Pseudolegal

Black J In the matter of Commonwealth Bank of Australia [2021] NSWSC 401 deals with a pseudolegal claim, stating 

By Originating Process filed on 2 March 2021, the Commonwealth Bank of Australia (“CBA”) applies under ss 459G, 459H and 459J of the Corporations Act 2001 (Cth) to set aside a creditor’s statutory demand dated 4 February 2021 ("Demand") issued by the Defendant, Mr Ronald Gregory, to CBA. The basis on which that Demand is sought to be set aside is, in substance, that the debt claimed by Mr Gregory against CBA is genuinely disputed. 

The Demand refers to a debt in the amount of $418,000 and also claims interest and costs, and describes the debt as follows:

“Debt arising from outstanding invoice number RMG261020201429 for which First Notice dated the 26/10/2020, Second Notice dated 20/11/2020 and Third & Final Notice dated 11/12/2020 with invoices enclosed being delivered to the debtor company by Australia Post Domestic Letter with Tracking to which no replies from the debtor company were received. 

The invoice relates to debt by the debtor company as confirmed in an unrebutted affidavit dated 4/08/2020. 

A second unrebutted affidavit regarding commercial default for non payment by the debtor of invoice number RMG261020201429 by the debtor company is to the creditor.”

The verifying affidavit dated 4 February 2021 likely does not comply with the requirements for verification of a creditor’s statutory demand, so far as it contains a series of negative statements, commencing with the proposition that Mr Gregory has not been provided with any material evidence that he is not the creditor and continuing through several paragraphs of a similar character to conclude that: 

“I have not seen or been presented with any material evidence that there is genuine dispute about the existence or amount of the debt by the debtor company to the creditor and I believe sincerely that no such evidence exists. 

I have not seen or been presented with any material evidence that this statutory demand does not comply with the appropriate rules of the Corporation Act 2001 and I believe sincerely that no such evidence exists.” 

It is not necessary to express any final view as to the adequacy of that affidavit where CBA did not rely on any inadequacy in that affidavit as the basis for its application to set aside the Demand. 

CBA’s evidence 

CBA reads, first, the affidavit of Mr Hanrahan dated 2 March 2021. Mr Hanrahan is employed by CBA in its Financial Assistance Solutions and Collections Team and gives evidence that he has access to CBA's books and records in respect of the proceedings, and refers to service of the Demand on CBA's registered office. He notes that Mr Gregory has held Visa credit card facilities with CBA since 2006 and refers to correspondence with Mr Gregory which appears to have given rise to discontent on Mr Gregory's part, and to a complaint made by Mr Gregory to the Australian Financial Complaints Authority which it appears was dismissed. 

Mr Hanrahan, in turn, refers to a number of documents on which Mr Gregory has relied, in correspondence with CBA and in these proceedings, and I mark some of the documents which have since been provided to the Court as MFI1 in these proceedings. Mr Gregory did not appear and none of his affidavits have been read and none of those documents tendered in the proceedings, except so far as CBA had led evidence of them to identify the claims he has made. Mr Hanrahan seeks to identify Mr Gregory's underlying claim, which appears to arise from an invoice issued by him to CBA, which in terms relates to a fine purportedly imposed by Mr Gregory on CBA in respect of an alleged trespass on an agreement between Mr Gregory and CBA. Mr Hynes, who appears for CBA, perhaps somewhat uncharitably but likely correctly, refers to the basis of Mr Gregory's claim in that respect as incomprehensible, so far as Mr Gregory seeks himself to impose a fine for the suggested breach, and so far as the concept of a trespass upon an agreement is one which would not ordinarily be known to Australian law. 

By a further affidavit dated 9 March 2021, Mr Holland, a process server, refers to service of the proceedings which seek to set aside the Demand upon Mr Gregory. The Originating Process was served under cover of a notice under the Service and Execution of Process Act 1992 (Cth) (“SEPA”), so far as the proceedings were brought in the Supreme Court of New South Wales and served upon Mr Gregory in the State of Victoria. I will refer to an issue arising in respect of an aspect of that notice below. 

By a further affidavit dated 10 March 2021, Mr Lewin, a solicitor acting for CBA, referred to service of further documents upon Mr Gregory by post. By a second affidavit of Mr Lewin also dated 10 March 2021, he led evidence of a company search of CBA, a matter required by the Corporations Rules in respect of an application of this character. By a third affidavit dated 18 March 2021, Mr Lewin led evidence of further correspondence with Mr Gregory. 

By an affidavit dated 22 March 2021, Mr Holland gave evidence of service of further documents upon Mr Gregory. By his affidavit dated 22 March 2021, Mr Lewin referred to sending an email to Mr Gregory, including further evidence in the proceedings and the Plaintiff's outline of submissions, identifying the orders it sought. By a further affidavit of Mr Lewin dated 25 March 2021, he updated the position in respect of correspondence with Mr Gregory and a further affidavit dated 6 April 2021 indicated that Mr Gregory had been advised of the adjournment of CBA's application to today, to allow him to consider supplementary submissions which had been made by CBA in respect of the issue arising under SEPA. 

Mr Gregory’s position 

Mr Gregory has not appeared at any stage in the proceedings, whether by filing a notice of appearance, or attending any of the hearings conducted by telephone. However, there is no doubt that Mr Gregory is aware of the proceedings, and he has actively participated in them by correspondence to the Court and the filing of affidavit evidence, which I have marked, as I noted above, "MFI1". The form of Mr Gregory’s correspondence and evidence has many of the features which were described in the judgment of the Court of Queen’s Bench of Alberta in Meads v Meads 2012 ABQB 571 as “Organized Pseudolegal Commercial Argument”, which I noted in Sheridan v Colin Biggers & Paisley [2019] NSWSC 528 at [10] and to which the Court of Appeal referred in Wichman v Pepper Finance Corp Ltd [2019] NSWCA 195. 

The documents filed by Mr Gregory, but not read or tendered by him because he has not appeared, include a document dated 4 March 2021 titled "Notice to Principal is Notice to Agent" addressed to the Registrar of the Court, and demanding a copy of any lawful contract made between Mr Gregory and the Court with his informed consent on which the Court relies. Mr Gregory then claims that, if the Court does not provide him with such a contract within seven days, it will be taken to have assented that no contract exists with him. It appears to be self-evident that no contract exists between Mr Gregory and the Supreme Court of New South Wales. However, the Court's jurisdiction is not contractual in nature. In particular, the Commonwealth and the State of New South Wales have conferred jurisdiction under the Corporations Act 2001 on the Court, including jurisdiction to set aside a creditor’s statutory demand, and that jurisdiction does not require Mr Gregory's agreement for its exercise. 

By an affidavit, Mr Gregory addresses various matters including that he is "a living spirit within a sentient breathing man"; that he has not been presented with facts or material evidence of various matters, and that he does not have a contract or consent to any contract with any person or persons without his fullest informed consent. That affidavit concludes with the striking affirmation that it is "As Good as Avaal", a proposition that is not commonly seen in affidavits in the Courts of New South Wales, but appears to be known to United States law in respect of guarantees. 

By “Notice of non-consent” dated 24 March 2021, Mr Gregory draws to the Court's attention that he has no contract with the Court, a matter to which I have referred above. By a second affidavit, of substantial length, Mr Gregory addresses matters raised by the affidavits on which CBA relies. By a letter dated 25 March 2021 addressed to the Registrar he addresses further aspects of the affidavits on which CBA relies. By an email dated 29 March 2021, he succinctly advised my Associate, so far as he had been informed of a hearing of the proceedings on 26 March 2021, that he did "not consent". Three further affidavits address issues including those raised by the Plaintiff's supplementary outline of submissions and, by an affidavit which appears to be directed to the attention of CBA’s solicitors, Mr Gregory seeks to highlight a suggested fraud, presumably in respect of these proceedings, and by a further affidavit, directed to the attention of the Chief Justice of New South Wales, the Chief Judge of the Equity Division and the Registrar of the Supreme Court, he addresses the same matter. 

I draw attention to these documents, not because they are in evidence or because Mr Gregory made any attempt to read the affidavit evidence, or to tender them, but because they demonstrate that Mr Gregory is squarely on notice of the proceedings and has had an opportunity to be heard in them.

Surveillance

The Commonwealth Ombudsman's report Australian Federal Police’s (AFP) use and administration of telecommunications data powers 2010 to 2020 

 is the outcome of my Office’s own motion investigation into the Australian Federal Police’s (AFP) use and administration of telecommunications data powers under Chapter 4 of the Telecommunications (Interception and Access) Act 1979 (the TIA Act). In particular, our investigation focussed on access to and use of one type of telecommunications data—location-based services (LBS), colloquially known as ‘pings’. 

My Office provides independent assurance that telecommunications data, including LBS, is only used in the circumstances permitted by the legislation and that agencies using these powers can demonstrate their compliance. We do this by inspecting a sample of records and reporting what we find each year. Our ability to provide this assurance is dependent on agencies providing full and accurate records of their use of the powers. As such, when the AFP identified records that showed ACT Policing (the AFP’s community policing arm) had accessed LBS and that those records had not previously been provided to my Office, I decided it was appropriate for my Office to conduct its own investigation. 

There were several important factors that informed my decision to commence an investigation, including:

• the covert and intrusive nature of this power 

• the duration and potential scale of non-compliance with the TIA Act as a result of ACT Policing accessing telecommunications data outside the AFP’s approved process 

• the omission of the affected records from our Office’s regular compliance inspections 

• previous recommendations our Office has made to the AFP about non-compliance with the TIA Act. 

The AFP identified records dating back to 2007 which showed ACT Policing accessed LBS outside the AFP’s approved process. This meant two things:

• the access was not reported to the Minister for Home Affairs and the records were not provided to my Office, to be considered for inspection. 
• • the risk of non-compliance with legislative requirements under the TIA Act was higher as the access occurred outside established processes approved by the AFP. 

My Office’s inspections of the AFP’s access to telecommunications data from 2015–16 occurred without full or accurate records to inform our assessment 

After identifying the records, the AFP did the right thing—they disclosed the issue to our Office and after discussion, commissioned PwC Australia (PwC) to conduct an internal audit of the affected records. 

My Office’s investigation focused on the scope and extent of any non-compliance, noting the potentially serious consequences, and the causes of any non-compliance, including culture, practices and procedures that contributed. 

This report makes findings based upon the following themes:

• We identified that many of the authorisations made by ACT Policing for access to telecommunications data between 13 October 2015 and 2019 were not properly authorised. Of the 1,713 individual accesses to LBS by ACT Policing for that period, we were only able to provide assurance that nine were fully compliant with the TIA Act. 

• Many LBS could have been accessed unlawfully which has a number of potential consequences. Firstly, if access was unlawful and the information relied on in prosecutions, there may be consequences for people convicted of an offence. While initial advice provided by the AFP to my Office was that the LBS obtained by ACT Policing was only used to locate someone to arrest them, we were unable to rule out the possibility that unlawfully obtained evidence, the LBS, may have been used for prosecutorial purposes. Secondly, the privacy of individuals may have been breached. 

• We could not be satisfied that the scope of the breaches has been fully identified by the AFP nor the potential consequences and consider it is possible breaches have occurred in parts of the AFP other than ACT Policing. 

• The AFP and ACT Policing missed a number of opportunities to identify and address that ACT Policing was accessing LBS outside the AFP’s approved process earlier. 

• The internal procedures at ACT Policing and a cavalier approach to exercising the powers resulted in a culture that did not promote compliance with the TIA Act. This contributed to the non-compliance identified in this report. 

In response to PwC’s report, the AFP made several changes to the way in which staff access prospective telecommunications data in an effort to improve compliance with the TIA Act. These have been useful first steps towards the AFP achieving future compliance. However, I consider the AFP needs to do more to confirm the extent of non-compliance with the legislation for this type of telecommunications data and remediate any consequences of non-compliance with the TIA Act identified in this report. 

This report includes eight recommendations to assist the AFP in addressing these issues and implementing processes to prevent recurrence of similar issues.

Pseudostates

'Micronations: A lacuna in the law' by Harry Hobbs and George Williams in (2021) International Journal of Constitutional Law comments 

Around 100 active micronations exist across the globe. Led by committed and eccentric individuals, these aspirant or wannabe states assert their claims to sovereignty in myriad ways. In dressing in the language of statehood, they challenge understandings of, and approaches to, international legal personality. In this article we provide the first legal survey of micronations. We develop a conceptual framework to understand what it means to be a micronation, explore their various forms, and analyze key public law issues. Our survey reveals that, although public law has not engaged with this phenomenon, states respond to the assertion of sovereignty by micronations in both benign and violent ways.

The authors argue 

On December 2, 1977, Prince Leonard Casley of the Hutt River Province cabled a telegram to the Governor-General of Australia, declaring war. With a permanent population of fewer than twenty residents, no standing army, and the Province’s 75 km2 territory entirely enclosed by the state of Western Australia, Prince Leonard was unprepared for war. Two days later, on December 4, 1977, he cabled a second telegram announcing the cessation of hostilities. The Australian government responded to neither correspondence, but Prince Leonard nonetheless claimed victory. According to his reading of the Geneva Conventions of 1949, a state should show full respect to a nation undefeated in war. As the Hutt River Province was undefeated, Australia must recognize its sovereignty. 

Australia never recognized the sovereignty of what subsequently renamed itself the Principality of Hutt River, but Prince Leonard is not the only person who has claimed to secede and create his or her own state. Although a new state is, of course, the goal of secessionist movements across the globe, including in South Sudan, Kosovo, Scotland, Catalonia, Quebec, and elsewhere, Prince Leonard’s Principality differs from these efforts. Built around a committed and eccentric individual, possessing only a very small resident population and unrecognized by sovereign states, the Principality was an “aspirant” or “wannabe” state. More commonly, it was known as a micronation. 

In contrast to true secessionist movements, micronations are generally considered trivial and are often ignored by the state. This may be because a micronation poses no security threat to the state and lacks a foundation in domestic and international law for its claim to independence. They are also not recognized in domestic or international forums as nations. Despite this, micronations dress themselves in the language of statehood and perform acts of sovereignty. In doing so, they critique and challenge understandings of and approaches to international legal personality. 

Micronations are an oddity that sits outside conventional understandings of the law. Perhaps for this reason, no significant legal study of micronations exists. In this article, we rectify this by providing the first legal survey of micronations. We define what it means to be a micronation, explore their various forms, and analyze key public law issues relating to their establishment and existence. This provides a rich body of material from which to assess and understand these unique attempts to assert statehood. 

Micronations are diverse in form and function. In Section 2 we develop a conceptual framework for micronations to better understand and interrogate their common features and considerable diversity. We do so by first establishing a definition of what it means to be a micronation, and then situating that definition within understandings of statehood. This enables us to define and better understand micronations before exploring whether and how traditional frameworks of international legal personality relate to or comprehend this phenomenon. 

In Section 3 we explore that diversity in more detail. Drawing on our conceptual framework we survey a wide cross-section of micronations, focusing on the varied motivations for their creation. Owing to the general paucity of scholarly engagement, in many cases we rely on statements from founders and individuals connected to particular micronations. Such stories are part of a micronation’s self-created history and narrative, and are therefore valuable in understanding the reasons why a person chooses to found their own country. Our survey reveals that individuals and small groups from all over the globe purport to secede and establish their own countries for a wide variety of reasons. 

Documenting the sheer prevalence of micronations is valuable in itself. However, uncovering the multiplicity of motivations that underlie the reasons for their formation illuminates our understanding of the legal disputes they provoke. In Section 4 we discuss several key public law issues that pertain to micronations. We examine how micronations seek to assert their sovereignty and independence, as well as how recognized nations respond to such claims. As we note, while state responses range from the benign to the violent, all responses share a commitment to the full enforcement of their laws. ... 

Micronations have escaped sustained attention in the legal literature. There is no legal account that identifies and comprehensively outlines the common features and outer bounds of this phenomenon. In fact, very few non-legal efforts that offer an explanatory account of micronationalism exist. In this section, we examine three non-legal attempts to develop a typology aimed at understanding and explaining micronationalism. In doing so, we explore classificatory accounts that identify commonalities and distinctions among and between micronations with the goal of discerning a legal definition to guide our discussion throughout this article. 

Before commencing, it is important to note that all accounts agree that micronations are distinct from recognized states. While no unambiguously “accepted and satisfactory legal definition of statehood” exists, the Montevideo Convention definition is most commonly adopted. Under the Convention, an entity must meet certain conditions relating to territory, population, government, and a capacity for external relations, in order to be characterized as a state. Recognition by other states is not one of those conditions. Whether and how these conditions relate to micronations is explored in more detail in the following section. 

One of the few approaches to understanding micronations is provided by a geographer. Dallen Timothy offers a broad account that delineates between four distinct models, only two of which are properly characterized as micronations. At one end of Timothy’s spectrum sit internationally recognized, sovereign, non-state entities. These entities do not unequivocally meet the declarative criteria for statehood expressed in the Montevideo Convention, but are nonetheless formally recognized (by at least one other state) as de jure sovereign entities. For this reason, they are not strictly micronations but, usually, states with no control over physical territory. This category includes the Baltic states of Estonia, Latvia, and Lithuania during the Soviet annexation, as well as the Sovereign Military Order of Malta. Founded in 1048, the Order of Malta no longer exercises jurisdiction over any territory and is not strictly a state, but nonetheless retains a “certain international personality.” While the Order once ruled (at different times) Cyprus, Rhodes, and Malta, its physical territory is now limited to two buildings in Rome. Nonetheless, it maintains diplomatic relations with 107 states, has UN permanent observer status, and issues its own passports, stamps, and coins. 

Timothy identifies his second model of non-nations as “semi-legitimate places.” These entities have some historical foundation for claims of independence but, unlike the former category, have not been formally accepted or recognized by the international community. He suggests that the Principality of Seborga, situated in the hills of Liguria, Italy, falls within this category. As we discuss in more detail below, however, the Principality lacks any reasonable legal foundation for independence. A more obvious candidate is the Republic of Somaliland, a semi-autonomous region of Somalia that declared its independence in 1991, claiming to be the successor of the State of Somaliland. The State of Somaliland was the name assumed by the former British protectorate upon independence from the United Kingdom on June 26, 1960. It lasted only five days, joining with the Italian-administered Trust Territory of Somaliland to form the Federal Republic of Somalia on July 1, 1960. Despite arguably meeting international law conditions for statehood, the Republic of Somaliland is not recognized by any other state. Nonetheless, because its claim has some basis in law it is not a micronation. 

The last two models are more traditionally understood as micronations. In the third, Timothy identifies places with little or no claim to historical legitimacy, but which have nonetheless “earnestly attempted to lay claim to national independence.” This archetype includes the most prominent micronations, like the Principality of Hutt River in Western Australia, and the Principality of Sealand off the United Kingdom’s Suffolk coast, as well as lesser-known wannabe states like Liberland on the Danube River. We place the Principality of Seborga within this category.  

Timothy’s fourth example largely eschews control of significant physical territory. Increasingly prevalent, these are “countries” that assert independence “but are in fact little more than social clubs.” While they engage in performative acts of sovereignty, this is conducted primarily for amusement or to seek attention rather than to actively challenge state sovereignty. Typically, the jurisdiction claimed extends to the real property owned by its founder, whether that is an apartment in London, a flat in Sydney, or a house in Nevada. 

Timothy’s typology usefully articulates major distinctions among micronations, as well as between micronations and other “non-nations.” However, it does not clarify all variances between such entities. Finnish artists Tellervo Kalleinen and Oliver Kochta-Kalleinen offer a more pronounced classification, distinguishing between three models: microstates, model-states, and new country projects. According to Kalleinen and Kochta-Kalleinen, microstates are very small countries whose territory is typically less than 20,000 km2. Although they generally meet common international legal definitions of statehood, their sovereignty may or may not be recognized. For instance, while the Vatican City, Monaco, and San Marino are all recognized as sovereign states, the Principalities of Hutt River and of Seborga were and are not. 

Model-states differ fundamentally from microstates. While microstates exercise (or purport to exercise) sovereignty over a small territorial expanse, model-states do not seek to establish legitimacy on the basis of territorial claims. Rather, they are “experiments in forming a state with all of its political institutions” and symbols. Like “real” countries, model-states perform acts of sovereignty; they write constitutions, compose national anthems, design flags, issue stamps and currency, and conduct diplomatic relations with each other (and seek recognition from recognized nations). As the founder of the Principality of Nova Arcardia, Steven Scharff, has explained, model-states are a “diplomatic version of a model railroad.” 

New country projects are similar to model-states in that they also engage in performative acts of sovereignty. However, while model-states generally do not lay claim to substantial physical territory, new country projects involve attempts to actually establish a viable state by “acquiring or creating territory which does not belong to any existing state.” This can involve sea-steading initiatives in which floating structures are “arranged into atolls and archipelagos,” allowing individuals to settle on the high seas outside national jurisdiction, like the Republic of Minerva, and the Floating Island Project’s South Pacific city. It can also include emerging efforts to develop permanent habitation on satellites like the Space Kingdom of Asgardia. Many new country projects have been influenced by libertarian philosophies, and their founders have sought to develop and operate economic schemes prohibited in their homelands. More recent initiatives, like Waveland and Asgardia, may also be inspired by cosmopolitan ideals of an integrated global pan-humanity. Nonetheless, even in these cases, new country projects can carry colonial overlays and resonances. In 2014, for instance, a United States man planted a flag in the Bir Tawil desert, asserting authority over 2060 km2 of land claimed by neither Sudan nor Egypt in order to establish a kingdom and fulfill a promise to his daughter to make her a princess. 

The typologies by Timothy, and Kalleinen and Kochta-Kalleinen, are helpful in identifying distinctions between different forms of micronations. However, they also make clear that there are “incredible differences” and “no clear sense of unity” among this diverse practice. Acknowledging this, sociologist Judy Lattas adopts a simpler definition. Lattas defines micronations as “tiny countries declared by ordinary people in an act that repeats the establishment of sovereign nations, at least in some of its protocols.” Lattas’s approach is valuable as it more clearly identifies what makes micronations distinct from similar entities. Nonetheless, it still fails to capture what we understand by micronations within the context of our legal analysis. After all, some micronations are established by prominent political actors rather than ordinary people. Other micronations might have only a very small resident population but may claim authority over large areas of land, or even outer space. Furthermore, spurred by the growth of the internet, some micronations claim hundreds of thousands of citizens, significantly more than many recognized states. 

This demonstrates the need to adopt a different definition. We define micronations as self-declared nations that perform and mimic acts of sovereignty, and adopt many of the protocols of nations, but lack a foundation in domestic and international law for their existence and are not recognized as nations in domestic or international forums. Our definition simply and accurately encompasses the diversity of micronations; it includes libertarian sea-steading efforts, experimental states formed within college dorm rooms or conceptual art projects, as well as states established to publicize political agendas. It also excludes similar but distinct phenomena, such as secessionist movements, Indigenous nations, microstates, and intentional communities. 

In contrast to micronations, secessionist movements and Indigenous nations enjoy some historical foundation for their assertions of independence, whether or not that claim has been formally recognized by domestic law or the international community. Indigenous nations, for example, are distinct political communities composed of individuals united by identity that have a long history of operating as a distinct society, with a unique economic, religious, and spiritual relationship to their land. Even where the state does not recognize this claim, their legitimacy is based on this status. By contrast, perhaps reflecting the relative moral and political strength of their respective claims and legal foundations, micronations tend to be ephemeral. One of the oldest continuing micronations, the Kingdom of Elleore, was established on the Danish island of Elleore in 1944. Designed to parody the royal traditions and government structure of Denmark, the Kingdom is now only occupied for a week-long celebration each year. 

Our definition also excludes microstates and intentional communities. Like many micronations, microstates have a very small population and control a very small geographic area. However, as “modern protected states,” microstates are internationally recognized sovereign political entities; a status that distinguishes them from micronations. Intentional communities, or communes, are communities of people that live together in common and assert authority to manage their internal affairs autonomously of the state. Such communities can be spiritual, like the Mennonites, or secular, like Twin Oaks Community eco-village, in the United States. In this sense, they are similar to micronations. Importantly, however, intentional communities do not use the language of statehood, instead seeking to operate within the state, albeit on a distinct basis.