'Sovereignty and the Persistence of the Aesthetic' by
Illan Wall and Daniel Matthews in (2024) Modern Law Review comments
British constitutional thought tends to understand sovereignty in legalistic terms, with the concept often equated with the doctrine of parliamentary sovereignty. In the absence of a developed theory of popular sovereignty, sovereignty has become largely synonymous with this rule concerning the legislative competence of parliament. As Loughlin and Tierney have recently argued, this approach obscures the political dimensions of sovereignty which undergird the legal precept. They describe sovereignty as taking shape through the ongoing articulation of both legal and political relations. As Loughlin has argued elsewhere, sovereignty is best understood as having the form of a ‘double helix’ with the legal and the political running as anti-parallel strands. This article seeks to supplement this approach, arguing that instead of a doubled relation between law and politics, we should instead conceptualise a threefold process in which the legal, the political and the aesthetic are the essential elements which constitute sovereign forms.
The article has two aims. The first is to retrieve, and give prominence to, the aesthetic dimensions of sovereignty within the history of political modernity. In the next section, we introduce the nature of aesthetics – as both a matter of appearances and perceptions – and indicate some of the reasons why this aspect of civil order has often been elided. Following this (in the third section) we engage with some well-known articulations of sovereignty − from the Hobbesian imaging of sovereignty, to early-modern efforts to map sovereign territory; from Rousseau's evocation of national sentiment, to Burke's description of how ‘dignity’ and ‘majesty’ are essential to the claim to sovereignty − before we conclude by examining the habituated feelings and instincts which Bentham understood to be central to the reproduction of sovereign relations. Our reading of this history draws out how the aesthetic persists across these varied approaches, but also aims to give a sense of the diversity of functions the aesthetic fulfils vis-Ã -vis sovereignty. Our account is obviously incomplete, both in terms of personnel and the range of aesthetic qualities it surveys; we tend to emphasise, for instance, the visual and affective qualities more than the sonic or haptic dimensions of sense perception. Nonetheless, our aim is to give priority to the aesthetic within the tradition of writing on sovereignty, in contrast to dominant approaches within constitutional thought which have either ignored, downplayed or obscured these concerns.
Our second aim is more speculative. Whilst our reading of the history of political modernity suggests an important corrective, which draws out often underappreciated themes, it tells us nothing of how the aesthetic should be included in a theory of sovereignty. In a final, shorter, fourth section of the article we consider the different ways in which the aesthetic might be incorporated into constitutional theory, identifying three theses on the aesthetics of sovereignty: a totalisation thesis; an inadvertent or ‘weak’ inclusion; and finally, a ‘strong’ inclusion of the aesthetic, which we ultimately endorse. We conclude by suggesting that Loughlin's account of the double helix structure of sovereignty might be amended, contending that sovereignty takes the form of a triple helix in which law, politics and aesthetics are the strands which constitute the basic structure of the concept. Our aim here is speculative in that our approach opens the theorisation of sovereignty to new terrain, by insisting that the concept – particularly in the context of legal studies – needs to embrace not simply political but a range of aesthetic qualities and concerns if its meaning, implications and enduring importance are to be fully appreciated.
Claims in Turnbull v Clarence Valley Council [2023] NSWSC 83 reflect what might be unkindly characterised as pseudolaw as a manifestation of an absurd turn.
The judgment states
Mr Turnbull pursues damages in excess of $25 million against the Clarence Valley Council, most of it said to be the result of various claimed unlawfulness and the rest, wrongdoing by the Council specifically towards him.
The proceedings are the result of events which began in February 2019 when Mr Turnbull was erecting a building on a property at Pillar Valley, owned by the grandparents of his children, without having sought prior Council approval. He claims that after he returned from an overseas trip, he found a stop work order issued by the Council, which amounted to his eviction from the property. ...
Mr Turnbull claimed that as a result, he was wrongly left homeless, sleeping on the streets where he was subjected to ongoing harassment by employees of the Council, when he was fined for parking his motor home contrary to parking signs Council had erected.
Mr Turnbull’s amended statement of claim pleads many events and his resulting beliefs and opinions about the illegality of the Council and its actions, as well as:
(1) numerous claimed breaches of the Criminal Code Act 1995 (Cth) allegedly committed by the Council, including when Council rangers issued him with three fines for parking and sleeping in a public car park where a no parking between the hours of 12 am and 5 am had been erected. Other alleged offences included treachery by intending to overthrow the Commonwealth Constitution; obtaining a financial advantage by deception; dishonestly causing a loss; and conspiracy to defraud;
(2) numerous claimed breaches of the Commonwealth Constitution, referenda to amend it to refer to local government having failed;
(3) racketeering by Council, in various alleged ways;
(4) that the Council is a corporation with a CAN number;
(5) that the Council had denied his right to exist, injecting themselves into his life as a “Mafia crime syndicate” would do, setting up a rule book of unlawful laws, acts, permits and certificates, in order to steal from and control people and all the land;
(6) that the Council is responsible for land use regulations as directed by the State and thus also responsible for increased land valuations which preclude people from land ownership; result in the enforcement of unlawful laws; and the unlawful restriction of privately owned land; and
(7) the Council wrongfully outlawing camping in various areas where homeless people sleep in cars during sleeping hours.
The claims are defended by the Council.
The Court states
... Mr Turnbull relied on affidavits and other documents and a USB which he had served before the hearing, as well as written and oral submissions in which he explained his case. That included his various beliefs and opinions and why he resisted the orders which the Council pursued. In the circumstances, I am satisfied both that he did have a reasonable opportunity to advance his case and that he took advantage of it, given all that he relied on.
That included, for example, claims such as
- that it was treachery for the State to enforce a stop work order using laws that contravened the Commonwealth Constitution;
- that there had been alleged intentional frauds and conspiracies pursued, including one that had been uncovered in the 1960s and involved secret IMF banking policies to control the global financial system and all governments under a world government;
- that other conspiracies had been pursued by Australian prime ministers, to remove the people from the Commonwealth of Australia;
- his understanding of God’s laws; and
- that before the 1993 enactment of the Local Government Act 1993 (NSW), everyone who owned land had specified rights, including the right to build any dwelling or structure there, or any number of buildings and since then, the system had gone mad at the expense of peace, welfare and good government.
Mr Turnbull also advanced explanations for his conduct and events which had unfolded. They included, for example:
a statement and declaration of truth affidavit, where Mr Turnbull states that his purpose (occupation) is “Galactic Emissary”; explains that he is the living man incarnated into Christopher Luke of the tribe/family/house/clan Turnbull; explains his various beliefs about matters such as the soul, the living man and competence; as well as various assertions, including about his own Universal sovereignty; deficiencies in his birth registration; that he is not lost at sea; claimed fictions; personage flowing from the Creator; and claimed violations of the Universal Declaration of Human Rights, on which he relies, despite his rejection of the United Nations. It, he says is a false authority and fictitious entity of identified claimed governments, including of this State. He also explains the reclaimed rights of his living body; private property; privacy data; as well as presumptions of claimed law on which he relied, including as to contracts, legal liability and the consequences of claimed responses, including silence. This statement was said to be given in order to:
“i. establish, signify, proclaim, and verify the status of this living being; and
ii. to eliminate/deny any and all presumptions by any and all fictitious, corporate or private entities; and
iii. to rebut any and all alleged claimed authority and/or jurisdiction of any and all fictitious, corporate or private entities, over the deponent, those entities being without standing upon the land”;
photographs of the building before and after Mr Turnbull began to erect it on the property, in addition to those taken by the Council on its inspection;
a USB containing other documents and links to videos on which Mr Turnbull relies. They include videos which he has taken on occasions when he spoke and at times shouted at a Council ranger and another Council employee and others where someone is riding a motorbike around a campground, filming what is there to be seen; photographs of vehicles; as well as a link to a YouTube video, First Nation Mandamus. There people explain their call for an International Human Rights Abuse Tribunal to be conducted in relation to the genocide of Indigenous Australians, the oldest living culture on the planet and their reasons for that call. They include their sovereignty over the land which they have retaken; their need to protect their children, who they consider have been stolen from them and their call for a meeting with King Charles, for reasons which they explain;
a notice issued to Council by the Velvet Revolution, which Mr Turnbull claims evidences service of a Moratorium on all Local Council members, charging them with misprision of treason, which rested on the Crimes Act 1914 (Cth), UK legislation, the Nuremburg Code, Helsinki Code and Magna Carta, as well as claimed inalienable rights; and
a statement by Ms Lascelles, a Council Ranger, about parking infringement notices issued to Mr Turnbull.
Mr Turnbull claimed in his extensive submissions, that what he relies on, including late served documents to which objection was taken based on relevance and in one case, disputed authenticity, establishes the illegality and wrongfulness of the Council’s actions, which he would be able to prove at trial.
The disputed documents were received on the motion on the basis that the weight which they could be given would have to be determined, given their contents and the cases which the parties advanced.
In the case of the document claimed to be a copy of a letter written by the former Chief Justice Sir Harry Gibbs, said to have been published in May 2021 by “TrueBlue Observer”, I am satisfied, having considered it, that it can be given no real weight. That is because the document does not take the form of a letter; is headed “Explanatory Statement”; contains a photograph of Sir Harry; is not printed on letterhead; and is neither dated nor signed. That it is a copy of the letter which Mr Turnbull understands it to be, is thus not apparent.
Shortly before the hearing Mr Turnbull had also served what he claimed to be an interlocutory application brought to this people’s Court under the common law, which serves the interest of this land, Terra Australis, which he considered had to be determined before the motion. What he thereby sought to pursue was allegations that the Council had not served evidence about matters such as its authority to conduct business on this land; ownership of buildings, caravan parks and reserves; and authority over him as a living man.
I am satisfied that what is sought to be pursued by this application does not require consideration before the motion is heard and determined, the motion having been listed for hearing as it was, and the parties having complied as they had with the Court’s orders as to the service of their evidence and submissions. But I have taken into account what Mr Turnbull thereby sought to advance, the document being in evidence, in coming to a conclusion about the matters over which the parties joined issue. ... x
...
The Council’s case is that Mr Turnbull advances baseless claims against it which are frivolous and vexatious; have no conceivable prospects of success and so should be struck out. Further, that the proceedings should be dismissed, constituting as they do an abuse of the Court’s process which has a tendency to cause prejudice and embarrassment, given various scandalous and irrelevant claims advanced by Mr Turnbull in his affidavits and submissions.
...
The relevant law, which I will come to, is also well settled. Contrary to Mr Turnbull’s case, binding authority is contrary to the claims which he seeks to litigate.
In the result, for reasons which I will explain, I am satisfied that the orders sought by the Council must be made, having approached what lies in issue between the parties in accordance with the authorities earlier referred to. On the evidence the Council has established, as it must, that the claims Mr Turnbull seeks to advance are untenable.
The existence and authority of the Council
Mr Turnbull has provided answers to particulars which the Council sought, on which it relied in its case. For his part Mr Turnbull also relied on those particulars, expanding them by his written and oral submissions. In essence he contends that there is no legal basis for the Council’s existence, claims which it contends are misconceived.
Mr Turnbull advanced his arguments as to the claimed illegality which he seeks to pursue in various ways. This includes that the Local Government Act involves a conspiracy to overthrow the Commonwealth Constitution at the instigation of international bankers. As well as claims such as that all Prime Ministers have been paedophiles, without morals or ethics and susceptible to corruption and blackmail; that since 1923 there has been treason pursued in government to overthrow the Constitution; and that there is an ongoing campaign to overthrow the country’s political system, Constitution and money system. He also referred to an alleged conspiracy in relation to COVID-19.
The case so advanced and the evidence Mr Turnbull relies on, all explain the Council’s submission that Mr Turnbull’s claims are frivolous and vexatious and without prospects of success.
Some of what Mr Turnbull advances is unknown to the law and substantial aspects of the case he seeks to pursue have already been unsuccessfully pursued by others. Authorities by which the Court, as presently constituted, is bound, rejecting the kinds of case and arguments which he seeks to pursue, thus cannot be ignored.
Mr Turnbull relies on ss 5 and 51 of the Constitution Act 1902 (NSW). His case is that the Local Government Act is not lawful, given the failure in 1974 and 1988 of referenda which sought to amend the Commonwealth Constitution. In the result he contends that municipal institutions and local government such as the Council are a department of a State government. Further, he said in oral submissions the Council is itself a corporation and he relies on s 109 of the Constitution, which provides for Commonwealth laws to prevail over State laws in the event of inconsistency, to support his case as to the illegality of the Council and the actions which it pursued, which resulted in his departure from the property.
The claimed illegality on which Mr Turnbull relies underpins and is intertwined in the various ways he explained, in all aspects of the case which he seeks to pursue, including in respect of his agreements with the landowners.
Mr Turnbull thus does not accept that his departure having been the result of the written agreement which he entered with the landowners, he must pursue any resulting grievance which he has with them. He considers that they had been coerced by Council to seek the approval which they obtained unnecessarily, with the result his eviction, for which the Council is responsible.
I am satisfied that despite the way in which Mr Turnbull’s arguments were variously advanced, there is no reasonably available argument that the Local Government Act is inconsistent with the Commonwealth Constitution, or that it or the Council suffer from any illegality. The Constitution makes no reference to local government. That referenda which sought to insert such references in the Constitution failed is irrelevant to the laws made by the NSW Parliament, as its Constitution Act permits.
Mr Turnbull does not rely on any Commonwealth legislation to advance his notions, on which his argument under s 109 of the Commonwealth Constitution depends. That the Local Government Act is not a legislative scheme which the NSW Parliament was empowered by the Constitution Act to make, is thus not a tenable argument.
Further, what was decided in R v Vorhauer [2002] NSWCCA 483, where a number of similar claims were advanced, is binding and contrary to Mr Turnbull’s claims.
There it was also contended that local Councils “are unconstitutional by reason of the failure of the constitutional referendum which would have included a reference in the Australian Constitution to local government”: at [14]. This was rejected, Spigelman CJ observing “There is no logic in this. Local governments are created by State legislation under the respective State Constitutions. The absence of any reference to local government in the Australian Constitution is just irrelevant”: at [14]. This conclusion was confirmed in Vorhauer v R [2007] NSWCCA 125 at [41].
The enactment of the Local Government Act has also been found to fall within the plenary power given the State Parliament by s 5 of the NSW Constitution: Hoxton Park Residents Action Group Inc v Liverpool City Council (No 2) [2011] NSWCA 363. There it was explained that “State laws may be invalid to the extent of any inconsistency with a valid law of the Commonwealth (Constitution, s 109) but a constraint on state legislative power must otherwise derive either from a specific provision of the Constitution or from an implication as to its operation, which necessarily impinges on state legislative power”: at [40].
Mr Turnbull also claims the Council is a corporation, but in Hoxton Park it was also observed at [44] that before the commencement of the Local Government Amendment (Legal Status) Act 2008 (NSW) on 20 November 2008, a council was said to be a body corporate. But that this was altered by these 2008 amendments, which introduced a new s 220. It still provides:
220 Legal status of a council
(1) A council is a body politic of the State with perpetual succession and the legal capacity and powers of an individual, both in and outside the State.
(2) A council is not a body corporate (including a corporation).
(3) A council does not have the status, privileges and immunities of the Crown (including the State and the Government of the State).
(4) A law of the State applies to and in respect of a council in the same way as it applies to and in respect of a body corporate (including a corporation).
It was also observed at [48] of Hoxton Park: that the power to enact this provision came from s 5 of the Constitution Act, which provides for the making of laws “for the peace, welfare and good government of New South Wales in all cases whatsoever”, subject to the provisions of the Commonwealth Constitution. While Mr Turnbull contends that the Council’s conduct has been contrary to the peace, welfare, and good government there envisaged, such opinions provide no basis for the conclusion that the Local Government Act is infected by illegality.
The Constitution Act also provides in s 51:
51 Local government
(1) There shall continue to be a system of local government for the State under which duly elected or duly appointed local government bodies are constituted with responsibilities for acting for the better government of those parts of the State that are from time to time subject to that system of local government.
(2) The manner in which local government bodies are constituted and the nature and extent of their powers, authorities, duties and functions shall be as determined by or in accordance with laws of the Legislature. (3) The reference in subsection (2) to laws of the Legislature shall be read as a reference to laws that have been enacted by the Legislature, whether before or after the commencement of this section, and that are for the time being in force.
Thus it was concluded in Hoxton Park that “While there may remain real questions as to the legal status of a council for different purposes, it is not possible to contend that s 220 [of the Local Government Act] fails to establish a collective body capable of exercising statutory functions, and particularly the consideration of the development applications in respect of land within geographically defined boundaries”: at [57].
In the result I am satisfied that it must be accepted that Mr Turnbull’s claims, resting as they do on his understanding of the meaning and operation of the Australian Constitution and Constitution Act, the illegality of the Local Government Act and the non-existence and lack of relevant authority of the Council under that legislative scheme, which has been rejected in these cases, do not disclose that he has any legally tenable cause of action for the claims which he seeks to advance.
That includes his complaints about the Council’s operation of its campgrounds and reserves and its regulation of parking there and the claims he advances about the three fines imposed upon him as the result of actions taken by its rangers.
Racketeering and other alleged offending
The claims advanced in respect of alleged racketeering, conspiracy and other alleged Commonwealth offences similarly disclose no tenable cause of action, advanced as they are by way of Mr Turnbull’s opinions about the illegality of various laws and the conspiracies to which he referred.
These claims relate to Mr Turnbull’s views about land usage; what can be built on real property; parking laws and fines imposed for breach of them; the regulation of camping grounds; claims advanced in relation to Councils’ claimed responsibility for increases in land value over time, which Mr Turnbull believes has impoverished people and wrongly precluded them from land ownership; as well as the claimed wrongful issue of the stop work order.
Contrary to Mr Turnbull’s understanding, what he seeks to pursue also does not depend on the prior authorisation by first nations people of steps which the Council pursued, about which Mr Turnbull complains. They are simply not given such powers, by either the Commonwealth or State Constitutions nor any laws made under them to which he referred, even if the Council has recognised such peoples to be traditional landowners of the land falling within its local council area.
Nor are the laws of God, as Mr Turnbull claims them to be, relevant to his claims. Australia’s legal system is the product of the common law and the legislative actions of British, Commonwealth and State parliaments. All are the result of steps which human beings, not the divine, have taken over the course of centuries, no matter what opinions Mr Turnbull has about them.
In the result it must be accepted that these claims also have no tenable prospects of success.
Claimed breaches of the Universal Declaration of Human Rights
Mr Turnbull also particularised his reliance on the Universal Declaration of Human Rights and its claimed breaches by the Council, to advance his claims. But what Mr Turnbull so claimed and what he submitted about the Declaration was somewhat contradictory.
But in so far as he relies on claimed breaches of the Declaration, I agree with the observations of Garling J in Rahman v Dubs [2012] NSWSC 1065 at [55]-[56].
Contrary to Mr Turnbull’s case, I consider that his Honour was correct in observing that causes of action based on breaches of the Universal Declaration of Human Rights are not justiciable in this Court. There being no domestic Commonwealth or State legislation which makes it part of the law of NSW, a claimed breach of the Declaration is not justiciable, applying Minister for Immigration and Ethnic Affairs v Ah Hin Teoh (1995) 183 CLR 273; [1995] HCA 20.
On appeal in Turnbull v Clarence Valley Council [2023] NSWCA 295 Court stated
The applicant (who identifies himself as “‘Christopher Luke’ of the family ‘Turnbull’ for the appellant ‘Christopher Turnbull’”) seeks leave to appeal against orders made on 14 February 2023 in the Common Law Division of the Supreme Court dismissing with costs proceedings commenced by him by Statement of Claim filed on 15 March 2022: Turnbull v Clarence Valley Council [2023] NSWSC 83. The applicant filed an amended Statement of Claim on 1 August 2022. He named the Clarence Valley Council (the respondent) as the sole defendant.
On 17 August 2022 the respondent filed a notice of motion seeking, in the alternative:
(1) an order pursuant to Uniform Civil Procedure Rules 2005 (NSW), r 13.4(1)(b) (“UCPR”) that the proceedings be dismissed on the basis that no reasonable cause of action is disclosed;
(2) an order pursuant to UCPR 13.4(1)(c) that the proceedings be dismissed as disclosing no cause of action for personal injury or wrong against the second defendant (it may be that “second defendant” is a typographical error – as noted above, only one defendant is named in the Statement of Claim and the Amended Statement of Claim); or on the basis that the proceedings are an abuse of process;
(3) an order pursuant to UCPR r 14.28 that the proceedings (the Amended Statement of Claim) be struck out on the basis that the Amended Statement of Claim –
(a) discloses no cause of action appropriate to the nature of the pleading or
(b) has a tendency to cause prejudice, embarrassment or delay in the proceedings; or
(c) is otherwise an abuse of process of the court.
On 8 November 2022 the respondent’s notice of motion was fixed for hearing on 6 February 2023. On 30 January 2023 the applicant served on the solicitors for the respondent (but did not file) a document entitled “Interlocutory Application” and an affidavit sworn on 27 January 2023. In para 1 of the “Interlocutory Application” the applicant sought orders that the respondent “under Discovery ... provide written evidence” of:
“(i) [the respondent’s] claim of Authority to conduct business on the land known as ‘Terra Australis’, and local areas known as ‘Bundjalung, Gumbaynggirr and Yaegl’[;]
(ii) [the respondent’s] claim of Authority over ‘the claimant’, so as to make its claim over ‘the claimant’[;]
(iii) [the respondent’s] claim of ownership of all its listed caravan camping grounds and parks, reserves and buildings.”
In para 2 the applicant sought an injunction “to restrain or prevent the matter proceeding” until the documents sought were supplied and “a judge has ruled on each of the matters raised in 1. above”. In para 3 he claimed “and if such written evidence cannot be produced within 14 days, that the matter be ruled in favour of ‘the claimant’ and awarded in full including court costs”.
As directed, the respondent’s notice of motion came on for hearing before the primary judge on 6 February 2023. The primary judge rejected the applicant’s request that his 30 January 2023 notice of motion be determined prior to the respondent’s 17 August 2022 notice of motion.
As indicated above, after a contested hearing the primary judge made an order, pursuant to UCPR r 13.4(1)(b) that the proceedings be dismissed (on the basis that the Amended Statement of Claim disclosed no reasonable cause of action).
The proceedings in the Supreme Court
Having regard to the reasoning of the primary judge and the application for leave to appeal, it is necessary to begin by reference to the Amended Statement of Claim.
The origin of the proceedings brought by the applicant appears to be his construction of a building, on land owned by “the grandparents of [the applicant’s] children” in the local government area controlled by the respondent.
The Amended Statement of Claim begins with a narrative, recounted over more than two pages of typescript, of events said to have taken place in the early part of 2019. Put shortly, the applicant pleaded that, with the permission of the owners of the land, he had commenced the erection of a “shed” on the land, the purpose of which was to provide a workshop in which he could construct motor homes for sale. The applicant pleaded that, while he was out of the country on a short vacation, employees of the respondent had issued a “stop work” order on the construction on the basis that it was not a shed, but a dwelling, for which no development approval had been granted. The applicant recorded in the Amended Statement of Claim some confrontations with employees of the respondent.
... He pleaded that the so-called unlawful order constituted breaches of several provisions of the Local Government Act 1993 (NSW) as well as criminal offences under various provisions of the Criminal Code (Cth), including “Treatchory” (having been done with the intention of overthrowing the Commonwealth Government); conspiracy to defraud, and numerous others. The applicant also pleaded that the conduct constituted breaches (apparently of Articles 3, 8, 17 and 30) of the Universal Declaration of Human Rights. ...
The applicant pleaded that this conduct was unlawful, that the respondent had “no legal law to exist with their self-entitled powers called Local Government Act 1993”. This, he pleaded, was because local government is not mentioned in the Australian Constitution, and because, in a referendum in 1988, Australian electors had declined to insert recognition of local government into the Constitution. The applicant then pleaded that the respondent had:
“...made itself into a corporation with an ACN number, and pretended to represent the people of the commonwealth, but in fact, was not legitimate, and has been operating unlawfully ever since.” (WB 84 [58]).
The applicant pleaded that the respondent had:
“...made themselves the owners of all camping and caravan parks in the entire shire and made rules and regulations to keep the people under their power unlawfully when they have no right or power to empower themselves.” WB 84[59]
He pleaded that, in doing so, the respondent had committed the same criminal offences as he had previously identified, and breaches of the Universal Declaration of Human Rights.
The applicant next pleaded that the respondent’s conduct was “a classic case of racketeering”. He again pleaded that the respondent had committed the same criminal offences and breaches of the Universal Declaration of Human Rights.
The applicant claimed “personal compensation” of $25,000,000, compensation for loss of income of $735,000, damages for loss of a stable place “for my lifestyle, workshop and place to park my life” of $128,700, personal compensation for harassment by the respondent of $100,000, and loss of tools and belongings of $15,000. (WB 87)
On 22 November 2023 the applicant served on the respondent a “Statement and Declaration of Truth Affidavit”, which covered 43 pages of typescript. This was summarised by the primary judge as follows at [11]:
“... [the applicant] states that his purpose (occupation) is ‘Galactic Emissary’; explains that he is the living man incarnated into Christopher Luke of the tribe/family/house/clan Turnbull; explains his various beliefs about matters such as the soul, the living man and competence; as well as various assertions, including about his own Universal sovereignty; deficiencies in his birth registration; that he is not lost at sea; claimed fictions; personage flowing from the Creator; and claimed violations of the Universal Declaration of Human Rights, on which he relies, despite his rejection of the United Nations. It, he says is a false authority and fictitious entity of identified claimed governments, including of this State. He also explains the reclaimed rights of his living body; private property; privacy data; as well as presumptions of claimed law on which he relied, including as to contracts, legal liability and the consequences of claimed responses, including silence.”
The “affidavit” opened with a statement of what were said to be “internationally accepted Maxims and Principles of Law”, and, in para 2, stated:
“This ‘Statement and Declaration of Truth’/‘Affidavit’ is given to all in order to;
i establish, signify, proclaim, and verify the status of this living being; and
ii to eliminate/deny any and all presumption by any and all fictitious, corporate or private entities; and
iii to rebut any and all alleged claimed authority and/or jurisdiction of any and all fictitious, corporate or private entities, over the deponent, those entities being without standing upon the land ... .” (WB 257)
There was a great deal more in the Affidavit. For example, the applicant asserted:
4 We are a cosmic consciousness, also referred to as a ‘soul’; and
5 We are a vibrational awareness;
...
9 We are an aspect/creation of All That Is the Supreme Consciousness, also known as the Collective Consciousness, Allah, Yahweh, Source, and/or God Almighty, hereafter referred to as ‘The Creator’
...
17 Our ‘soul’ has had many incarnations in this ‘Earthly’ realm.”
There were many more pages of similar assertions. Some can be related to the claims made in the Amended Statement of Claim.
The applicant gave his “purpose (occupation)” as “Galactic Emissary”.
The proceedings in the Supreme Court
As mentioned above, the primary judge rejected the applicant’s request that his “Interlocutory application” of 30 January 2023 be addressed before the respondent’s earlier filed notice of motion. By reference to the “Statement and Declaration of Truth”, as well as to the Amended Statement of Claim, and other evidence provided by both the applicant and the respondent, the primary judge concluded that all the applicant’s claims are untenable. Her Honour dealt with the applicant’s claims under five headings, as follows:
existence and authority of the respondent;
allegations of racketeering;
claimed breaches of the Universal Declaration of Human Rights;
alleged breaches of the Local Government Act; and
damages claimed.
Her Honour concluded, in each case, that the applicant’s claims were untenable.
With respect to the applicant’s argument concerning “the existence and authority of [the applicant]”, her Honour concluded at [44]:
“I am satisfied that despite the way in which [the applicant’s] arguments were variously advanced, there is no reasonably available argument that the Local Government Act is inconsistent with the Commonwealth Constitution, or that it or the [respondent] suffer from any illegality. The Constitution makes no reference to local government. That referenda which sought to insert such references in the Constitution failed is irrelevant to the laws made by the NSW Parliament, as its Constitution Act [1902 (NSW)] permits.”
With respect to the applicant’s claims of “racketeering and other alleged offending”, her Honour recounted, in summary form, the applicant’s contentions, which included contentions concerning the respondent’s powers concerning land usage, the absence of prior authorisation by First Nation’s people and “the laws of God”. Her Honour considered (at [55]-[59]) that these claims also were untenable.
Her Honour considered that the applicant’s claims of breaches of the Universal Declaration of Human Rights were not justiciable in the Supreme Court, there being no domestic, Commonwealth or state legislation making the provisions of the Declaration part of domestic law: at [60-[62]. Her Honour devoted several paragraphs to the applicant’s claim of breaches of the Local Government Act, but found that these, too, were untenable: at [63]-[76]. Her Honour then recorded the applicant’s claims for damages and concluded that there was no conceivable basis for the award of the claimed damages, noting that the applicant’s breaches of parking regulations were not disputed and that there was no basis for the applicant’s claims of illegality of the regulations.
Her Honour considered that the “real question” was whether the applicant should be given leave to replead. At [32] she acknowledged that proceedings should not be dismissed if there may be a real question to be tried, but also recognised that, if there is a high degree of certainty about the ultimate outcome if the proceedings were allowed to go to trial and it appears that there is no legally tenable cause of action, summary dismissal is the appropriate course. Her Honour cited authority to that effect.
The application for leave to appeal
The applicant purported to file a notice of appeal on 25 May 2023 which he served on the respondent on 5 June 2023. At a directions hearing on 21 June 2023 the applicant was advised by the Registrar that, as the orders against which he sought to appeal were interlocutory, his proposed appeal required leave: Supreme Court Act 1970 (NSW), s 101(2)(e). On 14 July 2023 the applicant filed a Summons Seeking Leave to Appeal. The grounds of appeal are stated (in the purported Notice of Appeal, which I will treat as a Draft Notice of Appeal) as:
“1. Conflict of interest of Judge ‘Schmidt AJ’ as she did not declare that she is a member of the ‘BAR’, and did not declare that she works for ‘SUPREME COURT’ no authority.
2. Lack of due process, as the interlocutory Application was not dealt with.
3. Not given the right to be heard by a Jury.
4. No one living man can sit in Judgment of another living man. ‘MAXIM OF LAW’
5. Unchallenged Statement and Declaration of Truth Affidavit has been breached [with reference to paragraph numbers].”
The applicant sought orders that the appeal be allowed, “the [unspecified] allegations be dismissed”, that his notice of motion “be completed”, trial by a jury, and that the matter be “reheard de novo” (WB 26).
The applicant provided a Summary of Argument in support of his summons seeking leave to appeal. This document consisted of 76 short paragraphs, all except two of which state a different proposition. The propositions bear little, if any, relation to the grounds stated in the purported Notice of Appeal. I set out below samples of the applicant’s propositions, with comments.
The applicant’s sixth proposition was as follows:
“6. I seek leave on the basis that due process was not followed.”
There was no further explanation of the failure to follow due process. It may be taken that this was a reference to the rejection by the primary judge of the applicant’s request that his “Interlocutory application” be dealt with before the respondent’s notice of motion. The determination of the primary judge to deal with the respondent’s notice of motion was both open to her as a matter of discretion, and logical. Acceptance of the respondent’s contentions could have resulted (and did result) in the termination of the proceedings. The respondent was entitled to have its notice of motion disposed of before being required to respond to the applicant’s belated “Interlocutory application”.
The applicant’s tenth proposition was:
“10. The Judge has not addressed Constitutional issues involving its validity.”
This is incorrect: the primary judge, at [44] rejected the applicant’s contentions of Constitutional invalidity.
The applicant’s twelfth proposition was:
“12. The Judge has not addressed the Separation of Powers.”
No issue of separation of powers was raised by the applicant, and his contention in the Summary of Argument is not further explained.
The applicant subsequently submitted that:
“24. The Judge has not addressed the issue of First Nations People and their calls for Justice.
...
34. The Judge has not addressed my title of Galactic Emissary and Diplomat.
...
37. The Judge has exhibited a deliberate bias in characterising and referring to me as a ‘citizen’ or a ‘person’ and calling me ‘Mr Turnbull’ so as to bring it under a jurisdiction of her choice and not of the matter.”
The applicant has not explained the relevance of his claim to the title of Galactic Emissary. No issue was raised before the primary judge as to his status in this respect. Nor was any issue raised in the Amended Statement of Claim about First Nations people; a contention that the powers of the respondent depend on the consent of First Nations peoples was dealt with, correctly, by the primary judge at [57]:
“[First Nations people] are simply not given such powers, by either the Commonwealth or State Constitutions nor any laws made under them to which he referred, even if the Council has recognised such peoples to be traditional landowners of the land falling within its local council area.”
His complaints about being referred to as a “citizen”, or “person”, or as “Mr Turnbull” are not explained.
Further propositions were as follows:
“38. The Judge has consented to the press-ganging of our land and financial assets and those of our ancestors.
...
42. The Judge has failed to mention her oath or membership with the ‘Private Bar Guild’.
...
44. The Judge has failed to address my agreement with the Creator and its authority over all other earth based agreements and authority.
The meaning of “press-ganging of our land” is obscure, as is the complaint about the primary judge’s oath or membership of “the Private Bar Guild”. Neither was raised during the proceedings. No issue was raised about the applicant’s agreement with the Creator.
This is only a small sample of the applicant’s propositions contained in the Summary of Argument. I have read and considered each of the propositions. Nothing in those propositions establishes any error on the part of the primary judge. In my opinion the primary judge correctly disposed of all contentions made by the applicant in the proceedings before her.
At the commencement of the hearing of the application for leave to appeal the applicant provided a document setting out his “Arguments for appeal”, under 11 headings.
The first heading was “Procedure”. The applicant referred to the decision of this Court in Goktas v Government Insurance Office (NSW) (1993) 31 NSWLR 684, which is a decision concerned with apprehended bias by a judicial officer. Apart from his complaint about being referred to as a “citizen”, “a person” or “Mr Turnbull”, the applicant identified no factual basis for any apprehended bias on the part of the primary judge. The argument may relate to the ground of appeal that complains that the primary judge failed to declare her membership of “the BAR”, and that she “works for ‘SUPREME COURT’”. If the applicant’s complaint is reference to the primary judge’s asserted membership of the NSW Bar Association, there is no evidence of any such membership, and if, indeed, her Honour is a member (or associate member) of that organisation, it provides no basis for an assertion of apprehended bias. That the primary judge “works for the Supreme Court” must be obvious; the proceedings would not have been before her Honour had she not held a commission as an acting judge of the Supreme Court.
The ninth heading in the applicant’s argument was “apprehended bias”. The argument made under that heading was that the primary judge did not admit the applicant’s affidavit into evidence. That assertion is incorrect. Her Honour did admit the affidavit and referred to parts of it in her judgment.
The second heading in the applicant’s argument was “Circumstances arising during the hearing”. The applicant complained that the primary judge made “adverse observations” during the course of the hearing. The bulk of the applicant’s submissions under this heading concerned her Honour’s decision not to deal with his “Interlocutory application” before dealing with the respondent’s notice of motion. I have addressed this argument at [29] above. Under this heading the applicant also made reference to authorities concerning “undue interference by a judge”. Apart from, again, making reference to the primary judge’s determination to deal with the respondent’s notice of motion first, the applicant did not identify any instance of undue interference by the primary judge.
The third heading in the applicant’s argument was “the opinion rule”, with reference to s 76 of the Evidence Act 1995 (NSW) and to the decision of the High Court in Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; [2011] HCA 21. The applicant did not identify any instance in the proceedings before the primary judge in which opinion evidence was tendered and either admitted or rejected. This contention was that his affidavit:
“...has to [be] accepted as it is, with all its relevance to the case, and it’s unrebutted authority, [sic] and, as the Council has failed to provide evidence requested in email of ownership and authority ... that brings the Interlocutory application into relevance as a priority, and has been requested of the court to make orders for ... [the sentence is incomplete].”
The opinion rule was not invoked in the proceedings before the primary judge and has no bearing on the present application for leave to appeal.
The fourth, fifth and sixth headings in the applicant’s argument were, respectively, “Discovery and inspection during proceedings”, “Discovery generally”, and “Relevant documents”. The applicant referred to UCPR r 21.2(1). He asserted that his “Interlocutory application” was a “document of discovery and is in alignment with rule for, order for discovery, of documents during proceedings”. That assertion is plainly incorrect. I have dealt with the primary judge’s treatment of the “Interlocutory application” at [29], above. No formal application for an order for discovery has been made and no order has been made. Discovery was immaterial in the proceedings before the primary judge, which were concerned with whether the Amended Statement of Claim disclosed any reasonable cause of action, had a tendency to cause prejudice, embarrassment or delay in the proceedings or was otherwise an abuse of the process of the court.
The applicant also made reference to an Equity Division Practice Note concerning discovery. This is plainly immaterial to the present proceedings.
The seventh heading in the applicant’s argument is “Jurisdiction”. The applicant referred to s 66(1) of the Supreme Court Act, which empowers the Supreme Court to grant orders restraining any threatened breach of contract or other injury.
The applicant contended that the respondent had “breached a contract that [he] had in place”. Presumably, this was a reference to the arrangement he had with the owners of the land on which building the subject of the respondent’s “stop work” order was being constructed, which (the applicant asserts) was terminated as a result of the stop work order issued by the respondent.
Again, the applicant’s argument was that his Interlocutory application should have been dealt with before the respondent’s notice of motion. I have disposed of this argument above.
The eighth heading in the applicant’s argument was “Relevant evidence”, with a reference to s 55 of the Evidence Act. The applicant referred to Papakosmas v The Queen (1999) 196 CLR 297; [1999] HCA 37 and BBH v The Queen (2012) 245 CLR 499; [2012] HCA 9 to the effect that evidence that is relevant is admissible so long as it has probative value. His complainant in this respect is difficult to identify, as the primary judge admitted, and had regard to, all of the evidence he put before her.
As mentioned above, the ninth heading in the argument was “Apprehended bias”. I have dealt with that in conjunction with the first heading.
The tenth heading in the argument is “Fraud”. The applicant cited a decision of the Supreme Court of the United States, and contended that “there is no place in Law for Fraud as outlined in the various points of Law presented to the Judge near the conclusion of the hearing, as Points of Fraud”.
The primary judge comprehensively and correctly dealt with the applicant’s allegations in the Amended Statement of Claim that the respondent’s conduct constituted, inter alia, conspiracy to defraud and racketeering. The applicant has not identified any error in the approach taken by her Honour.
The eleventh and final heading in the applicant’s argument was “Principals” (sic). The applicant complained that “breaches of Principles” were not dealt with (although the “principles” were not identified).
Under this heading the applicant contended:
“It seams [sic] that the entire last 100 years of recorded history that outlines the evidence of a global conspiracy is too much for the judge to fathom, despite the facts and science of the Covid-19 scam, and the calls of the W.E.F for a global control system of health, money, property, and genetics, by a private club that dictates to all governments, as outlined in the evidence,
Yes this case can seam [sic] to be very complicated, as the councils are making deals with these private clubs, or the case can be seen very simply, as in the charges against the council of Racketeering and Fraud charges that have not been addressed by the judge, as she dismisses the Affidavit of Truth like it’s a fiction story, instead of the claimed authority as a living man, over the fiction name of the C.Q.V Trust accounts that the council uses in its course of business, as seen in the harassment and fines that the council rangers issued, once again the authority of the council to make contracts with living people is in question, as they only deal with the trust accounts and in fraud.”
In the lengthy text that appears under this heading I can discern no identifiable error asserted to infect the reasoning of the primary judge.
