Kyle Anthony v State of New South Wales

Category: Principal judgment

Parties: The State of New South Wales (Applicant)
Kyle Anthony (Respondent)

Representation: C Gardiner (Applicant)
K Anthony (Respondent, Self-represented)

File Number(s): 2025/00292557

Publication restriction: Nil

JUDGMENT

INTRODUCTION

1. These proceedings were brought by the plaintiff, Kyle Anthony, by summons filed 31 July 2025 against the defendant, the State of New South Wales.

2. Before me is an application by notice of motion filed 1 October 2025 by the State to summarily dismiss these proceedings pursuant to r 13.4 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) or that the summons be struck out in its entirety pursuant to r 14.28 of the UCPR.

3. With the agreement of the parties, I have dealt with the notice of motion on the papers without the need for a hearing. The plaintiff is self-represented.

4. For the reasons set out below, I have determined that the proceedings should be summarily dismissed on the basis that no reasonable cause of action is disclosed by the summons and that the plaintiff should pay the State’s costs of the proceedings. As a result, the State’s strike out application does not arise for determination.

RELEVANT FACTS

5. In the summons, the plaintiff principally seeks relief to the following effect against the State:

6. various orders in relation to a purported trust; or

7. in the alternative, a declaration for the “termination of the legal entity KYLE ANTHONY YOUNG: effectively resulting in the civil death of the legal persona/entity”; or

8. in the further alternative, an order that Kyle has “his God given Christian name (Kyle Anthony) expunged/redacted on the birth registration statement” with the effect of “complete termination of all relations with the Crown”.

9. In summary, the relief claimed appears to be based on the following contentions:

10. By virtue of his birth, the plaintiff was granted an equitable life estate from “the LORD/Abba”, which was innately connected to his given names ‘Kyle Anthony’, as distinct from any surname.

11. The registration of his birth resulted in the imposition of legal personhood upon him and consequently created a legal persona ‘Kyle Anthony Young’ in which the surname and this legal entity was the property of the Crown.

12. The only property the State had a right to register was “its legal surname invention” and that by registering the plaintiff’s given names it transgressed the private intellectual property of Christ.

13. By participating generally in civil society under the name ‘Kyle Anthony Young’, the plaintiff had undertaken “suretyship” of that legal persona as a “registered common legal debtor/constitutor” so that the plaintiff lost his Christian name and his birthright inheritance estate.

14. Through the execution of a Deed of Election, the plaintiff seeks to transfer trusteeship of the legal entity ‘Kyle Anthony Young’ to the Crown and be released from “suretyship”, meaning that the plaintiff would be “exonerated from all legal debts, duties and obligations that are bestowed upon legal participants with respect to mistakenly undertaking the suretyship of the legal persona/entity”.

LEGAL PRINCIPLES

Summary dismissal

7. The court’s power to summarily dismiss proceedings is contained in r 13.4 of the UCPR. Relevantly, rr 13.4(1) and (2) of the UCPR provide:

13.4 Frivolous and vexatious proceedings

(1) If in any proceedings it appears to the court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings—

(a) the proceedings are frivolous or vexatious, or

(b) no reasonable cause of action is disclosed, or

(c) the proceedings are an abuse of the process of the court,

the court may order that the proceedings be dismissed generally or in relation to that claim.

(2) The court may receive evidence on the hearing of an application for an order under subrule (1).

8. For many decades, the shorthand expression of the applicable principles for the determination of an application to summarily dismiss proceedings has been described as the “General Steel test”, which derives from the decision in General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; [1964] HCA 69, in which it was held by Barwick CJ at 128–9 that:

… the jurisdiction summarily to terminate an action is to be sparingly employed and is not to be used except in a clear case where the Court is satisfied that it has the requisite material and the necessary assistance from the parties to reach a definite and certain conclusion. …The test to be applied has been variously expressed; “so obviously untenable that it cannot possibly succeed”; “manifestly groundless”; “so manifestly faulty that it does not admit of argument”; “discloses a case which the Court is satisfied cannot succeed”; “under no possibility can there be a good cause of action”; “be manifest that to allow them” (the pleadings) “to stand would involve useless expense”.

9. In Agar v Hyde (2000) 201 CLR 552; [2000] HCA 41, Gaudron, McHugh, Gummow and Hayne JJ commented on the General Steel test in the following way at [57] (citation omitted):

… Ordinarily, a party is not to be denied the opportunity to place his or her case before the court in the ordinary way, and after taking advantage of the usual interlocutory processes. The test to be applied has been expressed in various ways, but all of the verbal formulae which have been used are intended to describe a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way.

10. This expression of principle was endorsed in Batistatos v Roads & Traffic Authority New South Wales (2006) 226 CLR 256; [2006] HCA 27, Gleeson CJ, Gummow, Hayne and Crennan JJ at [46] (where it was also said that the General Steel test should not be given “canonical force”) and in Spencer v Commonwealth (2010) 241 CLR 118; [2010] HCA 28, French CJ and Gummow J at [24].

11. In Shaw v New South Wales (2012) 219 IR 87; [2012] NSWCA 102, Barrett JA (with whom Beazley, McColl and Macfarlan JJA and McClellan CJ at CL agreed) at [32] elaborated on the General Steel test for summary dismissal as follows:

The question is ... whether the claims in question are so obviously untenable or groundless that there is “a high degree of certainty” that they will fail if allowed to go to trial; and whether this is one of the “clearest of cases” in which the court may accordingly intervene to prevent the claims being litigated.

12. This assessment is to be made by taking the case of the party bringing the claim at its highest, meaning that the party applying for summary dismissal must accept the truth of all allegations in the claim and the ranges of meaning which assertions in the claim are capable of bearing: see Simmons v New South Wales Trustee and Guardian (2014) 17 BPR 33,717; [2014] NSWCA 405, Gleeson JA (with whom Beazley P and Barrett JA agreed) at [200], citing Penthouse Publications Ltd v McWilliam (Court of Appeal (NSW), Priestley and Meagher JJA and Wardell AJA, 15 March 1991, unrep); Agius v New South Wales [2001] NSWCA 371, Giles JA (with whom Priestley and Powell JJA agreed) at [24].

13. The Court of Appeal decision in GR v Secretary, Department of Communities and Justice [2023] NSWCA 239, similarly dealt with an interlocutory application for summary dismissal, with Adamson JA observing at [123]:

… A plaintiff is not obliged to substantiate the allegations made in support of the claim in order to resist summary dismissal of the proceedings. Issues of fact are pre-eminently matters for final hearing. Summary dismissal will be refused if there is a triable issue: Wickstead v Browne (1992) 30 NSWLR 1 at 11 (Handley and Cripps JJA); [1992] NSWCA 272.

14. The court may receive evidence on the hearing of an application for a summary dismissal under r 13.4 of the UCPR or the strike out of a pleading under r 14.28 of the UCPR: rr 13.4(2) and 14.28(2) of the UCPR.

Overriding purpose

15. In exercising my discretion under r 13.4 of the UCPR, I must also have regard to the requirements of ss 56 and 57 of the Civil Procedure Act 2005 (NSW) (CPA).

16. The overriding purpose of the CPA and the UCPR in their application to civil proceedings in this court is to facilitate the just, quick and cheap resolution of the real issues in the proceedings: s 56(1) of the CPA. I must seek to give effect to that overriding purpose when I exercise any power in the CPA or the UCPR: s 56(2) of the CPA.

17. In seeking to give effect to the overriding purpose, I must have regard to the objects of the just determination of the proceedings, the efficient disposal of the business of the court, the efficient use of available judicial and administrative resources, and the timely disposal of the proceedings at a cost affordable by the respective parties: s 57(1) of the CPA.

Circumstances in which the court may strike out pleadings

18. In light of my conclusion that the proceedings should be summarily dismissed, it is not necessary for me to set out the principles in relation to striking out the whole or any part of a pleading as contained in r 14.28(1) of the UCPR.

Self-represented litigants

19. In dealing with an application such as the present by a self-represented litigant, I must recognise that there is a disadvantage in relation to which I must exercise special care to ensure that there is no viable cause of action in the summons which would survive if put in proper form because if it can be done I should avoid the summary termination of the proceedings: Wentworth v Rogers (No 5) (1986) 6 NSWLR 534, Kirby P (with whom Hope and Samuels JJA agreed) at 536–7. However, in doing so, I must have regard not only to the litigant in person but also to the position of the other parties and what is required in the interests of justice to prevent the unnecessary expenditure of both public and private resources: Herbert v American Express Australia Limited [2018] FCA 1790, Flick J at [60], citing Corporate Affairs Commission v Solomon (unreported, NSWCA, Mahoney AP, 1 November 1989).

CONSIDERATION

20. These proceedings appear to be the second instalment of proceedings brought by the plaintiff and determined by Kunc J on 20 March 2024: Young & Young v Attorney General of New South Wales [2024] NSWSC 282. In Young, the plaintiff and his brother were the moving parties. In Young at [13], his Honour stated:

The “birthright estate” which appears to lie at the heart of Shaun’s claim is not an estate known to law or equity. It is certainly not something which is brought into existence by the act of registration of a birth or is evidenced by a birth certificate. In Llewellyn I determined that a birth certificate, either in and of itself or by its registration, does not create or evidence anything which the law would recognise as a “security”. Similarly, the Court finds that a birth certificate, either in and of itself or by its registration, does not create, evidence or alter any kind of property or right in property known to Australian law, whether in law, equity or otherwise.

21. For the following reasons, I accept the submissions made by the State.

22. While the relief sought in Young concerned the alleged restoration of a purported “birthright estate” said to have been “deposited” with the Registrar General upon the registration of the plaintiff’s birth, the proceedings before me appear to place greater emphasis on the return to the Crown or alleged “termination” of a legal persona or entity said to have been created by that birth registration. Nonetheless, both proceedings rest on the flawed premise that the registration of a person’s birth evidences, creates or alters legal or equitable property rights.

23. The plaintiff’s primary claim for recognition of property or rights capable of forming the subject matter of a trust cannot be made out. As explained in Young, the registration of a person’s birth under statutory authority does not create or alter any proprietary or equitable interests, meaning that there are no existing property or other rights that could form the basis of the alleged trust. There is also no basis for the contention that a person’s surname is the property of the Crown or that the process of registration serves to impose legal personhood upon an individual through the creation of a distinct and separate legal entity. As is evident, the purported trust lacks any valid subject matter. Accordingly, the primary claim for relief discloses no reasonable cause of action.

24. The plaintiff’s first alternative claim for a declaration of a “civil death” fails for the same reason. Even if the concept of a “civil death” may have existed at some point in medieval law (where a person was banished from the realm by common law process), there are no found examples where it has survived to currently form part of Australian law today. Religious themes permeate the summons. To the extent that the orders sought in the summons rely on the medieval concept of “monastery death” (see, for example, Blackstone, Commentaries on the Laws of England (3rd ed, 1768, vol 1) at p 132 which explains such a “death” as occurring when a monk enters a monastery), that concept is long obsolete and has never formed part of the law in Australia.

25. The plaintiff’s further alternative claim, seeking to have his given names expunged from his birth registration to effect a “complete termination of all relations with the Crown”, is similarly untenable. While mechanisms exist by which a person may lawfully change their name in Part 5 of the Birth, Deaths and Marriages Registration Act 1995 (NSW), the court has no power to “delete” a birth record. There is no legal basis for the contention that any alteration of the plaintiff’s birth registration particulars could result in a termination of all relations with the Crown.

26. However sincerely the plaintiff may hold the spiritual or moral beliefs of alleged “rights” which are reflected in the summons, I consider that this is a case in which all the claims are manifestly groundless and obviously untenable. Applying the principles in Simmons and Agius, even taking the plaintiff’s case at its highest and assuming the truth of all factual assertions in the summons, the claims nonetheless fail to disclose any reasonable cause of action. Applying the General Steel test, none of the plaintiff’s possible claims for relief are founded in Australian law and are therefore manifestly groundless and so obviously untenable that they cannot possibly succeed at trial in accordance with Australian law. To adopt the words in Agar, I have a high degree of certainty in reaching that conclusion.

27. In my consideration, I have taken into account that the plaintiff is self-represented. While the court must exercise caution in summarily dismissing proceedings brought by an unrepresented litigant as observed in Wentworth, no discernible cause of action in law or equity arises from the pleaded facts. To allow these proceedings to continue would occasion unnecessary expenditure of public and private resources and constitute an abuse of process.

28. Having regard to ss 56 and 57 of the CPA, the continuation of these proceedings would neither advance any real issue capable of resolution at trial nor constitute an efficient use of court resources.

29. None of the matters raised in the summons are ones that could be put in proper form by some other form of pleading. It is not simply a question that the summons should be struck out and a proper pleading filed. Instead, the appropriate order is for the proceedings to be summarily dismissed with costs.

ORDERS

30. For the reasons stated above, I propose to make the following orders:

31. The proceedings are summarily dismissed pursuant to r 13.4 of the Uniform Civil Procedure Rules 2005 (NSW).

32. The plaintiff is to pay the defendant’s costs of the proceedings.

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