FEDERAL COURT OF AUSTRALIA – RUSHTON v COMMONWEALTH SUPERANNUATION CORPORATION & KANEY & ORS (No 3) [2021] FCA 358 ~ judgment fraudulently obtained.

:For the facts of the matter:

“Fraud unravels everything, fraud vitiates all transactions known to the law of however high a degree of solemnity” with the transaction void as from the beginning by the fact itself. Lord Parker LJ.

“Facts do not cease to exist because they are ignored!” ~ Aldous Huxley.

Constitutional separation of powers is a ‘fiction’, Professor of Law at Sheridan Institute of Higher Education, Augusto Zimmermann. “There is no such a thing as separation of powers,” he said. “Australian judges are chosen by the government of the day. This obviously makes every judicial appointment inevitably political (ideology) in nature and makes accountability impossible to achieve.” Full reaction article here.

‘Fraud on title‘ refers to the deceptive acts and dishonesty that result in the unauthorised transfer of property ownership or the creation of a fraudulent interest in a property.

In Bahr v Nicolay (No 2) (1988) 164 CLR 604 at 614; [1988] HCA 16…”fraud“. In Waimiha Sawmilling Co Ltd v Waione Timber Co Ltd [1926] AC 101 at 106, Lord Buckmaster for their Lordships, in delivering the judgment of the Privy Council, in respect of the ‘fraud’ exception required to impeach a registered title, in the context of the Torrens system, wrote: “If the designed object of a transfer be to cheat a man of a known existing right, that is fraudulent, and so also fraud may be established by a deliberate and dishonest trick causing an interest not to be registered and thus fraudulently keeping the register clear.”

:Memorandum of law and fact ~ Bill not Original.

“In law, fraud is deception to secure unfair or unlawful gain, or to deprive a victim of a legal right.” Lord Denning said: ‘No Court in this land will allow a person to keep an advantage he has obtained by fraud. No judgment of a court, no order of a Minister, can be allowed to stand if it has been obtained by fraud. Fraud unravels everything. The court is careful not to find fraud unless it is distinctly pleaded and proved; but once it is proved it vitiates judgments, contracts and all transactions whatsoever; see, as to deeds, Collins v Blantern (1767) (2 Wils. KB 342), as to judgments, Duchess of Kington’s Case (1776) (1 Leach 146), and, as to contracts, Master v Miller (1791) (4 Term Rep 320). References: Lazarus Estates Ltd v Beasley[1956] 1 QB 702, [1956] 1 All ER 341.
Coram: Denning LJ, Lord Parker LJ.

Buller J said: ‘It is a common saying in our law books, that fraud vitiates everything. I do not quarrel with the phrase, or mean in the smallest degree to impeach the various cases which have been founded on the proof of fraud. Cf. Master v Miller (Commonlii, [1793] EngR 709, (1793) 5 TR 367, (1793) 101 ER 205 (A)). “In the eye of the law fraud vitiates everything it touches; even the broad seat of a Commonwealth is crumbled into dust as against the interest designed to be defrauded.” Cf. Covode v Foster [1869], pg. 2, col. 2.

fraud includes the common law definition contained in Royalene Pty Ltd v Registrar of Titles & Anor [2007] QSC 059 at [16.] …summarised in the following passage from the Assets Co Ltd v Mere Roihi [1905] AC 176 at 210: “…by fraud in these Acts is meant actual fraud, i.e., dishonesty of some sort or moral turpitude, not what is called constructive or equitable fraud.”; “…the provision can be fraud against the Registrar.”

LHK Nominees Pty Ltd v Kenworthy [2002] WASCA 291; 26 WAR 517 at [268-269]; Bahr v Nicolay (No 2) (1988) 164 CLR 604 at 614; [1988] HCA 16…”fraud“. In Waimiha Sawmilling Co Ltd v Waione Timber Co Ltd [1926] AC 101 at 106, Lord Buckmaster for their Lordships, in delivering the judgment of the Privy Council, in respect of the ‘fraud’ exception required to impeach a registered title, in the context of the Torrens system, wrote:

“If the designed object of a transfer be to cheat a man of a known existing right, that is fraudulent, and so also fraud may be established by a deliberate and dishonest trick causing an interest not to be registered and thus fraudulently keeping the register clear.“

Case law has repeatedly recognised the limits of indefeasibility in cases involving ‘fraud or procedural failure’ within the concept of s 42(1) of the RPA (1900 NSW) or s 58(1) of the LTA (1925 ACT):

• Frazer v Walker [1967] 1 AC 569 (Privy Council) at [585]; cited in [2024] NSWSC 1388 (Davies J) at [138]: Established that indefeasibility does not protect a registered proprietor who acquires title through fraud.
• Breskvar v Wall (1971) 126 CLR 376: Affirmed that the Torrens system is a system of title by registration, not registration of title, and that equitable interests may survive registration in certain circumstances.
• Crouch v Commissioner of Titles [1995] WASC 13: Demonstrated the Commissioner’s (Registrar-General) discretion to correct the Register where procedural irregularities are proven.
• Aliraja v Dukes, Commissioner of Titles [2025] WASCA 103 at [14-15, 81, 90-91, 142] i.e. Where deprivation is caused by fraud, not merely incidental breaches of trust, compensation and rectification must follow. [91.] “Registrar may determine the claim without the necessity for court proceedings.” [142.] “…the right to the recovery of the land itself of which a person has been deprived by fraud is expressly preserved by s 199(d).” Fraud on title and fraud against the Registrar through ‘dishonesty or moral turpitude’.
• Baumgartner v Baumgartner [1987] HCA 59 at [148]. Constructive trust – Unconscionable retention of benefit – Unjust enrichment. “equity will not permit that other party to assert or retain the benefit of the relevant property to the extent that it would be unconscionable…”

These cases underscore the principle that indefeasibility is not absolute, and that statutory and equitable remedies must remain available to those wrongfully dispossessed.

Jurisdiction to rescind judgment fraudulently obtained:

1. Rushton v Kaney [AKA Dickerson] and Commonwealth Superannuation Corporation (CSC) and Australian Financial Complaints Authority (AFCA) (No 3) [2021] FCA 358 ~ Judgment has been obtained by fraud and set aside as void from the beginning as a matter of right by this solvent Court of Chancery in the original inherent jurisdiction of formal equity and is hereby proclaimed and declared invalid as “you were defeated formerly”, given on the 16th April 2021 by ‘the power to rescind or annul a decree on the basis of fraud’, false claim and misleading inadmissible ad hominem visceral  hearsay opinions intentionally  presented in false statements by third party false witnesses not present, by the unclean hands of the litigation guardian de son tort lawyers and duplicated by the respondent(s) lawyers to prejudice and ‘to impair the court’s impartial performance of its legal task’ herein duly reproved and corrected on the record [N.B. albeit with the intentional ‘fraud upon the court‘, perfidy, mistake in facts, reasoning and fraudulent statement published in findings by Rares J at 18 that is fabricated evidence, absolutely in error and vice versa (N.B. In fact ‘the Magistrates Court varied the (armed force breach of the peace and negligent QPS alleged hearsay false statements by third party false witnesses not present) intervention order (O009916472) on 10 June 2014 (by urgent application for [Mr] Rushton to return to the family home to continue to provide official palliative care for his terminally ill wife and their children with her consent) and on 22 July 2014 granted [Mr] Rushton (Aggrieved) a protection order (O010046917) to prevent the terminally ill patient Mrs Rushton (Respondent) approaching his residence or work’ and ‘be of good behaviour’) with apprehended bias findings by Rares J at 21-28 and 78 in Rushton v Kaney & Ors [2021] FCA 358 and abide by the first in time, first in right, stare decisis binding estoppel by res judicata claim preclusion order and merger in judgement with the Federal Circuit Court of Australia in Rushton v Rushton [2014] FCC (P)BRC10298 by The Honourable Judge Hughes at [1] that are absolutely contrary to ‘all extant‘, rebuked and rejected false claim and usurpation of Commonwealth property by the State or Territory, fraudulent property conveyance, state of residence, relationship status and misleading inadmissible legal fiction ad hominem visceral hearsay opinions presented in false statements by third party false witnesses not present, ‘without jurisdiction ultra vires (beyond power)’ extant local tribunal and inferior court of Petty Sessions renamed the Magistrates Court fiction of law presumptions by Refshauge J at 3-5 in Kaney [AKA Dickerson] v Rushton (abstention) [2017] ACTSC 11] as presented by the litigation guardian de son tort barrister and lawyers for the intentional ‘fraud upon the court‘ and tribunal [cf. Burns v Corbett (2018) HCA 15; 353 ALR 386] that ‘in fact intentionally deceived’ and mislead the coram non judice Commonwealth Superannuation Corporation (CSC) and Australian Financial Complaints Authority (AFCA) that acted with and indicated an animus towards the injured applicant, in tune with the apparent bias that contaminated the matter, with apprehended bias and made outrageous irrational fiction of law fraudulent statements in bad faith with error of law and fact on the face of the record in ‘continuing-violations due to discriminatory acts which have been occurring over a period of time’ with the devastavit of the beneficiaries estate. Cf. Commonwealth v New South Wales[1923] HCA 34 (1923) 33 CLR 1 at [45–46];British American Tobacco Australia Services Limited v Laurie[2011] HCA 2 at [104, 139-140]; Commonwealth of Australia v Davis Samuel Pty Limited and Ors(No 11) [2017] ACTSC 2, Refshauge J at [104–110, 116]; Clone Pty Ltd v Players Pty Ltd [2018] HCA 12 at [63] As Brennan J said in Gould v Vaggelas [96], “[a] knave does not escape liability because he is dealing with a fool [the Knave lies and acts as the exploiter (aggressor) to mislead, the Fool lies and acts as the victim (naive), both irreconcilable foes to truth; If you can bear to hear the truth you’ve spoken twisted by knaves to make a trap for fools…]”; Burns v Corbett (2018) HCA 15; 353 ALR 386, Tribunals or Commissions ‘also referring to agencies of the executive government or other agencies are not recognisable as courts‘ [at 63], are ‘unable to exercise judicial powers‘ [at 157, 45] and jurisdiction [at 70], they fail to be courts and cannot provide an enforceable judicial decision. Romans 1:18-23, Exodus 23:1-2].
2. The animus towards the injured applicant, in tune with the apparent bias that contaminated the matter indicated the extreme apprehended bias and ‘continuing-violations due to discriminatory acts which have been occurring over a period of time’ caused by the intentional fraudulent statements, false claim and misleading legal fiction ad hominem visceral hearsay opinions presented in false statements by third party false witnesses not present, by the unclean hands of the litigation guardian de son tort lawyers ‘to impair the court’s impartial performance of its legal task’ for the fraud upon the Federal Court of Australia that ‘in fact deceived the courts’ and is hereby reproved and corrected on the record [N.B. albeit with the intentional ‘fraud upon the court‘, perfidy, mistake in facts, reasoning and fraudulent statement published in findings by Rares J at 18 that is fabricated evidence, absolutely in error and vice versa (N.B. In fact ‘the Magistrates Court varied the (armed force breach of the peace and negligent QPS alleged hearsay presented in false statements by third party false witnesses not present) intervention order (O009916472) on 10 June 2014 (by urgent application for [Mr] Rushton to return to the family home to continue to provide official palliative care for his terminally ill wife and their children with her consent) and on 22 July 2014 granted [Mr] Rushton (Aggrieved) a protection order (O010046917) to prevent the terminally ill patient Mrs Rushton (Respondent) approaching his residence or work’ and ‘be of good behaviour’) with the apprehended bias findings by Rares J at 21-28 and 78 in Rushton v Kaney & Ors [2021] FCA 358 with confirmation by the ACT Civil and Administrative Tribunal [2017] ACAT GT 61, Order at [1] and Federal Circuit Court of Australia, first in time, first in right, stare decisis binding estoppel by res judicata claim preclusion order and merger in judgement in Rushton v Rushton [2014] FCC (P)BRC10298 by The Honourable Judge Hughes at [1] decision as the factual proof of evidence, indicates an animus towards [Mr] Rushton that is in tune with the apparent apprehended bias, usurpation of jurisdiction, usurpation of Commonwealth property by the State or Territory and fraud upon the Supreme Court of the Australian Capital Territory with the unilateral mistake in the extant, rebuked and rejected, void Kaney [AKA Dickerson] v Rushton (abstention) [2017] ACTSC 11 inconsistent ,arbitrary and capricious fraudulent statements, error of law and fact on the face of the record in the irrational visceral Reason for Decision fiction of law extant presumptions by functus officio Refshauge J at 3-5 and the inferior Family Court of Australia void genocidal unilateral mistaken visceral hearsay opinions presented in false statements by third party false witnesses not present for the usurpation of jurisdiction and fraudulent statement published under the pseudonym [Ca$tle & Roll-Land] Kestle & Rolland (abstention) [2015] FamCA 1001 by functus officio Faulks DCJ (N.B. [2017] ACAT GT 61, Order at [1] “the medical evidence did not support the… finding that you [Mr Rushton] have impaired decision making ability,” as falsely alleged by John Faulks DCJ in [2015] FamCA at [2, 10, 19]) with all extant coram non judice fiction of law void judgements unlawfully made without ‘reasonable diligence taken prior to the judgment to discover the fraud’ and false claim inadmissible visceral hearsay opinions that ‘in fact deceived the courts’, with these ‘without jurisdiction ultra vires (beyond power)’ inferior local de facto courts and tribunals extant void orders made inter absentes without (audi alteram partem) both parties or the matrimonial estate Beneficiary giving clear and unequivocal memorandum of ‘consent to jurisdiction to be tried summarily‘ or without a Jury, that contaminated the original decision in utter contravention to subvert the original decision of the Federal Circuit Court Order in [2014] FCC (P)BRC10298 at [1], considered as contempt in breach of the Judiciary Act [1903] (Cth.) sect. 24, 25, 49 and 80 with “the duty of the [inferior] court [officer or person] not to proceed.” Cf. Shogun Finance Ltd v Hudson [2003] UKHL 62; Bell v Lever Brothers Ltd [1931] UKHL 2, [1932] AC 161, p.217 at [29] per Lord Atkin; Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11 at [51]; Kaney v Rushton [2017] ACTSC 11, Refshauge J at [78] as remedy. [cf. Hrycenko v Hrycenko [2022] FCAFC 152 at [126], “order of an inferior court made without jurisdiction has no legal force as an order of that court.”)]
3. Former judgment by the Federal Circuit Court of Australia, first in time, first in right, stare decisis binding estoppel by res judicata (“claim preclusion“) and merger in judgement, ‘as a matter of right’[1], by operation of law: in Rushton v Rushton [2014] FCC (P)BRC10298 at [1] ~ Transcript: “[Mr Rushton] you have the property and the children, what is the problem? Case dismissed”; The court orders that: “1. All extant applications are dismissed for want of jurisdiction.” Dated 6th May 2015 by Judge Hughes in Canberra. Cf. 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.” cf. Burns v Corbett (2018) HCA 15; 353 ALR 386 at [173]; Uther’s Case [1947] HCA 45; 74 CLR 508, 528 and in Cigamatic at 378; [2011] HCA 34 at [239]; Priority Purchase Money Security Interest(s) (PMSI), cf. The Union Trustee Co of Australia v Webb [1915] HCA 40; 19 CLR 669 at [p.674-678]. “Gift by husband to wife; House used as family home; Purchase money provided by husband; trust results to the owner of the money by operation of law.” The Chief Justice examines the authorities, English and American, and adds: “The maxim that fraud vitiates every proceeding must be taken, like other general maxims, to apply to cases where proof of fraud is admissible. But where the same matter has been actually tried, or so in issue that it might have been tried, it is not again admissible; the party is estopped to set up such fraud because the judgment is the highest evidence, and cannot be contradicted.” cf. United States v. Throckmorton (1878), 98 U.S. 61, 68 at [22]; Cabb v Cabb [2013] FamCA 572, full court defined the doctrine of (“a matter decided”) res judicata estoppel at [6–12]); King v Hoare (1844) 13 M & W 494 at 504 [153 ER 206 at 210] and Tomlinson v Ramsey Food Processing Pty Ltd [2015] HCA 28; (2015) 256 CLR 507 at [20] i.e. “res judicata”, [21]-[22], [24], [25], [26] i.e. estoppel, French CJ, Bell, Gageler and Keane JJ described the doctrine of merger or res judicata in judgement and estoppel in the strict sense; State of NSW v Kable [2013] HCA 26; 252 CLR 118 at [55]-[56].

Maxims of law:

Stare decisis et non quieta movere, which translates as ‘to stand by things decided and not disturb settled points’ or ‘maintain what has been decided; not alter that which has been (precedent) established.’ The doctrine of stare decisis, or binding precedent, is the principle by which judges are bound by decisions of superior courts. 

The Doctrine of res judicata (“a matter decided”) simply put states that, ‘If a person (or their privies) though defeated at law sue again he should be answered, “You were defeated formerly” by former judgment (See ‘Rome has spoken, the Cause has Ended; Rome Spoke through Her Laws.’); ‘A judicial decision must be accepted as correct’ (Res judicata pro veritate accipitur); “It has been well said,” declared Lord Coke, “interest reipublicae ut sit finis litium (‘It is in the interest of the state that there should be an end of litigation’), otherwise great oppression might be done under colour and pretence of law”: (6 Coke, 9a); and ‘No man should be vexed annoyed, harassed or vexed multiple times for the same cause (Nemo debet bis vexari pro una et eadem causa). Indeed, that this maxim is almost universal in all ancient laws, including ancient Hindu texts, was discussed by Sir Lawrence Jenkins in Privy Council Sheoparsan Singh v. Ramnandan Singh, AIR 1916 PC 78 at 80-81, “…their Lordships desire to emphasise that the rule of res judicata, while founded on ancient precedent, is dictated by a wisdom which is for all time.” (See “The Mitakshara (Vyavahara)” Bk. II, ch. i.)

“A person acts contrary to the law who does what the law prohibits; a person acts in fraud of the law who, without violating the wording, circumvents the intention.” Dig. 1.3.29. (Contra legem facit qui id facit quod lex prohibit; in fraudem vero qui, salvis verbis legis, sententiam ejus circumvenit.)

“If a guardian commits fraud against his ward, he is to be removed from the guardianship.” (Si quis custos fraudem pupillo fecerit, a tutela removendus est.)

“Husband and wife are considered one person in law.” Co Litt. 112. (Vir et uxor consentur in lege una persona); “A stream cannot rise higher than its source.” HCA 5; 83 CLR Ful. 258.

“Guardian by nature is the father (husband) and, on his death, the mother (wife) (vis-a-vis), of a child; and the authority of guardian of the person is derived out of the parent.” Daniels v. Metropolitan Life Ins. Co., 135 Pa.Super. 450, 5 A.2d 608, 611 at [455].

“Force, perjury or subornation of perjury, voids all. What is otherwise good and just, if sought by force or fraud, becomes bad and unjust. 3 Co. 78.” Bouvier’s Maxims of Law, 1856.

“Fraud destroys the validity of everything into which it enters.” Boyce’s Executors v. Grundy (1830) 28 U.S. 210. “Fraud vitiates the most solemn contracts, documents and even judgments.” United States v. Throckmorton (1878) 98 U.S. 61, 70. ‘There are no maxims of the law more firmly established, or of more value in the administration of justice, than the two which are designed to prevent repeated litigation between the same parties in regard to the same subject of controversy; namely,’ “In the interest of society as a whole, litigation must come to an end.” (interest rei publicae, ut sit finis litium,) and “No-one shall be tried or punished twice in regards to the same case (event).” (nemo debet bis vexari pro una et eadam causa.) “Not twice in the same thing” (the same case shouldn’t be relitigated.) (non bis in idem.)

“It is a maxim of British jurisprudence that fraud vitiates everything.” The Freeman’s Journal (Dublin, Ireland), pg. 3, col. 4 on October 13, 1838. “Fraud vitiates the most solemn promise. Equity will not allow a statute to be used as a cloak for fraud.” (Dolus dans locum contractui.)

“A thing void in the beginning does not become valid by lapse of time.” 1 S. & R. 58. “Time cannot render valid an act void in its origin.” Dig. 50, 17, 29; Broom, Max.178.

“Things invalid from the beginning cannot be made valid by subsequent act.” Trayner, Max. 482.

“Equity is the correction of some part of the law where by reason of its generality it is defective.” Black’s Law Dic. 7th Ed.

“In a fiction of law there is always equity. A legal fiction is always consistent with equity.” Black’s Law Dic. 7th Ed.

“The first part of equity is equality. The law delights in equity: it covets perfection; it is a rule of right.” Black’s Law Dic. 7th Ed.

“Hear the other side; hear both sides. No man should be condemned unheard (audi alteram partem).” Broom, Max. 113. See L. R. 2 P. C. 106.

“Nothing is so consonant with natural equity as that each thing should be dissolved by the same means as it was bound.” Black’s Law Dic. 7th Ed.

“Reason in law is perfect equity. We shall sell to no one, deny to no one, or delay to no one, equity or justice.” Black’s Law Dic. 7th Ed. Psa. 98:9.

“You are free to make any decision you wish, but you are never free to escape the consequences of your decisions.”

“Every man is presumed to believe in God, and he who opposes a witness on the ground of his unbelief is bound to prove it.” 3 Bouv. Inst. u. 3180.

“Blasphemy against the Almighty, by denying his being or providence, was (is) an offence punishable at common law by fine and imprisonment, or other infamous corporal punishment.” 4 Bl. Corn. 60; 1 East, P. C. 3; 1 Russ. on Crimes, 217. 

“The Act of God, or of the law, causes a loss to no one.” (Actus Dei vel legis nemini facit injuriam.) Cf. A Treatise on Suits in Chancery (1905) – Henry Gibson, § 64. Other Principles and Maxims; Black’s Law Dic. 7th Ed.

“Any law contrary to the Law of God, is no law at all.” Sir William Blackstone., (KC) Kings Counsel, Serjeant-at-Law (SL), Knight (KNT), Commentaries on the Laws of England. “The Law of God and the Law of the Land are all one; and both preserve and favor the common good of the land.” Bouvier’s Law Dictionary 1856.

Authorities:

The law of merger or res judicata in the strict sense:

In Caddy and Miller (1986) FLC 91-720 the Full Family Court identified an important public policy issue and defined (“a matter decided”) res judicata estoppel at 75,233: “The rule as to res judicata comes into operation whenever a party attempts in a second proceeding to litigate a cause of action which has merged into judgment in a prior proceeding.” The doctrine [of the rule of estoppel by res judicata [at 7]] “…reflects the general interest of the community in the termination of disputes and in the finality (relieve parties of the costs, devastavit of estates by parties (or their privies) and vexation of multiple lawsuits, conserve judicial resources, and by preventing inconsistent decisions, encourage reliance on adjudication^[6]) and conclusiveness of judicial decisions, together with the right of the individual litigant to be protected from multiple suits for the same cause. It is part of the common law, and parties (or their privies) who go to a court to effect a resolution of a dispute are bound by its operation and consequences.” “A judgment which purports finally to determine rights is none the less effective for the purposes of creating an estoppel…” Cf. Halsbury’s Laws of England (2nd Edn.) Vol. 13, p. 403.

“…that law includes the rule that a party is precluded from adducing evidence in a case the object or effect of which is to dispute against another party the correctness or merits of an earlier decision in proceedings between the same parties (or their privies) disposing of the same cause. Nor will an earlier decision be treated as wanting in finality if its incompleteness results from a party’s failure to put forward his whole case when he had the opportunity to do so (as the wife may have failed in this case to have the Californian Court [N.B. Mrs Rushton’s (2014) wives’ overseas Disneyland Holiday] make a determination in respect of the Landvest Pty. Ltd. shares).” Cf. Cabb v Cabb [2013] FamCA 572 at [6–12]. The High Court of Australia decided that ‘…the rules as to res judicata lay it down that, in general, if the parties (or their privies) either do not explore or unsuccessfully explore those avenues, they cannot subsequently challenge the final decision, whatever it might be, in any other proceedings whatsoever in any judicial tribunal at all.’ Cf. Rola Co. (Australia) Pty. Ltd. v. Commonwealth (1944) 69 C.L.R. 185.

“First, where a cause of action, or “the very right … claimed“, has previously been established by a local court then at common law the “merger of the right or obligation in the judgment” can be relied upon to preclude re-assertion of the extinguished right. The doctrine of merger is not merely based upon principles of finality. It exists because when a court order “replicates” the prior right, with added consequences such as enforcement mechanisms, the prior right “has no longer an independent existence”. No action can be brought upon that extinguished right. The successful plaintiff’s only right is a right on the local judgment, which is “of a higher nature”. Since the expression “res judicata” has also been loosely used to describe all four rules discussed below, each of which is underpinned by a policy of finality, the effect of the doctrine of merger is sometimes described as “res judicata in the strict sense“.” Cf. King v Hoare (1844) 13 M & W 494 at 504;[Clayton v Bant [2020] HCA 44 at [66–67]].

The principles underlying the doctrine of (“a matter decided”) res judicata were stated by Lord Blackburn in Lockyer v Ferryman ((48) (1877) 2 App Cas 519 at 530.): “The object of the rule of res judicata is always put upon two grounds – the one public policy, that it is the interest of the State that there should be an end of litigation, and the other, the hardship on the individual, that he should be vexed twice for the same cause.” Sir George Rich in Cameron v Cole [1944] HCA 5 formulated this rule in the following words: “A court which after a real trial, has given a valid decision determinative of right, liability or status, has no jurisdiction to recall it whatever mistakes may have been made in facts or law“. Cf. (1943-4) 68 C.L.R. at p. 590. In State of NSW v Kable [2013] HCA 26; 252 CLR 118 at [55] Gageler J said: “A judicial order of any court, whether superior or inferior, is valid and effective if it is made within jurisdiction.” [56] “There is, however, a critical distinction between a superior court and an inferior court concerning the authority belonging to a judicial order that is made without jurisdiction.  A judicial order of an inferior court made without jurisdiction has no legal force as an order of that court.“

In Harmouch v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 428 at 19 per Lucev J. “It is the first duty of every court to ensure that it has jurisdiction to hear the matter before it: Federated Engine Drivers and Firemen’s Association of Australasia v Broken Hill Pty Co Ltd (1911) 12 CLR 398 at 415 per Griffiths CJ, 428 per Barton J and 454 per Isaacs J; Re Boulton; Ex parte Construction, Forestry, Mining and Engineering Union (1998) 73 ALJR 129 at 133 per Kirby J; Piefke v Workpac Pty Ltd [2021] FCCA 1166; (2021) 359 FLR 88 at [8] per Judge Lucev. The purpose of the exercise of judicial power under Ch III of the Constitution is to quell matters of controversy in relation to matters within jurisdiction: Tomlinson v Ramsey Food Processing Pty Limited [2015] HCA 28; (2015) 256 CLR 507; (2015) 89 ALJR 750; (2015) 254 IR 371; (2015) 323 ALR 1 at [20] per French CJ, Bell, Gageler and Keane JJ; Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd [2006] FCA 1352; (2006) 236 ALR 720; (2006) 70 IPR 146; FCA at [47] per Rares J. It is not possible for a Court to legally quell a controversy about which it does not have jurisdiction: jurisdiction cannot be assumed by a Court where it does not exist, even by consent of the parties: Hockey v Yelland [1984] HCA 72; (1984) 157 CLR 124; (1984) 59 ALJR 66; (1984) 56 ALR 215; CLR at 141 per Wilson J; Hunt v Knabe (No 2) (1992) 8 WAR 96 at 104 per Malcolm CJ, Murray and White JJ; McLeish v Faure [1979] FCA 38; (1979) 40 FLR 462; (1979) 25 ALR 403; FLR at 467 per JB Sweeney, Evatt and Northrop JJ; Barkla v Colbran [2015] FCA 1470 at [18] per Besanko J.”

“It is obviously right, therefore, to say that under [The Commonwealth of Australia Constitution Act, 1900 [63 &​ 64 Vict.] (Imp.)] sec. 85 (I.) the Commonwealth holds the land for an estate of fee simple in possession, that having no reference to any tenure under the State. The title transferred by sec. 85 is taken from the State, as I have already said, adversely to State law and by a law superior, and by that superior law is vested in the Commonwealth; and, as that superior law is the sole source of title, it follows that nothing henceforth can depend on State registration laws or State laws of any kind [sec. 8 Application of Colonial Boundaries Act]. ”Cf. Commonwealth v New South Wales [1923] HCA 34 (1923) 33 CLR 1 at [45–46].

Pleas of autrefois acquit (“previously acquitted”) enforces the doctrine of merger in judgment in the criminal law, this expression, in medieval law French, are used to describe pleas by a defendant in criminal proceedings asking the court to halt the proceedings on the ground that they have already been tried and acquitted by former judgment in respect of the same facts or conduct. Cf. Rogers v R [1994] HCA 42; 181 CLR 251 at [14]. ‘Pleas of res judicata in civil cases have their parallel in criminal cases in pleas of autrefois convict and of autrefois acquit; and the Doctrine of Res Judicata is usually taken to include the two latter kinds of pleas.’ Cf. Halsbury’s Laws of England (2nd Edn.) Vol. 13, p. 399.

‘The House of Lords decided in re Clifford and O’Sullivan that a “military court” established to execute marshal law was not a judicial tribunal of any kind and, never having possessed a judicial officium of any kind.’ Cf. [I921] 2 A.C. 570, at p. 591. ‘Hence, as with English law, where a member of the armed services has been acquitted or convicted of an offence by a civil court, in the United States the member cannot be exposed to double jeopardy.‘ Cf. Private R v Cowen [2020] HCA 31 at [165-166]; Ex parte Milligan, 71 U.S. (4 Wall.) 2 (1866), was a landmark decision of the US Supreme Court that ruled the application of military tribunals to civilians when civil courts are still operating is unconstitutional.

In Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374, 410-411 [GCHQ case], Lord Diplock explained (judicial review for unreasonableness): “By “irrationality” I mean what can by now be succinctly referred to as “Wednesbury unreasonableness” (Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation [1948] 1 KB 223). It applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it.” In Wednesbury itself, Lord Greene MR at [229] referred to the relevant unreasonableness as “something so absurd that no sensible person could ever dream that it [posthumous abrogation of the certified marital estate] lay within the power of the authority”.

In common law jurisdictions, the principle of res judicata (a matter decided by former judgement) may be asserted either by a judge or a defendant.

1. Lord Denning, in his book ‘The Discipline of Law’ – Butterworths 1979 – page 77, states: (i) although a void order has no legal effect from the outset it may sometimes be necessary to have it set aside because as Lord Radcliffe once said: “It bears no brand of invalidity on its forehead.” Cf. Commonwealth of Australia v Davis Samuel Pty Limited and Ors (No 11) [2017] ACTSC 2, Refshauge J at [109]. Cf. Burns v Corbett (2018) HCA 15; 353 ALR 386, Tribunals or Commissions ‘also referring to agencies of the executive government or other agencies are not recognisable as courts‘ [at 63], are ‘unable to exercise judicial powers‘ [at 157, 45] and jurisdiction [at 70], they fail to be courts and cannot provide an enforceable judicial decision. (McDonald (n 17)); As Leeming JA said in Gaynor v Attorney General for New South Wales, “[t]here is a difference between an authoritative, binding determination of a dispute between the parties by the exercise of judicial power, and the expression of an opinion” [cf. Cawthorn [2022] HCA 16 at [1, 58-59, 61-63]]. As the Tribunal stated in Re Aston and Secretary, Department of Primary Industry (1985) 8 ALD 366 at [21]: “Policy is not law. A statement of policy is not a prescription of binding criteria.”
2. “A void proceeding is of no legal effect and cannot be cured by amendment.” Cf. Anlaby v Praetorius at 768-9; Craig v Kanssen (1943) KB 256 at 259; Pritchard v Deakin and Others (1963) 1 Ch 502. Upjohn LJ, at 523-524 (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). “An estoppel arises where party aware of his rights sees other party acting upon mistaken notion of his rights.” cf. Minear v. Keith Furnace Co., Iowa, 239 N.W. 584, 587. Cf. Grundt v Great Boulder Pty Gold Mines Ltd (1937), HCA 58, 59 CLR 641 at 657, 675-677 (i.e. Estoppel in pais (by conduct without legal proceedings) as a matter of right.)
3. In Commonwealth of Australia v Davis Samuel Pty Limited and Ors (No 11) [2017] ACTSC 2, Refshauge J at [110]. “There is no need for an order of the court to set it aside. It is ‘automatically null and void’ without more ado, though it is sometimes convenient to have the court declare it to be so.” The distinction was drawn by the (U.K.) Privy Council in MacFoy v United Africa Co Ltd [1962] AC 152 at [160]. In Bellinger v Bellinger [2003] UKHL 21, “An appeal is not necessary because the order is already void ab initio.” In Bell v Lever Brothers Ltd [1931] UKHL 2, [1932] AC 161 at 217 per Lord Atkin, “In such a case the contract is said to be void ab initio (void as from the beginning).” “Party cannot be bound by contract that he has not made or authorized.” Alexander v. Bosworth  (1915), 26 C.A. 589, 599, 147 P.607; cf. Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11 at [51], “A decision that involves jurisdictional error is a decision that lacks legal foundation and is properly regarded, in law, as no decision at all (functus officio). A fortiori in a case in which the decision in question exceeds constitutional power or infringes a constitutional prohibition“; “Any exercise of unauthorised jurisdiction is a usurpation of the royal prerogative, which is unwarranted by law and may be restrained by prohibition, which is, in short, a process for preventing inferior courts from intermeddling with or executing anything beyond their jurisdiction.” Cf. Halsbury’s Laws of England Volume 9, Sect. 2. The Jurisdiction of Courts, Sub-Sect. l. -In General. Psalm 119:126.
4. The doctrine of ultra vires is expressed in South Australia v Commonwealth (1942) 65 CLR 373, 408 (Chief Justice Latham, HCA 1942, First Uniform Tax Case, (Act without Royal Assent)): “A pretended law (act or statute) 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 favour – but such a decision is not an element which produces any 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 invalid ab initio.“ “All laws which are repugnant to the Constitution are null and void.” Cf. Marbury vs. Madison, Secretary of State of the United States, 5 US (2 Cranch) 137, 138, 174, 176, (1803). The doctrine has been recently acknowledged by the Court in Haskins v Commonwealth (2011) 244 CLR 22, 42 (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ quoting Norton v Shelby County, (1886) 118 US 425, 442 (Field J)) (‘Haskins’): ‘an unconstitutional act is not a law; it confers no right; it imposes no duties; it affords no protection; it creates no office; it is, in legal contemplation, as inoperative as though it had never been passed.’
5. “A person affected by both a void or voidable order has the right – ex debito justitiae – to have the order set aside (which means that the Court does not have discretion to refuse to set aside the order or to go into the merits of the case)” Cf. Lord Greene in Craig v Kanssen [1943] KB 256 at 262); Cameron v Cole [1944] HCA 5 at p.589.
6. “It is never too late to raise the issue of ‘nullity’ and a person can ignore the ‘void order’ or claim and raise it as a defence when necessary.” Cf. Wandsworth London Borough Council v Winder [1985] A.C. 461; Smurthwaite v Hannay [1894] A.C. 494; Upjohn LJ in Re Pritchard (deceased) [1963]; Lord Denning in MacFoy v United Africa Co. Ltd. [1961]).
7. “The issue of ‘natural justice‘ does not arise in a void order because it is void whether it causes a failure of natural justice or not; a claimant or defendant should not be allowed to abuse the process of Court by failing to comply with a statutory procedure and yet keep the benefit of it and for that reason also a void order is void even if it results in a failure of natural justice or injustice to an innocent third party.” Cf. Lord Denning in Wiseman v Wiseman [1953] 1 All ER 601.
8. These rights of an occupier of property have long been cherished. Thus, in Semayne’s Case (1604) 5 Co Rep 91a, 77 ER 194 at 194 it was said that: “The house of every one is his castle …” The Earl of Chatham is reported as saying: “The poorest man may in his cottage bid defiance to all the forces of the Crown. It may be frail – its roof may shake – the wind may blow through it – the storm may enter – the rain may enter – but the King of England cannot enter – all his forces dare not cross the threshold of the ruined tenement.” Comparatively (much more) recently, in Entick v Carrington (1765) 2 Wils KB 275 (95 ER 807 at 817), 19 St Trials 1029 at 1066 Lord Camden LCJ observed that: “By the laws of England, every invasion of private property, be it ever so minute, is a trespass. No man can set his foot upon my ground without my licence, but he is liable to an action, though the damage be nothing … If he admits the fact, he is bound to shew by way of justification, that some positive law has empowered or excused him …” This basic principle has been carried forward in time: e.g., Southam v Smout [1964] 1 QB 308 at 320 per Lord Denning MR. and it is not a principle confined to the history of England – it is a principle which continues to apply with equal force in Australia today: e.g., in Coco v The Queen (1994) 179 CLR 427; [1994] HCA 15, Mason CJ, Brennan, Gaudron and McHugh JJ held, at 435-6; Plenty v Dillon (1991) 171 CLR 635 at 639 per Mason CJ, Brennan and Toohey JJ 647; Halliday v. Nevill (1984) 155 CLR at 10 per Brennan J. Cf. Australasian Meat Industry Employees’ Union v Fair Work Australia [2012] FCAFC 85; 203 FCR 389 at [57-58].
9. In Kuru v State of New South Wales [2008] HCA 26, Chief Justice Gleeson, Justices Gummow, Kirby and Hayne agreed at [38–40] “They could seek a warrant from a magistrate. There being no evidence of danger to life or property, it was not suggested that this was such a case. [43] …by the common law and by statute, police officers have no special rights to enter land… [44] the grant of a warrant, is not necessarily a great burden. [45] “such an implied or tacit licence can be precluded or at any time revoked by express or implied refusal or withdrawal of it.” [51] power of entry does not extend to entry for the purposes of investigating… [52] police officers… are duty bound to “keep the peace“… [53] by the time police arrived [several hours after their alleged “serious incident” with the appellant and his children being asleep in their bedrooms], there was no continuing or threatened breach of the peace.  And no breach of the peace was later committed or threatened before the eruption of the violent [armed police officers] struggle that culminated in the [unarmed & video recording] appellant’s arrest. [54] the continued presence of [four armed] police officers [without a warrant], after he had asked them to go and a reasonable time for them to leave had elapsed, could not be justified as directed to preventing a breach of the peace. [12] There was neither statutory nor common law justification for the police remaining on the appellant’s premises. [55] Conclusion and Orders: For these reasons, the question treated by the parties as dispositive of liability (were the police officers trespassers when the appellant first came into physical contact with one of them) should be resolved in the appellant’s favour. The orders of the Court of the Supreme Court of [State or Territory] made… should be set aside.” “The tort of trespass is committed whenever there is interference with possession of land, including physical entry onto and remaining on the land, without the licence or consent of the person in possession or without other lawful authority: TCN Channel Nine Pty Ltd v Anning (2002) 54 NSWLR 333; [2002] NSWCA 82 at [23]-[24] (Spigelman CJ, Mason P and Grove J agreeing), “107. … Humiliation, injured feelings and affront to indignity may be a natural and probable consequence of intrusion by the media (broadcasting) on private property.” In the House of Lords in Hunter v Canary Wharf Ltd [1997] AC 655, Lord Hoffman held at 703: “In speaking of ‘possession or occupation’ Lord Wright was in my view intending to refer to both a right to possession based upon (or derived through) title and to de facto occupation. In each case the person in possession is entitled to sue in trespass and in nuisance. …” [724] “So where it is the tort of nuisance which is being relied upon to provide the remedy … the plaintiff must show that he has an interest in the land that has been affected by the nuisance of which he complains. Mere presence on the land will not do. He must have a right to the land, for example as owner or reversioner, or be an exclusive possession or occupation of it as tenant or under a licence to occupy.” [Cf. Romani v State of New South Wales [2023] NSWSC 49, Justice Wright agreed at [36, 38-42, 46-50 and 53]; also see Aliraja v Dukes, Commissioner of Titles [2025] WASCA 103 at [14-15, 81, 90-91, 142] i.e. Where deprivation is caused by fraud, not merely incidental breaches of trust, compensation and rectification must follow. [91.] “Registrar may determine the claim without the necessity for court proceedings.” [142.] “…the right to the recovery of the land itself of which a person has been deprived by fraud is expressly preserved by s 199(d).”
10. “If it be conceivable that the representatives of the people of Australia as a whole would ever proceed to use their national powers to injure the people of Australia considered sectionally, it is certainly within the power of the people themselves to resent and reverse what may be done. No protection of this Court in such a case is necessary or proper. Therefore, the doctrine of political necessity, as means of interpretation, is indefensible on any ground… lucet ipsa per se [the thing would shine by its own light].” Cf. [Bill of attainder] Society of Engineers’ case (1920), HCA 54; 28 CLR 129 at 152; “It is not the function of the government(s) to keep the citizen [people] from falling into error; it is the function of the citizen [people] to keep the government(s) from falling into error.” [Cf. American Communications Association vs. Douds, 339 U.S. 382, p. 442, (1950), Justice Robert H. Jackson (Chief Prosecutor, Nüremberg Trials); “The rule that you are to love your neighbour becomes in law, you must not injure your neighbour.” Lord Atkin on duty of care in landmark case Donoghue v Stevenson [1932] UKHL 100.

Infracted Legislation:

Criminal Code Act (Cth) 1995 – “Slavery is unlawful, where such a condition results from a debt or contract” with a criminal offence “penalty: imprisonment for 25 years.”; Div. 80.2D Advocating genocide, Penalty: Imprisonment for 7 years; s.268.10 Crime against humanity – enslavement (trafficking in persons), Penalty: Imprisonment for 25 years; Div. 270 – Slavery and slavery-like offences; Div. 271 – 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.”; Div. 134 – Obtaining property or a financial advantage by deception; s.137.2 False or misleading documents; s.142.2. Abuse of public office, “(ii) dishonestly causing a detriment to another person”; s.268 – Genocide, by forcibly transferring (trafficking, kidnapping, hostage-taking) children, crimes against humanity, war crimes and crimes against the administration of justice.

Crimes Act (Cth) 1914 – SECT 35 Giving false testimony,  SECT 36 Fabricating evidence, SECT 42 Conspiracy to defeat justice, SECT 43 Attempting to pervert justice. “No one as a man and woman of flesh and blood can be held in involuntary Servitude.” Cf. Society of Engineers’ case (1920), HCA 54; 28 CLR 129 High Court of Australia.

‘Under the doctrine of constitutional supremacy, if a law or contract violates any norm of the constitution that law or contract whether promulgated by the legislative or by the executive branch or entered into by private persons for private purposes is null and void and without any force and effect. Thus, since the Constitution is the fundamental, paramount and supreme law of the nation, it is deemed written in every statute and contract.’ Cf. Manila Prince Hotel v. Government Service Insurance System (GSIS), G.R. No. 122156, Feb. 3, 1997; Marbury vs. Madison, Secretary of State of the United States, 5 US (2 Cranch) 137, 138, 174, 176, (1803).

The Annotated Constitution of the Australian Commonwealth [1901], p.611, § 203. “Parental Rights.”; p.612, § 204. “Custody and Guardianship of Infants.” In Baker v The Queen [2004] HCA 45 at [140] “Australian courts… so far as possible, (are) to ensure that they do not operate in breach of international law, or, as it used to be put, “the comity of nations”. “The ultimate source of the binding power of the Australian Constitution lies in the sovereign will of the people of Australia, it should be accepted that their Constitution will be construed in the same way as ordinary statutes are. No other approach would reflect that sovereign will of the people of Australia… the supreme absolute and uncontrollable authority remains with the people.” Cf. The Annotated Constitution of the Australian Commonwealth, p.11 ‘dedicated to the People of Australia’ by the authors Sir John Quick and Robert Randolph Garran (Solicitor–General of Australia for 31yrs) as mandated by The Commonwealth of Australia Constitution Act, 1900 [63 & 64 Vict.] (Imp.). Cf. Brown v. Belleville (City), 2013 ONCA 148 at 27: Held that ‘successors may enforce a contract.’ [cf. Crimes Act 1900 (NSW & Imp.), s.12 Compassing etc.]

The first principal doctrine in the Communist Party Case maxim was described by Justice Fullagar as “an elementary rule of constitutional law which has been expressed metaphorically” by saying that “a stream cannot rise higher than its source”, citing Shrimpton v The Commonwealth where it was stated by Dixon J that “an exercise of a power, whether legislative or administrative, cannot rise higher than its source” or “the Parliament cannot recite itself into power.” [Cf. Australian Communist Party v Commonwealth [1951] HCA 5; 83 CLR 1 at p. 258; Shrimpton v The Commonwealth [1945] HCA 4; 69 CLR 613 at p. 630. Cited in Singh v The Commonwealth [2004] HCA 43; 222 CLR 322 at 153.]

In British Medical Association v The Commonwealth [1949] HCA 44; 79 CLR 201 at [p293] Webb J observed: “To require a person to do something which he may lawfully decline to do but only at the sacrifice of the whole or a substantial part of the means of his livelihood would, I think, be to subject him to practical compulsion amounting to conscription [unlawful impressment and press-ganging by force]…  If Parliament cannot lawfully do this directly by legal means it cannot lawfully do it indirectly by creating a situation, as distinct from merely taking advantage of one, in which the individual is left no real choice [of abstention] but compliance.” Cf. The Commonwealth of Australia Constitution Act, 1900 [63 & 64 Vict.] (Imp.), Sect. 51 – (xxiiiA.) The provision of maternity allowances, widows’ pensions, child endowment, unemployment, pharmaceutical, sickness and hospital benefits, medical and dental services (but not so as to authorize any form of civil conscription), benefits to students and family allowances.

Magna Carta 1297 (25 Edw I c 29) (Imp., NSW, ACT), c. 29 “No freeman shall be taken or imprisoned, or disseised of his freehold, liberties or free customs, or be outlawed or exiled or in any other wise destroyed; nor will We pass upon him nor condemn him, but by lawful judgment of his peers or by the law of the land. We will sell to no man, and we will not deny or defer to any man, either justice or right. We, ratifying and approving these gifts and grants aforesaid, confirm and make strong all the same for us and our heirs perpetually, and by the tenor of these presents do renew the same: willing and granting for us and our heirs that this Charter and all and singular its articles for ever shall be steadfastly, firmly and inviolably observed.” Cf. Why Magna Carta Still Matters [2015] by Steven Rares J, FCA at [13, 24–27], President of the Judicial Conference of Australia; IVAN JOSIP LUKATELA v JOHN ARTHUR BIRCH [2008] ACTSC 99 at [3-6], Magna Carta, c. 29; Human Rights.

Universal Jurisdiction Legislation:

1. Customary International Law of Armed Conflict (L.O.A.C.) Armistice and Sect. 43 of the Crimes Act 1914 (Cth) with no statute of limitations for the ‘institution of proceedings in respect of offence’ under Sect. 13.
2. Principles of International Law Recognized in the (London) Charter of the Nüremberg Tribunal and in the Judgment of the Tribunal, adopted by the International Law Commission, 1950. Nüremberg Principles for International Crimes against peace, War crimes and Crimes against humanity.
3. International Criminal Court Act 2002 (Cth) (ICC Act) ~ Rome Statute of the International Criminal Court, Art. 6, 7, 8. Genocide ~ 18 U.S. Code § 1091, Punishment for violations: Death, life imprisonment or fine of not more than $1,000,000 or imprisonment for not more than twenty years.
4. ICCPR Australian Treaty Series (1980 No. 23), Australian Human Rights Commission Act, 1986 (Cth), Schedule 2, International Covenant on Civil and Political Rights (ICCPR): 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.” Art. 4.2 Non derogable and absolute rights, such as Art. 7, 8.1 & 8.2 Freedom from slavery and servitude & 18.4. “The States Parties to the present Covenant undertake to have respect for the liberty of parents and, when applicable, legal guardians to ensure the religious and moral education of their children in conformity with their own convictions.”

Prayer for relief with these charges from the Book of the Law:

“You shall not harm or oppress any widow or fatherless child. If you harm or oppress them in any way, and they cry at all to Me [for help], I will most certainly hear their cry; and My wrath shall be kindled and burn;” Exodus 22:22-24.

“And I will come near to you to judgment; and I will be a swift witness against the sorcerers, and against the adulterers, and against false swearers, and against those that oppress the hireling in his wages, the widow, and the fatherless, and that turn aside the stranger from his right, and fear not me, saith the Lord of hosts.” Malachi 3:5.

“Anyone who kidnaps someone is to be put to death, whether the victim has been sold or is still in the kidnapper’s possession.” Exodus 21:16; “Let My people go.” Exodus 5:1. “Who is the liar? He is antichrist, that denieth the Father and the Son.” 1 John 2:22. “God is not mocked:” Galatians 6:7-8.

“You $hall not $teal (Trespa$$). You $hall not give false testimony. You $hall not covet your brother’s house or his children or $ervants, his property, or anything that belong$ to your brother.” Exodus 20:15-17 “Thou knowest the commandments… Do not $teal, Do not bear fal$e witness, Defraud not, Honour thy father and mother.” Mark 10:19 [Penalty: 18 U.S. Code § 241 – Con$piracy against right$; 18 U.S. Code § 242 – Deprivation of right$ under color of law; 18 U.S. Code § 1621 – Perjury generally; 18 U.S. Code § 1001 – (False) Statements or entries generally; 31 U.S. Code  § 3729 – False claims; 18 U.S. Code § 1342 – Fictitious name or address; 18 U.S. Code § 1091 – Genocide (Menticide), International Criminal Court Article. 6; Maxim: “Death i$ denominated the extreme penalty.” 3 Inst. 212. Black’s Law Dictionary.]

“I saw under the sun the place of judgment, that wickedness was there; and the place of righteousness, that iniquity was there.” Ecclesiastes 3:16.

“Dare any of you, having a matter against another, go to law before the unjust (house of iniquity).” 1 Corinthians 6:1 “And you experts in the law, woe to you, because you load people down with burdens (legal ad-vice & costs) they cannot bear, and you yourselves will not lift one finger to help them.” Luke 11:46.

“Woe unto them that call evil good, and good evil; that put darkness for light, and light for darkness; every tongue that shall rise against thee in judgment thou shalt condemn.” Isaiah 5:20; 34:17 “And have no fellowship with the unfruitful works of darkness, but rather reprove them.” Ephesians 5:11.

“Cursed is anyone who withholds justice from the foreigner, the parentless or the widowed. Then all the people shall say, “Amen!” Deuteronomy 27:19, Lamentations 5:1-9.

“Blessed are ye, when men shall revile you, and persecute you, and shall say all manner of evil against you falsely, for my sake. Rejoice, and be exceeding glad: for great is your reward in heaven: for so persecuted they the prophets which were before you.” Matthew 5:11-12.

“If thy have taken anything from any man by false accusation, thy will pay back four times the amount.” Luke 19:8 “…and he shall restore the lamb fourfold, because he did this thing, and because he had no pity.” 2 Samuel 12:5-6.

The Code of Laws of Hammurabi and Moses:

Offences against the administration of law

false charges (1–2)

false testimony (3–4)

falsification of judgement (5)

[5.] If a judge try a case, reach a decision, and present his judgment in writing; if later error shall appear in his decision, and it be through his own fault, then he shall pay twelve times the fine set by him in the case, and he shall be publicly removed from the judge’s bench, and never again shall he sit there to render judgement.

[8.] If anyone steal cattle or sheep, or an ass, or a pig or a goat, if it belong to a god or to the court, the thief shall pay thirtyfold therefor; if they belonged to a freed man of the king he shall pay tenfold; if the thief has nothing with which to pay he shall be put to death.

[14.] If anyone steal the minor son of another, he shall be put to death.

[24.] If persons are stolen, then shall the community and . . . pay one mina of silver to their relatives.

[36.] The field, garden, and house of a chieftain, of a man, or of one subject to quit-rent, cannot be sold.

[37.] If anyone buy the field, garden, and house of a chieftain, man, or one subject to quit-rent, his contract tablet of sale shall be broken (declared invalid) and he loses his money. The field, garden, and house return to their owners.

[114.] If a man have no claim on another for corn and money, and try to demand it by force, he shall pay one-third of a mina of silver in every case.

[141.] If a man’s wife, who lives in his house, wishes to leave it, plunges into debt, tries to ruin her house, neglects her husband, and is judicially convicted: if her husband offer her release, she may go on her way, and he gives her nothing as a gift of release. If her husband does not wish to release her, and if he take another wife, she shall remain as servant in her husband’s house.

[148.] If a man take a wife, and she be seized by disease, if he then desire to take a second wife he shall not put away his wife, who has been attacked by disease, but he shall keep her in the house which he has built and support her so long as she lives. [If a wife became a chronic invalid, the husband was bound to maintain her in the home they had made together, unless she preferred to take her dowry and go back to her father’s house; but he was free to remarry. As a widow, the wife [spouse] took her husband’s [spouse’s] place in the family, living on in his house and bringing up the children.]

[The goddess Hybris (Hubris) is described in the Encyclopædia Britannica as having “insolent encroachment upon the rights of others”.]

The Epilogue: “I have let them repose in peace; in my deep wisdom have I enclosed them. That the strong might not injure the weak (Akkadian*: dannum enšam ana la ḫabālim), in order to protect the widows and orphans.  In future time, through all coming generations,… If this ruler do not esteem my words, which I have written in my inscription, if he despise my curses, and fear not the curse of God, if he destroy the law which I have given, corrupt my words,… or on account of the curses commission another so to do, that man, whether king or ruler, patesi, or commoner, no matter what he be, may the great God (Anu), the Father of the gods, who has ordered my rule, withdraw from him the glory of royalty, break his scepter, curse his destiny. May he lament the loss of his life-power (*tabāk napištišu kīma mê), and may the great gods of heaven and earth, the Anunnaki, altogether inflict a curse and evil upon the confines of the temple, the walls of this E-barra (the Sun temple of Sippara), upon his dominion, his land, his warriors, his subjects, and his troops. May Bel curse him with the potent curses of his mouth that can not be altered, and may they come upon him forthwith.”

Source of law:  The parliamentary [Lord’s] prayer and acknowledgement Standing Order 50 of the Commonwealth Parliament of Australia in accordance with the Preamble of the Commonwealth of Australia Constitution Act, 1900 (U.K.); Holy Bible [1611] Authorised King James VI & I Version (1566-1625) (Imp.). Constitutionalism [2014] WA Jurist 4; Constituting a ‘Christian Commonwealth’ (2014) 5 The Western Australian Jurist 123, p.129 at [28-29], Ex parte Thackeray (1874) 13 SCR (NSW) 1 at [61]; The Code of Laws of Hammurabi and Moses, c. 1755-1750 B.C.E. (Divine law “obeyed by the four quarters of the world”); Book of the Law, Deu. 31:26, Joshua 1:8, Matthew 6:9-13.

“To keep your Majesty ever mindful of the Law and the Gospel of God as the Rule for the whole life and government of Christian princes, we present you with this Book, (Will of God) the most valuable thing that this world affords. Here is Wisdom; this is the Royal Law; these are the lively Oracles of God.” Coronation Ceremony – Live Footage Recording. Deu. 17:14-20; Judges, lawyers, public ministers, officers and servants are under solemn public oath in good faith, honour and duty bound, hereby demanded, accepted and ordered to comply with (the Oath) Coronation Oath Act (1688 Imp) (Exhibit 1) and (the Law) Coronation Bible (Exhibit 2) or hold personal accountability for personal claims of injury and liability for their in bad faith actions.

[Example of fraudulent extant hearsay third-party intermeddling claim and fraud upon the court extant hearsay third-party privy devastavit claim, without jurisdiction and with apprehended bias in Kaney v Rushton (abstention) [2017] ACTSC 11, with the unilateral hearsay opinion, mistake in facts, reasoning and fraudulent statement published in the unilateral mistaken inferences by Refshauge J at [3-6] that is completely contrary to the further resulting privy extant claim and apprehended bias opinion by Rares J in Rushton v Kaney & Ors [2021] FCA 358 at [21-30] in relation to the same subject matter, notwithstanding further financial damage, defamation, ‘fraud upon the court‘, perfidy, mistake in facts and reasoning published in the mistaken inference by Rares J at 18 that is fabricated evidence (O010046917), absolutely in error, vice versa and with both the vexatious apprehended bias, unilateral mistaken opinions (see Rares J at 25, 30 and 39) in contempt of the original claim preclusion judgment by the Federal Circuit Court of Australia (FCC) first in time, first in right, binding estoppel by res judicata and merger in judgement in Rushton v Rushton [2014] FCC (P)BRC10298 at [1], The court orders that: “1. All extant applicationsare dismissed for want of jurisdiction.” Dated 6th May 2015 by Judge Hughes in Canberra; also see Romani v State of New South Wales [2023] NSWSC 49, Justice Wright agreed at [38-42, 46-50 and 78]; Cabb v Cabb [2013] FamCA 572, full court defined the doctrine of (“a matter decided”) res judicata estoppel at [6–12]; King v Hoare (1844) 13 M & W 494 at 504 [153 ER 206 at 210]; and Tomlinson v Ramsey Food Processing Pty Ltd [2015] HCA 28; (2015) 256 CLR 507 at [20] i.e. “res judicata”, [21]-[22], [24], [25], [26] i.e. estoppel, French CJ, Bell, Gageler and Keane JJ described the doctrine of merger or res judicata in judgement and estoppel in the strict sense; Rola Co. (Australia) Pty. Ltd. v. Commonwealth (1944) 69 C.L.R. 185 and Cameron v. Cole (1943-4) 68 C.L.R. at p. 590; State of NSW v Kable [2013] HCA 26; 252 CLR 118 at [55]-[56]; Stanley v Director of Public Prosecutions (NSW) [2023] HCA 3 at [158].]

[Fiction of law biased key findings and presumptions lacking evidential proof by Refshauge J in Kaney [AKA Dickerson] v Rushton (abstention) [2017] ACTSC 11, summary from bogus ideological local inferior tribunal or court of Petty Sessions renamed the Magistrates Court of the ACT (orders lacking the authority and proper binding real estate title jurisdiction to issue such an order) records:

• Separation:
  Court Legal Fiction findings:
  The couple separated in early 2014. Ms Rushton moved from Queensland to Canberra in 2015, leaving Mr Rushton behind in the former matrimonial home.

Lawful Fact:
The husband [Mr] Rushton did not remain in the former matrimonial home in Queensland, in fact he was obliged to pack up the former matrimonial home in Queensland after it was abruptly sold in October 2014 (without his prior consultation on financial, legal and equitable interests in the real estate title or agreement) to move his (terminally ill and disabled palliative care out-patient) incapacitated wife and their three young children into their Canberra matrimonial property purchased and located in the same suburb as his parents in December 2014. [Mr & Mrs] Rushton remained legally married and never divorced before her death. The unnecessary and abrupt selling of assets such as the matrimonial home real estate title by the wife Mrs Rushton (conducted by her legal representative’s) during the impending urgent court proceeding hearing of Rushton v Rushton [2014] FCC BRC10298 (especially during family law and property settlement proceedings) amounts to contempt of court and intentional dissipation of the matrimonial estate asset pool and can be treated as wastage considering the real estate property had undergone extensive costly renovations, maintenance and landscaping with an in-ground swimming pool installed prior to the abrupt sale.
The the property sale date history (during the impending urgent family court proceeding hearing) is publicly available here to confirm the real factual evidence that reveals land registry constructive fraud on title dealings during family law and property settlement proceeding and fraud on the court in error key fictional findings: https://www.property.com.au/qld/scarborough-4020/benson-st/28-pid-5030949/

or here:

https://www.domain.com.au/property-profile/28-benson-street-scarborough-qld-4020

• Allegations of Abuse:
  Court Legal Fiction:
  The deceased’s litigation party for Ms Rushton’s estate alleged a long history of violence, intimidation, and threats during the marriage.

Lawful Fact:
No evidence of prior allegations of abuse, violence, intimidation and threats had previously been made by Mrs Rushton in the proceeding years of the 19 year relationship and marriage before she was diagnosed as terminally ill and became a home based palliative care patient.

[Mr] Rushton was the official full-time carer for his terminally ill wife since 2013 and was still authorised and recognised by the federal government’s department of Human Services as the official paid carer in 2015 by his wife’s consent at the time of her death in their matrimonial home as evidenced by documentation such as:

• Centrelink carer payments records;
• Medical and legal declarations of dependency to enable sufficient care and equipment to be provided at home for her and the children while she was terminally ill and undergoing surgery and treatment, evidenced by extensive Redcliffe and Canberra Hospital medical and admission records and the Redcliffe and Calvary hospital home based palliative care records;
• Extensive direct evidence of substantial cohabitation and caregiving duties required for his (terminally ill palliative care out-patient) incapacitated wife until her death, while continuing to provide all day to day care requirements for their three young children in the matrimonial home, such as [Mr & Mrs] Rushton’s Canberra private school enrollment and attendance records.
• Property Ownership:
  Court Legal Fiction:
  She purchased a home in Canberra independently and was the sole registered proprietor of the property at 8 Bayly Place, Macarthur.

Lawful Fact:
[Mr] Rushton’s family provided and held the perfected super priority Purchase Money Security Interest (PMSI) and direct evidence of financing in the form of a financial institution bank cheque receipt to Mrs Rushton for financing the purchase of the matrimonial property with the proceeds used to finance the purchase the 8 Bayly Place, Macarthur matrimonial property in Canberra (resulting in a constructive trust) situated across the parkland from [Mr] Rushton’s parents property located in the same suburb.

• Legal Proceedings: Court Legal Fiction:
  The widower husband Mr Rushton was ordered to vacate the matrimonial property and found he had no legal right to occupy it. The court ruled in favor of the in bad faith re-litigating (deceased’s half brother) as executor for the deceased Ms Rushton’s estate with costs.
• Court Legal Fiction:
  The widower husband Mr Rushton was ordered to vacate the matrimonial property and found he had no legal right to occupy it. The court ruled in favor of the in bad faith re-litigating (deceased’s half brother) as executor for the deceased Ms Rushton’s estate with costs.

Lawful Fact:
The deceased Mrs Rushton’s ‘Last Will and Testament’ (Testamentary Trust) executed 25 July 2014 just months prior to her passing away on the 11 July 2015 directly evidenced her intention to provide a voluntary legal usufruct equitable interest (constructive trust) in the matrimonial usual habitual residence property as a family provision, under section ‘3.2 Disposal of estate’ her Will states subject to survivorship that her widower husband [Mr] Ben Rushton was “to have the use, possession and enjoyment of her property, …furniture and furnishings, …for so long as he desires” and therefore remain in the ‘matrimonial usual habitual residence property’ with their three matrimonial estate beneficiary minor children. [Mr] Rushton’s family also provided and held the perfected super priority initial Purchase Money Security Interest (PMSI) and direct evidence of financing agreement (Super Priority (PMSI) Security Interest Reg. No. 201605220000694, dated 22/05/2016), and held two separate land title registry caveat statutory injunction (special court order) financial, legal and equitable interests, lodged, recorded [15/10/2015 Caveat No. 1997674 & 12/11/2015 Caveat No. 2001974] and ‘notified on the folio of the register for the land’ in the ACT Land Titles Office registry by the Registrar-General ‘prohibiting registrations and dealings’ on the matrimonial estate property land title, with the Rushton’s holding the paramount indefeasible right, highest super priority financial, legal and equitable interest (constructive trust), “becoming registered as proprietor of land or of any interest in land under (section 58) of the Land Titles Act (1925) shall, except in case of fraud, hold the land or interest, subject to such interests as are notified on the folio of the register for the land, but absolutely free from all other interests whatsoever“. [Mr] Rushton also held the first in time, first in right, stare decisis binding estoppel by res judicata claim preclusion urgent court order from the Federal Circuit Court of Australia in Rushton v Rushton [2014] FCC (P)BRC10298 by The Honourable Judge Hughes at [1], absolutely contrary to ‘all extant‘ claims by litigants on the matrimonial property as the respondent Mrs Rushton and her legal firm (litigation guardian, solicitors and barrister) failed to lodged any in vevo defence to [Mr] Rushton’s custody and family law property settlement claims in the Federal Circuit Court proceeding and failed to contest or appear at the hearings prior to her death. [Mr] Rushton the surviving husband had already exercised his legal usufruct right of survivorship, parenting and possession of the matrimonial property, cohabiting with his three young maternally orphaned children in the matrimonial property, as legally authorised since the original family law urgent court order binding precedent under res judicata and claim preclusion in vivo Rushton v Rushton [2014] FCC BRC10298, maintaining the property immaculately (as suprisingly noted by the local ACT court), holding a AAMI home and contents insurance policy and paying the ACT revenue office rates for the property prior to the unconscionable in bad faith extensive complex re-litigation and costly devastavit of the deceased estate and parental custody proceedings were posthumously re-commenced in contempt and breach of the original in vivo FCC court order.

The ACT Supreme Court did not rigorously test the evidence in Kaney v Rushton (abstention) [2017] ACTSC 11. In fact, the ultra varies judgment proceeded in the absence of the respondent widower husband Ben Rushton, and the court explicitly stated:

“It is in the interests of justice to proceed in the absence of the defendant.”
— Refshauge J, Kaney v Rushton [2017] ACTSC 11

---

⚖️ What This Means Legally

• The court dispensed with procedural rules that would normally require personal service and appearance.
• It made posthumous final orders about property possession and implicitly about custody without cross-examination or evidentiary testing in contempt and breach of the original in vivo Federal Circuit Court order.
• The decision relied on an expired prior interstate jurisdiction hearsay protection order (false statement by third party false witnesses not present, with false accusations in an application by third party false witness unwarranted interstate police), but did not conduct a full evidentiary hearing.
• 🔍 No verified direct evidence (e.g., Centrelink records, financial, medical, land titles, rates, insurance, divorce, last will and testament trust records, agreements or correspondence) was cited to prove the expired 2014 separation by interstate police armed force (protection order by third party false witnesses not present, with false accusations in an application by third party false witness unwarranted interstate police) was conclusive.
• 📭 The court proceeded in the widower husband [Mr] Rushton’s absence, after setting aside service irregularities — meaning he wasn’t present to challenge the hearsay allegations or to present the first hand witness factual verified direct evidence.
• Crucially, the jurisdiction of the Supreme Court or County Court is imperative; real estate can only be taken if the warrant for seizure and writ of execution or court order is issued by one of the superior courts and as correctly recorded in the land titles register without any other paramount priority interest caveats. In the case of ‘fraud on title’ and fraud against the Registrar through the litigation party’s ‘dishonesty or moral turpitude’ improper dealings and ‘deliberately misrepresenting important facts’, with ‘deception to secure unfair or unlawful gain, or to deprive a victim of a legal right’ in the real estate land title property transaction (constructive trust), beyond power of the inferior ACT Civil and Administrative tribunal (ACAT), Order XD1398/2015 issued on the 21 December 2015 (originating application dated the 11/12/2015) lacking authority and jurisdiction to make such ‘orders for the recovery of land, it was beyond power, therefore, no valid order to be enforced‘ [as confirmed and found in ACTSC 11 [2017] at 99], but was subsequently registered in another inferior Magistrates’ Court of the ACT under matter CS16/00111 on the 12 February 2016 and notably this court also lacks the authority and proper binding real estate title jurisdiction to issue such an order or warrant for ‘recovery of land’, as a standard order or warrant for seizure and sale of property is insufficient for attempting to seize or recover money from the sale of ‘real property’ or land. Therefore, if a judgment (debt) order originates from the inferior Magistrates Court, it must be ‘uplifted’ or transferred to the superior Supreme court that has proper binding real estate title jurisdiction before an application through proper due process for the issuance of a warrant or order for recovery of land can proceed to issue a valid warrant of seizure and writ of execution order to the Sheriff in relation to the recovery of real estate land authorised by judgement of a superior court. It should be noted that ‘a judgment in any action at law does not of itself bind or affect any land: s 112(3).’
• Effect of judgment and writ of execution on land: ‘A writ of execution does not affect the title to land acquired by a person in good faith and for valuable consideration unless, when the person acquires title, he or she has notice that such a writ has been delivered to the Sheriff and remains unexecuted.’ An application to register a court order may only then bind a land title by being registered against it, most commonly by lodging a “writ of execution” or a court order directly with the relevant land titles registry. The (ACT) Land Titles Register is the official record of the owner and/or interest recorded on the property title, including registered interests on the property title such as a mortgage or caveat. Any legal attempt to seize real estate land by committing unlawful trespass to the person in possession is entitled to sue for trespass, nuisance, intimidation and harassment (Nemo debet bis vexari pro una et eadem causa) for the vexatious course of ‘deliberately misrepresenting important facts‘, with ‘deception to secure unfair or unlawful gain, or to deprive a victim of a legal right‘ in the real estate land title property transaction and may be considered fraud on title and fraud against the Registrar through ‘dishonesty or moral turpitude’ improper dealings lacking proper due process of law. Fraud on title and fraud against the Registrar through ‘dishonesty or moral turpitude’ improper dealings can be a breach of an existing financial, legal or equitable interest (indefeasible right) in real estate land ‘held to be paramount or to have priority’ by statutory injunction (special court order) caveat [15/10/2015 Caveat No. 1997674 & 12/11/2015 Caveat No. 2001974] ‘notified on the folio of the register for the land’, in the (ACT) Land Titles Office registry by the Registrar-General under s.42 of the Real Property Act 1900 (NSW) and s.58 of the Land Titles Act 1925 (ACT), ‘prohibiting registrations and dealings‘ on the real estate land title.
• Once a caveat is recorded [15/10/2015 Caveat No. 1997674 & 12/11/2015 Caveat No. 2001974] it must be removed, or the caveator’s written consent obtained, before any new dealings can be registered relating to the property title. [Mr] Rushton explicitly gave written notice to the unconscionable, in bad faith nuisance and vexing re-litigation party of “No Contract – No Consent” but this direct evidence on the contrary was specifically disregarded and given no judicial consideration along with the legal usufruct, super priority financial, legal and equitable interest caveats (statutory injunctions) [15/10/2015 Caveat No. 1997674 & 12/11/2015 Caveat No. 2001974] recorded on the land title register in ACTSC 11 [2017] at [58], in absolute absence of any evidentiary rigor verification to prevent fraud on title and fraud against the Registrar through ‘want of probity, dishonesty or moral turpitude’ improper dealings and fraud on the court that alleged the following findings in error of law and fact on the face of the record to entirely disregard the caveators financial, legal and equitable interest in the property (constructive trust), without the consent of the caveator: [at 108-112] “The evidence before me shows that he [Rushton] is not a registered proprietor, …has no interest in the Estate of the late Ms Rushton that would give him an interest in the Property of any kind.” [15/10/2015 Caveat No. 1997674 & 12/11/2015 Caveat No. 2001974] [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…” [15/10/2015 Caveat No. 1997674 & 12/11/2015 Caveat No. 2001974]; Note: An objection to a caveat interest is a matter for resolution between the parties involved or through legal proceedings in the Supreme Court.
• Only a superior court can make a ruling to extend or remove a caveat interest on a contested property title that is the subject of legal proceedings as it deems appropriate. The notice of caveat cannot be lapsed according to Notice of caveat section 105(3) of the Land Titles Act by the alleged registered proprietor [Mr Kaney] lodging an application to the land title registry under section 105(2)(c) to lapse the caveat statutory injunction (special court order) financial, legal and equitable interests of the Rushton’s [15/10/2015 Caveat No. 1997674 & 12/11/2015 Caveat No. 2001974] constructive trust prior to the in progress Supreme Court legal proceedings Order of the court [section 107(2)(b) and (3)(b)(ii)] that had not extinguished the caveators interest, as was done by the litigation party [Mr Kaney] in fraud on title and fraud against the Registrar through ‘dishonesty or moral turpitude’ improper dealings, ‘deliberately misrepresenting important facts’, with ‘deception to secure unfair or unlawful gain, or to deprive a victim of a legal right’ in the real estate land title property transaction that had two of the ‘Rushton’s’ injunction caveats on record to prevent improper dealings during the legal proceedings and Supreme court case.
• The defective ‘lapse of caveat notice’ in error and fact was authorised by the (Deputy) Registrar-General (Darren Skipworth) without a Supreme Court order that enabled fraud on title and fraud against the Registrar through ‘dishonesty or moral turpitude’ improper dealings, ‘deliberately misrepresenting important facts’, with ‘deception to secure unfair or unlawful gain, or to deprive a victim of a legal right’ in the real estate land title property transaction’ and fraud on the court by the removal of the Rushton’s caveat [15/10/2015 Caveat No. 1997674 & 12/11/2015 Caveat No. 2001974] from the property title registry record by lodgement of the application instrument to issue of a defective land titles registry ‘lapse of caveat notice‘ in error and fact dated 9 September 2016 (to lapse caveat within 14 days), prior to the findings and order of the court of the pending legal proceedings in ACTSC 11 [2017], with the final hearing date for the matter not set down until 16 November 2016.
• The Supreme Court legal proceedings on the property title matter were still in progress as required under section 105(2)(c) as an order of the Supreme Court would be required to remove the Rushton’s caveat statutory injunction (special court order) financial, legal and equitable interest [15/10/2015 Caveat No. 1997674 & 12/11/2015 Caveat No. 2001974] constructive trust, but his caveat entry on the property title record was altered or erased in the register without an order of the court by the ‘dishonesty or moral turpitude’ improper dealings on the land title registry during ongoing legal proceedings, prior to the court hearing findings, and subsequently causing the title search to appear clear of the Rushton’s notice of caveat interest entries recorded on the title registry [15/10/2015 Caveat No. 1997674 & 12/11/2015 Caveat No. 2001974], prior to the Supreme Court hearing date or issue of a valid court ‘order that the caveat be removed‘ in accordance with section 105(3), and maybe considered contempt of court and fraud on the court by deceptive dealing fraud on title and fraud against the Registrar through ‘dishonesty or moral turpitude’ improper dealings, ‘deliberately misrepresenting important facts’, with ‘deception to secure unfair or unlawful gain, or to deprive a victim of a legal right’ in the real estate land title property transaction by the fraud on title dealings on the estate asset land title registry record, considered on offence under section 165(1)(a) of the Act.
• The litigation party [Mr Kaney] ‘intention to adversely affect the rights of another person or at least recklessness as regards the affectation of such rights’, ‘wilfully and consciously sought to defeat or disregard the rights’ of the Rushton’s prior notice of caveat entries having been recorded on the title record [15/10/2015 Caveat No. 1997674 & 12/11/2015 Caveat No. 2001974] and deceptively made a ‘false attestation’ in the land titles registry application instrument lodged to have the caveat entries altered and removed from the title record, ‘deliberately misrepresenting important facts’, with ‘deception to secure unfair or unlawful gain, or to deprive a victim of a legal right’ in the real estate land title property transaction, during the pending Supreme Court legal proceedings and therefore subsequently ‘fraudulent non-disclosure of crucial information‘ by the litigation party [Mr Kaney] as a fraud on the registrar and fraud on the court title search record [15/10/2015 Caveat No. 1997674 & 12/11/2015 Caveat No. 2001974], ‘deliberately misrepresenting important facts’, with ‘deception to secure unfair or unlawful gain, or to deprive a victim of a legal right’ in the real estate land title property constructive trust transaction, and a want of probity misleading the court by the removal of the Rushton’s notice of caveat(s) interest entries from the title search record direct evidence of the matter during the pending Supreme court legal proceedings without the order of the court, acting with ‘dishonesty or moral turpitude’ by improper dealings on the property title (particularly subsequent to original family law and property settlement proceedings) that caused this deprivation of land. The Land Titles Act and recent appellate Supreme Court case law guidance provides that the State or Territory is liable for compensation for the loss and damage sustained by the victims of this fraud and ‘deprived of land or of any interest in land’ due to incorrect registration and/or fraud under section 154(1)(a) of the Act, that in this case amounts to contempt of court, intentional dissipation and devastavit of the matrimonial estate asset pool and there is no statute of limitations for constructive fraud. The deprivation of land occurs on registration of the (title) transfer, and the fraud and other factors are part of the events that enabled the registration of the transfer. Cf. LHK Nominees Pty Ltd v Kenworthy [2002] WASCA 291; 26 WAR 517 at [268-269]; In Bahr v Nicolay (No 2) (1988) 164 CLR 604 at 614; [1988] HCA 16…”fraud“. In Waimiha Sawmilling Co Ltd v Waione Timber Co Ltd [1926] AC 101 at 106, Lord Buckmaster for their Lordships, in delivering the judgment of the Privy Council, in respect of the ‘fraud exception’ required to impeach a registered title, in the context of the Torrens system, wrote: “If the designed object of a transfer be to cheat a man of a known existing right, that is fraudulent, and so also fraud may be established by a deliberate and dishonest trick causing an interest not to be registered and thus fraudulently keeping the register clear.“
• False attestation: While not automatically fraud, a false attestation (witnessing) can be considered fraud if there is reckless indifference or wilful blindness to the falsehood. ‘A false attestation constitutes a violation of the registrar’s right to take the (removal of caveat instrument) document at its word, signed in the presence of an attesting witness, and to proceed on the assumption that the document was properly executed and can be safely registered (with no pending legal proceedings). A false attestation is therefore an attack on the integrity and reliability of the registration system; the false witness has not acted to quell potential scams by properly employing the protections that have been built into the system.’ Such a witness has consciously made an untrue representation to the Registrar can sensibly be regarded a want of probity as having defrauded the registrar and as a fraud on the registrar. The litigant party ‘knew the document was to be submitted to the Registrar-General for registration’ and that he ‘put his signature to the document with the intention of obtaining registration by representing something to the Registrar-General which he knew to be false or at the very least was reckless about’. Thus (with pending legal proceedings) both elements – knowledge of the falsity of the attestation and knowledge of the consequences of a false attestation – were satisfied on the facts.
• There is no requirement for the Registrar-General and/or the titles registry operator (“ACT Land Titles office”) to push claimants back to Court as the Court has already provided that guidance that they are to make the decision in accordance with the law and provide remedies for errors in the land register that are found in legislation and common law being correct the land register to reinstate the person who has been deprived of land or of any interest in land as the legally registered owner; and/or payment of compensation for the loss and damage sustained by the victims of this fraud by the State or Territory under section 154(1)(a) of the Act. Under the Land Title Act it is the statutory duty of the Registrar-General to ensure the accuracy and integrity of the land register.
• Currently the land register is not correct due to errors in the registration process and/or fraud and the refusal of the Registrar-General (Commissioner) to investigate the fraud and errors in registration. This refusal has led to the furthering of the fraud and the cause of people being deprived of their land. Without the incorrect registration in these cases the fraud could not have been furthered. In some cases, but not in all, the incorrect registration by the Registrar-General (Commissioner) has enabled the fraud to be perpetrated as considered an offence under section 165(1)(a) of the Act. A recent appellate court decision is that the Commissioner (Registrar-General) must investigate fraud and make a decision in accordance with the law.
• 🧾 Earlier urgent Federal Circuit Court orders from 2015 (Rushton v Rushton [2014] FCC (P)BRC10298) confirm legal proceedings had already concluded on the matter due to Mrs Rushton’s absence, default and failure to contest her husband’s legal usufruct claims in relation to her (terminally ill palliative care out-patient) relationship incapacity status, parenting and family law property settlement — contradicting the 2014 separation claim alleged without evidence in Kaney v Rushton [2017] ACTSC 11.

In Bahr v Nicolay (No 2) (1988) 164 CLR 604 at 614; [1988] HCA 16…”fraud“. In Waimiha Sawmilling Co Ltd v Waione Timber Co Ltd [1926] AC 101 at 106, Lord Buckmaster for their Lordships, in delivering the judgment of the Privy Council, in respect of the ‘fraud exception’ required to impeach a registered title, in the context of the Torrens system, wrote: “If the designed object of a transfer be to cheat a man of a known existing right, that is fraudulent, and so also fraud may be established by a deliberate and dishonest trick causing an interest not to be registered and thus fraudulently keeping the register clear.“

⚖️ The Absolutely Contradictory Cases – offer a stark illustration of procedural fairness in action and in failure, revealing two very different judicial approaches to procedural fairness and jurisdictional legitimacy. It reflects deeper issues in the courts absence or usurpation of jurisdiction, due process, violation of procedural fairness and irregularities, absence of evidentiary rigor verification, want of probity, judicial discretion and ultra vires conduct, that maybe interpreted as clear bias bringing the administration of justice into disrepute.

1. Federal Circuit Court of Australia – Rushton v Rushton [2014] FCC BRC10298

• Key Issue: Urgent parenting and property orders.
• The self-represented applicant husband Ben Rushton appeared in person.
• The respondent wife Kelli Rushton and her legal representative’s did not appear or lodge a defence.
• The court order: “All extant applications are dismissed for want of jurisdiction dismissed all applications for want of jurisdiction.”
• This decision later became a foundational point in arguments about res judicata and jurisdictional overreach in subsequent litigation.
• “To do one’s own business and not to be a busybody is justice.” (Plato’s Republic 433b, initial definition of justice.)
• Legal Maxim: “Husband and wife are considered one person in law.” Co Litt. 112. also see “legal usufruct“. (Vir et uxor consentur in lege una persona); “A stream cannot rise higher than its source.” Cf. Communist Party v Commonwealth [1951] HCA 5; 83 CLR Ful. 258.
• Key Principle: Final judgments preclude re-litigation of the same issues between the same parties.
• Key Principle: The principles underlying the doctrine of (“a matter decided”) res judicata were stated by Lord Blackburn in Lockyer v Ferryman ((48) (1877) 2 App Cas 519 at 530.): “The object of the rule of res judicata is always put upon two grounds – the one public policy, that it is the interest of the State that there should be an end of litigation (interest rei publicae, ut sit finis litium), and the other, the hardship on the individual, that he should be vexed twice for the same cause (nemo debet bis vexari pro una et eadam causa).”
• Key Principle: In Caddy and Miller (1986) FLC 91-720 the Full Family Court identified an important public policy issue and defined (“a matter decided”) res judicata estoppel at 75,233: “The rule as to res judicata comes into operation whenever a party attempts in a second proceeding to litigate a cause of action which has merged into judgment in a prior proceeding.” The doctrine [of the rule of estoppel by res judicata [at 7]] “…reflects the general interest of the community in the termination of disputes and in the finality (relieve parties of the costs, devastavit of estates by parties (or their privies) and vexation of multiple lawsuits, conserve judicial resources, and by preventing inconsistent decisions, encourage reliance on adjudication) and conclusiveness of judicial decisions, together with the right of the individual litigant to be protected from multiple suits for the same cause. It is part of the common law, and parties (or their privies) who go to a court to effect a resolution of a dispute are bound by its operation and consequences.” “A judgment which purports finally to determine rights is none the less effective for the purposes of creating an estoppel…” Cf. Halsbury’s Laws of England (2nd Edn.) Vol. 13, p. 403.
• Legal Maxim: “It is advantageous to the public that there be an end to lawsuits.” A maxim meaning that protracted litigation puts a strain on the judicial system and undermines the law’s role in dispute resolution, and so the public interest requires that disputes be resolved in some final form rather than continuing indefinitely to drain the resources of courts and the parties, such as the extensive lawfare against the surviving husband and the devastavit of the three minor beneficiaries of the matrimonial estate assets in this case.
• Key Principle: In the House of Lords in Hunter v Canary Wharf Ltd [1997] AC 655, Lord Hoffman held at 703: “In speaking of ‘possession or occupation’ Lord Wright was in my view intending to refer to both a right to possession based upon (or derived through) title and to de facto occupation. In each case the person in possession is entitled to sue in trespass and in nuisance. …” [724] “So where it is the tort of nuisance which is being relied upon to provide the remedy … the plaintiff must show that he has an interest in the land that has been affected by the nuisance of which he complains. Mere presence on the land will not do. He must have a right to the land, for example as owner or reversioner, or be an exclusive possession or occupation of it as tenant or under a licence to occupy.” [Cf. Romani v State of New South Wales [2023] NSWSC 49, Justice Wright agreed at [36, 38-42, 46-50 and 53]; also see Aliraja v Dukes, Commissioner of Titles [2025] WASCA 103 at [14-15, 81, 90-91, 142] i.e. Where deprivation is caused by fraud, not merely incidental breaches of trust, compensation and rectification must follow. [91.] “Registrar may determine the claim without the necessity for court proceedings.” [142.] “…the right to the recovery of the land itself of which a person has been deprived by fraud is expressly preserved by s 199(d).”

2. ACT Tribunals & Courts – Kaney v Rushton (abstention) [2017] ACTSC 11; Kaney v Rushton (abstention) [2015] FamCA 1001, published under the pseudonym [Castle & Roll-Land] Kestle & Rolland by functus officio Faulks DCJ; et al.

• Key Issue: Possession of property and enforcement of estate rights.
• The respondent widower husband Ben Rushton was absent.
• Outcome: Mark Kaney, as executor of Kelli Rushton’s estate (the deceased’s half brother), was granted possession of the property and estate with costs.
• The court irregularly proceeded in the absence of the respondent widower husband Ben Rushton, stating it was “in the interests of justice.”
• It made substantive findings about separation, property, and the couples 19 year relationship status and marriage — based on uncorroborated assertions from the third party false witness litigation guardian, Mark Kaney (the deceased’s half brother), as executor of Mrs Kelli Rushton’s estate.
• The local tribunal, inferior court of Petty Sessions renamed the Magistrates Court and subsequently the petition to the ACT Supreme court usurped jurisdiction, implied tacit consent and default (contrary to the fact that jurisdiction was explicitly evidently denied and revoked by express refusal and abstention withdrawal), dispensed with service rules, and accepted that the husband [Mr] Rushton had been “taken to have been served.”
• The contempt and breach of the urgent court order that the respondent widower husband Ben Rushton was holding as the highest interest, first in time, first in right, stare decisis binding estoppel by res judicata claim preclusion court order from the Federal Circuit Court of Australia in vivo Rushton v Rushton [2014] FCC (P)BRC10298 by The Honourable Judge Hughes in relation to the valid marriage legal usufruct, relationship status, parenting and property settlement according to family law.
• Even though the applicant third party false witness litigation guardian, Mark Kaney, as executor of Kelli Rushton’s estate was present, the absence her surviving respondent husband meant the court could not fairly adjudicate ‘natural justice‘ in the matter suggesting serious concerns about its legal validity.
• Highlights:
• legal usufruct🏡 The court found the unconscionable in bad faith re-litigation party Mark Kaney, as executor of Kelli Rushton’s estate (the deceased’s half brother), had a valid claim to the property as executor, and there was allegedly no countervailing interest from the 19 year relationship surviving husband Ben Rushton who had already exercised his legal usufruct right of survivorship, parenting and possession of the matrimonial property, cohabiting with his three young maternally orphaned children in the matrimonial property, as legally authorised since the original family law court order binding precedent under res judicata and legal usufruct claim preclusion in vivo Rushton v Rushton [2014] FCC BRC10298.
• The decision involved enforcement by armed force of a decision made in proceedings that were conducted in an inferior ACAT tribunal lacking proper authority or jurisdiction and accepted by the Registrar of the ACT local inferior court of Petty Sessions renamed the Magistrates Court also lacking proper binding real estate title authority or jurisdiction to address procedural irregularities in service and jurisdiction.
• The inferior ACAT tribunal and local inferior court of Petty Sessions renamed the Magistrates Court Registrar orders lacking proper real estate title authority or jurisdiction to make such ‘orders for the recovery of land, it was beyond power, therefore, no valid order to be enforced‘ [as confirmed and found in ACTSC 11 [2017] at 99], and later challenged in Rushton v Kaney [2021] FCA 358 as having been obtained by fraud, with claims of ultra vires actions and misleading evidence from the third party false witness litigation guardian, Mark Kaney, as executor of Kelli Rushton’s estate.
• Key Principle Breach: Tribunals or Commissions ‘also referring to agencies of the executive government or other agencies are not recognisable as courts‘, are ‘unable to exercise judicial powers‘ and jurisdiction, they fail to be courts and cannot provide an enforceable judicial decision. Cf. Burns v Corbett (2018) HCA 15; 353 ALR 386. 
• Key Principle Breach: (Australian Treaty Series 1910 No. 8) International Convention concerning the Laws and Customs of War on Land (Hague IV) [The Hague Convention (IV)], Article 46. “Family honour and rights, the lives of persons, and private property, as well as religious convictions and practice, must be respected. Private property cannot be confiscated.” Cf. Polyukhovich v The Commonwealth of Australia and Another [1991] HCA 32; 172 CLR 501; BRENNAN J. said at [32], [36], [39-44]; McHUGH J. said at [32.] ‘The Act is a valid enactment under s.51(xxix) and (xxxix) of the Constitution (63 and 64 Vict. c. 12, s. 51(vi), (xxix), Ch. III—War Crimes Act 1945 (Cth)).
• Key Principle Breach: Magna Carta 1297 (25 Edw I c 29) (Imp., NSW, ACT), c. 29 “No freeman shall be taken or imprisoned, or disseised of his freehold, liberties or free customs, or be outlawed or exiled or in any other wise destroyed; nor will We pass upon him nor condemn him, but by lawful judgment of his peers or by the law of the land. We will sell to no man, and we will not deny or defer to any man, either justice or right. We, ratifying and approving these gifts and grants aforesaid, confirm and make strong all the same for us and our heirs perpetually, and by the tenor of these presents do renew the same: willing and granting for us and our heirs that this Charter and all and singular its articles for ever shall be steadfastly, firmly and inviolably observed.” Cf. Why Magna Carta Still Matters [2015] by Steven Rares J, FCA at [13, 24–27], President of the Judicial Conference of Australia; IVAN JOSIP LUKATELA v JOHN ARTHUR BIRCH [2008] ACTSC 99 at [3-6], Magna Carta, c. 29; Human Rights.
• Key Principle Breach: A court must have jurisdiction conferred by statute or common law. Any orders made without jurisdiction are void ab initio.
• Key Principle Breach: Courts cannot re-decide matters already settled unless there’s statutory or appellate authority. Protracted litigation puts a strain on the judicial system and undermines the law’s role in dispute resolution, and so the public interest requires that disputes be resolved in some final form rather than continuing indefinitely to drain the resources of courts and the parties, such as the extensive lawfare against the surviving husband and the devastavit of the three minor beneficiaries of the matrimonial estate assets in this case.
• Key Principle Breach: Final judgments preclude re-litigation of the same issues between the same parties.
• Key Principle Breach: ‘There are no maxims of the law more firmly established, or of more value in the administration of justice, than the two which are designed to prevent repeated litigation between the same parties in regard to the same subject of controversy.’ The principles underlying the doctrine of (“a matter decided”) res judicata were stated by Lord Blackburn in Lockyer v Ferryman ((48) (1877) 2 App Cas 519 at 530.): “The object of the rule of res judicata is always put upon two grounds – the one public policy, that it is the interest of the State that there should be an end of litigation (interest rei publicae, ut sit finis litium), and the other, the hardship on the individual, that he should be vexed twice for the same cause (nemo debet bis vexari pro una et eadam causa).”
• Key Principle Breach: The rights of an occupier of property have long been cherished. Thus, in Semayne’s Case (1604) 5 Co Rep 91a, 77 ER 194 at 194 it was said that: “The house of every one is his castle …” The Earl of Chatham is reported as saying: “The poorest man may in his cottage bid defiance to all the forces of the Crown.“
• Key Principle Breach: Legal Maxim, “Husband and wife are considered one person in law.” Co Litt. 112. also see “legal usufruct“. (Vir et uxor consentur in lege una persona); “A stream cannot rise higher than its source.” Cf. Communist Party v Commonwealth [1951] HCA 5; 83 CLR Ful. 258.

⚖️ Procedural Fairness

Procedural fairness (also known as ‘natural justice‘) is anchored in two key principles:

1. The right to be heard (audi alteram partem)

2. The rule against bias (nemo judex in causa sua)

It ensures that decisions are made transparently, impartially, and with proper opportunity for all parties to present their case. The contradiction in the unconscionable re-litigation cases highlight that procedural fairness is not optional—it’s foundational.

The unconscionable in bad faith re-litigation cases present a stark contradiction in judicial approaches to procedural fairness and jurisdictional legitimacy, highlights clear bias against the surviving husband Ben Rushton and underscores the importance of ‘natural justice‘ , especially the right to be heard (audi alteram partem), and the dangers of proceeding in the absence of a party without clear jurisdiction or evidentiary rigor and adherence to in vivo (in life) precedent earlier superior Federal Circuit Court family law urgent order from 2015 in Rushton v Rushton [2014] FCC to preclude unconscionable re-litigation of the same issues between the same parties or their privies, especially posthumously (after death).]

[Cf. $ee dissenting decisions to apprehended bias in error opinion by Rares J in Rushton v Kaney and Commonwealth Superannuation Corporation (CSC) and Australian Financial Complaints Authority (AFCA) (No 3) [2021] FCA 358 in Christopher v McFarlane as executor of the Estate of Buss (Deceased) [2017] QDC 154 at [55-58], [77], [104-111]:

[77.] Physical separation will not preclude a finding that they were living together on a genuine domestic basis during this time… I am conscious too of the comments of Dutney J in S v B about the fragility of a de facto relationship unlike a marriage galvanised by law. He said at para [33]: “The robust institution of marriage survives until formally dissolved by legal process, even though the parties are no longer a couple and exhibit none of the observable indicia of a domestic arrangement… In Hibberson v George (NSWCA) as cited in King v The Queen [2011] VSCA 423 at [27], Mahoney JA, with whom Hope and McHugh JJA agreed, spoke of the de facto relationship as follows: “There is, of course, more to the relevant relationship than living in the same house… The relationship of marriage, being based in law, continues notwithstanding that all of the things for which it was created have ceased. Parties will live in the relationship of marriage notwithstanding that they are separated, without children, and without the exchange of the incidents which the relationship normally involves.”]

Maxims of Law:

Consensus, non concubitus, facit matrimonium. ‘Consent, not coition (or sharing a bed), constitutes marriage.’

Nuptias non concubitus sed consensus facit. ‘Not sharing a bed but consent makes the marriage.‘  

Precedent in Administrative Law:

In Loper Bright Enterprises v. Raimondo, Secretary of Commerce, U.S. 603, [2024], certiorari to the united states court of appeals for the district of columbia circuit, a landmark decision of the United States Supreme Court in the field of administrative law, the law governing regulatory agencies. Together with its companion case, Relentless, Inc. v. Department of Commerce, Held: The Administrative Procedure Act requires courts to exercise their independent judgment in deciding whether an agency has acted within its statutory authority, and courts may not defer to an agency interpretation of the law simply because a statute is ambiguous; Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, [1984], is overruled. Pp. 7–35.

It overruled the principle of Chevron deference established in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, [1984], which had directed courts to defer to an agency’s reasonable interpretation of an ambiguity in a law that the agency enforces.

⚖️ Legal Meaning of the original Rushton v Rushton [2014] FCC BRC10298 urgent court order in accordance with the Family Law Act 1975

Court: Federal Circuit Court of Australia
Judge: Judge Hughes
Date: 6 May 2015
File Number: (P)BRC10298/2014
Parties: Ben Anthony Rushton (Applicant) v Kelli Maree Rushton (Respondent)

🧾 The Order:

“All extant applications are dismissed for want of jurisdiction.”

🔍 Interpretation:

• “Extant applications” refers to all ongoing or pending legal claims or motions in that case.
• “Dismissed for want of jurisdiction” means the court determined it did not have the legal authority to hear or decide those matters.

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🧠 Legal Consequences

• This urgent order precludes further action in that court on the same issues unless jurisdiction is properly established.
• It creates a binding precedent under res judicata and claim preclusion, meaning the same parties cannot re-litigate the same claims in that forum. Protracted litigation puts a strain on the judicial system and undermines the law’s role in dispute resolution, and so the public interest requires that disputes be resolved in some final form rather than continuing indefinitely to drain the resources of courts and the parties, such as the extensive lawfare against the surviving husband and the devastavit of the three minor beneficiaries of the matrimonial estate assets in this case.
• “To do one’s own business and not to be a busybody is justice.” (Plato’s Republic 433b, initial definition of justice.)
• In Caddy and Miller (1986) FLC 91-720 the Full Family Court identified an important public policy issue and defined (“a matter decided”) res judicata estoppel at 75,233: “The rule as to res judicata comes into operation whenever a party attempts in a second proceeding to litigate a cause of action which has merged into judgment in a prior proceeding.” The doctrine [of the rule of estoppel by res judicata [at 7]] “…reflects the general interest of the community in the termination of disputes and in the finality (relieve parties of the costs, devastavit of estates by parties (or their privies) and vexation of multiple lawsuits, conserve judicial resources, and by preventing inconsistent decisions, encourage reliance on adjudication^[6]) and conclusiveness of judicial decisions, together with the right of the individual litigant to be protected from multiple suits for the same cause. It is part of the common law, and parties (or their privies) who go to a court to effect a resolution of a dispute are bound by its operation and consequences.” “A judgment which purports finally to determine rights is none the less effective for the purposes of creating an estoppel…” Cf. Halsbury’s Laws of England (2nd Edn.) Vol. 13, p. 403.
• It may be used to challenge subsequent proceedings that ignore or contradict this dismissal court order — especially if those proceedings were conducted in inferior courts or tribunals such as the local inferior court of Petty Sessions renamed the Magistrates Court lacking proper real estate title authority or jurisdiction, such as in the subsequent extensive contempt and breach of this court order in multiple protracted unconscionable posthumous in bad faith re-litigation cases draining the resources and causing devastavit of the matrimonial estate assets such as under the pseudonym [Ca$tle & Roll-Land] Kestle & Rolland (abstention) [2015] FamCA 1001; Kaney v Rushton (abstention) [2017] ACTSC 11; Rushton v Kaney & Ors [2021] FCA 358; et al; and causing Rushton v Commonwealth of Australia [2023] FCA 1357.
• Key Principle: Courts cannot re-decide matters already settled unless there’s statutory or appellate authority.

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🧨 Strategic Implications

This order is often cited in later challenges — including Kaney v Rushton [2017] ACTSC 11 — as evidence that:

• The Federal Circuit Court had already ruled on jurisdiction.
• Later state or territory proceedings may have been ultra vires (beyond power).
• Any orders made in contradiction to this dismissal could be void or fraudulent, especially if they relied on inadmissible hearsay or excluded the applicant who had already exercised his legal right of survivorship, parenting and possession of the matrimonial property, cohabiting with his three young maternally orphaned children in the matrimonial property, as legally authorised since the original family law binding precedent res judicata and claim preclusion urgent court order in vevo Rushton v Rushton [2014] FCC BRC10298.
• Key Principle: In the House of Lords in Hunter v Canary Wharf Ltd [1997] AC 655, Lord Hoffman held at 703: “In speaking of ‘possession or occupation’ Lord Wright was in my view intending to refer to both a right to possession based upon (or derived through) title and to de facto occupation. In each case the person in possession is entitled to sue in trespass and in nuisance. …” [724] “So where it is the tort of nuisance which is being relied upon to provide the remedy … the plaintiff must show that he has an interest in the land that has been affected by the nuisance of which he complains. Mere presence on the land will not do. He must have a right to the land, for example as owner or reversioner, or be an exclusive possession or occupation of it as tenant or under a licence to occupy.” [Cf. Romani v State of New South Wales [2023] NSWSC 49, Justice Wright agreed at [36, 38-42, 46-50 and 53]; also see Aliraja v Dukes, Commissioner of Titles [2025] WASCA 103 at [14-15, 81, 90-91, 142] i.e. Where deprivation is caused by fraud, not merely incidental breaches of trust, compensation and rectification must follow. [91.] “Registrar may determine the claim without the necessity for court proceedings.” [142.] “…the right to the recovery of the land itself of which a person has been deprived by fraud is expressly preserved by s 199(d).” Fraud on title and fraud against the Registrar through ‘dishonesty or moral turpitude’ improper dealings breach of financial, legal and equitable interest (indefeasible right) in land ‘held to be paramount or to have priority’ statutory injunction (special court order) caveat [15/10/2015 Caveat No. 1997674 & 12/11/2015 Caveat No. 2001974] ‘notified on the folio of the register for the land’, in the ACT Land Titles Office registry by the Registrar-General under s.42 of the Real Property Act 1900 (NSW) and s.58 of the Land Titles Act 1925 (ACT), ‘prohibiting registrations and dealings‘ on the matrimonial estate property land title.
• Key Principle: (Australian Treaty Series 1910 No. 8) International Convention concerning the Laws and Customs of War on Land (Hague IV) [The Hague Convention (IV)], Article 46. “Family honour and rights, the lives of persons, and private property, as well as religious convictions and practice, must be respected. Private property cannot be confiscated.” Cf. Polyukhovich v The Commonwealth of Australia and Another [1991] HCA 32; 172 CLR 501; BRENNAN J. said at [32], [36], [39-44]; McHUGH J. said at [32.] ‘The Act is a valid enactment under s.51(xxix) and (xxxix) of the Constitution (63 and 64 Vict. c. 12, s. 51(vi), (xxix), Ch. III—War Crimes Act 1945 (Cth)).
• Key Principle: These rights of an occupier of property have long been cherished. Thus, in Semayne’s Case (1604) 5 Co Rep 91a, 77 ER 194 at 194 it was said that: “The house of every one is his castle …” The Earl of Chatham is reported as saying: “The poorest man may in his cottage bid defiance to all the forces of the Crown.“
• Key Principle: Legal maxim, “Husband and wife are considered one person in law.” Co Litt. 112. (Vir et uxor consentur in lege una persona); “A stream cannot rise higher than its source.” Cf. Communist Party v Commonwealth [1951] HCA 5; 83 CLR Ful. 258.
• Key Principle: Final judgments preclude re-litigation of the same issues between the same parties or their privies.

Original FCA appeal: Rushton v Commonwealth Superannuation Corporation (CSC) and Australian Financial Complaints Authority (AFCA)(No 2) [2020] FCA 777-1049.

The office of custos placitorum coronae.

“You can Judge a Man by the SIZE of the FRAUD of his repugnant vulture ENEMIES ~ only an incompetent wrongdoer is re-presented by state war pigs and lawyers” as “you were defeated formerly”, the cause has ended; “If I can’t have you, no one will!” ~ Mrs Rushton [2014], said to Mr Rushton: Rest in peace my Darling; “The lady doth protest too much, methinks” ~ Hamlet.

“The government has been accused of having sticky fingers after the Assistant Treasurer compared Australians’ superannuation hard-earned savings to honey that should be managed in the best interests of the hive to fill a one billion dollar hole in the budget…”

“Socialism and communism, frauds and thieves coming after your money… a bunch of leftist “clowns” whose agenda is to de-legitimise Australia by altering superannuation… it’s a rort through and through… this is socialist hard left government, make no mistake about it”, Sky News host Rowan Dean says.

‘Australian Super is being sued by the corporate regulator ASIC for failing to process thousands of death benefit claims “efficiently, honestly and fairly” and failing to pay out millions of dollars to deceased members’ families between July 2019 and October 2024.’

‘It comes after ASIC sued industry super fund Cbus last year for delays in processing more than 10,000 death and disability payments.’

‘All superannuation funds had been “put on notice”.’

“We think that the delays in payment of death benefits and disability claims in the superannuation sector are significant,” Ms Court said at the time.

“Delays are likely to cause further pain and anxiety to people who are already suffering from grief, making what is already a difficult time even harder.”

Source:
https://www.abc.net.au/news/2025-03-12/asic-sues-australian-super-death-processing-benefit-claims-delay/105040450

https://asic.gov.au/about-asic/news-centre/find-a-media-release/2025-releases/25-034mr-asic-sues-australiansuper-alleging-significant-death-benefit-claims-failures

“Human rights advocates say (cognitively impaired) public servants (such as the Commonwealth Superannuation Corporation (CSC) “APS Reconsideration Committee” making subsequent unconscionable reconsideration decisions that set aside a binding multi-million dollar contract instrument (married widow pension) decision initially made by the “Delegate” of CSC and then deny any appeal on the unconscionable decision of the (cognitively impaired) APS Reconsideration Committee) are ignoring legislation and overriding the checks and balances put in place by Parliament to protect Australians from systemic and administrative abuses of power and authority designed to uphold the human rights of those most vulnerable individuals.”

“Director of KSM Disability Consultancy, Ms. Ksenija Kristo, said “There is a dangerous clique of public servants which operate within the shadows, away from any public scrutiny… $150,000 to take the (Commonwealth) State to court and that’s why corrupt (cognitively impaired) public officials become emboldened to continue such illegal conduct, as they know that not even Parliament or a higher court will stop them!“

⚖️ Family Court of Australia – Kaney v Rushton (abstention) [2015] FamCA 1001, published under the pseudonym [Castle & Roll-Land] Kestle & Rolland by functus officio Faulks DCJ.

Key Principle: The rights of an occupier of property have long been cherished. Thus, in Semayne’s Case (1604) 5 Co Rep 91a, 77 ER 194 at 194 it was said that: “The house of every one is his castle …” The Earl of Chatham is reported as saying: “The poorest man may in his cottage bid defiance to all the forces of the Crown.“

Parties: The case proceeded irregularly with unilateral submissions, and there are allegations that the absent party husband has been denied ‘natural justice‘, especially the right to be heard (audi alteram partem), and the dangers of proceeding in the absence of a party without clear jurisdiction or evidentiary rigor as the proceedings relied on inadmissible third party hearsay false witness accusations.

Key Issue: Posthumous unconscionable in bad faith re-litigation of deceased estate parenting and property orders

Highlights:

• The respondent husband Ben Rushton was absent.
• The court irregularly proceeded with unconscionable re-litigation in the absence of the respondent husband Ben Rushton.
• The court usurped jurisdiction, implied tacit consent and default that was explicitly evidently denied, dispensed with service rules.
• The courts posthumous unconscionable re-litigation was in bad faith contempt and breach of the in vivo original court order that the respondent husband Ben Rushton was holding as the highest interest, first in time, first in right, stare decisis binding estoppel by res judicata claim preclusion court order from the Federal Circuit Court of Australia in vivo Rushton v Rushton [2014] FCC (P)BRC10298 by The Honourable Judge Hughes in the same matters of the married couples relationship status, parenting and property settlement according to family law.
• The court posthumously made substantive findings about separation, property, and the couples 19 year relationship status and still valid marriage — based on uncorroborated assertions from third party false witness accusations presented in unconscionable bad faith by the re-litigation guardian, Mark Kaney (half brother of the deceased), as executor of the wife, Kelli Rushton’s estate.
• Earlier Federal Circuit Court family law court orders from 2015 (Rushton v Rushton [2014] FCC (P)BRC10298) suggest urgent in vivo legal proceedings had already concluded due to the wife Mrs Rushton’s absence and default failure to contest her husband’s urgent claims in relation to her relationship (terminally ill palliative care out-patient) incapacity status, parenting and matrimonial property settlement.
• Even though the applicant third party false witness litigation guardian, Mark Kaney, as executor of Kelli Rushton’s estate was present, the absence the surviving respondent husband meant the court could not fairly adjudicate natural justice in the matter suggesting serious concerns about its legal validity.
• Key Principle: Courts cannot re-decide matters already settled unless there’s statutory or appellate authority.
• Key Principle: Final judgments preclude re-litigation of the same issues between the same parties.

Key Principle: The judgment has been heavily criticized and cited in later proceedings (notably, Rushton v Kaney [2021] FCA 358) for proceeding in the absence of proper adversarial engagement, raising serious questions that it lacked natural justice fairness and proper jurisdiction grounding as an example of “coram non judice” proceedings — ultra varies judgments made without proper judicial authority.

Outcome: Orders were made concerning custody and property In favour of the applicant Mark Kaney (the deceased’s half brother), as executor of Kelli Rushton’s estate, but the case has been heavily criticized in later proceedings for jurisdictional, procedural and evidentiary flaws in the absence of the surviving husband Ben Rushton who had already exercised his legal right of survivorship, parenting and possession of the matrimonial property, cohabiting with his three young maternally orphaned children in the matrimonial property, as legally authorised since the original family law court order binding precedent under res judicata and claim preclusion in vivo Rushton v Rushton [2014] FCC BRC10298.

‘There are no maxims of the law more firmly established, or of more value in the administration of justice, than the two which are designed to prevent repeated litigation between the same parties in regard to the same subject of controversy.’ The key principles underlying the doctrine of (“a matter decided”) res judicata were stated by Lord Blackburn in Lockyer v Ferryman ((48) (1877) 2 App Cas 519 at 530.): “The object of the rule of res judicata is always put upon two grounds – the one public policy, that it is the interest of the State that there should be an end of litigation (interest rei publicae, ut sit finis litium), and the other, the hardship on the individual, that he should be vexed twice for the same cause (nemo debet bis vexari pro una et eadam causa).” Latin maxim:
“It is advantageous to the public that there be an end to lawsuits.” A maxim meaning that protracted litigation puts a strain on the judicial system and undermines the law’s role in dispute resolution, and so the public interest requires that disputes be resolved in some final form rather than continuing indefinitely to drain the resources of courts and the parties, such as the extensive lawfare against the surviving husband and the devastavit of the three minor beneficiaries of the matrimonial estate assets in this case.

The unconscionable in bad faith re-litigation of this case in the family court presents a stark contradiction in judicial approaches to procedural fairness and jurisdictional legitimacy, ultra vires conduct and illuminates clear bias against the surviving husband Ben Rushton of the 19 year relationship and marriage, underscores the importance of natural justice, especially the right to be heard (audi alteram partem), and the dangers of proceeding in the absence of the surviving party without clear jurisdiction or evidentiary rigor and in contempt and breach of the court order from the original in vevo (in life) binding precedent res judicata and claim preclusion in Rushton v Rushton [2014] FCC BRC10298 that precluded unconscionable re-litigation of the same issues between the same parties or their privies, especially posthumously (after death).

[Grief is not just an emotion—it’s an unraveling, a space where something once lived but is now gone. It carves through you, leaving a hollow ache where love once resided.

In the beginning, it feels unbearable, like a wound that will never close. But over time, the raw edges begin to mend. The pain softens, but the imprint remains—a quiet reminder of what once was. The truth is, you never truly “move on.” You move with it. The love you had does not disappear; it transforms. It lingers in the echoes of laughter, in the warmth of old memories, in the silent moments where you still reach for what is no longer there. And that’s okay.

Grief is not a burden to be hidden. It is not a weakness to be ashamed of. It is the deepest proof that love existed, that something beautiful once touched your life. So let yourself feel it. Let yourself mourn. Let yourself remember.

There is no timeline, no “right” way to grieve. Some days will be heavy, and some will feel lighter. Some moments will bring unexpected waves of sadness, while others will fill you with gratitude for the love you were lucky enough to experience.

Honor your grief, for it is sacred. It is a testament to the depth of your heart. And in time, through the pain, you will find healing—not because you have forgotten, but because you have learned how to carry both love and loss together. ~ Jim Carey.]