FEDERAL COURT OF AUSTRALIA

Official Trustee in Bankruptcy v Gargan [2009] FCA 352

PETER ALEXANDER GARGAN v OFFICIAL TRUSTEE IN BANKRUPTCY; OFFICIAL TRUSTEE IN BANKRUPTCY; PETER ALEXANDER GARGAN

NSD 932 of 2008

PERRAM J

25 MARCH 2009

SYDNEY

THE COURT ORDERS THAT:

1.                  The application be dismissed.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.

REASONS FOR JUDGMENT

1                     By a cross-claim filed 25 September 2008 the Official Trustee in Bankruptcy seeks orders under O 21 r 1 of the Federal Court Rules that the cross-respondent, who I shall refer to as Mr Gargan, not be permitted to institute new proceedings in this Court without leave and not be permitted to continue proceedings before this Court without leave.  That application is returnable before me this morning.

2                     On 20 February 2009 Mr Gargan filed a notice of motion setting out a number of prayers for relief, including one which seeks:

A declaration that Section 79 Constitution, where the word judges us used, is a guarantee of jury trial, and it is a common law right and must be granted on request.

3                     When the matter was called on for hearing this morning Mr Golledge, who appears for the Official Trustee, indicated that he was proposing to proceed upon the basis that this prayer was an application by Mr Gargan to have the court requisition a jury.  Mr Gargan agreed with that proposition.  I will therefore proceed on the basis that there is before me such an application.  There are two possible sources of power for the making of the order sought.  The first is s 40 of the Federal Court of Australia Act 1976 (Cth) and the second is s 30(3) of the Bankruptcy Act 1966 (Cth).  There may be an issue as to whether the power conferred by the latter Act has any application for the present proceeding, but in light of the view I take of the matter, it is not necessary to resolve that issue.

4                     Mr Gargan put at the forefront of his submissions the existence of a deep-seated right to a jury.  There were a number of matters upon which he relied to demonstrate its existence.  Amongst these was the Coronation Oath 1688, 1 Wm & M, c 6.  Mr Gargan took me to a part of that statute which reads as follows:

Will you to the utmost of your power maintaine the laws of God the true profession of the Gospell and the Protestant reformed religion established by law?

5                     Mr Gargan submitted that an inference should be drawn from that part of the Coronation Oath 1688 that there was a right to trial by jury.  He also called in aid of his submission clauses 14 and 29 of Magna Carta 1297 which, in part, refer to elements of trial by jury.  Assuming in Mr Gargan’s favour that the implication he seeks to draw from those matters can, in fact, be drawn, it seems to me that they have no impact upon the question which arises before me, which is the application of s 40 of the Federal Court of Australia Act 1976 (Cth) and s 30(3) of the Bankruptcy Act 1966 (Cth).

6                     In other words, Parliament having passed those two Acts, whatever the state English law was in during 1688 can have no impact upon them.  Mr Gargan’s answer to that is that the right involved, being the right to a jury, is so basal that it is beyond the power of Parliament to embrace a view which does away with trial by jury.  He referred me to the outcome of Australian Communist Party v Commonwealth (1951) 83 CLR 1, to s 77(1) of the Constitution and to Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51.  To those authorities, I suppose, one might also add a reference to Building Construction Employees and Builders’ Labourers Federation of New South Wales v Minister for Industrial Relations (1986) 7 NSWLR 372.

7                     However, it is beyond argument as a matter of Australian law, that a provision such as s 40 or s 30(3) cannot be held by a judge to be invalid on the basis of some asserted right outside the Constitution and sourced in English law.  Accordingly, I am bound to exercise the jurisdiction conferred by those two sections.  As to the manner in which I should exercise the discretion, Mr Gargan pointed to his asserted constitutional right as the reason which justified the exercise of the discretion in his favour.

8                     Having rejected the existence of that right, it is not really necessarily to deal with the discretionary questions, but I will say this: Mr Golledge pointed out that the issue which arises on an application for an order to have a litigant declared vexatious is really concerned with the legal characterisation of an established set of facts.  Leaving aside everything else, it seems to me that matter would make this an inappropriate case for a jury.

9                     In any event, s 39 of the Federal Court of Australia Act 1976 (Cth) imposes upon Mr Gargan the obligation to persuade the court that a jury trial is appropriate.  The authorities establish that a substantial reason must be shown for a departure from the usual mode of trial: see Insurance Commissioner v Australian Associated Motor Insurers Ltd (1982) 45 ALR 391; Commonwealth Bank of Australia v Rigg [2001] FCA 590; Gargan v Commonwealth Bank of Australia [2004] FCA 641 at [6] per Hely J.  Mr Gargan has shown no such reason.  In those circumstances I decline to exercise the power to convene a jury.

Associate:

Dated:         15 April 2009