Warwick Credit Union Ltd v McCarthy

[2005] QDC 92

DISTRICT COURT OF QUEENSLAND

CITATION:

Warwick Credit Union Ltd  v McCarthy [2005] QDC 092

PARTIES:

WARWICK CREDIT UNION LTD
Plaintiff
v
PATRICK JAMES McCARTHY
Defendant

FILE NO/S:

BD400/05

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

District Court of Queensland, Brisbane

DELIVERED ON:

28 April 2005

DELIVERED AT:

Brisbane

HEARING DATE:

14 April 2005

JUDGE:

Alan Wilson, SC, DCJ

ORDER:

1. Judgment for the plaintiff on the plaintiff’s claim pursuant to Rule 292 of the Uniform Civil Procedure Rules

2.     Direct that the defendant file and serve any amended counterclaim within 21 days

3.     The applicant have liberty to apply on 7 days notice

4.     Order that the defendant pay the plaintiff’s costs of and incidental to this application, and the claim, to be assessed

CATCHWORDS:

PRACTICE AND PROCEDURE – SUMMARY JUDGMENT – Uniform Civil Procedure Rules, r 292

UCPR rr 171, 292

Gargan v Commonwealth Bank of Australia [2004] FCA 641

Lohe v Gargan (2000) QSC 140

COUNSEL:

Mr A Gudkovs, Solicitor for the Applicant
Respondent in person; represented by his agent Peter Alexander Gargan

SOLICITORS:

Gudkovs Power Osborne for the Applicant
Respondent self-represented

1. This is an application for summary judgment under UCPR r292 in an action in which the plaintiff claims a right to possession of property secured by a mortgage granted by the respondent in exchange, under familiar arrangements, for advances from the applicant. The respondent sought to be represented by an agent, Peter Alexander Gargan, and that was not opposed by the applicant’s solicitor Mr Gudkovs.

1. In his defence and counterclaim the respondent admits he granted a mortgage over his property, “Meadowdell”, in 1999 which also secured funds advanced to him by the plaintiff under a later Loan Contract of 17 October 2002.

1. The pleading also contains admissions that moneys were advanced to him, that the mortgage secured the advances, and that he has failed to pay instalments required under the mortgage.  Unchallenged affidavit evidence from the applicant also establishes it had properly served all notices required by the Loan Contract and the mortgage, and by law, to enforce its right to recovery of possession.

1. The defence and counterclaim denies the valuation of the property under the Valuation of Land Act places this claim within the jurisdiction of this Court but, again, the evidence to that effect is sworn, clear and unchallenged.

1. In his counterclaim the respondent asserts he is a farmer whose property has been drought-affected and, as I understand the pleading, that the applicant has wrongfully refused to grant him “further accommodation” for “assistance”.  He claims an injunction restraining the plaintiff from obtaining possession until the counterclaim is tried by jury; damages for his lost opportunities, arising from the plaintiff’s failure to support him during the drought; damages for unconscionable conduct; and, a liquidated penalty calculated in accordance with various pieces of legislation[1].

   [1] Commonwealth Crimes Act 1914, s.4B; Criminal Code (Queensland) s.128; Acts Interpretation Act 1954, ss.42,43

1. Mr Gargan made oral submissions.  He also referred to a document delivered to Mr Gudkovs the previous day entitled “Notice of Unconstitutional Conduct” which the solicitor, helpfully, exhibited to an affidavit he filed by leave.  It is a closely typed document of some 23 pages, with 26 pages of annexures including some of the court documents from this matter, the decision of the High Court in Plenty v Dillon (1991) 171 CLR 635, and copies of notices the respondent has apparently placed on his property, one of which indicates that “By Order of the HIGH COURT OF AUSTRALIA” admittance to his land is by invitation only.

1. As I understood Mr Gargan’s submissions the respondent, firstly, applied for an adjournment of about one month so that he might attempt to obtain financial assistance from his son, who was working in a remote place and to whom he had written recently; and, if that was not granted, it was contended that by reference to a path traced from the Bible through ecclesiastical and common law this Court lacked jurisdiction to hear the matter without a jury, to which the respondent was entitled. It was also contended that the case raised matters touching the Australian Constitution, necessitating notice to the various Australian Attorneys-General under s.78B of the Judiciary Act 1903.

1. The adjournment was opposed.  There was no suggestion the respondent had not been served in accordance with the Rules, nor any submission that he required additional time to file affidavit material.  A notice in Form 4 under the Property Law Act 1974 was served in November last year, and proceedings seeking the same relief were filed and served in mid-2004 but discontinued when it was discovered one notice had not been properly served upon the respondent in anticipation of that earlier action. Other evidence shows he sought further finance from the plaintiff as late as January this year. On any view it appears he has had both ample warning of the proceeding, and opportunity to arrange alternate or additional finance if that is possible. I am not persuaded there is any basis for granting the adjournment.

1. It was impossible to be comfortable that I understood Mr Gargan’s oral submissions, or the document exhibited to Mr Gudkovs’ affidavit.  It is diffuse, couched in quasi-legal terms, and very difficult to follow.  Some passages illustrate the problem:

24The ecclesiastical maxim “Man proposes, God disposes”, refers to the ultimate authority of God Almighty, and references to the Courts, are references to the Courts of God Almighty, the powers of which are separated from the Courts of communist states to deliver impartial justice; and

25Whereas the legal profession has become complicit in the destruction of the Rule of Law, and its replacement with a regime designed by, executed for and run by members of a monopoly created by members of that profession in parliaments of States, notwithstanding contrary and conflicting legislation made by the Parliament of the Commonwealth, and

…

32The Defendant states on affirmation, that on the above grounds, the constitution of a Queen in right of Queensland by one individual reliant on State Legislation does not give that Governor any jurisdiction whatsoever over any subject of the one true Queen, Her Majesty ELIZABETH THE SECOND the Australian Sovereign, under the fundamental law of Australia and all laws contrary to that Law, is void ab initio.  And:

…

35You are being requested to strictly prove that the State of Queensland has the constitutional power to fracture and break up the federation of Australia and you are required to nominate which queen you are serving.

…

43Further, any further attempts to OBTAIN SUMMARY JUDGMENT, by any party will be an attempt to obstruct the course of justice in respect of the Judicial Power of the Commonwealth which emanates from Her Majesty ELIZABETH THE SECOND and no other sovereign … and such an attempt is a federal criminal offence, that I as a person able to take advantage of section 13 Crimes Act 1914 am entitled to prosecute.

…

62A Christian believes that Matthew Chapter 18 Verse 20 entitles two or more gathered together in the name of Jesus Christ, in the presence of the Lord’s representative to exercise judgmental powers, and overcome the prohibition in Matthew Chapter 7 Verses 1-5 on people judging others.

63If the State of Queensland or State of Australia has created a pagan queen, it is my duty as a Christian to have the authority to do so tested in a proper Chapter III Court.

1. Research into citation of the Biblical references revealed some of these submissions have been advanced elsewhere in, interestingly, cases involving a party named Peter Alexander Gargan.  Of the reference to the Gospel of Matthew, Healy J said in Gargan v Commonwealth Bank of Australia [2004] FCA 641:

This submission cannot be accepted having regard to the provision of the Federal Court of Australia Act 1976 – as O’Keefe J explained in Gargan v DPP [2004] NSWSC 10, since the supremacy of Parliament was finally demonstrated by the revolution of 1688, any appeal to scripture as establishing a moral principle higher than parliamentary sovereignty has become obsolete.

1. Nothing in the balance of the material is persuasive that the respondent has an inalienable right to trial by jury, or that proceedings under r292 are unconstitutional, unlawful or, for that matter, evil. As Holmes J pointed out in Lohe v Gargan (2000) QSC 140 at p.22:

[45] … there has not in Queensland been a common law right to trial by jury:  Matthews v General Accident, Fire and Life Insurance Corporation Limited [1970] QWN 37; and the situation is at present governed by the Supreme Court Act 1995 and the Uniform Civil Procedure Rules.

As her Honour also pointed out, s.80 of the Constitution gives the right of trial on indictment by jury, but has no relevance to any proceedings of the present kind.

1. Nothing in the material or Mr Gargan’s oral submissions persuades me that a constitutional question arises, requiring notice to the Attorneys General.

1. The applicant’s evidence is persuasive that the defendant has no real prospect of successfully defending all or part of the plaintiff’s claim.  No affidavit material was filed on his behalf, and nothing in the submissions of Mr Gargan indicated grounds upon it which it might be said there is a need for a trial of the claim, or part of it.  There is not, apparently, any basis upon which the applicant can be denied for summary judgment it seeks.  The plaintiff has established an entitlement to an order permitting it to recover possession of the property secured by the mortgage. 

1. An order striking out the counterclaim was also sought. The applicant’s submissions were terse but there is, indeed, little that can be said about the pleading. It contains six paragraphs. One of them refers to s.5 of the Constitution and, for the reasons given earlier, has no substance. Another asserts that a reference to the valuation of the property is a criminal offence and an attempt to mislead the court, but the value is relevant only to the question of jurisdiction and is proven by uncontested affidavit evidence. The remaining paragraphs contain assertions about the present value of the property, that it could support more debt than it carries, that it is drought-affected, and that the defendant has sought further accommodation from the plaintiff but has been “unreasonably refused”. 

1. None of these pleas, on their face, immediately suggest a remedy although it is conceivable there may, buried away, be some kind of claim for equitable relief.  Certainly, the matters asserted do not support the ensuing claims for injunctive relief, damages and a liquidated penalty.  Some of the phrasing of the pleading suggests Mr Gargan’s hand (vide the other cases in which he has been personally involved, mentioned above) and gives rise to a natural concern that the respondent has been distracted from a proper focus upon whatever legal remedies or relief if any might, in truth, be open to him.  The bare possibility of a legitimate claim to equitable relief is not compelling, but these concerns mean he should, at least, have the opportunity to seek further advice and, if some remedy exists, plead again.

1. I will not dismiss the counterclaim but, rather, allow him 21 days to amend.