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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

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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

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JUDICIARY ACT 1903 - SECT 28 Non-appearance of some defendants “The 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
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“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 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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Australian Human Rights Commission Act, 1986 (Cth), Schedule 2, International Covenant on Civil and Political Rights, 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
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Under 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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'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.]
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“Jury trial is a right!” [Hill vs Philpott, 445 F 2 D 144]
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Writ of Error
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COMMONWEALTH OF AUSTRALIA CONSTITUTION ACT - SECT 109 Inconsistency 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
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"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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High 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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Constitutional 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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"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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18 U.S. Code § 1342 - Fictitious name

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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

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“It 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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“A 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]
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See Criminal Code Act (1995): http://www.austlii.edu.au/au/legis/cth/consol_act/cca1995115/sch1.html a. 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.]
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“To 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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Spouse. One's husband or wife, and "surviving spouse" is one of a married pair who outlive the other. [See Black’s 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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See 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
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Executor 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 Black’s 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.

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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 Bayley’s 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

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c. “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 f or 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.]
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The 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, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control.
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Color (of right). Appearance, guise, or semblance especially the appearance of a legal claim to a right, authority, or office. An appearance, semblance, or simulacrum, as distinguished from that which is real. Hence, a deceptive appearance; a plausible, assumed exterior, concealing a lack of reality; a disguise or pretext. See also Color of Law, Pseudonym. [See Bond v. U.S., 529 US 334-2000; 18 USC § 1951 - Interference with commerce by threats or violence; 18 USC § 1341 - Frauds and swindles; 18 U.S. Code § 1342 - Fictitious name or address; Black's Law Dictionary, 6th ed.]

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Texts Cited: Corrie Goodhand and Peter O’Brien, Intentional Tort Litigation in Australia (The Federation Press, 2015) J D Heydon, M J Leeming and P G Turner, Meagher, Gummow and Lehane’s Equity Doctrines and Remedies (LexisNexis Butterworths, 5th ed, 2015)

Parties: Mark Desmond Kaney as Executor of the Estate of the Late Kelli Maree Rushton (Applicant)

Ben Rushton (Respondent)

Representation: Counsel

Mr R P Clynes (Applicant)

No Appearance (Respondent)

Solicitors

Sinclair Whitbourne, Lawyer (Applicant)

No Appearance (Respondent)

File Number: SC 439 of 2016

REFSHAUGE J: 1. On 11 April 2015, Kelli Maree Rushton died after a long battle with cancer. This Court

granted Probate of her Will on 6 November 2015. The plaintiff, Mark Desmond Kaney,

was appointed Executor of Ms Rushton’s Estate. He was the brother of Ms Rushton.

2. The defendant, Ben Anthony Rushton, had married Ms Rushton on 12 February 2005

but the couple had separated in early 2014. The couple had three children together,

who at the time of these proceedings, were aged 13, 12 and 10 years old.

3. It appears that the separation was not amicable as Ms Rushton was granted a

Protection Order by the Redcliffe Magistrates Court in Queensland arising from a

serious domestic violence incident on 28 February 2014. Ms Rushton alleged a long

history of violence, intimidation, and threats of violence against her during the

marriage.

4. Ms Rushton moved to Canberra leaving Mr Rushton in the former matrimonial home in

Queensland. She purchased a home in Canberra in January 2015. The property is

Block 13 Section 377 Division of Macarthur, comprised in Volume 883 Folio 71, known

as 8 Bayly Place, Macarthur. I shall refer to this property as the Property. She was the

sole registered proprietor of the Property, subject to a mortgage to the National

Australia Bank Ltd.

5. Shortly after Ms Rushton died, Mr Rushton moved into the residence on the Property

without any permission from either Ms Rushton before she died or from Mr Kaney as

nominated Executor of her Estate.

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Only the DEAD and DEMONS can be summoned to make an ungodly secular 'appearance' that may be considered an arbitrary or unlawful interference with a LIVING man’s right to privacy and freedom of religion. [See Privacy Act 1988; International Covenant on Civil and Political Rights, Art. 16-18, inter alia; Brady v. U.S., 379 U.S. 742 at 748 (1970); U.S. v. Johnson, 76 F. Supp. 538]
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Intangible intellectual personal property asset collateral infringement.
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“Where there is an absence of jurisdiction, all administrative and judicial proceedings are a nullity and confer no right, offer no protection, and afford no justification, and may be rejected upon direct collateral attack.” (Thompson v. Tolmie, 2 Pet. 157, 7 L.Ed. 382; Griffith v. Frazier, 8 Cr. 9, 3L. Ed. 471).
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a. Book of Law, Holy Bible, 1611 (AKJV) b. Constitutional Laws of Magna Carta, 1297 (Cth) c. The Commonwealth of Australia Constitution Act, 1900 (U.K.) d. Australian Human Rights Commission Act, 1986 (Cth) e. Judiciary Act, 1903 (Cth) f. Privacy Act, 1988 (Cth) g. Crimes Act, 1914 (Cth) h. Criminal Code Act, 1995 (Cth)
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A man is un-represented as he is himself in 'fact' not 'fiction'.
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All of the participants in a Common Law Court must present their own case in all of the Court proceedings, since to allow another to “re-present” them would constitute a surrender of their natural rights.
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Mrs (Husband and wife matrimonial estate). “The legal existence of a wife is incorporated with that of her husband” [Black’s Law Dictionary 2nd Ed]
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Ms Dickerson married and by privity in estate changed her title to that of her husbands family estate name “Rushton” after being legally incorporated.
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Perjury and false information with willful intent to deceive without proof or evidence, contrary to the facts of the 19 year relationship and marriage to her husband who was her full-time carer in their matrimonial home until her date of death.
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Perjury and false information with willful intent to deceive without proof or evidence contrary to the facts that the husband 's family provided funds for the property purchase and the husband moved the disabled terminally ill wife into the property in Canberra, setup and maintained the matrimonial home as the full-time carer.
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The husband and father provided full-time care for his terminally ill wife and their three children in the matrimonial home (property) up to the date of her death and the husband continued to maintain and live in the matrimonial family home with their three children as the will executed only months prior to her death clearly stated and intended a life interest in the matrimonial property pass to her Husband of a 19 year relationship, not divorced, who provided the initial funds for the purchase of the matrimonial home with the title recorded in the husbands privity of estate family name 'Rushton'. Canberra Hospital, Regional Cancer Centre and Clare Holland House Home Based Palliative Care medical practitioners and hundreds of others are first-hand credible and competent witnesses that can testify to the actual truth and facts of this matter.
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Title was in the husbands family estate name “Rushton” after being legally incorporated through marriage/death certificate.
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MISNOMER. Mistake in name; giving incorrect name to person in accusation, indictment, pleading, deed or other instrument. Culpepper v. State, 173 Ga. 799, 161 S.E. 623. Title's and Name's in Error.
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MISNOMER. Mistake in name; giving incorrect name to person in accusation, indictment, pleading, deed or other instrument. Culpepper v. State, 173 Ga. 799, 161 S.E. 623.
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Color of law. The appearance or semblance, without the substance, of legal right. Misuse of power, possessed by virtue of state law and made possible only because wrongdoer is clothed with authority of state, is action taken under "color of state law". Mere semblance of legal right; something done with the apparent authority of law but actually incontravention of law; Atkins v. Lanning, D.C.Okl., 415 F.Supp. 186, 188. See Black's Law Dictionary, 6th ed.
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18 U.S. Code § 1621 - Perjury generally; 18 U.S. Code § 1001 – (False) Statements or entries generally
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107 Goodwin Street, Lyneham ACT 2602

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6. In Ms Rushton’s Will, she left an interest in the former matrimonial home in Queensland

to Mr Rushton, subject to certain conditions, but no interest in the Property. The

residue of her Estate was to pass to her three children absolutely. Mr Kaney was

appointed the testamentary guardian of her three children.

7. On 24 September 2015, the Family Court of Australia ordered that Mr Kaney have sole

parental responsibility of the three children and that they should live with him, both on a

long term and on a day-to-day basis. The orders were ultimately enforced by the

Australian Federal Police. The children have since lived with Mr Kaney in his home in

Florey.

8. Mr Rushton lodged a caveat against the grant of Probate of the late Ms Rushton’s Will

to Mr Kaney but, on 23 October 2015, this Court set the caveat aside.

9. Mr Kaney has attempted to resolve the question of Mr Rushton’s unauthorised

occupation of the Property with him but to no avail. Accordingly, on 2 October 2015, he

formally demanded by letter that Mr Rushton vacate the Property. He has failed to do

so.

10. Having had no success, Mr Kaney commenced the proceedings which have ultimately

come to this Court. These proceedings have become complex and protracted. This

appears to result from very regrettable gaps in the legislative framework under which

the proceedings have properly been taken. The policy behind the relevant legislation

appears not to have been based on an understanding or appreciation of the options

and limits of enforcement of judicial and quasi-judicial orders in this Territory and,

perhaps, more widely.

The initial proceedings

Jurisdiction

11. Mr Kaney commenced proceedings in the ACT Civil and Administrative Tribunal (the

ACAT), because he considered Mr Rushton a trespasser.

12. The jurisdiction of the ACAT that Mr Kaney sought to enliven arises in this way. Under

s 17 of the ACT Civil and Administrative Tribunal 2008 (ACT) (the ACAT Act), the

ACAT has jurisdiction to hear and determine a civil dispute application.

13. Section 22 of the ACAT Act gives the ACAT, in relation to civil dispute applications,

“the same jurisdiction and powers as the Magistrates Court has under the Magistrates

Court Act 1930, Pt 4.2 (Civil jurisdiction).” That jurisdiction is described in s 257 of that

Act as jurisdiction to hear and decide “any personal action at law”, though, of course,

with a monetary limit – $10 000 in the ACAT: s 18 of the ACAT Act; $250 000 in the

Magistrates Court: s 257 of the Magistrates Court Act. I note however, that since

15 December 2016, after these proceedings were heard, the monetary limit in the

ACAT has increased to $25 000. See s 4 and sch 1, pt 1.5 of the ACT Civil

and Administrative Tribunal Amendment Act 2016 (No 2) (ACT).

14. A personal action at law is defined as an action that is not a real action or a mixed

action. See Vale v TMH Haulage Pty Ltd (1993) 31 NSWLR 702 at 707. Thus, it

includes any claim against a person arising out of a contract or out of a tort, including,

relevantly, trespass. Proceedings for the possession of land and proceedings in equity

are, therefore, excluded.

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The father has the right and is the natural guardian.
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Maxims of Law: He is the lawful heir whom the marriage demonstrates. [Bouvier's Law Dictionary]; A contract validly entered into is binding upon the parties. Cohabitation does not make the marriage; it is the consent of the parties. The right of blood and kindred cannot be destroyed by any civil law. [Acts 17:26-28]
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“If such acts include kidnapping or an attempt to kidnap… 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.” [18 USC § 241, § 242 - Conspiracy against rights - Deprivation of rights under color of law.]
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"A man’s right to possess his own chattels will as a general rule be enforced against one who, without any claim of right…” [Peters v. Gillund, Tex.Civ.App., 186 S.W.2d 1019, 1020; Bowmakers Ltd v. Barnet Instruments Ltd; CA 1945]
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Maxims of Law: It is a fault to meddle with what does not belong to or does not concern you."; “Minding one’s own business is the only moral law.”
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“It 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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‘One who exercises jurisdiction out of his territory cannot be obeyed with impunity’ as ‘impunity’ in the international law of human rights, refers to the failure to bring perpetrators of human rights violations to justice’. [10 Co. 77; Dig. 2. 1. 20; Story, Confl. Laws § 539; Broom, Max. 100, 101.]
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Guardian by nature, at common law, is the father, and, on his death, the mother (vis-a-vis), of a child. [Daniels v. Metropolitan Life Ins. Co., 135 Pa.Super. 450, 5 A.2d 608, 611. See Black’s Law Dictionary 6th Ed.]
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The estate of a woman married through a civil marriage comes under the estate of the husband and only he may sign as Executor for the wife’s estate, which estate is the property of the husband’s estate including the children.
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Maxim of Law: Common Law doth control Acts of Parliament, and adjudges them void, when against common right and reason. [Lord Chief Justice Coke, i.e. Common and Natural Law overrules Color of Law i.e. State or Territory Statutes and Legislation.]

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15. That interpretation was not entirely accepted in Commercial Developments Pty Ltd

(t/a Don Rogers Motors Pty Ltd) v Mercantile Mutual Insurance (Workers’

Compensation) Ltd (1991) 5 WAR 208 at 219-20, though the High Court seems to have

approved the decision of Vale v TMH Haulage Pty Ltd in Forsyth v Deputy

Commissioner of Taxation (2007) 231 CLR 531 at 543; [21] and 563; [98], but without

any detailed consideration of the issues. See also Chianti Pty Ltd v Leume Pty Ltd

[2007] WASCA 270; 35 WAR 488 at 504-6; [50]-[56]. I do not have to resolve the issue,

but incline to the view that, if required, I should follow Vale v TMH Haulage Pty Ltd.

16. On either view, however, a claim in contract and in tort are both personal actions at law

and thus within the civil jurisdiction of the Magistrates Court and, therefore, by virtue of

s 22 of the ACAT Act, within the jurisdiction of the ACAT.

17. Many torts are what are known as intentional torts. A helpful list is provided in Corrie

Goodhand and Peter O’Brien, Intentional Tort Litigation in Australia (The Federation

Press, 2015) 4. Such torts developed from the principal writ of trespass which, in the

13th century, was a remedy for obvious forcible wrongs. Trespass to land is one such

tort.

18. This reasoning may be somewhat moot, for s 16(f) of the ACAT Act expressly includes,

as a civil dispute application, a trespass application. In turn, s 15 of that Act defines a

trespass application as an application for relief for trespass to land.

19. So far as I am aware, the appropriate orders granting relief that are available in a

trespass application in the ACAT, indeed, for the Magistrates Court, have not been the

subject of any detailed consideration. This is not the place for a detailed consideration,

though some consideration is appropriate, which I will undertake below.

20. I do note, however, that a well-known canon of the law is that whenever a person has a

right, the law should give a remedy: Hill v CA Parsons & Co Ltd [1972] 1 Ch 305 at

316. In these reasons, the issue of what remedy is available is relevant because it has

become complicated in the light of the vexed question of enforcement.

21. Having been developed in the common law, the only remedy for trespass was initially

damages. Damages were available even if the trespass caused no actual damage, for

proof of damage was and is not required for the action to succeed: Stoke-on-Trent City

Council v W & J Wass Ltd [1988] 1 WLR 1406 at 1411. Damages may be awarded in

vindication of the plaintiff’s right to exclude persons from his, her or its property: Plenty

v Dillon (1991) 171 CLR 635 at 645.

22. Subsequently, equitable relief became available. See Flamangs Case, unreported but

cited in Mitchell v Dors (1801) 6 Ves Jun 147; 31 ER 984. Thus, an injunction could

thereafter be granted as an alternative to damages, but generally only where an award

of damages was not an appropriate remedy: Graham H Roberts Pty Ltd v Maurbeth

Investments Pty Ltd [1974] 1 NSWLR 93. Indeed, there is now said to be nothing novel

in granting an injunction as a remedy for a trespass as explained in J D Heydon,

M J Leeming and P G Turner, Meagher, Gummow and Lehane’s Equity Doctrines and

Remedies (LexisNexis Butterworths, 5th ed, 2015) 717; [21-110]. Similarly, a

declaration may be made where there has been a trespass: Harrison v Duke of Rutland

[1893] 1 QB 142; Llandudno Urban District Council v Woods [1899] 2 Ch 705.

23. There is, so far as I could see, no indication in any relevant legislation of what relief is

meant to be encompassed within that which the ACAT could order when hearing a

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Kidnap(ping). Kidnapping is the unlawful taking away by force or fraud or threats or intimidation or transportation of a person against that person’s will, usually to hold the person unlawfully. This may be done for ransom or in furtherance of another crime, or in connection with a child custody dispute. [See Black’s Law Dictionary 6th Ed.]
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Trespass. An unlawful interference with one’s person, property, or rights. At common law, trespass was a form of action brought to recover damages for any injury to one’s person or property or relationship with another. Any unauthorized intrusion or invasion of private premises or land of another. Antkiewicz v. Motorists Mut. Ins. Co., 91 Mich.App. 389, 283 N.W.2d 749, 753. Trespass comprehends any misfeasance, transgression or offense which damages another person’s health, reputation or property. King v. Citizens Bank of De Kalb, 88 Ga.App. 40, 76 S.E.2d 86, 91. Doing of unlawful act or of lawful act in unlawful manner to injury of another’s person or property. Waco Cotton Oil Mill of Waco v. Walker, Tex.Civ.App., 103 S.W.2d 1071, 1072. An unlawful act committed with violence, actual or implied, causing injury to the person, property, or relative rights of another. It comprehends not only forcible wrongs, but also acts the consequences of which make them tortious. [See Black’s Law Dictionary 6th Ed.]

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trespass application. Presumably, therefore, the relevant relief would be that available

to the Magistrates Court, so far, however, as the ACAT would have power to grant it.

Procedure

24. It is then necessary to trace the procedural steps taken in this case. The proceedings in

the ACAT were conducted in the usual way, so far as I can determine. Both parties

were present at the hearing on 21 December 2015.

25. On that day, 21 December 2015, the ACAT ordered:

1. The Tribunal finds that the respondent has no lawful right to be upon the premises at 8 Bayly Place Macarthur, ACT.

2. The applicant has required that the respondent vacate the premises.

3. The respondent has refused to vacate the premises.

4. The respondent’s presence on the premises is a trespass.

5. The respondent is to immediately vacate the premises.

6. The respondent is to surrender to the applicant within 7 days, all personal property belonging to the deceased and the children of the deceased.

26. The nature of these orders is unclear. Arguably, order 1 is a declaration of right of the

kind that equity permits to be made. Since at least Foster v Jododex Australia Pty Ltd

(1972) 127 CLR 421, a court (and in this case, the ACAT, exercising the jurisdiction in

civil dispute applications given it under s 22 of the ACAT Act) has jurisdiction to make a

declaration even if no other substantive relief is sought.

27. This is a useful remedy where, for other reasons, the limitations of the law prevent

justice from being done.

28. Despite some question about the jurisdiction of an inferior court to grant a declaration

as principal relief expressed by Malcolm CJ in Commercial Developments Pty Ltd

(t/a Don Rogers Motors Pty Ltd) v Mercantile Mutual Insurance (Workers’

Compensation) Ltd at 220, I am of the view, that s 258 of the Magistrates Court Act

would permit such an order to be made, for the reasons set out below.

29. Order 5 may be said to be an order in the nature of an injunction, though mandatory in

form which has issues in itself. It cannot be an order for the recovery of land, for that

requires the plaintiff to show a better title to the land than the defendant: Allen

v Roughly (1955) 94 CLR 98. Under s 264 of the Magistrates Court Act such a claim is

beyond the jurisdiction of the Magistrates Court and thus of the ACAT.

30. Order 6 appears to be intended to be an order in the nature of detinue, that is an order

for the specific recovery of goods, but the proper order is for the return of the goods or

payment of their value: General and Finance Facilities Ltd v Cooks Cars (Romford) Ltd

[1963] 2 All ER 314 at 319. That may now have been modified by statute. See r 2441

of the Court Procedures Rules 2006 (ACT). I do not have to decide that in these

proceedings.

31. Were order 6 to be instead construed as an injunction, again a mandatory injunction, it

again appears that it was probably within power. That seems to follow from what was

held in Shaddock v Magistrates’ Court of Victoria (Unreported, Supreme Court

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See 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
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‘Once jurisdiction is challenged, it must be proven’ [Jagens v. Lavine, 415 S.Ct.768]
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‘Where there is an absence of jurisdiction, all administrative and judicial proceedings are a nullity and confer no right, offer no protection, and afford no justification, and may be rejected upon direct collateral attack’. [Thompson v. Tolmie, 2 Pet. 157, 7 L.Ed. 382; Griffith v. Frazier, 8 Cr. 9, 3L. Ed. 471].

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of Victoria, Harper J, 22 July 1997), namely that the Magistrates Court did have

injunctive power.

Subsequent proceedings

32. Mr Rushton did not appeal against the orders, nor did he comply with them, and he

remained in occupation on the Property. Accordingly, Mr Kaney sought to enforce

them. These reasons concern the recovery of the Property, which is what Mr Kaney

ultimately wanted to achieve.

33. On 17 February 2016, Mr Kaney registered the orders in the Magistrates Court in an

endeavour to enforce them. See s 71 of the ACAT Act. This enables enforcement

action to be taken under Pt 2.18 of the Court Procedures Rules.

34. Unfortunately, however, the Magistrates Court has, as noted above (at [29]), no

jurisdiction to make an order for the recovery of possession of land. See r 2440 of the

Court Procedures Rules 2006 (ACT). Any such enforcement must to be undertaken in

the Supreme Court.

35. Thus, under s 270 of the Magistrates Court Act, Mr Kaney sought transfer to this Court

of the proceedings so as to enforce what he appears to have thought was an order

made by the ACAT for delivery of possession of the Property, a remedy only available

in this Court.

36. The matter came before the Registrar on 7 November 2016, who dispensed with the

requirement to serve Mr Rushton personally with the application for transfer. The

Registrar was satisfied that the delivery of a sealed copy of the Application in

Proceedings and supporting affidavit by placing it in the letter box on the Property and

sending a scanned copy of each document by email to “two email addresses that

[Mr Rushton] had used in the past to communicate with [Mr Kaney’s lawyer]” was

sufficient.

37. It is not clear whether the Registrar was relying on the dispensing powers under r 6 of

the Court Procedures Rules or relying on the provisions of r 6461 which permit informal

service to be accepted as service for the purpose of Pt 6.8.

38. Because there was some doubt as to whether the order of the ACAT was directly

enforceable by this Court, the Supreme Court Registrar also directed Mr Kaney to

issue an Originating Application seeking an order for delivery of possession of the

Property. No doubt the order of the ACAT would have been strong evidence in support

of such an application.

39. As it is relevant, the precise orders made by the Registrar were:

1. That the proceedings in the Magistrates Court no. CS16/00111 be removed into the Supreme Court.

2. The name of the plaintiff is amended to read ‘Mark Desmond Kaney’.

3. The plaintiff is permitted to issue an originating application in these proceedings (noting that the filing fee has already been paid), seeking an order that the plaintiff be entitled to possession of the land, the subject of these proceedings, and returnable before Justice Refshauge at 9:30am on 25/11/16.

4. I dispense with the need for any further affidavits to be filed.

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‘One who exercises jurisdiction out of his territory cannot be obeyed with impunity’ as ‘impunity’ in the international law of human rights, refers to the failure to bring perpetrators of human rights violations to justice’. [10 Co. 77; Dig. 2. 1. 20; Story, Confl. Laws § 539; Broom, Max. 100, 101.]
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9

5. The affidavits filed to date in these proceedings are to be the affidavits in support of the originating application.

6. The originating application, all supporting affidavits must be personally served on the defendant.

7. I dispense with any Rules inconsistent with these orders.

40. The proceedings have now come before me. There are a whole range of matters to be

considered in this overly complex matter.

Service and hearing

41. Mr Rushton was not present at the hearing before me. He was called and did not

appear. He had not been served personally with the Originating Application, though

service of the application for transfer has been either considered unnecessary or the

Originating Application was taken to have been served on him.

The law

42. Ordinarily, service of the originating process is fundamental to the exercise by a court

of its jurisdiction, as notice is essential to the principle of natural justice on which the

administration of justice is founded: City Finance Co Ltd v Matthew Harvey & Co Ltd

(1915) 21 CLR 55 at 60; Commonwealth v Davis Samuel Pty Ltd (No 11) [2017]

ACTSC 2 at [115]-[116].

43. Proceedings can be taken where a party has not had notice of the proceedings, but

that is an extraordinary jurisdiction and ordinarily exercised in strictly limited

circumstances, such as in the case of urgency where irreparable damage is likely to be

suffered were the court not to provide a remedy to which the moving party is entitled:

Magdalen College, University of Oxford v Ward (1839) 1 Coop. T. Cott. 265 at 274;

47 ER 849 at 852.

44. The circumstances relevant to a consideration of this matter are these.

45. There are no provisions in the ACAT Act relating to service of documents or addresses

for service nominated by parties as there are for proceedings in the Magistrates Court

and in this Court. Although Rules have been made under s 24 of the ACAT Act, they

make no provision for service or an address for service. The provisions of Pt 19.5 of

the Legislation Act 2001 (ACT) would, therefore, appear to apply, in which s 247

permits a document to be served on an individual by leaving it, addressed to the

individual, at his or her house.

46. Nevertheless, as noted above (at [24]), Mr Rushton was present when the orders of the

ACAT were made. As the filing of an unconditional notice of intention to respond

waives any irregularity of service (Sheldon v Brown Bayley’s Steelworks Ltd and

Dawnays Ltd [1953] 2 QB 393 at 400; Commonwealth v Davis Samuel Pty Ltd (No 11)

at [124]), so his presence at that hearing waived any irregularity of service. Indeed, it

may even waive absence of service, subject to any necessary adjournment and the

provision of the relevant originating process to him. There was, of course, no notice

required to be given to Mr Rushton, nor any given, when the orders of the ACAT were

filed in the Magistrates Court under s 71 of the ACAT Act.

47. When it was decided to apply to this Court for transfer of the proceedings, being the

registered judgment, the application was made by Application in Proceedings under

Pt 6.2 of the Court Procedures Rules. This is the standard procedure, but does not

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Maxim of Law: "No one ought to (testify) accuse himself, unless before God."
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Maxim of Law: "Fraud (or deceit) giving rise to the contract; that is, a fraudulent misrepresentation made by one of the parties to the contract, and relied upon by the other, and which was actually instrumental in inducing the latter to enter into contract." Dolus dans locum contractui.
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Special Appearance, is an appearance only to challenge jurisdiction. “Jurisdiction can be challenged at any time, even on final determination.” (Basso v. Utah Power & Light Co., 495 2nd 906 at 910).
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‘Administration of Justice’, as that may be affected by the violation of constitutional rights and freedoms.”

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appear to be mandated or permitted by the Court Procedures Rules, though a note to

r 1450 does suggest that it is the correct procedure. I will address that issue below.

48. Ordinarily, such a transfer is sought in circumstances where the substantive

proceedings have been begun in the Magistrates Court by Originating Application or

Originating Claim which, as required by the Court Procedures Rules, will have been

served personally on the defendant. That would permit service of documents

thereafter in the Magistrates Court proceedings either at an address for service

(r 6420) or by filing the document (r 6421).

49. When the judgment of the ACAT is “taken to have been filed” in the Magistrates Court

under s 71 of the ACAT Act, the consequences are not clear. In other contexts, it is

specified that the registration of a judgment in another court results in the registered

judgment having the same force and effect as if the judgment had been given in the

court in which it was registered. See, for example, s 105 of the Service and Execution

of Process Act 1992 (Cth); s 6 of the Foreign Judgments Act 1991 (Cth). Curiously,

such a provision does not appear in the ACAT Act. It is not clear why it does not.

50. The reference to “filing” the judgment of the ACAT is also curious. Filing of a document

does not make it in any sense effective. For example, pleadings are filed but liable to

be struck out; affidavits are filed but often not read or parts of them not read.

51. Ordinarily, “filing” means simply placing a document on the court file: In re Commercial

Union Assurance Co (Ltd) (1899) 18 NZLR 585 at 588. There is a distinction between

lodging a document at the court registry and filing the document: Angus Fire Armour

(Australia) Pty Ltd v Collector of Customs (NSW) (1988) 19 FCR 477 at 487-9.

Lodgement is the act of the party or other litigant; filing is the act of the staff of the

Registry. It is clear from that decision that the steps between lodgement and filing are

formal – whether the document is in the prescribed form, if any, whether any applicable

fee has been paid and so on. It may also involve a check to see that the document is

not one that should be rejected for any of the reasons set out in Div 6.3.3 of the Court

Procedures Rules or otherwise. These matters, however, do not seem to me to imply

that filing has any effect on the efficacy of the document or affects its effect.

52. In any event, this distinction may have been blurred or extinguished by the definition in

Pt 1 of the Dictionary of the Legislation Act which applies the definitions in that Part to

all Acts and statutory instruments: s 44. The definition is that “file includes lodge”.

53. The Explanatory Statement to the Bill which became the ACAT Act is, as is regrettably

so often the case, of no assistance at all, merely paraphrasing the effect of s 71 of that

Act.

54. I shall deal with the consequences of that later in these reasons, but it seems to me

that the effect of the fact that the judgment of the ACAT having been taken to have

been filed in the Magistrates Court would be that it was then registered in that Court

and, in the context, that it has at least the effect that the proceedings are before that

Court, that is, the proceedings in the ACAT in which Mr Rushton appeared now being

before that Court. It would appear also intended by s 71 of the ACAT Act that the

orders of the ACAT could be enforced.

The facts

55. There was no Notice of Intention to Respond filed by Mr Rushton in the Magistrates

Court following registration of the judgment under s 71 of the ACAT Act, nor, in the

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11

circumstances, would that be expected, as there was no occasion for it. There was,

therefore, no address for service for him in that Court. That is unsurprising for he had

not been, nor required to be, served with any notice of the proceedings “moving” into

the Magistrates Court.

56. Then application was made under s 270 of the Magistrates Court Act for the transfer of

the proceedings to this Court, for the reasons mentioned above (at [35]). Mr Kaney

made application by Application in Proceedings as noted above (at [36]). He attempted

to serve Mr Rushton with that application by leaving it in a sealed envelope at the

Property where Mr Rushton resided, containing a sealed copy of the Application in

Proceedings and the supporting affidavit of his solicitor, Mr S Whitbourne.

57. He also caused an email to be sent to Mr Rushton attaching scanned copies of the

sealed copy of the Application in Proceedings and the supporting affidavit to two email

addresses that Mr Rushton had previously used to communicate with him. One of

those addresses rejected the email, but the other did not.

58. On 10 November 2016, he received a response to the unrejected email with what can

only be described as a curious response as follows:

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Australian Human Rights Commission Act, 1986 (Cth), Schedule 2, International Covenant on Civil and Political Rights, inter alia: http://www.austlii.edu.au/au/legis/cth/consol_act/ahrca1986373/sch2.html Article 5 - 1. Nothing in the present Covenant may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms recognized herein or at their limitation to a greater extent than is provided for in the present Covenant. 2. There shall be no restriction upon or derogation from any of the fundamental human rights recognized or existing in any State Party to the present Covenant pursuant to law, conventions, regulations or custom on the pretext that the present Covenant does not recognize such rights or that it recognizes them to a lesser extent. 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. 2. Everyone has the right to the protection of the law against such interference or attacks. Article 18 - 1. Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching. 2. No one shall be subject to coercion which would impair his freedom to have or to adopt a religion or belief of his choice. Article 22 - 1. Everyone shall have the right to freedom of association with others, (or not to associate with others) for the protection of his interests.
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59. From this email, it must be accepted that Mr Rushton received the relevant documents

at least by 10 November 2016.

Consideration

60. In those circumstances, it seems to me that this would be sufficient to show informal

service, which is a form of retrospective substituted service. Rule 6461 of the Court

Procedures Rules makes such provision. It is in the following terms:

(1) This rule applies if –

(a) a document is not served on a person as required or allowed by this part but the document or a copy of it comes to the notice of the person; and

(b) the court is satisfied that the document came to the person’s notice on or before a particular day.

Note This rule does not apply to a criminal proceeding (see r 4006 (Criminal proceedings -application of pt 6.8)).

(2) The court may, by order, decide that the document was served on the person on the day stated in the order.

Note Pt 6.2 (Applications in proceedings) applies to an application for an order under this rule.

(3) For any provision of these rules requiring personal service of a document on a person, the document is taken to have been personally served on the person on that day.

61. What seems on the authorities to be important is what is required by r 6461(1)(b) of the

Court Procedures Rules, namely that the document comes to the actual notice of the

person to be served. This rule has, so far as I can determine, received no judicial

consideration. A similar rule in the Uniform Civil Procedure Rules 1999 (Qld) has,

however, been considered a number of times by the District Court of that State.

62. It is clear from Murphy v Green [2002] QDC 010 at 4, that an essential aspect of the

rule is that the relevant document has actually come into the possession of the person

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Without Prejudice [UCC 1-308], which will render the unit non-assumpsit and reserves all Rights upon the said instrument. “Without Prejudice” is “notice” to agency of reservation of all rights that a “suggestion” has been made to deny jurisdiction [per USC 28a Rule 12 (b)]. “Without Prejudice”, gives notice that I elect to reserve my "right to remain silent" and thereby, will estoppel the agency and stay the matter at the administrative level [per USC 28a Rule 12 (h) (3)]. “Color of law” statutes are very clear and usually devoid of any valid implementing regulation, and thereby, “the court shall dismiss the action” as unlawful and void ab initio. “Without prejudice’ [UCC 1-308], will stand as rebuttal, ‘answer’ and ‘discovery’ ‘prima facie’ on the Administrative record as notice to ‘abate.” Agency gets into much difficulty via fraud should it attempt to raise a “dead in Law” issue, without ‘privity of contract’ in assent. “Remedy” is final within The Uniform Commercial Code.
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"Waivers of Constitutional Rights not only must be voluntary, they must be knowingly intelligent acts, done with sufficient awareness of the relevant circumstances and consequences." Brady v. U.S., 379 U.S. 742 at 748 (1970)

13

to be served. That it has, however, may be inferred from the circumstances appears

from what was said in Deputy Commissioner of Taxation v Cooney [2004] QDC 478

at 4.

63. Another similar rule, r 10.14(3), in the Uniform Civil Procedure Rules 2005 (NSW) has

also received consideration. Thus, in WFM Motors Pty Ltd v Maydwell (Unreported,

Supreme Court of New South Wales, Bryson J, 23 April 1993), “informal” service was

confirmed when the originating process had not been served on the defendant but an

ex parte Mareva injunction had been made and, on the return of the application for it,

counsel for the defendant appeared and announced a conditional appearance for the

defendant. The defendant also made an application for a declaration that the Court had

no jurisdiction. These acts of the defendant were sufficient to show that the defendant

could be said, as in the earlier decisions, to have had actual notice of the proceedings.

64. In Vista Capital Developments Pty Ltd v Talmarc Pty Ltd [2008] NSWSC 935, the

eighth defendant was not served with the Amended Summons by which he was joined

as a party but a lawyer subsequently corresponded with the plaintiff’s lawyers,

purporting to act for him and then appeared in Court, announcing an appearance for

him and other defendants. The Court held that this was sufficient to find that the

Amended Summons was taken to have been served on him.

65. Thus, these authorities seem to require a satisfaction by the Court that there has been

actual notice of the proceedings. This is, perhaps, a little odd when considering that an

order for substituted service, which is as effective to constitute the proceedings, though

there has not been personal service, will, if properly effected according to the terms of

the order for it, be deemed to be personal service if, when personal service is a

“practical impossibility”, the method of service is “one which will in all reasonable

probability, if not certainty, be effective to having knowledge of the writ ... to the

defendant”: Porter v Freudenberg [1915] 1 KB 857 at 889. In Amos Removals

& Storage Pty Ltd v Small [1981] 2 NSWLR 525 at 528, Hunt J described the

requirement as being that the method of substituted service “would with reasonable

probability be effective to bring notice of the process to the defendants”. This is a

somewhat lesser requirement than that for informal service under r 6461 of the Court

Procedures Rules.

66. In this case, that test seems to me to have been met in respect of the Application in

Proceedings for transfer of the proceedings to this Court that was dealt with by the

Registrar, especially in the light of the email response received on 10 November 2016.

That is to say, Mr Rushton was taken to have been served with the Application before it

was heard on 14 November 2016.

67. It is curious that an application to transfer proceedings into the Supreme Court is made

by an Application in Proceedings. That document is generally an interlocutory process

and not an originating process, even though the proceedings are starting afresh in the

Supreme Court. It seems that the procedure grew out of a concern that, were an

Originating Application to have been used, the parties would be required to pay two

filing fees – one in the Magistrates Court and one in the Supreme Court.

68. I am not convinced that this is so. Item 1210 of the Schedule to the Court Procedures

(Fees) Determination 2016 (No 2) (ACT) makes it clear that a reduced fee ($434 for an

individual and $868 for a corporation, compared with $1605 for an individual and $3211

for a corporation for lodging an originating process) is payable for “lodging an

application for the removal or transfer to the Supreme Court proceedings commenced

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in the Magistrates Court”. This is, in fact, somewhat less than the difference between

the ordinary filing fees in the two Courts respectively.

69. Thus, use of an Originating Application for such a transfer application would not

disadvantage the applicant so far as fees were concerned, though it would be required

to be served personally under r 61 of the Court Procedures Rules. That could be

considered for reform, though in a case like this, it may be desirable to have personal

service where there have been no real proceedings of substance in the Magistrates

Court from which the transfer is sought.

70. Indeed, an Originating Application has been used on occasion: Duratech Industries Pty

Ltd v Cube Furniture Pty Ltd [2014] ACTSC 405 at [2].

71. This may be an issue that should be considered by those responsible for the Court

Procedures Rules.

72. Mr Rushton has had the following access to the documents before me. Documents

have been sent to two email addresses from one of which he has responded and to an

address to which he has access.

73. These were unsealed copies of Originating Application dated 16 November 2016 and a

draft of the Orders made on 14 November 2016 by Registrar Glover.

74. Sealed copies were then sent on 23 November 2016 by email to the address from

which a response had earlier been received as noted above (at [58]).

75. Also at 7:30 pm on 23 November 2016 a sealed copy was delivered to the address of

the Property where documents had been left for him in the past and received because,

as a result, he appeared at the ACAT hearing. At the time of delivery on this occasion,

the house appeared occupied with mown lawns and a tended garden. There was no

unsolicited mail in the letter box as may be expected in an unoccupied house,

suggesting that the mail box was reasonably regularly cleared. An earlier letter also

delivered in this way was no longer in the letter box.

76. Although no response has been received and no appearance, I am reasonably

satisfied that these proceedings have come to the notice of Mr Rushton.

77. Accordingly, although I was initially concerned at the hearing that I needed greater

certainty of actual notice before making an order under r 6461 of the Court Procedures

Rules, I am now satisfied that I can take it that the Originating Application has been

served on Mr Rushton.

78. I am also satisfied that Mr Rushton’s position will be protected, for he has a remedy if

he did not have notice of the proceedings and, as a result of that, he was absent. In the

first place, r 1613(2)(a) of the Court Procedures Rules would permit the Court to set

aside any order made in Mr Rushton’s absence and so he would not be left without a

remedy were he not to have had actual notice of the proceedings. In the second place,

absence of service may entitle him to have the judgment set aside ex debito justitiae.

Enforcement Powers of the Magistrates Court

79. It is reasonably clear from s 71 of the ACAT Act that it is intended

that the enforcement of orders of the ACAT be effected through the established

procedures under the Magistrates Court Act. It would be preferable were this to be put

beyond doubt as noted above (at [49]).

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Commonwealth Crimes Act 1914 – s. 85Q Forgery of postal messages etc., s. 85T sending false postal messages; Commonwealth Criminal Code Act 1995 - 137.2 False or misleading documents, Div. 134 - Obtaining property or a financial advantage by deception; 18 U.S. Code § 1341 - Frauds and swindles, § 1342 - Fictitious name or address, § 1962 - Prohibited activities; UNIDROIT Art 3.2.5 – Fraud.
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Commonwealth Crimes Act 1914 – s. 85Q Forgery of postal messages etc.
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Commonwealth Crimes Act 1914 – s. 85Q Forgery of postal messages etc.
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Occupant. One who occupies and takes possession, one who has the actual use, possession or control of a thing. [Black’s Law Dictionary, 4th Ed.] He derives his title of occupancy either by taking possession of a thing without an owner, or by purchase, or gift of the thing from the owner, or it descends to him by due course of law. [See Bouvier Law Dictionary 6th Ed.]
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80. Section 258 of the Magistrates Court Act sets out the powers that the Magistrate Court

has to grant relief or remedy in relation to proceedings within its jurisdiction. That

section is as follows:

258 Power of court to grant relief

(1) In any proceeding that the Magistrates Court has jurisdiction to hear and decide –

(a) the court may grant any relief, redress or remedy that the Supreme Court may grant in a similar action in that court, and for that purpose the Magistrates Court may make any order that the Supreme Court may make; and

(b) the court must give effect to any ground of defence, counterclaim or set-off, whether equitable or legal, in the same way and to the same extent that the Supreme Court would do.

(2) For the exercise by the Magistrates Court of its powers under subsection (1) in any proceeding –

(a) a magistrate constituting the court has, as well as any other powers under this Act, all the powers of a judge in a similar action in the Supreme Court; and

(b) the registrar, bailiff or other appropriate officer of the Magistrates Court must exercise any function that a corresponding officer of the Supreme Court would exercise in a similar action in that court in accordance with the practice and procedure of that court.

(3) In exercising a function mentioned in subsection (2), the registrar, a bailiff or other officer of the court must comply with this Act, the rules and any order of the Magistrates Court.

81. This section is in similar terms to provisions in other jurisdictions, such as s 55 of the

District Court of Western Australia Act 1969 (WA), which replaced s 33 of the Local

Court Act 1904 (WA) and s 11 of the Magistrates Court (Civil Proceedings)

Act 2004 (WA). These have been the subject of consideration a number of times.

82. It is clearly accepted that such a provision does give the Magistrates Court the power

to grant equitable remedies: Hondros v Chesson [1981] WAR 146 at 147. The power,

however, has been held to be limited to ancillary relief or an auxiliary power and not to

be the principal relief to be sought: Murcia & Associates (A Firm) v Grey [2001]

WASCA 240; 25 WAR 209 at 214; [19]-[20], citing Commercial Developments Pty Ltd

(t/a Don Rogers Motors Pty Ltd) v Mercantile Mutual Insurance (Workers’

Compensation) Ltd at 217, 221. See also Matthews v Bayview Holiday Village Pty Ltd

(1990) 2 WAR 167.

83. So far as the Local Court in Western Australia (now the Magistrates Court) see, to the

same effect, The Lunching Pad Pty Ltd v Minister for Culture and the Arts [2001]

WASC 299 at [14]-[15].

84. The view that such equitable remedies are limited and so as to be ancillary to primary

relief within jurisdiction is supported by the view of the High Court in Pelechowski

v Registrar, Court of Appeal (NSW) [1999] HCA 19; 198 CLR 435.

85. Accordingly, it seems to me more likely than not that, unless a trespass application in

the ACAT seeks to claim as the principal relief damages for trespass, then the ACAT

may well have no power to make a declaration or an injunction.

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Reversion. the right, esp. of the original owner or their heirs, to possess or succeed to property on the death of the present possessor; a property to which someone has such a right; the 'right of succession' to an office or post after the death or retirement of the holder.

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86. Further, there must be some doubt about the enforcement of any injunction made.

Clearly, the ACAT has no such power. Section 71 of the ACAT Act makes it plain that

enforcement is a matter for the Magistrates Court.

87. Action for contempt against a person who breaches a court order, such as an

injunction, is the usual remedy: Witham v Holloway (1995) 183 CLR 525 at 530, 539.

Under s 307 of the Magistrates Court Act, the Magistrates Court may deal with a

person for contempt in the same way as may the Supreme Court. The Magistrates

Court may have had this power without such a provision: Rose v Laskington Ltd [1990]

1 QB 562 at 570. As the section also provides, this does not exclude the power of the

Supreme Court to deal with contempt of the Magistrates Court, a common law power

but it has always had: 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) at 8.

88. It is, however, unclear that the Magistrates Court has the power to deal with a person

who is in contempt not of its own order, but of an order of the ACAT. Section 307 of

the Magistrates Court Act does by no means make that clear, especially in the absence

of a provision that makes an order of the ACAT into an order of the Magistrates Court,

to which latter order, s 307 is directed.

89. While this may seem a limited interpretation, such a power could be used to interfere

with the liberty of a person subject to an ACAT order and a statute should not be

construed to take away a right or liberty without express words or necessary

intendment: Potter v Minahan (1908) 7 CLR 277 at 304. This is especially so where the

provision is a penal provision, likely to effect the liberty of the subject: Scott v Cawsey

(1907) 5 CLR 132 at 154-5; R v Johnson [1962] QWN 37.

90. It is, however, undesirable that the occasion for the exercise of this power be so

unclear.

91. Nevertheless, none of this provides jurisdiction for the Magistrates Court to enforce an

order for the recovery of possession of premises as no action of this kind is within the

jurisdiction of the Magistrates Court unless given by another statute. Thus, for example,

the Magistrates Court has jurisdiction to order and enforce the eviction of a tenant

under a lease for retail or commercial premises, and certain others, under Div 12.5 of

the Leases (Commercial and Retail) Act 2001 (ACT). The ACAT has a similar power

under the Residential Tenancies Act 1997 (ACT).

92. None of those powers, however, were relevant here or were available for the redress

sought by Mr Kaney.

Proceedings in this Court

93. There is no doubt that, when an issue arises in Magistrates Court proceedings over

which that Court has no jurisdiction, it is appropriate that the proceedings be

transferred to this Court. An example would be where, in debt proceedings, a

defendant counter-claims for an amount that exceeds the jurisdictional limit of the

Magistrates Court: Duratech Industries Pty Ltd v Cube Furniture Pty Ltd.

94. In this case, however, the proceedings have concluded with final orders made and the

only question is enforcement. It seems to me quite unsatisfactory that orders within

jurisdiction cannot be enforced by the ordinary processes of the body that makes the

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“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]

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final orders or, in this case, the body charged with enforcing them, namely the

Magistrates Court.

95. It was submitted to me that the orders of the ACAT made on 21 December 2015 were

orders for the recovery of land. I do not think that there is any magic formula for the

terms in which such an order is expressed, but it does seem to me that the ACAT has

no power to make such an order. It may have articulated the order, but it is a nullity for

the ACAT has no such jurisdiction.

96. If, however, it was intended that it have such a power, then attention should have been

paid to the question of its enforcement by the ordinary processes available for

enforcement of orders of the ACAT, namely under s 71 of the ACAT Act, which would

require attention to be given to the enforcement of such orders in the Magistrates

Court, or, alternatively, registration of the orders of the ACAT in this Court.

97. The absence of this power may be an indication that no such jurisdiction was intended

to be given to the ACAT on the hearing of a trespass action.

98. In any event, in this case, the question of the title to the Property was genuinely in

issue for Mr Kaney had never had possession of the Property and so was not in a

position to prove a greater right to possession from, for example, prior possession. He

had to prove his title.

99. Accordingly, my view was that, insofar as the fifth order made by the ACAT on

21 December 2015 was an order for the recovery of land, it was beyond power. There

was, therefore, no valid order to be enforced.

100. One further matter may be raised. Once the registered judgment (the proceedings) in

the Magistrates Court had been transferred by the Registrar into this Court, it became

proceedings in this Court.

101. Rule 1600 of the Court Procedures Rules provide:

1600 Orders – required by nature of case

(1) On the application of a party to a proceeding, the court may, at any stage of the proceeding, make any order that the nature of the case requires.

Note 1 Pt 6.2 (Applications in proceedings) applies to an application for an order under this rule.

Note 2 Order is defined in the dictionary to include judgment (see also def made).

(2) The court may make the order even if there is no claim for relief extending to the order in the originating process, statement of claim, counterclaim or similar document.

102. Such wide and apparently unlimited powers have given rise to problems of

interpretation in the past.

103. Giving this rule its literal interpretation, it would suggest that the Magistrates Court

could have, on the filing of the orders of the ACAT under s 71 of the ACAT Act, made

an order for recovery of possession of the Property in favour of Mr Kaney.

104. The authorities that have considered similar rules in other jurisdictions have not

suggested that the power given by the rule extend to making an order that would not

otherwise be within the jurisdiction of the Court to make.

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105. However, I do not consider that this is the correct interpretation of this rule. In any

event, the enforcement procedures would still not be available for the Court Procedures

Rules limits them to the Supreme Court as noted above (at [34]).

106. As required by the Registrar, however, the Originating Application sought an order for

recovery of possession of land. I, therefore, considered that application.

107. I read the affidavit in support of the Originating Application and heard some short oral

evidence of Mr Kaney’s solicitor. From this evidence, I can make the following findings.

108. At present, Mr Rushton has no apparent right to possession or occupation of the

Property. The evidence before me shows that he is not a registered proprietor, he has

had no licence or other permission from the registered proprietor to possession or

occupation of the land. He can point to no tenancy. He has no interest in the Estate of

the late Ms Rushton that would give him an interest in the Property of any kind.

109. He is, as the ACAT described it, a trespasser. In my view, I can rely on that order of the

ACAT as a finding inter partes following a hearing of the trespass application to support

these findings.

110. Mr Kaney has, as required, stated with appropriate particularity the nature and details

of his right to the Property. See Phillips v Phillips (1878) 4 QBD 127. He relied on a title

search of the Property and produced a copy of the Probate granted to him as Executor

of the Estate of the late Ms Rushton.

111. In these circumstances, Mr Kaney is entitled to an order for the possession of the

Property.

112. Mr Kaney had, in my view, shown that he was entitled to possession of the Property as

the Executor of the Estate of Ms Rushton and that there was no countervailing interest

of Mr Rushton. Thus, the conditions for an order for an order for recovery had been

satisfied. See Allen v Roughley at 108.

113. Accordingly, I made the orders sought.

Further comments

114. It seems to me undesirable that these proceedings should have become so complex.

Clearly, some thought needs to be given to what actual powers it is intended that the

ACAT be given when considering a trespass application and, if the restricted view I

have taken does not find favour with the legislature, then appropriate amendments

need to be made.

115. I commend these comments to the appropriate authorities.

I certify that the preceding one hundred and fifteen [115] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Refshauge.

Associate:

Date: 2 February 2017

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A void order results from a ‘fundamental defect’ in proceedings (Upjohn LJ in Re Pritchard (deceased) [1963] 1 Ch 502 and Lord Denning in Firman v Ellis [1978] 3 WLR 1) or from a ‘without jurisdiction’/ultra vires act of a public body or judicial office holder (Lord Denning in Pearlman v Governors of Harrow School [1978] 3 WLR 736).
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The Supreme Court of Canada has made it clear in M. (A.) v. Ryan, 1997 (SCC), [1997] 1 S.C.R. 157, that the common law must develop in accordance with Charter (ICCPR - human rights) values. A Trespass in common law equals an infringement or denial of a fundamental right or freedom. Our right to security of the person under s. 7 has been found to include protection from psychological trauma which can be occasioned by an invasion of our privacy. Finally, the common law torts of defamation and trespass further recognize the validity of an individual’s claim to fundamental privacy interests.
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18 U.S. Code § 1951 - Interference with commerce by threats or violence
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[see 15 U.S. Code § 8112 - Intellectual property enforcement, 18 U.S. Code § 1341 - Frauds and swindles; 18 U.S. Code § 1342 - Fictitious name or address; 18 U.S. Code § 1951 - Interference with commerce by threats or violence; 18 U.S. Code § 1962 - Prohibited activities; Deu. 31:26; Commonwealth Criminal Code Act (1995) – Div. 134 - Obtaining property or a financial advantage by deception, s. 137.2 False or misleading documents, Div. 270 - Slavery and slavery like conditions, s. 142.2. Abuse of public office, s. 268.10 Crime against humanity - enslavement, Div. 271 - Trafficking in persons and debt bondage, s. 271.8 Offence of debt bondage; Commonwealth Crimes Act (1914) – s.85Q Forgery of postal messages etc., 85U, 85T; UNIDROIT Art 3.2.5 – Fraud; UCC § 2-302 - Unconscionable contract or clause; UCC § 1-305. Remedies to be Liberally Administered; 18 U.S. Code § 1621 - Perjury generally]
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See 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
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Nullity. Properly, that which does not exist; that which is not properly in the nature of things. In a figurative sense, and in law, it means that which has no more effect than if it did not exist, and also the defect which prevents it from having such effect. That which is absolutely void (fictitious). [See Bouvier Law Dictionary 6th Ed.]