Perpetual Trustees Victoria Ltd v Riggall
[2014] QDC 80
To print this judgment please return to the case and click on the PDF icon
next to the
case name. For court use, a full PDF copy is required or preferred.
Exit Distraction Free Reading Mode
Please Note: You are about to print a copy of the onscreen
version of
this judgment. For court use, a full PDF copy of the judgment is required or preferred. Please
return to
the case for PDF printing options.
- Unreported Judgment
- Perpetual Trustees Victoria Ltd v Riggall[2014] QDC 80
- Add to List
Perpetual Trustees Victoria Ltd v Riggall[2014] QDC 80
Perpetual Trustees Victoria Ltd v Riggall[2014] QDC 80
DISTRICT COURT OF QUEENSLAND
CITATION: | Perpetual Trustees Victoria Ltd v Riggall [2014] QDC 80 |
PARTIES: | PERPETUAL TRUSTEES VICTORIA LTD (ABN 470 040 27258) (plaintiff) v WAYNE RALPH RIGGALL (defendant) |
FILE NO/S: | D110/13 |
DIVISION: | Civil |
PROCEEDING: | Registrar’s Referral under UCPR 982 |
ORIGINATING COURT: | Maroochydore |
DELIVERED ON: | 11 April 2014 |
DELIVERED AT: | Maroochydore |
JUDGE: | Long SC DCJ |
ORDER: |
|
CATCHWORDS: | CIVIL – PRACTICE AND PROCEDURE – Registrar’s referral under UCPR 982 – Whether application should be accepted by the Registrar and filed – Whether the matter requires any hearing in the District Court Gallo v Dawson (1989) 63 ALJR 121 Sirros v Moore [1975] 1 QB 118 at 132 Batistatos v Roads and Traffic Authority (NSW) (2006) 226 CLR 256 Cuttler v Browne [2010] QCA 346 Uniform Civil Procedure Rules 1999, 31, 967, 968, 982 District Court of Queensland Act 1967, s 5(2) Judicial Review Act 1991, s 42 |
- [1]These reasons are provided in respect of the determination of the court, on the referral of the Registrar, as herein recorded and in respect of an application, purportedly made in this proceeding.
- [2]The file of the court in relation to this proceeding was commenced on 15 July 2013, by the filing of a claim by the plaintiff for a debt in the amount of $207,745.81 plus interest, pursuant to the terms of a loan agreement and mortgage and the recovery of the possession of the land against which that obligation was secured.
- [3]On 28 March 2014, orders were made by Judge Robertson to the effect that an application, filed by the defendant on 26 March 2014, be dismissed, the plaintiff’s application filed on 10 March 2014, for summary judgment, was allowed with an order that the defendant pay the plaintiff $217,457.22 including interest in the amount of $9,711.41, from the date of claim until 28 March 2014 and that the plaintiff recover possession of the land and that the defendant pay the plaintiff’s costs of the application.
- [4]On 9 April 2014, a document in the form of an application made in those proceedings and under UCPR 31 and signed by the abovenamed defendant[1]was received at the registry of the court at Maroochydore and date stamped, 9 April 2014. The operative part of that application reads as follows:
“Denial of Order issued 28 March 2014 by Judge Robertson
TAKE NOTICE THAT THE DEFENDANT IS APPLYING TO THE COURT FOR THE FOLLOWING ORDERS:
Instruction to the Registrar..
- Schedule a hearing for John M. Robertson dba as JUDGE JOHN M. ROBERTSON and issue a summons for John M. Robertson dba as JUDGE JOHN M. ROBERTSON to appear, and
- Issue a subpoena Duces Tecum to John M. Robertson to produce the original or a certified copy of his oath of office, bond, and public insurance policy.
- Sign a sworn judge of oath other than John M. Robertson to hear the content.
- Notify the Attorney General for AUSTRALIA of the criminal nature of the situation, and that Sarah Ann: Wales demands to prosecute this matter under quo warranto in the event that the Attorney General declines to prosecute the crime.
- Petitioner, Sarah Ann: Wales, demands that John M. Robertson dba as JUDGE JOHN M. ROBERTSON, show cause why he displayed a total lack of negotiable Instrument Law, why he should not be held in contempt for his misconduct from the bench and why a Tort Claim should not issue against his bond to purge the contempt.”
- [5]It can be further noted that the application, on its face, indicates that the applicant intends to rely upon an “Affidavit Affirmed by Sarah Ann; Waleson 9 April 2014” and a “Petition for Show Cause dated 8 April 2014.”
- [6]The application was provided together with a further document which is headed:
“Petition for Hearing for John M Robertson dba as JUDGE JOHN M. ROBERTSON to Show Cause why he should not be held in Contempt and why a Tort Claim should not issue against his Bond to Purge the Contempt”.
- [7]The document then proceeds to set out some 11 numbered statements of “Sarah Ann: Wales, Affiant” and is executed in the following way:
“I, Sarah Ann; Wales, on my own unlimited commercial liability to do say that I have read the above affidavit and do know the contents to be true, correct and complete, and not misleading, the truth, the whole truth and nothing but the truth, and do believe that the above stated acts have been commuted contrary to law.”
There is then a signature above the notation “Sarah Ann: Wales, 3rdparty interest intervenor” and the date, 8 April 2014, is recorded. The document then continues:
“Petition for Relief
Petitioner request that this matter be attended to quickly.
The Registrar has requested to schedule this hearing quickly and notify the Attorney General, etc., as per the instructions in the application attached.”
Underneath that, there is again a signature above the notation “Sarah Ann; Wales, all rights reserved” and again the date, 8 April 2014, is recorded.
- [8]In addition, there is a document in a form of an affidavit and which contains an affirmation by “Sarah Ann Wales”. The contents are as follows:
“AFFIDAVIT OF PROBABLE CAUSE
This is a verified plain statement of truth
I, Sarah Wales, depose and say the following: Sarah Wales (hereafter I, me, or myself) on 28th of March 2014 arrived at the Maroochydore Court House at approximately 10:00am. At approximately 11:30am in the Maroochydore Court House, the conversation between Judge John M Robertson (Hereafter Judge John M Robertson, Judge or He) Sarah: Wales and Wayne: Riggall was heard as follows: Upon Wayne; Riggall entering the bar of the District Court Maroochydore as Grantor after the matter of PERPETUAL TRUSTEES VICTORIA AND WAYNE RALPH RIGGALL was called, Ms Williams, lawyer for the plaintiff stated something to the effect of “The Promissory Note was not delivered to the bank your Honour.” After being delayed outside of the court due to multiple security checks I entered the bar, stating for and on the Public Record I was there as Executor Trustee for the for the defendant WAYNE RIGGALL without waiving any of my rights and was informed by Wayne of what Ms Williams had said to Judge Robertson. I immediately corrected the record saying “Your Honour, I have just been informed that Ms Williams here has claimed the Bank never received the Promissory Note for Tender of Settlement, you have in front of you the documentation, including the Express Mail Number 60405708008099 evidencing the bank was in fact served the negotiable instrument no. PNWRR01020141055”. Affiant is prepared to sign an Affidavit on her full commercial Liability that the Promissory Note was delivered to the Mapleton Post Office for mailing and produce the receipt. I continued “I make an Oral submission for and on the public record that the promissory note was indeed sent via Express Mail the documentation in front of you evidencing the banks receipt, is Ms Williams prepared to do the same?” Ms Williams was not prepared to make an Oral submission to state her claim. Judge Robertson threatened me with contempt. Judge Robertson said the Promissory Note was something to the effect of “Childish and stupid”, to which I asked him “Are you qualified to make an assessment of a Negotiable Instrument?” Judge Robertson did not answer. I answered for him, “No you are not.” Wayne made an oral submission that, as there was new paperwork filed by the Plaintiff, placed before him by the Plaintiff that very morning during the hearing and a Notice of Interest filed by Wayne: Riggall on the property in question, that he required an adjournment in order to address the paperwork served upon him by the plaintiff, the ability to exhaust his Administrative Remedy and time to prepare questions he required the bank to answer regarding the alleged debt. the Judge DENIED this request, he said “NO”. I asked him why he was denying us due process today? Judge Robertson refused to answer the question saying instead he would award Summary Judgement to the Plaintiff. I said again “We require an adjournment under our right of due process.” Judge Robertson said “NO”. I informed Judge Robertson we had a record of settlement filed in accordance with the COMMONWEALTH EVIDENCE ACT SECT 69, I asked Judge Robertson if he was on his Oath and was he not under Oath to uphold our Equitable Rights? He laughed and said something to the effect of “I don’t care about that, it means nothing to me, it doesn’t matter.” I said “For an on the Public Record this court takes Judidical Notice of the Judges Oath of Office. I said to the Judge, “Why are you prejudicing our rights today? why are you denying us due process” He refused to answer. Judge Robertson asked Wayne, “Do you have $250,000.00 cash?” Wayne held up a Promissory Note in the Court but Judge Robertson wanted cash, he did not allow Wayne to answer continuing on to claim the Promissory Note in question was no good. He did not specify why he believed the Negotiable Instrument to be insufficient. I asked the judge, “Where is the defect in the instrument? Point out the defect in the Instrument, afford us the remedy that we may correct it and tender settlement for the alleged debt in its entirety immediately.” If there were a defect in the Instrument or if the plaintiff failed to receive the instrument via Express Post, Judge Robertson denied us the opportunity to tender settlement in accordance with the law in court that day. He read out his Judgment awarding Summary Judgment to the Plaintiff, asking Ms Williams, “Do you have a Draft Order, do you have a Draft Order? He signed the Draft order, got up and left the court in a hurry. I told him on his way out of the court “You have prejudiced our rights today.
I, Sarah Wales, certify on my own commercial liability that I have read the above affidavit and do know the contents to be true, correct and complete, and not misleading, the truth, the whole truth, and nothing but the truth, and do believe the above described acts to have been committed contrary to law.”
- [9]It should be noted that the involvement of Sarah Ann Wales in the proceedings heard on 28 March 2014, obviously occurred by way of the leave of the court and an indulgence granted to the defendant, to allow Ms Wales to address the court and deal with the matter on behalf of and as the agent of the defendant and notwithstanding that she had no right of audience, as she is known not to be a practicing lawyer.
- [10]It is readily apparent that a question arises as to whether this application should be accepted by the Registrar and filed, so that a hearing date may be allocated. It can be noted that pursuant to r 968(5) of the Uniform Civil Procedure Rules 1999 “(UCPR)”, a document is not filed until “the registrar records the document and stamps the seal of the court on it” and that has not yet occurred in respect of this application.[2]
- [11]Further and pursuant to UCPR 968(3) and (4) the Registrar is empowered to refuse to file such an application, if it “does not comply with [the] rules or may not otherwise be filed”.
- [12]In this instance and pursuant to UCPR 982, this matter and the questions that arise have been appropriately referred to a judge of this court.
- [13]From the contents of the application and the supporting affidavit (as set out above), it can be discerned that underlying the concerns that have been raised, is some dissatisfaction with the determinations made on 28 March 2014 and/or the way in which they were made. Clearly, any such issues are no longer a matter for this court and to the extent that the defendant may wish to raise contentions as to those determinations or suggest errors on the part of the judge, in hearing the matter and/or making those determinations, they are properly to be raised by exercise of the defendant’s rights of appeal.
- [14]Otherwise and to the extent that such matters are raised in a personal sense by Ms Wales, it is at the very least doubtful that she has any right to do so, particularly in the ways proposed.
- [15]Whilst the contents of the application and the supporting materials may be described as astounding, particularly to the extent that it is sought to proceed, in some personal capacity, against a judge for contempt of court, it suffices to note in that regard, that there is a demonstrated lack of understanding of a fundamental fact that the judge who presided on 28 March 2014, actually constituted the court, pursuant to s 5(2) of the District Court of Queensland Act 1967.
- [16]To the extent that application includes an attempt to otherwise sue or take action against the judge personally and in respect of acts done in the performance of his judicial duties, there is also a fundamental failure to understand the immunities that apply to such acts. Such a claim is “incurably defective and cannot succeed” and subject to the “inherent [or implied] jurisdiction of the Court to dismiss the action”[3].
- [17]Further and to the extent that the materials seek to pursue a petition, proceedings in the form of a petition are not available under the UCPR. And to the extent demand is made to prosecute this matter “under quo warran to”, it can be noted that informations in the nature of quo warrantohave been abolished, pursuant to s 42 of the Judicial Review Act1991.
- [18]Clearly the application, if not frivolous or vexatious, is an abuse of the process of the court. This court has an inherent or implied power to control its processes and deal with any such abuse[4]. Further it is otherwise clear that this matter does not require any hearing in this court and that these conclusions are consistent with the underlying philosophy of the UCPR and particularly the avoidance of undue expense.
- [19]Accordingly and pursuant to UCPR 982(3) it is ordered that the application is not to be filed or given any date for hearing and it is directed that the registrar is to forthwith provide the plaintiff and defendant with a copy of this determination and the reasons recorded herein.
Footnotes
[1] Although described as “3rd Party Interest Intervener”.
[2] Noting also and notwithstanding the inclusion of the word “filed” in that marking, that the date stamp which has been placed on the application effectively only records what has occurred pursuant to UCPR 967.
[3] See Gallo v Dawson (1989) 63 ALJR 121 at 122 and Sirros v Moore [1975] 1 QB 118 at 132
[4] Batistatos v Roads and Traffic Authority (NSW) (2006) 226 CLR 256 at [9]-[19] and Cuttler v Browne [2010] QCA 346 at [51]-[54] and the cases therein cited.