Only in the self-indulgent, damn democracy climate prevailing in the lead-up to the 2016 double dissolution federal election would a registered political party have considered endorsing a candidate with this legal history……
Rod Culleton
Photograph: Channel Nine
In Armidale Local Court on Monday afternoon, Magistrate Michael Holmes granted Culleton's application, and annulled the larceny conviction, which was made when he failed to appear in court in March.
Senator Culleton will fight the larceny charge, after pleading not guilty.
Mr Holmes adjourned the case to September 12 for mention to fix a hearing date.
He told the court if the matter "was short" he could deal with it on that day.
Mr Holmes told Culleton to keep in contact with his solicitor, and dispensed his bail, which was granted by police following his arrest.
Mr Holmes told the court he was happy to deal with the matter, and had read all the files.
He also referenced Senator Culleton's "colourful letter" which was sent to the court.
Fairfax Media understands the letter labelled the Armidale court as a "kangaroo court".
It's now expected Senator Culleton's district court challenge against the conviction, set down for next week in Armidale, will be withdrawn.
New One Nation senator Rodney Culleton is in police custody after turning himself in over an outstanding warrant related to his failure to appear in a NSW court to answer larceny charges.
A NSW Police spokesman confirmed a man was being dealt with by police in Armidale and would be bailed to appear before the local court on Monday afternoon.
The West Australian senator was convicted in his absence earlier this year for stealing a tow truck key from a driver who was trying to repossess one of his company cars in 2014.
He's seeking to have that conviction annulled.
Larceny carries a maximum penalty of five years jail, which could deem him ineligible to be a senator.
The constitution says anyone convicted of crime that has a punishment of at least one year's jail can't be a member of parliament.
Senator Culleton is also awaiting trial in WA later this month - the week before parliament begins - after he was arrested and charged for allegedly stealing a car being used by receivers from RSM Bird Cameron as they began foreclosure proceedings at a friend's farm.
The senator won the 11th spot on the WA ballot.
He is expected to appear before Armidale Local Court again after 1400 (AEST) on Monday.
For someone who apparently prides himself on being a defender of the nation's farmers, new One Nation Senator-Elect Rodney Culleton sure has a strange way of showing it.
ASIC documents show Culleton has appointed an administrator to his company, DEQMO Pty Ltd, which will have the effect of avoiding a wind-up application to be heard in the NSW Supreme Court today (Monday).
The petitioning party is Armidale farmer and mill owner, Jack Vivers, who says he is owed slightly more than $42,500 by Culleton, a former business associate. Money he will have much harder time getting back now that Culleton has put DEQMO into administration.
This is the same Rodney Culleton, it is worth noting, who took part in a 60 Minutes program last year called "Fighting Back" about his battle to retain his WA property and who describes himself on the One Nation website as a defender of Aussie farmers.
And the same Rod Culleton who may not finally be permitted to take his seat in the Senate pending the outcome of a larceny case, in which he is implicated.
In fact, the circumstances of his offence appear to have been relatively trivial: he was said to have stolen the key of a tow truck – a key worth $7.50 – in an effort to prevent the repossession of a vehicle he was leasing. Moreover, he was convicted in his absence because he failed to appear in court, and an appeal is now pending. Yet, at least until his appeal is heard, he is currently “subject to be sentenced” and is therefore “incapable of being chosen.”
It seems to have been assumed that, once it is recognised that Culleton is “incapable of being chosen,” section 15 of the Constitution will come into play. Under that provision, his Senate seat would be declared vacant. This would create a casual vacancy to be filled by the WA parliament, which would be required to nominate someone from the same political party – that is, another One Nation candidate. In the ballot paper on 2 July, the One Nation ticket listed Rodney Culleton first, his friend Peter Georgiou second, and his wife Ioanna Culleton third. So presumably one of these would be chosen.
But this assumption is wrong. As the authoritative explanation in Odgers’Australian Senate Practice makes clear, the mechanism in section 15 comes into play only when a senator who was validly elected “becomes disqualifiedafter the completion of the election process.” What happens when a senator “is found to have been disqualified at the time of election” is different. The election of that senator is totally void; the relevant seat in the Senate remains unfilled and the failure to fill it must be remedied by a recount.
Again, it seems to have been assumed that in this event, once Culleton was eliminated as “incapable of being chosen,” the votes that had been accumulated for him would simply be transferred down the line to the second candidate on the One Nation ticket, and if necessary to the third. But while this might be a realistic assessment of the probable result, it would not be so easy to achieve that result.
The distribution of preferences in Western Australia meant that the ballot papers had to be counted 539 times; and it was only on the 539th count that Culleton achieved his quota. The other two One Nation candidates had already been excluded much earlier – Ioanna Culleton by count 153, and Peter Georgiou by count 157. Thus, in order to ensure that Rodney Culleton’s votes could be transferred further down the ticket, it would be necessary to rework the entire distribution at least from count 153, and the outcome of such a redistribution could no longer be predicted with confidence.
It happens that Culleton is also awaiting trial in Western Australia on a more serious stealing charge (with a maximum penalty of seven years’ imprisonment). If he were able to take his seat, and was later convicted on that charge, then the procedure in section 15 of the Constitution would come into play. But that is irrelevant to the fact that Culleton is now “incapable of being chosen.”
As it stands, the Australian Electoral Commission has declared a candidate to be elected who is in fact “incapable of being chosen.” Strictly speaking, that announcement is unconstitutional. Presumably it might be possible to avoid such an outcome if the AEC had some mechanism for checking, before the distribution of preferences begins, whether all the nominated candidates are “capable of being chosen.” But there seems to be no such mechanism.
In August 2008 Macquarie
Leasing Pty Ltd (Macquarie) entered into a chattel mortgage agreement with
Elite Grains Pty Ltd (Elite) for the purchase of a Prime Mover (Truck).
In 2012 Elite defaulted
under the agreement, and Macquarie demanded return of the Truck. Elite refused,
so Macquarie commenced and was successful in proceedings against Elite and
Rodney Culleton (Culleton), the sole shareholder and director of Elite.
On 7 August 2014 the
Truck was sold at public auction, and simultaneously DEQMO Pty Ltd (DEQMO), of
whom Culleton was the sole director and shareholder, registered a security
interest in the Truck on the PPSR, with the effect that Macquarie could not
pass clear title to the purchaser.
Macquarie then served an
amendment demand on DEQMO pursuant to the PPSA demanding that DEQMO’s
registration be removed. No response was received. Macquarie then initiated
these proceedings seeking orders that:
DEQMO’s security
interest was void;
DEQMO’s security
interest be removed from the PPSR;
DEQMO be restrained from
re-registering any interest on the PPSR; and
DEQMO and Culleton pay
Macquarie’s costs.
Decision
Rein J granted the
orders sought by Macquarie. The evidence put forward by DEQMO failed to
establish the basis of the security interest, as Culleton was more concerned
with the manner in which the Truck was repossessed and the conduct of its sale.
In light of this
evidence (or lack of), Rein J found a number of reasons why DEQMO’s claimed
interest was invalid. However, the key basis on which Rein J held the security
interest was void was that the claimed interest was one given by DEQMO to
DEQMO, as a person or company cannot give a security interest to itself, as per
section 12 of the PPSA.
Conclusion
This decision highlights
the importance of ensuring that any registration on the PPSR has a proper
foundation to support it. The judgment of Rein J makes it clear that if a
company or person purports to grant a security interest to itself, then such a
registration will be invalid. If the security interest is in fact an ownership
interest, such registrations do not secure “payment or performance of an
obligation” as required by section 12, and can be removed under the
provisions in Part 5.6 of the PPSA.
PERMANENT CUSTODIANS LTD -v- ELITE
GRAINS PTY LTD [2014] WASC 495
In which a
bankrupt Rodney Norman Culleton was involved as second defendant (bankruptcy declared October 2014).
Court transcript here.
What happens if you are
made bankrupt?
If the Judge or
Registrar makes a sequestration order a trustee will be appointed to manage
your financial affairs. Your trustee will notify you of your bankruptcy in writing.
The trustee will explain his or her role and your responsibilities as a
bankrupt. The trustee will also give you a statement of affairs which you must
complete and file with the Official Receiver (AFSA). Your period of bankruptcy
runs for three years from the date you file your statement of affairs with
AFSA.
There are several legal
outcomes of your bankruptcy; for instance:
*You
will be released from responsibility for most of your existing debts. However,
the trustee can sell your assets or property to pay your creditors.
*Any
house or your share of a house that you own may be sold to pay your creditors.
*Any
assets which you acquire while you are bankrupt may be sold by the trustee.
*You
must not obtain credit from another person, or pay for goods or services by
cheque for more than a specified amount without telling the person that you are
bankrupt. The credit limit is updated quarterly, for an up-to-date figure
contact AFSA.
*If
you run a business while you are bankrupt you must keep all proper accounts
showing your business transactions and financial position.
There are other consequences of becoming bankrupt.
Disqualification
Any person who:…….
(iii) is an
undischarged bankrupt or insolvent;……
shall be incapable of
being chosen or of sitting as a senator or a member of the House of Representatives.
NOTICE OF APPLICATION
FOR WINDING UP ORDER
Company details
Company:
|
Elite
Grains Pty Ltd
|
ACN:
|
091 599 941
|
An application for the
winding up of Elite Grains Pty Ltd was commenced by the plaintiff Jameson Farm
Pty Ltd and continued by Komatsu Forklift Australia Pty Ltd on 03/05/2013 and
will be heard as set out below.
