In Westpac Banking Corporation v Summerscales (No 2) [2023] NFSC 5 Besanko CJ has considered a claim, as part of a property dispute, that Norfolk Island is outside Australian law.
Under the heading 'Mr Summerscales’ Response to Westpac’s Claim' the Court states
Mr Summerscales has filed two Defences in the course of this proceeding.
His first Defence was filed on 31 August 2023. In that Defence, he did not raise any matter which specifically related to the loan agreement or the mortgage or Mr Summerscales’ alleged default under the provisions in either of those documents. He purports, however, to challenge the jurisdiction of the Supreme Court of Norfolk Island. He refers to various pieces of legislation and he asserts that certain legislation was “unlawful and illegal and void, ab initio and as to the constitution and/or composition of the so-called said Supreme Court of Norfolk Island …”. He also asserts that any judicial officer or registrar sitting in the Supreme Court of Norfolk Island was doing so as a “persona designate” and had no lawful capacity or jurisdiction to do so. He further asserts that Westpac was trading unlawfully, illegally and in direct violation of the laws of “Norf’k Ailen” or Norfolk Island people in every manner whatsoever. He challenges Westpac’s standing to bring this proceeding. In his Amended Defence filed on 12 September 2023, Mr Summerscales reiterates these “pleas” and adds the following “plea”:
4. and in that at the outset, the standing of the Applicant Plaintiff to bring this action whatsoever, is challanged [sic] in that pursuant to the Territories Legislation Amendment Act, 2016 (Cth) [Act No 26 of 2016] [Assented to on 23 March 2016], the amendments to the ACTS INTERPRETATION ACT 1901 (Cth) “Norfolk Island” was only included into the definition of “Australia” within the meaning of the Commonwealth of Australia, on or after 24th March 2016, were unlawful and illegal AND as such and banking arrangements between the Applicant/Plaintiff and the Respondent/Defendant which were concluded before the abovementioned date dictates that any such arrangement breaches any contractual arrangement between the parties, rendering the arrangement void and/or voidable ab initio. and as such, also breaching the Banking Act, 1959 (Cth).
On 27 July 2023, Mr Summerscales filed an Interlocutory process and affidavit. In the former document, Mr Summerscales made a request for a number of “orders”, including the following order:
An order that the plaintiff provide sufficient evidence that this Court, sitting as the Supreme Court of Norfolk Island is a competent court of record and is legally and lawfully constituted, to be able to hand down confident judgment and has the requisite jurisdiction to bind this “court” and the parties to this action.
In the affidavit, Mr Summerscales alleged that “the only lawful and legal government on Norfolk Island is that law introduced to Norfolk Island by the Pitcairn Settlers” and that the descendants of the Pitcairn Settlers still survive and include Mr Summerscales. As I understand it, Mr Summerscales asserts that neither Westpac nor the Commonwealth of Australia nor the State of New South Wales has any jurisdiction over Mr Summerscales or the Pitcairn people (“me or my people”).
This Interlocutory process was dismissed at the hearing on 10 August 2023 which is described below.
On 7 August 2023, Mr Summerscales purported to file an Amended Interlocutory process and affidavit. The main thrust of this seemed to be that Mr Summerscales will be seeking an order that Westpac pay a sum of “five (5) times the sum of this action, to be paid into Court as a ‘Peregrini Payments into Court’”. This Interlocutory process was also dismissed on 10 August 2023.
On 9 August 2023, two documents were filed. One document was an “Application for leave to intervene” filed by a person purporting to be the Attorney-General of the Norf’k Ailen Government. The document purported to be an Application to intervene and for orders that the current proceedings be dismissed for want of jurisdiction of the Court. The affidavit was filed by a person claiming to be “‘RO’ of the clan ‘i.am.ro’” and claiming to be the current Attorney-General of Norf’k Ailen Government. The person apparently swearing the affidavit said that he was appointed to his current position by the Norf’k Ailen Chief Magistrate. He deposes that he did not appoint or establish any Supreme Court on the “terra-firma” known as Norf’k Ailen since his tenure. He states that since his appointment, no Court known or addressed as the Supreme Court was in existence. He states that he did not appoint any Chief Justice and he states that no such office existed upon his appointment. He states that any seals applied to the documents are not seals approved or authorised by the Norf’k Ailen Government. As to the Court, he states that it is “not a Court that has any jurisdiction upon the Constitution and Laws of the Norf’k Ailen Government, either now or historically from before these people arrived on Norf’k Ailen from Pitcairn Island on 8th June 1856”. The Application for leave to intervene was dismissed on 10 August 2023. ...
At the first case management hearing, Mr Summerscales asserted that the Court did not represent the people of Norfolk Island “people like myself”. He said that the Court that I was sitting in and the documents produced appeared to be foreign to the people of Norfolk Island. He asserted that he needed to be satisfied that the Court had jurisdiction in Norfolk Island. I made an order that Mr Summerscales file a Defence by 27 July 2023 and adjourned the matter for a further case management hearing on 10 August 2023.
I conducted a second case management hearing on 10 August 2023. At that time, Mr Summerscales had not filed a Defence. He said that that was because the Court had not actually established its jurisdiction and that it was not possible to go forward until the jurisdiction of the Court was established. I referred Mr Summerscales to the conferral of jurisdiction by s 5 of the Supreme Court Act of Norfolk Island and asked Mr Summerscales to identify a basis upon which I could go behind that conferral of jurisdiction. Mr Summerscales asked whether “my Attorney general” was in the Court in Adelaide. Mr Summerscales asked whether it was possible for “my Attorney general to speak for me”. I told him that that was not possible. I again asked Mr Summerscales to identify the basis upon which I could go behind the conferral of jurisdiction by s 5 of the Supreme Court Act of Norfolk Island. Mr Summerscales then asserted that the Court was an unlawful court. As to the Supreme Court Act of Norfolk Island, he said the following:
… those are all Acts that – pushed on us by Australia, not Acts made by people of Norfolk Island or our Norfolk Island government.
At or about this point, an adult female in the courtroom in Norfolk Island interrupted the proceeding and asserted that she was the Chief Magistrate “as appointed by the people of Norfolk Island to act under the Pitcairn Constitution that was brought here and instigated in 1856”. There was then an exchange between this person and myself which is recorded in the transcript. The female adult asserting to be the Chief Magistrate then said the following referring to a person she described as “our Attorney general”:
He has on file documents appointing an Attorney general under the Pitcairn Constitution, and he showing bias to the Australian judicial system by not even imploring our request to have our Attorney general in court. So you need to explain why we do not have representation in your court.
Mr Summerscales then asserted that Norfolk Island did not belong to Australia. It was not in my jurisdiction and not in my Constitution. He asserted that I was acting outside of my Constitution and violating “our constitution and our court”. At that point, I asked Mr Summerscales whether he wanted an opportunity to put in writing why I should go behind the conferral of jurisdiction in s 5 of the Supreme Court Act of Norfolk Island. At that point, the adult female said that the Court is a defunct court and a court not erected by the Norfolk Island government and the people of Norfolk Island. ...
What Mr Summerscales did do between 13 September 2023 and 21 November 2023, or claimed that he did, was the following: (1) It seems that on or about 14 November 2023, Mr Summerscales sought to file an Interlocutory process and affidavit. The Registrar of the Court refused to accept the documents (r 6142). The documents were returned to Mr Summerscales as required by the Rules (r 6143). As it happened, copies of the documents were later sent to the Registry of the Court on Norfolk Island with “no apparent sender” via Officeworks which is not located on Norfolk Island. In light of Mr Summerscales’ status as a self-represented litigant and the significance of the order being sought by Westpac, I considered the matters raised in the documents in case they raised something new that might be relevant to whether or not summary judgment ought to be granted. They do not. The focus of a foreshadowed defence is the jurisdiction of the Court and whether, to use Mr Summerscales words, “the sitting of this Court is under a foreign jurisdiction, namely under Australian laws”. The alternative or perhaps additional defence (which of these it is not clear to me) was that my appointment as Chief Justice was and is invalid because it was made before “Norf’k Ailen” became part of Australia on 24 March 2016. Mr Summerscales also asserted that the Australian Government “are still attempting to mask their unlawful behaviour to try to usurp control over Norf’k Ailen (also known as Norfolk Island)”. Finally, Mr Summerscales asserted that Westpac “acted unlawfully in its dealings with the banking transactions related to the core matters of the merits of this Claim”. No particulars whatsoever of this serious allegation of unlawful conduct are provided. Mr Summerscales has had ample opportunity to provide any relevant particulars of any alleged unlawful conduct by Westpac. Had I thought that there was anything in these documents, I might have given Mr Summerscales an opportunity to file a further affidavit, but there is nothing. In his affidavit, Mr Summerscales said that he attended the Court on 14 November 2023 and that he was then told that the matter had been stood over to 21 November 2023. ...
Mr Summerscales asserts that he had not been consulted as to his availability for another date for hearing and, in particular, 28 November 2023. He refers to the fact that he attended the courthouse on 14 November 2023 and that it was closed. He states that he then went to the Registrar’s office and was advised that the hearing had been postponed. He had not been advised that the hearing would not be held on 14 November 2023. He states that “for personal medical reasons” he would not be able to attend a hearing on 28 November 2023 and now did not have a confirmed date as to when that may even be considered. He asserts that since his first appearance in the matter, all of his documents have been ignored or dismissed. He asserts that I have failed in various duties. He states that since the first hearing in the matter, he has continued to ask for evidence that the Court is a lawful and legal court of “Norf’k Ailen (also known as Norfolk Island)”. He states that he considers that he is entitled to question the jurisdiction of the Court and that the Court must address the jurisdictional question. He states that the Australian Government Hansard shows that Norfolk Island has never been part of the State of New South Wales since Federation. He also refers to publicly available Australian Government official documents after 2014. He states that they show that Norfolk Island has never been part of the State of New South Wales and is not part of, owned by, or annexed to the Commonwealth of Australia. He asserts that the Australian Government has no authority in law to be administering Norfolk Island. He refers to the Acts Interpretation Act. He refers to the fact that the Local Government Act 1993 (NSW) does not include Norfolk Island. He refers to the fact that further inquiries have revealed that these proceedings and the claim itself, especially “with respect to Corporation only registered a ‘mortgage encumbrance’ on my property (to which this matter refers) on 29th August 2022”. He asserts (as he has in the past) that “on the merits of the claim itself in this matter” he will file pleadings which demonstrate that Westpac has acted unlawfully in its dealings with the banking transactions relating to the core matters of the merits of this claim. He also asks that Westpac provide written evidence to him and the court that the court sitting as the Supreme Court of Norf’k Ailen is a competent court of record and is legally and lawfully constituted to be able to hand down competent judgments and that the so-called court has the requisite jurisdiction to bind the parties to this action. Finally, he states that he considers that I have shown bias and that that is evident from the communication prior to the hearing on 21 November 2023 and to the email sent to his McKenzie friend dated 21 November 2023. He asserts that the content of that email, which is set out below, sent to his McKenzie friend denied him his human rights to be heard at the hearing by AVL. He concludes his letter by referring to the two affidavits relating to the hearing on 21 November 2023. He also asserts that the Court should take into account Magna Carta. He asserts that the judge and the Court have erred in relation to this matter and that the judge’s statements and orders are void and this whole matter, the judge, the courts are “Coram non judice and nullity”.
The letter from the person purporting to be the Chief Magistrate of Norf’k Ailen Government is dated 28 November 2023. The person, whose name does not appear, referred to her appearance on 10 August 2023 when she presented herself as the Chief Magistrate of Norf’k Ailen. The letter refers to the Supreme Court of Norfolk Supreme as “defunct”. The author of the letter states that she has received a complaint from Mr Summerscales. She states that neither she nor her Attorney General has appointed me to office. She states the following:
Let me remind you, the power, and laws of the Constitution of Pitcairn Island, dated 1838 and those laws and Constitution which the Pitcairn Settlers brought to Norf’k Ailen (also known as Norfolk Island), and along with the Great Seal issued to the Norf’k Ailenders in 1856, and the Pacific Islanders Protection Act 1875, to name a few, are still very much the authority here on this ailen. I strongly advise yourself, and any other person who has not been appointed by myself as Chief Magistrate of Norf’k Ailen (also known as Norfolk Island), or my Attorney General, to cease your actions effective immediately, or you may find yourself and others liable for prosecution for usurping the laws and governance of Norf’k Ailen (also known as Norfolk Island).
The letter states that copies had been sent to the Governor General of the Commonwealth of Australia, the Attorney-General of the Commonwealth of Australia, the Chief Justice of the Federal Court of Australia, Westpac and the Registrar.
