In McFarlane v McFarlane [2021] VSC 197 - an unconscionable conduct judgment - Richards J
Mr McFarlane represented himself throughout the proceeding. Although he appeared at directions hearings on 29 March 2019, 19 July 2019, and 29 November 2019, he did not file any material in support of his defence, and did not appear at the directions hearing held on 15 May 2020.
He appeared briefly at the trial, to raise an objection to the Court’s jurisdiction. I heard his objection, and then indicated that it had no basis, and that I would give written reasons for that conclusion at a later time. I then began to outline the way in which the trial would proceed. At that point, Mr McFarlane then purported to arrest me for misprision (concealment) of treason. He said that a trial would be unconstitutional and that he did not want to be part of a treason. I persisted in outlining the trial process. After some interruptions and angry shouting, Mr McFarlane left the courtroom and did not participate further in the trial. ....
Objection to jurisdiction
I understood Mr McFarlane’s objection to the Court’s jurisdiction to be that a past Attorney-General had removed the Queen’s commission from the Supreme Court of Victoria and that, since then, the operation of the Court had been unconstitutional and illegal. He supported this argument by reading from a media release issued in 2009 by the then Attorney-General for Victoria, Rob Hulls, to the effect that criminal proceedings would in future be issued in the name of the Director of Public Prosecutions, rather than ‘the Crown’ or ‘Regina’. Mr McFarlane had earlier provided my chambers with an extract from the Acts Amendment and Repeal (Courts and Legal Practice) Act 2003 (WA), which amended various Western Australian statutes by substituting ‘State’ for ‘Crown’. On that basis, he asserted that Mr Hulls had removed the Queen from her position and that the Court was operating illegally. He added that the concealment of that fact was misprision of treason.
The objection was misconceived. Mr Hulls’ media release did not remove the Queen as the constitutional head of the State of Victoria. It does not reflect the current naming convention in criminal proceedings in this Court, in which the prosecution is usually referred to as ‘R’ for Regina, the Queen. It had no effect at all on the Supreme Court’s equitable jurisdiction, which is invoked by Mrs McFarlane in this proceeding.
The Constitution Act 1975 (Vic) still provides that the legislative power of the State of Victoria is vested in the Parliament of Victoria, comprising Her Majesty, the Legislative Council, and the Legislative Assembly. The Crown is represented in Victoria by the Governor, who is appointed by the Queen. The Supreme Court of Victoria consists of judges who are appointed by the Governor on the advice of the Executive Council. The Court has jurisdiction in or in relation to Victoria ‘in all cases whatsoever’ and is ‘the superior Court of Victoria with unlimited jurisdiction’. Immediately before I took the affirmation of office as a judge, I affirmed my allegiance to Her Majesty Queen Elizabeth the Second and Her Majesty’s heirs and successors according to law.
For completeness, the Acts Amendment and Repeal (Courts and Legal Practice) Act 2003 (WA) did not amend the Constitution Act 1889 (WA) and the Queen, by her Governor, remains the head of government in Western Australia. The Parliament of Western Australia has no power to amend the Constitution of the State of Victoria, and did not purport to do so by enacting the Acts Amendment and Repeal (Courts and Legal Practice) Act 2003 (WA). ...
Postscript
My associate emailed the parties on 20 April 2021, advising that judgment would be handed down at 9.30 am on 23 April 2021. On 21 April 2021, Mr McFarlane sent the following email to my chambers:[45] Dear Justice Richards, You have stated that you will be making judgement on Friday morning (23rd April 2021). It is for this reason I have sent you a copy of my Estate “Fee Simple” Title to show you my Land rights under Constitutional Law. Australia is a Common Law country, and property-owners have rights at law, particularly through the High Court ruling by Mr Justice Kirby in September 1998. Property owners whose land is held under Deeds in Fee Simple have the right to refuse to agree to the takeover of their land for this or any other purpose. Fee Simple rights, particularly the High Court ruling given by Mr Justice Kirby, in September, 1998, when he made his decision by using an earlier High Court case (1923) when Mr Justice Isaacs settled a dispute by confirming to the property owner in the case the rights conferred on all property-owners under their Freehold Deeds in Fee Simple. Under the current laws in Australia, both State and Federal, it is absolutely illegal for the Government “to take what it wants”, or indeed to dictate in any way what property-owners must do or not do in regard to their lands held under Deeds in Fee Simple so long as we retain our Common Law status under our legally unchangeable Christian Monarchical Constitutions, which apply both State and Federally. Property rights are essential to freedom, justice, peace and prosperity. They are basic rights of ownership. I do note your inability to understand that Oral Evidence is Hearsay, and do hope that you did not act out of the Law with regard this fact. I also note your inability to understand that The SUPREME COURT of Victoria, is only acting as a Government owned Corporation, and has, in no way, any grant of power under our Australian Commonwealth Constitution, with the Queen removed. I do not consent to undertaking commerce with your organisation. Yours in Good Faith, Mark McFarlane. Mr McFarlane attached a copy of the certificate of title for the Glenrowan property, which records him as the registered proprietor.
