This matter comes before me by way of a motion filed by the defendant, Peter James Mellander, who informed me today he wishes to be called Peter James, again seeking a stay in respect of the execution of writ of possession. Attached to the motion filed by the defendant are two documents, annexure A and annexure B.
The defendant appears in person today and sought to rely on certain affidavits and made submissions in support of the application. The plaintiff was legally represented.
As confirmed by the defendant, the grounds on which the current application is made are set out in annexure B, attached to the notice of motion. The defendant maintains that the orders made on 29 September 2023 (see National Australia Bank Limited v Mellander [2023] NSWSC 1171) were made behind his back due to a misdirection of the court as to where he should appear. He says that, in those circumstances, there should be an immediate stay of proceedings, the matter should be relisted, and his application for a stay should succeed.
During the hearing the defendant identified other grounds for the stay, specifically being that he is a living, breathing, flesh and blood, sovereign man of God, and that, as I understand his submission, this court is forever prevented from claiming competent jurisdiction over him to deal with the proceedings pursued by the plaintiff.
In support of his application the defendant sought to read a number of affidavits, including all those affidavits on which he relied for the purposes of the earlier proceedings, that is the earlier application for a stay heard on 20 September 2023 before Dhanji J.
In addition, the defendant sought to rely on his two further affidavits dated 6 October 2023 and 13 October 2023. The plaintiff objected to the defendant relying on all of those earlier affidavits prepared for the purposes of the earlier proceedings. As I explained to the defendant, in my view none of those earlier affidavits have any relevance to the current proceedings having regard to the grounds of the application as set out in annexure B to his motion. I did not admit the affidavits prepared for the earlier proceedings but accepted his affidavits of 6 and 13 October 2023.
In addition to the matters which I have already raised, that is the allegation that there was some misdirection of the court on 29 September 2023, and that the defendant is not subject to the jurisdiction of this court as a living, breathing, flesh and blood, sovereign man of God, the defendant pointed to s 38 of the Imperial Acts Application Act 1969 (NSW) as supporting the proposition that he was not subject to the jurisdiction of this court.
Specifically, he referred to s 38(4) of that Act which states:
38 Property - determination of a life or lives
…
(4) If in any such proceedings judgment has been given against the plaintiff, and afterwards such plaintiff brings subsequent proceedings upon the basis that such life has determined, the court may make an order staying such proceedings permanently or until further order or for such time as may be thought fit.
…
He said he relied on the whole of s 38(4), but I understood him to be submitting that as he does not accept his birth certificate, then his life has been determined and the court should make an order staying such proceedings against him permanently.
As set out in the judgment of Dhanji J of 29 September 2023, the defendant previously filed a motion on 5 September 2023 seeking a stay of the writ of possession obtained by the plaintiff. The background to that application is set out in the judgment. The defendant borrowed money, the loan was secured by a mortgage and the defendant then defaulted on the loan which led to the plaintiff taking action in court seeking to enforce its rights. The plaintiff obtained default judgment and then obtained a writ of possession with respect to the property the subject of the mortgage.
On 5 September 2023, the defendant filed a motion seeking a stay of the writ of possession which was the subject of his Honour's judgment delivered on 29 September 2023. It is not necessary that I merely repeat what his Honour said. His Honour determined the matter, the defendant was present on the hearing of the matter on 20 September 2023 and raised such matters and relied on such evidence as he wished to.
The point raised by the defendant in annexure B to the motion on which he is proceeding today is that he was not present in court when his Honour handed down his decision on 29 September 2023. The plaintiff does not suggest otherwise. The defendant submits that he was, therefore, precluded from making submissions about the matter on that occasion.
That submission misunderstands the process and that which occurred on 29 September 2023.
The hearing took place on 20 September 2023. The defendant was present and made such submissions as he wished to. On 29 September 2023, Dhanji J merely read out his decision, that is the motion was dismissed and the defendant to pay the plaintiff's costs, and handed down his written judgment. There was no opportunity for either party to make further submissions. The decision had been made and all his Honour was doing was informing the parties of that decision. Indeed, it often happens that a party may not appear when a decision is being handed down.
There were a number of people in court when his Honour handed down that decision, but the defendant's absence has not resulted in any prejudice to the defendant or any miscarriage.
The defendant does not point to any rule which renders a judgment or order invalid because of the absence of a party when handing down the decision. In most instances, the court does not even call for appearances when handing down a judgment. It is a matter for the party whether that party wishes to be present to receive the judgment. It is not suggested by the defendant that he did not receive the judgment immediately, or that he has had no opportunity to consider it or pursue whatever course he wishes in response to it.
In the circumstances, I reject the first submission of the defendant that there has been a misdirection of the Court because he was not present. There has been no miscarriage of justice, abuse of process or any other prejudice to the defendant through his absence when the decision was handed down on 29 September 2023.
As far as the second series of matters relied upon by the defendant are concerned, that is those not referred to in annexure B but referred to in oral submissions, it is only necessary to say that I do not accept the submissions. The defendant was unable to explain how it was that any part of s 38 of the Imperial Acts Application Act applied to this application or provide a basis for a stay other than suggesting that he does not accept the birth certificate and, thus, he, in some way, falls within the category of a person whose life has been determined. I do not accept that submission.
Similarly, I do not accept the proposition that the defendant is not subject to the jurisdiction of this court. The defendant has not identified a proper basis for such a submission nor is it referred to in annexure B, that is the grounds on which he seeks a stay.
The grounds on which a party may seek a stay of a writ of possession are well known: see GE Personal Finance Pty Ltd v Smith [2006] NSWSC 889 at [9]-[40]. None of the grounds relied upon by the defendant provide a proper basis for the granting of a stay. In those circumstances, the defendant's motion is dismissed.
At the end of delivery of my oral reasons, the plaintiff sought a further order, being an order that the defendant be precluded from filing a further motion seeking a stay on the execution of the writ of possession without leave of the court. The grounds on which that further order was sought is that the defendant has indicated that he will be filing further motions seeking the same orders, that he believes that today is just a "step in the process", that he will be seeking to reagitate the same issues and that he will be seeking further hearings to, again, explain what I have described as his second point, that is he is not subject to the jurisdiction of this court.
In response to that submission, the defendant agreed that he would be pursuing further applications raising the same issues in greater detail and seeking for the court to have all these matters heard again. He did not identify what process he would be using to reagitate all of these issues but I did raise with him during earlier submissions whether he was seeking to appeal the decision of Dhanji J or whether he would be just proceeding with new motions. I understood him to say that he would just be seeking to pursue further applications in this court.
As the defendant has indicated that he will be pursuing further applications in this court to reagitate the same issues it is appropriate that I make the order sought by the plaintiff. It is a matter for the defendant whether he wishes to appeal the decision of Dhanji J, but this court should not entertain a series of similar applications which seek to agitate the same essential point, that is that the defendant is not subject to the jurisdiction of this court.
Any order I make must be consistent with the dictates of justice. Justice must be considered from the perspective of both parties, not just one party. In the circumstances I order that the defendant be precluded from filing any further application for a stay of the writ of possession without leave of the court.
The plaintiff seeks costs of the motion. In response, the defendant said that he rejects any finding that this court has jurisdiction. He says the plaintiff is proceeding on the basis that the court has jurisdiction when it does not. He says that the matter can only be determined when it is dealt with by a competent, agreed jurisdiction. I understand him to be saying the court will have to accept the submission that this court has no jurisdiction over him.
The defendant's motion has been unsuccessful. The usual rule applies. In the circumstances, I order the defendant pay the plaintiff's costs of the motion. I thus make the following orders:
1. The defendant's motion seeking a stay of the execution of the writ of possession is dismissed.
2. The defendant may not file any further motion seeking a stay of the writ of possession without leave of the court.
3. The defendant is to pay the plaintiff's costs.
[2]
Amendments
23 October 2023 - Word added to catchwords.
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Decision last updated: 23 October 2023