State of New South Wales v O'Meara

[2001] FCA 830

FEDERAL COURT OF AUSTRALIA

State of New South Wales v O’Meara [2001] FCA 830

IN THE MATTER OF KENNETH IAN O’MEARA

STATE OF NEW SOUTH WALES v KENNETH IAN O’MEARA
N7171 of 2001

MADGWICK J
29 MAY 2001
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N7171 of 2001

BETWEEN:	STATE OF NEW SOUTH WALES APPLICANT
AND:	KENNETH IAN O'MEARA RESPONDENT
JUDGE:	MADGWICK J
DATE OF ORDER:	29 MAY 2001
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.   A sequestration order be made against the estate of Kennth Ian O’Meara.

2.   The applicant’s costs be paid from the estate of the respondent in accordance with the provisions of the Bankruptcy Act 1966 (Cth)

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N7171 OF 2001

BETWEEN:	STATE OF NEW SOUTH WALES APPLICANT
AND:	KENNETH IAN O'MEARA RESPONDENT

JUDGE:	MADGWICK J
DATE:	29 MAY 2001
PLACE:	SYDNEY

REASONS FOR JUDGMENT
(revised from transcript)

HIS HONOUR:

1. In this matter, every formal proof needed to justify the making of a sequestration order was conceded by the respondent, save one matter.  It appeared that at least one of the leading bankruptcy practice books had not noted up the most recent version of the Bankruptcy Rules, in the absence of which the respondent had submissions, the last time the matter was before me, that there was one formal defect in the proofs.  Counsel for the applicant, having brought the correct position as to the rules to light, I adjourned the matter to permit the respondent to make any further submissions that he wished and gave directions about filing them.  No submission has been made.  The respondent has failed to appear, having been notified in court of today's date, and my own view is, as I have indicated, that on the up-to-date Bankruptcy Rules there is nothing in the technical point raised by the respondent.

2. As to substance, the respondent raised a constitutional issue, and notice of the constitutional matter was duly given in accordance with the Judiciary Act 1903 (Cth). No government sought to appear in the matter. The constitutional grounds are:

   “4.The Bankruptcy Act 1966 is invalid, having been enacted under the provisions of the Commonwealth of Australia Constitution Act 1901, which act was never:

   a)   Lawfully proclaimed, and/or

   b) Put to the electors for acceptance or rejection not sooner than eight weeks after the Constitution was said to have commenced.

   Consequently the Constitution is invalid.

   5. The Federal Court system of Australia having been created under the provisions of the Constitution, it follows that in the event that the opponent’s submissions are accepted, then consequently the Federal Court system of Australia is without jurisdiction. It follows that all judicial and executive members of the Federal Court system of Australia have a vested interest in the outcome of the opponent’s submissions, consequently are not competent to hear this matter.

   No impartial observer could comprehend that the Federal Court system and its members would not be biased under the circumstances.

   6. The opponent submits that the appropriate course of action is for the acceptance or rejection of the Constitution to be put to the electors, as proclaimed by Earl Beauchamp.

   7.   The opponent does not agree to be bound by the provisions of the act of a foreign power or any enactments made under such act.”

3. This submission stems from a misconception.  The source of the confusion is a proclamation which Sir William Earl Beauchamp issued as the Governor of the Colony of New South Wales on 11 July 1899.  The proclamation recited that “…an Act … intituled "An Act to make provision for the acceptance and enactment of a Federal Constitution for Australia”” should be referred and submitted to the vote of the electors. The substance of the proclamation recorded that, as a majority of the electors had accepted the Constitution, the Governor formally declared that the new Constitution had been accepted.

4. The Act referred to in the Constitution was not the Commonwealth of Australia Constitution Act 1901 (Cth) (“the Constitution Act”) but an 1898 Act of the British Parliament authorising the submission to the people of Australia the question whether the Constitution, as embodied in, what in time became the Constitution Act, should be adopted.

5. Mr O'Meara claimed that there had never been a plebiscite after the passage of the Constitution Act and accordingly all purported Commonwealth statutes, including the Bankruptcy Act 1966 (Cth) (“the Act”) were invalid. However, on a true understanding of the legislative history, this never was required, and accordingly, that objection fails.

1. The remaining argument, that in substance Mr O'Meara as an Australian citizen cannot be bound by the provisions of an "act of a foreign power", namely the Constitution Act, is quite without foundation, and nothing in recent constitutional developments and recognition of England’s present status as a foreign country could possibly found such an argument. 

2. I am satisfied with the proof of the matters required by s 52 of the Act and for these reasons, in my opinion, a sequestration order should be made.

3. The orders of the Court will be:

   (1)A sequestration order be made against the estate of the respondent;  and

   (2)The costs of the applicant are to be paid from the estate of the respondent in accordance with the provisions of the Act.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick.

Associate:

Dated:             2 July 2001

Counsel for the Applicant:	B DeBuse
Solicitor for the Applicant:	Australian Government Solicitor
Respondent appeared in person
Date of Hearing:	22 and 29 May 2001
Date of Judgment:	29 May 2001