Walsh & Walsh v Professional Nominees Pty Ltd

[1998] QCA 259

COURT OF APPEAL	[1998] QCA 259
PINCUS JA THOMAS J DERRINGTON J
Appeal No 5591 of 1998 Appeal No 5592 of 1998
DAMIEN HAROLD WALSH and PAULA CLARE WALSH	Appellants
and
PROFESSIONAL NOMINEES PTY LTD	First Respondent
and
LAW PARTNERS MORTGAGES PTY LTD	Second Respondent
BRISBANE
..DATE 20/07/98
JUDGMENT 200798 D.1 T3/MT1 M/T COA161/98

PINCUS JA: There are before the Court two applications to stay judgments pending appeal. One the Governor-General and State Governors are illegal, apparently on the basis that these procedures involve a foreign nation, namely the United Kingdom, legislating for another member of the United Nations, namely Australia. It is also said that there was never a referendum by the Australian people assenting to the use of the United Kingdom's statute as the Australian Constitution. I note as a matter of history that there were a number of referendums preceding federation. Majorities in all the States except Western Australia approved a Constitution Bill in 1899 and a majority in Western Australia did so in 1900. Shortly before that last referendum the Bill, somewhat amended from the form which had been submitted to the people in 1899, was passed through both Houses of the United Kingdom Parliament and received the Royal assent.

is to stay a judgment of the District Court given on 25 May 1998 and the other to stay a judgment of
the Supreme Court given on 19 June 1998. We have been provided with copies of the formal
orders taken out on 25 May 1998. The District Court made two orders, one of which adjudged
pursuant to Rule 143 of the Rules of that court that the plaintiff, Professional Nominees Proprietary
Limited, recover against the applicants the sum of $83,333. On 19 June 1998 it was ordered in the
Supreme Court that the applicant, Damien Harold Walsh, deliver up possession of certain premises
and judgment was given against him in the sum of $302,452.06 with costs. We have been provided
with an outline or argument from the applicant Damien Harold Walsh and Mr Walsh has expanded
upon that orally today. I should note that none of the arguments advanced suggest that the sums I
have mentioned are not due. It is said that despite the Commonwealth Constitution Act, Australia
remained a colony of the United Kingdom after federation; that it became sovereign on
10 January 1920 when it became a member of the League of Nations and that for various reasons
all colonial laws applying to Australia before that date are voided and therefore the Australian

Apart from that, there was no legal obligation upon the United Kingdom Parliament to refrain from passing such a statute unless a proposal to do so had been approved by referendum.

The other points mainly amount to this: that the Commonwealth Constitution has no legal effect;
therefore, as it seems to me, it would follow that the Commonwealth Government does not exist;
and secondly, it is said that the process of Royal assent is contrary to international law and therefore,
presumably, no statutes enacted since 1920 have any validity. I note that it is not argued that the
common law which creates the obligation of debt does not exist either. And I also note that the
proposition which underlies much of what has been argued, that international law over-rides

domestic law, is simply incorrect.

What has been argued by Mr Walsh, although he no doubt has put it up honestly and sincerely and
believes it has substance, is simply absurd and does not merit discussion. There is absolutely nothing
in the points sought to be argued and the case is plainly one in which no ground has been shown for
a stay. In both cases the application must be dismissed, in my view with costs.

THOMAS J: I agree. I am satisfied that the Common Law applies to dealings between citizens in this country. I am also satisfied that our law includes various State and Commonwealth statutes including the Real Property Acts and their replacements. I reject the submissions that allege usurpation of power by Governments and Courts. It is appropriate that debts be paid and contracts carried out. There is no arguable ground of appeal. Accordingly the application for stay should be refused.

DERRINGTON J: I regret the application is plainly, wrongly based and I strongly suspect that the applicant himself who obviously, honestly believes his submission has been very badly advised indeed and recommend to him that he consider seriously investigating the source of that advice for

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his own sake.

PINCUS JA: The order of the Court in relation to each application will be application dismissed with costs.

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