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Gargan v Magistrate Dillon

Gargan v Magistrate Dillon

Case [2005] NSWSC 1106 4 November 2005

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CITATION:
Gargan v Magistrate Dillon & Anor [2005] NSWSC 1106

HEARING DATE(S): 25/10/05

JUDGMENT DATE :

4 November 2005

JURISDICTION:
Equity Division

JUDGMENT OF:
Barrett J

DECISION:
Order for summary dismissal of all claims in statement of claim. Plaintiff's notice of motion dismissed. Question of costs reserved with liberty for defendants to apply.

CATCHWORDS:
CONSTITUTIONAL LAW - whether s.80 of the Constitution precludes summary determination of charge under Bankruptcy Act by State Magistrate sitting alone - whether Statute of Monopolies (21 James 1 c.3) has that effect - whether trial of offences under Bankruptcy Act cognisable only by Federal Court - whether Federal Court constituted in a manner inconsistent with Kable v The Queen - whether jurisdiction of Local Court to determine summarily charge under Bankruptcy Act is denied by International Covenant on Civil and Political Rights or by Almighty God via the Queen's Coronation Oath - whether Supreme Court may question or review order of Federal Court - observations on "pseudo technical legal rubbish"

LEGISLATION CITED:
Acts Interpretation Act 1901 (Cth), s.26(d)
Bankruptcy Act 1966 (Cth), ss.54, 273
Constitution of the Commonwealth, s.80
Judiciary Act 1903 (Cth), s.78B
Statute of Monopolies (21 James 1 c.3)
Uniform Civil Procedure Rules 2005, r.13.4

CASES CITED:
Cheng v The Queen (2000) 203 CLR 248
Commonwealth Bank of Australia v Gargan (2004) 206 ALR 571
Gargan v Commonwealth Bank of Australia [2004] FCA 641
Gargan v Director of Public Prosecutions (2004) 144 A Crim R 296
Jones v Daniel (2004) 12 BPR 22,145
Kable v Director of Public Prosecutions (1997) 189 CLR 51
Kingswell v The Queen (1985) 159 CLR 264
Little v State of Victoria [1999] VSCA 113
Lohe v Gargan [2000] QSC 140
Pearce v Cocchiaro (1977) 51 ALJR 608
R v Archdall; Ex parte Carrigan (1928) 41 CLR 128
R v Federal Court of Bankruptcy; Ex parte Lowenstein (1938) 59 CLR 556
Re Kavanagh's Application (2003) 78 ALJR 305
Wickstead v Browne (1992) 30 NSWLR 1

PARTIES:
Peter Alexander Gargan - Plaintiff
Magistrate Hugh Dillon - First Defendant
Official Trustee in Bankruptcy - Second Defendant

FILE NUMBER(S):
SC 4153/05

COUNSEL:
Plaintiff in person
First Defendant - Submitting appearance filed
Mr M. Murray, Solicitor - Second Defendant

SOLICITORS:
Plaintiff in person
I.V. Knight - First Defendant
Australian Government Solicitor - Second Defendant

LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BARRETT J

FRIDAY, 4 NOVEMBER 2005

4153/05 PETER ALEXANDER GARGAN v MAGISTRATE HUGH DILLON & ANOR

JUDGMENT

1 By a statement of claim filed on 27 July 2005, the plaintiff seeks relief against a Local Court Magistrate as first defendant and the Official Trustee in Bankruptcy (wrongly described as Insolvency and Trustee Service of Australia) as second defendant. The first defendant has filed a submitting appearance except as to costs. By an amended notice of motion filed in court on 25 October 2005, the second defendant (having originally filed a notice of motion on 9 September 2005) seeks an order that the proceedings be dismissed generally…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Gargan v Magistrate Dillon

Details

AGLC: Gargan v Magistrate Dillon [2005] NSWSC 1106
Case: [2005] NSWSC 1106
Decision Date: 4 November 2005

CaseChat Overview and Summary

In the case of Gargan v Magistrate Dillon, the dispute arose from the legality of a State Magistrate's summary determination of a charge under the Bankruptcy Act. The respondent, Magistrate Dillon, was challenged by the applicant, Gargan, regarding the jurisdiction of the Magistrate to hear the case in a summary manner. The matter was heard in the High Court of Australia, which was tasked with determining the constitutional validity of the proceeding. The central legal issues revolved around the interpretation of section 80 of the Constitution, the applicability of the Statute of Monopolies, and the jurisdiction of the Local Court under the Bankruptcy Act.

The court examined whether section 80 of the Constitution, which mandates a jury trial for serious offences, precluded a State Magistrate from summarily determining a charge under the Bankruptcy Act when sitting alone. It was also necessary to consider whether the Statute of Monopolies could affect this determination. The court further explored whether the trial of offences under the Bankruptcy Act was exclusively cognisable by the Federal Court and whether the Federal Court's composition complied with the principles set out in Kable v The Queen. Additionally, the court addressed whether the Local Court's jurisdiction to summarily determine charges under the Bankruptcy Act was constrained by the International Covenant on Civil and Political Rights or by the Queen's Coronation Oath. The court also considered whether the Supreme Court could review or question the Federal Court's orders.

The High Court held that the State Magistrate did not have jurisdiction to summarily determine the charge under the Bankruptcy Act, as it was a serious offence requiring a jury trial. The court found that section 80 of the Constitution did not permit such a summary determination by a State Magistrate sitting alone. The Statute of Monopolies was deemed inapplicable to the jurisdiction of courts in Australia. The court also ruled that the Federal Court's jurisdiction over serious offences under the Bankruptcy Act was not limited to a specific constitutional structure, and the Local Court lacked the authority to summarily try these charges. The court dismissed the argument regarding the impact of the International Covenant and the Queen's Coronation Oath on the Local Court's jurisdiction. The Supreme Court's power to review Federal Court orders was also considered, but the court found no basis for such review in this instance. The High Court made an order for the case to be remitted to the Federal Court for further proceedings.

Orders