supreme court common law defence

8/9/2019 Supreme Court Common Law Defence

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Form 6 (version 3)Rule 14.3

DEFENCE

COURT DETAILS

Court SUPREME COURT - NSW**Division Common Law**List XXXXXXXRegistry SydneyCase number XXXX of 2008

TITLE OF PROCEEDINGS

[First] plaintiffTHEIR NAME

**Number of plaintiffs XX

[First] defendant YOUR NAME**Number of defendants XX

FILING DETAILS / ADDRESS FOR SERVICE

Filed for YOUR NAMEAddress for service YOUR ADDRESS OR SOLICITORS** Telephone YOUR NUMBER OR SOLICITORS** Fax YOUR NUMBER OR SOLICITORS

PLEADING AND PARTICULARS

The defendant relies on the following facts and assertions:

Constitutional and Jurisdictional Submissions


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1 The matter before the Civil Division of the Supreme Court of New South Wales at Sydney

depends upon the valid appointment of the Governor of the aforesaid State and the valid

appointment by such State Governors of Justices of the aforesaid court.

2. The laws pertaining to the use of the Royal Sign Manual, under which the Commission of

Appointment of the Governor of New South Wales is issued are solely domestic laws of the

United Kingdom of Great Britain and Northern Ireland and therefore lie outside thejurisdictional authority of the courts of New South Wales.

3. On 7th May 2001 the Attorney General of the Commonwealth, in response to an

application under theFreedom of Information Act 1982 (Cth) stated that no documents exist

conferring authority or rights of usage in respect of the Royal Sign Manual upon the Queen

of Australia. The rights of usage in respect of the Royal Sign Manual are held exclusively

by Her Majesty the Queen of the United Kingdom of Great Britain and Northern Ireland by

virtue of legislation of the United Kingdom Parliament.

See Annexure A

This is confirmed inHalsburys Laws of England, Vol 8(2), Para 908.

See Annexure B.

4. The appointment of any Governor of the State of New South Wales who allegedly

appointed Justices of the Supreme Court of the aforesaid Statewas defective and void since

the source of his authority derived directly from a Royal Prerogative, which did not, and

does not, exist in Australian legislation or law.

5. As a direct consequence of the appointment of New South Wales Governors being

defective and void no lawful appointment of Justices of the Supreme Court in that State was

ever valid. Consequently, this matter must be dismissed.

6. The Proclamations issued subsequent to the Australia Act, 1986 (Cth) allegedly

appointing Governors of the State of New South Wales are stated to be pursuant to

Commissions issued under the Sign Manual by QUEEN ELIZABETH THE SECOND,

Queen of Australia and Her other Realms and Territories.

7. The aforesaid Commissions further state, inter alia "Passed under the Royal Sign

Manual

8. The Royal Sign Manual referred to in the aforesaid Commissions is comprised of a

number of enactments of the Parliament of the United Kingdom of Great Britain and

Northern Ireland, (such as the Great Seal (Offices) Act 1874, the Crown Office Act 1877, theGreat Seal Act 1884 and the Clerk of the Crown in Chancery Act (1874)) empowering theQueen referred to in Section 2 of the Commonwealth of Australia Constitution Act 1900(UK), to sign.

9. The United Kingdom Acts creating and governing the use of the Royal Sign Manual were

not adopted as Australian law under the Statute of Westminster Adoption Act, 1942 (Cth).

10. Authority does not exist in any enactment creating the Royal Sign Manual for the Queen

of Australia - as a separate Monarch from the Queen of the United Kingdom of Great

Britain and Ireland or the Queen of the United Kingdom of Great Britain and Northern

Ireland - to sign a Commission under the Royal Sign Manual appointing a Governor for theState of New South Wales in the manner which the aforesaid Commissions purport to be

signed. The Foreign and Commonwealth Office in their reply to a query form Mr. W.

Boulton, dated 11 June 2003, confirmed this point.

See Annexure C.


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11. Authority does not exist to use the Royal Sign Manual for the appointment of a

Governor for the aforesaid State under the aforesaid Commission. No such executive

authority has been conferred on the Queen of Australia to appoint such a Governor either by

the law of the Commonwealth of Australia or that of the State of New South Wales.

Moreover, no such executive authority has been conferred on the Queen of Australia to

appoint such a Governor by any legislation of the Parliament of the United Kingdom ofGreat Britain and Northern Ireland. An examination of the records of the Privy Council of

the aforesaid kingdom likewise reveals no authorisation by that council for Queen Elizabeth

II to make such an appointment.

12. The Defendant further submits that Royal Assent given by the Governor of the State of

New South Wales to the appointment of Justices of the Supreme Court of that State is

defective and cannot be rectified. Consequently, the ability of Justices of the aforesaid court

to hear and determine matters of law is voided and any decisions so made by such Justices

can have no effect in law.

PARTICULARS

13. The right to use the Royal Sign Manual is not one of the Royal Prerogatives which exist

as inherited rights of the Monarch and therefore cannot be used without the consent and

approval of the government of the United Kingdom of Great Britain and Northern Ireland -

as prescribed by United Kingdom law, see paragraphs 8 and 11 above. As such, the

appointment of Orders, Warrants and Commissions as identified in the Sign Manual are

subject to Orders in Council from the Privy Council granting the monarch the authority to

sign such instruments as Commissions and Letters Patents. See Halsburys Laws ofEngland, Paras. 907 and 920,See Annexure B.

14. The courts of New South Wales have no jurisdiction over the laws that control the use of

the Royal Sign Manual. These are laws of the United Kingdom of Great Britain and

Northern Ireland alone and no jurisdictional rights over these laws have been delegated to

the parliaments or courts of the Colonies, Dominions, States or Commonwealth of Australia.

This has been further confirmed by the Foreign and Commonwealth Office in their reply to

a query form Mr. W. Boulton, dated 11 June 2003, where they state:

The Queen, in her role as Head of State of the United Kingdom and as such advised

by British ministers, has no executive power exercisable within the Commonwealth

of Australia. The monarchs role as Queen of Australia is separate from her role inrelation to the United Kingdom and in its fulfilment she is advised by Australian

ministers.

See Annexure C.

15. Neither the Commonwealth of Australia Constitution Act 1900 (UK) nor any of theconstitutions of the States or Territories of the previously referred to Commonwealth

contain any inherent or implied authority over Acts of the Imperial Parliament such as the

Crown Office Act 1877, the Great Seal Act 1884 the Great Seal (Offices) Act 1874 asamended and the Clerk of the Chancery Act 1844.

16. The Commonwealth Attorney Generals Department has admitted in a response dated 7th

May 2001 to a Freedom of Information Application dated 11th April 2001, that no

documents exist from the United Kingdom government or parliament conferring on the

Queen of Australia - as a separate national monarch - the right to use the Royal Sign

Manual.


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See Annexure A.

17. No Commonwealth or New South Wales legislation exists in relation to the conferring

or use of the Royal Sign Manual within the Commonwealth of Australia or the aforesaid

State.

18. The use of the Royal Sign Manual is therefore a clear and unequivocal statement that theauthority being applied is that of the Parliament of the United Kingdom of Great Britain and

Northern Ireland as delegated to the monarch of the United Kingdom at the time.

19. In the context of the United Kingdom of Great Britain and Northern Ireland, the

Westminster Parliament of the United Kingdom holds sovereignty and the monarch is the

symbol of that national sovereignty. The use of the Great Sign Manual by the Monarch is at

the discretion of the Privy Council and this is signified by the Council issuing an Order in

Council to the Monarch authorising her to use the Great Sign Manual to give effect to the

wishes of the Parliament. This is the procedure required by the United Kingdom parliament

in the issuing of Letters Patents for, conferring titles, offices and authority to perform

particular functionsSee Annexure B, Para. 920.Letters Patent and other documents under the Great Seal.

20. In the alternative, where the Plaintiffs claim that the authority of the Governors of the

State of New South Wales was valid and consequently that appointments of Justices of the

Supreme Court of New South Waleswere validly and lawfully made, then upon productionof the Order in Council from the Privy Council authorising the Queen of Australia to give

due authority under the Great Sign Manual to the aforesaid Governors I will obey all New

South Wales laws and consent to any decisions of the aforesaid court. Until such time as the

Plaintiffs can verify the validity of the appointments of the previously mentioned Governors

at the time of Royal Assent being given to such judicial appointments this matter must be

adjourned and stayed pending the production of the said Orders in Council to this court.

David Claude Fitzgibbon-v-Her Majestys Attorney General of the United Kingdom of

Great Britain and Northern Ireland

21. I advise and ask this Court to note that the matter of David Claude

Fitzgibbon-v-Her Majestys Attorney General of the United Kingdom of Great

Britain and Northern Irelandwas heard before His Honour Justice Lightman of the

Chancery Division, High Court of Justice, Royal Courts of Justice on Monday, 31 st

of January and Tuesday, 1st of February 2005. The Judgement in that aforesaid

matter was delivered on Wednesday, 9

th

of February 2005. This judgement isavailable from the Internet.

22. In paragraph 16 of his judgement, Justice Lightman of the High Court of

Justice, Chancery Division stated, It is for the Australian courts to apply Australian

law to

determine the capacity in which HM the Queen is acting, the appropriate seal and

the consequences (if any) if the wrong seal is used. However, as Mr. Fitzgibbons

litigation deals inter alia with matters contained in this my Notice of Grounds of

Defence the better course would be to await the decision of the European Court of

Human Rights which has advised that no defence to Mr. Fitzgibbons claim hasbeen filed and that the time allocated for such a filing by the government of the

United Kingdom of Great Britain and Northern Ireland has expired.


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23. I have received advice that as the decision of Lord Justice Waller and Sir

William Aldous of the Court of Appeal Civil Divisionon Thursday, 21st April, last

effectively wipes out the protections afforded by the European Convention on Human Rights for the approximately fourteen millions of British citizens livingoutside of the United Kingdom it is felt that Mr. Fitzgibbons litigation will be

treated with an unexpected urgency.

24. Although I appreciate that this court is not subject to the jurisdiction of the

European Court of Human Rights, nonetheless the decision in Mr. Fitzgibbons case

will affect all of the parties involved in my case including the presiding Judicial

Officer. These consequences arise in part - from the provisions of the Human

Rights Act, 1998 (U.K.).

25. I submit that it would be prudent that no decision be handed down in my case

until such time as a decision in the matter of David Claude Fitzgibbon-v-Her

Majestys Attorney General of the United Kingdom of Great Britain and NorthernIreland has been delivered by both the European Court of Human Rights and the

European Court of Justice.

26. I appreciate that the Plaintiffs will oppose such a delay and that this court

may well dismiss my request. This opposition will be in spite of both the Courts and

Plaintiffs limited understanding of the grounds of the Fitzgibbon case and will be

assisted by the fact that neither have any knowledge of the documentary evidence to

be relied upon or discussions that have taken place between the parties to those

proceedings. Despite my providing information that will allow both this Court and

the Plaintiffs to easily make their own inquiries as to the validity of the issues I have

raised it is expected that no investigation has been or will be undertaken.

Nonetheless, I have merely sought to place the facts upon the record and the

consequences that have been outlined to me by numerous people involved with Mr.Fitzgibbons European litigation. I am also aware that the Chief Justice of the

Supreme Court of New South Wales has been served with documentation relating to

Mr. Fitzgibbons claim.

27. I am aware of recent advice that has been issued by the Crown Solicitors

Office of New South Wales, however for the benefit of both the Court and the

Plaintiffs in my matter I herewith provide the following internet web references

which provide some information pertinent to the matter of David Claude

Fitzgibbon-v-Her Majestys Attorney General of the United Kingdom of Great

Britain and Northern Irelandand ipso facto, this my Defence.

www.basicfraud.com

http://www.members.westnet.com.au/unrealneil/index_files/Page389.htm

http://www.google.com/search?sourceid=navclient&ie=UTF-

8&rls=RNWE,RNWE:2005-05,RNWE:en&q=david+fitzgibbon+lightman

http://lists.enzyme.org.nz/pipermail/anarchynz_lists.enzyme.org.nz/2004-

December/000012.htmlhttp://www.worldlii.org/ew/cases/EWHC/Ch/2005/114.html

http://www.hiddenmysteries.org/themagazine/vol14/articles/timebomb.shtml
http://www.basicfraud.com/http://www.members.westnet.com.au/unrealneil/index_files/Page389.htmhttp://www.google.com/search?sourceid=navclient&ie=UTF-%208&rls=RNWE,RNWE:2005-05,RNWE:en&q=david+fitzgibbon+lightmanhttp://www.google.com/search?sourceid=navclient&ie=UTF-%208&rls=RNWE,RNWE:2005-05,RNWE:en&q=david+fitzgibbon+lightmanhttp://lists.enzyme.org.nz/pipermail/anarchynz_lists.enzyme.org.nz/2004-December/000012.htmlhttp://lists.enzyme.org.nz/pipermail/anarchynz_lists.enzyme.org.nz/2004-December/000012.htmlhttp://www.worldlii.org/ew/cases/EWHC/Ch/2005/114.htmlhttp://www.hiddenmysteries.org/themagazine/vol14/articles/timebomb.shtmlhttp://www.basicfraud.com/http://www.members.westnet.com.au/unrealneil/index_files/Page389.htmhttp://www.google.com/search?sourceid=navclient&ie=UTF-%208&rls=RNWE,RNWE:2005-05,RNWE:en&q=david+fitzgibbon+lightmanhttp://www.google.com/search?sourceid=navclient&ie=UTF-%208&rls=RNWE,RNWE:2005-05,RNWE:en&q=david+fitzgibbon+lightmanhttp://lists.enzyme.org.nz/pipermail/anarchynz_lists.enzyme.org.nz/2004-December/000012.htmlhttp://lists.enzyme.org.nz/pipermail/anarchynz_lists.enzyme.org.nz/2004-December/000012.htmlhttp://www.worldlii.org/ew/cases/EWHC/Ch/2005/114.htmlhttp://www.hiddenmysteries.org/themagazine/vol14/articles/timebomb.shtml


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28. Alternatively, should this Court wish to proceed I have received advice that I

will be able to seek compensatory damages in a British Court under the provisions of

the Human Rights Act, 1998 (U.K.) once the judgement has been given by the

European Court of Human Rights and the European Court of Justice. I have also

been informed that British solicitors and senior legal counsels will pursue such

claims with no fees payable until successful completion of such litigation.

29. A copy of Statements of Claim bearing plaint number 10503/06, together with a

copy of this my Defence have been forwarded by way of airmail to Elizabeth II,

Queen of the United Kingdom of Great Britain and Northern Ireland advising her

that as these actions are being taken in her name and before a court that displays her

Royal Coat of Arms, once a decision is given in Mr. Fitzgibbons case I will be

taking legal action for compensation against her personally and/or her government.

Non-Constitutional Grounds of Defence

30. FILL THIS SECTION IN WITH ANY OTHER LEGAL ARGUMENTS OF

YOUR OWN THAT YOU MAY HAVE.

..

YOUR NAME

DATE

Attachments X pages

SIGNATURE

SignatureYOUR SIGNATURE

Name YOUR NAME

Date XX / XX /200X


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**AFFIDAVIT VERIFYING

Name YOUR NAMEAddress YOUR ADDRESSOccupation XXXXXXXXXOn [date], I **say on oath/**affirm:

1. I am the [first] defendant.2. I believe that the allegations of fact contained in this defence are true.

3. I believe that the allegations of fact that are denied in this defence are untrue.

4. After reasonable inquiry, I do not know whether or not the allegations of fact that are

not admitted in this defence are true.

**SWORN/**AFFIRMED at

Signature of deponentYOUR SIGNATURE

Signature of witness

Name of witness

Capacity of witness

**Address of witness

[On separate page]

HOW TO RESPOND

You can respond by:

Filing a reply if the proceedings are in the Supreme Court or the District Court

Seeking leave to file a reply if the proceedings are in a Local Court.

You can get further information about the forms that need to be filed to respond from:

The registry

A legal practitioner

LawAccess NSW on 1300 888 529 or at www.lawaccess.nsw.gov.au.


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REGISTRY ADDRESS

Street address Law Courts Building, Queens Square

Level 5, 184 Phillip Street, Sydney 2000Postal address GPO Box 3, Sydney 2001

Telephone (02) 9230 8111

[On separate page]

PARTY DETAILS

Parties to the proceedings

PLAINTIFF[S] DEFENDANT

THEIR NAME YOUR NAME

FURTHER INFORMATION ABOUT DEFENDANT[S] FILING THE DEFENCE


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[First] defendant

Family name OR company name YOUR SURNAME OR COMPANY NAMEGiven names OR ACN CHRISTIAN NAME OR ACNAddress YOUR ADDRESS**Telephone YOUR NUMBER**Fax YOUR FAX (if applicable)

[On separate page]

HOW TO COMPLETE THIS FORM

THESE INSTRUCTIONS ARE NOT TO BE FILEDDo not include any information about the proceedings on this part of the form. In theseinstructions, UCPR means the Uniform Civil Procedure Rules 2005.

** OPTIONAL INFORMATIONSome information in this form may not be relevant to your proceedings. An item markedwith ** may be omitted if it is not relevant to your proceedings.

COURT DETAILS / TITLE OF PROCEEDINGS

Copy this information from the originating process.

FILING DETAILS / ADDRESS FOR SERVICEInclude details about:

the defendant for whom the form is to be filed (eg. first defendant)


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the defendants address for service. This must generally be within New South Wales(see UCPR 4.5).

If the defendant is represented by a solicitor:

the address for service must be the office of the solicitor or the solicitors agent

the name of the firm, its ACN or ABN number, telephone number and street addressmust be included

a DX address and/or email address can be included if service will be accepted by DX orby email (see UCPR 10.5(2))

the solicitors reference number and court user number may be included.

If the defendant is not represented, information must be included about the defendantsbusiness or residential telephone number, fax number and email address, if any.

PLEADING AND PARTICULARSUse numbered paragraphs. List the facts and assertions on which you are relying. Forfurther information, see UPCR Part 14.

SIGNATUREThis form must be signed by:

The solicitor for the defendant, a solicitor belonging to the same firm or organisation asthe defendants solicitor, a solicitor acting as agent for the defendants solicitor, or asolicitor belonging to the same firm or organisation as the defendants solicitors agent.

If the defendant does not have a solicitor, an authorised person, or the defendant.

Include information about the capacity in which the person is signing the form.

AFFIDAVIT VERIFYINGYou must verify this form by affidavit if you are filing it in the Supreme Court or DistrictCourt, unless you are defending a claim for damages for:

Defamation

Malicious prosecution

False imprisonment

Trespass to the person

Death

Personal injury.

If you are verifying the form on behalf of the defendant, replace paragraph 1 with the

following information:

1. I am [give details of the capacity of the person making the affidavit and thefacts that qualify the person to make the affidavit] and am authorised toverify this defence on [his/her/its] behalf.

For example, if the defendant is a corporation, insert the words I am an[officer e.g. director] of [name of corporation] and am authorised to verify thisdefence on its behalf.

If a legal practitioner or commissioner for affidavits witnesses the affidavit, include theaddress of the legal practitioner or commissioner for affidavits. (see UCPR 35.7A).

PARTY DETAILSThis information must be on a separate page. List each plaintiff and each defendant.

FURTHER INFORMATION ABOUT DEFENDANT[S] FILING THE DEFENCE


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You must provide further information unless you have filed an appearance in theproceedings. If the defendant is not represented, information must be included about thedefendants business or residential telephone number, fax number and email address, ifany.

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