In Bank of Queensland v Fahy [2025] WASC 180 the WA Supreme Court considered a self-represented litigant's pseudolaw argument in litigation over a mortgage gone wrong.
The Court states
In conducting the hearing and determining the Application, I was, and am, mindful that Mr Fahy is a litigant in person. As a litigant in person, he is entitled to some leniency in relation to compliance with the court rules.
The court is required to approach the documents in which he articulates his case with some flexibility. The court needs to be astute to ensure that, in a poorly expressed or unstructured document in which he sets out his case, there is no viable case which, with appropriate amendment or permissible assistance from the court, could be put into proper form. A 'frequent consequence of self‑representation is that the court must assume the burden of endeavouring to ascertain the rights of parties which are obfuscated by their own advocacy'.
One 'abiding difficulty' faced by the court is 'the tension between the duty of a ... judge to ensure a fair and just trial and the requirement that the court maintain a position of neutrality and impartiality as between the parties'. The court also needs to ensure that any latitude given to one party as a litigant in person does not deprive the other of their right to procedural fairness and a fair hearing. The balance is ordinarily struck by limiting the assistance given to a litigant in person to that which is necessary to overcome, so far as is reasonably practicable, the procedural disadvantages a litigant in person faces by reason of not being legally trained.
It goes on to note that
The terms of the Mortgage and Memorandum relevantly included that if an event of default occurs BOQ shall serve any notice required by law, and if such notice (if any) has not been complied with then:
(a) the moneys owed to BOQ shall immediately become due and payable; and
(b) in addition to any other powers conferred on BOQ, BOQ can do anything that BOQ can lawfully do in respect of the Land as if it was the absolute owner of the Land including any of the following: (i) take possession of the Land; (ii) evict Mr Fahy from the Land; (iii) sell the Land; and (iv) exercise any power or right conferred under the Mortgage or Loan Agreement or the law at the time.
Further, the Mortgage and Memorandum empowered BOQ to recover from Mr Fahy any reasonable costs incurred by BOQ which are reasonable to the exercise of its powers under the Mortgage.
In considering the argument it states
Does Mr Fahy have an arguable defence to the claim?
The burden then shifts to Mr Fahy to satisfy the court why judgment should not be given against him. This is an evidentiary burden, the overall legal burden of persuasion remaining on BOQ as the applicant.
Specifically, Mr Fahy must satisfy the court 'with respect to the claim ... that there is an issue or question in dispute which ought to be tried, or that there ought for some other reason to be a trial of that claim'. Mr Fahy does not have to show a defence on the balance of probabilities, but he must at least show cause why there is an arguable defence.
Mr Fahy has not filed a defence. I have carefully read the Fahy February Submissions, the Fahy May Submissions and all the other material before the court in which Mr Fahy says he sets out his defence (see [4] and [6]). In assessing these documents, at times Mr Fahy makes factual assertions which ought properly to have been the subject of affidavit evidence. I will take these assertions as submissions. Even with that indulgence, the documents relied on do not disclose anything resembling an arguable defence.
The following paragraph is indicative of the arguments made:
i christopher-francis openly state the SUPREME COURT OF WESTERN AUSTRALIA HELD AT PERTH... is a maritime vessel that is “held” in dry dock. It is a trusteeship. This vessel is flagged under THE COMMONWEALTH OF AUSTRALIA which is a foreign corporate entity registered under USSEC CIK 0000805157 to the address 1601 Massachusets Avenue N.W C/O AUSTRALIAN EMBASSY WASHINGTON DC, 20036. The jurisdiction of the COMMONWEALTH OF AUSTRALIA is only the waters around the islands of Norfolk Island Christmas Island and the Cocos and Keeling Islands, and any trusts created by this entity.
i christopher-francis openly state that land cannot be administered from the sea or a vessel from it and any attempt to do so is an act of piracy and robbery ashore.
The matters raised by Mr Fahy embody what courts have taken to refer to as 'pseudo-law'. Pseudo‑law is not law. Arguments of the type which Mr Fahy seeks to raise have been repeatedly rejected by this court, including when raised to resist enforcement of a mortgage. As Lemonis J observed in Moir:
In effect, the defendant seeks to construct a distinction between himself as a living person and his legal status or personality. That proposition has been routinely rejected by courts throughout Australia... The defendant's propositions do not provide any arguable defence or any basis upon which summary judgment should not be granted.
In Moir - ie Commonwealth Bank of Australia v Moir [2024] WASC 319 - the Court states
The defendant filed vast amounts of material in opposition to the application. These include the 377 page document that I have referred to at [17] above and a further 98 page document. Broadly speaking, the structure of these documents, and the arguments they seek to present, are not coherent. They are of little assistance in assessing whether summary judgment ought to be entered.
It needs to be remembered that the court's role is to administer justice according to law. The presiding judge is not required to scour through vast reams of material put on by a party to make sure that there is no arguable defence or other reason why summary judgment should not be granted. It is contrary to the administration of justice for court resources to be used in such a way.
That being said, where a person such as the defendant has strong views as to their perceived (lack of) legal identity, and places distinct emphasis on those views, it is important to ensure a possible defence is not obscured. Accordingly, during oral argument I had the defendant specifically address his complaints with the plaintiff's case against him. Further, separately to the matters raised by the defendant, I scrutinised the plaintiff's case to satisfy myself that the plaintiff was entitled to the relief it seeks. As I explain at [54] - [64] above, that scrutiny did reveal an error in the plaintiff's approach. However, that error is not fatal to the summary judgment application.
It appears that the principal matters relied on by the defendant in opposition to the plaintiff's application are as follows. First, that the Supreme Court of Western Australia is a fiction. Second, that a Supreme Court Judge should not have heard the summary judgment application. Third, that the procedures implemented by the court in managing the summary judgment application were not appropriate. Fourth, a variant of what has been described as the pseudo-legal straw man theory.
The Supreme Court is a fiction
It is sufficient to deal with this aspect of the defendant's submissions by referring to s 6(1) of the Supreme Court Act 1935 (WA). It provides: The previously established court called the Supreme Court of Western Australia continues in existence for the State of Western Australia. Section 6(1) acknowledges the existence of the Supreme Court of Western Australia and provides that the court continues in existence.
Accordingly, the submission that the Supreme Court of Western Australia is a fiction is unarguable.
Whether the application should not have been heard by a judge of the court
The defendant submitted the summary judgment application should have been referred to an independent referee consented to by both parties, for trial by jury. Pursuant to the rules of court I have set out at [20] - [21] above, the plaintiff was entitled to bring the application for summary judgment. The application, once brought, is to be heard in chambers in accordance with O 59. The Rules do not provide for the application to be heard before a jury or to be referred to a referee for disposition. Further, the defendant has not pointed to any arguable basis for the contention that the application should have been referred to arbitration, or to a hearing before a jury.
Whether the correct procedures were followed in the case management of the proceedings
The defendant objected to the prior involvement of a registrar in the case management of the proceedings. In that respect, a registrar made orders for substituted service of the writ of summons and, separately, of a form 36A notice necessary for the plaintiff to apply for default judgment. A registrar also issued a direction for a case management conference to be held on 30 October 2023. The defendant submits that a registrar does not have jurisdiction in respect of the proceeding because it is a proceeding under the TLA: see O 60A r 2(d)(i). However, while the proceeding pertains to land registered under the TLA, it is not a proceeding under the TLA. That is, it is not a proceeding brought pursuant to a provision of the TLA. Rather, it is a mortgage proceeding brought under O 4AA.
In any event, the programming of the summary judgment application has been dealt with by a judge of the Supreme Court and I heard the application. Thus, a registrar of the court was not involved in the substantive disposition of the summary judgment application.
The defendant complains about the registrars not permitting him to file certain documents. However, irrespective of whether that is the case, the defendant emailed substantive material to my associates prior to the final hearing of the application. Further, I received the 377 page document and the 98 page document, which were the principal documents relied on by the defendant during his oral submissions. It should be kept in mind that a party to proceedings does not have an unqualified right to file as much material as they want.
The defendant also complains that the e-mail addresses the subject of the orders for substituted service were not his e-mail addresses. Irrespective of whether that is the case, the purpose of substituted service is to bring the Writ of Summons to the attention of the relevant defendant. That clearly happened, given a conditional appearance was subsequently filed.
Accordingly, the complaints regarding the procedures adopted in dealing with the summary judgment application do not provide any arguable basis for me to decline to order summary judgment.
Living man theory
During the hearing of the application, I said to the defendant: What I want you to do is to let me know if you have any submissions that are directed to the plaintiff's claim against you.
In response, the submission was made that:
Well, it's not my name. That's the whole fact. There was no disclosure, or full disclosure, at the start of the contract and that's why it is void [ab] initio. ...
There was no disclosure of the living man signing for a fictitious entity.
... The fact is the full disclosure of the name has never come up, and I've only found out about this over the last couple of years. So the fraud was perpetrated a long time ago and now that I found out what it is I'm holding them to account.
The defendant also submitted this constituted fraud and unconscionable conduct, and that the relevant contracts were made under a mistake of fact.
The defendant also submitted that:[
... the plaintiff has supplied no evidence supporting that the capital-lettered entity, Supreme Court of Western Australia, has any authority over or consent from the defendant, nor the living man, Glenn Desmond, acting in the capacity of executor of the named entity, Glenn Desmond Moir.
In effect, the defendant seeks to construct a distinction between himself as a living person and his legal status or personality. That proposition has been routinely rejected by courts throughout Australia. The defendant's propositions do not provide any arguable defence or any basis upon which summary judgment should not be granted.
Also, the defendant's position does not sit consistently with his behaviour in respect of other properties owned by him. Mr Ralston's affidavit sets out that another of the defendant's properties was mortgaged to the plaintiff. In respect of that property, the defendant entered into a contract of sale, which he signed. Upon the sale being effected in accordance with that contract, the moneys owing to the plaintiff under the mortgage were paid out and the defendant received a surplus of $739,306.61. By acting in that way, the defendant effectively acknowledged his legal status in his dealings with the plaintiff. The defendant cannot pick and choose when he is regarded as a legal person.
Additional matters
The defendant also complained that the plaintiff did not provide him with 'wet-ink signed contracts'.
The defendant's submission that '[t]here was no disclosure of the living man signing for a fictitious entity' ([87] above), implicitly accepts that he signed the relevant documents relied on by the plaintiff. Furthermore, as I have said at [28] above, Mr Di Gregorio in his affidavit that attached those documents described them as 'true copies'. That is sufficient for the documents to be received into evidence.
The defendant also sought to have the transcripts amended because they referred to the person attending as 'Mr Moir'. As I have explained at [90] above, the courts do not accept the proposition that there is a delineation between a living person and their legal status or personality. That being so, the designation in the transcript is correct.