THIS WAS MY ARGUMENT AGAINST SPENDERS DECISION TO BANKRUPT US
THIS IS THE CASE THEY ARE USING AGAINST ALL OTHERS THAT WANT A JURY
TRIAL
TO MY KNOWLEDGE THERE ARE NO OTHERS
ALL QLD STATUTES REFFERED TO ARE "LAWS OF THE COMMONWEALTH" AND BY THE
CHOICE OF LAWS CAN BE USED BY ANYONE.
THE CRIMINAL ACT OF DENYING OUR RIGHT WAS DELIVERED BY DRUMMOND HE
SLINKED INTO THE COURT LIKE A MOUNGREL DOG AND WENT MUMBLE MUMBLE , NO
ONE UNDERSTOOD WHAT HE SAID AND HE LEFT LIKE A DOG SHOT UP THE ARSE.
THE OTHER JUDGE WAS DOWSETT WHO REFUSED US DISCOVERY AND SHIT ALL OVER
US AND SO SAT IN HIS OWN CAUSE.
THE OTHER WAS KATZ I THOUGHT HE WAS OK , HE WAS EITHER GOT AT OR WAS
OUTVOTED BUT DID NIT GIVE A DECENTING JUDGMENT.
SO HE IS MADE OF THE SAME SHIT IN MY BELIEF.
THEIR FORGED REASONS (SEE BROTT V THE QUEEN) ARE ON THE FEDERAL COURT
SITE
COL
In the Federal Court of Australia
No 245 of
1999
Brisbane District Registry
Court of Appeal
Between
Colin Richard Hubner and Yvonne Hubner Appellants
And
Australia and New Zealand Banking Group
Limited Respondent
WRITTEN SUBMISSION.
Rights never die. Maxim: Bouvier Law Dictionary.
An umpire never decides the outcome of the game. He is supposed to
know the rules, but the players play the game. The umpire as a party is
not fair or just. Without a jury, the judge becomes a player.
1. When the judge becomes a player and the Court of Appeal the third
umpire, it must quash the decision or send the game back, to be played
again, according to the rules
2. This Appeal involves fundamental principals of jurisprudence, serious
Constitutional and States rights issues, the rights of the citizen and
whether it is "ultra vires" the Commonwealth Parliament to subvert those
rights.
3. In a court proceeding a citizens r ight to have disputed facts found
by a jury is a matter of contractual obligations between Her Majesty and
the people. This inherent Right is found in the Statutes of the Realm
and are reinforced by power of the Commonwealth of Australia
Constitution Act1900 and the enacting under the power of Clause 5 of
that Act : State and Territorial Laws and Records Recognition Act
1901. (2)
4. The Statutes (the original contracts) disclose the Appellants are
lawfully entitled to a jury trial as provided for at Federation by
reference to the Supreme Court Act 1867 (Q), Judicature Act 1876 (Q),
Jury Act 1867 (Q), and the Insolvency Act 1874 (Q), Interdict Act 1867
(Q), Oaths Act 1986, Australian Courts Act 1828 and) Section 12 Supreme
Court of Act 1874 (Q), Provisions from which were transferred to the
Supreme Court Act 1991 (Q) Supreme Court Act 1995 (Q)
5. It is a citizens Right to request and a judge has no right to refuse,
as he is sworn on his Oath to uphold the binding contracts between Her
Majesty and the people, sworn upon Her Coronation and emdodied in the
Commonwealth of Australia Constitution Act 1900
6. The central issue is whether the Parliament of the Commonwealth has
power to define the capacity of a judge acting administratively, to
grant himself absolute power, by using the word "may", and defining it
in the Acts Interpretation Act 1901, and whether these changes are
"ultra vires" granted to the Parliament in the Constitution, "ultra
vires" to amend the Jurisdictional Acts of the States, and "ultra
vires" to amend the common law by the use of private consent judgments.
(3)
7. Strictly construed "may" grants a power. Thus, where the exercise of
the power becomes necessary for purposes of the public good or private
justice, it is compulsory. See Re Municipal District of Lambton (No 2 ),
(1899), 20 NSW LR. (L.) 378 ( 4 )
8. The Decision of Justice Spender to use "may" to refuse a jury, can
rightly be classified as an administrative decision, "ultra vires" ,
and this Court has jurisdiction under the Administrative Decisions
(Judicial review) Act 1977 (Section 5) to review his decision and
conduct. In effect, he became a party to the action.
9. Instead of upholding our right, Justice Spender conducted a Trial by
certificate. By the English law, this is a mode of trial allowed in such
cases where the evidence of the person certifying is the only proper
criterion of the point in dispute. For, when the fact in question lies
out of the cognizance of the court, the judges must rely on the solemn
averments or information of persons in such station, as affords them the
most clear and complete knowledge of the truth. (Bouvier.on trial 3.)
(1) Supreme Court Act 1995, Section 199 and 200 (50)
10. As therefore such evidence, if given to a jury, must have been
conclusive, the law, to save trouble and circuity, permits the fact to
be determined upon such certificate merely. If upon notice, the affected
party declines to contest, a judge may decide the fact on the
certificate, but otherwise may not. . 3 Bl. Com. 333; Steph. Pl. 122.
(Bouiver on trial 4) (1 )
11. Re: PETER LAMB And: THOMAS ERVIN MOSS And: BRUCE RAYMOND BROWN
(1983) 76 FLR 296 N.S.W. G63 of 198 Administrative Law - Crown - High
Court and Federal Judiciary COURT IN THE FEDERAL COURT OF AUSTRALIA.
This is a case that may be used against us a justification of Justice
Spenders exercise of discretion. We distinguish this decision on the
grounds it would be wrong to use it in light of the binding Statutes
relied upon in our argument. This use of the word "may" to grant
Justice Spender jurisdiction to become a party on his personal view is
"ultra vires" of Parliament to grant.
12. We say that the use of "may" in the context of Bankruptcy
jurisdiction is ‘ultra vires" of the legislative power of the Parliament
of the Commonwealth.
13. Absolute power is granted to this court to make the orders sought by
Section 16, Administrative Decisions (Judicial review) Act 1977. ( 8 )
14. The Court constituted by three judges is asked to grant the orders,
or if they refuse, send the order back to a judge and jury for review.
15. No Statutory basis is disclosed in the Constitution to create a
Court to try contested matters on certificate.
16. No Statutory basis exists to allow a judge to amend the certificate,
in a contested matter. Not once, let alone twice. Appeal Book Page This
is not the act of am impartial umpire. 322 Paragraph 20 Spender J. Page
507 Leave.
17. The demeanor of Justice Spender was not impartial or courteous, and
not consistent with the functions of an umpire. Appeal book Page 323 at
5.
18. Likewise in the Applicants Section 37 Bankruptcy Act 1966 Review
applications on the 20th September 1999, in the face of uncontested and
undeniable facts that prove the Court of Appeal was in error, Justice
Spender refused to exercise his power to set their judgment aside.
Appeal book QG 143/98 Page 28-120 QG8/99 Pages 121 to 213
19. If a juryperson behaved like that, it would vitiate the trial, and
this case is no different.
20. Section 5, Administrative Decisions (Judicial review) Act 1977
specifically Sections 5 ,(a), (b), (c), (d), (e), (f), (g), and (h),
apply to the administrative decision to refuse to grant a jury trial. (
8 )
21. It is the right of the Appellants to apply to have those judgments
made without complying with the statutory basis precedent to
jurisdiction declared void. ( 3 )
22. A judge has a duty to address all lawfully brought applications on
matters of law. Justice Spender refused to do his public duty on the
Order 29 Application, Appeal Book 491 and 492.
23. To be fair, a judge must not act administratively, to undermine or
pervert the judicial power of the Commonwealth and with a motion filed
for the uplift of this matter, to the High Court, Appeal Book, Pages
399-403, the administrative decision to continue, prejudiced the power
and authority of the High Court to the prejudice of the Applicants.
24. The International Covenant on Civil and Political Rights Articles
2, 14 and 26 provides we are all equal before the law, and we must
accept Justice Spender as an umpire, but do not have to accept him as a
judge of facts.
25. It can rightly be argued, that Section 38 (a) Judiciary Act 1903
(Cth) applies and that exclusive jurisdiction stripped Spender J of the
right to sit, and jurisdiction .
26. This appeal, Grounds 1 and 2 Page 521 Appeal Book, is about the
failure to apply the Rule of Law and maxims of Equity.
27. It is the duty of a judge by the command of Section 22 of Federal
Court of Australia Act 1976 to dispose of a matter in one sitting if at
all possible. ( 5 )
28. If ‘May" is to be used to pervert that statutory command, it is
"ultra vires"
29. Judges in Court possess administrative power, and are entrusted with
that administrative power, upon condition that they constitute the Court
according to law.
30. If the Court is properly constituted, with a jury, the Court of
Appeal only has the function of reviewing the instructions to the jury
by the judge. ( 5 )
31. Jury decisions are unappealable if the judge has performed his
function correctly. (7 )
32. Justice Spender was derelict in his public duty to dispose of this
action and has given cause to approach this Court of Appeal with a
complaint about his administrative decision to refuse a jury and not
address the order 29 application.
33. An Appeal court has jurisdiction to deal with questions of law. It
can also review courts that decide questions of fact, (but cannot review
the facts themselves) that act outside jurisdiction, by purporting to
find questions of fact without consent and without empanelling a jury,
and order the court to go back at nisi prius and constitute itself
properly to determine the facts of this case Section 5 ( c ) and (d)
Administrative Decisions (Judicial review) Act 1977 (8)
34. Administrative Decisions (Judicial review) Act 1977 is the
jurisdiction we are asking the court to exercise.
35. This appeal concerns the Appellants right as citizens of the State
of Queensland, a member State of the Federation of States, called the
Commonwealth of Australia.
36. This Appeal concerns the right of citizens of a State to have their
dual citizenship and right recognized and respected by the Governor
General of Australia. He is the delegate of Her Majesty and his
delegates are the judges, according to law and equity.
37. A court is described as an "incorporeal political entity"
(Bouvier). As its function is political, its constitution must involve
electors as judges, for any competence to ensue. This right goes back to
Roman times. ( 9 )
38. The Appellants right in this democracy, is to have facts found by a
jury of electors with the same rights as ourselves, our peers, when
specifically requested. ( 10 )
39. It is as of right to have the executive power exercised by the
Governor General and his delegates, the judges, only after facts are
found, by consultation with 12 representatives of the common people with
one vote each, and make the order on their verdict. This relevant
consideration was ignored by Spender J . S 5 (2) (b) Administrative
Decisions (Judicial review) Act 1977.
40. It is "ultra vires" the Parliament of the Commonwealth to use "may"
to validate that act of merger.
41. The right to a jury trial was always a part of the law of the Colony
of Queensland in common law, and statute, as it is in the United States
and remains as of right in a contested matter. The Umpire in a contested
matter is 12 people advised and directed by a judge. If there is an
issue of fact in dispute, the citizen is entitled to insist that the
fact be found by a jury. ( 11 )
42. The Appellants submit that the basic civil right of a jury trial
existing at federation, has never and can never be repealed as a right,
simply by the use of the word "may" .
43. The Parliament of the Commonwealth is constitutionally bound to
uphold that right. ( 11 )
44. If the Federal Court of Australia Act 1976 purports to take away our
right to a jury trial, then it is repugnant to both the Judicature Act
1876 and the Commonwealth of Australia Constitution Act 1900 and it is
repugnant to the retained powers under State laws, in particular those
rights reenacted in Supreme Court Act 1991 and 1995 (Q) ( 12 ) made
valid Federal Law by the State and Territorial Laws and Records
Recognition Act 1901.
45. This Federal Court, can only be constituted under the principles of
law and equity under the Bankruptcy Act 1966 . The common law did not
permit an administrator to find facts: a judge of the Federal Court
cannot either. It is "ultra vires " to effect that end.
46. MEANING OF ADMINISTRATOR. ADMINISTRATION, government. The management
of the affairs of the government; this word is also applied to the
persons entrusted with the management of the public affairs. (Bouvier)
(1 )
47. A Court is a public affair. Spender J was trustee of the judicial
power of the Commonwealth and entrusted with the conduct of the affairs
of the court and he convened the court contrary to statutes binding upon
him, in breach of that trust.
48. The terms of the entrustment of a judge with a Court, was contained
in the Oath a judge was required to take under the Oaths Act 1867 (Q) .
49. The definition of "judge" in Bouvier, to include jury persons, means
that a Court to be competent must have 12 judges of fact and a
president, called the presiding judge.
50. We submit, there has been a failure to recognize the fact, that at
the federation of the Colonies in 1901 the States only gave up
jurisdiction in matters listed in Section 51 in the Constitution. ( 13
)
51. By federating the States did not give to the Federal Parliament
power to create any court that could constitute itself contrary to the
terms of the trust created by Judicature Act 1876, and the common law.
(11 )
52. The trust property is the Court and the judge is the executive
director of that trust whose duty is to see it does its delegated
political function fairly and impartially.
53. The Commonwealth was never given authority to alter that entrustment
of judicial power to it, and its purported changes are "ultra vires" the
Constitution.
54. By merging the power of the people with the power of the Governor
General the Parliament has created a Court that is of no legal effect.
(Just as a member of Parliament elected without a proper election cannot
sit) . It is clearly "ultra vires"
55. De jure judices, de facto juratores, The judges answer to the law,
the jury to the facts.
56. A return to this lawful system would guarantee that a judge /
administrator is free from all outside influences from executive
government or elsewhere in the performance of his administrative
function.
57. Equity suffers not a right without a remedy. 4 Bouv. Inst. n.
3726.. ( 1 )
58. In Huddart Parker V Morehead 8 CLR at 382 and 383 H Cof A 1909,
Isaacs J discourses on the separation of powers: refering to the
commentaries of Sir William Blackstone published in 1768, he says: "
Among other things we may there find the threefold division of
"legislative power" which the learned author says , "is vested by our
constitution in Parliament" (vol 1 p 147) ; The executive power" which
the learned author says is "vested" in the King or Queen , and the
"judicial power" ; and this … "by long and uniform usage of many ages,
Our Kings have delegated their whole judicial power to the judges of
their several Courts". ……..; in other words …..the judicial power is by
constitutional law and usage vested in the Judicature. ( my
emphasis). (14)
59. Blackstone calls the separated power, " The administration of common
justice". At (P 269) " Were it joined with the legislative, the life,
liberty and property of the subject would be in the hand of arbitrary
judges , whose decisions would be regulated only by their own opinions
, and not by any fundamental principles of law; which though legislators
may depart from, yet judges are bound to observe.".
60. Justice Spender ignored the fact that the Appellants, Colin Richard
Hubner and Yvonne Hubner did not give him permission in writing to
administer both the administrative and judicial functions of the court
on the 8th & 20th September 1999.
61. Colin Richard Hubner and Yvonne Hubner are beneficiaries of the
entrustment with judicial power of Justice Spender by the Governor
General , and as such, are absolutely entitled to insist that Justice
Spender carry out the terms of the trust absolutely.
62. The terms of the trust were set out in the Constitution, which has
the effect "inter partes," as a deed. The terms of entrustment were
also contained in the laws of the State of Queensland.
63. By calling the Supreme Court of Australia, the High Court. The
Constitution bound that Court and all below to obey the Judicature Act
1876.
64. The decision Justice Spender made to merge the judicial / jury
function and the judge / administrative functions of the court in
himself without consent of the Appellants, make his decisions nugatory.
( 15 ) & ( 15.1 )
65. The Parliament is bound by the Judicature Act 1876 (Q) and cannot
merge those functions. It is "ultra vires" to do so.
66. Justice Spender merged those functions, in disobedience to the
Constitution and the power of the Jurisdictional Acts of the State of
Queensland binding on him, that protect our basic rights to a jury
trial. His decisions is "ultra vires" .
67. The Principle of the law on this matter is plain. If a judicial
officer acts outside his jurisdiction he is not acting as a judicial
officer at all, and he is in no better position than any one else".
Palmer V Crone (1927) 1 KB p 808 per Talbot J. ( 16 )
68. We submit that Justice Spender failed to demonstrate a
constitutionally valid Head of Power that "might" have vested him with
jurisdiction to constitute the court in this manner. ( 17 )
69. Justice Spender has relied on judicial decisions that purport to
override our legislated and common law rights to a jury trial.
70. Such decisions, when obtained by consent between the parties, are
repugnant to our right to have constitutionally and statutorily
conferred rights upheld by jury trial.
71. When consent is given to a judge to find facts by both parties to an
action, any judgment is a private judgment settling that particular
dispute. It can have no effect on others, irrespective of the reasons
for judgment as it cannot bind the common law, because, by consent,
political power is not called into action.
72. We submit, that this is exactly the same legal position as private
and public Acts passed by the Parliament. A private Act does not bind
the public.
73. An example of a private Act of Parliament was one which dissolved a
marriage. It created no general law, but only a law affecting the
particular parties.
74. It is only when facts in dispute are found by judges of fact, a jury
of 12 common people qualified to vote in a State, that decisions become
public judgments.
75. Only public judgments can then be applied to give guidance in
arriving at a decision binding in similar circumstances : That is the
Common Law.
76. In 1903, "ultra vires" the power of Parliament, the Parliament of
the Commonwealth enacted Section 12 of the High Court Procedure Act
1903 which purported to define the original jurisdiction of the High
Court as exercisable by a single judge. (18) To purport to statutorily
combine the power of the people who delegate their power to Parliament
with the power of a delegate of the Governor General, is not a
separation of powers: It breaches the terms of entrustment with
legislative power. .
77. This section was contrary to Section 77 ( i ) of the Constitution
and was repealed in 1979 by the High Court Act 1979. ( 19)
78. This single unlawful Act has tainted the administration of justice
ever since and although the section is now repealed, the practice of
ignoring the terms of the trust, that arose has continued.
79. In its original jurisdiction, the court is bound to obey Sections
9.117 and 9.118 Constitution and Judicature Act 1876 which defines
Supreme Court. The High Court is constitutionally bound to convene
itself, (as the Supreme Court of Queensland must), with a jury, unless
consent is given for judges to sit alone. ( 20 )
80. The Constitution is silent on the fact finding function of the
Federal Supreme Court, so the laws of the State must apply. It is
"ultra vires" for the High Court of Australia to sit in original
jurisdiction otherwise.
81. By Section 77(i) Constitution it is "ultra vires" the Parliament of
the Commonwealth to legislate otherwise.
82. All superior courts of record must comply with the rules that apply
to the High Court by the Constitution.
83. The Parliament of the Commonwealth was not given any power to
change the fact finding function of any Court. It can control the
quality of advice that the judges give to jurors, by appointing more
than one presiding judge. Section 79 Constitution.
84. The Federal Court of Australia is a superior court of record and is
a court of law and equity. Federal Court of Australia Act 1976
Section 5 (2 ) ( 21 )
85. It performs the merged functions of law and equity and must comply
with the Judicature Act 1876 (Q). ( 11 )
86. The Judicature Act 1876 (Q), provided that notwithstanding any rule
of court, the judging of fact was the function of the jury and the
direction as to the law was the function of the judge. ( 11 )
87. Bouvier states: A jury has been described as a tribunal.
88. Bouvier says "The learned Duponceau has given a beautiful sketch
of this tribunal; "twelve invisible judges," said he, "whom the eye of
the corrupter cannot see, and the influence of the powerful cannot
reach, for they are nowhere to be found, until the moment when the
balance of justice being placed in their hands, they hear, weigh,
determine, pronounce, and immediately disappear, and are lost in the
crowd of their fellow citizens." Bouvier ( 1 )
89. It is binding law that facts found by a jury as judges of fact,
ensure the separation of powers of the common people from the power of
the executive government and a proper jury verdict is unappeallable. (
22 ) It is "ultra vires" to convene a Court that can always be
appealed.
90. It requires judges, as delegates of executive power, to act within
the limits of their jurisdiction and exercise that power to enforce a
judgment on the verdict found by a jury as a binding contract between
the parties.
91. In this case it is effected by the Judicature Act 1876 (Q) and the
Interdict Act 1867 (Q) which defined the word "Supreme Court" and define
the duty of judge and jury in such a court. Authority Judicature Act
1876,Section 15 & Interdict Act 1867 (Q) Section 10 ( 23 )
92. A Bankruptcy Petition invokes the original and exclusive
jurisdiction of the Federal Court of Australia. ( 24 )
93. It is beyond the constitutional power, and "ultra vires" , for the
Parliament of the Commonwealth or any State to redefine "court " to
exclude a jury trial in original jurisdiction.
94. The Insolvency Act 1874 (Q), provided that a jury of 12 be
empanelled to decide questions of fact, if the parties desired. Exactly
the same as in any criminal trial, to separate the powers of the people
from the power of the executive government. ( 25 )
95. The Parliament of the Commonwealth, to ensure that monetary
considerations are not an impediment, and that justice shall be done and
be seen to be done, has agreed to pay for the costs of a jury in every
Federal case, just as they pay the salary of the presiding judge.
Section 41 (3) Federal Court of Australia Act 1976, ( 26 )
96. The Parliament of the Commonwealth by the wording "the court may,
if it thinks fit" in Section 30 (3) Bankruptcy Act 1966 has departed
from the common law, acted "ultra vires", and purported to redefine
the word "court" as used in the Queensland enactments and give a
purported discretion to combine a judge and jury in one person.
97. The use of these words by the Parliament is "ultra vires" and has
perverted the doctrine of separation of powers to a meaning not in force
in 1900. ( 11 )
98. The perversion is interpreted to mean a judge does not have to obey
a statute or give full faith and credit to the laws of the State of
Queensland in force in 1901.
99. In Australia, it is the function of a judge to act as the delegate
of the Governor General appointed by Commission. Section 6 Federal
Court of Australia Act 1976 . ( 26 )
100. The separation of powers dictates that the delegate of the Governor
General, or executive government be separated from the functions of
Parliament as delegates of the people.
101. It is completely undemocratic and repugnant to the principles
establishing Australia as a nation, and "ultra vires" to combine the
powers of Parliament and the powers of the common people, and vest them
in a judge, the delegate of the Governor General.
102. Section 259 Supreme Court Act 1995 (Q), declares the law in 1901
and gives effect to the separation of powers by defining the role of
judge and jury. ( 27 )
103. A court at common law and under the Insolvency Act 1874 (Q) and if
the parties desire was a court constituted by a judge and jury. This Act
must be given full faith and credit and the Parliament purports to do
so in Section 30(3) Bankruptcy Act 1966. ( 28 )
104. This dispute is between two guarantors and a major Australian bank.
105. The dispute is about the deprivation of the Appellants of the right
to argue their case before a representative panel of 12 electors with
one vote each, to find facts on the balance of probabilities and give
their verdict. Authority Section 34A Bankruptcy Act 1966 ( 29 )
106. We submit that the statutory standard of proof requirement cannot
be given effect unless a jury is empanelled, because a single person
cannot decide on balance of probabilities, but only decide right or
wrong, by a unanimous verdict.
107. On the balance of probabilities standard proof, 7 of the 12 jury
persons must agree before a lawful verdict can be returned. ( 30 )
108. Statutes are in place to ensure a fair, impartial and lawful
contest, with an impartial and learned umpire, called a judge, with 12
impartial judges of fact, and any proceeding to the contrary, never
happened in law.
109. Justice Spender refused to separate the power he undoubtedly had to
administer the court, delegated from the Governor General, from a power
he does not have to find questions of fact, except by consent, to act
for a jury.
110. The Applicants in their applications repeatedly asked for a jury to
find facts. Appeal Book page 6 @ 3, page10 @ Orders sought 2 & 3,
page 11 @ 4 & 5 & 6 & 9, page 15 @ 13, page 17 @3, page 21 @ Orders
Sought 2, page 22 @ 3 & 5 & 6 & 9, page 26 @14
111. It has been and still is a fundamental common law right for any
accused person, in either civil or criminal jurisdiction, to challenge
the array of jurors. ( 25 )
112. By requesting a jury, the appellants challenged the array, and
when they were refused this right the court ceased to be a court. It was
"ultra vires" judical power.
113. Binding provisions of the Insolvency Act of 1874 (Q) :
114. It was the law in Queensland at the formation of the Commonwealth
that granted the right to a jury trial in bankruptcy proceedings.
Section 23 and 24 (25 )
115. A respondent to a bankruptcy proceeding had the right to challenge
the bankruptcy jury in the same way as all other juries. Section 24
( 25 )
116. Right to an Account :
117. It is a fact, undisputed by the Respondent, that Colin Richard
Hubner and Yvonne Hubner, who were two of the five guarantors of The
Cairns Glass Company Pty Ltd asked for an account to be taken.
118. No account has ever been taken.
Appeal Book Page 413 to 415 @ 21-43
119. Binding provisions of the Interdict Act 1867 (Q ) : ( 31 )
120. Matters of account are firstly to be sent to arbitration, and if
the dispute continues, to the court. Section 10 ( 31 )
121. It was repugnant and "ultra vires" for the court to give judgment
before an account is had.
Section 10, and 11 ( 31 )
122. The definition of "court" and "judge" separates the Supreme Court
of Queensland from the judge and they are defined as separate entities.
The separation of powers is recognized. Section 1. Interpretation of
the Interdict Act 1867 (Q) ( 31 )
123. It is "ultra vires" of the Parliament to combine these mutually
contradictory functions in one person contrary to the power of State
and Territorial Laws and Records Recognition Act1901
124. A jury trial is guaranteed, if facts leading to an account are put
in issue. Section 11, Interdict Act 1867 (Q) ( 31 )
125. It is a law of the Commonwealth that full faith and credit is to be
given to a Queensland citizen of that provision. ( 2 )
126. The Colonial Laws Validity Act 1865 ( Imperial) Reprint no (1 ),
14th July 1994. (Q) (32 ) guaranteed that the Parliament of the State
could not repeal the effect of the Interdict Act, Insolvency Act 1874 (Q
) or Judicature Act 1876.
127. A Commonwealth statute guarantees that Commonwealth may not repeal
the effect of these Acts either. It is the State and Territorial Laws
and Records Recognition Act 1901, a law made under the power vested in
the Parliament by Clause 5 of the Commonwealth of Australia Constitution
Act 1900. ( 2 )
128. This gives effect to Sections 9.117 and 9.118 Commonwealth of
Australia Constitution Act 1900. ( 33 )
129. It is "ultra vires" the power of the Parliament of the Commonwealth
to make a law giving a judge a discretion which fails to obey that Act.
130. It is a fact that the petitioning creditor, by his own hand,
cannot lawfully prove in the bankruptcy even if Justice Spender’s
purported judgment was valid.
131. By reference to Section 86 Bankruptcy Act 1966, due to the
undisputed fact that there have been mutual dealings between the
parties. Section 86 Bankruptcy Act 1966 requires an account be taken
before a proof of debt may be lodged. ( 34 ) this gives full faith
and credit to the Interdict Act 1867 (Q )
132. In that respect the judgment is nugatory and pointless if made to
affect our rights in personam, for the benefit of another person.
133. The Parliament has no Head of Power in Section 51 of the
Constitution to effect our rights as partners of a partnership or rights
as guarantors. ( 35 )
134. The Bankruptcy Act 1966 purports to sieze our partnership property
( choses in action) and vest them in a trustee who demanded $500,000.00
be deposited in his account or he would abandon the actions.
135. This demonstrates the Statute being used as a cloak for fraud that
would have been discovered by a panel of judges of fact constituted as a
jury had Justice Spender upheld our constitutional and State rights when
requested.
136. Twelve citizens each with one vote in the form of a jury are
entitled to be involved when a major bank is alleged to be defaulting
under a deed and its obligations to pay money by refusing to stand
behind its agents.
137. The jurors, as judges of fact, were denied the opportunity to
exercise their constitutional right to adjudge guilt or innocence of the
charge.
138. The charge, is fraud of a principal ( chargee ), leading to the
collapse of The Cairns Glass Company Pty Ltd and the Reef Casino in
Cairns.
139. This collapse caused by the banks default, and breach of trust,
leads to a right to an action upon the validity of Colin Richard Hubner
and Yvonne Hubner’s guarantee.
140. In effect, when Colin Richard Hubner and Yvonne Hubner requested a
jury, they requested, just as in an election, that 12 electors qualified
to vote, be empanelled as judges of fact, and the Governor General’s
delegate act on their advice, to give an unappealable judgment. ( 42 )
& ( 25 ) & ( 23 )
141. It is a fundamental right in the community that a person only gets
one vote and the Parliament is elected on one vote per citizen qualified
to vote. ( 27 )
142. Justice Spender refused to separate the right of a jury of 12
persons to get one vote each, from his power to preside over the court.
143. A contested matter must be decided upon 12 votes if a party so
desires, and the judge is not given a vote under the common law.
144. He is the impartial president of the Court and given total
privilege in those circumstances.
145. No referendum changing the meaning of that word "judge" or allowing
the qualification of "may" by a Statute, has been submitted to the
Australian people as reserved to their power by Section 128 Commonwealth
of Australia Constitution Act 1900. ( 37)
146. No question to repeal the separation of powers between the people
and executive government has ever been put to the electors in a
referendum.
147. Consequently, the Parliament does not have constitutional power to
redefine the word "judge" or ""may" or make a law under the
Constitution to do so. It is "ultra vires"
148. The jurors are the delegates of the public, like the Parliament :
the Judge is the delegate of the Queen, like the Governor General.
149. To be a lawful proceeding, the Appellants right to a jury trial
must be upheld and the above rules must be applied.
150. A court (that is, an incorporeal political entity) when properly
constituted conducts proceedings in law, just like a Parliamentary
election, it is commenced by writ on application to Her Majestry whose
power vests in her delegate the Governor General. (1 )
151. An act of a validly constituted court is as binding on the
parties ( through the doctrine of precedent on the people at large) as
an Act of Parliament. ( 1 )
152. We do not tolerate interference or the abrogation of a citizen of
his or her obligation to be involved in the making of law by the
Parliament. (we fine them for not voting). If he or she is fined for
not participating in a proceeding of the big jury, for the election of
the High Court of Parliament, a citizen cannot be denied the right to
participate as a jury person in a public court
153. Therefore no court below can constitute itself without his or her
presence if requested by a party, as a judge of facts, for to do so
makes a mockery of our democracy.
154. At common law a court in a contested matter must have a quorum of
12 and a president, before it can have a legal character. ( 11 )
155. A court must have consent to do anything, "inter partes" beyond
giving directions.
156. A "Judge" is a delegate of the Governor General, appointed on
advice of the Governor in Council, upon authourity of the Commonwealth
of Australia Constitution Act 1900 Section 9.72. to perform in the
Queen"s name, the justice functions of the Queen through the Governor
General. ( 38 )
157. Section 34 AB. Acts Interpretation Act 1901 :
158. Restricts the power of delegation of the Parliament of the
Commonwealth. ( 39 )
159. The judges are delegates of the Queen, are not granted power to sit
as a jury by the Act creating their office: The Commonwealth of
Australia Constitution Act 1900.
160. Sections 10 and 24 Commonwealth of Australia Constitution Act 1900
recognizes the Parliament as the delegates of the people, chosen by
popular franchise. ( 40 )
161. The public have legislative powers through their delegates under
the Commonwealth of Australia Constitution Act 1900. ( 40 )
162. A delegate cannot delegate his/her power, and Section 34 AB. (b)
Acts Interpretation Act 1901 recognizes the members of Parliament
collectively or singularly, cannot delegate the power delegated to them
to anyone else. This fact is demonstrated by the custom of "pairs"
because proxies are unlawfull ( 39 )
163. Nor can the members of Parliament delegate the function of an
elector qualified to vote on a jury panel, to a judge. Such delegation
would be "ultra vires" .
164. Proxy voting is not allowed In legal proceedings. The right to vote
is a personal right of each person.
165. Section 2. Acts Interpretation Act 1901 binds the Crown, so
Parliament cannot delegate 12 proxy jury votes to a " judge," nor can
the Crown consent. ( 41 )
166. No Act of Parliament can exist to force one Australian to submit to
another as we are all equal and all have one vote. ( 42 )
167. By a consent agreement all citizens are entitled to have their
agreements given the force of law, by a court.
168. The enactment of Section 39 Federal Court of Australia Act 1976 is
in excess of legislative power, when it forces a citizen to give consent
unwillingly. ( 43 )
169. No citizen can complain when the majority of 12 electors vote
against him / her.
170. To legally create common law binding on the public, a court must be
constituted by a delegate of the Queen, a judge appointed by the
Governor General and 12 delegates of the public possessing the
qualifications and shall be struck summoned balloted to become the
judges of fact. Their verdict makes common law upon casting their12
votes.
171. All other judgments are consent judgments and not subject to
appeal, nor binding on the public.
172. All judgments are contracts forced upon litigants because the
litigants cannot agree on the terms themselves, and it is in the public
interest that they agree.
173. No one can be forced to accept a consent judgment against their
freely exercised will.
174. Cheshire and Fifoot Law of Contract second Australian Edition
1967 Starke and Higgins Butterworths, declares at Page 451 that
contracts that tend to promote corruption in public life are illegal.
175. For that reason, Section 51 Supreme Court Act 1995 requires consent
in writing to evidence the free will consent, to a judge to sit alone,
and overcome Section 4 Statute of Frauds. ( 44 )
176. It is also a safeguard against the corruption of the affairs of the
nation by people who would by their actions ‘"procure the public office
of jury persons and vest it in a single judge."
177. Blachford V Preston (1799) 9 term Rep . 89 101 ER 1282. states
that (45 ) ‘" It is obvious, says Story, " that all such contracts must
have a material influence to diminish the respectability,
responsibility, and purity of public officers, and to introduce a system
of official patronage, corruption and deceit wholly at war with the
public interest. " ( 45 )
178. By reference to Section 28 Federal Court of Australia Act 1976, it
is this courts duty to deliver the legal and equitable remedies claimed
by the Appellants, and denied by Spender J, and avoid the necessity to
bother the High Court with further litigation. ( 46 )
179. This Court of Appeal, constituted by three judges, can have no
other function but to remedy this error in the constitution of the
court.
180. In an act "ultra vires" ,of the Parliament of Queensland on the
advice of the executive government, omitted from the provisions shifted
to the Supreme Court Act 1995, Section 12 of the Supreme Court Act 1874
which defined the powers of a judge. ( 47 )
181. The effect of this omission is that all judges of the Supreme Court
of Queensland acting in this matter have acted "ultra vires" and have
prejudiced the case by denying our right to avail ourselves of the
doctrine of the separation of powers.
182. That definition of judge in 1901 was and still is binding on the
Parliament of the Commonwealth notwithstanding any enactment to the
contrary.
183. Derativa potestas non potest esse major primitiva. The power,
which is derived, cannot be greater than that from which it is derived.
184. To hold that any judge has greater power than the Parliament to
make laws, when the Constitution states that it is only the Parliament
that is authorized to make laws by the authority of the Australian
people and that authority cannot be delegated, is absolutely repugnant
to our right to self-determination by the exercise of freewill, in our
constitutional system of government, and is "ultra vires" .
185. The separation of powers and Section 34A B (d ) Acts
Interpretation Act 1901 grants the delegates of the public, The
Parliament, absolute power to overturn a judgment of a court or the
executive, constituted otherwise than with a jury.
186. The Statutes binding on Justice Spender as an administrator of
the court charged with administering the law were :
187. Commonwealth of Australia Constitution Act 1900
188. State and Territorial Laws and Records Recognition Act 1901.( Cth )
189. In particular Sections 9.117 & 9.118 Commonwealth of Australia
Constitution Act 1900.
190. Queensland Statutes
191. Colonial Laws Validity Act 1865 ( Imperial)
192. Imperial Acts Application Act 1984 (Q)
193. Insolvency Act 1874 (Q)
194. The Judicature Act 40 Vic no 6 assented to 9 October 1876 (Q)
195. Constitution Act 1867 (Q)
196. Oaths Act 1867 (Q)
197. Insolvency Act 1874 (Q)
198. Interdict Act 1867 (Q)
199. Supreme Court Act 1874 (Q)
200. Supreme Court Act of 1991 (Q)
201. Supreme Court Act 1995 (Q)
202. Commonwealth Statutes
203. Federal Court of Australia Act 1976
204. Bankruptcy Act 1966
205. Evidence Act 1995 (Cth)
206. Acts Interpretation Act 1901 (Cth)
207. Human Rights and Equal Opportunity Act Commission Act 1986.(Cth)
208. International Covenant on Civil and Political Rights (Cth).(53)
209. It was Justice Spender’s duty, in a court of judicature to instruct
the jury on the application of these Acts, and since he had no jury, his
judgment is void.
210. Duty in is defined in law as thus: "He has duties to perform
towards others. He is bound to do to others the same justice which he
would have a right to expect them to do to him. Authority Bouvier (1)
211. ORDERS SOUGHT
212. That the sequestration order be set aside,on the grounds it was a
made "ultra vires" without the consent of the parties and void at
common law as outside jurisdiction.
213. The matter be referred back to the Federal Court of Australia
sitting in its bankruptcy jurisdiction, constituted lawfully with a jury
to investigate the underlying issues and find the facts, with the
following directions:
214. Full discovery of all the dealings between the The Cairns Glass
Company Pty Ltd, of which the appellants were guarantors and the
AUSTRALIA AND NEW ZEALAND BANKING GROUP LIMITED.
215. Full discovery of all the dealings between Colin Richard Hubner and
Yvonne Hubner and AUSTRALIA AND NEW ZEALAND BANKING GROUP LIMITED since
1981 when mutual dealings between the parties began.
216. Full discovery of all the dealings by the Administrators and
Liquidators of The Cairns Glass Company Pty Ltd, and the AUSTRALIA AND
NEW ZEALAND BANKING GROUP LIMITED.
217. Full discovery of all associated entities of the AUSTRALIA AND NEW
ZEALAND BANKING GROUP which affected the company of which the
appellants were guarantors.
218. Full discovery of all associated entities which had contracts or
dealings with the The Cairns Glass Company Pty Ltd, of which the
appellants were guarantors.
219. That an account be had of mutual dealings between the parties.
220. Leave for either party to apply to the Court for directions should
discovery be resisted.
221. That all discovery take place at the AUSTRALIA AND NEW ZEALAND
BANKING GROUP LIMITED head office in Cairns or the town agents of their
solicitors in Cairns.
222. Upon full discovery, grant to the appellants the right to deliver a
pleading, and to the respondent, the right to plead in reply.
223. If there shall still be a dispute as to the facts applicable to the
case, the Federal Court of Australia shall constitute itself with a jury
of 12 persons under section 30(3) Bankruptcy Act 1966, The Jury Act
1867, the Interdict Act 1867, Insolvency Act 1874 (Q) and the
Judicature Act 1876, in Cairns, in its equitable and legal jurisdiction
and upon the findings of the facts of the said jury, make those orders
it deems appropriate to the case, and impose a legally binding contract
of settlement upon the parties.
224. This submission is made upon the directions of the Court, a legal
administrative function of the Court, and it was directed that an
answer, disagreeing if possible with it be returned to us not later than
3 days before the 17th February 2000.
225. A motion for committal for contempt will be considered against the
Australian and New Zealand Banking Group Limited if the submission is
not disagreed with in detail. ( 52 )
226. This is a serious civil rights issue concerned with the
Constitution, " The separation of powers" and this document requires any
dissent to be expressed before the Court.
227. A return to the separation of powers will deprive the fraud in the
banking industry of the power to corrupt. It is in the public interest
that this be decided ( 51 )
These submissions are made by Colin Richard Hubner and Yvonne Hubner
Dated this Ninth day of February 2000
Colin Richard Hubner ) _________________________
Yvonne Hubner ) _________________________
Addess for service 12A Traders lane 117 Anderson St Cairns 4870
Ph 40321272 fax 49321113 Email [EMAIL PROTECTED]
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