Petrie, Trustee of the Property of Aitken (Bankrupt) v Aitken
[2019] FCCA 16
•16 January 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| PETRIE, TRUSTEE OF THE PROPERTY OF AITKEN (BANKRUPT) v AITKEN & ORS | [2019] FCCA 16 |
| Catchwords: CONSTITUTIONAL LAW – Sovereignty – style and title of Queen of Australia – effect on constitutional validity of legislation. COURTS AND JURISDICTION – Whether legislation establishing Court valid – whether Court has jurisdiction under the Bankruptcy Act 1966 (Cth). PRACTICE AND PROCEDURE – Whether non-lawyer may appear for a party – factors for consideration – whether another law of the Commonwealth authorising person to appear – whether purpose of law to authorise persons to appear in bankruptcy proceedings – whether person of unsound mind. PRACTICE AND PROCEDURE – Extension of time to file application – application by non-lawyer to represent a party – factors for consideration. WORDS AND PHRASES – “person of unsound mind”. |
| Legislation: Acts Interpretation Act 1901 (Cth), ss.15AA and 15AB Australia Act 1986 (Cth), ss.7, 10 Bankruptcy Act 1966 (Cth), ss.30, 308 Commonwealth of Australia Constitution Act 1900 (UK), cll.2, 5 Constitution, s.106 Corporations Act 2001 (Cth) Federal Circuit Court of Australia Act 1999 (Cth), s.44 |
| Cases cited: ActewAGL Distribution v Australian Energy Regulator [2011] FCA 639; (2011) 195 FCR 142; (2011) 123 ALD 486 Angliss v Urquhart & Anor [2002] NSWCA 256 Comcare v A'Hearn (1993) 45 FCR 441; (1993) AAR 366; (1993) 119 ALR 85 Hawkins v Kingsway Group Ltd [2009] FCA 1073 Hopes v Australian Securities & Investments Commission [2016] WASC 198 Kerr v American Express Australia Ltd [2009] FCA 1219 Luck v Chief Executive Officer of Centrelink [2015] FCAFC 75 MZZIV v Minister for Immigration & Border Protection [2013] FCA 1203 NAKX v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1559 Piccinin v Deputy Commissioner of Taxation [2002] FCAFC 282 Project Blue Sky Inc & Ors v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355; (1998) 72 ALJR 841; (1998) 153 ALR 490 Ray v Perrett [2007] FCA 1672 Re Bolton; Ex parte Construction, Forestry, Mining & Energy Union (1998) 73 ALJR 129; (1998) 85 IR 468 Singh v Minister for Immigration & Border Protection [2016] FCA 108 Slack v Bottoms English Solicitors & Ors [2003] FCA 1337 Southern Centre of Theosophy Incorporated v The State of South Australia (1979) 145 CLR 246; (1979) 54 ALJR 43; (1979) 27 ALR 59 Shorter Oxford English Dictionary on Historical Principles, Volume II (Oxford: Clarendon Press, 1973), |
| Applicant: | NATASHA MARGARET PETRIE THE TRUSTEE OF THE PROPERTY OF PETER DAVID AITKEN, A BANKRUPT |
| First Respondent: | PETER DAVID AITKEN |
| Second Respondent: | JUDITH ANNE WINIFRED AITKEN |
| Third Respondent | HENRY FOTHERINGHAM AITKEN |
| File Number: | PEG 75 of 2018 |
| Judgment of: | Judge Antoni Lucev |
| Hearing date: | 21 March 2018 |
| Date of Last Submission: | 27 March 2018 |
| Delivered at: | Perth |
| Delivered on: | 16 January 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr AF Carles |
| Solicitors for the Applicant: | Carles Solicitors |
| For the Respondents: | Mr N Piccinin (by leave) |
ORDERS
The Respondents’ Application in a Case filed 9 March 2018 be dismissed.
The time prescribed in the Court’s Orders of 2 March 2018 for the Respondents to file an Application in a Case seeking that a person other than a non-lawyer be given leave to appear for the Respondents in these proceedings not be extended.
The Court further orders that:
(a)the Respondents file and serve any amended Notice stating grounds of opposition to application and any affidavits in support thereof by 16 February 2019;
(b)the Applicant file and serve any amended Response and affidavits in support thereof by 16 March 2019;
(c)the Applicant file and serve any further submissions by 30 March 2019;
(d)the Respondents file and serve any further submissions by 13 April 2019; and
(e)the application otherwise be adjourned to a date to be fixed for further hearing.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 75 of 2018
| NATASHA MARGARET PETRIE THE TRUSTEE OF THE PROPERTY OF PETER DAVID AITKEN, A BANKRUPT |
Applicant
And
| PETER DAVID AITKEN |
First Respondent
| JUDITH ANNE WINIFRED AITKEN |
Second Respondent
| HENRY FOTHERINGHAM AITKEN |
Third Respondent
REASONS FOR JUDGMENT
Application, applications in a case and issues
The application in these proceedings seeks orders under s.30 of the Bankruptcy Act 1966 (Cth) (“Bankruptcy Act”) for declarations with respect to property ownership, and orders for delivery up of possession and sale of the property, and is made by the bankruptcy trustee (“Trustee”) of the first respondent, Mr Peter David Aitken (“Mr Peter Aitken”). The other two respondents are the second respondent Judith Anne Winifred Aitken (“Mrs Aitken”) and the third respondent Henry Fotheringham Aitken (“Mr Henry Aitken”).
On 9 March 2018 an Application in a Case was filed by Mr Peter Aitken with respect to the issue of jurisdiction. On 12 March 2018 a further Application in a Case was lodged (“Proposed Application in a Case”) by Mr Peter Aitken seeking leave for a Mr Neil Piccinin (“Mr Piccinin”) to appear on behalf of the respondents.
Before the Court are two issues, namely:
a)whether this Court has jurisdiction to hear and determine an application under the Bankruptcy Act, specifically here an application with respect to property ownership, possession and sale; and
b)whether Mr Piccinin ought to be given leave to appear for the respondents in these proceedings, in relation to which there is a preliminary issue as to whether the Proposed Application in a Case requires an extension of time in which to be filed, it being lodged three days outside of the time prescribed by the Court’s order of 2 March 2018.
For the purpose of arguing both the Application in a Case and the Proposed Application in a Case it was convenient to grant Mr Piccinin leave to appear for the respondents, but only for that purpose.
Background
The background to this matter, which does not appear to be disputed, is as follows:
a)on 21 February 2017 a sequestration order was made by a Registrar of this Court in relation to Mr Peter Aitken’s estate, and the Trustee was appointed the Trustee of Mr Peter Aitken’s estate in bankruptcy;
b)Mrs Aitken is Mr Peter Aitken’s wife;
c)Mr Henry Aitken is Mr Peter Aitken’s father;
d)Mr Peter Aitken and Mrs Aitken are the registered proprietors of land at 8 Alsace Street, Carine;
e)Mr Peter Aitken is the sole registered proprietor of land at 8A Alsace Street, Carine, at which Mr Henry Aitken lives, and for which he does not pay rent; and
f)neither Mrs Aitken nor Mr Henry Aitken have responded to the Trustee’s inquiries with respect to any claimed interest that they may have in 8 and 8A Alsace Street, Carine respectively.
Jurisdiction
Orders sought
The Application in a Case with respect to jurisdiction seeks the following orders:
1. That applicant in the case make answer of validity of bankruptcy order in light of evidence of presumption against the authority known as the Queen of Australia
2. That the applicant establish the jurisdiction of this court to proceed under the said Queen of Australia in light of the fifth and second clause of the Commonwealth of Australia Constitution Act 1900.
3. That no matter may proceed until jurisdiction is established in light of the submissions and the referenced documents placed before the applicant, and subsequently filed, that have not been denied.
Notice of Opposition
The respondents filed a Notice stating grounds of opposition to application, interim application or petition (“Notice of Opposition – Jurisdiction”) with respect to jurisdiction in the following terms:
1.That information filed by the applicant is not true and is misleading, fraudulent or otherwise in error.
2.The applicant received information, as filed, taken as Commonwealth records that impacts on the Federal Court bankruptcy order, regarding validity, and has failed to deny it.
3.The applicant's lawyer was addressed on the above mentioned information, as filed, that impacts upon the Federal Court bankruptcy order for validity and has failed to deny it.
4.The applicant cannot fail to deny the information of point 2 and 3 whilst claiming validity of the bankruptcy order unless it can be established that the said order was not issued under the Queen of Australia.
5.The applicant cannot rely on the authority of the Queen of Australia, for the issuance of the said Federal Court order of bankruptcy, when she had stated on several occasions at a meeting at her offices in December 2017 that the Commonwealth of Australia Constitution Act was paramount law.
6.The applicant cannot pursue and promote the said bankruptcy order without breach of the second and fifth clauses of the said foundation law.
7.The applicant made a false statement at point 14, page 5, in stating she did not understand these assertions regarding the Queen of Australia.
8.The applicant's counsel, as an officer of a court, is named in the said fifth clause to uphold the law of the Commonwealth for which Crown is expressed in the Preamble and identification for application is identified in the second clause.
9.The applicant's counsel has failed to deny the information above referenced in points 2 and 3 in a letter seeking his answer for denial or correction for which failure is against the ability to establish jurisdiction.
10.The treasury has been aware of the constitutional invalidity of the Queen of Australia enacted under Royal Style and Titles Act 1973 at least since the First Constitutional Report of 1988 was published as a Commonwealth record.
The Court notes that it emerged at hearing that the lawyers for the Trustee had seemingly not been made aware of the existence of the Notice of Opposition – Jurisdiction, and as a consequence, and having regard to its content, the Court made orders for written submissions with respect to its content to be filed by the Trustee.
Evidence
The evidence relied upon by the respondents for the jurisdiction argument is that in affidavits of Mr Peter Aitken sworn 9 and 12 March 2018 which are in similar terms, and it suffices to refer to the 12 March 2018 affidavit, which is in the following terms (transcribed verbatim):
1. I have spoken with the second and third respondents, Judith Aitken and Henry Aitken, agreeing in opposing this application by Natasha Petrie for reasons in the fourth and fifth points below;
2. The documents referenced in the "Notice stating grounds of opposition to application …." are true to the best of my knowledge and have been inquired upon with Natasha Petrie and her counsel for denial or correction;
3. The matters raised or documents delivered have been made available by Neil Piccinin who is conversant with the complex matters;
4. The opposition to the application is made on the belief that the bankruptcy order relied on to make application is against the law and therefore against the rights of the respondents;
5. The affiant believes that the bankruptcy order can (sic: cannot) be substantiated under an authority known as the Queen of Australia.
Respondents’ submissions
The submissions filed on 9 March 2018 by the respondents in support of the orders sought concerning this Court’s jurisdiction are as follows (transcribed verbatim and in full):
1. That information contained within the First Constitutional Report of 1988 admits the inconsistency between the establishment of the Queen of Australia, within the Royal Style and Titles Act 1973, and the second clause of the foundation law for the Commonwealth.
2. The information within the document of the Applicant filed in this court shows that correspondence, preceding that to Natasha Petrie, provided the Certificate of Harry Hopes and referenced FOI documents, on the Royal Style and Titles Act 1973, had been delivered to Timothy Liu and Karren Cooper for scrutiny at pages 144 to 146.
3. The same information was engaged in by correspondence with Natasha Petrie on pages 147, 148 and 174.
4. The Certificate and FOI documents, taken to be Commonwealth records for evidence of a prima facie nature, are provided at pages 150 to 173 of the Applicant's filing.
5. The said certificate and FOI documents present evidence of presumption for prejudice of the Court which must be overcome with evidence of proof for head of power for the Royal Style and Titles Act 1973 if it be maintained that the Act is valid Commonwealth law.
6. The second clause enforced by the fifth clause is the primary law application that must be overcome for application of the Queen of Australia for any authority within the Commonwealth where the Commonwealth is mandated by the scheme of the foundation law.
7. The relevant excerpts and highlights for the First Constitutional Report for notice is as follows:
FIRST REPORT OF THE CONSTITUTIONAL COMMISSION
From page 109:
'The Crown of the United Kingdom of Great Britain and Ireland
Of more practical moment, however, are references to the 'Crown' or 'The Queen' of the United Kingdom. The preamble declares the agreement of the people to unite 'under the Crown of the United Kingdom of Great Britain and Ireland'. Covering clause 2 of the Commonwealth of Australia Constitution Act 1900 provides that: 'The provisions of this Act referring to the Queen shall extend to Her Majesty's heirs and successors in the sovereignty of the United Kingdom.' 'The Queen' is referred to in covering clauses 3 and 5 and, in the Constitution, in sections 1-4, 58-61, 64, 68, 74, 122, 126, 128, and the Schedule to the Constitution.
As discussed earlier, the sovereignty of the United Kingdom in 1900 referred to the sovereignty of the entire empire of that country. There was in law and in fact no distinct Monarch of Australia, Canada, New Zealand, etc. There was just the one and indivisible sovereign of all parts of the Queen's dominions. When the Queen, as distinct from the Governor-General or a Governor, acted in relation to either the United Kingdom or overseas possessions of the Crown she acted on the advice of ministers of the United Kingdom. The Crown, therefore, was one Imperial Crown. That is no longer the case. The sovereignty of each of the countries that recognise Queen Elizabeth II as their Western Australia and Tasmania are exceptions.
Form page 110:
Queen is separate and distinct from that of any other country. Whether in domestic or foreign affairs the 'Crown of the United Kingdom' may pursue quite different policies from that of the Crown of Australia. The Queen's advisers are different in each case. The reference to the United Kingdom is therefore a source of confusion and does not reflect the position of the Crown in Australia today.
The Advisory Committee on Executive Government recommended against changing the preamble or covering clause 2. The Committee's reason was that it was unlikely that if the Monarchy was to survive in Australia, it would do so if it involved the designation of any person other than the Monarch of the United Kingdom; so, in its view, while a reference to the Queen as Queen of Australia 'might be appropriate', there was 'no practical need' for the change.
We are unable to accept fully the Executive Committee's recommendation. First, our Terms of Reference require us to report on the revision of the Constitution to 'adequately reflect Australia's status as an independent nation'. We consider that covering clause 2 gives the impression that our Monarch must be chosen according to the law of another country and, further, it can mislead a person to the view that the institution of Monarchy in Australia is not an entirely separate institution from the Monarchy in the United Kingdom. It can hardly be said, therefore, that covering clause 2 reflects Australia's independent status. The reverse is the case.
Secondly, accepting for present purposes the Executive Committee's view that the Monarchy in Australia would not survive if the person holding the position of Sovereign in Australia was different from that in the United Kingdom, we do not understand how this conflicts with ensuring that the Constitution reflects existing legal and political reality.
The Australian Constitutional Convention at the Hobart (1976) session resolved that covering clause 2 be replaced by a provision referring to the Queen in the sovereignty of Australia.
We recommend, accordingly, that:
(a) in covering clause 2 the words 'the United Kingdom' be omitted and the word 'Australia' be substituted; and
(b) in the Note to the Schedule to the Constitution the words 'the United Kingdom of Great Britain and Ireland' be omitted and the word 'Australia' be substituted.
From the 1988 Constitutional Report page 181:
BASES FOR ALTERING THE PREAMBLE AND COVERING CLAUSES
The orthodox view has been that nothing in the Commonwealth of Australia Constitution Act 1900 which precedes 'the Constitution', as set out in covering clause 9, can be altered by the procedure provided for in section 128 of the Constitution because section 128 relates only to alterations of the Constitution. 'This Constitution', it declares, 'shall not be altered except in the following manner:-'. The parts of the Act which precede 'the Constitution' are not part of that Constitution and for that reason, it has been argued, they are not provisions to which section 128 applies.
Until recently, it was generally assumed that the only way in which the preamble and covering clauses 1-8 of the Act could be altered was by an Act of the United Kingdom Parliament passed at the request and with the consent of the Government and Parliament of the Commonwealth. But as a result of the enactment by the Federal and the United Kingdom Parliaments of the Australia Acts 1986, the authority of the United Kingdom Parliament to legislate for Australia has been terminated. It cannot even legislate for Australia at the request and with the consent of the Government and Parliament of the Commonwealth. The question therefore is whether we are left with provisions in the Commonwealth of Australia Constitution Act 1900 which are immutable - provisions which no one can validly alter or repeal. The answer must surely be 'No'.
From page 186:
"Section 128 now has to be interpreted in the light of the fact that under Australia Act 1986 (UK) the United Kingdom Parliament renounced authority to legislate for Australia."
Self-evidently the extract from the First Constitutional Report of 1988 is one consisting of selected extracts, and extracts which are not necessarily entirely accurate or complete: see, for example, the reference to the issue of sovereignty in the Queen and Western Australia and Tasmania which is evidently incomplete, seemingly by reason of the omission of certain words. Further, the Court notes the reference in paragraph 2 of the respondents’ submissions to “Harry Hopes”, and notes that Mr Hopes was a litigant assisted by Mr Piccinin in litigation in which Mr Hopes was unsuccessful, referred to more fully at [24]-[32] below, and notes that the use of Mr Hopes’ name in the above submissions is perhaps indicative of the fact that the submissions in the earlier litigation have been cut and pasted for the purposes of these proceedings, although it is ultimately unnecessary to decide whether that is or is not the case.
The discursive written submissions were followed by oral submissions in the same vein in which it was argued that:
a)the respondents were questioning this Court’s source of power for the exercise of its judicial authority;
b)there was a presumption against the validity of any authority under the title of the “Queen of Australia”, and that the Courts had not considered this question, and that there was “no case law” upon it;
c)the applicant could not bring in any case law or cite the head of power to the Royal Styles and Titles Act 1973 (Cth) (“RST Act”);
d)by reason of the second and fifth covering clauses of the Constitution Parliament was unable to validly legislate in the name of the “Queen of Australia”;
e)there needed to be a defined event at 1973 (the date of the RST Act), because otherwise the Queen was assenting under the wrong name which would invalidate any law made since that date, and that the respondents had been unable to find any such defined event; and
f)if the Federal Circuit Court of Australia Act 1999 (Cth) (“FCCA Act”) was made after 1973 the paramount question was how was it valid and to be relied upon.
Trustee’s submissions
The Trustee submits that arguments the same or substantially similar to those mounted in this case have been put and rejected:
a)by the Federal Court in Deputy Commissioner of Taxation, In the matter of Piccinin v Piccinin [2001] FCA 1609 (“Piccinin”);
b)on appeal from Piccinin by the Full Court of the Federal Court in Piccinin v Deputy Commissioner of Taxation [2002] FCAFC 282 at [28]-[29] per Black CJ, Wilcox and Moore JJ (“Piccinin Appeal”), and submits that the findings of the Full Court of the Federal Court in Piccinin Appeal are binding on this Court;
c)in Deputy Commissioner of Taxation v Aitken [2015] WADC 18; (2015) 87 SR (WA) 142 (“Aitken – District Court”) by the District Court of Western Australia (“District Court”) in proceedings concerning Mr Peter Aitken, and in which proceedings Mr Peter Aitken was seemingly assisted by Mr Piccinin; and
d)in Hopes v Australian Securities & Investments Commission [2017] WASCA 108 (“Hopes Appeal”) where the Supreme Court of Western Australia, Court of Appeal (“WA Court of Appeal”) dismissed an appeal by Mr Hopes, who was assisted by Mr Piccinin, and in relation to which it was noted that the argument in that case was apparently “the brainchild of Mr Piccinin”: Hopes Appeal at [11] per Mazza and Beech JJA and Hall J.
Consideration – jurisdiction
It is the first duty of every court to determine whether or not it has jurisdiction: Federated Engine-Drivers & Firemen’s Association of Australasia v Broken Hill Proprietary Company Limited (1911) 12 CLR 398; (1911) 17 ALR 285; CLR at 415 per Griffiths CJ, 428 per Barton J and 454 per Isaacs J; Re Bolton; Ex parte Construction, Forestry, Mining & Energy Union (1998) 73 ALJR 129; (1998) 85 IR 468, ALJR at 133 per Kirby J.
The issues raised and arguments put forward in these proceedings are essentially those seemingly first raised in Joosse & Ors v Australian Securities & Investments Commission & Ors [1998] HCA 77; (1998) 73 ALJR 232; (1998) 159 ALR 260 (“Joosse”) where it was argued that there had been “an unremedied, perhaps even irremediable, ‘break in sovereignty’ in Australia that leads to the conclusion that … legislation apparently passed by the Parliament of the Commonwealth … is invalid”: Joosse at [11] per Hayne J. The submissions in Joosse raised similar issues to those issues raised in these proceedings, namely:
12 First, the Constitution is an Act of the United Kingdom Parliament. Yet it has been held in this Court that sovereignty rests with the people of Australia. This is said to lead to the invalidating of certain of the provisions of the Constitution or, perhaps, to those provisions no longer operating. It is also said to lead to the invalidating of some State or Commonwealth legislation. Why this should be so was not spelled out clearly. Secondly, the references in the Constitution to the Queen were intended as references to the Queen in the sovereignty of the United Kingdom, yet since the Royal Style and Titles Act 1973 (Cth) the Queen has been the Queen of Australia and there has been no alteration to the Constitution. Accordingly, so the argument goes, the Royal Assent has not been validly given to a number of Acts of the Commonwealth Parliament.
Joosse at [12] per Hayne J (footnotes omitted).
The High Court dealt with the question of sovereignty as a concept and in its application to Australia in Joosse at [16]-[17] per Hayne J as follows (footnotes omitted):
16 “Sovereignty” is a concept that legal scholars have spent much time examining. It is a word that is sometimes used to refer to very different legal concepts and for that reason alone, care must be taken to identify how it is being used. ….
For present purposes, what is critical is: what is the extent of the supreme legislative authority recognised in this system and what are the rules for recognising what are its valid laws?
17 When one examines the history of Australia since 1788 it is possible to identify the emergence of what is now a sovereign and independent nation. Opinions will differ about when sovereignty or independence was attained. Some steps along that way are of particular importance — not least the people of the colonies agreeing “to unite in one indissoluble Federal Commonwealth under the Crown of the United Kingdom of Great Britain and Ireland, and under the Constitution”. But when it is said that Australia is now a “sovereign and independent nation” the statement is in part a statement about politics and in part about what Stephen J in China Ocean Shipping Co v South Australia called “the realities of the relationship this century between the United Kingdom and Australia”. What those realities were in 1900 can be gauged from the fact that the delegates negotiating with the Imperial authorities in 1900 about the terms in which the Imperial Parliament was to enact the Constitution were well content to seek to persuade the Colonial Office that the “Commonwealth appears to the Delegates to be clearly a ‘Colony’”. As the century moved on, further attention was given to the place of Imperial legislation in the self-governing dominions. The Imperial Parliament enacted the Statute of Westminster in 1931 but it was not until 1942 that the Commonwealth Parliament enacted legislation adopting the Statute of Westminster. And then in 1986 the Australia Acts were passed. All these Acts deal with the place of Imperial legislation in Australia. Each can be seen as reflecting the then current view of the relationship between Australia and the United Kingdom. In large part, then, each deals with an aspect of political sovereignty.
In Joosse the High Court went on to deal with the question of what law is to be applied by the courts in Australia and the effect of the RST Act at [19]-[20] per Hayne J as follows (footnotes omitted):
19 That question is resolved by covering cl 5 of the Constitution. It provides:
“This Act, and all laws made by the Parliament of the Commonwealth under the Constitution, shall be binding on the courts, judges, and people of every State and of every part of the Commonwealth, notwithstanding anything in the laws of any State.”
20 As I have noted earlier, the second of the three themes identified by the applicants relies on the Royal Style and Titles Act. As I understand it, the principal burden of the argument is that an Act of Parliament, changing the style or title by which the Queen is to be known in Australia, worked a fundamental constitutional change. The fact is, it did not. So far as Commonwealth legislation is concerned, it is ss 58, 59 and 60 of the Constitution that deal with the ways in which the Royal Assent may be given to bills passed by the other elements of the Federal Parliament. So far as now relevant, s 58 governs. It provides that the Governor-General “shall declare, according to his discretion, but subject to this Constitution, that he assents in the Queen's name”. And there is no material that would suggest that has not been done in the case of each Commonwealth Act that now is challenged.
In Helljay Investments Pty Ltd v Deputy Commissioner of Taxation (Cth) [1999] HCA 56; (1999) 74 ALJR 68; (1999) 166 ALR 302; (1999) 32 ACSR 625 (“Helljay Investments”) the High Court dealt with various bases of attack upon various Commonwealth and possibly Australian Capital Territory legislation advanced on the same arguments as were run in Joosse. Those arguments were again rejected by the High Court: Helljay Investments at [18] per Hayne J.
Although Southern Centre of Theosophy Incorporated v The State of South Australia (1979) 145 CLR 246; (1979) 54 ALJR 43; (1979) 27 ALR 59 (“Southern Theosophy Centre”) was concerned with the issue of the jurisdiction of the Privy Council to entertain appeals from South Australia in cases where no question of federal jurisdiction was involved, it is pertinent to observe that in the leading judgment the High Court said of the RST Act as follows at CLR 261 per Gibbs J (with whom Barwick CJ, Stephen, Mason, Aickin and Wilson JJ agreed):
It is right to say that this alteration in Her Majesty’s style and titles [that is the change to Queen of Australia] was a formal recognition of the changes that had occurred in the constitutional relations between the United Kingdom and Australia.
In Piccinin the Federal Court was dealing with a creditor’s petition issued against Mr Piccinin and a Jeanny Piccinin: Piccinin at [1] per French J. The respondents raised points going to the validity of the judgment obtained in the Local Court which were based upon penalty notices issued by the Deputy Commissioner of Taxation in relation to unpaid group tax connected with the administration by the respondents of corporations of which they were the directors: Piccinin at [3] per French J. Relevantly, there were two issues raised by the Piccinins, the first of which was directed to the validity of a judgment in the Local Court by reason of the validity of the appointment of Western Australian Judges and Magistrates, which were said to have been invalid as not made under the provisions of the Commonwealth and State Constitutions on the basis that the appointments had been made by the Governor of Western Australia acting under the authority of Letters Patent issued by the Queen of England: Piccinin at [5] per French J. In relation to that question the Federal Court observed as follows in Piccinin at [6] per French J:
There is no substance in the validity of appointment question. It was adverted to recently by Hayne J in the High Court in the matter of Miller v Chapman, M31/2001, an ex tempore judgment which was given on 18 July 2001. His Honour there observed, in response to a similar argument, that the complaint about invalidity of judicial appointments was without foundation:
"The Constitutions of the States, in accordance with which judicial appointments are made, were continued by operation of section 106 of the Commonwealth Constitution and the complaints now made seek to challenge steps taken by the constitutional monarch of Australia under those State Constitutions."
The Piccinins appealed Piccinin, and in Piccinin Appeal the Full Court of the Federal Court dismissed that appeal, and in the course of so doing observed that the authority by which judicial appointments in Western Australia are made is that of the Queen of Australia, relevantly a different constitutional entity to the Queen of the United Kingdom of Great Britain and Northern Ireland, citing ss.7 and 10 of the Australia Act 1986 (Cth) and s.106 of the Constitution: Piccinin Appeal at [28] per Black CJ, Wilcox and Moore JJ.
In Aitken – District Court a constitutional challenge was raised in the District Court alleging it lacked jurisdiction to make orders for the recovery of penalties imposed as a result of a failure of a company of which Mr Peter Aitken was a director to remit withholding tax pursuant to his statutory liability to do so, or that the relevant taxation legislation was constitutionally invalid: Aitken – District Court at [37] per Bowden DCJ.
In Aitken – District Court at [38] and [40]-[42] per Bowden DCJ the District Court said that:
38 In the defendant's letter of 15 and 19 February 2015 and submissions on 16 and 17 February a number of matters were raised including, but not limited to, allegations that the plaintiff was prosecuting provisions of law that are not recognised by the Commonwealth Constitution, and was making fraudulent misrepresentations of their nature and standing, that there are no acts or provisions made recognised by the Constitution from a time in 1973 upon using the Queen of Australia for Royal Assent, that the action was a departure from the constitutional law, that the Queen of Australia is not a legal personality and that name cannot be placed on court documents, and that, effectively, laws passed since the Royal Style and Titles Act 1973 are invalid and, judges and magistrates in Western Australia have taken an alternate or extra jurisdictional oath in contempt of the Commonwealth of Australian Constitution Act, and such office bearers have not been lawfully installed by a deputy governor or administrator commissioned under the Queen of Australia.
40 These or similar submissions, in relation to both State and Commonwealth Acts, using the same grounds or variants thereof have been made in a large number of cases and characterised over a period of almost 17 years as having no basis in law by Commonwealth courts: Joosse & Anor v Australian Securities and Investment Commission [1998] HCA 77; (1998) 159 ALR 260; Helljay Investments Pty Ltd v Deputy Commissioner of Taxation [1999] HCA 56; McKewin's Hairdressing and Beauty Supplies Pty Ltd v Deputy Commissioner of Taxation [2000] HCA 27; (2000) 171 ALR 335; and State courts: Hedley v Spivey [2011] WASC 325 [19]; Shaw v Jim McGinty in his capacity as Attorney General & Anor [2006] WASCA 231; Glew & Anor v Shire of Greenough [2006] WASCA 260 (special leave refused: Glew v Shire of Greenough [2007] HCATrans 520); Glew Technologies Pty Ltd v Department of Planning and Infrastructure [2007] WASCA 289; Glew v City of Greater Geraldton [2012] WASCA 94; Glew v Frank Jasper Pty Ltd [2012] WASCA 93; Krysiak v Hodgson [2009] WASCA 114; Glew v The Governor of Western Australia [2009] WASC 14; Glew v Frank Jasper Pty Ltd [2010] WASCA 87; O'Connell v The State of Western Australia [2012] WASCA 96 [92]; Hedley v Spivey [2012] WASCA 116; Bell v Cribb [2012] WASCA 234; and also by courts in other jurisdictions: Meads v Meads [2012] ABQB 571.
41 Some of these cases dealt with submissions relating to the alleged constitution invalidity, particularly since the Royal Style and Titles Act 1973 (Cth) of, inter alia, the ITAA, the TAA and various state courts. In each case the points sought to be agitated were found not to be arguable, as are the defendant's submissions in this case.
42 Accordingly, I reject the submission that the ITAA or the TAA are invalid on Constitutional grounds and that the writ is in some way invalid because it refers to the Queen of Australia. This court is properly constituted pursuant to the District Court Act (WA).
In Hopes Appeal the WA Court of Appeal dismissed an application by an appellant to extend time to comply with a springing order on the basis that the contentions the appellant wished to raise in an appeal to the WA Court of Appeal were “devoid of merit and … doomed to fail”: Hopes Appeal at [4] per Mazza and Beech JJA and Hall J. The appellant had been charged with two offences under the Corporations Act in relation to the failure to provide a report as to the affairs of a company of which he was sole director and secretary and to deliver the company’s books to the liquidator of the company: Hopes Appeal at [5]-[7] per Mazza and Beech JJA and Hall J. Before the Magistrate in the Magistrates Court of Western Australia the appellant represented himself but it was “accepted” in the WA Court of Appeal “that he did so with the assistance of a non-lawyer, Mr Neil Piccinin”: HopesAppeal at [9] per Mazza and Beech JJA and Hall J. Mr Hopes was convicted of the charges and fined, with the Magistrate finding that so-called constitutional arguments raised by Mr Hopes did not provide him with a reasonable excuse for his failure to comply with the liquidator’s requirements: Hopes Appeal at [12] per Mazza and Beech JJA and Hall J. It is relevant to these proceedings to set out the constitutional arguments raised in defence before the Magistrate in Hopes Appeal at [10]-[11] per Mazza and Beech JJA and Hall J, which were as follows:
10 In his defence, the appellant contended that he was under no obligation to comply with the liquidator's requirements because the Corporations Act had not been validly enacted. His principal argument in support of this proposition, insofar as it can be understood, proceeded in this way. The Bill which became the Corporations Act was passed by the Commonwealth Parliament and was given Royal Assent by the Governor General in the name of the Queen under the title “Queen of Australia”. The Royal Style and Titles Act 1973 (Cth) (the 1973 Act) records the assent of the Commonwealth Parliament to the adoption and use of the style and title “Queen of Australia”. However, the 1973 Act was invalid because the appellant had not been able to locate a “legally valid instrument” or a “head of power” which authorised the appointment of Queen Elizabeth II as “Queen of Australia”. Because the 1973 Act was invalid, no legislation given Royal Assent under the title “Queen of Australia” was validly enacted.
11 It is apparent that this argument is the brainchild of Mr Piccinin. The appellant said that inquiries he had made or which had been made on his behalf by Mr Piccinin to obtain such an “instrument” or “head of power” had either not been answered or had not been answered to his satisfaction. Until these inquiries are answered or answered to his satisfaction, the appellant claimed that he had a reasonable excuse for not complying with the liquidator's requirements.
Hopes Appeal was an appeal from Hopes v Australian Securities & Investments Commission [2016] WASC 198 (“Hopes”), a judgment of a single Judge of the Supreme Court of Western Australia, hearing an appeal from the Magistrates Court of Western Australia.
In Hopes Appeal the WA Court of Appeal noted that in Hopes a lengthy affidavit or affidavits had been relied upon annexing correspondence, notices and memoranda sent by Mr Hopes or Mr Piccinin to various courts, government departments and instrumentalities including the Federal Court, the Australian Securities & Investments Commission, the Department of Prime Minister and Cabinet, the Department of Treasury and the Commonwealth Director of Public Prosecutions: Hopes Appeal at [14] per Mazza and Beech JJA and Hall J. The WA Court of Appeal noted in Hopes Appeal at [15] per Mazza and Beech JJA and Hall J that the appeal in Hopes was dismissed, and that leave to appeal on all of the proposed grounds of appeal was refused, with detailed and comprehensive written reasons being given. Further detail in relation to Hopes is set out below: see [28]-[32] below.
In Hopes Appeal the WA Court of Appeal dealt with procedural issues associated with an extension of time and a springing order, and at [22] per Mazza and Beech JJA and Hall J went on to observe as follows (footnotes omitted):
22 On 7 March 2017, the appellant filed an affidavit which purported to comply with the procedural orders we have mentioned. It is unnecessary to refer to it in detail. Insofar as it may be understood it articulates some bizarre constitutional theories. It seeks to challenge Corboy J's reasoning and raises “questions” which it is said this court should answer by conducting an “inquiry”. Nothing in any of the documentation filed by the appellant in this court or said in oral submissions on behalf of the appellant provides any reason whatever to doubt the correctness of Corboy J's decision. In particular, Corboy J was correct to reject the appellant's “constitutional” arguments which are, for the reasons given by his Honour, seriously misconceived. As his Honour pointed out, they proceed on a fundamentally flawed assumption that the 1973 Act (and the 1947 Act) worked a fundamental constitutional change. This notion was expressly rejected by Hayne J in Joosse v Australian Securities and Investments Commission and Helljay Investments Pty Ltd v Deputy Commissioner of Taxation. In Joosse, his Honour observed that a change in the royal style and titles of a monarch is a change of form rather than substance and does not alter the constitutional status of the Crown or the Queen. As any challenge made by the appellant to the Rules appears to be based on the same misconceived arguments, it has no merit.
In Hopes the appeal was against a conviction in the Magistrates Court of Western Australia in relation to two offences against the Corporations Act 2001 (Cth), and leave to appeal was required in respect of each of the ten proposed grounds of appeal: Hopes at [2]-[6] per Corboy J. Leave was refused with respect to each of the ten proposed grounds of appeal, which appear as an annexure to the judgment in Hopes: Hopes at [7] per Corboy J.
The appellant’s principal argument set out in Hopes at [5] per Corboy J is, in essence, the principal argument in these proceedings, namely:
… that the Commonwealth Parliament lacked power to enact the Royal Style and Titles Act 1973 (Cth) (the 1973 Act) as there was no instrument authorising its enactment with the result that legislation passed since the commencement of the 1973 Act, including the Corporations Act, had not received the Royal Assent (the assent having been impermissibly given in the name of the 'Queen of Australia').
The appellant’s principal argument in Hopes was the subject of proposed ground of appeal 3 in respect of which the Supreme Court of Western Australia said in Hopes at [40]-[41] per Corboy J as follows:
40 At the heart of the appellant's principal argument is the proposition that the Commonwealth Parliament lacked power to enact the 1973 Act - at least, in the absence of an 'instrument' conferring power. An analogous argument was rejected by Hayne J in Joosse v Australian Securities and Investments Commission [1998] HCA 77; (1998) 159 ALR 260 and see also Helljay Investments Pty Ltd v Deputy Commissioner of Taxation [1999] HCA 56; (1999) 166 ALR 302. The effect of the 1973 Act on the status of a person for the purpose of migration and related matters has been considered by the High Court on several occasions. The reasoning in those cases does not suggest that the Commonwealth Parliament lacked power to enact the 1973 Act (with the consequence that Bills passed by Parliament since the commencement of the Act had not received the Royal Assent). Further, the history of legislation enacted to assent to changes in the royal style and titles of the monarch briefly summarised below does not suggest that the Commonwealth Parliament lacks legislative power in relation to such matters.
41 Accordingly, I did not direct that notices be given under s 78B of the Judiciary Act 1903 (Cth): see O'Connell v The State of Western Australia [2012] WASCA 96 [90] (a matter that is trivial, unarguable, frivolous or vexatious is not a matter arising under the Constitution or involving its interpretation) and Shaw v Jim McGinty in his capacity as Attorney General [2006] WASCA 231 [42] (if the alleged 'constitutional issue' is unarguable or vexatious, there is in truth no constitutional issue at all).
It is not necessary to set out the history or discussion of the power to enact the RST Act set out so eruditely in Hopes at [42]-[54] per Corboy J, but this Court adopts what is said there, and refers to the conclusions reached in that regard by the Supreme Court of Western Australia in Hopes at [55]-[57] per Corboy J as follows:
55 I do not consider that it is necessary to further explore the scope of the Commonwealth's executive power and the incidental power conferred by s 51(xxxix), read with s 61, or the 'nationhood' power as discussed in those cases for two reasons. First, the royal style and titles referred to in the schedule to the 1973 Act was actually adopted by royal proclamation - that is, by a prerogative act of the Queen. As French CJ observed in Pape, the executive power of the Commonwealth Government includes the prerogatives of the Crown [126] - [127].
56 Second, there is nothing in the authorities to which I have referred that suggests that the style and titles of the monarch to be adopted in Australia is a matter that is outside the executive and legislative powers of the Commonwealth. The 1973 Act (and the 1953 Act) were within the executive power of the Commonwealth by their very subject matter and within the legislative power of the Commonwealth as either incidentally conferred by s 51(xxxix) or deduced from the nature and status of the Commonwealth as a national polity.
57 This overly discursive treatment of the appellant's arguments should not be taken as suggesting that there is any well-founded basis for contending the 1973 Act is invalid with the consequence that Bills passed by the Commonwealth Parliament since the commencement of the Act have not received the Royal Assent (indeed, the logic of the appellant's argument is that the alleged invalidity stretches back beyond the 1973 Act). Analogous arguments were dismissed in a few sentences by Hayne J in Joosse. In another case in which Mr Piccinin was permitted to act as a McKenzie friend, Deputy Commissioner of Taxation v Aitken [2015] WADC 18, Bowden DCJ rightly linked arguments of the kind advanced by the appellant in this matter with a number of faux constitutional arguments that have been raised in this and other jurisdictions in recent years [40].
Proposed grounds of appeal 7 and 8 in Hopes dealt with the effect of the covering clauses 2 and 5 of the Commonwealth of Australia Constitution Act 1900 (UK), and the argument that they had the effect of not recognising a sovereign authority different from that therein contained, namely the sovereign of the United Kingdom. In that regard, the Supreme Court of Western Australia in Hopes at [65]-[66] per Corboy J said as follows:
65 Proposed grounds 7 and 8 allege that both the appellant and the magistrate were bound by covering cl 2 and covering cl 5 of the Commonwealth of Australia Constitution Act to, in effect, not recognise 'an authority diverse from' the terms of those covering clauses.
66 In Southern Centre of Theosophy Inc v South Australia [1979] HCA 59; (1979) 145 CLR 246, Gibbs J observed that the 1973 Act was a 'formal recognition of the changes that had occurred in the constitutional relations between the United Kingdom and Australia' (261). Hayne J in Joosse emphatically rejected the proposition that the 1973 Act worked a fundamental constitutional change. The change in the royal style and titles of the monarch is a change of form rather than substance and does not alter the constitutional status of the Crown or the Queen. There is nothing incompatible between the 1973 Act and the style and title set out in the schedule to that Act as subsequently proclaimed by Her Majesty and covering cl 2 of the Commonwealth of Australia Constitution Act. The 1973 Act is binding on the 'courts, judges, and people of every State and of every part of the Commonwealth' in accordance with covering cl 5. Bills presented to the Governor-General, including the Bills that became the Corporations Act and the ASIC Act, have received the Royal Assent by Her Majesty as required by s 58 of the Commonwealth of Australia Constitution Act.
In a later WA Court of Appeal judgment the WA Court of Appeal rejected proposed grounds of appeal which it said “seek to ventilate eccentric and irrational constitutional theories and theories about standing which this court has rejected in … [Hopes Appeal]”: Corica v Throssell [2017] WASCA 209 (“Corica”) at [22] per Buss P and Mazza and Beech JJA.
In this case it suffices to observe that the argument put forward by the respondents that the relevant federal and state legislation (and in particular the RST Act, the FCCA Act and the Bankruptcy Act) is invalid because it has been proclaimed in the name of the Queen of Australia is one that has been rejected, directly, by the High Court in Joosse and Helljay Investments, and by the WA Court of Appeal in Hopes Appeal and Corica, by the WA Supreme Court in Hopes, and by the District Court of Western Australia in Aitken – District Court, and indirectly by the Full Court of the Federal Court of Australia and the Federal Court respectively in Piccinin Appeal and Piccinin respectively, and the argument also runs directly contrary to the observations made by the High Court in Southern Theosophy Centre.
The respondents’ reliance upon the First Constitutional Report of 1988 (“First Constitutional Report”) is misconceived. The First Constitutional Report does not bind this Court, but rather this Court is bound by findings (including considered observations) of superior courts in its judicial hierarchy such as the High Court, the Full Court of the Federal Court, and the Federal Court: Minister for Immigration & Multicultural & Indigenous Affairs v SZANS [2005] FCAFC 41; (2005) 141 FCR 586; (2005) 215 ALR 733; (2005) 86 ALD 583 at [38] per Weinberg, Jacobson and Lander JJ; Suh & Ors v Minister for Immigration & Citizenship & Anor [2009] FCAFC 42; (2009) 175 FCR 515; (2009) 108 ALD 470 at [29] per Spender, Buchanan and Perram JJ; CEPU (Western Australia Division) v Fortescue Metals Group Ltd [2016] FCCA 1227; (2016) 310 FLR 1 at [51]-[54] per Judge Lucev, and whilst not binding, judgments of superior state courts, such as the WA Court of Appeal and the Supreme Court of Western Australia, are persuasive. Likewise, the judgment of an intermediate state court such as the District Court may also be persuasive. In the circumstances, the Court is bound to apply Joosse and Helljay Investments, Piccinin Appeal and Piccinin, each of which it regards as correctly decided in any event, and also finds that Hopes Appeal, Hopes, Corica and Aitken –District Court are persuasive, and also correctly decided. Following on from that, the respondents’ various assertions about the alleged invalidity of federal and state legislation and the Sequestration Order made by a Registrar of this Court, said to be invalid by reason of the alleged failure of the Trustee to respond to various notices and documents cannot constitute admissions as to the alleged invalidity of any federal or state legislation, or any orders of this Court, or admissions as to any aspect of the respondents’ arguments in these proceedings. The Trustee’s failure to deny plainly false assertions and false conclusions concerning the validity of legislation and orders and the jurisdiction of this and other courts is not a proper basis for any aspect of the respondents’ arguments in these proceedings.
The respondents’ argument that the relevant federal and state legislation (and in particular the RST Act, the FCCA Act and the Bankruptcy Act) is invalid because it has been proclaimed in the name of the Queen of Australia is simply unarguable, and has been so for more than 20 years since the High Court’s judgments in Joosse and Helljay Investments. The argument that this Court does not have jurisdiction to hear the Trustee’s application filed 6 February 2018 is therefore without any substance whatsoever.
It follows from the above that this Court has jurisdiction to hear the Trustee’s application filed 6 February 2018, and the respondents Application in a Case filed 9 March 2018 will be dismissed.
Representation
Order made
On 2 March 2018 the Court made an order that:
1. Any Application in a Case by any respondent to appear other than by a lawyer or in person be filed and served by 9 March 2018 together with any affidavit in support.
2. Any outline of submissions in support of the Application in a Case also be filed by 9 March 2018.
The Proposed Application in a Case with respect to representation was not filed until 12 March 2018, and no submissions in support thereof were filed at all.
Extension of time
Legislative provision – extension of time
Rule 3.05 of the Federal Circuit Court Rules 2001 (Cth) (“FCC Rules”) provides as follows:
(1) The Court may extend or shorten a time fixed by these Rules or by a judgment, decree or order.
(2) A Registrar may extend or shorten a time fixed by these Rules.
(3) The time fixed may be extended even if the time fixed has passed.
(4) A time fixed by these Rules or by a judgment, decree or order for service, filing or amendment of a document may be extended by consent without an order.
Factors
In the exercise of the Court’s discretion under r.3.05 of the FCC Rules to extend the time specified in a Court order no criteria for extending the time are set out. This Court’s discretion is, therefore, unfettered, but it is generally accepted that the relevant considerations are those set out by the Federal Court in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344; (1984) 58 ALR 305; (1984) 7 ALD 315, FCR at 348-349 per Wilcox J (“Hunter Valley Developments”), which is regularly applied in this Court, namely:
a)the length of the delay;
b)the explanation for the delay;
c)the prejudice to the other party; and
d)the prospects of success of the underlying application (in this case the proposed Application in a Case), with the emphasis generally being on this latter issue.
See also: Winn v Blueprint Instant Printing Pty Ltd [2011] FCA 292 at [15]-[16] per Ryan J and Deputy Commissioner of Taxation v Jaskola [2011] FMCA 67; (2011) 82 ATR 61; (2011) 8 ABC(NS) 603 at [18] per Lucev FM.
It is for the Court to weigh the factors and, according to the particular circumstances, one factor may outweigh another: Hawkins v Kingsway Group Ltd [2009] FCA 1073 at [5] per Stone J.
Length of and explanation for delay
As to the length of the delay it is three days, but effectively one working day, given that the weekend of 10 and 11 March 2018 intervened. The length of the delay is thus as short as it could possibly be. The explanation for the delay given at hearing, but unsupported by any evidence, was that the Proposed Application in a Case was rejected for filing by a Registrar of this Court on 9 March 2018. A review of the Court file indicates that:
a)a Registrar of this Court rejected for filing three documents entitled “Notice of Special Appearance” on 28 February 2018 (the Notices of Special Appearance having been lodged with the Registry on 26 February 2018);
b)on 9 March 2018 Notices of Appearance in regular form, were filed, and not rejected;
c)on 9 March 2018 the Registrar rejected for filing various documents in relation to the Application in a Case with respect to jurisdiction, which were subsequently re-filed later that day; and
d)it was not until 12 March 2018 that the Proposed Application in a Case for Mr Piccinin to be given leave to appear for the respondents in these proceedings was actually lodged.
In the circumstances, the explanation proffered for the delay, namely the rejection of documents by the Registrar is incorrect. The Registrar did not reject any Proposed Application in a Case with respect to leave to appear for Mr Piccinin because none was sought to be filed prior to the Proposed Application in a Case with respect to representation being lodged on 12 March 2018. The Notices of Appearance in regular form which were filed on 9 March 2018 were accepted for filing, the Registrar obviously taking the view that the deficiencies in the Notices of Special Appearance previously sought to be filed, had been corrected.
In the above circumstances the explanation proffered by Mr Piccinin at hearing for the late lodgment of the Proposed Application in a Case with respect to representation is not made out. Otherwise, there is no explanation, either proffered at hearing or otherwise discernible on the evidence (and no specific evidence was filed with respect to the delay in filing the Proposed Application in a Case with respect to representation), concerning the explanation for the late lodgment. In all of the above circumstances, there is, therefore, no adequate explanation for the delay. Thus, whilst the length of the delay is as short as possible, there is no explanation for the delay, and in those circumstances the mere fact that there is a short delay must be balanced against the failure to offer an explanation for the delay, noting that an acceptable explanation for the delay is not an indispensable prerequisite for an application for an extension of time being granted: Comcare v A’Hearn (1993) 45 FCR 441; (1993) AAR 366; (1993) 119 ALR 85, FCR at 444 per Black CJ, Gray and Burchett JJ.
In all the circumstances, the length of the delay and the explanation for the delay, or in this case the lack of an explanation for the delay, when taken together are best considered as being factors which whilst not weighing in favour of an extension of time, do not weigh against it.
Prejudice
As to prejudice, Counsel for the Trustee conceded at hearing that there was no prejudice to the Trustee by reason of the extension of time sought, but the mere fact that there is no prejudice does not of itself justify an extension of time: Hunter Valley Developments, FCR at 349 per Wilcox J. Thus, this factor is neutral in the assessment of the extension of time.
Merits
The Court has dealt with the merits below more fully than might be usual for an extension of time application on the basis that if its conclusion with respect to an extension of time is wrong, then the Proposed Application in a Case for Mr Piccinin to be given leave to appear for the respondents in these proceedings can be determined in the alternative.
Legislative provisions – representation
Section 44 of the FCCA Act provides as follows:
A party to a proceeding before the Federal Circuit Court of Australia is not entitled to be represented by another person unless:
(a) under the Judiciary Act 1903 , the other person is entitled to practise as a barrister or solicitor, or both, in a federal court; or
(b) under the regulations, the other person is taken to be an authorised representative; or
(c) another law of the Commonwealth authorises the other person to represent the party.
The Court observes that there is provision in the FCC Rules for the Court to grant leave to a person to appear for a corporation: FCC Rules, r.9.04, which is not applicable in this case, but no other relevant qualification to s.44 of the FCCA Act appears in the FCCA Act or FCC Rules. It is important to observe that the power of the Court to allow a person to appear for a party strictly limits the persons who may appear.
The purpose underlying legislative provisions such as s.44 of the FCCA Act is to ensure that in accordance with the interests of justice and the administration of justice the Court is assisted by those qualified and experienced in arguing legal disputes and who have ethical duties to clients and the courts: Groundwater v Territory Insurance Office [2004] FMCA 381; (2004) 183 FLR 437 at [40] per Brown FM; Alcantara & Anor v Buildpower Pty Ltd [2010] FMCA 626; (2010) 199 IR 73 at [10] per Lucev FM. Lawyers may also be of considerable assistance to the Court in the proper assessment of fact: Re Molnar Engineering Pty Ltd v Burns (1984) 3 FCR 68 at 74 per Smithers J.
In this case reliance is placed upon s.44(c) of the FCCA Act in that the respondents say that there is another law of the Commonwealth authorising Mr Piccinin to represent the respondents in these proceedings, seemingly s.308(c) and (d) of the Bankruptcy Act. Although the Proposed Application in a Case seeking leave for Mr Piccinin to appear for the respondents in these proceedings only refers to s.308(d) of the Bankruptcy Act, the Court has also considered that s.308(c) of the Bankruptcy Act might also have been sought to be relied upon, and in this respect, its view is strengthened by reason of the fact that a letter from a consultant psychiatrist is in evidence in relation to current psychiatric conditions said to be suffered by Mr Peter Aitken.
Section 308(c) and (d) of the Bankruptcy Act provides as follows:
Subject to this Act, for the purposes of this Act:
(c) a person of unsound mind may act by a person authorized or empowered by law to act for him or her; and
(d) any person may act by his or her agent duly authorized in that behalf.
Evidence
The evidence seemingly relied upon by the respondents for the appearance by a non-lawyer case is in an affidavit of Mr Peter Aitken affirmed 12 March 2018 (“Mr Peter Aitken’s Appearance Affidavit”), and is in the following terms:
1. I have spoken with my wife and with my father on the issue of having their representation organised by me so as to authorise a Power of Attorney be given to Neil Piccinin in this application by Natasha Petrie;
2. The document declaring the Power of Attorney by Peter Aitken is annexed as “Annexure A’;
3. The document declaring the Power of Attorney by Judith Aitken is annexed as 'Annexure B';
4. The document declaring the Power of Attorney by Judith (sic: Henry) Aitken is annexed as 'Annexure C';
5. The doctors certificate unto my name is attached for cause to have representation on the inability to present complex matters in a court setting due to depression and anxiety is annexed as 'Annexure D';
6. The doctors certificate unto my fathers name, Henry Aitken, for the inability to attend court due the infirmity and fragility of age is annexed as ‘Annexure E’.
The Powers of Attorney granted to Mr Piccinin by each of the respondents are, for relevant purposes, identical and in the following terms:
2.I authorise my attorney, subject to clause 3, to do on my behalf anything that I may lawfully authorise an attorney to do.
3.This Power of Attorney is subject to the following conditions, limitations, of exclusions:
This Power of Attorney is limited to making enquiry and presenting information, with reference to validity of the bankruptcy order and jurisdiction, and acting for the donor in the court proceedings under application of Natasha Petrie, acting as bankruptcy Trustee of Peter Aitken, listed as PEG75/2018.
Reliance is seemingly also placed on a letter from a Consultant Psychiatrist, Dr SD Febbo, dated 1 March 2018 (“Dr Febbo’s Letter”), which is Annexure D to Mr Peter Aitken’s Appearance Affidavit. Dr Febbo’s Letter relates to Mr Peter Aitken and is relevantly in the following terms:
I have been Mr Aitken's treating psychiatrist since November 2016. Mr Aitken suffers from a major depressive disorder with associated anxiety in the context of significant psychosocial stressors, in particular the court processes.
Mr Aitken is on medication that includes anti-depressant medication and a mood stabilizer. With this medication his mental state has improved but to a limited extent.
At today's interview I noted that Mr Aitken continues to experience at least moderate residual symptoms of depression and anxiety, in particular considerable difficulties in concentration and memory.
In my opinion, Mr Aitken would have considerable difficulties in providing information to the court. The anxiety that would be associated with him having to give evidence would be of a nature as to greatly interfere with his capacity to provide useful information. He would, for example, experience difficulties in recalling information and giving his evidence in a coherent manner.
The Court notes that Annexure E to Mr Peter Aitken’s Appearance Affidavit is a Medical Certificate concerning Mr Henry Aitken (“Mr Henry Aitken Medical Certificate”), dated 28 February 2018, which is in the following terms:
THIS IS TO CERTIFY THAT
Mr Henry Aitken 30/07/1920 has a medical condition and hence in my opinion he is not in a position to attend any court proceedings.
The Mr Henry Aitken Medical Certificate is signed by, and bears the stamp of, Dr Kiran Puttappa, who appears to be a general practitioner.
There is no medical evidence in relation to Mrs Aitken.
There is also no evidence directly from either Mrs Aitken or Mr Henry Aitken.
Law
In Slack v Bottoms English Solicitors & Ors [2003] FCA 1337 (“Slack”) at [6] per Spender J the Federal Court, having referred to s.44 of what was then the Federal Magistrates Act 1999 (Cth) (“FM Act”), and then having set out s.308 of the Bankruptcy Act, said that:
6. This section does not provide a basis for Mr Laghaifar to act on Mr Slack’s behalf in the Federal Magistrates Court in resisting the making of a sequestration order, nor does it provide a basis for him to act on Mr Slack’s behalf on this appeal. Such acting is not the doing of an act ‘for the purposes of’ the Bankruptcy Act.
In Ray v Perrett [2007] FCA 1672 (“Ray”) at [17] per Graham J Slack was cited without disapproval by the Federal Court.
In Kerr v American Express Australia Ltd [2009] FCA 1219 (“Kerr”) the applicant, a Ms Kerr, did not appear, but a Mr Kerr, who was Ms Kerr’s husband, holding a power of attorney for Ms Kerr, applied for leave to represent her in court on that day in bankruptcy proceedings. In Kerr at [5] per Collier J the Federal Court cited Slack and said as follows:
It is clear that a power of attorney as held by Mr Kerr from Ms Kerr does not provide a lawful basis for a non-lawyer to act for a party in litigation in a Federal Court …
Slack, Ray and Kerr, being judgments of the Federal Court which are directly on point are binding on this Court: see the authorities cited at [35] above.
Section 308(c) of the Bankruptcy Act appears to have been considered by this Court in Gaudron v Dalwood [2001] FMCA 111 at [23] per Driver FM where it was ultimately held that a person with a physical infirmity as a result of a brain stem infarction preventing that person from managing her own affairs was not a person of unsound mind within s.308(c) of the Bankruptcy Act. The rationale, however, was that the person was not a patient as defined in s.4 of the Protected Estates Act 1983 (NSW), being a person suffering a mental disability, and that because she was not a patient she was not a person of unsound mind for the purposes of s.308(c) of the Bankruptcy Act.
In Trouton v Official Receiver in Bankruptcy [2014] FCCA 2345; (2014) 12 ABC(NS) 358 (“Trouton”) this Court delivered an ex tempore judgment in which it referred to certain English authority which said, uncontroversially, that a person of unsound mind was incapable of committing an act of bankruptcy involving intent on their part: Trouton at [19] per Judge Jarrett, and went on to observe that “just what is meant by a person of unsound mind is unclear” and that the phrase as it appears in s.308(c) of the Bankruptcy Act “is not particularly helpful”: Trouton at [21] per Judge Jarrett. The Court went on to observe in Trouton at [22] per Judge Jarrett that s.308(c) of the Bankruptcy Act appears to be permissive in that it seems to contemplate that for some purposes a person of unsound mind might be competent to act for the purposes of the Bankruptcy Act because it does not require a person to act by an agent, and that if it was the intention of Parliament that a person of unsound mind should only act by an agent words to that effect could have been used, but had not been.
The phrase “person of unsound mind” is a phrase to be interpreted in accordance with the normal tenets of statutory interpretation which, ultimately, is to give effect to the purpose of Parliament as expressed in the text of statutory provisions as part of the overall objective of statutory construction: Project Blue Sky Inc & Ors v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355; (1998) 72 ALJR 841; (1998) 153 ALR 490 at [69] per McHugh, Gummow, Kirby and Hayne JJ; Acts Interpretation Act 1901 (Cth), ss.15AA and 15AB.
In Gibbons v Wright (1954) 91 CLR 423; [1954] ALR 383 (“Gibbons”) the High Court was dealing with the effect of incapacity on conveyances, powers of attorney and contracts, and whether they were void or voidable. In Gibbons the High Court observed that:
a)the law relating to “persons who are lunatics so found” had to be put to one side: Gibbons CLR at 439 per Dixon CJ, Kitto and Taylor JJ, because such a person was incompetent because their power of disposition of property passed to the Crown: Gibbons CLR at 440 per Dixon CJ, Kitto and Taylor JJ; and
b)the development of the law in relation to acts done by a person of unsound mind had been significantly affected by earlier doctrine which had since been abandoned, but which, even during its currency, had been the subject of exception: Gibbons CLR at 440-449 per Dixon CJ, Kitto and Taylor JJ.
In the course of discussing the issues the High Court in Gibbons CLR at 444 per Dixon CJ, Kitto and Taylor JJ observed that:
… proof of a conveyor's incapacity to understand the nature of the instrument is not proof that it is not his deed, and it therefore provides no logical ground for holding that the deed is void.
In Gibbons CLR at 449 per Dixon CJ, Kitto and Taylor JJ the High Court went on to set out what it regarded “as settled law”, namely that:
… an instrument of conveyance executed by a person incapable of understanding its effect, in the sense of its general purport, is not on that account void, though in the circumstances it may be voidable by the conveyor or his representatives.
Gibbons has the effect, as described in the headnote to it, of prescribing that the law does not prescribe any fixed standard of sanity (or unsoundness of mind) as a requisite for the validity of transactions, but rather requires that in respect of every transaction what is required is a capacity in each party to understand the general nature of what the party is doing by participating in that transaction, and that that requirement is satisfied, where a transaction is contained in a written instrument, if each party is capable of understanding the general purport of the instrument when explained to that party.
In Angliss v Urquhart & Anor [2002] NSWCA 256 (“Angliss”) the New South Wales Court of Appeal, having referred to Gibbons, observed that in order to make out that revocations were void it “would require quite extreme deficiency in the understanding of the third defendant”: Angliss at [32] per Hodgson JA.
In Bridgewater & Ors v Leahy & Ors [1998] HCA 66; (1998) 194 CLR 457; (1998) 72 ALJR 1525; (1998) 158 ALR 66 (“Bridgewater”) the majority in the High Court adverted to Gibbons, without disapproval, but only for the purpose of indicating that the appellants did not submit that the relevant transfers and deed were voidable because the person concerned was incapable of understanding their effect, in the sense of their general purport: Bridgewater at [65] per Gaudron, Gummow and Kirby JJ.
In Murphy v Doman (As Representative Of The Estate Of The Late Min Simpson) & Anor [2003] NSWCA 249; (2003) 58 NSWLR 51 at [33] per Handley JA (with whom Tobias JA agreed), Gibbons was referred to as evidence for the proposition that there is no universal test for determining whether a person is capable of managing their own affairs.
Consideration – representation
Section 308(c) and (d) of the Bankruptcy Act does not provide a basis for any person to act or appear as a non-lawyer advocate for a person in bankruptcy proceedings in this Court, and it is plain that the intention of s.308(c) and (d) of the Bankruptcy Act is to allow agents to file papers on behalf of a bankrupt, and deal with administrative issues, not to allow a person who is a non-lawyer to appear in court on behalf of a bankrupt: Slack, Ray and Kerr.
The medical evidence also fails to establish that any of the respondents, and in particular Mr Peter Aitken and Mr Henry Aitken to whom the medical evidence specifically relates, are of unsound mind for the purposes of s.308(c) of the Bankruptcy Act. The Court notes that there is no evidence as to Mrs Aitken’s state of mind. The utility of the medical evidence in these proceedings is limited by the fact that there is no evidence of any incapacity on the part of any of the respondents to understand the general purport of these proceedings (even if s.308(c) and (d) of the Bankruptcy Act referred to a right of appearance in bankruptcy proceedings, which, for reasons set out above, it does not).
In relation to Mr Henry Aitken’s Medical Certificate the Court observes that there are many judgments of the Federal Court and this Court that establish that a person alleging a medical condition and seeking to rely upon that medical condition for the grant of an indulgence, such as being excused from attending Court proceedings, needs to provide sworn evidence to the Court concerning the medical condition: see, for example, Luck v Chief Executive Officer of Centrelink [2015] FCAFC 75 (“Luck”) at [48]-[49] per Collier, Griffiths and Mortimer JJ; BYF15 v Minister for Immigration & Border Protection [2016] FCA 774 at [35] per Perry J; Singh v Minister for Immigration & Border Protection [2016] FCA 108 at [20] per Pagone J; Ellis v Rottnest Lodge (1989) Pty Ltd Trading As Rottnest Lodge (No 2) [2017] FCCA 190 at [35] per Judge Lucev; Zubair v Minister for Immigration & Border Protection & Anor [2017] FCCA 2905 at [7] per Judge Lucev. The Court notes that at the time of the hearing Mr Henry Aitken would have been 97 years of age. It is not however his age which is put in issue in Mr Henry Aitken’s Medical Certificate but an unspecified medical condition said to result in Mr Henry Aitken not being in a position to attend any Court proceedings. As the Full Court of the Federal Court noted in Luck at [49] per Collier, Griffiths and Mortimer JJ, citing NAKX v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1559 at [6] per Lindgren J, a medical certificate such as Mr Henry Aitken’s Medical Certificate is “quite unsatisfactory” and does not address the critical question as to whether, and if so why, the medical condition prevents Mr Henry Aitken from attending Court or participating effectively in any Court hearing. The evidence as to why Mr Henry Aitken might be medically unfit to attend proceedings in this Court cannot be given by a non-medically qualified person, as Mr Peter Aitken has endeavoured to do here: Mr Peter Aitken Appearance Affidavit at [6].
Because Mr Piccinin does not have a right to appear by reason of s.308(c) and (d) of the Bankruptcy Act, and because no other exception under s.44 of the FCCA Act is relied upon, Mr Piccinin has no right of appearance in this Court. That is because, save for the exceptions in s.44 of the FCCA Act, there is an absolute prohibition on a person being represented by another person in this Court. That prohibition emanates from the use of the words “is not entitled” in s.44 of the FCCA Act. The word “not” is an adverb of negation: The Shorter Oxford English Dictionary on Historical Principles, Volume II (Oxford: Clarendon Press, 1973), page 1415. That means that save for the exceptions arising from s.44 of the FCCA Act there is no entitlement for another person to represent a person in this Court.
In the above circumstances, Mr Piccinin has no right or entitlement to represent the respondents in these proceedings in this Court. It follows that the Proposed Application in a Case for Mr Piccinin to appear as a non-lawyer for the respondents has no prospect of success. That is a proper factor to take into account and one weighing heavily against the application to extend time to file the Proposed Application in a Case with respect to representation: Hunter Valley Developments, FCR at 349 per Wilcox J, and it has been said that it will rarely be in the interests of the administration of justice to extend time to file an application which has little or no prospect of success: MZZIV v Minister for Immigration & Border Protection [2013] FCA 1203 at [6] per Mortimer J, even though it is unnecessary for an applicant to positively establish that the application will succeed at final hearing: ActewAGL Distribution v Australian Energy Regulator [2011] FCA 639; (2011) 195 FCR 142; (2011) 123 ALD 486 at [111] per Katzmann J.
In the circumstances of this case the lack of merit in the Proposed Application in a Case for Mr Piccinin to appear as a non-lawyer in the proceedings for the respondents is the predominant factor (arising as it does from a statutory prohibition), and one in respect of which the Court is of the view that it must prevail over the other factors, such that an extension of time must be refused because it is not in the interests of the administration of justice that time be extended to allow the filing of the Proposed Application in a Case which has no prospect of success. In circumstances where it is necessary to persuade the Court that an extension of time ought to be granted, it is relevant that no factor which the Court is required to consider weighs in favour of the grant of an extension of time, although the length of the delay and the fact that there is no prejudice do not particularly weigh against the application for an extension of time. In all the circumstances, the Court has concluded that time to file the Proposed Application in a Case for Mr Piccinin to appear as a non-lawyer for the respondents in this matter ought not be extended. It also follows that even if the conclusion that the Court has reached with respect to extension of time is in error because factors other than the merits ought to have been afforded more weight, the Court would have concluded (and does conclude to the extent that it is necessary to do so) that an application for an extension of time would have lacked merit for the reasons set out above, and would therefore have been dismissed in any event.
Even though the Trustee filed quite extensive and helpful submissions with respect to the issue of whether Mr Piccinin might appear as a McKenzie friend it is unnecessary to consider those submissions in circumstances where no application to appear as a McKenzie friend was made.
Other post-hearing matters
The Court has been made aware that there has been correspondence sent to the Court:
a)by Mr Piccinin on behalf of the respondents putting further submissions in support of the jurisdiction argument; and
b)exchanges of correspondence between the parties as to the necessity for notices to issue under s.78B of the Judiciary Act 1903 (Cth) (“Judiciary Act”).
The Court has briefly read, but not otherwise engaged with the submissions and correspondence, other than to ascertain what, in general terms, it is about, as described above: see [81] above. There was no application, properly made and supported by affidavit, to reopen the case. Even if there had been, the position with respect to jurisdiction is, on the authorities set out above, beyond doubt: see [15]-[34] above, and no amount of further submissions on behalf of the respondents could alter that position. In relation to s.78B of the Judiciary Act the position is also clear, namely, that the alleged constitutional issues are without substance and unarguable, and therefore would not require this Court to issue notices under s.78B of the Judiciary Act: Von Reisner v Commonwealth (No 2) [2008] FCA 430 at [15] per Flick J; Deputy Commissioner of Taxation v Warrick (No 2) [2004] FCA 918; (2004) 56 ATR 317; (2004) ATC 4779 at [103] per French J; Hopes at [41] per Corboy J.
The post-hearing submissions and materials do not, therefore, require further consideration by the Court.
Conclusions
The Court has concluded that:
a)it has jurisdiction to hear the Trustee’s application filed 6 February 2018, and the respondents’ Application in a Case filed 9 March 2018 will be dismissed; and
b)the time prescribed in the Court’s orders of 2 March 2018 for the respondents to file an Application in a Case seeking that Mr Piccinin be given leave to appear for the respondents in these proceedings not be extended. It is therefore unnecessary to make an order dismissing the Proposed Application in a Case seeking leave for Mr Piccinin to appear for the respondents in these proceedings: BZABK v Minister for Immigration & Citizenship & Anor [2012] FCA 774; (2012) 205 FCR 83 at [43] per Foster J, as it is incompetent.
There will be orders to reflect the above conclusions, together with appropriate programming orders. The Court will hear the parties as to costs.
I certify that the preceding eighty-five (85) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Date: 16 January 2019
28
63
13