Eretzyisraeldovid v The Peoples Republic of China (China Mobile)

[2021] QCA 215

[2021] QCA 215

COURT OF APPEAL

FRASER JA

Appeal No 11077 of 2021
SC No 3537 of 2021

MASHIACHIMMANUEL MIKHAEL  Applicant
ERETZYISRAELDOVID

v

THE PEOPLES REPUBLIC OF CHINA  First Respondent
(CHINA MOBILE)

APPLE  Second Respondent

SAMSUNG  Third Respondent

GOOGLE  Fourth Respondent

TELSTRA  Fifth Respondent

RESERVE BANK OF AUSTRALIA  Sixth Respondent

IP AUSTRALIA  Seventh Respondent

JUSTICE JACKSON  Eighth Respondent

BRISBANE

WEDNESDAY, 6 OCTOBER 2021

FRASER JA: In a case in which the registrar considers, an originating process appears to be an abuse of the process of the Court, or frivolous or vexatious, rule 15.1 of the Uniform Civil Procedure Rules 1999 empowers the registrar to refer the originating process to the court before issuing it.

Rule 15.2 provides that the court may direct the registrar to issue the originating process, or to refuse to issue the origination process without leave of the court.

Upon a referral by the registrar, under r 15, a Judge of the Trial Division directed the registrar to refuse the applicant leave to issue his “application for review” without the leave of the Court.

That proposed application is dated 9 August 2021 and names as defendants the respondents to a proposed appeal. It refers to a form purportedly under s 46 of the Judicial Review Act 1991 (Qld) and an affidavit “of deponent in support of applicants, plaintiffs, Native Title, application for the Federal Court for several occupations, intellectual property.” It goes on to describe 10 annexures. The first annexure is described as “copy of my family’s confirmation of Aboriginality.” The other annexures refer to such matters as the Royal Instructions to Captain Cook and Governor Phillip, a copy of “intellectual property, title, and proposal” and various apparently irrelevant documents. There follows a claim in a form bearing some resemblance to a claim for native title to land, but alleging instead “individual right to Native Title” in an application for a patent and a claim of copyright in intellectual property.

Notwithstanding that attempt to summarise the proposed application, it is substantially incoherent and it defies legal analysis.  There is no coherent description of any factual basis for a patent or copyright, or of any relationship between those concepts and a claim for native title.  Furthermore, the document describes itself as a Native Title claim, which the Supreme Court does not have the jurisdiction to adjudicate upon, and a claim for recognition of “Native Title rights to sovereignty,” which the Supreme Court has no jurisdiction to grant.

The applicant, who represented himself, made oral submissions and also handed up a document describing his legal argument.  It is sufficient to quote what appears to be the fundamental basis of the applicant’s argument set out in that document:

“I propose to the Supreme Court of Appeal my pre-constitutional argument that’s fundamental to the Australian constitution inception, and that also concurrently vested in the oath of office, including one’s a just – a Justice’s take to be a Judge in higher branches of law or parliament in one’s administration resulting in acts of parliament, and carrying out legislation.  And it is all regarding the generations of the British Crown passing down acts of parliament that owe it existence to the Crown vested in King George III, so too with that of Queen Victoria and others past on powers of Governor-General, and the administration of oath to Australia’s highest appointment of office.”

As will be apparent, the arguments advanced to the Court supply no support for any coherent claim against any of the defendants.

Justice Boddice refused an application by the applicant for leave to issue his proposed application in the Trial Division.  The applicant sought to appeal against that order.  On 9 September 2021, the President gave a direction to the registrar pursuant to r 15 to refuse to issue the applicant’s proposed notice of appeal dated 27 August 2021 without leave of the Court.  By an originating application in the Court of Appeal filed on 23 September 2021, the applicant now seeks leave to commence proceedings in accordance with the direction given on 9 September 2021.

The proposed notice of appeal states as the only ground of appeal that:

“The Honourable Justice claimed the matter nonsensical, which I object to.”

That statement conveys that no legal sense could be made of the document as an originating application seeking relief of a kind which is capable of being granted in the Supreme Court.  What I have said about the document sufficiently explains why I agree with that conclusion.  There is no arguable error in the decision by Justice Boddice to refuse leave.

The proposed notice of appeal is itself vexatious and an abuse of process for the same reasons that the proposed application for review was vexatious and an abuse of process.

In deciding what order to make, I considered an order analogous with the orders described in r 389A of the Uniform Civil Procedure Rules, that would operate as a blanket instruction to the registry to refuse to accept for filing any similar document by the applicant without the leave of a Judge.  However, at this stage, it seems to me sufficient to make an order refusing leave to file the proposed notice of appeal.  Hopefully, the applicant will understand that the policy of the law that there must an end of litigation should be accepted by him.  If not, there will be occasion in the future for a Judge to consider whether any further order should be made.

The order is that the application for leave is refused.