By a summons filed on 27 April 2023 a party describing itself as "petitioner", being "the Trustee for the House of Llewellyn", sues the State of New South Wales, the New South Wales Treasury Corporation, New South Wales Treasury, and New South Wales Trustee. This is an application by those parties, referred to as respondents in the summons (the State), for the summons to be summarily dismissed or otherwise struck out as frivolous or vexatious for disclosing no cause of action. For the following reasons that relief will be granted.
[2]
Procedural history
The summons describes the type of claim as:
"PETITION TO COMPEL THE STATE OF NEW SOUTH WALES, ET AL., TO DISCLOSE INFORMATION ASSOCIATED WITH A STATE ISSUED AUSTRALIAN GOVERNMENT GUARANTEED SEMI-GOVERNMENT SECURITY"
The summons claims this relief:
"1 Issue an Order compelling the Respondent(s) to disclose the requested information related to the Trust owned Security.
2 Grant the Petitioner's request to defer payment of any applicable fees until such time as the matter is reviewed and/or heard by the court.
3 Grant the Petitioner awarded costs for the court fees and any other restitution deemed appropriate due to the Respondent(s) failure to provide the information despite repeated requests prior to this petition.
4 Grant such other and further relief as the Court may deem just and proper."
By notice of motion filed 9 June 2023 the State seeks this relief:
"1. Pursuant to r. 13.4 of the Uniform Civil Procedure Rules 2005, the proceedings be dismissed.
2. Plaintiff to pay the defendants' costs of the proceedings, such costs to be fixed in a gross sum pursuant to s. 98(4)(c) of the Civil Procedure Act 2005."
Mr Aidan Llewellyn appeared for the named "petitioner". Mr Llewellyn informed me that he did not appear personally but did so in his capacity as trustee for the House of Llewellyn Trust. Because he is the natural person on the record I shall refer to him, without disrespect, as the Plaintiff. Ms E Dunlop of Counsel appeared for the State.
[3]
The claim
The Court has had the advantage of detailed written submissions from the parties, supplemented orally today by both Mr Llewellyn and Ms Dunlop.
On 1 May 2023, the Plaintiff filed in support of the summons a document entitled "Petition to compel the State of New South Wales et al., to disclose information associated with a state issued Australian government guarantee semi-government security." It included (omitting footnotes):
"1. Take Judicial Notice of New South Wales Registrar General Bk 4803 No 214, Bk 4803 No 216, and Bk 4807 No 639 pursuant to Real Property Act 1900 No. 25 (NSW), Part 1, Administration, Section 4A, Subsections (4) (a) & (b);
"(4) All courts and persons acting judicially-
(a) are required to take judicial notice of the seal of the Registrar-General, and
(b) must, until the contrary is proved, presume that the seal was properly affixed."
2. The herein referenced document was submitted to the "Eligible Securities" electronic submission portal for evaluation. Pursuant to the "Eligible Securities" criteria delineated by the Reserve Bank of Australia (hereinafter referred to as "REA") [see exhibits], the REA Eligible Securities division, upon thorough examination of the aforementioned document, confirmed that said document constitutes an Australian Government Guaranteed, semi-government security, and as such, is "automatically eligible" for participation in the securities lending facility.
3. The Petitioner is the registered owner of the Australian Government Guaranteed and Authenticated, Full Faith and Credit [NSW Evidence Act 1995 Section 185 & Australian Constitution Section 118] semi-government Security issued by the State of New South Wales pursuant to NSW Registrar General Bk 4803 No 216 - see exhibits.
4. The Security we are petitioning the Respondent(s) for further information is New South Wales certificate registration number #103908/1988. The information sought by the Petitioner includes, but is not limited to;
a. ISIN
b. Net assets
c. Fund name
d. Government bond term sheets specific to the security
e. Prospectus of the financial debt instrument
f. Fund Symbol
g. Inception Date
h. Portfolio Assets
i. Any and all other information related to the security"
I have carefully read the "petition" and the affidavit in support made by Mr Llewellyn which constitutes the Plaintiff's submissions in response to the State's notice of motion and submissions. I shall return to Mr Llewellyn's affidavit.
The "petition" gives references to documents in registers maintained by the New South Wales Registrar-General. Copies of the relevant registrations were included in the material provided to the Court. The material registered as Book 4803 No 216 includes a document described as an affidavit and which refers to an attached document (emphasis added):
"AFFIDAVIT
4. CLAIM OF OWNERSHIP/ CONVEYANCE OF CERTIFICATE OF TITLE
Affiant, Llewellyn, Aidan-Rees, a private, living man, doing business in the public as ens legis, AIDAN REES LLEWELLYN, said affiant/registered owner, being duly sworn, declare and state that I am of full age and competent and have first-hand knowledge of the facts stated herein and believe these facts to be true and correct to the best of my knowledge and that said affiant is the same party described in said (Birth) Certificate of Title (Real Property);
a. The attached document is the authenticated and sealed original document of title of which I am the holder in due course of, the Certificated Title whose name also appears on the face of the instrument as "LLEWELLYN, Aidan Rees" (Estate) bearing Registration Number 103908/1988 by reference to the Official Certificate of Live Birth (Title/Warehousing Receipt), recorded, registered and filed in the Office of the Registrar, Land of New South Wales, as the same appears to be held for safekeeping by New South Wales Registry of Births, Deaths and Marriages; and
b. Affiant is aware, The Registrar of Titles is authorized to receive for registration of memorials upon any outstanding certificate of title an official birth certificate pertaining to a registered owner named in said certificate of title showing the date of birth of said registered owner, providing there is attached to said birth certificate an affidavit or an affiant who states that he/she is familiar with the facts recited, stating that the party named in said birth certificate is the same party as one of the owners in said certificate of title; and that thereafter the Registrar of Titles shall treat said registered owner as having attained the age of the majority at a date 18 years after the date of birth shown by said certificate…"
It will be apparent from what I have set out thus far that, at the heart of the case sought to be advanced by the Plaintiff, is the proposition that what the Plaintiff referred to as the "authenticated" copy of his birth certificate constitutes the "Trust owned Security" referred to in paragraph 1 of the relief claimed in the summons (see [3] above). Mr Llewellyn submitted that this was the basis of the right claimed in the summons to the information which he says the State has failed to provide, being the information set out in paragraph 4 of the "petition" (see [7] above). The State's conclusive answer to the entire summons is that Mr Llewellyn's birth certificate is not a "security" and that, therefore, the information sought by the Plaintiff does not exist.
It is necessary to say something about the "authenticated" birth certificate. It is a document comprising three pages. One page is a certified copy of Mr Llewellyn's birth certificate having registered number 103908/1988. It bears a certification by the Registrar, Mr Greg Curry, dated 29 April 2014 which states,
"I hereby certify that this is a true copy of particulars recorded in a Register in the State of New South Wales and the Commonwealth of Australia."
The first authentication of that document relied upon by the Plaintiff is a certification provided by Chukiet Vasana, who is described as an authentication officer for the Secretary of the Department of Foreign Affairs and Trade, Sydney Passport Office. The certification states:
"I, Chukiet Vasana, an officer of the Department of Foreign Affairs and Trade, Sydney, New South Wales., Australia, having been duly authorised by the Secretary of the Department of Foreign Affairs and Trade., DO HEREBY CERTIFY that the signature "Gregory Curry" appearing on the document on the reverse hereto is the true of signature "Gregory Curry". In so certifying, neither I nor the Department of Foreign Affair and Trade endorse, verify or make any statement as to the accuracy, truth, legality or otherwise of the contents of the document or the purposes for which the document may be used. Neither I nor the Department of Foreign Affairs and Trade accept liability for any loss, damage or injury arising out of the use of, or reliance on the document or its contents. I provide no undertaking that I have read the contents of the document.
GIVEN under my Hand and the seal of the Department of Foreign Affairs and Trade this 5th day of December, 2014."
The signature of Chukiet Vasana is itself further certified by another sealed document executed by a Consular Officer in the Australian embassy in Washington, Stephanie Nielsen:
"I STEPHANIE NIELSEN, Consular Officer at the Embassy of Australia in Washington, D.C. having been duly authorised by the Secretary of the Department of Foreign Affairs and Trade, DO HEREBY CERTIFY that the signature and seal affixed to the reverse of the attached document is the true signature and seal of Chukiet Vasana.
In so certifying, neither I nor the Embassy, verify or make any statement as to the accuracy, truth, legality or otherwise of the contents of the document or the purposes for which the document may be used. Neither I nor the Embassy accept liability for any loss, damage or injury arising out of the use of. or reliance on. the document or its contents. I provide no undertaking that I have read the contents of the document.
GIVEN under my Hand and the seal of the Embassy this 2nd day of February Two Thousand and Fifteen."
Turning to the submissions provided by Mr Llewellyn in response to the present motion, these are set out in a document entitled "a living testimony in the form of an affidavit" and which describes the deponent as "Aidan Llewellyn, non-individual, as Trustee only". It includes:
"1. The undersigned is the Trustee for the House of Llewellyn, a duly lodged Trust with New South Wales Registrar General Bk 4803 No 214.
2. The undersigned presents this Living Testimony in the form of an Affidavit in Support of the ''PETITION TO COMPEL THE STATE OF NEW SOUTH WALES, ET AL., TO DISCLOSE INFORMATION ASSOCIATED WITH A STATE ISSUED AUSTRALIAN GOVERNMENT GUARANTEED SEMIGOVERNMENT SECURITY" hereinafter "Petition to Compel" accepted, filed and stamped with NSW Equity Court principal registrar 1st May 2023 and lodged in the NSW Equity Court Registry.
3. The undersigned presents this Living Testimony in the aforementioned Trustee capacity only.
4. The undersigned also presents this Living Testimony in response to the Respondent(s) "Notice of Motion" filed 9 June 2023, "Affidavit of Robert Sherrington Affirmed 9 June 2023" and "DEFENDANTS' SUBMISSIONS ON THE NOTICE OF MOTION OF 9 JUNE 2023".
5. The "Petitioner'' on Petitioner's originating and wet-ink signed Summons is titled as "The Trustee for House of Llewellyn…"
While in that document the Plaintiff purports to deny the proposition advanced by the State (that it is the "authenticated" birth certificate which is the "Trust owned Security" in the summons) it is clear, when the whole document is read, that it is the "authenticated" birth certificate which is the "Trust owned Security" referred to in paragraph 1 of the relief sought in the summons. Mr Llewellyn confirmed as much in the course of submissions and questions from me today.
As part of what is described to as the "affirmative testimony" in that document, the essence of the Plaintiff's argument appears from paragraphs 58 to 69 (emphases in original):
"58. The Certificate is a Certificate of Title bearing the Title of the original and former owner.
59. The Certificate also bears two separate "duly sealed, signed and stamped Commonwealth of Australia Department of Foreign Affairs and Trade Authentication" certifications hereinafter "Authentication".
60. The first Authentication certification is sealed, signed and stamped with date 5th Day of December 2014.
61. The second Authentication certification is sealed, signed and stamped with date 2nd day of February Two Thousand and Fifteen.
62. Section 118 of the Australian Constitution states;
"Recognition of laws etc. of States
Full faith and credit shall be given, throughout the Commonwealth to the laws, the public Acts and records, and the judicial proceedings of every Stale."
63. The NSW Evidence Act 1995 Section 185 states;
"Full faith and credit to be given to documents properly authenticated"
64. Commonwealth Consolidated Acts states;
"Faith and credit to be given to documents properly authenticated
All public acts, records and judicial proceedings of a State or Territory that are proved or authenticated in accordance with this Act are to be given in every court, and in every public office in Australia, such faith and credit as they have by law or usage in the courts and public offices of that State or Territory."
65. Therefore, pursuant to and in accordance with all the facts herein et al., the duly Authenticated Certificate is to be accorded "Full faith and credit" in this Court at all times including but not limited to, the remainder of this proceeding.
66. According to Investopedia, "Full Faith and Credit" definition is as follows;
"Full Faith and Credit: What it is, How it Works
By JAMES CHEN
James Chen, CMT is an expert trader, investment adviser, and global market strategist.
Updated June 27, 2022
Reviewed by SOMER ANDERSON
Fact checked by KIRSTEN ROHRS SCHMITT
What Is Full Faith and Credit?
Full faith and credit is a phrase used to describe one entity's unconditional guarantee or commitment to back the interest and principal of another entity's debt. The full faith and credit commitment is typically employed by a government to help lower borrowing costs of a smaller, less stable government or of a government-sponsored agency.
KEY TAKEAWAYS
• Full faith and credit is an unsecured method of backing debt based on trust and reputation.
• Governments offer issue bonds backed only by their ability to collect taxes and other revenues in the future.
Understanding Full Faith and Credit
Full faith and credit refers to the full borrowing power of a government that pledges to fulfill its payment obligations in a timely manner. The U.S. Treasury issues bills, notes, and bonds as a means of borrowing money from the public to fund the government's capital projects.
These securities require that interest payments be made to lenders and investors periodically. On the maturity date bondholders expect full repayment of the face value of the securities. To encourage investors to purchase the debt issues, the Treasuries are backed by the full faith and credit of the government, providing assurance lo fixed income investors that the expected interest payments and principal repayments will be made regardless of the economic situation.
Because Treasury securities are backed by the full faith and credit of the government, they are referred to as risk-free securities. The government cannot default on its obligations as it has the power to print more money or increase taxes in order to repay its debt. In addition, the interest rate on these risk-free securities also act as the benchmark rate for other fixed income securities that have some level of risk. In effect, the interest rate applied to debt instruments with risk is the risk-free rate plus a premium determined by the riskiness of the bond.
67. According to the aforementioned Full Faith and Credit definition, the duly Authenticated, Full Faith and Credit accorded NSW Birth Certificate is also referred to as "the Treasuries" which "are backed by the full faith and credit of the government."
68. According to the aforementioned Full Faith and Credit definition, the duly Authenticated, Full Faith and Credit accorded NSW Birth Certificate "is referred to as risk-free securities."
69. Petitioner is "bondholder" and expects full repayment of the face value of the securities."
[4]
Consideration of the State's submissions
Ms Dunlop's helpful submissions set out a number of reasons why, with great respect to the Plaintiff, the summons and the relief sought in it are completely misconceived as a matter of the laws applicable in New South Wales and, for that matter, the Commonwealth of Australia generally (Mr Llewellyn's submissions appeared at one point to suggest a relevant distinction between state law and Commonwealth law). It is sufficient for me to deal with only two matters put by Ms Dunlop that are entirely dispositive of the Plaintiff's claim.
The first is the Plaintiff's proposition that either in and of itself, or by reason of the process of registration and certification or authentication, Mr Llewellyn's birth certificate is a form of security. The Court accepts the State's submission that the birth certificate is plainly no such thing. Apart from anything else, it contains no words of charge, mortgage, guarantee or similar that one would expect to see in a document that met the orthodox legal definition of a "security". It is a birth certificate, undoubtedly an important document, but on no view is it a security creating rights as such under any law of this country.
The second fundamental difficulty with the Plaintiff's case relied upon by the State appears from what I have set out in [16] above, which displays a basic misunderstanding of the expression "full faith and credit" where those words appear in s 118 of the Constitution (Cth) and in other legislation relied upon by the Plaintiff.
The Plaintiff, fastening upon an online definition from "Investopedia", submits that "credit" in the expression "full faith and credit" is something to do with guaranteeing or evidencing a debt. There can be no doubt that is not the meaning of "credit" in the expression "full faith and credit". "Credit" in that phrase refers to the concept of acceptance or belief in the validity of something.
The two reasons which I have identified are sufficient to demonstrate for the purposes of the State's notice of motion that the summons discloses no reasonable cause of action and ought to be summarily dismissed accordingly. There is, in fact or law, no "Trust owned Security" about which any of the defendants can provide the information sought by the summons as explicated in the "petition".
However, before leaving the substantive issues raised during the course of the hearing, I should also record that Mr Llewellyn "moved to strike" the State's submissions. He did so on the basis that those submissions were "non fact, hearsay, rhetoric, unwarranted, conjecture" and other epithets to like effect.
As I sought to explain to Mr Llewellyn during the course of argument, submissions are not evidence and are not required to be sworn. The State's motion was supported by an affidavit sworn by a solicitor with the conduct of the matter. The State's submissions are something quite different from the affidavit in support. They are exactly that - submissions - and not evidence. I therefore rejected Mr Llewellyn's application "to strike" the State's submissions.
[5]
Costs
The State proposed short minutes of order in support of their application that their costs be assessed on a gross sum basis. The first step is for a costs order to be made.
I invited Mr Llewellyn to put any submissions as to why he, being the named "petitioner, Aidan Rees Llewellyn as trustee for the House of Llewellyn", should not be ordered to pay the State's costs of the summons including the present motion. He responded that he should not be ordered to pay costs as he did not accept the validity of my judgment because of the various facts upon which the Plaintiff relied. He submitted those facts had not been controverted by the State and that my reasons were inadequate.
This is a case where the usual principle should apply as to costs, namely that costs follow the event. Mr Llewellyn's submissions do not provide a proper basis to depart from that position in the exercise of the Court's discretion. The event is the dismissal of the summons in accordance with the State's notice of motion. The Court will order that the Plaintiff pay the State's costs of the summons, including of the State's notice of motion, and make directions for the resolution of the application for costs on a gross sum basis.
[6]
Conclusion
The orders of the Court are:
1. Summons dismissed.
2. The plaintiff, described as "the petitioner, being Aidan Rees Llewellyn as the trustee for House of Llewellyn", is to pay the defendants' costs of the summons, including of their motion filed 9 June 2023.
3. The defendants are to file and serve affidavit evidence and written submissions in support of their application for a gross sum costs order on or before 1 November 2023.
4. The plaintiff is to file and serve affidavit evidence and written submissions in response to the defendant's application for a gross sum costs order on or before 30 November 2023.
5. The defendants are to file and serve any written submissions in reply on or before 8 December 2023.
6. Note that, in the absence of application otherwise by any party to be made no later than 13 December 2023, the defendant's application for a gross sum costs order will be determined on the papers.
[7]
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Decision last updated: 24 October 2023
Parties
Applicant/Plaintiff:
Aidan Llewellyn trading as the Trustee for the House of Llewellyn