SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Kaney v Rushton
Citation:  ACTSC 11
Hearing Date: 25 November 2016
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
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
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
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
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  HCA 23; (1923) 32 CLR 200.
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.]
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.
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.
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
OccupantTypewritten TextName in Error
OccupantTypewritten Text18 U.S. Code 1342 - Fictitious name
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  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  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  HCA 57; 231 ALR 485; (2006) 81 ALJR 427
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.