Procedure

In Re Thorpe [2025] VSCA 172 the Court states 

 In October 2023, Uncle Robbie Thorpe (‘the applicant’) sought to file a charge sheet and summons in the Magistrates’ Court of Victoria naming King Charles III as the accused and alleging that he had committed ‘continuing acts of genocide ... against First Peoples’. The Magistrates’ Court refused to issue the summons and did not initiate a proceeding. 

By originating motion filed in the Trial Division on 7 March 2024, the applicant sought judicial review of the Magistrates’ Court decision. A trial was conducted on 19 July 2024 and on 5 February 2025 Richards J handed down her judgment. Her Honour held that the charge sheet did not disclose an offence known to law and that the Magistrates’ Court was correct to refuse to issue the proposed proceeding. 

An application for leave to appeal from a decision of Richards J to refuse to accept an affidavit for filing was refused by McLeish JA on 2 August 2024. 

The applicant has since filed an application for leave to appeal Richards J’s decision. He has also filed various applications other than for leave to appeal, which are voluminous and overlapping. Some of these additional applications have been accepted for filing. However, the Registrar refused to accept for filing four of the applications, pursuant to r 64.43 of the Supreme Court (General Civil Procedure) Rules 2015 (the ‘Rules’). Together these four applications seek more than 15 different orders, including orders for the joinder of additional parties, orders concerning intervenors, orders concerning the identity or racial background of the judges who are to hear his applications, and other orders concerning the conduct of the proceedings. 

The applicant now seeks to have a Judge or Judges of Appeal direct the Registrar to accept for filing the four applications that were refused, pursuant to r 64.43(5) of the Rules. 

For the reasons that follow, we will not direct the Registrar to accept the four documents for filing. ... 

The issue in this case is whether the documents fall within r 64.43(1) or (2) — that is, whether: (1) they are irregular (r 64.43(1)(a)); (2) they are frivolous or vexatious on their face or by reference to any materials already filed or submitted for filing (r 64.43(1)(b)); (3) the filing of them would give rise to an abuse of the process of the Court (r 64.43(1)(c)); (4) they do not comply with the Rules or the requirements of any applicable practice note (r 64.43(2)(b)); and/or (5) they are not accompanied by all the documents required by O64 or any applicable practice note (r 64.43(2)(d)). 

Consideration 

In our opinion the four documents that have not been accepted for filing are irregular, and/or frivolous or vexatious on their face and by reference to other materials that have been filed or submitted for filing, and/or would give rise to abuse of process. In addition, some of the documents do not comply with the applicable rules or a practice note, or were not accompanied by all the required documents. 

Document 495374 

As noted above, document 495374 seeks 13 orders (set out in the annexure to these reasons). Many of these orders are not orders that the Court can or would make. In light of that fact, it was appropriate for the Registrar to refuse to accept the document for filing, even if some of the other orders sought might have been orders that the Court can or would make. It is thus necessary only to identify some examples of entirely inappropriate orders in order to make clear that the Registrar was correct not to accept the document for filing. 

Proposed order 1 is that ‘Chief Justice Niall has conduct of these proceedings and this court file’. 

This is not a suitable order to be made by the Court of Appeal on the motion of a party. A party has no entitlement to seek to have an identified judicial officer conduct a proceeding. Nor would a judge or judges of the Court of Appeal make such an order. The application for this order is frivolous, vexatious and irregular. 

Proposed order 2 is that a ‘bench of five Aboriginal judicial officers be assembled to hear the application for leave to appeal and the appeal’. 

Again, this is not a suitable order to be made by the Court of Appeal on the motion of a party. A party has no entitlement to seek to have a bench of a particular size or composition hear a proceeding. Nor would a judge or judges of the Court of Appeal make such an order. The application for this order is frivolous, vexatious and irregular. 

Proposed order 3 is as follows: If there are not sufficient Aboriginal judicial officers in the Supreme Court of Victoria to assemble a bench of five Aboriginal judicial officers, then Chief Justice Niall to write to and seek to meet with the Attorneys-General of the State of Victoria and the Commonwealth of Australia to request the special appointment of sufficient Aboriginal judicial officers including the appointment of (i) Professor Irene Watson, Research Professor of Law, University of South Australia, and (ii) law graduate Dr Jaqui Katona , Moondani Balluk Indigenous Unit, Victoria University, and (iii) lawyer Paul Coe (iv) lawyer Michael Mansell (v) puralia meenamatta (“Uncle Jim Everett”), the Palawa man from the clan plangermairreenner (vi) Dr Aunty Mary Graham, Kombumerri and Hakka Wakka, Adjunct Associate Professor, University of Queensland — six names listed here in case of illness or other unavailability on the hearing dates. 

It is plain that this Court cannot order Niall CJ to take the step sought. The application for this order is frivolous, vexatious and irregular. 

Proposed order 10 is as follows: The Magistrates Court of Victoria is directed to retain counsel and participate properly in these proceedings as a normal party and respondent. 

Again, it is plain that this Court cannot make an order in such terms directed to the Magistrates’ Court of Victoria. The application for this order is frivolous, vexatious and irregular.

In Thorpe v Magistrates' Court of Victoria [2025] VSC 22 the headnote notes that Thorpe sought to file a charge-sheet and summons in the Magistrates’ Court of Victoria to commence private prosecution against King Charles III for crimes of genocide under First Peoples’ sovereign laws, the common law, and div 268 of the Criminal Code Act 1995 (Cth) 

The judgment states

On 20 October 2023, Uncle Robbie Thorpe sought to commence a private prosecution against King Charles III for crimes of genocide. He did so by filing a charge-sheet and summons in the Magistrates’ Court of Victoria, naming himself as the informant and Charles Phillip Arthur George Windsor as the accused. The offences alleged in the charge-sheet were continuing acts of genocide against First Peoples, contrary to First Peoples’ sovereign laws, the common law of Victoria, and div 268 of the Criminal Code Act 1995 (Cth). 

On 29 December 2023, a senior registrar of the Magistrates’ Court refused to issue the proceeding, on the basis that the proper source of law had not been particularised and the proposed accused may be misled or prejudiced by this omission, and in those circumstances the issue of the proceeding would be an abuse of process. The proceeding was therefore returned unissued. 

In this proceeding, Uncle Robbie seeks judicial review of the Magistrates’ Court’s decision. He seeks an order requiring the Magistrates’ Court to accept the charge-sheet and summons for filing and issue the summons. ... 

At a directions hearing on 22 April 2024, I ordered that the Attorney-General of Victoria be joined as second defendant to the proceeding, on the basis that as the first law officer of the State of Victoria, her presence was necessary to ensure that all questions in the proceeding are effectually and completely determined and adjudicated upon. The Attorney-General subsequently filed written submissions and briefed Crown Counsel to appear at the trial of the proceeding on 19 July 2024. 

At the trial, Uncle Robbie applied for me to disqualify myself from further conduct of the proceeding. I refused that application, and provide my reasons for that decision below. 

In the course of his submissions at trial, Uncle Robbie challenged the legal foundation of the State of Victoria, in light of the widely acknowledged truth that the sovereignty of the First Peoples of Victoria was never ceded. He questioned the legitimacy of the Court’s jurisdiction, given the High Court’s rejection of the fiction of terra nullius and the previous use of that fiction to justify the Crown’s acquisition of Victoria. These large and important questions are currently being considered by the Yoorrook Justice Commission, and have prompted the Victorian Government to commence treaty negotiations with Victoria’s First Peoples. 

While acknowledging the significance of the questions raised by Uncle Robbie, the only jurisdiction that I can exercise is the jurisdiction of this Court. I can only do that by applying the law of the State of Victoria to the questions for determination in this proceeding. 

For the reasons that follow, I have concluded that the Magistrates’ Court was correct to refuse to issue the proposed proceeding. The charges alleged in the charge-sheet did not disclose an offence known to the law of Victoria. 

The proceeding must therefore be dismissed. 

Disqualification application   

By summons filed 15 July 2024, Uncle Robbie sought orders including an order that I be disqualified from further conduct of the proceeding. The basis for this application was set out in his accompanying affidavit, as follows: (a) In my decision of Re Thorpe (No 2), I had quoted his submissions in full while making no comment about ongoing Aboriginal genocide and injustice to Aboriginal people at the hands of non-Aboriginal people. This amounted to ‘white denial’ that Aboriginal people would perceive as bias; (b) I am not Aboriginal; (c) There are no documents evidencing that I have accepted that Aboriginal sovereignty has never been ceded and that Aboriginal law is the only true law of this land; (d) I have publicly sworn allegiance to the monarchy, and have not publicly repudiated the Windsor family as genocidal invaders; (e) Consequently, I am reasonably likely to be perceived by Aboriginal peoples and others as biased against Aboriginal peoples. 

The Attorney-General opposed the application, saying that the circumstances relied on by Uncle Robbie did not give rise to a reasonable apprehension of bias. 

A judge is disqualified from hearing a case if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the questions for decision in the case. Applying this test involves first identifying what it is said might lead the judge to decide the case other than on its legal and factual merits, and then articulating a logical connection between that matter and the fear that the judge might not decide the case on its merits. The final step in the analysis is assessing the reasonableness of the asserted apprehension of bias.

At the same time, judges are obliged to hear cases assigned to them in which the Court’s jurisdiction has been regularly invoked. Judges ‘do not select the cases they will hear, and they are not at liberty to decline to hear cases without good cause’. In this case, which has been assigned to me to hear and determine, Uncle Robbie has regularly invoked the judicial review jurisdiction of the Supreme Court of Victoria. 

On my appointment to the Court, I pledged allegiance to Her Majesty Queen Elizabeth II and her heirs and successors according to law. I also took the affirmation of office as a judge, to discharge the duties of my office according to law, without fear or favour, affection or ill-will. 

The Court’s jurisdiction is conferred by the Constitution Act 1975 (Vic) and is recognised in ch III of the Commonwealth Constitution. The law to be applied by a judge of the Court is the law of the State of Victoria, in accordance with Victoria’s Constitution Act and the Commonwealth Constitution. 

I do not accept Uncle Robbie’s assertion that pledging allegiance to the Crown and taking the affirmation of office might give rise to a reasonable apprehension that I might not decide this judicial review proceeding on its merits. These promises are essential to the office of a judge of the Supreme Court of Victoria, and have been made by every judge of this Court. One of us must hear and determine the case that Uncle Robbie has brought, and it has been allocated to me.;

The Wrong Kant

In Kant v Principal Registrar of the Federal Court of Australia [2025] FCA 274 the Court ordered that the proceeding be permanently stayed as an abuse of process. 

 The judgment states 

 On 22 July 2024 the applicant sought to commence a proceeding in this Court by attempting to file an originating application together with his affidavit in support affirmed 22 July 2024 (the proposed SCV proceeding documents). The originating application named the “Chief Justice, Supreme Court of Victoria” as the respondent and sought an injunction from this Court to require the Chief Justice of the Supreme Court “not [to] refuse to seal originating process filed by the Applicant”. 

The affidavit in support exhibited the reasons given by the Prothonotary of the Supreme Court for rejecting the filing of three proposed proceedings by the applicant in the period between 22 April and 26 April 2024. In brief summary the Prothonotary said that: (a) the first proceeding by the applicant alleged that the Supreme Court had refused to hear matters brought by the applicant, and in doing so acted inconsistently with the Magna Carta 1297 and other ancient legislation. The Prothonotary said that proceeding was not accepted for filing because, amongst other things, it did not identify a cause of action; (b) the second proceeding by the applicant alleged various pieces of criminal legislation were “illegal” and, amongst other things, sought habeas corpus. The Prothonotary said that proceeding was not accepted for filing because it lacked any basis and was incomprehensible; and (c) the third proceeding by the applicant alleged, amongst other things, that the Commonwealth “produced false materials”. The Prothonotary said that proceeding was not accepted for filing because it was “completely unclear and unexplained” how the applicant sought to invoke the jurisdiction of the Supreme Court. 

Kant commenced a new proceeding and four days later commenced a further proceeding that named the Director of the United States Central Intelligence Agency” (CIA) and the Australian Information Commissioner (AIC) as respondents, with the former being required to produce records of all of the Applicant's personal information as held by the CIA. Subsequently Kant sought to commence another proceeding that named the Commonwealth Attorney-General as the respondent and sought the following relief: 1. a writ of quo warranto, and: orders voiding all warrants issued by the Attorney-General of the Commonwealth that impact upon the rights of the Applicant; and, an order permanently vacating the office of Attorney-General of the Commonwealth. ... 

The judgment notes, in relation to the claim that 'every law made by the Parliament of the Commonwealth that empowers the Attorney General to issue warrants is ultra vires the Constitution' - The applicant’s affidavit in support exhibited the Summary Offences Amendment (Nazi Salute Prohibition) Act 2023 (Vic) and Articles 20 to 22 of International Covenant on Civil and Political Rights (the ICCPR) as reproduced in Schedule 2 of the Australian Human Rights Commission Act 1986 (Cth), which the applicant deposed he believed were “false documents” which he “suspected” were “produced under warrant” issued by the Attorney-General. The applicant’s affidavit did not state what interest he had in relation to the amendment to expressly criminalise the use of a Nazi salute. ...

 The Court noted that documents from Kant 'should not be accepted for filing' as ‘frivolous’, ‘vexatious’, ' without substance, groundless and fanciful'. .

Among other things Kant responded that rejecting of filing was “unlawful” because, in it constituted an offence against s 66(1AA) of the Privacy Act and that 'the effect of the Observance of Due Process of Law Act 1368 is that the decisions to reject the filing of those documents were void and inoperative. Kant further referred to 

(i) the Liberty of Subject Act 1354; 

(ii) the Observance of Due Process of Law Act 1368; 

(iii) s 3 of the Habeas Corpus Act 1640; 

(iv) s 8 of the Imperial Acts Application Act 1980 (Cth); 

(v) s 35A of the FCA Act; and 

(vi) ss 15, 66(1) and 66(1AA) of the Privacy Act. 

In the present instance Murphy J states 

 No reviewable error has been shown in relation to the state of satisfaction of the Registrars in deciding not to accept for filing: (a) the rejected SCV documents because the Court has no jurisdiction or power to issue an injunction requiring the Chief Justice of the Supreme Court of Victoria to accept documents sought to be filed by the applicant; and (b) the rejected CIA documents and the rejected AG documents because they amounted to an abuse of process. 

But even if I was satisfied that there was some error by a Registrar, in the circumstances of the present case I would not grant the relief the applicant seeks. 

Each of the three proposed proceedings that the Registrars rejected for filing was unquestionably, on the face of the documents, an abuse of process and it was appropriate that they were rejected. I will not address each and every argument the applicant made as enough public resources have already been spent on this matter. I deal with the applicant’s main arguments below. 

First, the applicant’s assertion that the decisions to reject the relevant documents for filing is somehow an abrogation of the Court’s duty to hear justiciable matters only has to be stated to appreciate its lack of force. People, of course, have a right to have their civil disputes decided in a fair hearing before a court or tribunal. But the purpose of r 2.26 is to protect the procedures of this Court from abuse by empowering a Registrar to reject documents lodged for filing which, on their face, would be an abuse of court process or frivolous or vexatious: Luck at [36]. Here, the difficulty for the applicant is that the rejected documents allege frivolous and groundless claims, and rejecting their filing does not impermissibly cut across his right to have legitimate claims heard by the Court; it is not somehow an abrogation of the Court’s duty to hear justiciable matters. For the same reason, the applicant’s assertion that the decisions not to accept the rejected documents for filing impermissibly cuts across his right to a judicial remedy under the ICCPR has no merit. 

Second, the same can be said about the applicant’s contention that the Registrar’s decisions to refuse to accept the rejected documents for filing is a crime under the Privacy Act. 

In reliance on s 12B(2) of the Privacy Act, which refers to the ICCPR, the applicant’s argument read various Privacy Act provisions as if the text included various “rights” set out in the ICCPR. For example, he submitted that s 66(1) of the Privacy Act has effect as if it reads that: A federal court contravenes that subsection if: (a) the federal court is requested by an individual to do something required for giving effect to a right or freedom recognised in the ICCPR; and, (b) the federal court refuses or fails to do so. 

The applicant then argued that by refusing to accept his documents for filing, the Registrar breached that provision, as well as breaching s 66(1AA) which deals with systemic breaches of s 66(1). 

In fact s 66(1) provides: A person contravenes this subsection if: (a) the person is required to give information, answer a question or produce a document or record under this Act; and (b) the person refuses or fails to do so. 

The applicant’s argument reflects a fundamental misunderstanding of the effect of s 12B of the Privacy Act, which is concerned with ensuring that there is a Constitutional basis for the operation of the Act. It does not operate to alter the meaning of the text of the Act as the applicant proposed. The Explanatory Memorandum to the Privacy Amendment (Private Sector) Bill 2000 provides that “Clause 12B is intended to ensure that the Act is given the widest possible operation consistent with Commonwealth constitutional legislative power.” 

Third, the applicant’s contention that r 2.26 of the Rules is void for inconsistency with ancient Imperial legislation reeks of the growing tendency for self-represented litigants to rely on ancient legislation in support of submissions that are blatantly unsustainable under Australian law: see generally Hobbs H, Young S, and McIntyre J, The Internationalisation of Pseudolaw : The Growth of Sovereign Citizen Arguments in Australia and Aotearoa New Zealand, (2024) 47(1) UNSW Law Journal 309. 

The applicant contended that Imperial legislation such as the Liberty of Subject Act 1354, the Observance of Due Process of Law Act 1368 and the Habeas Corpus Act 1640 apply in modern Australia, and that they render r 2.26 void and otherwise render the decision to reject his documents for filing unlawful. It can be accepted that the Habeas Corpus Act 1640 has continuing significance. In Plaintiff M68/2015 v Minister for Immigration and Border Protection [2016] HCA 1; 257 CLR 42 at [155], Gageler J (as his Honour then was) said: I

n Re Bolton, Brennan J specifically identified the Habeas Corpus Act 1679, as extended by the Habeas Corpus Act 1816, as amongst the ancient statutes which remain of undiminished significance within our contemporary constitutional structure. Brennan J might equally have identified the Petition of Right 1627 (which declared in substance that orders of the monarch were not sufficient justification for the imprisonment of his subjects) and the Habeas Corpus Act 1640 (which provided that anyone imprisoned by command of the King or his Council or any of its members without cause was to have a writ of habeas corpus on demand to the judges of the King's Bench or the Common Pleas). 

But the writ of habeas corpus to which Gageler J’s observations were directed is concerned with the legality of continuing imprisonment. This case does not involve any question of imprisonment and habeas corpus has no bearing on the Registrar’s decisions to refuse to accept the rejected documents for filing. Further, assuming that the other Imperial statutes on which the applicant relied continue to apply in modern Australia (itself an optimistic assumption given that any inconsistency between Australian legislation and Imperial legislation resolves in favour of the Australian law: Australia Act 1986 (Cth) s 3(2)), they do no more than require due process in certain situations, none of which are relevant to the present case. 

Fourth, the applicant’s contention that the Registrars failed to give reasons for rejecting the documents for filing is just wrong. As extracted above, reasons were provided in respect of each rejection decision, and the applicant did not contend that those reasons were somehow inadequate. 

Fifth, there is no force in the applicant’s argument that an examination of the rejected AG documents and the NACC proceeding documents shows that no reasonable person could reject the AG proceeding documents on grounds that the proposed proceeding is “without substance, groundless and fanciful, and both frivolous and vexatious”, but not also reject the NACC proceeding documents. That is not the case. The NACC proceeding is a relatively confined proceeding seeking judicial review of a decision under the Freedom of Information Act 1982 (Cth) in which the applicant seeks production of one document. That stands in contrast to the failure to articulate any reasonable cause of action in the AG proceeding, coupled with sweeping and fanciful proposed remedies. 

Sixth, I do not accept the applicant’s contention that the Registrars impermissibly made substantive judgments in respect of the rejected documents. A Registrar does not, when refusing to accept an originating document for filing under r 2.26, make any substantive judgment about the underlying merit of the claims in the proposed proceeding. The Registrar is instead ensuring compliance with procedural requirements, by refusing to accept for filing documents which on their face are frivolous or vexatious or would be an abuse of the Court’s process. 

Here, it is plain on the face of the documents that the applicant’s proposed proceedings are groundless, frivolous and vexatious, and would be an abuse of the Court’s process: (a) as to the proposed SCV proceeding, the Chief Justice of the Supreme Court of Victoria is plainly not a Commonwealth entity and there is no basis upon which this Court could have jurisdiction to injunct the Chief Justice of the Supreme Court not to refuse to seal originating process sought to be filed by the applicant in that Court; (b) as to the proposed CIA proceeding, the rejected CIA documents do not disclose a cause of action in relation to which the Court might adjudicate. The originating application does not detail any cause of action or a basis for the remedies sought; the applicant’s claims are not supported by anything on affidavit and the originating process does not comply with r 8.05(4). The originating application does not disclose how the RPSP Act could provide the applicant with a cause of action when there is no allegation that he is an “authorised person” under that Act, and it provides no basis for his equitable claim. In his written submissions the applicant conceded that he had “not disclosed the grounds of his claims”; and (c) as to the proposed AG proceeding, the only support for the applicant’s claims is found in his supporting affidavit, which states that the exhibited legislation and ICCPR are “false documents” (whatever that means) and the applicant’s “suspicion” that those documents “were produced under warrant issued” by the Attorney-General or his agents. It does not disclose any basis for the allegation that publicly available legislation was “produced under warrant issued” by the Attorney-General, and that allegation is the only basis for the sweeping relief regarding warrants that is sought. The proposed relief itself indicates the frivolous and vexatious nature of the claims as the application seeks orders to void all warrants issued by the Attorney-General that impact upon the rights of the applicant (without identifying any such warrants that have been issued); an order to “permanently vacate” the office of the Attorney-General (without identifying a basis or power for such an order); and a permanent injunction to require the Attorney-General not to issue warrants that impact upon the rights of the applicant (without identifying a basis or power for such an order). ... 

I also consider that this proceeding should be permanently stayed as an abuse of process. I accept that there is a heavy onus before a court is satisfied that there is an abuse of process, and the power to grant a permanent stay of a proceeding is one to be exercised only in exceptional circumstances: Williams v Spautz [1992] HCA 34; 174 CLR 509 at 529 per Mason CJ, Dawson, Toohey and McHugh JJ and 542 per Deane J. 

While the step of permanently staying this proceeding is an extreme measure, this is an extreme case in which judicial economy and efficiency is undermined by repeated attempts at judicial review applications on manifestly untenable grounds. The result of proceedings such as this is that “other litigants are left in the queue awaiting justice”: UBS AG v Tyne [2018] HCA 45; 265 CLR 77 at [45] (Kiefel CJ, Bell and Keane JJ). As noted by the Full Court in Storry v Parkyn (Vexatious Proceedings Order) [2024] FCAFC 100; 304 FCR 318 at [6]- [7] (Lee, Feutrill and Jackman JJ):

Importantly 

The stark contemporary reality is that there are an increasing number of controversies being brought before the Court and a finite number of judges able to manage and determine those matters. Every day a judge of the Court is required to deal with a vexatious proceeding is another day the judge is prevented from using the judicial power of the Commonwealth to quell a real dispute between parties who have invoked the Court’s jurisdiction. 

The importance of s 37M(3) of the FCA Act in the work of the Court cannot be overstated. It requires judges of the Court to interpret and apply any power conferred by the civil practice and procedure provisions in the way that best promotes the overarching purpose, being the just resolution of disputes according to law and as quickly, inexpensively, and efficiently as possible: see also s 37M(1). A fundamental aspect of doing more than paying lip service to these case management objectives is taking the necessary steps to ensure that the whole of the Court’s business is managed efficiently. The aim of the overarching purpose provisions is undermined if the Court is passive and refrains from taking active steps to prevent the abuse of the Court’s processes when such abuses become manifest. This involves judges taking a proactive role, where appropriate, in identifying circumstances where the processes of the Court are being repeatedly or frequently abused by a pattern of apparently vexatious proceedings. 

In a real sense this proceeding, which seeks to resuscitate three earlier attempted proceedings, impairs the integrity of the Court and consumes its limited resources. It is appropriate to take a proactive approach to the applicant’s abuse of the Court’s processes.

Gibberish

In Stamp & Ors v Capital Home Loans Ltd (t/a CHL Mortgages) & Ors [2024] EWHC 1092 (KB) the Court states 

The outcome of the applications now before the Court is that all three claims are to be struck out. This outcome is not just a justification of the Defendants, it is also a mercy to Claimants who appear to have invested much in claims that are founded upon false learning and false hope. No one wants to be taken in by such things any longer than is really necessary. There are often understandable reasons why people are taken in, particularly where their circumstances are difficult and the temptation exists to seek a prize or windfall which others in better circumstances may not be distracted by. But once a deceit is exposed, however disagreeable this may be, it is better to shake dust from feet and move on. In these claims, and the far greater number they represent, the prize has appeared to be to recover compensation equal to the value of a mortgage, and better still the value of the property against which it is secured, as a consequence of a mortgage lender transferring the mortgage debt owed, to them, to a third party. It is to all intents and purposes a 'get-rich-quick' scheme. Only it is nothing of the sort because the arguments that it relies upon, and which have clearly been made available to people to widely adopt, are so misconceived as to be fundamentally wrong. This deceit is all the uglier because the material that forms the building blocks of the claims (and the large group of claims) is a nonsensical and harmful mix of legal words, terms, maxims, extracts and statutes which are designed to look and sound good, at least to some. But they stand only as an approximation of a claim in law, a parody of the real thing. This is not only harmful to those finding themselves relying upon this material but, given the scale of that reliance and the volume of cases generated, it unjustifiably draws heavily upon the resources of the Court. Because these resources are publicly funded they are finite and need to be properly managed so that they are available to all users of the Court, and in fair measure. ... 

The claim form is accompanied by separate particulars of claim as well as a witness statement from the Claimant the lucidity of which is rarely matched amongst the other documents that are relied upon. Mr Stamp complains that the mortgage he agreed with the Defendant, CHL, was 'miss- sold' to him because CHL went on to assign or transfer its interest in the mortgage to a third party, a so- called (in banking parlance) Special Purchase Vehicle (the 'SPV'). By this Mr Stamp alleges CHL sought unjust enrichment although no particulars of such, in law or fact, are given. Mr Stamp refers to this activity by CHL as "legal manoeuvres" which is a description we see repeated in other claims. He maintains that the result is that he now has no contract with CHL but only a contract with the SPV. He contends the assignment of the mortgage to have been a 'true sale' of the mortgage and to have been unlawfully concealed by CHL, for tax-avoidance purposes, from both himself as borrower and HM Land Registry. By this concealment "the world remains ignorant of these events" is how Mr Stamp describes this (a description relied upon by all three claimants) and CHL are said to be in breach of section 33 of the Land Registration Act 1925. 

It is further alleged that CHL's conduct has been a "violation of fundamental constitutional rights". This assertion relies upon the Magna Carta, the Petition of Right 1628, the Treaty of Ripon 1640, Habeus Corpus Act 1679, the Coronation Oath Act 1688, the Bill of Rights 1689, the Act of Settlement 1701, the Treason Act 1795, the Judicature Act 1873, and on to the Human Rights Act 1998, the Equality Act 2010, The European Union Act 2018 and concludes with the flourish Nemo me impune lacessit in a witting, or unwitting, nod to the fearsome history of service proudly borne by the Scots Guards. It is not explained how this long list establishes a violation of Mr Stamp's rights under the mortgage he agreed with CHL. It is difficult to see how mention of so many elderly statutes was intended to persuade the Court to find in Mr Stamp's favour. It is more likely that it was intended to sound credible and to encourage others to rely upon material like it in making a similar claim. If this is so, then the intention is a deceitful one. Mr Whitworth's claim was issued on 13 September 2023. His wish is to receive damages of around £712,000. 

The claim was accompanied by Particulars of Claim and supported by a statement that included a statement of truth signed by Mr Whitworth (albeit not in compliance with CPR 22PD.2). Much of the claim form is identical to that presented by Mr Stamp. The Particulars complain of a "true sale of my mortgage" by the Defendant, Lloyds Bank ('Lloyds') by which is meant an assignment of the mortgage by Lloyds, to a Special Purpose Vehicle, a 'securitisation' which Mr Whitworth says was concealed from him; and so "the world remains ignorant of these events". It is alleged that following these "legal manoeuvres" Mr Whitworth, "never had and no longer has", a contract with Lloyds. It is contended therefore that Mr Whitworth's mortgage was thereby "mis-sold" to him and Lloyds proceeded to unjust enrichment, and that he is a victim of an unlawful act with Lloyds having violated his "fundamental constitutional rights". Like Mr Stamp, Mr Whitworth pins his hopes on the Magna Carta, the Petition of Right 1628, the Treaty of Ripon 1640, Coronation Oath Act 1688, the Bill of Rights 1689, the Act of Settlement 1701, the Treason Act 1795, the Judicature Act 1873, and so on to the Human Rights Act 1998. The Defendant points out that there is no obvious connection between this long list of legislation and any dispute between Mr Whitworth and Lloyds. 

The third claim is that of Mr Le Clere. It was issued on 7 December 2023 and accompanied by Particulars of Claim running to 10 pages with a statement of truth. He too complains of the, now familiar, "legal manoeuvres" by the Defendant, the Bank of Scotland ('BoS'), whereby assignments of the mortgage took place to a third party, as part of a securitisation of the debt owed to the bank. It is contended that these assignments were deliberately concealed from Mr Le Clere and HM Land Registry. It is alleged that the assignments that took place were illegal, fraudulent and criminal, or at least that they might have been. But Mr Le Clere, who is clearly a man not short of curiosity or ability, does have to accept that he does not actually know these things to be true. He also accepts that in this regard his claim is a speculative one. He says that he has asked to see the contract, and deed of assignment and indemnity insurance that relate to his mortgage and that he has not received the full provision of documents from the Defendant that he was expecting and that would put his mind to rest. All of this he characterises as a violation of his fundamental constitutional rights and as a failure by BoS to exercise its public duty, or function, thereby "bringing the administration of justice into disrepute". He complains of a decision that was incorrect by reason of procedural irregularity and decision-making that took into account improper considerations and entirely missed relevant ones. The impugned decision itself though is not identified. Among others he relies upon the Magna Carta 1297, the Bill of Rights 1689, the Scottish Claim of Right Act 1689, the Union with Scotland Act 1706, Parliament Acts 1911 and 1949, the European Communities Act 1972 and Government of Wales Acts 1998 and 2006. ... 

In all the circumstances Mr Stamp's claim ought properly to be described as incoherent and making no sense and/or failing to disclose a legally recognisable claim. For these very reasons CPR 3.4(2)(a) caters for such claims in providing for them to be struck out. Further CPR 3.4(2)(b) provides for a claim to be struck out where the Court considers it an abuse of process or otherwise likely to obstruct the just disposal of the proceedings. This ground for striking out includes statements of case which are unreasonably vague or incoherent and indeed so badly drafted that they do not make clear the case the defendant has to meet. A claim like Mr Stamp's, that asserts "I exercise my constitutional rights, Magna Carta 1215,Petition of Right 1628, Treaty of Ripon 1640,, Habeaus Corpus Act 1679, Coronation Oath 1688, Bill of Rights 1689, Act of Settlement 1701, Treason Act 1795…", and more, amongst others, is unlikely to pass scrutiny when challenged. Likewise, particulars of claim that contend "the problem is that wartime legislation has not required any change which deals with the Courts and constitution. They still have all the methods of judicial control; what has changed have been the powers of Government", with no reference to the facts or matters supposedly in dispute between the parties. No defendant to a claim like this can reasonably be expected to understand what the relevance of these passages might be and what it is they have to answer. Even less may the Court see a way in which it might begin to justify a claimant who relies upon this. For these reasons the application to strike out the claim must succeed. ... 

The totality of claims that are the subject of this judgment have not revealed the full extent of the source, and nature, of encouragement and co-ordination that lies behind them but there is every appearance of deceit, of abuse and contempt of Court, and it is a matter of time before a full picture of these comes to light. Anyone drawn into bringing claims like this should be cautious. Those that promote them are duly warned. Claims that are presented with these characteristics can expect the Court's mercy and forbearance to be particularly limited. Claimants that are unable to explain the meaning of words that they appear to rely upon can expect to be frustrated and to lose money in the payment of fees that cannot be recovered and in costs ordered against them. Claimants that rely upon stock templates that are purchased by or given to them and that are nonsensical can expect to incur the Court's displeasure. Those indifferent towards wasting the Court's resources can anticipate having claims stayed or struck out and costs ordered against them. Claims listing elderly statutes and home-made legal labels and maxims can expect to be identified as being totally without merit. Those failing to comply with orders directing them in ways clearly aimed at providing assistance to the Court cannot expect to cast themselves in the light of being genuine and credible parties to justice. Those that pursue abusive claims can expect to be made the subject of orders that curtail their ability to adversely impact upon the proper and efficient administration of justice.

 In NNRM v The Commissioner of Police & Anor [2024] QDC 64 Cash DCJ states

 The appellant’s submissions 

[7] With these principles in mind, I turn to the appellant’s notice of appeal. The notice begins with, but soon abandons, the usual form for notices of appeal under the Uniform Civil Procedure Rules 1999 (Qld). At the very beginning, the appellant recites: Take notice without ill will and with just cause that, for [NAME NAME NAME NAME] appeals against the whole of the decision/order* of trading name CS Benson... 

[8] The document is signed in the following manner: by:[Name]-[Name]-[Name]:[Name], all rights reserved UCC308. 

[9] I take the latter to be a reference to section 308 of the Uniform Commercial Code of the United States of America. This section is intended to permit contracting parties to reserve legal rights. It has no application in Queensland or Australia which – it is trite to observe – are not governed by the statute law of the United States. The appellant’s references, during oral submissions, to the District of Colombia – where he asserts Queensland is registered as a trading corporation – do nothing to persuade me that the Uniform Commercial Code of the United States is of any relevance whatsoever. 

[10] To those who have had even a glancing exposure to the discredited alternative legal theories known as pseudolaw, what I have already mentioned is enough to raise the alarm. ... 

[22] The notice of appeal did not suggest the appellant had much prospect of success. His position was not improved by the contents of the 46-page document filed by him as an ‘outline of appeal’. It was a document complete with a postage stamp in the top left corner on the first page. The drafting of the document implies that the appellant subscribes to the so-called strawman argument, and other discredited pseudolegal theories. 

[23] So far as I am able to discern any actual argument in the document, I will deal with it. 

[24] First, the appellant asserts the court had no jurisdiction because section 4 of the Magistrates Court Act 1921 (Qld) was not engaged. The appellant is right about the latter and wrong about the former. That is because the court was exercising the jurisdiction granted to it pursuant to the DFVPA. Section 4 of the Magistrates Court Act 1921 (Qld) was irrelevant. There is no merit in this complaint. 

[25] Next, the appellant writes: Statement of counsel in brief or in argument are not sufficient for a summary judgment, see Trinsey v Pagliaro. 

[26] I do not know what this means in the context of the hearing or the appeal. Trinsey v Pagliaro was a decision of a United States Federal District Court Judge in Philadelphia in 1964. It stands for the proposition that a court in the United States asked to give summary judgment will not act upon assertions of fact from the bar table. In what appears to be an ex-tempore decision, Judge Wood said: The defendant’s motion to dismiss ... is incomplete because it requests this Court to consider facts outside the record which have not been presented in the form required by [the] Rules. Statements of counsel in their briefs or argument while enlightening to the Court are not sufficient for purposes of granting a motion to dismiss or summary judgment. 

[27] This is an unexceptional proposition, and one which would largely apply in this jurisdiction as well. But it is irrelevant to this appeal where the record contains all that is necessary to decide the matter. 

[28] I am guessing the appellant discovered this case during an internet search, as it appears that the case has some traction among pseudolawyers, who rely upon it to argue that attorneys cannot present facts to a court. The principle in Trinsey v Pagliaro has morphed into the mistaken belief that whenever an attorney refers to a fact – whether proved in evidence or not – it is objectionable. Not only is the pseudolawyers’ understanding of the principle wrong, they often misunderstand the citation and claim it is a decision of the Supreme Court of the United States. It is not, though there may have been an unsuccessful attempt to engage the Supreme Court of the United States who declined to take the case. As an aside, the apparent popularity of this decision in some circles is attested to by the ability to buy a T-shirt with the case and the last sentence above printed upon it. 

[29] Third, the appellant asserts bias again, and again without evidence. 

[30] Next, the appellant deals at length with his asserted errors of fact. These include such weighty and significant matters as the Magistrate stating that the application was ‘brought by police’ when it was actually commenced by a single police officer, or that the appellant ‘represented himself’ when in truth he claims to have appeared as some kind of agent for a separate legal entity. The former is of no legal consequence and the latter is wrong, for reasons that I have already expressed in R v Sweet. A repetition of this claim by the appellant when discussing service of a notice by police is similarly of no assistance to him. 

[31] Apart from one matter, it is unnecessary to give further consideration to the appellant’s claims as to errors of fact. They are either not made out or are of no consequence. But there is one matter to be mentioned which does not favour the appellant in this appeal. In January 2017, the appellant violently assaulted the second respondent. The results of his violence upon her were shown in photographs and evidence at the hearing. The appellant was convicted by a Magistrate and sentenced to imprisonment for 15 months but was released immediately on parole. 

[32] The appellant asserts the Magistrate was wrong to say he had assaulted the second respondent because the ‘[Name]’ sitting in the courtroom was not the trust, or estate, or trading vessel constituted by the name printed on the criminal history, which was written in capital letters. This curious and wrong assertion – another instance of what has been described as the ‘strawman duality’ or ‘strawman argument’ – appears to derive ultimately from a style guide that stipulates that corporations should be named using capital letters. It is wrong in law and does not help the appellant. 

[33] The manner in which his name was printed on the criminal history did not change the fact that he has been found to have committed that offence. His denial during the hearing that he committed the offence was a matter which diminished his credit, to which the Magistrate properly had regard. 

[34] Next, the appellant complains that while the rules of evidence did not apply to the hearing (see section 145 of the DFVPA), he was prevented from cross-examining the second respondent by the same ‘rules of evidence’. This misunderstands the effect of the complementary legislation found in the DFVPA dealing with protected witnesses. The statutory prohibition on the appellant cross-examining the second respondent in section 151 of the DFVPA is not a ‘rule of evidence ...applying to courts of record’ for the purposes of section 145 of that Act. 

[35] In this court, the appellant objected to the Magistrate’s reference to his ideas as being similar to those proffered by so-called ‘sovereign citizens’. He complains this was a defamatory slur and he denied identifying as a ‘sovereign citizen’. The only curiosity of the appellant’s position is that it demonstrates a shift in the landscape of pseudolaw. Adherents have come to recognise that the term ‘sovereign citizen’ carries negative connotations, and now go to some length to attempt to disassociate themselves from the term, despite repeating the same tired and discredited ideas long associated with so-called ‘sovereign citizens’. ... 

[37] There follows a brief diversion via the Fair Trading Act, which is of no relevance. 

[38] Then on page 23 of the writing, the appellant comes to something which might matter, if he were right. He submits that the messages providing evidence of his acts of domestic violence were not admissible. Unfortunately for the appellant, the asserted basis for this proposition misunderstands the common law as it relates to ‘without prejudice’ offers in civil proceedings. The appellant apparently believed that by writing that the messages were private, or sent with rights reserved, they could not be used or admitted in either criminal proceedings or proceedings under the DFVPA. This belief is wrong and the messages were properly available for the Magistrate to consider. 

[39] Of course, no pseudolaw submissions would be complete without a reference to either Magna Carta or the Bill of Rights. The appellant chooses the latter, but it avails him not. The provision he cites was intended to address a supposed abuse by James II in levying fines and forfeitures in a summary matter. When William and Mary were invited to take the throne, they agreed to prohibit such conduct, among many other things listed in the Bill. A prohibition on the levying of such fines without due process – assuming that is the effect of the Bill of Rights in Queensland, which is a very questionable proposition – is irrelevant to this appeal. In any event, if there is any inconsistency between the Bill and Queensland legislation, it is within the legislative competency of the Parliament to repeal the effect of the Bill. 

[40] Much of what I have set out above is wrong or misguided, but with a little effort, can be understood. There remains, however, parts of the appellant’s writings that defy comprehension. 

[41] First, there is the assertion that: Cameron Dick issued a 10 billion global note, note, 13th January 2023 to trade on the Luxembourg Stock Exchange via the Deutsche Bank and with in cahoots with of big banks listed in the note. 

[42] I do not know what this means, or how it is relevant, and I was unable to understand the submissions directed by the appellant toward that topic. 

[43] Next, there are a series of disconnected assertions which, taken together, produce a claim that the appellant is to be paid some $28 million, being $5.7 million for each year that the protection order will be in place. This is based on the combination of a “fee schedule”, the United States Commercial Code, and what is said to be a ‘Calderbank’ offer (though Calderbank is spelt ‘Caulderbank'). Presumably, the appellant means Calderbank v Calderbank. While reference to this case might indicate an intriguing combination of real law and pseudolaw, the decision of the English Court of Appeal in a case about costs is not relevant here. Otherwise, the idea that the appellant might be entitled to $28 million as a result of this proceeding, much less that I have the power to order it, is so disconnected from reality as to be concerning. 

[44] I cannot leave the appellant’s writings without noticing his apparent response to my dismissal of the strawman argument in R v Sweet. Having quoted my conclusion that a ‘human being is also a legal person’, the appellant goes on to write:

Human is not man Human means as defined: see Monster Monster means: Person is like a Human being defined as “Monster” would be type of animal/beast thing, res, that cannot own property Hu-man is sort of Shade or colour of man, a hue, and Human is a law merchant type term imposition presumption as a legal person, legal fiction, in a legal setting of legal proceedings, are not lay terms. 

[45] The appellant proceeds to assert, I think, that the DFVPA is part of the ‘merchant law’ as distinct from admiralty law but does not explain why that is so or why that matters. 

[46] None of this is in any way a rebuttal of my reasoning in R v Sweet which, in my view, remains an entire answer to the spurious suggestions of people like the appellant that they are possessed of distinct natural and legal personalities. 

[47] Finally, I would note that the Magistrate’s careful, detailed and correct analysis of the messages sent by the appellant show why he committed acts of domestic violence. Having reached that conclusion in this case, it was practically inevitable that the Magistrate would find a protection order was necessary and desirable. 

[48] The appellant has failed to show any error. The appeal he has brought is vexatious and a waste of the time of the respondents and the court.

Biometrics

'Glukhin v. Russia' by Monika Zalnieriute in (2023) 117(4) American Journal of International Law 695-701 comments 

 Glukhin v Russia is the first ECtHR decision on the use of FRT; it portends a strong foundation for further restricting how governments use FRT. For two reasons, however, there is little certainty as to the future of the ECtHR’s approach to mass FRT-surveillance in public spaces. First, the ECtHR tends to focus heavily on procedural safeguards - what I have called its procedural fetishism; and second, the case concerned Russia – a former Member State of the Council of Europe. In this case note, I argue that ECtHR’s trend towards procedural fetishism is particularly dangerous, for it legitimizes mass FRT-surveillance in public spaces, including when used to tackle protest movements globally. 

On July 4 2023, the Third Section of the European Court of Human Rights (ECtHR) ruled in Glukhin v Russia, that administrative conviction for a protester’s failure to notify Russian authorities of his intention to hold a solo demonstration, and the use of facial recognition technologies (FRT) to convict the protester, violated his rights to a private life and freedom of expression, guaranteed under Articles 8 and 10 of the European Convention on Human Rights (‘the Convention’ or ‘ECHR’). The use of FRT enabled authorities to track down the Russian national and arrest him within seven days of the alleged offence. Mr Glukhin was arrested, with CCTV and social media footage being used in administrative proceedings against him. The ECtHR found that the Russian Government’s actions violated Articles 8 and 10 of the Convention. 

This is the first ECtHR decision on the use of FRT; it portends a strong foundation for further restricting how governments use FRT. For two reasons, however, there is little certainty as to the future of the ECtHR’s approach to mass FRT- surveillance in public spaces.

Zalnieriute's 'Against Procedural Fetishism: A Call for a New Digital Constitution' in (2023) 30(2) Indiana Journal of Global Legal Studies argues 

Digital constitutionalism, to date, has been proceduralist; it has assumed that transparency and due process can temper power and attain justice for people vis-à-vis the automated state and powerful tech companies. So far, digital constitutionalism has also been very soft and blind to its own coloniality: Instead of deploying hard law, we are still looking for ways to pressure digital behemoths to self-regulate. We downplay US dominance, colonial exploitation, and environmental degradation caused by digital imperialism. Meanwhile, the power of tech companies has escalated. They now influence many aspects of our public and private lives, from elections to our own personalities and emotions, to environmental degradation. To be successful, the project of digital constitutionalism must resist a corporate agenda of procedural fetishism, a strategy to redirect the public from more substantive and fundamental questions about the concentration and limits of power to procedural microissues. Such diversion merely reinforces the status quo. 

To rectify the imbalance of power between people and tech companies, a new digital constitution must therefore try something different. It must shift its focus from soft law initiatives to tangible legal obligations by the tech companies. We must redistribute wealth and power not only by breaking and taxing tech companies, fortifying regulatory enforcement, increasing public scrutiny, and adopting prohibitive laws but also by democratizing big tech by making them public utilities and giving people a say how these companies should be governed. Crucially, we must also decolonize digital constitutionalism through recognition of colonial practices of extraction and exploitation and paying attention to the voices of Indigenous peoples and communities of the so-called Global South. With all these mutually reinforcing efforts, a new digital constitution will debunk the corporate and state agenda of procedural fetishism and will establish the new social contract for the digital age.,

Blood and Procedure

Another pseudolaw claim, with the Court in National Australia Bank Limited v Mellander [2023] NSWSC 1171 noting 

 The defendant is the registered proprietor of the property at ... Street, Wentworthville NSW 2145 (the property). The defendant borrowed money from Citibank Pty Limited (Citibank). The loan was secured by a mortgage over the property. Subsequently, Citibank, on the plaintiff’s case, transferred its rights with respect to the loan and the mortgage to the plaintiff. The defendant defaulted on the loan, leading the plaintiff to take action in this Court by way of statement of claim. The defendant says he sent a response to the Court. Nothing was actually filed in the proceedings. As a result of the apparent absence of any response to the plaintiff's claim, the plaintiff obtained default judgment and then subsequently obtained a writ of possession with respect to the property. On 5 September 2023, some 48 hours before he was to be evicted, the defendant filed a notice of motion seeking a stay of the writ of possession. That motion is the subject of this judgment. ... 

The defendant contends that his evidence establishes the default judgment and writ of possession were not properly obtained and, further, that he has a good defence to the claim. 

The plaintiff relied on: (1) the notice of motion seeking default judgment, together with the supporting affidavit of Dean Adams of 6 June 2023 (Exhibit 1); (2) the notice of motion seeking the writ of possession, together with the supporting affidavit of Mr Adams of 18 July 2023 (Exhibit 2); and (3) an affidavit on Sera Erikozu of 19 September 2023 (Exhibit 3). 

The plaintiff also provided written submissions to the Court. On the plaintiff’s case, the above evidence establishes the default judgment and writ of possession were regularly obtained. The plaintiff further submits that the defendant’s contentions are baseless. 

By statement of claim filed 6 March 2023, the plaintiff sought possession of the property, leave to issue a writ for possession, judgment in the amount owing under the loan (approximately $254,000), together with the plaintiff's fees and charges in accordance with the loan and mortgage and the costs of the proceedings. 

An affidavit of a licensed process server of 13 March 2023, annexed to the affidavit in support of the motion for default judgment, establishes that the statement of claim was served on the defendant on 9 March 2023. The affidavit states that three copies of the statement of claim, the notice to occupier, and the possession of land coversheet were served on the defendant by placing them in a sealed envelope and affixing the envelope to the fence at the property. It appears service was affected in this way as, according to the affidavit, the property was surrounded by a fence with a sign indicating “LEGAL NOTICE, NO TRESPASSING - ADMITTANCE BY INVITATION ONLY”. The affidavit annexed a copy of the notice to occupier. 

A further affidavit of service, prepared by a licensed commercial agent on 27 March 2023, was annexed to the affidavit in support of the motion for default judgment. This related to a further service of the statement of claim and possession of land coversheet on 21 March 2023. While the documents did not include a notice to occupier, I am satisfied this document had been properly served on 9 March 2023: Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) r 6.9(2). The commercial agent deposed that he attended the property and described the only access to the property to be a “chainmesh gate which was padlocked closed”. He deposed that there were “signs attached to the gate advising that ‘all mail and all correspondence’ would not be accepted, and that uninvited admittance to the property by police, government, process servers etc would be an act of trespass”. The deponent said he waited at the property and, at approximately the 5:30 pm, he had a conversation with a man he believed to be the defendant. He described the man as “aged in his sixties”. He said the man arrived at the property on a bicycle and opened the padlock on the gate. When asked, the person denied that he was the defendant. The deponent said that the man turned away when he appeared to observe the documents in the deponent's hand. The deponent said “I think you are Peter Mellander . I have some legal documents to deliver to you”. The deponent said the person responded, “you have no liability” and further said “you have no liability under the fourth law” and walked away. The deponent states that he then said “as you will not accept the documents, I am making you aware that I will leave them here for you. Take this as notice that you have been served”. The deponent said that he then rolled-up the documents and placed them in the chain mesh gate. The deponent stated that he took a photograph of the person he spoke to. He said he showed that photograph to a neighbour at ... Street who informed him that the person in the photograph was known to him as “Peter Mellander ”. Photographs of the fence, signage, and the person spoken to were annexed to the affidavit.

The Court was satisfied that Mellander was served with the statement of claim, the notice to occupier, and the possession of land coversheet, noting "the defendant does not suggest the proceedings were not brought to his attention". 

 No response to the statement of claim reached the Court file or, apparently, the plaintiff. On 8 June 2023, the plaintiff filed a notice of motion seeking default judgment. Filed in support of that motion was the affidavit of Mr Adams of 6 June 2023. That affidavit established the transfer of the mortgage from Citibank to the plaintiff, service of the statement of claim and related documents, together with the outstanding debt. There was no requirement to serve the application for default judgment on the defendant: UCPR, r 16.3(1A). The defendant obtained default judgment and possession orders in respect of the property on 15 June 2023. 

By notice of motion filed on 20 July 2023, the plaintiff sought a writ of possession for the property. There was no obligation to serve the application on the defendant: UCPR, r 39.2(2)(b). A writ of possession was obtained on 1 August 2023. 

It was only when faced with eviction from the property that the defendant took any steps in relation to the proceedings, or at least, any step recognised by the Court. On 5 September 2023, the defendant filed a notice of motion by which he sought an order that “the Court provide an immediate stay of proceedings pending full and detailed judicial review”. 

The matter came before Walton J, as Duty Judge, on 13 September 2023. On that date, the defendant's motion was adjourned to 20 September 2023, when it came before me as Duty Judge, to allow the defendant an opportunity to consider the plaintiff’s evidence and put evidence before the Court to provide a basis for the order sought. On 13 September 2013, in accordance with an order made by Walton J, the plaintiff provided the defendant with copies of the motions seeking default judgment and the writ of possession, together with the affidavits in support, the two affidavits of service with respect to the statement of claim referred to above, and the Court’s notice of orders made on 15 June 2023 entering default judgment for the plaintiff. 

The plaintiff served the defendant at court with the affidavit of Ms Erikozou (Exhibit 3) and its written submissions. That material had been filed the previous day in accordance with the orders of Walton J, however, in the absence of any means of electronic service, the defendant was not able to be served until he appeared at the hearing. I adjourned the Court for a period I regarded as sufficient to allow the defendant to read that material. 

The defendant's claim is that there are defects in both the process by which judgment was obtained against him and the substance of the plaintiff's claim. Any stay, as sought by the defendant, is contingent on him having a basis on which to set aside the default judgment. Although no motion to set aside the default judgment has been filed, I will proceed on the basis that this is what the defendant seeks to do. ... 

The process by which default judgment and the writ were obtained 

The steps taken by the plaintiff 

The defendant’s affidavit of 18 September 2023 claims that the default judgment and the subsequent writ were properly obtained. He said that the affidavit of service with respect to the statement of claim was only a photocopy, was not certified as a true copy, had not been “signed by the issuing officer of the Court giving full assurance of liability”, was a “false and fraudulent document” and “has not reached full commercial liability”. Consequently, it was submitted that, among other things, it was void, a constructive fraud, designed to pervert the natural course of justice, and could not be relied upon. The same submission was made in relation to the motion seeking default judgment and the writ of possession. 

There is no obligation on a party to produce original documents. Section 48 of the Evidence Act 1995 (NSW) allows proof of documents by the tender of a document that purports to be a copy of the document and purports to have been produced by a device that reproduces the contents of documents. This allows for the acceptance of a document, which appears to a photocopy of a document. Further, I note the proceedings are interlocutory and s 75 of the Evidence Act provides that the hearsay rule does not apply, provided that the party adducing hearsay evidence adduces evidence of its source. Consequently, and, in the defendant’s favour, on the assumption that it was necessary for the plaintiff to do so, I do not accept the defendant’s submission that the plaintiff has not established the default judgment and writ of possession were properly obtained. 

The defendant's response to the statement of claim 

There is one complication in relation to the process by which the default judgment and writ of possession were obtained. The defendant claims that he responded to the statement of claim. He says that he mailed, to the Court, a document which forms the bulk of Exhibit 3. That document is titled “Affidavit of Rebuttal” and is date stamped 24 March 2023. It is addressed to the “Supreme Court of New South Wales, Chief Justice” with the Court's address. On the first page, the document sets out the following:

“In support of: NATIONAL AUSTRALIA BANK LIMITED A.B.N 12 004 044 937 and the SUPREME COURT OF NSW A.B.N. 77 057 165 500 does not have competent jurisdiction over I, The Aggrieved and did deny my lawful rights for peter-james bonded by the blood of the house of mellander Applicant: peter-james bonded by the blood of the house of mellander Defendant 1: The CHIEF EXECUTIVE OFFICER of NATIONAL AUSTRALIA BANK LIMITED Defendant 2: NATIONAL AUSTRALIA BANK LIMITED A.B.N. 12 004 044 937 Defendant 3: The CHIEF JUSTICE of the SUPREME COURT OF NSW A.B.N. 77 057 165 500 Defendant 4: The SUPREME COURT OF NSW A.B.N. 77 057 165 500 Defendant 5: The```` STATE of NSW Defendant 6: Attorney-General’s Department A.B.N. 92 661 124 430 Defendant 7: Federal Court of Australia A.B.N. 49 110 847 339 Defendant 8: CITIBANK Pty LIMITED A.C.N. 004 325 080 

General form of affidavit. Affiant: peter-james bonded by the blood of the house of mellander . The CHIEF JUSTICE, I, peter-james bonded by the blood of the house of mellander care of ... Street, Arndell Park, N.S.W. [2148] come with clean hands in equity seeking immediate lawful remedy make asseveration and say as follows: [signed] Deponent [signed] Justice of the Peace Affidavit Registration Number: U.P.U./Australia Post Registered Post Article 341883001778359 Page 1 of 53”

It is not until the second page of the document that reference is made to these proceedings. The document states:

“I refer to 'NOTICE TO OCCUPIER'; NATIONAL AUSTRALIA BANK LIMITED A.B.N.12 004 044 937 case number 2023/00074608 and 'STATEMENT OF CLAIM; NATIONAL AUSTRALIA BANK LIMITED A.B.N. 12 004 044 937 v Peter James Mellander ' date March 6, 2023 served on I, The Aggrieved, March 10, 2023 and March 21, 2023.” The 'STATEMENT OF CLAIM' Title of Proceedings lists the defendant as ‘Peter James Mellander ’. 

The SUPREME COURT OF NSW A.B.N. 77 057 165 500 did commit fraud. The Addressee name is a corporate government created name of a corporate dead entity legal fiction construct from the unlawful Birth Certificate by trading company corporation known as NSW REGISTRY OF BIRTHS DEATHS AND MARRIAGES. 

The SUPREME COURT OF NSW A.B.N. 77 057 165 500 did attempt to make trick and deceive and induce and coerce the living breathing flesh and blood man of God being the intended recipient to consent to the fraud. 

The use of the legal name against I, The Aggrieved is offensive and defamatory and embarrassing material. 

There is no contract or obligation by the I, The Aggrieved being the intended recipient to pay or perform to trading company corporation known as SUPREME COURT OF NSW A.B.N. 77 057 165 500. 

The 'STATEMENT OF CLAIM' Attachment Details confirms the Court intends to sit, preside and determine in accordance with UCPR being foreign imposed codification not correctly searching for it's head of power under the Commonwealth Constitution.”

Relevance

Nice snappy articulation of 'relevance' in R v BELL (No 6) [2023] SADC 112 

 The law of relevance 

[42] Relevance is a question of law. It is most simply encapsulated in two long-cited propositions: None but facts having rational probative value are admissible; and All facts having rational probative value are admissible, unless some specific rule forbids. 

[43] A fact is relevant if it tends to directly or indirectly prove or disprove a fact in issue or to prove some relevant fact. It will be relevant where the evidence to be called relates to that other fact in a way that, according to the ordinary course of events, either by itself or in connection with other facts, proves or makes probable the past, present or future existence or non-existence of that other fact. 

[44] ‘Facts in issue’ are what the High Court has described as either ‘main facts in issue’ which are generally those that must be established to secure a conviction, establish a cause of action, or to enable some defence or answer to a case to be made out, or ‘subordinate or collateral facts in issue’ which might affect matters such as the credibility of a witness or the admissibility of particular items of evidence. Relevance will be assessed by reference to not only the elements of the offences charged, but also to the subsidiary issues that arise in relation to facts that may be probative of those ultimate issues. Importantly, these subsidiary issues may extend to matters that are necessary to contextualise and explain matters that a jury must consider and determine, including the credibility of witnesses. 

[45] Evidence will also be relevant if it provides an explanatory framework for other evidence; for example, if it may explain a statement or an event that would otherwise appear curious or unlikely; it may cut down, or reinforce, the plausibility of something a witness has said; or it may provide a context that is helpful or necessary for an understanding of the narrative. 

[46] Relevance must obviously be assessed with reference to the issues at trial, the purpose of the tender, and the state of the other evidence in the trial. 

[47] In cases involving circumstantial evidence, relevance must be resolved by reference to the whole of the evidence in the case. 

[48] The law recognises that particularly where, as here, the trial is by jury and consequently the Court is being asked to rule on questions of relevance prior to the commencement of the jury trial, and consequently before all the issues that may become relevant in the trial become apparent, it is undesirable and unnecessary to set the hurdle of relevance too high.

Constitutions and Constructivism

'Constitutionalizing in the Anthropocene' (Tilburg Law School Research Paper) by Floor M. Fleurke, Michael C. Leach, Hans Lindahl, Phillip Paiement, Marie-Catherine Petersmann and Han Somsen comments 

The Anthropocene thesis, in its rejection of both the modernist separation between ‘humans’ and ‘nonhumans’ as well as its treatment of ‘humans’ as a singular global geophysical force, presents fundamental challenges to constitutional theory and practice. First, in terms of conceptual and foundational transformations, the Anthropocene provokes the reconceptualization of legal relations as never limited to human concerns, but always and already part of more-than-human collectives, in which both humans and nonhumans act with co-agency, in recognition of shared vulnerabilities and in relations premised on care. This reconceptualizing demands a new understanding of representational practices that could constitutionalize more-than-human relations as political and legal collectives. Second, emergent technologies such as genetic and climate engineering introduce fundamental questions about regulatory modalities available in the Anthropocene, and the role law plays in this regard. Such technologies have given rise to the possibility of ‘ruling by design’, by technologically mediating ‘natural’ forces or Earth system processes to achieve pre-established regulatory goals. This possibility raises critical concerns about the remaining role for law in legitimizing and enabling such developments. Finally, the temporal dimensions of the Anthropocene thesis cast a critical light on law’s potential for driving radical transformations in (un)governance. In imagining future legal institutions capable of manifesting more-than-human constitutionalism, it is necessary to excavate the historical role that foundational legal principles and institutions – such as sovereignty and personhood – have had in facilitating exploitative relations within and beyond humans.

'Just Versus Quick: Constructivist and Ecological Rationality in a Common Law System' by Stephen Gageler (2022) 45(2) Melbourne University Law Review 830 states 

Justice Gageler explores how lessons from behavioural economics are reflected in the institutional structure in which the judicial function is performed. The structure has what the economist Vernon Smith would call an ‘ecological rationality’, an internal logic that minimises errors in human judgement. Features of the structure which combine to have this effect include the appointment of judges from senior ranks of the legal profession, the security of judicial tenure and remuneration, the decisional independence of the judge, the personal discipline of the judge, the requirement to give reasons, and the appellate process. These structural features also carry risks to the quality of adjudication, calling for what Smith would call ‘constructivist’ intervention. Delay in the production of judgments is one of those risks. The challenge in designing a constructivist solution to the problem of delay in the production of judgments is that of striking an appropriate balance between speed and correctness without compromising decisional independence. 

 Gageler J comments 

 From time to time, we engage in Australia in spontaneous national conversations on matters pertaining to the judicial function. The conversations tend to be sparked by some public utterance of a senior practising lawyer or former member of the judiciary, to gain immediate but fleeting attention in the mainstream media, and then to fester at length amongst members of the judiciary. The conversations are not conducted by the participants speaking to each other, or even in the presence of each other, but by them separately delivering learned speeches to learned audiences. We have for some time been engaged in a conversation about judicial productivity. This is my contribution. 

Over a decade ago, the High Court of Australia made a decision that marked a hardening of judicial attitude against delay in the conduct of litigation. On the third day of the four-week trial of a civil proceeding that had been pending in the Supreme Court of the Australian Capital Territory for nearly two years, the plaintiff had applied for an adjournment and for leave to amend its statement of claim to add a substantial new claim against the defendant. The primary judge had granted the adjournment and the amendment. The Court of Appeal of the Australian Capital Territory had upheld that decision. The High Court unanimously reversed. The plurality in the High Court said that the primary judge and the Court of Appeal had given insufficient attention to the overriding procedural objective identified in the modernised rules of the Supreme Court of the Australian Capital Territory of facilitating the just resolution of the real issues in civil proceedings with minimum delay and expense. 

In a concurring judgment, another member of the High Court drew a parallel between the plaintiff’s delay of two years in attempting to amend its statement of claim and the Court of Appeal’s delay of some six months in delivering judgment after hearing the appeal to it from the decision of the primary judge. He concluded:

The proceedings reveal a strange alliance. A party which has a duty to assist the court in achieving certain objectives fails to do so. A court which has a duty to achieve those objectives does not achieve them. The torpid languor of one hand washes the drowsy procrastination of the other. Are these phenomena indications of something chronic in the modern state of litigation? Or are they merely acute and atypical breakdowns in an otherwise functional system? Are they signs of a trend, or do they reveal only an anomaly? One hopes for one set of answers. One fears that, in reality, there must be another.

The current conversation about judicial productivity is a belated attempt to grapple with the questions posed in those remarks. The conversation began three years ago when the author of the remarks delivered a post-judicial speech, the substance of which was reproduced in a national newspaper. The speech was based on a statistical analysis, undertaken by the author himself, which compared for sample periods the average time between the conclusion of a hearing and the delivery of judgment taken by judges at first instance in the Commercial Court and in the Chancery Division of the High Court of Justice of England and Wales, in the Equity Division of the Supreme Court of New South Wales and in the Federal Court of Australia. The comparison, according to the author, suggested ‘that the two Australian courts are slower than the English courts and that the Federal Court is the slowest of all’. ‘The Australian performance, particularly the Federal Court performance’, the author went on to opine, ‘is a matter for shame’. Something needed to be done about the delay, the author said, and ‘[i]f all other solutions fail, the only remedy may be the persistence, intensity, even savagery, of judicial, professional and public criticism’. 

The particular subject of judicial productivity in the Federal Court of Australia was soon afterwards taken up in another national newspaper. There it was reduced to a table, the online version of which was interactive. The table ranked each of 69 then-current and recent Federal Court Justices not only by reference to the average number of days each of them took to deliver a written judgment, but also by reference to the average number of words and the average number of paragraphs each of them produced per day. 

Not unsurprisingly, the Chief Justice of the Federal Court and the Chief Justice of New South Wales weighed in on the conversation. Both accepted unreservedly the undesirability of delay in the delivery of judgments. Both nevertheless pointed out the crudeness of adopting a purely quantitative measure of judicial productivity, echoing the memorable and oft-repeated observation of a former Chief Justice of New South Wales that ‘not everything that counts can be counted’. Both pointed to the inevitability of a degree of trade-off between the quantity and quality of judicial output. Both also pointed to the need to take a system-wide perspective. A judge working quickly to produce a large number of low-quality judgments only to have many of them set aside on appeal, they pointed out, cannot thereby be said to be contributing more to the administration of justice than a judge working more slowly and more carefully to produce a lesser number of high-quality judgments, few of which are set aside on appeal. 

My own contribution to the conversation picks up on those themes and develops them at a level of abstraction unrelated to criticism of the productivity of any individual court and unrelated even to consideration of the productivity of courts within any individual national or sub-national system. What I want to do is to explore the subject of judicial productivity at a conceptual level by focusing on the essential nature of the judicial function and on the institutional setting in which that function falls to be performed.