FEDERAL COURT OF AUSTRALIA

Gargan v Commonwealth Bank of Australia [2004] FCA 641

Constitution s 80

Federal Court of Australia Act 1976 (Cth) s 39, 40

Commonwealth Bank of Australia v Rigg [2001] FCA 590

Gargan v DPP [2004] NSWSC 10

Insurance Commissioner v Australian Associated Motor Insurer Ltd (1982) 65 FLR 172

PETER ALEXANDER GARGAN v COMMONWEALTH BANK OF AUSTRALIA

N 7369 OF 2003

HELY J

17 MAY 2004

SYDNEY

THE COURT ORDERS THAT:

1.         The Notice of Motion filed on 26 February 2004 by the respondent seeking a jury trial be dismissed with costs.

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

REASONS FOR JUDGMENT

1                     By Notice of Motion filed on 26 February 2004 the respondent moves the Court for an order that:

‘The question of whether the alleged creditor is indeed indebted to the prosecution as alleged be determined by a trial by jury, as in any other Criminal Court which has authority to incarcerate a person for a three years mandatory sentence.’

2                     The form of order reflects the respondent’s contention expressed in his affidavit of 26 February 2004, that bankruptcy is a form of imprisonment without walls, enduring for three years, and as such attracts s 80 of the Constitution to its operation.

3                     In my view, it is self-evident that s 80 of the Constitution has no application to the hearing of a Creditor’s Petition under the Bankruptcy Act 1966 (Cth), and the claim to a jury trial by reference to s 80 of the Constitution should be rejected out of hand.

4                     In the applicant’s affidavit he also contends in par 6 that:

‘Under Protestant Christian law, the only legitimate judge since 1297 is Jesus Christ, present in a jury of 12 in accordance with Mathew 18: Paragraphs 15-20, the Bible, and enacted into Constitutional law by the Magna Carta.’

5                     This submission cannot be accepted having regard to the provisions of the Federal Court of Australia Act 1976 (Cth) (‘the Federal Court Act’).  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.

6                     Section 39 of the Federal Court Act provides that in every suit in the Court, unless the Court or a judge otherwise orders, the trial shall be by a judge without a jury.  Section 40 provides that the Court or a judge may direct the trial with a jury of the suit, or of an issue of fact, in any suit in which the ends of justice appear to render it expedient to do so.  The authorities establish that a substantial reason must be shown for a departure from the usual mode of trial: Insurance Commissioner v Australian Associated Motor Insurer Ltd (1982) 65 FLR 172; Commonwealth Bank of Australia v Rigg [2001] FCA 590.  No such reason has been shown here. 

7                     Mr Gargan relied upon two matters in support of his motion.  First, he said that the Commonwealth of Australia owns shares in the Commonwealth Bank of Australia (‘the CBA’), hence I have a conflict of interest.  Even assuming that the Commonwealth does own shares in the CBA, I do not understand how that puts me in a position of conflict.  Second, Mr Gargan said that he is a litigant in person complaining of misconduct on the part of members of the legal profession, and that he may not receive a fair trial from a judge who was once a member of that profession.  It is true that before I was appointed to the Bench I was a member of the Bar.  However, I do not regard that circumstance as providing any sufficient foundation for a departure from the ordinary mode in which trials are conducted.  Both submission relied upon by the applicant are therefore without substance.

8                     The motion seeking a jury trial is dismissed with costs.

Associate:

Dated:              21 May 2004