Peter Gargan

Despite having been declared a vexatious litigant in 4 jurisdictions in Australia, Peter Alexander Gargan is still very active in the OPCA community, advising Rod Culleton in his matters before the courts, as well as recently travelling to the UK on his behalf attempting to bring a case before the Privy Council.

Peter Gargan’s litigation history

An order sequestrating the estate of Peter Gargan was made on 22 March 1993. Some ten days prior to that judgment had been delivered by Thomas J in the Supreme Court of Queensland in an action brought by Peter Gargan’s brother John Gargan with respect to dealings principally concerning land owned by them. Peter Gargan counterclaimed in those proceedings for a declaration that the partnership between himself and his brother continued after the execution of a deed of dissolution of partnership in 1984. His Honour found that the parties had agreed to dissolve their partnership and, whilst the deed of dissolution did not deal with everything that needed to be attended to (a situation his Honour attempted to redress), the only matter which remained outstanding under it was the clearance of a debt assumed by Peter Gargan in the division of assets and liabilities.

His Honour found that the parties and, with respect to financial transactions undertaken by him affecting the land in question, Peter Gargan could not be said to have acted for the partnership for some years prior to the action being brought in 1990. His Honour declined to make the declaration as to continuance of the partnership, ordered that Peter Gargan transfer property which he held on trust for his brother and pay damages of over $60,000. A detailed overview of that action, the issues raised by it and the findings of Thomas J thereon, is contained in the reasons for judgment of Drummond J with respect to the first part of that application filed by Peter Gargan. A substantial part of further applications seek to re-litigate those issues and it seems clear enough, Peter Gargan does not accept that they were resolved, firstly, by Thomas J and then, with respect to the prospects of any appeal therefrom, by Drummond J on 18 August 1995. An appeal from the decision of Drummond J was dismissed.

On 7 July 1995 Peter Gargan filed an application seeking the determination of three issues: firstly, that his Trustee in Bankruptcy be directed to assign to him a number of causes of action; secondly, that there be an inquiry under section 179 into the conduct of the trustee in bankruptcy to determine “whether the allegations of negligence and breach of contract raised against the Official Trustee have merit” and lastly that his bankruptcy be annulled. The actions sought to be assigned included the right of appeal with respect to the Supreme Court action and extended to other actions concerning the partnership and against other companies who were associated with the land dealings. As part of that inquiry Drummond J considered whether there were any prospects of success and concluded in each respect that there was not. His Honour observed, in conclusion:

“While I will adjourn his application, insofar as it seeks an inquiry into the conduct of the trustee and an order that the court grant annulment of his bankruptcy on the ground that the sequestration order was wrongly made, it would follow, for the reasons I have given in dismissing the first part of Mr Gargan’s application, that his claim for an enquiry into the conduct of the trustee must also fail, at least insofar as it involves complaints by Mr Gargan about the trustees’ refusal to pursue any of these causes of action.”

A detailed analysis of the litigation history in this series of proceedings from 1993 to 1999, including Re Peter Alexander Gargan; Peter Alexander Gargan v The Official Trustee in Bankruptcy [1995] FCA 663, Gargan v The Official Trustee in Bankruptcy [1995] FCA 720, Gargan, Peter Alexander v the Official Trustee in Bankruptcy [1995] FCA 1123, Re Gargan, Peter Alexander Ex Parte the Official Trustee in Bankruptcy [1996] FCA 685, Re Gargan, Peter Alexander Ex parte Gargan, Peter Alexander and the Official Trustee in Bankruptcy [1996] FCA 872, Gargan, Peter Alexander v The Official Trustee in Bankruptcy [1997] FCA 237, Gargan, Peter Alexander v Official Trustee in Bankruptcy [1997] FCA 320, and Gargan v Gargan [1999] QSC 316 can be found in the judgement of Holmes J in Lohe v Gargan [2000] QSC 140 (from 4-39) as also reproduced in full in the judgment of Perram J in Official Trustee in Bankruptcy v Gargan (No 2) [2009] FCA 398 (at 18).

Peter Gargan filed an application for an order nisi for a Writ of Certiorari in the High Court directed to a Stipendiary Magistrate of the Mareeba Magistrate’s Court. A Writ of Mandamus was also sought to direct the Magistrate to determine the questions of fact necessary for the committal to trial of John Gargan and Lance Kippen. In Gargan, Ex parte- Re Morton and Ors [1997] HCATrans 323, McHugh J directed that all further proceedings in the action be remitted to the Federal Court in Brisbane. 

On application by the Crown Solicitor for Queensland, Holmes J in the Supreme Court of Queensland declared Peter Gargan to be a vexatious litigant pursuant to section 3(1) of the Vexatious Litigants Act 1981 (Qld) in Lohe v Gargan [2000] QSC 140. In his judgment, Holmes J explained and demonstrated how the proceedings instituted in Queensland and, to some extent in the Federal Court, could be traced back to a judgment given against Peter Gargan by Thomas J on 12 March 1993. Peter Gargan was ordered to pay some $60,000 in damages arising out of those proceedings and, when that money was not paid, it ultimately led to his first bankruptcy. Holmes J noted that Mr Gargan had a grievance arising out of those proceedings which he had repeatedly sought to re-litigate. He then went on to say:

“Over time, the grievance has extended to incorporate other persons. Mr Gargan has summonsed members of the legal profession, accusing them of fraud and other misdeeds, apparently for no better reason than that they put a contrary case to his on the instructions of their clients. Many of the proceedings he has sought to mount have been, on their face, insupportable; because they involved non-existent causes of action (for example the action against the Commonwealth for appointment of the Official Trustee, brought on the new claim in no 4 of 1994); because he had no authority to proceed (as with the conspiracy charges brought under the Crimes Act 1914); or because he was proceeding in a court which had no jurisdiction to hear the matter (as with his repeated attempts since 1996 to have the Supreme Court deal with matters within the bankruptcy jurisdiction of the Federal Court). He has repeatedly put others to the expense of applying to strike out futile applications and actions with, of course, an associated cost to the public purse. It is not to the point that he believes there has been an injustice to him (Jones v. Skyring (1992) 66 A.L.J.R. 810). The fact, as I find it, is that he has repeatedly launched vexatious proceedings without reasonable ground. The inescapable conclusion is that the application is properly brought and that the declaration ought to be made.”

Peter Gargan filed an application for leave to issue process in the High Court relating to proceedings brought in the Queensland Supreme Court by the Queensland Crown Solicitor for a declaration that he was a vexatious litigant. Gleeson CJ dismissed the application in Gargan, Application by [2002] HCATrans 11. He said the Writ and the Statement of Claim disclosed no cause of action. The Writ was an abuse of the process of the Court. He said the Statement of Claim was based “upon an unexplained and unsubstantiated assertion that the Applicant is a de facto officer of the Commonwealth”. Peter Gargan then commenced proceedings in the Maitland Local Court against Chief Justice Gleeson arising out of his Honour’s dismissal of the application for the Writ. The proceedings were dismissed by that Court for want of jurisdiction.

Mansfield J in the Federal Court ordered a sequestration order be made against Stephen Glenn Heinrich and appointed Alan Geoffrey Scott as trustee of Mr Heinrich’s estate. Mr Heinrich purported to appeal from that decision to the Full Court of the Federal Court. For reasons that are not made clear the Full Court permitted Peter Gargan to appear as agent for Mr Heinrich in Heinrich v Commonwealth Bank of Australia [2001] FCA 661. Peter Gargan argued that in reliance on section 86 of the Bankruptcy Act 1966 (Cth) an order should be made that an account be taken of the mutual dealings of Mr Heinrich and the Commonwealth Bank, the petitioning creditor. The appeal was dismissed.

Peter Gargan commenced proceedings in the Common Law Division of this NSW Supreme Court against Mr Scott and the Commonwealth Bank relevantly seeking these orders:

An order in the nature of a liquidated penalty under section 43 of the Crimes Act 1914 in the sum of $33,000 from the first defendant for a contumelious disregard of the provisions of Section 86 Bankruptcy Act 1966 in respect of the estate of Stephen Glenn Heinrich.
A further order in the nature of a liquidated penalty against the second defendant of $330,000 for dishonestly obtaining, by representations made to the Federal Court of Australia a dispensation from obedience to section 86 of the Bankruptcy Act 1966.
The plaintiff claims one half that penalty for himself, and one half for the Crown in right of the State of New South Wales as agent for Her Majesty, ELIZABETH THE SECOND, owner and administrator of this Honourable Court exercising federal jurisdiction.

The substance of his action was described as the recovery by himself and/or the Commonwealth or the Queen of penalties said to be payable by virtue of alleged breaches of section 43 of the Crimes Act and section 134.2 of the Criminal Code 1995. By virtue of section 4B of the Crimes Act, a Court is given the power, where a person is convicted of an offence against the law of the Commonwealth punishable by imprisonment only, to impose instead of or in addition to a penalty of imprisonment, a pecuniary penalty calculated as there provided. It is this pecuniary penalty which Peter Gargan sought to have paid in the proceedings. In support of the Summons Peter Gargan filed an Affidavit which claimed an entitlement to represent people in bankruptcy matters by virtue of section 308 of the Bankruptcy Act (presumably para (d)) and claimed the right as a common informer “on behalf of the Crown” to insist on the duties he alleged the trustee and the Bank owed to Mr Heinrich.

The Defendants to the Summons moved to strike out the proceedings and that application was heard by Adams J in Gargan v Scott (unreported, Supreme Court of New South Wales 27 October 2003), who noted in his judgment that Peter Gargan informed him that he had no interest in any of the assets or liabilities of Mr Heinrich or any claim made by or against Mr Heinrich, nor did he have any have any authority from Mr Heinrich or any person claiming under him to commence the proceedings. His Honour then noted the basis Peter Gargan alleged for bringing the proceedings under the various provisions of the Crimes Act (Cth) and went on to say:

“I have no doubt that Mr Gargan’s proceeding is a gross abuse of the process of this Court. My reasons for so saying can fortunately be stated briefly. There can be no question but that Mr Gargan is seeking the payment of a penalty which is, by its inherent character, criminal and not civil. The penalty is punishment, not compensation. Although Mr Gargan claims that he is entitled to proceed as a common informer, by virtue of s14 of the Criminal Procedure Act 1986 (NSW), the power to prosecute or proceed in respect of offences under both the Crimes Act 1914 and the Criminal Code Act 1995 does not reside in a private individual such as Mr Gargan by an action of the kind he is here taking. At all events, there are no matters alleged, either in the summons or in the statement of claim or in Mr Gargan’s affidavit, which sufficiently set out any of the allegations necessary to prove offences under the specified sections. It is obvious from the litigation that has already taken place in relation to the substance of his allegations in other courts that it would be pointless to permit amendment, either of the summons or the statement of claim. I have no doubt that it is not possible, by proceeding in the way in which Mr Gargan has proceeded, for him in effect to prosecute Commonwealth offences for the purpose of obtaining (as he must), in effect, a conviction and hence a pecuniary reward. Accordingly, claims 1 and 2 in the summons are dismissed. Claim 3 seeks an interlocutory injunction preventing the first defendant from further proceeding with the administration of the estate of Stephen Glenn Heinrich until he has fully complied with s86 of the Bankruptcy Act 1966. Even assuming, and I feel bound to say this assumption appears to be totally unwarranted, that this Court has jurisdiction in relation to the administration of estates under the Bankruptcy Act, the character of the alleged failure to comply or suggested failure to comply, the fact that it did not occur in this State and that Mr Gargan has no interest of any kind in the administration of the estate, except as a meddler, leads inevitably to the conclusion that this Court would not exercise its discretion in relation to the grant of any such injunction.”

Although Mr Gargan filed a Notice of Appeal he subsequently discontinued that appeal.

Mr Voskuilen had a contractual licence to operate a market stall at a weekend market conducted by Morisset Mega-Market. Morisset Mega-Market purported to terminate the licence and Mr Voskuilen commenced proceedings against Morisset Mega-Market in the District Court at Newcastle. The proceedings were struck out by Judge Nield. Peter Gargan laid an information and filed a Summons against Morisset Mega-Market and Norman Lucas (who represented Morisset Mega-Market), where he described himself as a “Statutory Commonwealth Public Officer”. The information alleged 2 offences, one contrary to section 43 of the Crimes Act 1914 (Cth), and one contrary to section 134.1 of the Criminal Code Act 1995 (Cth) by urging Judge Nield to strike out the Statement of Claim. Morisset Mega-Market and Mr Lucas commenced proceedings in the Common Law Division of this Court to strike out the Local Court proceedings commenced by Peter Gargan. Orders in the nature of certiorari in relation to the acceptance of the information and the issuing of the Summons were sought together with a prayer for a declaration that the laying of the information and the issue of the Summons were an abuse of process, and an order restraining Peter Gargan from laying any information against Morisset Mega-Market and Mr Lucas without leave.

The proceedings were heard by James J in Morisset Mega-Market Pty. Limited v Gargan [2003] NSWSC 1199 where Peter Gargan asserted his right as an Officer of the Commonwealth and claimed an entitlement to recover penalties. James J held that the High Court’s decision in Jamison & Brugmans v The Queen (1993) 177 CLR 574 was directly applicable in that legal representatives and parties could not be held liable for what was said or done in court even if what was said was false, such as attempting to obtain a benefit by deception, and in relation to section 43 of the Crimes Act his Honour said (at 33):

“The sufficiency of the allegation of the first offence turns upon the defendant’s submissions that he had some right to avoid the ordinary procedures in the civil jurisdiction of the District Court. That right could only be found if I accepted his submissions about Federal law and the Constitution. I do not. Those submissions demonstrate a total lack of comprehension of basic legal principle. The first defendant is not a Commonwealth officer or official nor can he, by his own assertion, make himself one or convert matters of State jurisdiction into the exercise of Commonwealth judicial power. His views of the law have apparently led him to believe he can use the courts and the criminal courts to obtain money from defendants by way of penalties. He has no lawful right to do so. So far as he attempts to use the courts for such purposes, he is abusing the processes of the courts. Equally with all others, the first defendant is amenable to ordinary court procedure. The regular employment of court processes does not give rise to any offence against the administration of justice. Therefore the first count alleges no offence under s.43 nor any other offence known to the law.”

His Honour then quashed the information and the Summons. In their Summons Morisset Mega-Market and Mr Lucas had sought orders that Mr Gargan be declared a vexatious litigant. His Honour said (at 4-5) concerning that application:

“Similar questions and similar submissions of law to those raised by Mr. Gargan in this matter apparently in law affect a number of other actions in the court. They include two matters brought against a Mr. Woodgate in this division, No. 13499/03 and No. 10001/04, a matter brought by Mr. Gargan against the Commonwealth Bank & Anor, No. 113149/03 , and a matter in the corporations list in which the Commonwealth Bank has brought proceedings against Mr. Gargan to set aside a statutory notice under the Corporations legislation, No. 5892/02. It has become apparent that there was this mass of litigation and it has become further apparent that there has been a considerable deal of litigation, both in New South Wales and elsewhere, which has resulted in a number of decisions on submissions put by Mr. Gargan. I directed that all these matters come before me today for the purpose of seeing if there was some expeditious and effective method of disposing of them with a view to minimising costs and the court’s time by the resolution of such common questions as might affect all of the actions with a view to reaching a final determination such as would enable Mr. Gargan, if he wished, if the determinations were against him, or the other parties, if they wished, if the determinations were against them, to have determined at an appellate level those questions. It seems to me that it was likely that those questions would likely have affected not only that litigation that has been decided in this and other courts but also that which remains pending in this court and which might be launched in the future. Some discussion has occurred with a view to such a course being taken.”

As matters transpired, the Plaintiffs abandoned their application to have Mr Gargan declared a vexatious litigant, but sought costs of the proceedings on an indemnity basis and his Honour made an order to that effect. His Honour was critical of Mr Gargan making the allegation against Mega-Market and its solicitor and in that regard said (at 15):

“Putting aside the technical aspect of the law, this is a most serious allegation to be made against a practitioner alleging that practitioner was utilising the Court system for personal criminal purposes. It was, in my view, on a proper view of the law, never maintainable.”

Mr Gargan, as agent for Mr Voskuilen, made application to annul Mr Voskuilen’s bankruptcy. The application was refused by Jacobson J (Voskuilen v Morisset Megamarket Pty Ltd [2004] FCA 1727) and Mr Voskuilen appealed to the Full Court of the Federal Court. Leave was again granted to Mr Gargan to represent Mr Voskuilen. It must be supposed that neither Jacobson J nor the Full Court was referred to the decision of Spender J in Slack v Bottoms English Solicitors [2003] FCA 1337 who had held that s 308 Bankruptcy Act did not provide a basis for a person in Mr Gargan’s position acting on behalf of the bankrupt, and there was no other power in the Federal Court of Australia Act 1976 (Cth) or Rules which would have permitted him so to act.

The judgment of the Full Court was delivered on 5 May 2005 (Voskuilen v Morisset Mega Market Pty Ltd [2005] FCAFC 72) in the course of which they said:

“This appeal is totally devoid of merit. The appellant, Mr Voskuilen, has not been well served by having Mr Gargan appear as his agent, as he has done both before the primary judge, Jacobson J, and before us. The main effect of Mr Gargan’s participation, it seems, has been to cause Mr Vosuilken to incur unnecessary liability for costs. The matters raised by Mr Gargan are not fairly arguable.”

Thereafter Peter Gargan commenced fresh proceedings in the Equity Division of this Court against the Registrar of Burwood Local Court claiming (on behalf of Mr Vosuilken) an order that the Registrar register a bill of exchange and its protest as a judgment. It appears that the bill of exchange was drawn on an unnamed bank in an endeavour to recover from Mr Vosuilken what Mr Gargan thought he was entitled to from Mega-Market. Application was made by the Attorney General (who had been added as a Second Defendant) to have the proceedings dismissed. That application came before McLaughlin AsJ who said:

“What I glean, however, both from what appears in the statement of claim and also from the written submissions of the plaintiff, is that the plaintiff seeks to avail himself of certain provisions of the Crimes Act 1914 of the Commonwealth of Australia and of the Criminal Code Act 1995 of the Commonwealth in order to pursue a monetary penalty against, presumably, the person to whom the bill of exchange was presented. That is, the plaintiff seeks to place himself in a position similar to that which was available in earlier times to a common informer and to obtain for himself a monetary benefit from the person to whom the bill of exchange was presented and who was not paid the amount referred to therein. … And for that purpose, the plaintiff is desirous that the bill of exchange should be registered by the Registrar of the Burwood Local Court. The plaintiff does not seek to obtain the totality of the monetary amount in the bill of exchange, which as I have already observed was not disclosed in any way either in the pleading or in the written submissions or in any other evidentiary material, but submits that his entitlement is to one half of any monetary penalty, the other one half being the entitlement of the Crown.”

McLaughlin AsJ then noted that one of the difficulties for the Plaintiff was his assertion that he was entitled to pursue the procedure in his capacity as a Commonwealth Public Official. His Honour made reference to what Greg James J had said in Morisset Mega-Market Pty Limited v Gargan. McLaughlin AsJ said he agreed with what Greg James J had said in that passage, and went on to hold that the proceedings were an abuse of the process of the Court and that the pleading disclosed no reasonable cause of action.

Russell Bickford stood trial in the Penrith District Court on a charge of assault with intent to rob, and was found guilty by a jury of that charge and was sentenced to 2 years imprisonment by Judge Gibb. Mr Bickford lodged a Notice of Intention to Appeal to the Court of Criminal Appeal but did not proceed with that appeal. Peter Gargan filed a Summons seeking Habeas Corpus for Mr Bickford and an order that his conviction be quashed. Neither in that document nor in the Affidavit he swore in support of the Summons was it disclosed what Peter Gargan’s interest in the matter was. However, the Affidavit disclosed that he had made a similar application to Justice Connolly of the ACT Supreme Court. That Judge, he said, declined to make the order, suggesting that Peter Gargan approach this Court. Peter Gargan filed a Notice of Motion in those proceedings seeking orders that Mr Bickford be granted bail pending the disposal of the proceedings and that the Summons be amended by adding the Governor of Silverwater Correctional Centre as a Defendant. Two paragraphs in the proposed Amended Summons highlight the misguided approach Mr Gargan took to this and other proceedings in which he became involved. The proposed Amended Summons said this:

“The mistake most have been making is in failing to ask whether the person sitting upon the bench is a Christian. More in point is he a Protestant Christian. A Protestant Christian, as is the Queen is bound by the New Testament, and there are a number of parts of the scriptures, the word of Jesus, which do not allow a Protestant Christian to sit without a jury, and more again particularly in Paul’s letter to the Romans, where he explains the function of judges. In Romans 2, particularly the word of God is that the best way to go to damnation is to be a judge. As all judges and magistrates are delegates of Her Majesty, they must not sit without a jury either, or they are offending God’s law. Anyone may sit on the bench, as a president of a Court, Christian, Jew, Moslem, or atheist, but as he or she exercises the delegated power of the Queen or God, he or she is bound by the same oath as the Queen herself.

Peter Gargan filed in the same proceedings (whether with or without leave does not appear) a Statement of Claim against the Director of Public Prosecutions and the Governor of Silverwater Correctional Centre seeking a declaration that Mr Bickford’s detention was unlawful and claiming damages pursuant to the Crimes Act (Cth). On the same day he filed a Notice of Motion in the proceedings seeking orders that the Governor of Silverwater Correctional Centre be joined as a Defendant (an order he had already sought in his Notice of Motion in the proceedings filed 15 September 2003) and an order that on the Statement of Claim being “delivered in this action” Mr Bickford be released forthwith. The proceedings were heard by O’Keefe J who gave judgment in Gargan v Director of Public Prosecutions and anor [2004] NSWSC 10.

The basis for Peter Gargan’s involvement in the proceedings was not discussed by O’Keefe J. His Honour dismissed the proceedings and ordered Mr Gargan to pay the costs of Defendants and the Attorney General who was given leave to intervene. In relation to what Mr Gargan submitted derived from his resort to the Bible, his Honour said (at 66):

“In view of the conclusion to which I have come in relation to the effect of the decision by the High Court in relation to the validity of s 54(b) of the Jury Act 1977 I do not consider it is necessary to deal with these arguments in great detail. It suffices to say that:

(i) the appeal to scripture, that is to a moral principle higher than parliamentary sovereignty, is “out of line with the mainstream of current constitutional theory as applied in our courts” ( BLF v Minister for Industrial Relations (1986) 7 NSWLR 372 at 384 per Kirby P). The same principle was applied by Lord Reid in British Railway Board v Pickin (1974) AC 765 in which he said: “In earlier times many learned lawyers seem to have believed that an Act of Parliament could be disregarded insofar as it was contrary to the law of God or the law of nature or natural justice, but since the supremacy of parliament was finally demonstrated by the Revolution of 1688 any such idea has become obsolete” (at 782) To a like effect is the decision of the Privy Council in Liyanage v The Queen (1967) AC 259 in which it was held that an Act of the Parliament of Ceylon could not be challenged on the basis that it was contrary to the fundamental principles of justice. This argument fails.

(ii) The appeal to the Coronation Oath, 1689 as a basis for invalidating the legislation is based on the assertion that at her coronation the Queen took such oath and swore to uphold the gospels. This oath of 1689 is then sought to be linked by the plaintiff to s 116 of the Commonwealth Constitution. Any linkage is obscure to say the least, since that section prohibits the making of any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion and it proscribes any religious test as a qualification for any office under the Commonwealth. …Whilst this oath binds Her Majesty, it does not affect the law of New South Wales. Furthermore the oath involves Her Majesty undertaking the moral obligation to govern the people of Australia according to the laws and customs, not of England or the United Kingdom, but according to those of Australia. This argument also fails.”

Ann Carolyn Teese was made bankrupt by Magistrate Driver in the Federal Magistrate’s Court, and the sequestration order was stayed for 21 days. When that stay lapsed Ms Teese made application for a further stay where Peter Gargan not only acted as her agent (presumably by the leave of the Court) but swore an affidavit in the proceedings. The application alleged contempt on the part of the petitioning creditor because the Insolvency Registrar did not record the stay and that, it was alleged, prevented Ms Teese from being able to borrow further monies. Thereafter, Ms Teese filed an application for annulment of the bankruptcy and claimed a civil penalty against the petitioning creditor. Peter Gargan swore a lengthy Affidavit in those proceedings saying he was engaged by Ms Teese to handle her affairs in connection with the petitioning creditor’s application for a sequestration order.

Ultimately these proceedings were discontinued by the filing of a Notice of Discontinuance signed by Mr Gargan as Ms Teese’s agent. Magistrate Driver granted leave to Ms Teese to file a Notice of Discontinuance in Court and ordered that no further application for annulment was to be accepted for filing without the leave of the Court. Ms Teese filed an application for an extension of time in which to appeal against the sequestration order made by Magistrate Driver. This application was heard by Lindgren J who refused leave on the basis that there was insufficient doubt as to the correctness of the orders made by Magistrate Driver: Teese v Clinch Neville Long [2003] FCA 274.

That led Peter Gargan to commence proceedings in the High Court seeking a Writ of Prohibition against the trustee in bankruptcy of Ms Teese in Gargan, Ex parte – Re Lindgren and Ors [2003] HCATrans 727. The proceedings also named as respondents Lindgren J, Magistrate Driver, Mr Clinch (a partner of the firm of solicitors who were acting for the petitioning creditors), Mr Chippendall (a barrister who appeared for the petitioning creditors) and Ms Teese herself. The basis of Mr Gargan’s claim was (as is disclosed in the judgment of Heydon J who heard the application) that he was owed $5,840 for having acted for and represented Ms Teese in the bankruptcy proceedings. In the course of his judgment Heydon J said:

“The prosecutor himself does not appear to have been a party to the proceedings before Justice Lindgren and that in turn indicates that his standing in this Court to raise those complaints is highly questionable. If Ms Teese wished to agitate those complaints, it would be a matter for her or the trustee in bankruptcy. In large measure, the written submissions of the prosecutor rely on the International Covenant on Civil and Political Rights and on passages in the New Testament. Neither document is as such part of the domestic law of Australia. The prosecutor submitted that the magistrate and Justice Lindgren had been guilty of abuse of public office and were therefore in breach of section 142.2 of the Criminal Code Act 1995. The prosecutor submitted that he therefore had standing to complain of that breach of statute. The contention has insufficient prospects of success to justify the grant of either of the forms of the relief sought and the same is true of the other contentions of the prosecutor. Accordingly, the application is dismissed.”

Thereafter, Peter Gargan appeared before Greg James J (presumably as Duty Judge) asking that he be allowed to file an indictment against Magistrate Driver alleging an offence under section 43 of the Crimes Act (Cth) by reason of the fact that he made a sequestration order against Ms Teese. The form of the indictment was contained in an affidavit sworn by Peter Gargan. It is sufficient to set out passages (from 4) of the judgment of Greg James J to understand what was being asserted and the Judge’s decision on the matter:

“Exhibit 1 to the affidavit is a form of indictment. It asserts that Peter Alexander Gargan is acting on behalf of her Majesty the Queen and authorised to act to present the indictment by s.55 of the Criminal Procedure Act . The affidavit is accompanied by a summons which purports to set out the authority of Mr. Gargan and asserts that the defendant engaged in corrupt conduct seeking to obtain a corrupt benefit for a fellow officer by making a sequestration order without enquiring into the matter thoroughly. So that the offence, Mr. Gargan refers to, he asserts, was committed. He claims a liquidated penalty of $33,000 by virtue of s.4B of the Crimes Act 1914, half of which he asserts is payable to himself and half to the State of New South Wales. He also seeks the setting aside of the sequestration order and the restitution of damage “your criminal act has caused to Ann Carolyn Teese in the interim period”. Accompanying that is a document asserting dereliction of duty of the High Court justices and threatening them with criminal action. He contends that these proceedings are entitled to be commenced in this way as of right and criticises an asserted propensity on behalf of judicial officers to deny access to the High Court of Australia by refusing to file process. 

I have said sufficient to show that this claim is in my view entirely untenable, frivolous and vexatious. The magistrate, on the face of this material, appears to have been acting within lawfully conferred jurisdiction. Any appeal may be brought to the Federal Court in accordance with the provisions of the Federal Court Act to the Federal Court. There is no suggestion of any such appeal. There is nothing in this material that indicates in any way that the act, performed by the magistrate in making the sequestration order, might justifiably be categorised as criminal. Nor is there any power in the Supreme Court of New South Wales under s.55 of the Criminal Procedure Act to indict a judicial officer performing judicial duties, acting apparently within jurisdiction, for the commission of a criminal offence in so doing. That officer is immune from criminal responsibility if performing an act within jurisdiction. In addition, Mr. Gargan is not a person empowered to present an indictment under Commonwealth law. Further, there appears to be no basis of any rational kind whereby the magistrate’s conduct should so be called in question.”

Peter Gargan commenced proceedings by Summons in the Common Law Division against the trustee in bankruptcy claiming orders in the nature of liquidated penalties pursuant to section 43 of the Crimes Act by reason of alleged breaches of section 86 of the Bankruptcy Act, half of which were penalties Peter Gargan claimed for himself. He filed a Statement of Claim in the Common Law Division against the Commonwealth Bank and John Henry Bartrop (who acted for the Bank) seeking various penalties because of alleged breaches of section 43 of the Crimes Act (Cth) in connection with (it would seem) Ms Teese’s bankruptcy. Precisely where the Commonwealth Bank fitted into the scheme of things was not made clear, but I note that it had been added as a party (although subsequently removed) in the application for annulment filed in the Federal Magistrate’s Court.

It appears from documents annexed to an Affidavit Peter Gargan swore in those proceedings that he had laid an information and obtained a Summons against the Commonwealth Bank in the Magistrate’s Court of the Australian Capital Territory. The Deputy Registrar of that Court made orders that the Summons upon that information be dismissed and that Peter Gargan pay the Commonwealth Bank’s costs assessed at $2000. It is also clear from those documents that Peter Gargan filed an appeal in the Supreme Court of the Australian Capital Territory against that dismissal. The Commonwealth Bank moved to strike out that appeal, and Master Harper struck it out. Gargan filed a Summons in the Common Law Division of this Court against the trustee in bankruptcy asking for orders that the trustee appear before a Judge of the Court to answer the charge that he contravened section 43 of the Crimes Act (Cth) by failing to take an account of mutual dealings between Ms Teese and her various creditors. He also alleged an offence against section 134.2 of the Criminal Code Act and sought penalties.

These 3 separate proceedings came before Greg James J on Motions by the 2 Defendants for summary dismissal in Gargan v Woodgate; Gargan v Commonwealth Bank of Australia & Anor [2004] NSWSC 177. James J noted that it was common ground between Peter Gargan and the defendants that the same underlying point was essential to all 3 cases as the Judge had dealt with in Morisset v Mega-Market. His Honour then set out a lengthy passage from Morisset v Mega-Market and went on to say (at 25-):

“I concluded that the plaintiff’s attempts to use an information to claim penalties for such offences in this way before a magistrate was an abuse of process. Those remarks are equally applicable to these proceedings. Not only are all of these proceedings ill commenced, not only are the summons and statement of claim procedures inapt to commence a proceeding by way of a criminal prosecution in this court for a common informer to use to claim penalties, but Mr. Gargan does not have the authority required under the Judiciary Act 1903 (Cth) for a prosecutor to commence proceedings on indictment for offences against the laws of the Commonwealth, s.69 of the Judiciary Act 1903 (Cth), nor to commence proceedings on behalf of the Commonwealth or the State of New South Wales by way of a prosecution on indictment in this court or for recovery of a penalty in this court. Mr. Gargan claims a right to commence proceedings for the recovery of pecuniary penalties as a common informer relying on s.14 of the Criminal Procedure Act 1986. That section provides: “A prosecution or proceeding in respect of any offence under an Act may be instituted by any person unless the right to institute the prosecution or proceeding is expressly conferred by that Act on a specified person or class of persons.”

It can be seen that section is limited in its scope and subject to the exception expressly referred to in it. It does not permit Mr. Gargan to commence in this court any proceedings nor does s.13 of the Crimes Act 1914 (Cth). Although a statement of claim in this court might be used to recover pecuniary penalties, eg., under the Customs Act 1901 (Cth), that is because that Act provides specifically for that procedure and for actions to be brought in this court. It contains provisions limiting who may bring such actions. Those provisions do not include Mr. Gargan. Proceedings in this court under the various State and Commonwealth Acts under which penalties may be sought in respect of matters involving proceeds of crime, are commenced in the court by summons. But that is because those Acts provide expressly for a specified person or class of persons to have in those limited circumstances access to this court and that procedure is expressly provided for in respect of that access by the Supreme Court Rules. In addition, for the reasons I gave in the Morisset Mega-Market case, it is not open to the plaintiff to attempt to sue on, or claim, from the asserted commission of the offences he refers to in each of the proceedings. Here, in each case, as in the Morisset Mega-Market case, the plaintiff is attempting to use the processes of this court to obtain a financial penalty in respect of what he asserts to be the commission of crimes upon which it has been held no action lies in the circumstances to which he refers. He is attempting to assert an entitlement to penalties and to assert that the defendants should pay and not contest his allegations lest they be put by the very proceedings he has commenced to a criminal trial. This is an attempt to use the processes of this court to harass defendants into paying money to a person who has no authority to bring the proceedings he has brought here or to make the claims that he does. This procedure is not permitted by the law to a common informer.

My observations in Morisset Mega-Market that it is not open to bring proceedings to charge an attempt to obtain financial benefit by deception when all that has been done is a regular application to the court and it is not open to charge an attempt to pervert the course of justice when all that has been done is an ordinary and regular application to the court, remain applicable to a good deal of what the plaintiff has alleged in these proceedings. But in any event, the use of the court proceedings for this purpose to attempt to mulct defendants clearly renders them an abuse, as I had held in Morisset Mega-Market . To permit proceedings of this kind on these bases would be to countenance “an instrument of individual extortion, caprice and tyranny”. It is not necessary to distinguish between the application of the inherent jurisdiction, Part 13 Rule 5, or Part 15 Rule 26. These proceedings are an abuse. They are doomed to fail because they disclose no cause of action nor any cause of action which can be brought by the plaintiff in this court. It is, however, sufficient, in order to dispose of all of these proceedings that I declare them to be an abuse and that in each case under Part 13 Rule 5, rule that the proceedings be dismissed generally. I indicate that I would, if applying Part 15, strike out the whole of Mr. Gargan’s pleadings and refuse leave to re-plead, but the more final order would seem to be appropriate, having regard to the multiplicity of the occasions on which Mr. Gargan has asserted, under one guise or another, a right to bring proceedings of this kind. I further conclude that, having regard to the multiplicity of proceedings brought by Mr. Gargan, this judgment should be drawn to the attention of the Attorneys-General for the State and the Commonwealth with a view to their considering whether an application should be made to the court for Mr. Gargan to be declared a vexatious litigant.”

The New South Wales Bar Association applied to Driver FM in Re an Application by the NSW Bar Association [2004] FMCA 52 for access to inspect and photocopy certain records of the Court in relation to proceedings in the Federal Magistrates Court for the purposes of considering action under the Legal Profession Act 1987 (NSW) against Peter Gargan, in respect of alleged breaches in that he may have acted as a barrister, or solicitor and barrister, without a practising certificate or may have performed general legal work for a fee. It was alleged Peter Gargan appeared before Driver FM for Ann Carolyn Teese as an agent and made submissions to the Court on her behalf, and his dealings with Ms Teese may have contravened ss. 48B and 48E of the Legal Profession Act. His Honour considered it necessary and appropriate for the Bar Association to be granted access to all documents filed in the proceedings, as well as transcript and his judgments.

Peter Gargan filed a Notice of Motion seeking an order that: “The question of whether the alleged creditor is indeed indebted to the prosecution as alleged be determined by a trial by jury, as in any other Criminal Court which has authority to incarcerate a person for a three years mandatory sentence.” His contention as expressed in his affidavit was that bankruptcy is a form of imprisonment without walls, enduring for three years, and as such attracts section 80 of the Constitution to its operation. He also contended that “Under Protestant Christian law, the only legitimate judge since 1297 is Jesus Christ, present in a jury of 12 in accordance with Mathew 18: Paragraphs 15-20, the Bible, and enacted into Constitutional law by the Magna Carta.” In Gargan v Commonwealth Bank of Australia [2004] FCA 641, Hely J rejected the notion section 80 has any application to the hearing of a Creditor’s Petition under the Bankruptcy Act 1966 (Cth), and reminded Peter Gargan that his reliance on Biblical references was already rejected by O’Keefe J in Gargan v DPP [2004] NSWSC 10. Peter Gargan also alleged that Hely J had a conflict of interest, as the Commonwealth of Australia owns shares in the Commonwealth Bank of Australia, and as he is a litigant in person complaining of misconduct on the part of members of the legal profession, and that he may not receive a fair trial from a judge who was once a member of that profession. The motion seeking a jury trial was dismissed with costs.

The ACT Magistrates Court ordered Peter Gargan to pay the costs of the Commonwealth Bank assessed at $3000 in respect of an information and Summons he filed against the Bank, and when he failed to pay those costs and the Bank issued a Bankruptcy Notice against him. He failed to comply with that Bankruptcy Notice and the Bank presented a petition for the sequestration of his estate. Peter Gargan opposed the making of a sequestration order and the matter was heard by Hely J in the Federal Court in Commonwealth Bank of Australia v Gargan [2004] FCA 707. It appears from the judgment of Hely J that the opposition to the position by Peter Gargan was based on the fact that the Bank owed him numerous penalties he had claimed against it totalling $104,000,000. His Honour first made reference to the judgments of Adams J in Gargan v Scott and Greg James J in Morisset v Mega-Market. His Honour then noted that Mr Gargan had commenced proceedings in the Supreme Court of Tasmania, supposedly on behalf of the State of Tasmania, to bring an indictment against the Bank for an offence under section 43 of the Crimes Act (Cth) and claiming a penalty of $104,000,000, and noted (at 18) that that was the same claim as was dismissed by the ACT Magistrate, and held to be an abuse of process by Greg James J. His Honour then went on to say (at 24):

“Adams J and Greg James J dismissed as an abuse of process the respondent’s broader claim against the CBA, and those decisions are a barrier in the way of the respondent’s contention that he has a genuine and serious claim against the CBA which is likely to succeed if he is permitted to litigate the claim.”

Hely J also concluded, by reference to a number of decisions including Hawkesbury City Council v Foster (1997) 97 LGERA 12 (at 30) that:

“These authorities support the conclusion drawn by the Law Reform Committee of South Australia referred to above that only offences created by statutes which expressly or by necessary implication provide for a Qui Tam action may be prosecuted by a common informer. The common informer must be able to point to a statutory provision which either ‘gives’ the penalty to the common informer, or creates a right to demand payment of the penalty.”

In relation to Mr Gargan’s claimed rights to institute private prosecutions his Honour said (from 33):

“The offence created by s 43 of the Crimes Act is an indictable offence (s 4G). However, it may be dealt with summarily if both the prosecutor and the defendant consent (s 4J). Section 13 of the Crimes Act enables ‘any person’ to institute committal proceedings in respect of an indictable offence, or proceedings for summary conviction in respect of offences punishable on summary conviction. The Director of Public Prosecutions may ‘take over’ any such proceeding: Director of Public Prosecution Act 1983 (Cth) s 9(5). Under s 69 of the Judiciary Act 1903 (Cth) indictable offences against the laws of the Commonwealth are to be prosecuted by indictment in the name of the Attorney-General of the Commonwealth or such other person as the Governor-General appoints in that behalf. Thus, it is at least doubtful whether the respondent could institute or maintain a private prosecution against the CBA in relation to the indictable offences particularised. In any event he has not done so.

If a body corporate is convicted of an offence s 4B of the Crimes Act provides the Court with a discretion to impose pecuniary penalties. But no Commonwealth law to which my attention has been drawn awards those penalties to a common informer, or creates a right in a common informer to demand payment of those penalties. Section 122 of the Fines Act 1969 (NSW) provides:

(1) This section applies where: (a) the Act imposing or authorising the imposition of a fine or other penalty does not make any provisions for its application when recovered, and (b) the prosecutor is not a police officer. (1) The Court to which proceedings are taken to recover any such fine or other penalty may direct that such portion of it (not exceeding one half) is to be paid to the prosecutor. (2) For the purposes of this section, fine does not included an amount of the kind referred in section 4(1)(e) or (f).

It may be that this provision is picked up by s 79 of the Judiciary Act . I will assume in the respondent’s favour that this is so as no detailed argument was advanced on the question. Even if it be so, s 122 merely creates a discretion in the Court to direct that a portion of a penalty is to be paid to the prosecutor, rather than creating any right in the prosecutor to receive or to recover any particular part of the penalty. Thus, it is also doubtful, that any part of any penalty imposed on the CBA if it were convicted would be payable to the respondent, even if the respondent could institute and maintain a private prosecution against the CBA.”

His Honour then concluded by saying (at 41):

“The respondent has misconceived his case and has proceeded on an assumption which the authorities referred to above confirm to be false; namely that he is entitled to commence proceedings against the CBA independently of the ordinary criminal process and obtain a moiety of the penalties to which he says the CBA is liable. The decisions of Adams J and Greg James J confirm that the respondent’s contentions in this respect are misconceived. If the respondent has any prospect of obtaining any share in any penalties which might be imposed on the CBA, should it ever be convicted of an indictable offence, it is only through the ordinary criminal process augmented, should the statute prove to be applicable, by s 122 of the Fines Act . However, as I have indicated there are substantial doubts as to whether and to what extent the respondent can either undertake or benefit from such a process. At best, such a claim is highly speculative, and falls well short of demonstrating sufficient cause for dismissing the Creditor’s Petition.”

Hely J then proceeded to make a sequestration order against the estate of Peter Gargan.

Telstra brought proceedings against a person called Kenneth Ivory in the Supreme Court of Queensland for debt. It is not clear to what stage those proceedings had progressed when Peter Gargan filed a Statement of Claim in the NSW Supreme Court naming the Commonwealth of Australia as First Defendant and Telstra Corporation as the Second Defendant. The Statement of Claim sought an order that judgment be entered for a sum specified in a bill of exchange against the Commonwealth of Australia notwithstanding that Peter Gargan was not a party to the bill of exchange and it had never been signed by the Commonwealth or anyone on its behalf to render the Commonwealth liable under the bill. The Statement of Claim also sought an order that the proceedings in the Supreme Court of Queensland against Mr Ivory and an entity called the Solar-Mesh entities be stayed permanently. There were some other ridiculous claims that the Commonwealth pay losses to Mr Ivory and the Solar-Mesh entities of more than $5 billion of which $1 billion should be paid to the Treasuries of the State and Territory Governments and that $4 billion be appropriated to a trust fund for the alleviation of poverty and other worthy causes. The Defendants sought by Notices of Motion to have the proceedings dismissed and Peter Gargan moved that the questions of fact in the matter be tried with a jury. Not surprisingly, Brereton J had no difficulty dismissing the proceedings in Gargan v Commonwealth of Australia [2005] NSWSC 1178. In the course of his judgment, Brereton J noted that Peter Gargan had already been declared to be a vexatious litigant in Queensland.

Peter Gargan then commenced proceedings in the District Court of NSW against Telstra Corporation and Donald McGauchie (Telstra’s CEO). It is very difficult to work out what he was seeking in this claim. All that can be discerned from what appears in the Statement of Claim is that it was some sort of complaint about the way Brereton J dealt with the Supreme Court proceedings. In any event, the District Court dismissed the proceedings and ordered him to pay the Defendants’ costs on an indemnity basis, and made an order that he was not to bring any further proceedings against the Defendants without the prior leave of the Court.

Peter Gargan failed to file a Statement of Affairs pursuant to section 54(1) of the Bankruptcy Act 1966 (Cth). The Commonwealth DPP commenced proceedings against him. The proceedings were heard by Magistrate Dillon in the Local Court, at which time Mr Gargan challenged the Magistrate’s jurisdiction to deal with the proceedings. The Magistrate, in a reserved decision, dismissed the challenge. Peter Gargan then filed a Statement of Claim in the Equity Division seeking orders against Magistrate Dillon and the Official Trustee in Bankruptcy. He claimed orders setting aside Magistrate Dillon’s decision on the basis that he had no power to hear the proceedings. He also claimed that the sequestration order made by Hely J was “utterly void”. The Official Trustee moved to have the proceedings dismissed as they affected him. Peter Gargan filed a Notice of Motion seeking an order that “the questions of fact in this matter in Federal jurisdiction be tried with a jury”. Both Notices of Motion were heard by Barrett J in Gargan v Magistrate Dillon & Anor [2005] NSWSC 1106.

The Statement of Claim, as with most of his other pleadings and affidavits, there was much reference to the Bible, to various Acts of the United Kingdom Parliament from the time of Magna Carta onwards, and to the International Covenant on Civil and Political Rights. His particular complaint about the Federal Court was said to be that the Federal Court was a communist institution which was not Christian. In relation to his reliance upon the Bible, Barrett J said that the Plaintiff must have known the submission was wrong because 2 Courts had previously told him so. His Honour then set out a passage in Hely J’s judgment in Gargan v Commonwealth Bank of Australia (at 4-5) and then set out at length the passage from O’Keefe J in Gargan v Director of Public Prosecutions. In relation to his reliance upon the provisions of the International Covenant Barrett J said (at 22) that he was well aware of the limited relevance of those provisions in Australian law because Hely J had said so in his judgment. His Honour then concluded by saying (at 30):

“I am, as I have said, satisfied that none of the propositions for which the plaintiff contends requires reconsideration of the conclusion stated at paragraph [16] above. That, coupled with what I have said at paragraph [29] about the inability of this court to question or review a final order made by the Federal Court, means that none of the claims the plaintiff seeks to advance by means of his statement of claim discloses any reasonable cause of action and that the proceedings instituted by him are an abuse of process. Many aspects of his submissions involve what Young CJ in Eq, writing extra-judicially, has called “pseudo technical legal rubbish”: see (2004) 78 ALJ at p.767. A number of the submissions have been made by the plaintiff in other proceedings and rejected. There is a strong element of perversity in his persisting with them.

As I have said, the second defendant seeks an order of summary dismissal insofar as the proceedings affect it and the first defendant submits to such order as the court may make, except as to costs. The gross deficiencies in the plaintiff’s case are not, however, confined to aspects that affect only the second defendant. They are of an all-pervasive character so as to affect the totality of the claims. They therefore apply also to the aspects concerning the first defendant. To the extent that there is a general expectation that an application for any order for summary dismissal be an application by all defendants (see, for example, Wickstead v Browne (1992) 30 NSWLR 1), it is therefore an expectation that does not apply to a case of this kind. The appropriate outcome is accordingly an order pursuant to rule 13.4 of the Uniform Civil Procedure Rules that the proceedings be dismissed generally as against both defendants named in the statement of claim.”