FEDERAL COURT OF AUSTRALIA
DATE OF ORDER:
THE COURT ORDERS THAT:
2. There be a stay of all proceedings under the sequestration order for a period of 21 days.
3. The petitioning creditor's costs (including any reserved costs) be taxed and paid out of the estate of Rodney Norman Culleton in accordance with the statute.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
1 Before the Court is a creditor's petition filed by Balwyn Nominees Pty Ltd, the petitioning creditor, seeking the making of a sequestration order against the estate of Rodney Norman Culleton, the respondent debtor, of 51 Fourth Avenue East, Maylands, Perth, Western Australia, who is described in the petition as a businessman.
2 Under s 43 of the Bankruptcy Act 1966 (Cth), this Court has jurisdiction, on a petition presented by a creditor, to make a sequestration order against the estate of a debtor, where:
the debtor has committed an act of bankruptcy; and
at the time when the act of bankruptcy was committed, the debtor, amongst other things, was personally present or ordinarily resident in Australia.
3 The effect of a sequestration order is that, upon its making against the estate of the debtor, the debtor becomes a bankrupt, and continues to be a bankrupt until he or she is discharged by force of s 149(1) of the Bankruptcy Act, or his or her bankruptcy is annulled by force of s 74(5) or s 153A(1) or by s 153B of the Bankruptcy Act. See s 43(2) of the Bankruptcy Act.
4 There are conditions on which a creditor may petition, set out in s 44(1) of the Bankruptcy Act, which prevent a creditor's petition being presented against a debtor unless (relevantly):
there is owing by the debtor to the petitioning creditor a debt that amounts to $5,000;
that debt is a liquidated sum due at law or in equity or partly at law and partly in equity and is payable either immediately or at a certain future time; and
the act of bankruptcy on which the petition is founded was committed within six months before the presentation of the petition.
5 By s 44(2) of the Bankruptcy Act, subject to subs (3), a secured creditor shall, for the purposes of para (1)(a), be deemed to be a creditor only to the extent, if any, by which the amount of the debt exceeds the value of the security.
6 By s 52 of the Bankruptcy Act, at the hearing of a creditor's petition, the Court shall require proof of:
the matters stated in the petition (for which the Court may accept the affidavit verifying the petition as sufficient);
service of the petition; and
the fact that the debtor's debt on which the petitioning creditor relies is still owing;
and, if it is satisfied with the proof of those matters, may make a sequestration order against the estate of the debtor.
7 If the Court makes a sequestration order, by s 52(1A) of the Bankruptcy Act, the creditor who obtained the order must give a copy of it to the Official Receiver before the end of the period of two days beginning on the day the order was made.
8 By s 52(2) of the Bankruptcy Act, if the Court is not satisfied with the proof of any of those matters or is satisfied by the debtor:
that he or she is able to pay his or her debts; or
that for other sufficient causes, a sequestration order ought not to be made;
it may dismiss the petition.
9 The Court also has the power, under s 52(3) of the Bankruptcy Act, if it thinks fit, upon such terms and conditions as it thinks proper, to stay all proceedings under a sequestration order for a period not exceeding 21 days.
10 The concept of an act of bankruptcy is central to the operation of these creditors' petition provisions of the Bankruptcy Act.
11 By s 40(1) of the Bankruptcy Act, a debtor commits an act of bankruptcy in a number of cases there stipulated, including under para (g), which relevantly provides –
if a creditor who has obtained against the debtor a final judgment or final order, being a judgment or order the execution of which has not been stayed, has served on the debtor in Australia … a bankruptcy notice under this Act and the debtor does not:
(i) where the notice was served in Australia—within the time specified in the notice; or
comply with the requirements of the notice or satisfy the Court that he or she has a counter‑claim, set‑off or cross demand equal to or exceeding the amount of the judgment debt or sum payable under the final order, as the case may be, being a counter‑claim, set‑off or cross demand that he or she could not have set up in the action or proceeding in which the judgment or order was obtained;
12 In the creditor's petition in this proceeding, the petitioning creditor makes the following allegations, and thereby satisfies the conditions referred to in s 44:
1. The respondent debtor owes the applicant creditor the amount of $271,134.26 being the amount owing pursuant to a final judgement of the District Court of Western Australia proceedings number CIV 2787 of 2011, dated 24 October 2013.
2. The applicant creditor does not hold security over the property of the respondent debtor.
3. At the time when the act of bankruptcy was committed, the respondent debtor:
(a) was personally present in Australia; and
(b) was ordinarily resident in Australia.
4. The following act of bankruptcy was committed by the respondent debtor within 6 months before presentation of this petition:
The respondent debtor failed to comply on or before 29 August 2016 with the requirements of a bankruptcy notice served on him on 8 August 2016 or to satisfy the Court that he had a counter-claim, set-off or cross demand equal to or more than the sum claimed in the bankruptcy notice, being a counter-claim, set-off or cross demand that he could not have set up in the action in which the judgment referred to in the bankruptcy notice was obtained.
13 The respondent debtor, at the time of this proceeding and at the hearing of the creditor's petition on 19 December 2016, is a Senator for Western Australia in the Commonwealth Parliament.
14 The respondent debtor, who, at material times, has been self-represented in this proceeding, on 18 November 2016, filed an appearance and notice stating grounds of opposition to the creditor's petition. In the notice he advised that he intended to oppose the petition on the following grounds:
1. The Matter founding the Petition is listed in the Western Australian Court of Appeal as an Appeal.
2. I had four witnesses in Armadale and none saw the alleged Personal Service.
3. On Equitable Grounds, under S 30 (2) Bankruptcy Act 1996 the alleged Debtor claims an account of mutual dealings between himself and Balwyn Nominees Pty Ltd ( A CN 083 207 890) under S 86 (1) Bankruptcy Act 1996 which states that such an account 'shall' be taken, and must therefore be a Condition Precedent to the making of any Sequestration Order.
4. The alleged agreement between the Petitioning Creditor and the Defendant Company was nothing more than an invitation to treat, not a concluded contract.
5. The evidence does not disclose any dealings with Balwyn Nominees Pty Ltd except an un-concluded invitation to treat which could not found damages for breach of contract.
5. As a consequence the Court is required to go behind the Judgment to determine if there is any amount owing at all.
6. Further the Applicant claims that because the State of Western Australia has removed the requirement for a Judge in this State to swear Allegiance to another authority different to the one a Justice of this Court must swear Allegiance to, this Court cannot recognise an Order from such a body and cannot allow it to found a Bankruptcy Petition.
7. This issue was raised in the Federal Court of Australia before McKerracher J on the 5th October 2016 in Perth and is an issue that involves the Constitution and the obligation of a court not to proceed until Notice under S 78B Judiciary Act 1903. (Cth) is given to all the Attorneys-General of the Commonwealth and since McKerracher J was either reckless or indifferent to his duty, this Court must now deal with that issue
(As in original.)
15 On 18 November 2016, the respondent debtor also filed a notice under s 78B of the Judiciary Act 1903 (Cth) (s 78B notice), addressed to the Attorneys-General of the Commonwealth and the States, in the following terms:
1. This proceeding involves a Matter arising under the Constitution and involving its interpretation in respect of the Removal of Allegiance to the Queen, Her Majesty Elizabeth the Second and it's replacement with a non-Allegiance Oath, effected in Western Australia in S 11 DISTRICT COURT OF WESTERN AUSTRALIA ACT 1969
2. 11. Tenure of office and oath of office
(1) The commission of each District Court judge shall continue in force during good behaviour but the Governor may, upon the address of both Houses of Parliament, remove any District Court judge from his office and revoke his commission
(2) Before a person who is appointed to be a District Court judge, an acting District Court judge, an auxiliary District Court judge, or a commissioner of the Court, performs any function of the office, he or she shall take before the Governor, a Supreme Court judge, or some person authorised for the purpose by the Governor, an oath or affirmation in the form set out in Schedule 1.
3. The Oath in Schedule 1 is as follows:
SCHEDULE I, Curthoys DCJ make oath and say: that I will faithfully serve the people and the State of Western Australia in the office of [ title of office ] of the District Court of Western Australia and I will do right to all manner of people, according to law, without fear or favour, affection or ill will.
[Schedule 1 inserted by No. 24 of 2005 s. 20.]
4. On the Authority of R v Casement  KB 98, a Court exercising the Judicial Power of the Commonwealth cannot entertain an action based upon the Decision of a person attainted of treason which is the proper term for nonAllegiance.
5. On its proper construction, the Treason Act 1351 applied to an act of treason committed by a British subject while outside the realm. In the words of Darling J (who delivered the judgment of the Court), at p 137, 'the subjects of the King owe him allegiance, and the allegiance follows the person of the subject. He is the King's liege wherever he may be, and he may violate his allegiance in a foreign country just as well as he may violate it in this country.'
Accordingly, Casement had properly been convicted of high treason. Appeal against conviction dismissed
6. This unilateral declaration of non-Allegiance by the State of Western Australia infects other States. It infects all aspects of Australian Life, and the removal of The Queen, from the enacting words used by the Parliament in 1991, and its replacement with 'The Parliament of Australia Enacts, could amount to non-Allegiance by the Commonwealth executive at the time, and all Executives since.
(As in original.)
16 On 12 December 2016, the respondent debtor filed an affidavit which, in substance, set out a range of submissions, in the following terms (annexures omitted):
1. I am making an Application for an Account in this matter on the grounds I will set forth in this Affidavit.
2. It is time that this court returned to the hallowed respect in which courts were held prior to 1973, or 1952 whichever date is accepted, and sat with a jury in this matter to determine as a question of fact, under S 30 (3) or under S 80 Constitution whether an alleged Act of Treason was promulgated in 2005 by the Parliament of Western Australia when it removed the requirement of allegiance to the Queen, from Members of Parliament and the Judiciary in this State.
3. In Order to sit as a Justice in the Federal Court of Australia in the same manner as a Senator sits in the Senate a person must take the Oath set out as Schedule 1 to the Commonwealth of Australia Constitution Act 1900 and it is a condition precedent to any judicial act whatsoever: whether legislating or enforcing Statutes.
4. Because that Oath has as a Condition Precedent another Oath, dating back to 1688, which must be taken by the Queen or Sovereign at Her Coronation the Coronation Oath 1688 ( Imp) is incorporated into Australian Law or must be recognised as extrinsic material to assist in understanding what an Oath of Allegiance means when incorporated into an Act by S 15AB Acts Interpretation Act 1901.
5. The Coronation Oath 1688 ( Imp) annexed hereto as Annexure RC4 has provisions in it binding the Queen to abide the Provisions of the Gospels in the execution of Her duties, and as such those provisions must bind all those who serve Her in public office, under the same Oath.
6. That being the case, the words; Will you to the utmost of your power maintain the Laws of God and the true profession of the Gospel. This was amended from the original to accommodate the Roman Catholic and other religious groups, present throughout the world, who while not Protestant Christian still worship in the Christian tradition.
7. The Blessing of Almighty God, called down upon the Commonwealth in the recital to the Commonwealth of Australia Constitution Act 1900 is sought to be re-established, by the adoption and observance of the Gospels which on our behalf, Her Majesty Elizabeth the Second agreed to maintain.
8. The grounds for an Account are that because the Petitioning Creditor failed to accept that the Federal Court of Australia actually had jurisdiction on the 51h October 2016 and was urged not to exercise it, the course of justice in respect of the Judicial Power of the Commonwealth was perverted.
9. this and the attempt to have the Federal Court of Australia accept the legitimacy of the District Court in Western Australia which no longer exercises jurisdiction in the name of the Queen, which when S 33 High Court of Australia Act 1979 is applied to all courts lower in the hierarch y of which it is the Pinnacle, this exercise of jurisdiction is wholly unconstitutional and void; is a further offence.
10. Consequently I have prepared but not filed a Form CP (1) 1, and exhibit it to this my affidavit as Exhibit RC5. A Total of $2,236,000 ought to be imposed for these transgressions.
11. Further I rely upon S 118 Constitution to say that full faith and credit must be given throughout the Commonwealth to the Acts of the States, and S 42 and 43 of the Acts Interpretation Act 1954 (Q) clearly state what should happen in this instance, namely that I as the person aggrieved, under S 4B (4) Crimes Act 1914 ( Cth) get the whole of the penalty. Exhibit RC6.
12. Full faith and credit cannot be given to proceedings that do not comply with the Constitution.
13. By applying the principles set forth in the Constitution the Petitioning Creditor owes me.
(Emphasis as in original.)
17 On 16 December 2016, the respondent debtor filed an interim application claiming:
1. A Right under S 116 Constitution not to have to submit to Judgment by a single individual and claims the Right to Jury Trial, under the Discretion given to a Federal Court of Australia Judge by S 30 (3) Bankruptcy Act 1966.
18 On 16 December 2016, he also filed a "Submission" in the following terms:
I have decided to represent myself in these proceedings, because what I want to say is not something a lawyer will argue in most cases. As you will be aware I asked in the Senate why when S 33 High Court of Australia Act 1979, makes it a statutory command to the High Court to issue process in the name of the Queen why the High Court was not doing so in their Rules. They have indicated there will be New High Court Rules in 2017. Both previous sets of High Court Rules 2004 and the High Court Rules 1952, have no provisions enabling S 13 Crimes Act 1914 ( Cth) to be given effect, so that S 30 Judiciary Act 1903 (Cth) can be activated after a Grand Jury finds an indictment.
The very first step in any Proceeding in a court is to determine the scope and reach of the jurisdiction conferred on the court. I rely on Fencott V Muller  HCA 12; 152 CLR 570, to say that this court has full power to investigate every aspect of this case, and all associated matters including misconduct by the ANZ Banking Corporation that led to the situation arising. This Proceeding is part of a long standing policy of Banks, to bankrupt people to prevent counterclaims.
The very first thing the court should decide is if these proceedings are politically motivated, given that the Petitioning Creditors Lawyer firm also acts for the ANZ Banking Corporation and ANZ is one of the Banks potentially liable for the huge damages if ever made accountable in the Federal Court of Australia. As a Senator, I have been gathering and disseminating evidence against this bank in particular, in an attempt to hold a Banking Royal Commission. It would grant them enormous benefit if I were to be bankrupted and forced to resign from the Senate. To that end it is submitted that this Petition is filed for an improper purpose, as an opportunistic attempt to collaterally protect the ANZ Banking Corporation. If granted the Petitioning Creditor may never get paid, even if it could win, which is doubtful.
I have been very concerned that at other times, High Court Justices have made erroneous Statements directly contradicting the Statutory Commands of the Parliament. One such Statement is in the Forge V ASIC Case at Paragraph 210 Justice Kirby states: The ICCPR is not, as such part of Australia's municipal law. This is a similar mistake to the one I raised with my first question in the Senate, and it is time that the work the Parliament of the Commonwealth does was treated with the respect it deserves. It is an undeniable fact that the International Covenant on Civil and Political Rights is Schedule 2 to the Australian Human Rights Commission Act 1986. It is an undeniable fact that S 268:10 and 268:12 Criminal Code Act 1995 (CTH) is law. It is an undeniable fact that the Dictionary of the Criminal Code Act 1995 (CTH) defines 'Covenant' as the International Covenant on Civil and Political Rights and tells the reader where to find it. It is an undeniable fact that S 138 (3) (f) Evidence Act 1995( Cth) cites it. If it is in fact law, then the 'Kable Principle' finds its Statutory Command in S 268:12 Criminal Code Act 1995 (CTH) and unless a Judge is not a person, as contemplated by s 5 Commonwealth of Australian Constitution act 1900, he must now, to avoid offending that section, try all matters with a jury. Both guilt and sentencing must now be made by a jury.
I cite the Metwally case to say that S 109 Constitution cuases the Judgment of Curthoys DCJ to be totally void.
This is no ordinary proceeding. This is a proceeding where you are being asked to bankrupt a person who was elected as, one of the seventy six who make up the Senate of Australia. In addition to that, this is like a sitting of the Senate, a privileged occasion. What I say here cannot found defamation proceedings, and what is decided here can be appealed to the Senate and that place can decide to enforce any order you may make, or decide that the procedure you have followed in making that decision is flawed and decide that your services are no longer required by the Commonwealth . Just as I can be sacked if I am found to be grossly negligent or otherwise unfit for high Office, so too can you. I trust we are in agreement on that.
I have as a Senator both an obligation and a duty, to supervise the Legislation presented to the Senate and subordinate Legislation passed under delegated power. The recently promulgated Federal Court ( Criminal Procedure ) Rules 2016 are very good as far as they go, but there is no process I have been able to find in them where the provisions of s 13 Crimes Act 1914 (Cth) have been given effect. Unless ordinary people are given a mechanism where they can start a criminal proceeding without fuss, and call to account corruption wherever it is found, this country is not properly governed. Perhaps you can enlighten me and point me to where this can happen. I have had the Federal Court ( Criminal Procedure ) Rules 2016 examined in detail, and just as the High Court Rules 1952 and 2004 omitted provisions for Grand Juries, so too is any mechanism for bringing corrupt conduct to account. I intend to ask the Senate to ensure that all Rules of Court both civil and criminal in Australia comply with the International Covenant on Civil and Political Rights as a guarantee of Australia wide uniformity. They have the force of law so should obey and reflect the law.
Section 51 Placitum (xxxi) Constitution guarantees 'just terms' in the acquisition of any property from any individual by any Authority of the Commonwealth. In University of Wollongong V Metwally (1984) Murphy J at 4, stated that all States are bound by the Constitution in the same way as the Commonwealth is, and therefore the making of an Arbitrary Order against me by Curthoys DCJ taking property from me, offends S 51 Placitum (xxxi) Constitution, and must be void.
This case highlights the corruption of Western Australia by its own Parliament. In or around 2005, it declared itself unilaterally independent from the Commonwealth, and because people in glass houses cannot throw stones, it has lost two thirds of its GST without remedy. I have taken steps to fix the High Court. It is now up to this Court today to fix the corruption in Western Australia. If you are unwilling to do so, and address the abolition of the Queen, the removal of the Monarchy in this State, by legislation unsupported by a referendum, I am sure my Senate Collegues will support efforts to right the wrongs. Either way, I believe you have no authority to use Bankruptcy Law to overrule the wishes of 54,000 plus Western Australia voters who sent me to Canberra to reprtesent their interests and instigate a remedy.
The Commonwealth has been protecting the Banks from the full rigour of the law, and they have been aided and abetted by The Prime Minister who refuses to ACT! To end that we must get back our courts. Real live democratic courts, with twelve real live representatives of the people, as judges of fact, and a presiding Justice whose expertise is the law. That is what I want and I want it to be free of charge. The imposition of punitive Filing Fees on anyone who has a grievance and wants to come to court was abolished in 1400, and should never have been allowed to be reintroduced. I quote: '2 Henry 4 Chapter 1,Section 4 (1400) Every person shall be in peace, All his liege people and subjects may freely and peaceably,in his sure and quiet protection, go and come to his courts, to pursue the laws, or defend the same, without disturbance or impediment of any.'
The States, openly and brazenly say the Laws of the Commonwealth do not apply to them. They have since 1952 merrily created renegade Courts with Judges, one of whom was Curthoys DCJ. A Judge sitting without a jury is open to influence by unscrupulous members of the legal profession. A Judge sitting alone is in breach of S 79 Constitution, because the Constitution provides that the Judicial Power of the Commonwealth shall be exercised by such number of 'judges' as Parliament provides. In the absence of a prescription, the default number is twelve, as in S 80 Constitution. It is not open to a Federal Court of Australia Judge to decide on the basis of cost, because the Commonwealth has appropriated the money to pay for juries in S 40 and 41 Federal Court of Australia Act 1976.
However with a filing fee or tax on access to the Federal Court of Australia of $2,380 it is prohibited to fight a fine in the Federal Court. The States have racked up huge debts and charged them to the people of Australia in the fines registries of every State. They severely deprive people of physical liberty by refusing them the right to drive or register a car using a species of extortion. On their own these people have no remedy except to change the Government and hope for the best every three or four years. For stable government it is essential that the Federal Court of Australia starts working properly. I complement the Federal Court of Australia Judges on your Federal Court ( Criminal Procedure ) Rules 2016. The job just has to be finished to allow ordinary people and honest solicitors advising them, access to the process.
The sum of a Commonwealth Penalty Unit is $180 per unit. For a body corporate it is five times that. I have not asked if King Wood Mallesons is incorporated. If not each and every Partner worldwide could be liable for the sins of any one partner, under the Partnership Act.
It is because of that deficiency in those Rules, that the State of Western Australia has been able to get away with doing away with allegiance to the Queen, by Legislation. This is now remedied to some extent by the new Federal Court ( Criminal Proceedings) Rules 2016, but to some extent these Rules omit a very important part of Representative Democracy, that is enacted into Commonwealth Law as S 13 Crimes Act 1914 ( Cth). That is the right of each and every Australian to commence a criminal prosecution. If that right had been recognised and incorporated into the Rules as it ought to have been, then the Bank profit of $46 billion dollars last year, and their ongoing depredations on Australian Business, would have to have ceased. Today I am asking you to make an order that will fix the Budget deficit, open the way for thousands of people to get justice from the Justice system, and right a lot of wrongs, that the Parliament of the Commonwealth has declared to be crimes.
I am asking for a jury trial under S 30 (3) Bankruptcy Act 1966 introduced in 1966, as a part of the lawyers takeover of Australia that has merged State and Church into a single authority. I am doing this publicly in an Open Court so the people of Australia can look forward to Christmas knowing that from today, when you exercise your authority under S 22 Federal Court of Australia Act 1976 and S 39B (1A) (b) Judiciary Act 1903 (Cth) as a Constitutional Court as well as S 30 (3) Bankruptcy Act 1966 the spirit and principles that underpin the Australian Constitution will be not only law, but enforceable justly and fairly. Those principles have been lost, but must now to be restored.
As a lawyer yourself, you must know what Allegiance to the Queen stands for. It stands for the Principles of Christianity the absolute opposite of the Communist System, where the State considered itself GOD and created Judges to carry out its edicts. You may not know but the Senate and House of Representatives both start each day with Prayers. This was the subject of the very first Petition to the Senate delivered in 1902 by the Presbyterian Church in Sydney as a prayer to that Body. I want to cite the extracts of the Speech made by Alfred Deakin in 1902, explaining what Ch III Constitution ought to mean, and explaining that the Judicature is altogether a Separate department of State equal but separate from any of the States, with the High Court as its head. I also want to cite Standing Order 50 of the Senate Standing Orders. This incorporates the Lord's Prayer from the King James Version of the Holy Bible Matthew 6 Verses 9-13, as a condition precedent to all the Laws of the Commonwealth.
In speaking to the Second Reading of the Judiciary Act 1903 (Cth) Alfred Deakin said: But in its substance, in its influence, in its true character, this is not merely a legal measure. It is a fundamental proposition for a structural creation which is the necessary and essential complement of a federal Constitution. As such it affects the whole of -the citizens of this community ; as such it touches every class ; as such it affects every calling. Indeed, although it relates to legal machinery, the purposes to be served by that machinery are but in a fractional sense legal, are in the main general, and in a very particular sense political - affecting directly not only the businesses and bosoms of our population, but also the representatives of the people in both Chambers of this Parliament; affecting directly the Executive of this country; affecting, in fact, every portion of that Constitution of which this court is created to be the guardian. By S 39B (lA) (b) the Judiciary Act 1903 (Cth) the Federal Court of Australia is now a further guardian, and it must step up.
Australia has grown from around 4 million people in 1900 to 24 million today. We have 39 Federal Court Judges signed the Federal Court (Criminal Practice) Rules 2016. You are not elected , you are appointed, and by S 72 (ii) Constitution you can be removed. Under Part III Crimes Act 1914 ( Cth) you can be prosecuted and this threat is always hanging over a Judges head. The Parliament of the Commonwealth has legislated to allow the Reasons for Judgment of a court to be admitted into evidence against a Judge. S 129 (5) Evidence Act 1995 (Cth) makes that possible. S 34 Crimes Act 1914 (Cth) makes it a crime for a Judge or Magistrate to act when interested. It defines what 'acting when interested' means. It defines the crime as 'perversely exercises jurisdiction in a matter'. It only carries a two year period of imprisonment but when the Salary of a Judge is said to be around $375,000 a year, it could be said you have a very real interest in preserving your position and the other 38 Judges positions.
Because S 268:10 Criminal Code Act 1995 (Cth) makes it a crime against humanity to sit in breach of Article 14 of the International Covenant on Civil and Political Rights and that Article directs that all persons are equal before the law, and that section carries a term of imprisonment of seventeen years jail, I think it is time that the Judges of the Federal Court of Australia accepted it as law. It is referred to again in S 138 (3) (f) Evidence Act 1995 (Cth) as well as S 268:12 Criminal Code Act 1995 (Cth). S 268:10 refers specifically to 'exercises all or any of the powers attaching to a right of ownership' and specifically 'also includes exercise of a power arising from a debt incurred or contract made by a person.' This proceeding is about a debt imposed upon me by another individual, under State law. I have not yet claimed that Liquidated penalty, but it could be under the Crimes Act 1914 ( Cth) the sum of 17 years, 204 months, x 5 as in S 4B Crimes Act 1914 ( Cth), 1,020 penalty units, which ,makes the amount owing by an individual $183,600 and for a Corporation $918,000. This is what the Commonwealth is presently losing. If S 4K is considered which accrues daily.
Further after 2010, the Parliament of the Commonwealth introduced legislation to ban 'cartels'. It is enacted in S 44 ZZRA on in the Criminal Code Act 1995 (Cth). Presently a 'cartel' crossing all State borders, and into the Commonwealth involving lawyers operates. The first thing any Magistrate asks is: 'Have you got legal representation'. The Supreme Court in every State and the Federal Supreme Court are the guardians of this cartel. They maintain a Register of practitioners and only they are entitled, as of right to represent another person in the ordinary 'courts'. An exception is the Court of Bankruptcy, where S 308 (d) Bankruptcy Act 1966 says 'any person may act by his or her agent duly authorised in that behalf.' The High Court has allowed this to happen, and so should this 'court'. The penalties for a breach of this law, are severe. Part IV Restrictive Trade Practices. Part VI s 76 of that Act provides a Penalty of $10,000,000 or ten percent of the Annual Turnover, of the Company benefitted. This is money not being collected by the Commonwealth.
Alfred Deakin explained the purpose and object of the Judiciary Act 1903 (Cth) better than I can. He said: The federal judiciary falls into neither of these classes. It is not to be a distinct and separate federal creation any more than it is to remain solely in the States. On the contrary, the judiciary will form one department in which the States and the Commonwealth will continue to have concurrent powers, the one co-operating with and assisting the other.
In the 'Kable Principle' supposedly established in 1996 the power of the States to legislate for this separate Department was challenged and ruled out of order by a four to two majority. In 2010,in the Melbourne University Law Review, Volume 43 pages 641–668 one Wendy Lacey explains the 'Kable Principle' better than I can. In 2002 the High Court was persuaded to overrule a decision by three judges in the Court of Appeal in Gerlach v Clifton Bricks  HCA 22 and this was decided three Judges to two with Gaudron and McHugh JJ, and Justice Hayne, however an examination of the Transcript published online, Gerlach V Clifton Bricks HCA Trans 574 ( 14th November 2001). reveals that the 'Kable Principle' was not put to that Court and consequently McHugh and Gaudron ruled inconsistently with the 'Kable Principle' . Had they been properly advised by the relevant Counsel, the Budget today would be in surplus, and the rampage caused by the departure from the Principles outlined by Alfred Deakin would have stopped the rampaging illegality of Banks and Insurance Companies, and large Law Firms to be stopped in their tracks. The people of Australia have had to endure fourteen years of bad government.
We now come to my Counterclaim against the ANZ Banking Corporation which goes to the heart of my claim to be solvent. I have made and filed an Affidavit containing admissions made by Permanent Custodians Limited that it is a subsidiary of ANZ Banking Corporation in pleading in a case in Victoria.
I put to the Court previously its duty under S 22 Federal Court of Australia Act 1976. That is a direct duty owed to the Australian people from the Judicature Act 1973 ( Imp) s 24 Subsection (7) and approved by them in voting for Ch III the Judicature in 1899 in the referenda. The Entire Section is entitled Law and Equity to be concurrently administered. It is further enacted as S 32 Judiciary Act 1903 (Cth) in the same terms.
(Emphasis as in original.)
19 The petitioning creditor contends that the Court's jurisdiction under s 43(1) of the Bankruptcy Act to make a sequestration order, is enlivened in the current circumstances for the following reasons:
The respondent debtor has failed to comply with a bankruptcy notice and so has committed an act of bankruptcy pursuant to s 40(1)(g) of the Bankruptcy Act.
There is a relevant final judgment, being that of the District Court of Western Australia made on 24 October 2013, following a trial of an action between the petitioning creditor and the respondent debtor (among other parties). That judgment was assessed at $205,536.50 together with interest of 6% per annum from 1 March 2011 until judgment (plus post-judgment interest). See Dakin Farms Pty Ltd v Elite Grains Pty Ltd [No 2]  WADC 160.
That judgment has been the subject of appeals and challenges by the respondent debtor (and his wife, Mrs Ioanna Culleton) which have been wholly unsuccessful. The judgment has been upheld twice by the Supreme Court of Western Australia.
That judgment still remains wholly outstanding.
20 The petitioning creditor relies on:
(1) the creditor's petition dated 19 October 2016;
(2) the affidavit of Sergeant Matthew David Scott (Sgt Scott), sworn 13 October 2016, as to service of the bankruptcy notice on the respondent debtor in Armidale, New South Wales, on 8 August 2016;
(3) the affidavit of Mr Richard Denis Lester AM, sworn 18 October 2016, verifying the creditor's petition, as required by s 47 of the Bankruptcy Act and R 4.04 of the Federal Court (Bankruptcy) Rules 2016 (Cth);
(4) the affidavit of Mr Michael Grant Lundberg, sworn 19 October 2016, verifying searches of the Federal Court as to applications in relation to the bankruptcy notice, as required by R 4.04 of the Bankruptcy Rules; and
(5) the affidavits of Mr Pierce Tait McMahon, sworn 21 November 2016 and 19 December 2016, as required by R 4.06 of the Bankruptcy Rules.
21 In short, the petitioning creditor contends that the bankruptcy notice and the creditor's petition were duly served, that there is no reason to doubt the validity of the judgment debt, that there is no relevant counter-claim, set-off or cross demand, and that, in the circumstances of this case, there is no need for the Court to delay its dealing with this proceeding by awaiting the outcome of service on the Attorneys-General of the s 78B notice.
22 Having regard to the application of the petitioning creditor and the various contentions, propositions and submissions made by the respondent debtor, prior to the hearing on 19 December 2016, the following matters appeared to be in issue:
(1) Whether the application should be determined by a jury, on the respondent debtor's interim application for an order to that effect.
(2) Whether the bankruptcy notice had been served on him.
(3) Whether the creditor's petition had been served on him.
(4) Whether the Court should not make a sequestration order, having regard to the claim of the respondent debtor that the District Court judgment was liable to be set aside on the grounds of error.
(5) Whether the respondent debtor was otherwise able to demonstrate a relevant counter-claim, set-off or cross demand equal to or exceeding the amount of the judgment debt by reason of other dealings he has had with ANZ Bank, which counter-claim, set-off or cross demand he could not have set up in the District Court proceeding.
(6) Whether the respondent debtor was entitled to an account under s 30(2) of the Bankruptcy Act.
(7) Whether the Court should not make a sequestration order because the respondent debtor has established that he is solvent and in a position to meet the judgment debt.
23 At the commencement of the hearing, the respondent debtor applied for an adjournment of the hearing, which I refused.
24 I will deal first with my reasons for refusing the adjournment, and then I will deal with each of the seven issues identified in .
Should the hearing be adjourned?
25 At the commencement of the hearing on 19 December 2016, the respondent debtor, after some initial hesitation, sought an adjournment of the proceeding, ostensibly so that he could obtain legal representation and notwithstanding that in his Submission filed 16 December 2016 he had expressly stated that he had decided to represent himself in the proceeding. I refused the adjournment. These are the reasons for doing so.
26 In connection with his adjournment application, the respondent debtor made reference to the affidavit of Mr Edward John Maitland, dated that same day, 19 December 2016. The affidavit of Mr Maitland, who is a solicitor in Melbourne, had not been filed in the proceeding, but had apparently been emailed by a law clerk at Mr Maitland's office to the petitioning creditor's solicitors and the Court less than an hour before the hearing was due to commence at 10.15am (WST).
27 In this affidavit, Mr Maitland stated as follows:
1. I am the principal of Maitland Lawyers, the solicitors acting for the Respondent. I have the care and conduct of this proceeding on behalf of the Respondent, and I am authorised to make this Affidavit on their behalf.
2. I make this Affidavit from facts within my own knowledge, save where I state otherwise, and after having made all relevant enquiries.
3. I have previously acted for the Respondent ['Culleton'] in the High Court sitting as the Court of Disputed Returns at Canberra on 7 December 2016 and have recently received instructions to act on behalf of Culleton in this proceeding.
4. Time and logistics precluded me from retaining counsel and/ or a town agent to appear at the application which is listed this morning and for this reason I would respectfully request the Court to adjourn the application to allow time for Mr Culleton to have legal representation in the Court at Perth.
5. Meantime, I have received substantial payments into my Trust Account on behalf of Mr Culleton which I am instructed can be used to pay his creditors. The payments received thus far have been by bank cheque. The trust account rules require my firm to wait for at least 3 working days before the proceeds of the bank cheque can be cleared.
28 Mr Maitland obviously was not, at material times, the solicitor on the record for the respondent debtor and, in circulating his affidavit on the morning of the hearing, did not take any steps to become the solicitor on the record. Nor was it clear from his affidavit that any steps had been taken to retain counsel to appear in this proceeding on behalf of the respondent debtor.
29 In this regard, the respondent debtor said, from the bar table, in the course of making submissions on the adjournment application, that Mr Peter Edward King of counsel had agreed to represent him in this matter. There was no such evidentiary material before the Court, however, to confirm that fact and certainly nothing in the affidavit of Mr Maitland to that effect. An affidavit of Mr King, which had, incidentally, been filed in the proceeding by the respondent debtor on 19 December 2016, and which is referred to further below, contained no indications of his intention to appear for the respondent debtor in the matter or any brief from the respondent debtor to do so.
30 The overarching purpose of the civil practice and procedure provisions of this Court, as stated by s 37M of the Federal Court of Australia Act 1976 (Cth), is to facilitate the just resolution of disputes according to law, as quickly, inexpensively and efficiently as possible. The overarching purpose includes the objectives of the just determination of all proceedings before the Court, the efficient use of judicial and administrative resources available for the purposes of the Court, the efficient disposal of the Court's overall caseload, the disposal of all proceedings in a timely manner, and the resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute.
31 The Court pointed out at the hearing and repeats that the proceeding has been pending in the Court for some time and that the respondent debtor was well aware of the scheduled hearing. Indeed, the creditor's petition was filed on 20 October 2016. The respondent debtor was ostensibly served on 8 August 2016. On 18 November 2016, he entered an appearance (a matter further dealt with below), filed the notice stating grounds of opposition to the petition and a notice under s 78B of the Judiciary Act, as noted above. The matter came on for hearing before District Registrar Jan in Perth on 21 November 2016. Registrar Jan then made programming orders that provided for the application to come before a judge of the Court for hearing on 8 December 2016 at 2.15pm. It was listed before me. As a result of difficulties that the respondent debtor experienced in travelling by air from Melbourne to Perth on the morning of 8 December 2016, I agreed that same day to the adjournment of the hearing then listed before me, to 19 December 2016 at 10.15am. The parties, including the respondent debtor, expressly agreed to the adjournment of the hearing to that date and time.
32 Having regard to those various factors, and the need to consider the s 37M factors mentioned above, I considered that the hearing of the proceeding should not be adjourned. The parties were ready for the hearing. The respondent debtor had had appropriate time, if he wished, to engage lawyers to represent him. He had firmly stated in his written Submission filed 16 December 2016, the Friday before the Monday hearing of the matter, that he intended to represent himself in the proceeding. The applicant creditor opposed the adjournment and plainly desired the matter to be heard at a reasonable time, having held its judgment from the District Court since October 2013, some three years.
33 For these reasons, at the commencement of the hearing, I dismissed the oral application of the respondent debtor for an adjournment of the hearing.
Should the Court order trial by jury?
34 Following the dismissal of the oral adjournment application, I dealt with the respondent debtor's interim application for trial by jury, which I dismissed. The reasons for so doing follow.
35 As noted above, by his interim application, he claimed:
1. A Right under S 116 Constitution not to have to submit to Judgment by a single individual and claims the Right to Jury Trial, under the Discretion given to a Federal Court of Australia Judge by S 30 (3) Bankruptcy Act 1966.
36 On the face of it, the respondent debtor required the whole of the matter before me alone to be adjourned to a trial before a judge and a jury.
37 As can be seen, the claim to a jury trial was made in reliance on both s 116 of the Constitution and s 30(3) of the Bankruptcy Act. I will deal with the s 30(3) question first.
38 Section 30(3) of the Bankruptcy Act is within a section that is headed "General powers of Courts in bankruptcy". It provides that:
(3) If in a proceeding before the Federal Court under this Act a question of fact arises that a party desires to have tried before a jury, the Federal Court may, if it thinks fit, direct the trial of that question to be had before a jury, and the trial may be had accordingly in the same manner as if it were the trial of an issue of fact in an action.
39 By s 31(1) of the Bankruptcy Act, an application for a jury trial must be heard in open court; as it was in this case.
40 It is apparent from the terms of s 30(3) that the Court has a discretionary power, "if it thinks fit", to direct that a question of fact that arises that a party desires to have tried before a jury, be decided by a jury; it is not the whole of the matter which would go before a jury, if the Court so exercised its discretion; only a question or questions of fact.
41 In the event, I ruled (in the absence of the respondent debtor who, at the time, had decided to absent himself from the Court, although he did return later, at which time I briefly explained to him the reasons for rejecting the trial by jury application) that there should not be a trial by jury in this case.
42 The authorities, conveniently referred to by Flick J in Harding v Deputy Commissioner of Taxation (2008) 172 FCR 206;  FCA 1403, establish that the normal mode of trial in a bankruptcy proceeding is trial before a judge without a jury. Some of the cases refer to the need for a party requesting a jury trial to advance a "special reason" for the Court to exercise its discretion in that way. Whether or not a "special reason" must be established, the point obviously is that there needs to be some reason, having merit, that suggests that a jury trial is the appropriate means to try a particular question of fact. In one of the earlier authorities, referred to by Flick J at , a question of fraud was suggested as the type of issue that might possibly lead to a right to trial by jury. It is best, however, not to endeavour to give examples or list particular circumstances which will or might give rise to a court exercising its discretion to allow trial by jury of a question of fact in a bankruptcy proceeding. Each case will obviously depend on its very particular circumstances. But as was said in another authority referred to by Flick J at , in the absence of some very compelling special circumstance, the intention of Parliament is clearly that bankruptcy proceedings be heard by a judge sitting alone.
43 The most obvious question of fact that might be referred to a jury for fact finding in this proceeding is the question whether or not the respondent debtor was served with a bankruptcy notice in the manner and place and at the time alleged by Sgt Scott, a Sergeant of police at Armidale, New South Wales, as discussed further below. I did not consider it was necessary for that question of fact to go to a jury. To require that to happen would not only unreasonably delay the determination of this particular proceeding, but also require the parties to incur unnecessary additional expense in the proceeding. That is the sort of factual issue that judges are very used to deciding and there was no reason why it should be dealt with by a jury and could not be decided by me.
44 To the extent that there were any other questions of fact that arose, either directly or incidentally, in the course of this application, having regard to the above contentions and submissions made by the respondent debtor, I equally considered they could and should be determined by a judge sitting alone, and not by a jury.
45 It was in those circumstances that I determined, in the course of the hearing, that the application for a jury trial should be dismissed.
46 When he returned to the hearing after absenting himself for a period, the respondent debtor insisted that he had a constitutional entitlement to a jury trial, quite apart from s 30(3) of the Bankruptcy Act.
47 To the extent that the respondent debtor appeared, in the terms of the right claimed, to rely upon s 116 of the Constitution, it was difficult to see that that provision, which prevents the Commonwealth Parliament from legislating to establish any religion, or imposing any religious observance, or prohibiting the free exercise of any religion, and establishing any religious test as a qualification for any office or public trust under the Commonwealth, had anything to do with the interim application made.
48 Section 80 of the Constitution, however, provides that the trial on indictment of any offence against any law of the Commonwealth shall be by jury. The matter before the Court does not involve a trial on indictment of an offence against any law of the Commonwealth. It is a civil bankruptcy proceeding and so s 80 is not relevant in this case.
49 There was no basis for a contention that the respondent debtor had a constitutional right, either as a citizen or as a Senator, or on any other basis, to a trial by jury on the creditor's petition currently before the Court.
50 Finally, to the extent that the Court may order a jury trial in a proceeding such as this under s 40 of the Federal Court of Australia Act, I would decline to do so for the same reasons that I refused to order a jury trial on a question of fact under s 30(3) of the Bankruptcy Act. The issues raised in the proceeding, including questions of fact, are amenable to a decision by a judge sitting alone and do not, in my assessment, require determination by a jury.
Was the respondent debtor served with the bankruptcy notice?
51 The respondent debtor denies he was served with the bankruptcy notice.
52 In this regard, the respondent debtor's denial is not contained in his direct affidavit evidence to the Court, but in his grounds of opposition to the petition, that he filed on 18 November 2016 and which are set out above, and by reference to the affidavits of the four witnesses alluded to in ground 2.
53 From the terms of that ground of opposition, one may be left with uncertainty as to whether the respondent debtor was simply saying that he knew nothing about an attempt to serve a bankruptcy notice on him, or whether he was saying that an attempted service was defective or ineffectual as a matter of law. Having regard to his reliance on the affidavits of the four deponents filed by him, it would appear to be the former that he was putting to the Court.
54 In the result, the forensic strategy adopted by the respondent debtor was to not give evidence himself about the question of service, but to rely upon the affidavit evidence of four deponents in making out his allegation he had not been served.
55 In order of the dates of the affidavits of the four deponents concerned, the first deponent is one Mr Leonard William. His affidavit, which is dated 7 December 2016, sets out his name, followed by the post-nominal letters "QC© TM®"; which is, to say the least, an unusual set of post-nominal letters, not immediately recognisable as referring to any particular title or position, degree or accreditation. The expression "QC" on its own, of course, suggests the office Queen's Counsel, held by a barrister, which Mr William plainly is not.
56 Those observations aside, Mr William says that he was at the Armidale courthouse all day on the day in question and at no time during that day did he see any documents served upon the respondent debtor. He says he was "with him at all material times in the court house and precincts". In particular, he says:
We occupied an interview room in the court house all day and at one stage JACK CRAYCROFT VIVERS approached that interview room to about 3 metres from the door with a sheaf of papers under his left arm and raised his right clenched fist and waved it at Senator CULLETON mouthing words in a contemptuous manner.
57 The next deponent is Mr John Alexander Codrington, who says he was with the respondent debtor at Armidale on the day in question and met with him at 8am at a café a short distance from the Armidale courthouse. Mr Codrington says he remained in the respondent debtor's presence for the whole day until completion of court proceedings, left the courthouse with him and left the area in the same vehicle with him. He adds that the only time he was not with the respondent debtor "was after I escorted him to the Armidale Police Station as part of the Court procedures when he was taken into custody". Mr Codrington adds that he was present in the "reception area" of the police station after the respondent debtor was taken into custody, "when an individual approached the Armidale Police Desk Sergeant and asked if the Police could give some documents to Rodney Culleton". He says that the desk sergeant refused the individual's request. He concludes there was no service of any documents of any kind made upon the respondent debtor that day while he was in the respondent debtor's presence.
58 The third deponent is Mr Bradley Glyn Ward, who says he was with the respondent debtor at Armidale when it is alleged the respondent debtor was served and at no time did he see him served. Mr Ward says the only time he was not with the respondent debtor was a period of around five minutes, as he went to bring in Mr King, the barrister. He says he saw no sign of any papers and states that "Rodney was in an Interview room inside the Police Station and only support people of which I was one were admitted".
59 The fourth and last deponent is Mr King, the aforementioned barrister. He says that to the best of his recollection the respondent debtor was accompanied on the day in question, except whilst in conference with Mr King and a local solicitor at the courthouse, by three other persons who were introduced to him as Mr Ward, Mr Len Lambert (who would appear to be the one and same as Mr William) and Mr Codrington. Rather than endeavour to abbreviate the narrative evidence given by Mr King, it is best to set it out in full, being paras 7 to 15 of his affidavit:
7. Before the initial mention of the matter at about 10.00am a person standing outside the Court house on the footpath appeared to approach me as I left the Court House for a coffee at a café across the street before the hearing commenced. He had papers in his hand as if he was a process server.
8. I asked the person with the papers in his hand 'Do you have any business with me or Senator Culleton?' to which he replied 'I do not.' I asked him his name, which he told me. I do not recall the name given. I then kept walking.
9. Whilst waiting for the matter to be called on, following the initial mention, I brought to the attention of Senator Culleton that this gentleman to whom I referred was standing outside the Court House holding papers.
10. At the initial mention the Magistrate requested that Senator Culleton attend the Police Station next door to requite a Bench Warrant. He agreed to do so.
11. I then walked with Senator Culleton out of the Court House on to the street and to the Police Station. I noticed that the person in question holding papers then followed us to the Station. I thought this odd in the light of the answer the person had made to my earlier question. Nonetheless, in my presence I did not observe him either approach Senator Culleton nor serve him with any documents.
12. After requiting the warrant we returned along the street to the Court House. Again I did not observe the person with papers either serve or approach Senator Culleton in my presence or to my observation.
13. Following the Court case before Magistrate Holmes which finished after lunch I left Senator Culleton and went across the street to the café before leaving for the airport to make some telephone calls. I observed that the unidentified person who I have described above with the papers referred to appeared to have gone.
14. I had a good view of the Court entrance across the street from the cafe. About an half hour later I observed Senator Culleton and his group leave the Court House and walk to the adjacent car park. They then appeared to get into a vehicle and leave.
15. During the period that day that I was with Senator Culleton to my observation he was not approached by any person nor served with any process or handed any documents. I did not see the unidentified person referred to above at all in the afternoon.
60 At the hearing of the creditor's petition, the respondent debtor (having returned to the hearing room after earlier absenting himself) cross-examined Sgt Scott on his affidavit.
61 In his affidavit dated 13 October 2016, Sgt Scott stated as follows:
1. I am a Police Officer of the rank of Sergeant. My Police Number is 30861.
2. On Monday, 8 August 2016 at about 11:00am I personally handed to an individual who I know to be Rodney Norman Culleton, the following documents:
(a) a Bankruptcy Notice addressed to both Rodney Norman Culleton and Ioanna Culleton; and
(b) an order of the District Court of Western Australia in proceedings CIV 2787 of 2011 entitled 'Judgment Before His Honour Judge Curthoys 24 October 2013', which was attached to the Bankruptcy Notice with a staple.
3. I knew the individual to be Rodney Norman Culleton because he had presented to the Police Station in Armidale in answer to a warrant in the name of Rodney Norman Culleton.
4. At the time I handed the above document to Rodney Norman Culleton he was at the Armidale Police Station.
5. Mr Culleton refused to take the Bankruptcy Notice with the attached order of the District Court of Western Australia and said to me words to the effect of 'I am not fucking taking that.' I then placed the Bankruptcy Notice with the attached order of the District Court of Western Australia on the table in front of Mr Culleton.
62 Sgt Scott annexed the bankruptcy notice and the order to his affidavit.
63 The respondent debtor sought to challenge the reliability of Sgt Scott's recollections by having him describe the nature, colour and contents of the document that Sgt Scott said he had served on the respondent debtor. Sgt Scott's recollections were very clear – that the document was black and white, A4 paper, not folded, and contained attached documents; that he perused the materials and it related to a bankruptcy notice and attached court order. When the witness described the document as "black and white", I understood him to mean that it was white A4 paper upon which black text appeared.
64 The respondent debtor then sought to establish some inconsistencies in the evidence of Sgt Scott in this regard, suggesting that he had both said he had read and then not read the materials. At all times it was clear that Sgt Scott only ever said that he had perused the materials he served, so that he knew what they were. He plainly had not studied the content of the materials.
65 When it came to the question of service in Sgt Scott's evidence and how he had attempted personally to hand the bankruptcy notice to the respondent debtor in the room in which he was waiting (which Sgt Scott said was not an interview room as such, but a waiting room), the respondent debtor effectively put it to Sgt Scott that his evidence was false, that there was no occasion upon which the respondent debtor had stepped back, put his hands in the air and stated the words Sgt Scott attributed to him. The witness was pressed about this more than once and was adamant that what he described was exactly what had occurred.
66 Following some cross-examination concerning the fact that the bankruptcy notice that was served by Sgt Scott was addressed to both Mr Culleton and Mrs Culleton (which indeed was the case as a perusal of annexure MDS-1 to the affidavit of Sgt Scott discloses), the following question and answer was asked and given:
Respondent debtor: I don't know, because I didn't receive them. So when you say you personally handed to them, did you – how did you do that? Re(sic, 'Are') you saying that you placed it in my top pocket, did you? …
Sergeant Scott: No. You were standing behind a table in the corner of the
room. I've walked in and I've said, Mr Culleton, I've got some bankruptcy notice
for you, and also a court notice. I said I've got to serve it on you. You stood back,
went to the corner of the room, raised your hands up and you said, 'I'm not fucking
taking that.' I said, Mr Culleton, this is going to be served.
67 Sgt Scott also said, when challenged by the respondent debtor in cross-examination, that when he served the respondent debtor in the way he described, the respondent debtor was the only person in the waiting room and there were, at that point, no others in the room.
68 When further pressed in cross-examination about the ability of a person to see into and out of the room in which the respondent debtor was waiting, Sgt Scott made it clear that he could see into the room, from where he sat outside it, through a window, and that in the room it was not possible to see out to the reception area or through to the front area outside the police station.
69 He also explained that, while the courthouse and the police station were all on the same general area of land, they were connected by a tunnel. From Sgt Scott's evidence it was clear that the courthouse and the police station are nonetheless, functionally, two separate buildings.
70 Notwithstanding the various accounts of the deponents of the four affidavits, and the inference that the respondent debtor seems to wish to draw from them, namely, that he was never served with any papers on the day in question, I have absolutely no hesitation in accepting the direct evidence of Sgt Scott that he effected service of the bankruptcy notice at the place and time, and in the manner that he stated. I fully accept that when he attempted to personally hand the bankruptcy notice, by way of service, to the respondent debtor in the waiting room of the Armidale police station, there was no other person apart from the respondent debtor then present in that room. Further, that when he attempted to hand the document to the respondent debtor, the respondent debtor responded exactly in the way that Sgt Scott described and that Sgt Scott, by reason of the respondent debtor's physical and verbal reaction, put the bankruptcy notice in front of him on the table in the waiting room in the manner that he described.
71 I consider that to the extent that there is any apparent inconsistencies between the evidence of Sgt Scott and the more general evidence given by the deponents, the evidence given by Sgt Scott is compelling and should be accepted.
72 It might be added that the evidence of Mr King, the barrister, is of no relevance as he never went into the police station.
73 The evidence of the other three men suggests that they were in an interview room with the respondent debtor but never saw anyone serve any documents on him in that room. It should be inferred, if they were in the same waiting room Sgt Scott spoke of, that they must have been absent from the room at the time that Sgt Scott effected service of the bankruptcy notice on the respondent debtor or were mistaken in their evidence.
74 As I say, the evidence given in cross-examination by Sgt Scott was compelling. He was a witness who had no axe to grind in the proceeding. He gave his evidence frankly without hesitation. There was no artifice about the manner in which he gave his evidence. He was pressed more than once on critical areas of his testimony and his testimony was consistent throughout. He did not become flustered, hesitant or betray any other behaviours that might suggest he was prevaricating or dissimulating or in any other way being economical with the truth.
75 I should also note, as I did at the outset of this section of the judgment, that the respondent debtor seems carefully to have avoided addressing the topic of service in his various affidavits. Plainly, he forensically decided to rely upon the affidavit evidence of others, and the inference that might be drawn from them, to avoid the impact of Sgt Scott's evidence. That is an additional reason for me to find that Sgt Scott's account of service of the bankruptcy notice should be accepted without qualification. The assertions made by the respondent debtor in the course of cross-examining Sgt Scott, to the effect he was not served, are disregarded. They do not constitute evidence. Nor do assertions made by the respondent debtor from the bar table in his capacity as a self-represented party/advocate.
76 As to the question of service and the fact that the bankruptcy notice was not in the end put in the hands, literally, of the respondent debtor, that was not raised as a reason why the service should be considered defective. If it had been, it would not, in the circumstances of this case, have been a reason for finding service was defective. There is ample authority to support a finding that in circumstances where a person knows they are being served, physically attempt to avoid service, and the document is then left with them, in effect, by, for example, in this case being left on the table in the waiting room in front of the respondent debtor while he held his hands in the air, the service is properly effected. See Wong; Ex parte Wong v Robinson  FCA 805. In this regard, authority is reflected in the terms of R 10.12 of the Federal Court Rules 2011 (Cth), which is not inconsistent with the Bankruptcy Rules and continues to apply to this proceeding: R 1.04 of the Bankruptcy Rules.
77 Further, the above cross-examination of Sgt Scott shows that he told the respondent debtor what the service documents were, and so Federal Court Rules R 10.12(b) is satisfied in that regard.
78 There is also no issue in this case, even though it is only glancingly raised by the respondent debtor as an issue, concerning whether service in the waiting room of the police station, adjacent to the precincts of the courthouse, was effectual. The courthouse and the police station, as I have noted above, by reference to Sgt Scott's evidence, are functionally different buildings. There is no issue with a person being served in the police station.
79 In any event, even if there were some closer relationship between those buildings, that is no reason in the circumstances of this case to consider that the service was ineffectual. See Re O'Sullivan; Ex parte O'Sullivan v Commonwealth Bank of Australia (1995) 57 FCR 145;  FCA 196.
80 On the question of service, then, I find that the respondent debtor was served with the bankruptcy notice on 8 August 2016.
Have the creditor's petition and related documents been served?
81 As noted above, s 52(1)(b) of the Bankruptcy Act provides that at a hearing of a creditor's petition, the Court shall require proof of its service. Part 4 of the Bankruptcy Rules also deals with creditors' petitions.
82 A question has been raised by the respondent debtor whether R 4.05 has been satisfied. It relevantly provides that, unless the Court otherwise orders, which it has not in this case, at least five days before the date fixed for the hearing of the creditor's petition, the applicant creditor must serve on the respondent debtor the creditor's petition; a copy of the affidavit or affidavits verifying the petition required by s 47(1) of the Bankruptcy Act; if applicable, a copy of the affidavit required by R 4.04(1)(a) of the Bankruptcy Rules; if applicable, a copy of the affidavit of service of the bankruptcy notice required by R 4.04(1)(b) of the Bankruptcy Rules; and a copy of any consent to act as trustee, filed under s 156A of the Bankruptcy Act.
83 By his affidavit made 21 November 2016, Mr McMahon, a solicitor employed by the solicitors for the petitioning creditor in the proceeding, states that on 19 October 2016 he sent all these relevant documents, including the creditor's petition, to the respondent debtor by email by way of service.
84 Mr McMahon said they were also sent to the respondent debtor at an address recently used by him on Court documents filed with both the Federal Court of Australia in proceeding WAD450/2016 and the Supreme Court of Western Australia, Court of Appeal appeal CACV130/2013. On 19 October 2016, the documents sent by email had been filed but not stamped. On 20 October 2016, Mr McMahon says that he sent those same documents again by email to the respondent debtor, by way of service, the documents at that point having been both filed and stamped.
85 The email of 19 October 2016 was sent to the following email addresses: culleton…@gmail.com; Senator.Culleton@aph.gov.au. I have chosen not to put in the full detail of the first email address in the event that it is confidential and so to protect privacy. I have not done the same in respect of the second one as it is obviously a publicly available address at Parliament House in Canberra. The second email sent on 20 October 2016 was sent to those same email addresses.
86 On 18 November 2016, the respondent debtor filed a notice of appearance in the proceeding. It stated:
Rodney Norman Culleton of 51 Fourth Avenue Maylands 6051 the Respondent appears.
87 He gave his address for service at a place in Collins Street, West Perth as well as the following email address: Senator.Culleton@aph.gov.au.
88 At the same time he filed his aforementioned notice stating grounds of opposition to the application, in which he indicated that :
A notice of appearance on behalf of the Respondent is filed with this notice.
The Respondents address for service is:
Place: 51 Fourth Avenue Maylands WA 6051
89 The email address given was the same as that to which the emails by Mr McMahon were sent on 19 and 20 October 2016 and which I have abbreviated for privacy reasons.
90 The place for address for service and the email address for service in the notice stating grounds of opposition were slightly different in detail from the place and email address in the notice of appearance.
91 What is clear, however, is that the two emails sent by Mr McMahon were both sent to each of those email addresses.
92 In circumstances where the respondent debtor then proceeded to file a notice of appearance on 18 November 2016, which is dated 16 November 2016, following the sending to him of the creditor's petition and other relevant documents by email by way of service, I readily infer that he was actually in receipt of the creditor's petition and other documents and was served with them as required by the Bankruptcy Rules.
93 In any event, the appearance entered by him plainly cures any technical want of service, should it exist, in these circumstances. See R 10.11 of the Federal Court Rules.
94 The suggestion that the appearance was "conditional" is not established. It is difficult to see, in any event, how an appearance to a creditor's petition can be conditional. The jurisdiction of the Court to deal with a creditor's petition under s 43 of the Bankruptcy Act is not in issue, and not open to question. If the respondent debtor had wished to apply to set aside the bankruptcy notice he could have applied under s 41 of the Bankruptcy Act, if he had complied with the time limits there set out. He did not do so.
95 In these circumstances, I should add that I place no weight on the affidavit of Ms Anne-Maree Leonard, made 19 December 2016 and relied upon by the respondent debtor, in which Ms Leonard states that she is employed by the respondent debtor as a media adviser, is one of the staff in the office who monitors the press, and who cannot recall having received/read an email in his email inbox that related to documents being served on him for a bankruptcy case.
96 For the same reason I place no weight on the affidavit of Dr Chamonix Terblanche, made 19 December 2016 and relied upon by the respondent debtor, in which Dr Terblanche states that she is employed by the respondent debtor as an adviser and that one of her tasks is to action his email inbox at Senator.Culleton@aph.gov.au, that she is one of the staff in the office who actions his emails, and that she cannot recall having received/read an email in his email inbox that related to documents being served on him for a bankruptcy case.
97 And for exactly the same reasons, I do not put any weight on the affidavit made by Ms Laona Jones, a front office staffer employed by the respondent debtor who says she actions his incoming emails and says that she too cannot recall having received/read an email in his email inbox that related to documents being served on him for a bankruptcy case.
98 In all of these circumstances, I find that the creditor's petition and other relevant documents were served on the respondent debtor as required by s 52(1)(b) of the Bankruptcy Act and R 4.05 of the Bankruptcy Rules.
is the District Court judgment flawed?
99 The respondent debtor submits that the District Court judgment upon which the bankruptcy notice is founded is flawed both as a result of a fact finding error made by the trial judge, and because the trial judge lacked the constitutional status to make a binding decision because he had not taken an oath of allegiance to the Queen when appointed to his office. I will deal with the first issue in this section and the second issue in the next section.
100 As to the first issue, the respondent debtor says that he has an appeal against the trial judge's judgment in train and, for that reason, the Court should be loath to make an order sequestrating his estate at this point.
101 As to the alleged fact finding error, the respondent debtor contends, as noted in para 4 of the grounds of opposition set out at  above, that the agreement as found between the petitioning creditor "and the Defendant Company" was nothing more than an invitation to treat, not a concluded contract. In para 5 of the grounds of opposition he states that the evidence did not disclose any dealings with the petitioning creditor except an "un-concluded invitation to treat which could not found damages for breach of contract". At a second para 5 he says that, as a consequence, the Court is required now to go behind the District Court judgment to determine if there is any amount owing at all.
102 The petitioning creditor contends that the District Court judgment is a final judgment which followed a trial of the action between the petitioning creditor and Mr and Mrs Culleton, amongst other parties. It says that judgment has been the subject of appeals and challenges by the respondent debtor (and Mrs Culleton) which have been wholly unsuccessful and that the judgment has been upheld twice by the Court of Appeal of the Supreme Court of Western Australia. It also notes that an application for special leave to appeal to the High Court of Australia by Mrs Culleton from the first Court of Appeal judgment was dismissed following abandonment.
103 The sequence of litigation may be summarised as follows. In 2011, Dakin Farms Pty Ltd and Balwyn Nominees, the petitioning creditor, commenced an action in the District Court of Western Australia against Elite Grains Pty Ltd (then associated with Mr Culleton and Mrs Culleton), as well as against Mr Culleton and Mrs Culleton.
104 After a contested trial during which Elite Grains and Mr and Mrs Culleton were legally represented, judgment was obtained in October 2013 by the plaintiffs, and the defendants' counter-claim was dismissed: see Dakin Farms Pty Ltd v Elite Grains Pty Ltd [No 2]  WADC 160.
105 Mr and Mrs Culleton then brought an appeal against the decision of the District Court in the Court of Appeal. It was dismissed in its entirety in May 2015 with reasons published in September 2015. See Culleton v Dakin Farms Pty Ltd  WASCA 183 (Culleton  WASCA). Further reference is made to this judgment below.
106 Mrs Culleton, at that point, filed an application for special leave to appeal to the High Court of Australia, which was subsequently abandoned, for failure to file a written case. This was noted by the Court of Appeal in a subsequent proceeding in 2016: Culleton v Dakin Farms Pty Ltd  WASCA 152 (Culleton  WASCA) at .
107 At the time of the hearing of the first appeal in the Court of Appeal, Mr Culleton was a bankrupt. He had been made bankrupt by a sequestration order made on 31 October 2014, and his subsequent appeal against that order was dismissed.
108 Subsequent to the Court of Appeal decision in late 2015, however, it appears the sequestration order was set aside by consent as between the relevant creditor and Mr Culleton. See Culleton v Macquarie Leasing Pty Ltd (No 2)  FCA 1478.
109 In late 2015 and early 2016, Mrs Culleton sought fresh orders in the District Court to suspend the enforcement by the petitioning creditor of all or part of the judgment obtained against her and the respondent debtor.
110 On 14 April 2016, the District Court dismissed the stay application and gave extemporaneous reasons.
111 Mrs Culleton then sought to appeal the refusal to stay decision in the Court of Appeal. The Court of Appeal dismissed the appeal in August 2016. See Culleton  WASCA. In the course of its reasons the Court, relevantly stated:
19 After reviewing all the materials, Troy DCJ concluded that Mrs Culleton had exhausted the appeal process. His Honour found that the only possible avenue of appeal, being an application for special leave to appeal to the High Court, had been abandoned and that the merits of any such appeal were unconvincing.
20 His Honour was plainly correct. The appeal filed by Mrs Culleton against Troy DCJ's decision was misconceived and had no reasonable prospects of success.
21 Mrs Culleton was a party to the primary proceedings and bound by the judgment against her. Her appeal to this court was dismissed. Any subsequent application by Mrs Culleton to the High Court has been abandoned. None of these matters were challenged in the grounds of appeal, and even if they had been, they are not reasonably contestable in the circumstances. All avenues of appeal against the primary decision having been exhausted, there was no basis upon which its enforcement might properly be suspended.
22 For these reasons, we dismissed Mrs Culleton's appeal herein pursuant to r 43(2)(g)(i) of the Court of Appeal Rules.
112 I should further note that in the Court of Appeal in Culleton  WASCA, Murphy JA first noted, in relation to the background to the appeal, that Mr and Mrs Culleton had entered into an agreement (in writing) with the petitioning creditor on 16 December 2009 and in general terms had agreed to lease from the petitioning creditor an area of Rathgar on the north side of the Williams/Narrogin Highway and part of the Fitts Creek land on the southern side. They also agreed (by the same instrument) to purchase the majority of Rathgar for a purchase price of $13.2 million.
113 Murphy JA further noted that, in 2010, Mr and Mrs Culleton met with Mr Lester, of the petitioning creditor, and Mr Culleton delivered a letter to him. Murphy JA noted that the primary judge concluded that the letter and the statements made by Mr Culleton constituted a repudiation of the written agreement, which the petitioning creditor accepted and effected a termination of the agreement.
114 Murphy JA then noted that the primary judge accepted that the lease and purchase terms were interconnected for the purposes of calculating damages, but that the primary judge effectively held that since the entire agreement had been renounced by Mr and Mrs Culleton, and since there was no evidence of any benefits accruing to the petitioning creditor from the renunciation of the agreement, it was appropriate to calculate the petitioning creditor's loss by reference to the loss of lease income and related losses.
115 Murphy JA then stated, at , that, in this regard, and contrary to the petitioning creditor's assertion on the appeal, on a proper construction of the judge's reasons, his Honour found that the agreement as a whole, dated 16 December 2009, was terminated, not just that part of it concerning an agreement to lease.
116 After referring to the terms of the agreement, Murphy JA, at , noted that Mr and Mrs Culleton's grounds of appeal contained only one ground, which, in essence, contended that the primary judge should have dismissed the petitioning creditor's claim for an award of loss of bargain damages and should have instead held that the petitioning creditor was entitled to nominal damages only.
117 That was the sole ground of appeal that went forward for consideration, an application to amend Mrs Culleton's appeal having been rejected by the Court.
118 Ultimately, Murphy JA, at , held that the petitioning creditor was entitled to loss of bargain damages.
119 At the time of the hearing of the appeal, as Murphy JA noted, at , Mr Culleton had been made bankrupt and his trustee in bankruptcy had not made an election to prosecute or discontinue the appeal and so, by s 60(3) of the Bankruptcy Act, the trustee was deemed to have abandoned the appeal. Murphy JA further noted that Mr Culleton had not made an application under s 178 of the Bankruptcy Act to challenge the decision of the trustee in bankruptcy to, in effect, abandon the appeal.
120 At , Murphy JA, having noted that Mr Culleton's appeal was deemed to have been abandoned, added that it had "in any event, been shown to have no substantive merit". His Honour added that, in proceedings at first instance, the courts have been inclined not to dismiss an action commenced by a bankrupt, after a deemed abandonment of the action, because a dismissal might, in effect, extinguish the underlying claim by creating a res judicata. He added that that consideration had no force in determining whether to dismiss an appeal following the deemed abandonment, particularly where, as in the case before the Court, the appeal did not seek to vindicate an underlying cause of action in the bankrupt, and there was no reason why an appeal which was deemed to have been abandoned should not be dismissed. In those circumstances, his Honour said, at , that Mr Culleton's appeal should also be dismissed, along with Mrs Culleton's.
121 Notwithstanding the dismissal of both Mrs and Mr Culleton's appeal by the Court of Appeal, and the subsequent abandonment of Mrs Culleton's special leave application to the High Court of Australia, and the Court of Appeal's subsequent dismissal of an appeal by Mrs Culleton against the refusal by Troy DCJ in the District Court to grant a stay or suspension order, the respondent debtor adheres to a belief that he has some entitlement to renew an appeal against the District Court judgment giving rise to the judgment debt the subject of the bankruptcy notice.
122 The respondent debtor's first and second affidavits filed 16 December 2016 go to this "appeal" issue. In the first of those affidavits, he attaches documents which he says support an appeal to the Supreme Court to show that it "would be a monstrous thing that a receiving order should be made while an appeal is pending", citing Bayne v Bailieu (1908) 6 CLR 328;  HCA 39.
123 He also deposes to the opinion that "[t]hese Documents prove that unless you are a farmer and understand the land, a person should not sit as a Judge in a dispute between farmers".
124 Apart from observing in passing that judges have sat on disputes between all sorts of business people, including farmers, over centuries, the documents that are said to support an appeal do anything but that. The first bundle of documents attached relates to the application already referred to, made by Mrs Culleton to Troy DCJ in the District Court for a suspension order in respect of the primary judgment, which has been the subject of dismissal both by Troy DCJ and the Court of Appeal subsequently. In a further document, which appears to be a summary that sets out the orders that Mrs Culleton required in the stay proceeding after a "new trial", it is apparent that both Mrs Culleton and Mr Culleton sought to avoid the consequences of the judgment in Culleton  WASCA. From a document headed "Index of affidavit and attachments", attached to this first affidavit of December 2016, it is apparent that Mrs Culleton and the respondent debtor wished to adduce what they considered to be "fresh evidence", as well as have a court reconsider the impugned judgment of the trial judge in the District Court proceeding.
125 Little more need be said in relation to these two affidavits filed on 16 December 2016. The respondent debtor entertains what must be described as a naïve belief that he can continue to agitate for a retrial of a proceeding which has already been the subject of, in effect, two unsuccessful appeals to the Court of Appeal of Western Australia in 2015 and 2016.
126 In oral submissions at the present hearing, by reference to material amongst the documents in the attachments to his 16 December 2016 affidavit, the respondent debtor contended that the trial judge in the District Court had erred because there never was a concluded agreement, as found by the judge, and that there would be no reason to think that he and Mrs Culleton would have ever agreed to take on and repay loans worth many millions of dollars.
127 Again, these submissions simply go to illustrate that the respondent debtor, despite having been unsuccessful in his defence of the primary District Court proceeding, and on the subsequent appeal where questions of liability in relation to a contract were not argued, but only quantum of damages, wishes to make a claim that is quite beyond the realms of legal possibility, as I see it, for the purposes of this application before me.
128 It follows that I find that the primary District Court judgment on which the bankruptcy notice is founded should be considered both regular and supportive of the judgment debt and there is no basis upon which to accept the respondent debtor's submission that it is flawed.
Was the District Court judgment of no force and effect because the District Court Judge on his appointment as a judge did not swear an oath to the queen, but rather to "the people and the State of Western Australia"?
129 The time has arrived for people who consider that this is a constitutional issue of some moment to appreciate that the courts have long since discredited the theory. Nonetheless it continues to be advanced from time to time, as it has been by the respondent debtor on this occasion.
130 Most recently, as counsel for the petitioning creditor submits, McKerracher J in the Federal Court disposed of the same argument in the recent application brought by the respondent debtor in October 2016. See Culleton  FCA 1193.
131 All previous attempts to raise this issue have equally been rejected as without any legal merit. See Shaw v Jim McGinty in his capacity as Attorney General & Anor  WASCA 231 upholding Shaw v Attorney General for the State of Western Australia & Anor  WASC 149; Glew & Anor v Shire of Greenough  WASCA 260; Glew v The Governor of Western Australia (2009) 222 FLR 416;  WASC 14. In Glew v Shire of Greenough, Wheeler JA (with whom Pullin and Buss JJA agreed) observed, at  and , that 2003 State legislation bringing about the change in terminology did not effect any change to constitutional reality. It did not attempt to alter the relationship between the Crown and the various bodies contained within the Acts amended. Her Honour said: "There is no constitutional prohibition upon the alteration of the terminology which refers to the Crown or to her Majesty. Further, the changes of terminology contained within the Acts Amendment and Repeal (Courts and Legal Practice) Act 2003 are consistent with constitutional reality".
132 I accept the submission made on behalf of the petitioning creditor that the contentions made by the respondent debtor are seriously flawed and the matters upon which he relies have no effect on the judgment obtained by the petitioning creditor in 2013 in the District Court of Western Australia; or the decisions of the Western Australian Court of Appeal made thereafter. The judgment is enforceable against the respondent debtor, despite the discredited theory being advanced yet again.
Does the respondent debtor have a counter-claim, set-off or cross demand that is equal to or exceeding the judgment debt?
133 In his Submission filed 16 December 2016, towards the bottom of p 9, following lengthy constitutional submissions, the respondent debtor comes to what he describes as his "Counterclaim against the ANZ Banking Corporation", which he says goes to the heart of his claim to be solvent. He says he has made and filed an affidavit containing admissions made by Permanent Custodians Limited that is a subsidiary of ANZ Banking Corporation (ANZ Bank) in pleading in a case in Victoria.
134 It is difficult to understand precisely how a very generally asserted claim he may have against ANZ Bank or against Permanent Custodians Limited is in any way relevant to the question of the respondent debtor's solvency vis a vis the petitioning creditor. From oral submissions made, I understood the respondent debtor to be suggesting that there is some sort of connection between the petitioning creditor and ANZ Bank and its asserted subsidiary. There is, however, no material evidence before the Court to suggest that the petitioning creditor is in any way relevantly connected with, a proxy for, an agent of, or in any other legal or equitable sense the alter ego of either ANZ Bank or its asserted subsidiary, Permanent Custodians Limited. While in his second affidavit of 16 December 2016, the respondent debtor asserts that Mr Lester, of the petitioning creditor, is a "proxy" for ANZ Bank, there is no, or not sufficient, evidentiary basis to this allegation which, as a result, may be disregarded.
135 Just what the essence of a counter-claim against ANZ Bank or its subsidiary actually is, is something that falls well beyond any evidence put before this Court exercising bankruptcy jurisdiction.
136 I therefore totally disregard this "Counterclaim" assertion for the purpose of this proceeding.
137 There is no counter-claim, set-off or cross demand that the respondent debtor has established against the petitioning creditor that has not already been considered and dismissed in the previous District Court proceeding.
138 The respondent debtor has not, therefore, despite his submission, established his solvency on the basis of any such counter-claim.
Is the creditor's petition an abuse of process?
139 I should finally deal with some other issues raised very much in passing, or incidentally, by the respondent debtor in his written submissions or otherwise adverted to in the course of his oral submissions.
140 One of those is an allegation made by the respondent debtor in his written Submission filed 16 December 2016, where he asserts, at the top of p 2:
The very first thing the court should decide is if these proceedings are politically motivated, given that the Petitioning Creditors Lawyer firm also acts for the ANZ Banking Corporation and ANZ is one of the Banks potentially liable for the huge damages if ever made accountable in the Federal Court of Australia.
141 It may be said, without flourish and very shortly, that I take the intent of this allegation to be that the petitioning creditor has somehow conspired with ANZ Bank to bring and maintain this particular proceeding concerning the respondent debtor.
142 There is no evidentiary support for this allegation. It appears to be made wildly, very much as a political flourish. The allegation is followed at the top of p 2 by further statements by the respondent debtor that, as a Senator, he has been "gathering and disseminating evidence against this bank in particular, in an attempt to hold a Banking Royal Commission. It would grant them enormous benefit if I were to be bankrupted and forced to resign from the Senate".
143 There is, as I say, no evidence to support this allegation and I do not consider that there is any evidence at all of the petitioning creditor bringing and maintaining the proceeding in order to achieve some ulterior motive such as that ascribed by the respondent debtor in these submissions.
144 I reject the submission.
Will the respondent debtor be deprived otherwise than on "just terms" of some property, contrary to the constitution, should a sequestration order be made against him on the current application?
145 Again this is one of the issues that is thrown up by the respondent debtor's submissions, and, in particular, in his Submission filed 16 December 2016. It is a particularly difficult argument to follow.
146 He refers to s 51(xxxi) of the Constitution, which he rightly observes guarantees "just terms" in the acquisition of any property from an individual by authority of the Commonwealth Parliament. His argument, as he expresses it, at the top of p 4 of his Submission, is that the orders of the trial judge in the primary District Court proceeding constitutes an "Arbitrary Order" against him, "taking property from me" and thus the Constitutional just terms provision has been violated.
147 The simple answer to the proposition is that the District Court of Western Australia, exercising judicial power in relation to a contractual dispute between the relevant parties to the litigation, did not deprive Mr and Mrs Culleton of any property he or they were possessed of. A judgment was entered against them requiring them to pay damages. Even if broader principles of law derived from the Constitution mean that the District Court of Western Australia, at material times, was exercising judicial power under the Constitution, the judicial orders made by the District Court do not in any way involve the confiscation of property to which s 51(xxxi) of the Constitution refers.
148 There is also merit in the submission of counsel for the petitioning creditor that the Commonwealth Parliament has the express legislative power to make a law in relation to bankruptcy, pursuant to s 51(xxxi) of the Constitution, and so it follows that a sequestration order made on the strength of the District Court orders also cannot be considered to involve some arbitrary confiscation, not on just terms, of the respondent debtor's property.
149 As I said in the course of argument at the hearing, the constitutional arguments made on behalf of the respondent debtor are not convincing. In fact, they are not even arguable. They are made by persons, no doubt doing the best that they can, without any apparent formal instruction as to the tenets of Australian constitutional law. They fail conceptually and logically at almost every turn.
150 It follows that the "just terms" and related arguments are without any foundation and should be disregarded.
151 As to other "constitutional" or broader philosophical submissions and observations made by the respondent debtor in his affidavit of 12 December 2016 or in the respondent debtor's Submission filed 16 December 2016, none have any substance so far as the questions raised in this proceeding are concerned, and I have no regard to them.
Does the issuing of the s 78B notice affect the exercise of the jurisdiction of the Court?
152 I have noted above that on 18 November 2016 the respondent debtor filed a notice under s 78B of the Judiciary Act at the same time as he filed his appearance and grounds of opposition. The terms of the s 78B notice are set out above. There was no evidence before the Court that at the time of the hearing the notice had been served on any of the Attorneys.
153 Section 78B of the Judiciary Act relevantly provides that where a cause pending in a federal court involves a matter arising under the Constitution or involves its interpretation, it is the duty of the Court not to proceed in the cause unless and until the Court is satisfied the notice of the cause has been given to the Attorneys-General of the Commonwealth and of the States, and a reasonable time has elapsed since the giving of the notice for consideration by the Attorneys-General of the question of intervention in the proceedings or the removal of the cause to the High Court of Australia.
154 It has long been held that a party, simply by asserting a constitutional issue, cannot, in effect, cause the hearing of a proceeding to be adjourned.
155 For example, in Re Finlayson; Ex parte Finlayson (1992) 72 ALJR 73 at 75, Toohey J observed:
A cause does not involve a matter arising under the Constitution or involving its interpretation merely because someone asserts that it does. That is not to say that the strength or weakness of the proposition is critical that it must be established that the challenge does involve a matter arising under the Constitution.
156 Similarly, in Australian Competition and Consumer Commission v CG Berbatis Holdings Pty Ltd and Others (1999) 95 FCR 299 at ;  FCA 1151, French J (as the Chief Justice of Australia then was) said:
Section 78B does not impose on the court a duty not to proceed pending the issue of a notice no matter how trivial, unarguable or concluded the constitutional point may be. If the asserted constitutional point is frivolous or vexatious or raised as an abuse of process, it will not attach to the matter in which it is raised the character of a matter arising under the Constitution or involving its interpretation.
157 More recently, in Glew v Shire of Greenough, referred to above, Wheeler JA said that s 78B does not have the effect of rendering "invalid" any proceeding in which a notice should have been, but was not, given and further that it is not intended to apply where there is merely an allegation that a constitutional point arises if that point is unarguable or vexatious. Her Honour, in that regard, cited Shaw v Jim McGinty at .
158 McKerracher J in Culleton, at , assented to those propositions.
159 The so-called constitutional issues that the respondent debtor believes need to be agitated in this proceeding, and of which notice should be given to the Attorneys-General, are totally without merit. They are unarguable and, indeed, should also be considered vexatious in light of the cases decided at a high level.
160 There is nothing in the s 78B point.
Has the respondent debtor demonstrated his solvency?
161 As noted above, by s 52(2) of the Bankruptcy Act, if the Court is satisfied by the debtor that he or she is able to pay his or her debts, or that for other sufficient cause a sequestration order ought not be made, it may dismiss the petition.
162 The respondent debtor has repeatedly asserted that he is solvent, that he has demonstrated his solvency – that is to say, that he can pay his debts – and so the Court should dismiss the creditor's petition.
163 Despite assertions made from the bar table by the respondent debtor, which included assertions that on his oath he was solvent and had the wherewithal to meet the judgment debt the subject of the bankruptcy notice, no material evidence, sufficient to satisfy the Court, has been adduced in that regard.
164 The only relevant evidence before the Court is that contained in the affidavit of the respondent debtor's solicitor, Mr Maitland, referred to above. Mr Maitland is not the solicitor on the record in this proceeding, but the Court accepts he is very lately and generally apparently advising the respondent debtor.
165 In his affidavit all that Mr Maitland has said is that:
I have received substantial payments into my Trust Account on behalf of Mr Culleton which I am instructed can be used to pay his creditors. The payments received thus far have been by bank cheque. The trust account rules require my firm to wait for at least 3 working days before the proceeds of the bank cheque can be cleared.
166 A number of observations should immediately be made about that evidence. First, that it is a carefully constructed statement. Mr Maitland does not identify exactly what the "substantial payments" are. It would have been very easy for him, on his client's instructions, to state exactly what the amount of funds is that has been paid into his trust account. That, deliberately as I see it, has not been done. The respondent debtor, in submissions made from the bar table, also was careful not to specify any amount his solicitor was holding in the trust account, but rather, with a flourish, indicated that he was solvent and could pay the judgment debt. There is no material evidence before the Court to support his assertion.
167 Secondly, the statement made by Mr Maitland to the effect that he is instructed the substantial payments "can be used" to pay the respondent debtor's creditors is far from unambiguous and leaves the impression that those funds do not necessarily have to be used for that purpose.
168 Thirdly, it should also be observed that it is not at all clear whether the payments made into the trust account have been made by the respondent debtor or by third parties, and if the latter, the extent to which the respondent debtor exercises control over any of the funds.
169 In short, there is a complete lack of clarity and indeed much ambiguity about the nature and amount of funds that have been paid into Mr Maitland's trust account. The respondent debtor has been far from frank about just what funds he has at his disposal.
170 Mr Maitland's evidence does not prove the respondent debtor's solvency as he asserts it does. There is no other material evidence to suggest that the respondent debtor is able to pay his debts.
171 I have already dealt with and rejected the suggestion that his solvency is established because of a "Counterclaim" he has against the ANZ Bank.
172 Nor can his solvency be established by seeking to impugn the judgment of the District Court of Western Australia that gives rise to the judgment debt the subject of the bankruptcy notice, for the reasons given above.
173 There is no other reason why the creditor's petition should be dismissed.
Should the Court order the taking of an account?
174 In his notice stating grounds of opposition to the creditor's petition, at para 3, the respondent debtor states:
3. On Equitable Grounds, under S 30 (2) Bankruptcy Act 1996 the alleged Debtor claims an account of mutual dealings between himself and Balwyn Nominees Pty Ltd ( A CN 083 207 890) under S 86 (1) Bankruptcy Act 1996 which states that such an account 'shall' be taken, and must therefore be a Condition Precedent to the making of any Sequestration Order.
175 This proposition is also referred to in the respondent debtor's affidavit of 12 December 2015, but is otherwise not the subject of any detailed submissions before the Court. This proposition is misconceived. Section 30(2) of the Bankruptcy Act empowers the Court to direct such enquiries to be made and accounts to be taken for the purposes of any proceeding before the Court as the Court "considers necessary" and the Court may, when directing an account to be taken, or subsequently, give special directions as to the manner in which the account is to be taken or vouched.
176 There is no need for any account to be taken in this proceeding. There is a judgment debt which is the subject of the bankruptcy notice. The alleged judgment invalidity and the alleged counter-claim issue have been found to have no substance. The Court will not exercise its power to take an account, contrary to the ground asserted by the respondent debtor.
177 Section 86(1) of the Bankruptcy Act is also referred to. This deals with the topic of "Mutual credit and set-off". This provision applies in circumstances where there have been mutual credits, mutual debts or other mutual dealings between a person "who has become a bankrupt" and a person claiming to prove a debt in the bankruptcy. That is not this case. It is certainly not, as suggested in the ground of objection taken, a condition precedent to the making of a sequestration order.
178 This ground of objection has no substance.
179 For the reasons given above, I am satisfied that the respondent debtor committed the act of bankruptcy alleged in the creditor's petition. I note that the date of the act of bankruptcy was 29 August 2016.
180 None of the various grounds of objection of the respondent debtor are made out.
181 I am satisfied with the proof of the other matters, of which s 52(1) of the Bankruptcy Act requires proof. I note that no registered trustee appears to have been nominated or to have consented to be the trustee of the estate in the event that a sequestration order is made. It follows that the Official Receiver by operation of law will exercise the usual functions of the office.
182 The following draft orders would appear to be appropriate.
(1) The estate of Rodney Norman Culleton be sequestrated under the Bankruptcy Act 1966 (Cth).
(2) The petitioning creditor's costs (including any reserved costs) be taxed and paid out of the estate of Rodney Norman Culleton in accordance with the statute.
183 However, the Court will hear from the parties as to the terms of the final orders.