Is your name “yours”? Are you free to choose a name for yourself? Does a name withstand border-crossing and even acquisition of new citizenships? In the common law world, the undoubted answer is yes. However, in civil law, this answer is not so clear. While the global tendency over the last few decades has been towards relaxing the norms governing names, old traditions die hard, and in some cases now re-emerge in other parts of the world. In an ever more globalized world, given widespread immigration, refugees, and people with dual- (or even multi-) citizenships, the different national attitudes towards names and the lack of proper cross-border regulation of names is becoming a relevant and pressing question. This paper maps out and conceptualizes the challenge of names by demonstrating the different approaches towards names and suggesting possible cross-border regulation (i.e., choice-of-law rules) that may address this issue for the benefit of the individuals and countries involved.
In K Sheridan v Colin Biggers & Paisley [2019] NSWSC 528 Black J has considered claims by Kyle Lester Sheridan - who reportedly prefers to be addressed as Lord Sheridan - that have a pseudolegal basis.
The judgment states
By Notice of Motion filed on 15 April 2019, the Defendants, Colin Biggers & Paisley Pty Ltd (“CBP”) and Grant Thornton Australia Ltd (“GTA”) apply under rr 13.4 and 14.28 of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) and the Court’s inherent jurisdiction for orders that the whole of a Statement of Claim filed by the Plaintiff on 9 November 2018 be struck out; that the proceedings be dismissed under UCPR r 13.4; and that the Plaintiff pay their costs of the proceedings, including the costs of the application. The Plaintiff prefers to be described as “Lord Sheridan” rather than by his given name and surname, although he did not identify the manner in which he acquired his title. I will refer to him, without any discourtesy, as the Plaintiff. ...
Between 2010 and May 2017, Courtenay House Pty Limited (in liq) and Courtenay House Capital Trading Group Pty Limited (in liq) (“Companies”) operated a Ponzi scheme, in which they claimed to trade in foreign exchange, futures and commodities on behalf of investors and paid monthly returns to investors generated by such trading. In fact, little of the deposited funds were traded by the Companies and monthly “returns” paid to investors were largely paid using funds deposited by investors. That scheme operated until about April 2017, when this Court made freezing orders over the Companies’ assets and bank accounts on the application of the Australian Securities and Investments Commission (“ASIC”). On 16 May 2017, the Court appointed Messrs Jahani and McInerney of GTA as the liquidators of the Companies, also on ASIC’s application. CBP has acted as the solicitors for the liquidators and the Companies in subsequent litigation, including proceedings brought against persons involved in the Ponzi scheme.
The Plaintiff appears to be associated with “Oceanic Sun Group”, which is not an incorporated entity, and which invested amounts totalling $10,600,000 with the Companies prior to their liquidation. In particular, Oceanic Sun Group invested amounts totalling $7,800,000 in a purported investment product offered by the Companies called the “Brexit Special Product”. These amounts were deposited into an account (“NAB 1 Account”) operated by the Companies. Oceanic Sun Group also invested amounts totalling $2,800,000 in other purported investment products offered by the Companies, which were deposited into another account (“Westpac Account”) operated by the Companies.
In his judgment in Re Courtenay House Capital Trading Group Pty Limited (in liq) and Courtenay House Pty Limited (in liq) [2018] NSWSC 404; (2018) 125 ACSR 149, Brereton J found the funds invested in respect of the Brexit Special Product were held by the Companies on express trust or under a Quistclose trust for the investors in that product. On 22 June 2018, Brereton J made orders: “That the Liquidators are justified in distributing funds that were held in the NAB 1 Account to The Oceanic Sun Group or [Kyle] Sheridan in the amount specified in Schedule C of the Liquidators’ affidavit, less an amount representing a proportionate amount for provision for the Liquidators’ future costs and expenses (as referred to in the orders above), to be approved in accordance with the Court Orders of 11 December 2017, pending further directions of the Court.”
The liquidators have since distributed funds to those investors that invested in the Brexit Special Product, including the Oceanic Sun Group, less deductions for their costs and expenses as approved by the committee of inspection. The Oceanic Sun Group was repaid the sum of $7,542,991.33 (referable to their original investment of $7,800,000 in the Brexit Special Product) on 27 June 2018. The shortfall in that repayment reflected the liquidators’ costs and expenses. On 8 August 2018, Brereton J held that the liquidators were entitled to pay their proportionate costs and expenses from the amount of $7.8 million deposited by the Oceanic Sun Group with the Companies and dismissed an interlocutory process filed by the Plaintiff seeking a contrary order.
By letter dated 26 October 2018, the Plaintiff demanded that his “property” be returned immediately by the liquidators and the “trespass” on his property be discontinued by them.
On 31 October 2018, the liquidators filed an Interlocutory Process seeking directions from the Court as to how the remaining funds in the Westpac Account should be distributed. Those proceedings have been set down for hearing on 24 and 25 July 2019. There has not yet been any distribution paid to any investors in respect of amounts deposited in the Westpac Account. I will refer below to the evidence as to the likely distribution to the Oceanic Sun Group in respect of the amounts deposited in the Westpac Account.
The Plaintiff then filed his Statement of Claim on 9 November 2018 in the Common Law Division, bringing a claim for $75 million against CBP and GTA. That Statement of Claim identified and provided particulars of the claim as follows:
“I, a man claim: ● The said wrongdoers Trespass upon my property ● The casual agents of the trespass comes by way of Theft ● The trespass did and does harm my property ● The trespass did and does cause injury ● The commencement of the wrong and harm began on May 16, 2017 ● The wrong and harm continues to this day ● I require compensation for the initial and continual trespass upon my property [theft] ● Compensation due: Seventy Five Million Australian Dollars”
The reference to “i, a man” in the Plaintiff’s Statement of Claim and other documents which he seeks to file, to which I refer below, appears to have something in common origin with the references to a “flesh and blood man”, noted to have many variations, in Meads v Meads [2012] ABQB 571, where the Court of Queen’s Bench of Alberta, Canada, undertook a comprehensive review of the characteristic features of what it described as “organized pseudolegal commercial argument”. That decision has in turn been noted by the High Court of New Zealand in Meenken v Family Court at Masterton [2017] NZHC 2103 and in decisions of the Federal Circuit Court of Australia, including Ennis v Credit Union Australia [2016] FCCA 1705, Deputy Commissioner of Taxation v Woods [2018] FCCA 1815 and Lion Finance Pty Ltd v Johnston [2018] FCCA 2745, with reference to a class of arguments deployed by self-represented creditors in a different context, in order to seek to avoid payment of debts: see also T Bloy, “Pseudolaw and Debt Enforcement” [2013] NZLJ 47.
That Statement of Claim was verified by the Plaintiff with a notation “under protest & Duress Forced coerced against my Free will”. It appears that the relevance to duress, force and coercion arose from the Court Registry’s requirement that a Statement of Claim filed in this Court comply with the forms prescribed by the UCPR. I will turn to the form of claim which the Plaintiff prefers below.
The Plaintiff in turn recorded his position in respect of the Statement of Claim, as filed, by an email dated 19 November 2018 to the Common Law Registrar which stated that: “The ‘Sheridan Court’ hereby delivers notice: i, a man was forced to file my case by ‘administrator’ of the Supreme Court of New South Wales, under a ‘Civil Form’ application turning my ‘Claim’ into a “complaint”; Turning ‘Prosecutor’ into ‘Plaintiff’ and ‘Wrongdoers’ into ‘Defendants’; case number 2018/344655 is NOT a ‘civil’ action; i require a ‘court of record’ ; ‘trial by jury’ The administrator of the court refused to file documentation into a court of record, in order to for [sic] i, a man to obtain a case file number; i, believe this interferes with my rights ...”
That email also referred to the Plaintiff’s dissatisfaction with events that had transpired at an appointment with a Registrar on 14 November 2018. ...
The Plaintiff also sought to rely on an affidavit dated 10 April 2019, which did not comply with the requirements of the Oaths Act 1900 (NSW). The affidavit commenced with the words: “i, a man do solemnly and sincerely affirm and declare with good faith and with good conscience the following affidavit of the facts” That affidavit was not sworn or affirmed in the form prescribed by the Oaths Act, but signed by the Plaintiff and also included a red thumbprint, in a practice noted in Meads v Meads above. The Plaintiff was not identified in the manner required by s 34 of the Oaths Act. I did not permit the Plaintiff to rely on the affidavit in that form, but allowed him the opportunity to give oral evidence adopting that affidavit. He gave such evidence, on affirmation, at the hearing on 29 April 2019.
The Plaintiff’s affidavit referred to some 27 “[f]act[s]”, many of them by assertion rather than in a narrative form, including that: “1. Fact 1: It is not incumbent upon a man to prove a claim until such time as another man, disputes the claim andor [sic] testifies against it. 2. Fact 2: No man has come forward in full liability to dispute claim andor [sic] testify against claim (The claim stands).”
The Plaintiff also referred to aspects of the conduct of the proceedings, and alleged that: “10. Fact 10: Wrongdoer 1 [CBP] and Wrongdoer 2 [GTA] trespass upon my property (Trust) by holding Trust property (The Oceanic Sun group) to the amount of $10,600,000.00.” The Plaintiff set out (paragraph 13) allegations as to knowledge attributable to CBP, GTA and the Court and refers to a determination by Brereton J as to the Oceanic Sun Group’s entitlement to an amount of $7.8 million. The Plaintiff alleged that CBP and GTA committed “[t]heft” and “[t]respass” by paying only $7,542,991.33 of the $7,800,000 invested by Oceanic Sun Group in the Brexit Special Product, a “short fall of $257,008.67” (paragraph [16]). The Plaintiff also alleges that CBP and GTA (I interpolate, as distinct from the Companies or the liquidators) held the funds for over one year, earning interest which was never returned to the investors, which is described as “Theft, profiting from the proceeds of a crime” (paragraph [17]). The Plaintiff then stated that CBP and GTA “took fees from trust property without right, without consent, without approval of the Board of Trustees”, which is described as “Trespass, theft” (paragraph [18]). The Plaintiff also states that CBP and GTA “obtain[ed] funds without any contract with the trust andor [sic] trustees of The Oceanic Sun group” (paragraph [19]) and that the Defendants “failed to provide the funds in an expedited manner” (paragraph [21]). The Plaintiff also alleges, plainly referring to funds deposited to the Westpac Account, that CBP and GTA “continue to hold trust Property in excess to the amount of $2,800,000.00, excluding interest earned on the funds, while the trespasser control the funds” (paragraph [22]). The Plaintiff states that the “commencement of the wrong and harm began on May 16, 2017” (paragraph [23]), the date the liquidators were appointed by the Court. The affidavit refers to his claim for “compensation” in the amount of $75 million (paragraph [25]). ...
Mr McKenzie’s evidence is that, as I noted above, the Plaintiff claims to represent the Oceanic Sun Group although searches undertaken by Mr McKenzie have not identified any registration for that group, which appears to be an unincorporated association or unincorporated group. Mr McKenzie also refers to the Oceanic Sun Group’s investment of $7.8 million in the Brexit Special Product and $2.8 million in other purported investments with the Companies to which I have referred above. Mr McKenzie also sets out the history of proceedings previously brought by the Plaintiff and refers to the payment made by the liquidators of $7,542,991.33 to the Oceanic Sun Group on 27 June 2018, in respect of its investment in the Brexit Special Product, to which I referred above. Mr McKenzie also refers to the liquidators’ estimate that the Oceanic Sun Group may be entitled to receive a distribution of between $344,621 and $614,874 from funds held in the Westpac Account, depending upon the outcome of the remaining application in respect of distribution of funds held by the Companies.
... On 3 May 2019, the Plaintiff advised my Associate that he intended to discontinue these proceedings and had engaged Counsel for the purpose of reaching consent, if that were possible, with the Defendants as to costs. I relisted the matter for the afternoon of 6 May 2019 to allow any such discontinuance to be implemented. However, after the matter had been relisted, the Plaintiff advised my Associate on 5 May 2019 that he retracted his notice that he intended to discontinue the proceedings and discontinued any legal representation in relation to the matter and would attend the Court on 6 May 2019.
The proceedings were then listed on the afternoon of 6 May 2019. The Defendants led no evidence and made no further submissions on that occasion. The Plaintiff advanced the submission that:
“... you [Black J] have no jurisdiction in the court. I'm not standing in your corporate court today and I'm standing you down. I'm retiring you [Black J] from this court. You're operating in a fraud in the statutory court and I hereby stand you down and retire you. I will be speaking today on the record and the inherent jurisdiction of the de jure Supreme Court of New South Wales under Her Majesty's Royal great seal.” (T1)
The Plaintiff also advised that:
“There will be no judgment because you [Black J] are standing in a corporate court and I am standing you down and retiring you. The next time we have a conversation will be in Her Majesty's Federal Court of which we will deal with this. Right now I have documentation that is required to be pressed for the record, and I will not be interfered and I will not stand in your corporate court today. I have documented evidence currently to be submitted. I wish to have it ... advanced and filed.” (T1)
The Plaintiff provided several documents to the Court, which I marked MFI 1, which he indicated were in response to Mr McKenzie’s affidavit and also addressed the decision in Meads v Meads above. These documents included a document titled “Living Testimony in a Form of an Affidavit Notice to agent is notice to principal, notice to principal is notice to agent”, which was also not sworn or affirmed in accordance with the requirements of the Oaths Act. That document contains quotations from Coke’s Institutes, referred to several maxims of equity; contains a number of religious references and also refers to the Uniform Commercial Code of the United States of America, to shipwrecks, and, oddly, to the Western Australian Treasury Corporation and the International Monetary Fund, which had not previously had any role in these proceedings. That document also asserted the existence of a “commercial lien” against GTA and CBP and, apparently also against the Supreme Court of New South Wales and several other persons (including Black J). The document further stated that:
“Those who have contracted me, without my consent either directly or indirectly where I have provided my FEE SCHEDULE, that will be made forcible by my application to the Federal Court for Judgement, where your Business House Trading as SUPREME COURT OF NSW, A.B.N 77 057 165 500, andor has DISHONOURED, whereby removing my infallible rights as a man at Common Law Jurisdiction”
That document also developed several broader propositions as to the nature of government, the nature of law and the Plaintiff’s capacity to act as a sovereign being upon coming of age. The Plaintiff also contended that several entities (including the Department of the Premier and Cabinet, the Department of Justice and Attorney General, the NSW Police Force, Treasury and several Queensland entities, which had also not previously had any role in the proceedings) were “Australian Businesses purporting to be ‘State Government entities’”.
The Plaintiff also relied on an “International Public Notice” of a “Common Law Commercial Lien” extending to GTA, CBP, the Supreme Court of New South Wales and various individuals, claiming a commercial lien to the value of $300 million and relied a “Bill of Lading Ship From [sic]” which appeared to be connected with the “commercial lien”. The Plaintiff also issued an invoice to, inter alia, CBP and several individuals in the amount of $300 million, referable to the Plaintiff as lien claimant. I understand these documents to amount to an attempt unilaterally to create a liability of $300 million owed to the Plaintiff, by asserting the existence of that liability and relying upon a failure to controvert it.
These documents appear to adopted on approach that was described by the Court of Queen’s Bench of Alberta, Canada in Meads v Meads above, where the Court noted (at [447]) that a class of self-represented litigants:
“frequently attempt to unilaterally foist obligations on other litigants, peace officers, state actors, or the court and court personnel. These foisted obligations take many forms. None, of course, creates any binding legal obligation. In that sense, these are yet more ‘magic hats’.”
The Court also observed (at [458]ff) that a unilateral document of that kind does not bind its recipient, absent acceptance of the offer comprised in such a document and establishment of the other requirements for a binding contract. It seems to me that that observation, while directed to Canadian common law, also reflects the position under the Australian law of contract. I do not presently need to address, and do not address, any question whether the Plaintiffs’ claim to impose the suggested lien on the Court or a trial judge, in respect of the performance of the Court’s inherent and statutory functions, might constitute a contempt of Court.
