 1718; the Tribunal also had before it certain relevant correspondence between the Tribunal and the Applicant.

3.       The judgment indicates that on 29 October 2008, and in case NSD 932 of 2008, and in a matter in which the Applicant was the applicant and Kippin Investments Pty Ltd and the Official Trustee in Bankruptcy were the first and second respondents respectively, His Honour Justice Perram gave judgment and pursuant to which he made orders as follows:

1.Judgment be entered in favour of the first and second respondents pursuant to s 31A(2) of the Federal Court of Australia Act 1976 (Cth).

2.The applicant pay the costs of the first and second respondents on an indemnity basis.

3.Leave is granted to the parties to approach his Honour’s Associate for a date for directions in relation to the cross-claim.

4.The parties have liberty to apply on three days’ notice.

4.       It will be noted that (as set out previously) the Applicant in his extension application referred to the judgment as an administrative decision; that description was incorrect in that the Applicant was in fact referring to a judgment of the Court.

5.       In clause 4 of the extension application the Applicant gave reasons for his application for an extension of time in the following terms:

I was unaware at the time the decision was made of the power and scope of the Administrative Appeals Tribunal, or I would have availed myself of the rights contained in the Act, within 28 days. The decision of Justice Nye Perram, is administrative in nature, under an enactment, because he chose to sit without a jury, and offered no choice. He had the choice of convening the court, in accordance with the Constitution, The Trade Practices Act 1974, Section 40 and 42 Federal Court of Australia Act 1976, and S 30 (3) Bankruptcy Act 1966 but chose instead to disregard these provisions in order to grant a corrupting benefit, prohibited since 2001, by Section 142.2 Criminal Code Act 1995 (Cth) to another Commonwealth Public Official, and its own corruptor.

Justice Nye Perrem, selectively accepts a decision of a full court is binding upon him, yet refuses to accept that S 5 Commonwealth of Australia Constitution Act 1900 also binds him with superior authority to the decisions of three of his fellow Justices, and his reliance on Heinrich v Commonwealth Bank of Australia [2003) FCAFC 315 is challenged. The Labor Government that enacted the Commonwealth Administrative Appeals Tribunal Act 1975, must have been prescient, and foreseen that the Liberal government, when it achieved Commonwealth power, would follow the State Liberal Government in New South Wales, and erect administrative Courts, staffed exclusively by lawyers, for the benefit of big business.

The entire history of this case is attainted with fraud by a bigger business.

1.It is fraud for a Justice, to take an Oath of allegiance to Her Majesty Elizabeth the Second and refuse to accept that She is the source of the Judicial power of the Commonwealth, not the Parliament of the Commonwealth, and it is Her authority, exercised on behalf of Almighty God which governs the conduct of a "court".

2.It is fraud for a company to take land with a written promise of a retained interest as Sam Industries Pty Ltd did, from the applicant and transfer it to a fiduciary, Kippin Investments Pty Ltd, with the intention of defeating the interest of a bankrupt estate in that property valued in 1990, at $3,000,000 (Three Million dollars.)

3.It is Fraud for the Commonwealth to permit a Commonwealth authority to fail to do its public duty and recover that property for the estate.

4.It is Fraud upon the Constitution to vest the Judicial power of the Commonwealth in a "Court" comprised of a single person, when S 79 Constitution requires more than one judge.

5.It is Fraud for the Parliament of the Commonwealth to appoint and call anyone a Judge, when the word Judge was not contemplated as a word when the Constitution was enacted.

6.It is Fraud, to fail to give a person a choice of mode of trial, when the Federal Court of Australia Act 1976 and S 30 (3) Bankruptcy Act 1966 clearly intended to offer one, and is obliged to do so by the Victorian Imperial Acts Application Act 1980 S 8, Statute of Westminster 1275.

7.It is fraud to fail to consider fairly the submissions made to Justice Nye Perrem and to arbitrarily dismiss as binding, the provisions of the International Covenant on Civil and Political Rights which may be found in Sch 2 to the Human Rights and Equal Opportunity Commission Act 1986 , and other binding Statutes, cited to him.

8.It is fraud to fail to accept the provisions of S 4A Crimes Act 1914 (Cth) as defining what an indictment is, and failing to treat this proceeding as an indictment.

9.It is fraud, to rely on an enactment of the Parliament of the Commonwealth to defeat the provisions of the Commonwealth of Australia Constitution Act 1900, when the Parliament of the Commonwealth is only entitled to make laws subject to the Constitution.

10.It is Fraud for an individual to elevate himself to the Office of Sovereign, disregard the Statutes that bind the Sovereign, and to proceed to follow the same course as has been followed by his fellow Commonwealth Public Officials since 1976.

11.It is fraud to hold valid, what the Habeas Corpus Act 1640 holds void, and fail to accept that S 118 Constitution incorporated that Act as an intrinsic part of the Constitution.

12.The use by Justice Nye Perrem of Federal Court Rules O 11 R 16 and O 20 R 5, to avoid having to look into the above cited frauds, is a fraud upon the Constitution itself, because his fellow Judges, by making Rules, that allow them to be the laziest magistrates in Australia, on a salary of $6,000 a week, and the Parliament of the Commonwealth by Making Rules of Court, as enactments that entirely frustrate the very nature of the Judicial power of the Commonwealth in S 31A and S 39 Federal Court of Australia Act 1976 and contradict S 45 Trade Practices Act 1974 by excluding people from access to a properly constituted court, is unconscionable.

13.As an administrative officer, a Justice is charged with administering a "court", and is totally disentitled to avoid the separation of powers, incorporated into the Commonwealth of Australia Constitution Act 1900, which by reference to the Imperial Acts, so called because Almighty God is Emperor, incorporates the Rules of the New Testament, which contain the separation of powers, into the said Constitution.

14.For forty years, the State of New South Wales has had no Supreme Court as a fit and proper place, to receive the Judicial power of the Commonwealth because a gangster, one Abraham Gilbert Saffron, wanted protection from the Judicial power of the Commonwealth, and is alleged to have paid $5,000 a week to each of the Police Commissioner, and Premier, to have the Supreme Court Act 1970, enacted to neuter the Supreme Court.

15.Justice Nye Perrem considered the decision establishing the "Kable principle" but has frivolously and vexatiously refused to go into the decision in depth, and refused to accept that in 1996, the High Court held that the State of New South Wales was not entitled to legislate to enact the Supreme Court Act 1970.

15.The same Bribery and corruption is evident in Order 46 Rule 7A Federal Court Rules where a rule made under an enactment, has frustrated every effort the applicant has made in sixteen years, to get the Judicial power of the Commonwealth to control the Commonwealth public service, which would rather spend money on lawyers, than obey the law.

16.Paul Keating's government enacted a whole raft of legislation, to reform Australia's legal system, but S 39 Federal Court of Australia Act 1976 and Order 46 rule 7A Federal Court Rules has totally frustrated the reforms made, and reduced the Parliament of the Commonwealth to a well paid debating society.

And the Administrative Appeals Tribunal, a legitimate institution to give a cheap and inexpensive method of taking advantage of S 2 Judiciary Act 1903, where proper procedures have not been followed, by accepting and considering an application for a new trial, and an application to call in question the jurisdiction of a Court or Judge, (both deliberately capitalised) is the right and _'proper place and way for this matter to dealt with.”

6.       Having received the extension application the Tribunal, on 5 January 2009 wrote to the Applicant in respect of his application; the first three paragraphs of that letter read as follows:

The Administrative Appeals Tribunal (AAT) has received your application for review of the decision made by Justice Nye Perram representing the Federal Court Judges.

The AAT has the power to review a range of decision made by Ministers, officers, authorities and other tribunals. However, the AAT can only review a decision if an Act, regulation or other enactment states that the AAT can review the decision. There does not seem to be any section in the Administrative Appeals Tribunal Act of 1975 that gives the AAT power to review the decision referred to in your application.

Before the AAT can begin its review you will need to show that the AAT has the power to review the decision.  Please contact the AAT within 14 days after receiving this letter and tell us why you think the AAT has the power to review the decision.

7.       In respect of and in response to the Tribunal's request for reasons why the Applicant contends that the Tribunal has powers of review in respect of the judgment the Applicant responded by letter dated 16 January 2009 reading as follows:

When I examined the Administrative Appeals Tribunal legislation, I formed the opinion that the authorization to review administrative actions was at large, under the Judicial Power of the Commonwealth and provided the decision was made under an enactment, it was an administrative act and subject to review by the Tribunal. I have extracted the relevant parts below and they form part of this letter.

Ministers, officers authorities and other tribunals are all caught by the ADMINISTRATIVE APPEALS TRIBUNAL ACT 1975 when they act under an "enactment", and unless the professor at the law school was misleading and deceiving his students, that word should be given the plain meaning attributed to it in the Act. The Federal Court of Australia Act1976 is an enactment and gives a Judge a choice. He can be a Court or a Judge, or an administrative officer by reference to s 39 Federal Court of Australia Act 1976. If he or she is a Court or a Judge, then the decision is under an enactment and you have power to review it and substitute your decision. The judge when sitting without a jury is a straight Administrative officer, subject to all the foibles of any administrative officer, and not infallible. The purpose and object of the ADMINISTRATIVE APPEALS TRIBUNAL ACT 1975 was to enable review of administrative decisions, and by reference to section 15 AA Acts Interpretation Act 1901 ( Cth) it would appear you have no option but to hear the appeal. So long as facts are not found by a jury, in a judicial proceeding, your jurisdiction is unlimited.

The choice given by Sections 40 and 41 Federal Court of Australia Act 1976 to a Justice, is to become a Judicial Officer and preside over a jury trial, paid for by the Commonwealth or to remain as an administrative officer and hope he or she interprets the legislation brought before the Court correctly, so it is accepted as correct by all parties. I say that S 2 Judiciary Act 1903 when interpreted under the same rules, because it uses the words any Court or Judge, capitalized, gives the Administrative Appeals Tribunal jurisdiction, to review administrative decisions, even when made in a Court or a Judge proceeding. In the Federal Court of Australia Act 1976 S 4 Interpretation: "the expression Court or a Judge means a Judge sitting in Chambers. Chambers is administrative, "court" is judicial. By S 79 Constitution a "court" must have "judges" plural, to exercise the Judicial Power of the Commonwealth. Otherwise you have review powers.

Please list this matter so that the reforms introduced in 1975 can at last have their full effect.

8. Section 25 of the AAT Act (but confined to subsections (1) to (4)) reads as follows:

25  Tribunal may review certain decisions

Enactment may provide for applications for review of decisions

(1)  An enactment may provide that applications may be made to the Tribunal:

(a)for review of decisions made in the exercise of powers conferred by that enactment; or

(b)for the review of decisions made in the exercise of powers conferred, or that may be conferred, by another enactment having effect under that enactment.

(3)  Where an enactment makes provision in accordance with subsection (1), that enactment:

(a)  shall specify the person or persons to whose decisions the provision applies;

(b)  may be expressed to apply to all decisions of a person, or to a class of such decisions; and

(c)  may specify conditions subject to which applications may be made.

Delegations, acting appointments and authorisations

(3A)  Where an enactment makes provision in accordance with this section for the making of applications to the Tribunal for the review of decisions of a person made in the exercise of a power conferred on that person, that provision of that enactment applies also in relation to decisions made in the exercise of that power:

(a)  by any person to whom that power has been delegated;

(b)  in the case where the provision specifies the person by reference to his or her being the holder of a particular office or appointment—by any person for the time being acting in, or performing any of the duties of, that office or appointment; or

(c)  by any other person lawfully authorized to exercise that power.

Tribunal’s power to review decisions

(4)  The Tribunal has power to review any decision in respect of which application is made to it under any enactment.

9. It is of fundamental importance that the Tribunal is a creature of statute, and in particular that it is an administrative tribunal (and not a court of law) established under the AAT Act. It has the powers, duties and functions set out in the AAT Act and no more. In particular it has no inherent jurisdiction.

10. As appears from section 25 of the AAT Act the Tribunal has the power to review decisions made in the exercise of powers conferred by an enactment, but only where that enactment confers on the Tribunal the right to review the exercise of those powers. An enactment, as defined in the AAT Act, means an Act or an Ordinance (but not an Ordinance of the Northern Territory or the Australian Capital Territory) or an instrument made under an Act or an Ordinance as aforesaid.

11.     The reasons given by the Applicant in the extension application might aptly be described as misconceived and in some respects confused; this is so demonstrably the case that it is unnecessary for this Tribunal to deal with them in detail. The provisions of the preceding sentence apply both in respect of the reasons contained in the extension application itself and also in the Applicant’s letter dated 16 January 2009. Some of the Applicant’s allegations and contentions as contained in his reasons were also raised by him in the hearing before His Honour Justice Perram and dealt with in the judgment. It will be noted in particular that in his letter dated 16 January 2009 the Applicant contended that the Federal Court of Australia Act 1976 ("the FCA Act") is an enactment and of course this is so. However, the Applicant is then faced with one insuperable difficulty and that is that the FCA Act does not confer any powers of review of judgments by its judges on the Tribunal. This being so the Tribunal does not under section 25 of the AAT Act (or any other provisions of that statute) have any powers whatever in relation to the judgment, and indeed and as set out more fully in the next succeeding clause, it would be surprising in the extreme if this were so.

12.     In certain circumstances, not specifically relevant for the purposes of these reasons, a decision of the Tribunal may be appealed to the Court. Such an appeal will usually be heard by a single judge of the Court although in certain circumstances (also not directly relevant) such an appeal will be heard by the Full Court. The Applicant seeks in effect to reverse the process and so as to appeal (although he does not in fact use the term “appeal”) a judgment of the Court to this Tribunal and such a course of action is not competent. As set out previously the Tribunal is not a court of law and the judgment of the Court cannot be reviewed by or appealed to the Tribunal. On the basis that the Applicant was dissatisfied with the judgment his remedy lay in an appeal to the Full Court; assuming that he is not out of time that remedy remains available and even if he is not within time in respect of such an appeal it is possible, but by no means certain, that an extension of time may be granted. The Tribunal does not comment on the likelihood or otherwise of an extension being granted if the Applicant is out of time; the Tribunal notes merely that this was the only remedy available to the Applicant and that a review of the judgment by the Tribunal was never a possible option. It may be noted that the Applicant was not represented before the Court and it is regrettable that he was not so represented either then or thereafter, since legal advice would have made it clear to him that the extension application was entirely without purpose.

13.     It follows that this Tribunal does not have power or jurisdiction to hear an application for review of the judgment; it follows also that this being so the bringing of the extension application could not serve any useful purpose and so that the extension application should not be granted.

I certify that the 13 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President Julian Block.

Signed: ...........[sgd]...................................................................

Associate

Date of Hearing  Decision on the papers
Date of Decision  5 March 2009