[2011] HCA 21
Goktas v Government Insurance Office (NSW) (1993) 31 NSWLR 684
Papakosmas v The Queen (1999) 196 CLR 297
Source
Original judgment source is linked above.
Catchwords
[2012] HCA 9
Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588[2011] HCA 21
Goktas v Government Insurance Office (NSW) (1993) 31 NSWLR 684
Papakosmas v The Queen (1999) 196 CLR 297
Judgment (2 paragraphs)
[1]
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.
Lack of due process, as the interlocutory Application was not dealt with.
Not given the right to be heard by a Jury.
No one living man can sit in Judgment of another living man. 'MAXIM OF LAW'
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.
The primary judge was conscious that the provisions of the UCPR invoked by the respondent (other than r 13.4(1)(b)) admitted of the possibility of making an order, short of dismissal of the proceedings, that would permit the applicant an opportunity to remedy any defect in the pleadings. The orders made indicate that her Honour considered that such an opportunity would be futile, since there is no semblance of any reasonably arguable cause of action in any of the documents filed by the applicant. That is a correct assessment.
Like the primary judge I am conscious that an order could be made that would allow the applicant further opportunity to plead his case. Like the primary judge I am satisfied that no amount of liberty would result in a viable pleading. The claims the applicant seeks to pursue are fundamentally flawed, and based upon an erroneous understanding of relevant legal principles.
I propose the following orders:
Leave to appeal is refused;
The applicant is to pay the respondent's costs of the application.
BASTEN AJA: I agree.
[2]
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 08 December 2023
Solicitors:
Not applicable
Moray & Agnew (Respondent)
File Number(s): 2023/80345
Decision under appeal Court or tribunal: Supreme Court of NSW
Jurisdiction: Civil
Citation: Turnbull v Clarence Valley Council [2023] NSWSC 83
Date of Decision: 14 February 2023
Before: Schmidt AJ
File Number(s): 2022/73988