SUPREME COURT OF THE AUSTRALIAN CAPITAL v Rushton Ultra Vires Nullity...SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY ... (1995\) - Div. 270 - Sla\ ... Supreme Court of the Australian Capital Territory, Kelly J,

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  • SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

    Case Title:

    Kaney v Rushton

    Citation: [2017] ACTSC 11

    Hearing Date: 25 November 2016

    Decision Date:

    Reasons Date:

    25 November 2016

    2 February 2017

    Before: Refshauge J

    Decision: 1. For the purposes of s 68(2) of the Court Procedures

    Act 2004 (ACT) that these proceedings be declared to have

    been validly commenced.

    2. Under r 6 of the Court Procedures Rules 2006 (ACT), so

    much of the Rules be dispensed with as would prevent the

    making of these orders.

    3. The order made on 14 November 2016 for personal service

    of the Originating Application dated 15 November 2016 be

    set aside.

    4. It be noted that it is in the interests of justice to proceed in

    the absence of the defendant.

    5. That Mark Desmond Kaney as Executor of the Estate of the

    late Kelli Maree Rushton be declared to be entitled to the

    possession of the land being Block 13 Section 377 Division

    of Macarthur, contained in Volume 883 Folio 71, known as

    8 Bayley Place, Macarthur, ACT.

    6. It be directed that an enforcement officer enter the premises

    at 8 Bayley Place, Macarthur, ACT, more precisely

    described in order 5 and deliver possession of the land and

    appurtenances to Mark Desmond Kaney.

    7. Ben Anthony Rushton be ordered to pay the costs of Mark

    Desmond Kaney of execution of the Estate of the late Kellie

    Maree Rushton of and incidental to these proceedings

    including the cost of all interlocutory hearings and other

    attendances.

    Catchwords: ADMINISTRATIVE LAW ADMINISTRATIVE TRIBUNALS ACT Civil and Administrative Tribunal ACAT orders made by the ACAT registration of a judgment of the ACAT enforcement of orders made by the ACAT powers of the ACAT any personal action at law enforcement powers of the Magistrates Court s 22 of the ACT Civil and Administrative Tribunal Act 2008 (ACT) s 71 of the ACT Civil

    OccupantTypewritten TextJUDICIARY ACT 1903 - SECT 28Non-appearance of some defendantsThe judgment given in the cause shall not conclude or prejudice other parties who...do not voluntarily submit to the jurisdiction of the Court.http://www.austlii.edu.au/au/legis/cth/consol_act/ja1903112/s28.html

    OccupantHighlight

    OccupantTypewritten TextSlavery is unlawful, where such a condition results from a debt or contract with a "criminal offence penalty: imprisonment for 25 years. [See Criminal Code Act (1995) - Div. 270 - Slavery and slavery like conditions; No one as a man and woman of lesh and blood can be held in involuntary Servitude. (Engineers' case) HCA 54; 28 CLR 129 (1920) High Court of Australia.] http://www.austlii.edu.au/au/legis/cth/consol_act/cca1995115/sch1.html

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    OccupantTypewritten TextAustralian Human Rights Commission Act, 1986 (Cth), Schedule 2, International Covenant on Civil and PoliticalRights, inter alia: Article 17 - 1. No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation. http://www.austlii.edu.au/au/legis/cth/consol_act/ahrca1986373/sch2.html

    OccupantTypewritten TextUnder the current laws in Australia, both State and Federal, it is absolutely illegal for the Government "to take what it wants." COMMONWEALTH V NEW SOUTH WALES [1923] HCA 23; (1923) 32 CLR 200.

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    OccupantTypewritten Text'Court is a place where Justice is administered and Justice is the protection of rights and the punishment of wrongs and the Right to Trial by Jury belongs to everyone, it is inalienable, i.e.: rights which are not capable of being surrendered or transferred without the consent of the one possessing such rights. [Morrison v. State, Mo. App., 252 S.W.2d 97, 101.]

    OccupantTypewritten TextJury trial is a right! [Hill vs Philpott, 445 F 2 D 144]

    OccupantTypewritten TextWrit of Error

    OccupantTypewritten TextCOMMONWEALTH OF AUSTRALIA CONSTITUTION ACT - SECT 109Inconsistency of laws: "When a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid. http://www.austlii.edu.au/au/legis/cth/consol_act/coaca430/s109.html

    OccupantTypewritten Text"An act involving a departure from truth or accuracy". [Gronseth v. Mohn, 57 S.D. 604, 234 N.W. 603, 604.]

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    OccupantTypewritten TextHigh Court of Australia shall have original inherent jurisdiction in all matters arising under the "Constitutional Law" or involving its interpretation of the rule or choice of laws of the Commonwealth under the Judiciary Act, 1903 (Cth), s.30. In Bremer Vulkan Schiffbau and Maschinenfabrik v. South India Shipping Corporation Ltd, Lord Diplock described the court's inherent jurisdiction as a general power to control its own procedure so as to prevent its being used to achieve injustice.

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    OccupantTypewritten TextConstitutional provisions for the security of persons and property should be liberally construed. It is the duty of the courts to be watchful of constitutional rights against any stealthy encroachments thereon. Boyd v. U.S., 116 U.S. 635.

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    OccupantTypewritten Text"Contravention of (High Court) order to constitute contempt".[see JUDICIARY ACT 1903 (Comm) - SECT 49.] http://www.austlii.edu.au/au/legis/cth/consol_act/ja1903112/s49.html

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    OccupantTypewritten TextName in Error

    OccupantTypewritten Text18 U.S. Code 1342 - Fictitious name

  • 2

    and Administrative Tribunal Act 2008 (ACT)

    PRACTICE AND PROCEDURE SERVICE OF DOCUMENTS Informal service transfer of proceedings fees associated with the filing of an Originating Application certainty of actual notice due to no appearance contempt of an order s 247 of the Legislation Act 2001 (ACT)

    TORTS TRESPASS Trespass to land and rights of real property recovery of land proof of title

    SUCCESSION WILLS, PROBATE AND ADMINISTRATION Administration of Estate by executor family provision property interests custody of children prior Domestic Family Violence Protection Order

    Legislation Cited: ACT Civil and Administrative Tribunal Act 2008 (ACT), ss 15, 16(f), 17, 18, 22, 24, 71 ACT Civil and Administrative Tribunal Amendment Act 2016 (No 2) (ACT), s 4, Sch 1, Pt 1.5 Court Procedures Act 2004 (ACT), s 68(2) District Court of Western Australia Act 1969 (WA), s 55 Foreign Judgments Act 1991 (Cth), s 6 Leases (Commercial and Retail) Act 2001 (ACT), Div 12.5 Legislation Act 2001 (ACT), ss 44, 247, Pt 19.5, Dictionary Local Court Act 1904 (WA), s 33 Magistrates Court Act 1930 (ACT), ss 257, 258, 264, 270, 307 Magistrates Court (Civil Proceedings) Act 2004 (WA), s 11 Residential Tenancies Act 1997 (ACT) Service and Execution of Process Act 1992 (Cth), s 105 Uniform Civil Procedure Rules 1999 (Qld) Court Procedures Rules 2006 (ACT), rr 6, 61, 1450, 1600, 1613(2)(a), 2440, 2441, 6420, 6421, 6461, 6461(1)(b), Pt 2.18, Pt 6.2, Pt 6.8, Div 6.3.3 Uniform Civil Procedure Rules 2005 (NSW), r 10.14(3) Court Procedures (Fees) Determination 2016 (No 2) (ACT), Item 1210 of Schedule Explanatory Statement, ACT Civil and Administrative Tribunal Bill 2008 (ACT)

    Cases Cited: Allen v Roughly (1955) 94 CLR 98 Amos Removals & Storage Pty Ltd v Small [1981] 2 NSWLR 525 Angus Fire Armour (Australia) Pty Ltd v Collector of Customs (NSW) (1988) 19 FCR 477 Chianti Pty Ltd v Leume Pty Ltd [2007] WASCA 270; 35 WAR 488 City Finance Co Ltd v Matthew Harvey & Co Ltd (1915) 21 CLR 55 Commercial Developments Pty Ltd (t/a Don Rogers Motors Pty

    OccupantTypewritten TextIt is well established that the tort of trespass protects the interest of a person in maintaining the right to exclusive possession of a place of residence, free from uninvited physical intrusion by strangers. It is not the concern of the law to protect "ownership" but use. NSW v IBBETT [2006] HCA 57; 231 ALR 485; (2006) 81 ALJR 427

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    OccupantTypewritten TextA pretended law (Act) made in excess of power is not and never has been a law at all. Anybody in the country is entitled to disregard it. Naturally, he will feel safer if he has a decision of a court in his favor, but such a decision is not an element that produces invalidity in any law. The law is not valid until a court pronounces against it - and thereafter invalid. If it is beyond power, it is void ab initio. (Act without Royal Assent) [Chief Justice Latham, HCA 1942 (65 CLR 373 at 408), Uniform Tax Case]

    OccupantTypewritten TextSee Criminal Code Act (1995): http://www.austlii.edu.au/au/legis/cth/consol_act/cca1995115/sch1.htmla. Producing False or misleading documents is a criminal offence with a penalty: imprisonment for 12 months. [See Criminal Code Act (1995), Part 7.3, Div.137.2 False or misleading documents.]

    b. Slavery is unlawful, where such a condition results from a debt or contract with a criminal offence penalty: imprisonment for 25 years. [See Criminal Code Act (1995) - Div. 270 - Slavery and slavery like conditions; No one as a man and woman of flesh and blood can be held in involuntary Servitude. (Engineers' case) HCA 54; 28 CLR 129 (31 August 1920) HIGH COURT OF AUSTRALIA.]

    OccupantTypewritten TextTo be that statutes which would deprive a citizen of the rights of person or property without a regular trial,according to the course and usage of common law, would not be the law of the land. Hoke vs Henderson, 15, N.C. 15, 25 AM Dec 677.

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    OccupantTypewritten TextSpouse. One's husband or wife, and "surviving spouse" is one of a married pair who outlive the other. [See Blacks Law Dictionary 6th Ed.] See Law of Survivorship. 1. The state or condition of being the one person out of two or more who remains alive after the others die. 2. The right of a surviving party having a joint interest with others in an estate to take the whole. See RIGHT OF SURVIVORSHIP.)

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    OccupantTypewritten TextSee 18 U.S. Code 241, 242 - Conspiracy against rights - Deprivation of rights under color of law, they shall be fined under this title or imprisoned for any term of years or for life, or both, or may be sentenced to death. https://www.justice.gov/crt/conspiracy-against-rights

    OccupantTypewritten TextExecutor De Son Tort. Executor of his own wrong. 1. A person who assumes to act as Executor of an estate without any lawful warrant or authority, but who, by his intermeddling (with the goods of the deceased), makes himself liable as an Executor to a certain extent. 2. By asserting ownership, as taking goods or cancelling a bond (marriage or death certificate), and not committing a mere, trespass. [See Blacks Law Dictionary 6th Ed.]

    The usurpation of an office or character cannot confer the rights and privileges of it an Executor de son tort is an Executor only for the purpose of being sued, not for the purpose, of suing. In point of form, he is sued as if he were a rightful Executor. See Bouvier's Law Dictionary.

  • 3

    Ltd) v Mercantile Mutual Insurance (Workers Compensation) Ltd (1991) 5 WAR 208 Commonwealth v Davis Samuel Pty Ltd (No 11) [2017] ACTSC 2 Deputy Commissioner of Taxation v Cooney [2004] QDC 478 Duratech Industries Pty Ltd v Cube Furniture Pty Ltd [2014] ACTSC 405 Flamangs Case, unreported but cited in Mitchell v Dors (1801) 6 Ves Jun 147; 31 ER 984 Forsyth v Deputy Commissioner of Taxation (2007) 231 CLR 531 Foster v Jododex Australia Pty Ltd (1972) 127 CLR 421 General and Finance Facilities Ltd v Cooks Cars (Romford) Ltd [1963] 2 All ER 314 Graham H Roberts Pty Ltd v Maurbeth Investments Pty Ltd [1974] 1 NSWLR 93 Harrison v Duke of Rutland [1893] 1 QB 142 Hill v CA Parsons & Co Ltd [1972] 1 Ch 305 Hondros v Chesson [1981] WAR 146 In re Commercial Union Assurance Co (Ltd) (1899) 18 NZLR 585 In the Matter of an Application by Director of Public Prosecutions against Jones (Unreported, Supreme Court of the Australian Capital Territory, Kelly J, 4 October 1985) Llandudno Urban District Council v Woods [1899] 2 Ch 705 Magdalen College, University of Oxford v Ward (1839) 1 Coop. T. Cott. 265; 47 ER 849 Matthews v Bayview Holiday Village Pty Ltd (1990) 2 WAR 167 Murcia & Associates (A Firm) v Grey [2001] WASCA 240; 25 WAR 209 Murphy v Green [2002] QDC 010 Pelechowski v Registrar, Court of Appeal (NSW) [1999] HCA 19; 198 CLR 435 Phillips v Phillips (1878) 4 QBD 127 Plenty v Dillon (1991) 171 CLR 635 Porter v Freudenberg [1915] 1 KB 857 Potter v Minahan (1908) 7 CLR 277 Rose v Laskington Ltd [1990] 1 QB 562 R v Johnson [1962] QWN 37 Scott v Cawsey (1907) 5 CLR 132 Shaddock v Magistrates Court of Victoria (Unreported, Supreme Court of Victoria, Harper J, 22 July 1997) Sheldon v Brown Bayleys Steelworks Ltd and Dawnays Ltd [1953] 2 QB 393 Stoke-on-Trent City Council v W & J Wass Ltd [1988] 1 WLR 1406 The Lunching Pad Pty Ltd v Minister for Culture and the Arts [2001] WASC 299 Vale v TMH Haulage Pty Ltd (1993) 31 NSWLR 702 Vista Capital Developments Pty Ltd v Talmarc Pty Ltd [2008] NSWSC 935 WFM Motors Pty Ltd v Maydwell (Unreported, Supreme Court of New South Wales, Bryson J, 23 April 1993) Witham v Holloway (1995) 183 CLR 525

    OccupantTypewritten Textc. Crime against humanity-enslavement, arising from a debt incurred or contract made by a person is an unlawful criminal offence penalty: imprisonment for 25 years. [See Criminal Code Act (1995), sec. 268.10 Crime against humanity - enslavement.]

    d. Trafficking in persons and debt bondage with intention to deceive mislead as to fact or as to law, by words or other conduct is a criminal offence with a penalty: imprisonment for 12 years. [See Criminal Code Act (1995), Div. 271 - Trafficking in persons and debt bondage]

    e. Trafficking in persons and debt bondage that causes another person to enter into debt bondage is a criminal offence with a penalty: imprisonment for 4 years. [See Criminal Code Act (1995), Div. 271.8 Offence of debt bondage.]

    f. Abuse of public office, dishonestly causing a detriment to another person is a criminal offence with a penalty: imprisonment for 5 years. [See Criminal Code Act (1995), Div. 142.2. Abuse of public office.]

    OccupantTypewritten TextThe Universal Declaration of Human Rights (UDHR):http://www.un.org/en/universal-declaration-human-rights/

    Article 12.No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.

    Article 17.(1) Everyone has the right to own property alone as well as in association with others.(2) No one shall be arbitrarily deprived of his property.

    Article 25.(1) Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment...

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