Australia: Malcolm McClure and UPMART

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Backo
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Australia: Malcolm McClure and UPMART

Postby Backo » Wed Aug 28, 2013 3:58 am

Mowe has referred to this Australian operation in earlier posts. At his prompting I set out my thoughts on the legitimacy of the schemes promoted under the UPMART banner.

Overview

Mr McClure can be said in many instances to be advocating for political and legislative change in a lawful manner. This includes petitions to government and legal proceedings on public policy issues. Some of the class actions he is proposing or has implemented appear to me to be futile, even from simply perusing his website and without the benefit of examining the pleadings (aside, we don’t have the benefit of online access to filed documents in Australia). I don’t propose to comment on those actions as they appear legitimate to me. Nor do I propose to delve into his views on fluoridisation and vaccination.

I do note that Mr McClure has prosecuted numerous court actions on his own behalf on various causes of action. He is no stranger to Court processes and possible costs sanction. He readily admits he has not paid $39,000 of costs awarded against him for an unsuccessful High Court action disputing his position on an election ballot paper.

What I do propose to examine is a number of discrete schemes he has set up and offers for sale for which judicial determination has been made, including:
- Toll road exemption certificates
- Goods and Services Tax (GST) exemption cards
- Common law vehicle registration and driver licensing

I also propose to examine his actions in providing what would appear to be legal advice when unqualified and the detriment flowing from that action.

Common law vehicle registration and driver licensing

Mr McClure on his website states that he was concerned about the access of his data held in licensing and vehicle registration databases. He had not consented to the release of that data to toll road operators. So Mr McClure decided to investigate:
the laws and the requirements for vehicle registration, comply with those laws and requirements except where they interfere with my inalienable rights and thereafter create a common law vehicle registration system.

and to investigate
the law and the requirements for driver licenses and created a driver license system at common law which met the minimum community standards and best practice procedures of the states.


The case of Kobylski v. Cole [2006] QDC 308 (25 August 2006) reveals his activities thusly:

The relevant facts in respect of each of the five sets of appeals are remarkably similar. The appellant, on each occasion, was intercepted by police while driving a motor vehicle. On each occasion the appellant asserted that the motor vehicle he was driving was registered with an organisation known as UPMART Victoria and that the appellant had paid a single sum of $400 for lifelong registration for the vehicle. It appears that on each occasion what purported to be "number plates" had been provided by UPMART The driver’s licence which the appellant had with him was also (he asserted) purchased for $200 from UPMART Victoria and (the appellant asserts) was valid for life.


In a short judgment the judge dismissed the appeal and referred to the the validity of the plates and registration as follows:

It is clear, … , Mr Kobylski, is a resident in Queensland, is subject to the laws of Queensland, and has, in law, no basis for the submission that he is not subject to the relevant laws of Queensland in respect of vehicle registration, compulsory third party insurance, driver licensing and the possession of false registration plates.


In reaching this decision, the Court relied on the earlier unreported decision of Hubner v Erbacher. I note from that decision that Mr McClure attempted to represent Mr Erbacher at the hearing but leave was refused. Mr Erbacher was apparently the possessor of false plates issued by another organisation so I won’t go into that matter further.

Similar arguments by UPMART members have been rejected in the cases of:
Rainima v Magistrate Freund [2008] NSWSC 944 (12 September 2008)
Spajic v Robertson and Ors [2007] NSWSC 553 (30 May 2007)
Freilich v. Lambert [2007] QDC 157 (1 June 2007)

GST exemption cards

Mr McClure says that:

s165.55 of the Goods and services tax act gives permission for the Commissioner of taxation to lie. I don't consent to legislation that condones such iniquity, thus the GST exemption kit was created, and are being used effectively. Also GST: has caused many business to collapse; did not have the consent of the voters; was rejected by the voters and is unlawful pursuant to s55 of the Australian Federal Constitution.


The references to the effect of the GST Act and the Constitution are incorrect on a face value reading of those sections. The GST Act was not rejected by voters as it was not put to a referendum.

The GST requires suppliers of goods and services to collect a 10% tax on the value of its supplies and remit same to the Federal Government. Mr McClure apparently offered a card which exempted suppliers from this obligation. His activities are revealed in the case of Harding v Deputy Commissioner of Taxation (No 2) [2008] FCA 1985 (24 December 2008) which described the scheme thus:

The Applicant had become indebted to the present Respondent because he falsely believed that he had a GST exemption. His small business involving the sale of batteries involved the necessity to exact GST and to account for that tax. The belief that he had a GST exemption was engendered by false representations made to him by a Mr Malcolm McClure — namely, that Mr McClure was an agent of the Australian Taxation Office and had the authority to sell “GST exemption packages”. Mr Harding had come across Mr McClure when he attended a series of seminars conducted by Mr McClure in the Ryde-Eastwood Leagues Club. Mr Harding was “impressed by the professionalism of the seminars the location and the formality adopted”.

Needless to say, Mr McClure had no such authority. Searches undertaken within the Australian Taxation Office disclosed no one of that name ever having been employed by that Office. Other searches undertaken disclosed that Mr McClure had close associations with a body called “U.P.M.A.R.T.”, which described itself as “[a]n association for human rights and much, much more”. That was clearly a body having no connection with the Australian Taxation Office.


A copy of the issued card appears in the judgment but I don’t believe is reproducible here. The Court rejected that Mr Harding was misled by the issue of the card or his subsequent discussions with the ATO.

Mr Harding was unsuccessful in attempting to set aside a bankruptcy notice in this instance. Mr Harding appears to have ended up in bankruptcy with sequestration orders made in September 2009. Mr Harding may well have been failing to pay other taxation obligations in addition to GST but Mr McClure’s scheme certainly appears to have contributed to his position.

Legal representation

Mr McClure does not hold himself out as a lawyer. Nonetheless his actions have led Courts to conclude he is giving legal advice which he is unqualified (and incompetent) to give.

The case of Bob Jane Corporation Pty Ltd v Webtyre.net Pty Ltd [2012] FCA 168 (2 February 2012) gives some insight into his conduct. The case involved a judgment against a company owned by Bob Jane. Mr Jane’s company is well known in Australia. In 2006 he suffered a stroke and he remains debilitated. A judgment was given against his company in default of filing a defence. An application was brought to set aside that judgment and the company was represented at the first instance by Mr McClure (which is generally against Australian practice).

The conduct of that first appearance led to the following judicial comments:
The application came on for hearing on 5 December 2011. Mr McClure sought leave to represent the respondents. He acknowledged he was not a lawyer but said he was a director of the corporate respondents. That leave was not opposed and was granted.

It soon became obvious that Mr McClure was unable to represent the respondents competently. He was not aware of the matters necessary to be satisfied to have the judgment set aside or the procedures to be used to bring facts before the Court.


In the documents he has drawn, and his advocacy in the Court, Mr McClure has demonstrated a complete lack of understanding matched only by his self-confidence. By his incompetence, he has caused the respondents, as well as the applicants, to incur tens of thousands of dollars of unnecessary costs. His activities in representing the respondents, as well as other people in the courts, appear, on the face of it, to contravene the laws which prohibit unqualified legal practice. It is hoped that the relevant authorities will investigate these activities before further people are harmed by his conduct.

Mr Jane, who is the sole shareholder of the corporate respondents, is elderly and, by reason of his health, vulnerable to unscrupulous attention of charlatans such as Mr McClure. Mr McClure orchestrated the respondent’s action on 13 October 2011. He appeared to have chosen not to appear in the Court, essentially because he decreed for himself that the respondents should not conform to the requirements of the legal system. The respondents were under his spell, and went along with his bizarre approach.


Ordinarily, such comments would lead to the matter being referred to the state based legal services commissioner for investigation and sanction. No decision has been reported by the Commissioner that I can locate. The decision is only recent and may well lead to a sanction in the future.

Toll road exemption certificates

Mr McClure’s website suggests that :

Early in the period of gathering signatures I created UPMART's first initiative, the Toll Exemption Ticket (TET, a perpetual 34-year exemption from toad tolls) and began distributing this ticket to the general public in return for a donation which ranged from 20c to a few dollars. With the ticket there was the requisite UPMART membership and a legal kit that gave various information's about toad tolls. This was in June of 1998. Over 1500 toll exemption tickets were handed to members.


I cannot identify any prosecutions arising from the issue of the toll exemption ticket. I am not familiar with Victorian law generally. Accordingly, I do not propose to comment further on the scheme except to doubt its efficacy and point to judicial comment on Mr McClure’s legal ability.

Summary

That about wraps up the judicial history for UPMART. Participating in Mr McClure’s schemes does not show a high rate of success (0-6 by my count). Avoid like the plague.

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Kestrel
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Re: Malcolm McClure and UPMART

Postby Kestrel » Wed Aug 28, 2013 4:31 am

Frogger wrote:Early in the period of gathering signatures I created UPMART's first initiative, the Toll Exemption Ticket (TET, a perpetual 34-year exemption from toad tolls) and began distributing this ticket to the general public in return for a donation which ranged from 20c to a few dollars. With the ticket there was the requisite UPMART membership and a legal kit that gave various information's about toad tolls.

Well no wonder they didn't work. Here everyone was, thinking they could be exempt from throwing coins in the collection basket, and instead they got a certificate exempting them from throwing toads in the collection basket.

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Backo
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Re: Malcolm McClure and UPMART

Postby Backo » Wed Aug 28, 2013 11:33 pm

Kestrel wrote:Well no wonder they didn't work. Here everyone was, thinking they could be exempt from throwing coins in the collection basket, and instead they got a certificate exempting them from throwing toads in the collection basket.


Toad Toll is McClure's hilarious play on words comparing the spread of toll roads to the spread of cane toads, an introduced pest.

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Re: Malcolm McClure and UPMART

Postby LaVidaRoja » Thu Aug 29, 2013 1:16 am

And I was thinking it was a reference to "Wind in the Willows"
Little boys who tell lies grow up to be weathermen.

Backo
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Re: Malcolm McClure and UPMART

Postby Backo » Thu Aug 29, 2013 3:02 am

LaVidaRoja wrote:And I was thinking it was a reference to "Wind in the Willows"


Now that you mention it, the judge's observation that:

Mr McClure has demonstrated a complete lack of understanding matched only by his self-confidence


is very Toad of Toad Hall.

Oh, the clever men at Oxford
knows all there is to be knowed
but nobody knows as half as much
as clever old Mr. Toad!

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Re: Malcolm McClure and UPMART

Postby grixit » Thu Aug 29, 2013 6:46 am

But will McClure be able to make a jailbreak disguised as a cleaning lady?
I voted for Hillary, and i didn't even get a stupid tshirt!

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