Fyffe v State of Victoria [1999] VSCA 196

Court of Appeal (Vic)|1999-11-18|Before: CHARLES, BATT & CHERNOV, JJ.A.

POSSESSION OF LAND - Claim by State as purchaser at mortgagee's auction - Summary judgment - Former owner claiming to have seceded - Victorian law applying within State boundaries - Magna Carta and Bill of Rights not infringed - Appeal dismissed.

In this action the State of Victoria claims as plaintiff possession of a parcel of land at Carrajung occupied by the appellant/defendant Brian Charles Fyffe. The land is identified in paragraph 2 of the amended statement of claim as Crown land situate at Crown allotment 49B in the Parish of Carrajung, being the land formerly more particularly described in Certificate of Title Volume 8733 Folio 636. The State acquired the land in 1989 through the Ministry for Conservation, Forests and Lands having acquired the land following a mortgagee's sale and became proprietor in July 1989.

The amended statement of claim alleged in paragraph 3 that by an oral lease entered into in or about June or July 1989, the State demised Crown allotment 49B including the residence thereon to Mr Fyffe. Paragraphs 2 to 7 alleged that the oral lease to Mr Fyffe together with the payment of rent by him of $40 per week created a weekly tenancy, alternatively a licence to occupy the land. By his defence of 27 January 1998 Mr Fyffe admitted that the State was at all material times the registered proprietor of the Crown land and admitted the lease, but claimed it was entered into with himself and his two sons Joseph and James. The admission of tenancy and ownership is, of course, wholly inconsistent with the claim of secession to which we turn later. The State further claims that Mr Fyffe from October 1992 failed to pay the agreed rent of $40 per week, that notice to quit was duly served and that Mr Fyffe wrongfully remains in possession of allotment 49B. The defence admits service of the notice to quit and makes no allegation that it was directed to insufficient parties. Nor does the notice of appeal make any such claim.

This action was commenced by writ issued on 21 February 1997 and the State obtained judgment in default of appearance on 3 July 1997. On 19 September 1997 Mr Fyffe issued a summons seeking an injunction to restrain the State from executing upon a warrant which it had issued. The matter was heard before Master Evans on 27 October and the default judgment was set aside and leave was granted to the State to file an amended statement of claim, which occurred on 2 December 1997. As we have said, the defence was filed on 27 January 1998.

By summons dated 18 March 1998 the State applied for summary judgment as plaintiff on its claim and as defendant to Mr Fyffe's counterclaim. The application came before Master Evans on 8 May 1998. The Master ordered that the State recover possession of the land at Carrajung contained in Crown allotment 49B, that Mr Fyffe pay the State mesne profits and damages to be assessed and that Mr Fyffe pay the State's costs of the application.

Mr Fyffe appealed from the decision of Master Evans and the appeal came on for hearing before Mr Justice Mandie on 15 June 1998. The appeal was dismissed and Mr Fyffe was ordered to pay the State's costs of the appeal. Judgment was delivered in the Practice Court, and his Honour's reasons were not recorded.

By notice dated 29 June 1998 Mr Fyffe instituted the present appeal.

The summary of issues filed by Mr Fyffe's then solicitor, Mr Keith Hoban, on 12 November 1999 asserts that the following issues arise in the appeal. It is said that Mr Fyffe contends that the judge misapprehended the historical and legal significance of Mr Fyffe's conviction on criminal charges in 1989 and the fraud which lay behind the sale of the land and the significance of the matters raised in two constitutional notices filed on 5 May and 2 June 1998. Mr Fyffe claims to have seceded from the State of Victoria and to have received international recognition of the fact of secession and that he has entered into treaties with other principalities. The notice asserts that Mr Fyffe intends to argue that the principles enshrined in Magna Carta continue to apply in Victoria and that there has been a fraud committed against Mr Fyffe by the mortgagees of the land who conspired to bring about the sale of the land, and by the State of Victoria itself.

The summary of facts prepared by Mr Hoban on Mr Fyffe's behalf asserts the following:

"Fyffe and his wife, Wendy Fyffe, settled on the land in or about 1954 and set about establishing the property for use as a dairy farm. By 1982, Fyffe had acquired two caterpillar tractors for use in road-making and bush clearing operations. In 1982, one of these bulldozers was destroyed by fire and an insurance claim ensued. The insurer refused to settle on the claim and this resulted in protracted litigation. By 1985, Fyffe was in arrears of his mortgage commitments in relation to the bulldozers and the land. One of the mortgagees commenced recovery action. Shortly thereafter police raided Fyffe's property and Fyffe, his wife and one of his sons were arrested and charged with various offences. His wife and son were convicted but those convictions were later quashed. Fyffe was convicted on three counts and served a term of imprisonment. On appeal, two of the counts were overturned. Following his release on 30 May 1989, Fyffe resumed occupation of the land and has remained there since. In 1989 he entered into an arrangement to pay rental and agistment fees to the Ministry for Conservation, Forests and Lands. He ceased payment of rental and fees in 1992 and the State of Victoria subsequently commenced these proceedings. Fyffe says that the outstanding conviction against him is unconstitutional and null and void and cannot be a foundation for justifying the actions taken by the respondent to acquire the freehold in the land. Fyffe further says that the purported acquisition of the freehold by the respondent at public auction was unconstitutional and null and void. Fyffe further says that by virtue of his diplomatic status he and the land are protected by international law from any claimed sovereignty by the respondent."

At the outset of the hearing of the appeal Mr Fyffe's solicitor brought on an application pursuant to Order 20.03(4) of the Rules of the Supreme Court for leave to file a notice that he cease to act as solicitor for Mr Fyffe. He exhibited to an affidavit in support of his application two letters sent by Mr Fyffe terminating his services. The Court granted his application and thereafter Mr Fyffe conducted the argument on his own behalf.

Mr Fyffe provided us with written submissions today in which his principal submission was that he had exercised the right to secede recognized by Article 1.2 of the Charter of the United Nations 1945 and Article 1.1 of the International Covenant on Civil and Political Rights 1966, both of which he submitted were part of the law of Australia. Mr Fyffe argued secondly that his 1989 conviction was rendered void by the Constitution of Victoria and Magna Carta; and thirdly, that the State's purchase of the land at public auction also contravened the State's Constitution and was null and void. In effect the argument appears to be that Mr Fyffe could not be deprived of his land save by the lawful judgment of a constitutional jury and that in the circumstances he had been denied due process.

Grounds 1 to 5 of the notice of appeal all relate to the allegation referred to in Mr Hoban's summary of the issues in the appeal, that there has been a fraud committed against Mr Fyffe by the mortgagees of the land, who conspired to bring about the sale of the land and by the State by its conduct and treatment of Mr Fyffe, including its acquisition of the land and its attempts to evict Mr Fyffe. The grounds include allegations that the judge erred in his finding that there was no evidence of fraud, that his Honour was incorrect in his finding that the State was not a party to the fraudulent conduct of the mortgagee, that his Honour erred in his finding that there was no evidence of constructive knowledge of the fraud by the Government of the State, that the judge did not give proper consideration to the evidence which suggested that there was a continuing course of conduct which perpetuated the initial fraud, and that the judge was in error in finding that there was no breach of natural justice despite evidence of forgery, uttering, unlawful detention and the buying at an under-sale of the property. Mr Fyffe did not make specific reference to any of these grounds in this Court today.

In our view, all these grounds are without substance. In the first place Mr Fyffe has never sought to amend paragraphs 1 to 7 of his defence in which he admitted that the State was the registered proprietor of the land, and that he and his sons became the tenants of the State and paid rent. There is in our view no material, whether in the Court Book or otherwise, which could establish any fraud in the mortgagee's sale or any fraud committed by the State.

In paragraph 7 of the affidavit of Mr Fyffe's then solicitor, Phillip Reid Dinning, sworn 12 June 1998, Mr Dinning also acknowledges that it was noted by Master Evans in giving judgment that the alleged perpetrators of the fraud were not parties to the action and that there had been no proceedings instituted against those parties.

"The mortgage executed by William Adams Leasing Ltd was fraudulent and that the plaintiff in the action had actual or constructive knowledge of the facts, matters and circumstances relating to the uttering of that forgery".

The allegation against William Adams Leasing Ltd is essentially that it executed a mortgage under a power of attorney contained in the Lease Rental Agreement prior to the date William Adams Leasing Ltd itself executed that agreement. However, Mr Fyffe had himself executed the Lease Rent Agreement on 3 August 1983. Paragraph 34 of the agreement appointed William Adams Leasing Ltd and "any of the Directors, Secretary and Manager" of the company "as his lawful Attorney for the purposes of enabling the company to execute any mortgage referred to in paragraph 33" of the agreement. The mortgage was then executed by William Adams Leasing Ltd pursuant to that power of attorney. There is no suggestion that Mr and Mrs Fyffe did not receive the goods which were the subject of the Lease Rent Agreement.

In our view it is perfectly clear that the failure (if it be established) of William Adams Leasing Ltd to execute the Lease Rent Agreement prior to the date of executing the Collateral Mortgage would not invalidate the Collateral Mortgage because it had already been executed by the donor of the power, Mr Fyffe. Nor could the failure of William Adams Leasing Ltd to affix its common seal to the Collateral Mortgage invalidate that instrument, since paragraph 34 of the Lease Rent Agreement appointed as attorney the directors, secretary and manager, as well as the company itself.

The fraud, as we have said, is alleged against William Adams Leasing Ltd which is not a party to this action and not against the State of Victoria itself. No facts are deposed to in the affidavit material relied upon by Mr Fyffe which establish any fraud on the part of the State. Nor are any facts deposed to which could establish constructive knowledge of any such fraud on the part of the State. Furthermore, fraud for these purposes relevantly means actual dishonesty or moral turpitude on the part of the person whose title is sought to be impugned; Pyramid Building Society (In Liq.) v Scorpion Hotels Pty Ltd [1998] 1 V.R. 188 at 190-195 per Hayne, J.A.; and Macquarie Bank Ltd v Sixty-Fourth Throne Pty Ltd [1998] 3 V.R. 133. No proceedings have been brought by Mr Fyffe against the mortgagee for the purpose of testing any such allegation.

Ground 6 of the notice of appeal relates to the s.78B Notice filed on 2 June 1998, and claims that the judge erred in finding that the notice did not disclose any constitutional questions. In our view neither the pleadings nor the s.78B Notice raised any valid constitutional issue. The notices were served and all Attorneys-General have chosen not to intervene and submit argument in the proceedings.

In our view, no breach of Magna Carta or the Bill of Rights is involved in the bringing of these proceedings by the State against Mr Fyffe, nor does the decision of the High Court in Kable v The Director of Public Prosecutions for New South Wales [1996] HCA 24; (1996) 189 C.L.R. 51 have any relevance to the appeal. In so far as the notices include a claim based on Mr Fyffe's criminal conviction in February 1989, that matter was considered by the Court of Criminal Appeal (Crockett, Marks and Southwell, J.J.) on 7 June 1989. Any complaint Mr Fyffe has in relation to this judgment must, we think, be pursued by him in the High Court, and certainly not in a civil appeal to this Court. It is difficult to see what possible bearing the challenge to the conviction could have on the matters the subject of the State's claim to possession.

Grounds 7, 8, 9 and 10 of the notice of appeal variously allege that the judge erred in failing to admit relevant evidence, that his Honour was wrong to hold that there was no evidence creating an arguable case, that the judge did not analyse or sufficiently analyse the pleadings or the affidavits filed by Mr Fyffe, and that his Honour's findings of facts were against the evidence and the weight of the evidence. No evidence has been put forward in any affidavit filed on Mr Fyffe's behalf in support of these grounds, nor do the written submissions support any of these grounds in any relevant way. The relevant evidence which his Honour is said to have failed to admit is not identified, nor are there any facts deposed to in the affidavits filed on behalf of Mr Fyffe which raise any plausible argument on the case as it stood before the Master or his Honour that should have led the Court to refuse to enter judgment for the State. Plainly both Master Evans and Mr Justice Mandie were satisfied on the plaintiff's affidavit material that the State was entitled to obtain judgment for possession. There is nothing in any of these grounds of the notice of appeal.

In so far as Mr Fyffe's claim is based upon an argument that he has seceded from the State of Victoria, there is neither substance in, nor justification for it. There is no suggestion anywhere in the material before the Court that secession occurred before the land was transferred to the Crown in right of the State. The question whether it is possible for a State to secede from the Australian Federation has been considered at length by Professor Craven in his book "Secession, The Ultimate States' Right", (1986) Melbourne University Press. Professor Craven has taken the view (at 81 and ff.) that arguably the Preamble, and certainly s.3 of the Commonwealth Constitution impose a continuing unity upon the Australian States and that secession would contravene both ss.3 and 4 of the Constitution.

Claims of individual secession were made in Harris v Muirhead [1983] 2 Qd.R. 527 (and rejected by Thomas, J. at 529 as an insult to ordinary Australian citizens) and in Alexander Brackstone v Police (1999) SASC 35 by Nyland, J. In the latter case, the judgment makes reference to various letters written to the appellant, addressed to him as the Governor of Bumbunga. Mr Fyffe before us this morning also relied on various items of correspondence directed to him and to others, in support of the argument that he had seceded. Some of these letters were addressed, e.g., to Joseph Rigoli as "H.R.H. Prince Little Joseph" or "Prince Joseph" and referred to the land as the "Ponderosa Principality". In Brackstone, Nyland, J. said of such correspondence in paragraph 5 that:

"None of them, however, deals specifically with the issue of the legal status of the province. They do no more than indicate general recognition of the province as the appellant's address".

In the present case the documents upon which Mr Fyffe relies do no more, in our view, than indicate a courteous willingness to use the descriptions by which certain persons choose to refer to themselves and their addresses.

The Victorian Parliament has, of course, power to legislate "in and for Victoria in all cases whatsoever"; see s.16 of the Constitution Act 1975. Mr Fyffe resides in Victoria and we can take judicial notice that the relevant land is situated within the State. Mr Fyffe is accordingly subject to the laws of Victoria. The submissions bearing on secession should in our view be rejected as an abuse of process. See also _Coe v Commonwealt_h [1979] HCA 68; (1979) 24 A.L.R. 118 per Gibbs, C.J. at 128-129; Coe v Commonwealth (No. 2) [1993] HCA 42; (1993) 118 A.L.R. 193 at 199; Walker v New South Wales [1994] HCA 64; (1994) 182 C.L.R. 45 per Mason, C.J. at 49-50.

In so far as Mr Fyffe claims that he has been denied a right to trial by jury, the Supreme Court Rules give a litigant in certain circumstances a prima facie entitlement to trial by jury (Order 47). By Order 47.02(1) if a proceeding is founded on contract, or on tort, a defendant may require the action to be tried with a jury by serving a notice in writing on the plaintiff within ten days signifying his desire to have the proceedings so tried. Order 47.02(2) provides that any other proceeding shall be tried without a jury unless the Court otherwise orders. In the present case, Mr Fyffe did not give any notice in writing signifying his desire to have the proceeding tried by jury, nor was it suggested that any application for a jury has been made at any stage to the Court. These Rules are made pursuant to the Court's powers under s.25(1) of the Supreme Court Act 1986, and in any event the predecessor to the present Rule was in terms ratified, validated and approved by s.4 of the Supreme Court (Rules of Procedure) Act 1986 which relevantly came into force on 16 September 1986.

In our view there is nothing in any of the arguments put to us or in any of the documents submitted to us today which supports the view that the present proceedings are in any way relevantly in breach either of Magna Carta or the Bill of Rights, or that the appellant has been denied due process or natural justice. See, amongst other things, s.77 of the Transfer of Land Act 1958.

Constitution Act 1975

Court (Rules of Procedure) Act 1986

Constitution Act 1975

Court (Rules of Procedure) Act 1986

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