Newberry v Jensen

[2025] NSWSC 1002

Supreme Court

New South Wales

Medium Neutral Citation:

Newberry v Jensen [2025] NSWSC 1002

Hearing dates:

1 September 2025

Date of orders:

1 September 2025

Decision date:

01 September 2025

Jurisdiction:

Common Law

Before:

N Adams J

Decision:

1. Notice of Motion is dismissed.

2. The applicant Steen Jensen is to pay the costs of the motion on the ordinary basis.

Catchwords:

CIVIL PROCEDURE — Originating process — notice of motion to set aside — sale of land by local council for non-payment of rates — proceedings for possession of land — proper service — final orders already made — notice of motion dismissed

CIVIL PROCEDURE — Default judgment — setting aside — applicant actively chose not to participate in the proceedings — no bona fide defence on merits

CONSTITUTIONAL LAW — Notice to Attorneys General — Judiciary Act 1903 (Cth) s 78B — whether cause involves a matter arising under the Constitution or concerning its interpretation — Pseudolaw

Legislation Cited:

Civil and Administrative Tribunal Act 2013 (NSW), Sch 4, cl 6

Judiciary Act 1903 (Cth), s 78B

Local Government Act 1993 (NSW), s 713

Residential Tenancies Act2010 (NSW)

Uniform Civil Procedure Rules 2005 (NSW), r 6.8

Cases Cited:

Amrit Lal Narain v Parnell (1986) 9 FCR 479; 20 A Crim R 417

Dai v Zhu [2013] NSWCA 412

Danielsen v Onesteel Manufacturing Pty Ltd (2009) 224 FLR 319; [2009] SASC 56

Fejo v Northern Territory (1998) 195 CLR 96; [1998] HCA 58

Category:

Principal judgment

Parties:

Steen Jensen (Applicant/Defendant) (Self represented)
John Francis Newberry (Respondent/Plaintiff)
Elise Newberry (Respondent/Plaintiff)

Representation:

Counsel:
Mr D Currie (Respondents)

Solicitors:
Jennings & Kneipp Lawyers (Respondents)

File Number(s):

2024/00365604

Publication restriction:

Nil.

JUDGMENT (REVISED FROM EX TEMPORE)

1. On 24 May 2024, Coffs Harbour City Council (“the Council”) sold the premises at 43 Pullen Street, Woolgoolga NSW (Lot 91 in Deposited Plan 1100962) (“the property”) at a public auction pursuant to s 713 of the Local Government Act 1993 (NSW). That section provides for the sale of land for unpaid rates and charges.

2. At the date of the auction, Mr Steen Jensen and Ms Jillian Frances Pearce were the registered proprietors of the property: Mr Jensen owned 97% of the property and Ms Pearce owned 3% as tenants in common. The successful bidders at the auction were John Newberry and Elise Newberry. The property was not sold with vacant possession.

3. Mr Jensen refused to leave the property and the Newberrys successfully brought proceedings in this Court for possession. Mr Steen left the property on 16 June 2025 when Sheriff officers attended the property.

4. On 10 July 2025, Mr Jensen filed a Notice of Motion in the possession proceedings, despite the fact that he had previously played no part in them. Some of the orders sought were difficult to comprehend. I have re-worded them to make them comprehensible, and it seems to me that the motion can be summarised as follows:

1. Mr Jensen moves to have the originating process be set aside.

2. Mr Jensen alleges that the originating process was not properly served, and he challenges the jurisdiction of the Court.

3. Mr Jensen wants his property back “based on Constitutional law and High Court decisions”. He made reference to Fejo v Northern Territory (1998) 195 CLR 96; [1998] HCA 58 (“Fejo v NT”).

4. Mr Jensen seeks compensation for damages in relation to his personal property which was left outside by the Newberrys at some stage. He will specify the amount when such estimate can take place.

5. Mr Jensen also seeks compensation for stress and the fact that he is now homeless. He also seeks compensation for the belongings he had to leave behind.

6. Mr Jensen seeks compensation in the amount of $15 million.

5. The motion was listed for hearing before me today. John Newberry and Elise Newberry, the respondents on the motion, seek that the motion be dismissed and the applicant pays their costs. Mr Currie of counsel appeared for them. Mr Jensen appeared for himself.

6. It should be noted at the outset that although Mr Jensen has named Jillian Frances Pearce as the second applicant on the motion, she did not appear today nor is there any evidence before the Court that she even knows about this motion. Although she was initially joined as the second defendant to the original proceedings, proceedings against her were discontinued prior to default judgment being entered against Mr Jensen on 2 April 2025.

The hearing of the motion

7. At the hearing of the motion today, there was no appearance by Ms Pearce, and I ordered that she be removed as an applicant on the motion.

8. Mr Jensen indicated that he had prepared the Notice of Motion in a rush and wanted to clarify that he also sought orders that the matter be referred to the High Court and that he was raising constitutional issues.

9. The applicant relied on his affidavit sworn on 28 June 2024. Although much of that affidavit was inadmissible Mr Currie accepted that it could serve as, in effect, Mr Jensen’s written submissions.

10. The respondents relied on the following affidavits:

1. Affidavits of Elsie Newberry affirmed on 26 February 2025 and 7 August 2025;

2. Affidavits of John Newberry sworn on 4 November 2024, 6 March 2025, and 17 March 2025;

3. Affidavits of Blake Hammond affirmed on 11 November 2024, 23 January 2025, 1 March 2025, and 12 March 2025;

4. Affidavits of Kerrie Swain affirmed on 7 March 2025 and 7 August 2025; and

5. Affidavit of Mark Van Ryswyck affirmed on 26 February 2025.

11. In addition, the Certificate of Title as at 1 September 2006 and a title search dated 26 June 2025 were also contained in the court book along with all the relevant pleadings and court documents.

12. I have taken the following history from those affidavits and the court documents on the file.

Background

13. The respondents were the successful bidders for the property at public auction on 24 May 2024. They entered into a contract of sale that day with the Council. The purchase price was $555,000. In that contract, clause 49 of the special conditions provided that the vendor was not providing the property with vacant possession. The Newberrys were informed that the previous owners were present at the auction, and it seems that Mr Jensen and another woman who had been living at the property, Georgina Clare, were, in fact, present at the auction.

14. On 6 June 2024, the respondents sent a request to vacate the property to Mr Jensen (and Ms Pearce) through their solicitor, Kerri Swain.

15. On 16 June 2024, Mr Jensen sent an email from his email address [REDACTED] to Ms Swain advising that “Legal documents in writing on its way. By email and post. Enjoy!” He sent her a further email from that email address on 17 June 2024 advising that “These documents will also be signed and sent with registered post to your office”.

16. A letter dated “Date known as ‘17 June 2024’” sent “To the living woman known as, ‘Kerri Swain’” from “the living man, ‘Steen’ of the family ‘Jensen’” was subsequently received by Ms Swain. It is not necessary to summarise that letter. It is sufficient to note that it contained much of what has become known as ‘Pseudolaw’. Some of the same submissions in that email were repeated by Mr Jensen today and I shall return to them in these reasons. In his email, Mr Jensen clearly rejected any proposition that the respondents were the owners of the property. He continued to remain on the property.

17. On 24 June 2024, the settlement of the sale of the property took place. The respondents became the registered proprietors of the land as joint tenants. From that date, Mr Jensen remained in occupation of the property. The respondents were required to pay council rates, water rates, and insurance costs in relation to the property from the date of settlement despite not having possession of the property.

18. On 1 July 2024, Ms Swain sent a further letter to Mr Jensen and Ms Pearce requesting they vacate the property. There was no response to that letter and Mr Jensen remained at the property.

19. On 21 August 2024, the respondents commenced proceedings in the NSW Civil and Administrative Tribunal (“NCAT”) to evict Mr Jensen from the property.

20. On 19 September 2024, NCAT ordered that the matter be transferred to this Court pursuant to Sch 4, cl 6 of the Civil and Administrative Tribunal Act 2013 (NSW). NCAT had no jurisdiction to make possession orders in favour of the respondents under the Residential Tenancies Act2010 (NSW) as there was no residential tenancy agreement in existence.

21. On 3 October 2024, Mr Jensen was sent a Notice of Listing in this Court for directions before the Registrar on 15 October 2024.

22. The court file notes that on 14 October 2024 Mr Jensen sent an email to the Supreme Court Enquiries informing them that he had only received that Notice of Listing on 10 October 2024 and he needed more time to, inter alia, decide whether to consent to the “invitation” to attend court.

23. On 15 October 2024, there was no appearance by Mr Jensen before the Registrar. Timetable orders were made for the filing and serving of the Statement of Claim by 5 November 2024. The plaintiff was to notify the defendant of the adjournment when serving the Statement of Claim.

24. On 4 November 2024, the respondents filed a Statement of Claim in this Court naming Mr Jensen and Ms Pearce as the first and second defendants. They sought orders for possession of the property and leave to issue a writ for possession of land.

25. On 5 November 2024, process server Blake Hammond attended the property and served the Statement of Claim on Mr Jensen. He alleges in his affidavit that Mr Jensen initially agreed that he was Steen Jensen but when Mr Hammond told him who he was he replied that Mr Jensen had stepped out and was not there at the moment. Mr Hammond alleged that when he attempted to serve the papers, Mr Jensen filmed him and yelled at him to get off the property. When Mr Jensen refused to accept the paperwork, Mr Hammond left the documents in his presence and again told him what they were. He also told Mr Jensen that the next listing date was on 5 December 2024. By oversight, he did not serve the Form 93 as required at that time.

26. Mr Jensen accepted at the hearing that he was served that day but alleged that Mr Hammond trespassed in doing so as it was still Mr Jensen’s property.

27. On 13 November 2024, the respondents’ solicitor emailed Mr Jensen annexing the same documents and advising him that the proceedings were listed for mention on 5 December 2024. An email was received from [email protected] confirming that the email had been delivered.

28. Mrs Newberry deposed that she commenced the proceedings against the two persons named on the Certificate of Title because she had seen a woman residing at the property with Mr Jensen and had presumed that she was Ms Pearce.

29. On 5 December 2024, there was no appearance by the defendant before the Registrar. The matter was adjourned for further directions on 13 February 2025 pending proper service on the defendant of the Form 93.

30. Mr Jensen’s explanation in Court today for not attending that hearing was that he did not accept that the Newberrys owned the land and it seems to me also another explanation was that he did not consent to the Court’s jurisdiction.

31. On 11 December 2024, Mr Hammond returned to the property and served Mr Jensen with another copy of the Statement of Claim as well as an affidavit of Mr Newberry, the Form 93 and a covering letter. Mr Hammond alleges that on this occasion Mr Jensen became aggressive, filmed Mr Hammond and swore at him demanding that he leave the property. Again, Mr Jensen refused to accept the paperwork, and it was placed down in his presence. Mr Jensen was also told what the documents were before Mr Hammond left.

32. In his affidavit, Mr Jensen states (at [6]) that he “got served a second time, the same papers as the first attempt with added 2 pages”. Further, on 12 December 2024, the respondents’ solicitor emailed these documents to Mr Jensen and confirmed that the next court date was on 13 February 2024. Mr Jensen clearly received that email as he replied to it by stating, “For how long is you and your kind of people. (sic) Going to trespassing me, my property and my friends?”

33. There does not seem to be any dispute that Mr Jensen had been served with everything as at that date.

34. On 13 December 2024, Mr Hammond attempted to locate and serve Ms Pearce. He spoke with a person named Georgina Clare who admitted knowing Ms Pearce but told him:

“We used to live together. I left before Jillian because we had a falling out, Jillian, Steen and I. That was before the auction. Jillian left a few months ago.”

35. Sometime after this, it became apparent to the Newberrys that the woman they had seen at the property and believed to be Ms Pearce was in fact Georgina Clare who had also been residing at the property but had moved out. This was confirmed by Mark Van Ryswyk who resides at a neighbouring property. In his affidavit, he states that from when he moved to his address in April 2022 he observed that Steen Jensen and Georgina Clare, a woman in her late 20s, lived at the property next door. He has never seen any other man or woman living there. He attended the auction of the property and saw both Mr Jensen and Ms Clare there. After this time, he would only see Ms Clare at the property about once or twice a month, and she appeared to now live in Woolgoolga.

36. Similarly, Mr Hammond has deposed that he had never seen any person at the property other than Mr Jensen during his multiple visits. His evidence is that he appeared to be the only person living at the property and he was unable to ever locate or serve Ms Pearce.

37. On 13 February 2025, there was again no appearance by the defendant before the Registrar. The Registrar noted that the plaintiffs intended to serve a Notice of Motion for default judgment to be returnable on the next directions day on 10 March 2025 and adjourned the proceedings until that date.

38. By notice of motion filed on 27 February 2025, the respondents sought leave to, inter alia, discontinue the proceedings against Ms Pearce and also sought default judgment for possession against Mr Jensen only.

39. On 11 March 2025, Mr Hammond again attended the property and placed the Form 5 Notice to Occupier at the front door of the dwelling. He annexed a photograph of that to his affidavit. He did not see Mr Jensen at the property that day.

40. At the hearing, Mr Jensen denied that he ever saw that notice.

41. On 10 March 2025, there was again no appearance by Mr Jensen before the Registrar. The Registrar noted that a Notice of Motion had been filed on 27 February 2025. The proceedings were adjourned to 1 April for default judgment and leave was granted to the plaintiffs to discontinue as against the second defendant, Ms Pearce.

42. On 1 April 2025, there was again no appearance by Mr Jensen and the Registrar referred the matter to chambers for default judgment.

43. On 2 April 2025, judgment for possession and costs was given by the Principal Registrar. The only named defendant was Steen Jensen.

44. At [6] of his affidavit, Mr Jensen states, without providing any date, that “I messaged the court within the required time frame and asked if I needed to send in the same response again. They responded that the matter was closed”. It is unclear what is meant by his “same response”. In any event, I do not consider it necessary for me to conclude when that message was sent. The fact remains that he did not appear on any of the occasions I have set out above and nor did he ever file anything in the proceedings.

45. By Notice of Motion filed 11 April 2025, the Newberrys sought leave for the issue of a writ of possession.

46. The writ of possession was issued on 14 April 2025.

47. This writ of possession was executed by the Sherriff’s Office on 16 June 2025, and Mr Jensen was evicted that day.

48. Mr Jensen collected some of his belongings on 2 July 2025. The respondents’ solicitor emailed him on 3 July 2025 advising him that he had until 16 July to collect the rest of his possessions. From 19 July 2025, the respondents disposed of the items that were not collected by Mr Jensen. Mrs Newberry has provided a detailed account in her most recent affidavit as to how she rented a skip to store Mr Jensen’s belongings and how they were either collected or disposed of. It is not necessary to set out that in any detail for the purposes of considering this motion.

Mr Jensen’s submissions

49. Mr Jensen’s submissions fell into three broad areas.

50. First, most of his complaints went to the illegality of the sale by the Council. He argued that the sale to the Newberrys was without his consent, therefore the Newberrys have no legal claim on the property. He submitted that the contract is illegitimate.

51. He relied on Fejo v NT (a native title case) in support of his submission that nobody can take away his property.

52. He challenged the power of the Council to sell the land. He relied on the fact that referendums to include councils in the Constitution had been unsuccessful and therefore there was no authority for the Council to charge rates.

53. His complaint against the Council was twofold. He complained that it did not have the power to sell his land under statute but also, in this particular case, he was not afforded the opportunity to discuss the matter with Council.

54. He relied on s 51(ii) of the Constitution in support of his argument that the Local Govt has no power to impose rates that “discriminate between States or parts of States”.

55. Ancillary to his arguments that he was still the registered proprietor of the property, he submitted that there were “no trespassing” signs on his property so that the process server was trespassing. Further, the Sheriffs also trespassed when they entered the property.

56. Secondly, Mr Jensen complained about a lack of service and/or notice that he was required to leave the property. He deposed that he was not served with the third Statement of Claim (which removed Ms Pearce but was otherwise in the same terms as the previous Statement of Claim). He challenged the authority of the Registrar to enter the orders. He explained that he did not have sufficient identification to open an account with the online registry and did not have access to his laptop. He denied ever being served with a notice to vacate and submitted that the writ was unlawfully executed. He contended that he was never granted the opportunity to present evidence.

57. During exchanges between Mr Jensen and I, he made submissions that at times were internally inconsistent. He complained about a lack of service and ability to put matters before the Court but also conceded that he had been served with everything except for the document that was left at the property on the third occasion.

58. Further, he explained that he did not appear on the occasions prior to that third service because he did not accept the authority of the Court. He submitted that the Supreme Court is a company and therefore has no authority over him; only the High Court. He made an application that I transfer the matter to the High Court and purported to identify a number of constitutional matters.

59. On occasions, Mr Jensen sought to research matters on his telephone during the hearing. When I asked him what he was reading from, he told me it was from “educated people” who “believe in the Australian constitution”. He paused on a number of occasions to research matters. For example, at one stage he relied on s 44 of the Constitution in support of his argument that the Council had no authority over him as he is a permanent resident of Australia but also a citizen of Sweden. When I indicated to him that s 44 only pertained to the eligibility of persons to be members of Parliament or senators, he initially did not accept that, and some time was spent before he ultimately accepted that to be the case.

60. Mr Jensen repeatedly submitted that he did not consent to his property being sold and nor did he consent to these proceedings.

49. At one stage, he inquired of me whether I had sworn allegiance to King Charles III when I was sworn in as a judge. I explained to Mr Jensen that all judges who were sworn into this Court swear such allegiance, although, for my part, I swore allegiance to Queen Elizabeth II and her heirs and successors. Upon hearing that, he did not pursue that objection.

50. Mr Jensen’s complaint about not being served the third time appeared to turn on the fact that he should have been made aware that Ms Pearce was being removed as a defendant. He suggested he wanted to make an appearance on that discrete issue.

51. The third category of submissions were directed at claims that Mr Jensen had an expensive jade collection and other valuable property in his home. He complained that these possessions were either “discarded or piled up” outside the house and he proposes to seek compensatory damages for this damage.

52. As part of this third argument Mr Jensen provided further written submissions. He initially requested that Mr Currie not see them as they described the value of some of his possessions and he did not want the Newberrys to know that in case they sold them. Mr Jensen ultimately accepted that Mr Currie could see those submissions. Most of them were a repeat of matters he had included in his affidavit. The only additional material was a list of some of the property he says was not returned to him and the value he put on some of that property.

The respondents’ submissions

65. Mr Currie of counsel provided helpful written submissions identifying the numerous problems with this application, some of which I will refer to in my consideration.

Consideration

66. Before dealing with the numerous difficulties with Mr Jensen’s motion, I will start by dispensing with the need to issue s 78B notices in this matter.

67. Mr Jensen submitted both that this matter raised constitutional matters and also that I should transfer the proceedings to the High Court as this Court had no authority to deal with this matter.

68. As to the first of these submissions, if I thought that the matter did involve the Constitution or its interpretation, I would have to be satisfied that notice under s 78B of the Judiciary Act 1903 (Cth) had been given to the Attorneys-General of all the States and Territories and the Commonwealth.

69. When pressed, Mr Jensen identified the following two matters referred to in his affidavit.

70. The first constitutional matter was put in these terms:

“The Commonwealth Constitution clearly states that the Constitution is above both houses of parliament and they Must be Obey it. Ref page 676 Quick & Garran. The same page states, the parliament is not supreme, and the very essence of Federation is that, that must be so, the parliament like every one else, subject to the law and must obey it.’

The purported courts, including the ‘Supreme Court NSW’ are registered companies ‘ABN 77 057 165 500’

NSW Sheriffs Office ABN 61558381 181’

Section 51 ss 20 states. Foreign corporations and trading financial corporations formed within the limits of the Commonwealth.’ HCA 11 of 2015 defines trading corporations and that decision is binding on the courts, judges and people of every state.

This decision captures the entities above into this High Court decision and the Fair Work Act 2009, by way of 109 of the Commonwealth Constitution

Act 1900 UK and the Commonwealth Constitution derived from it. There is no Federal Law that allows trading companies to administer law and control land.”

71. I understand this complaint to be that the Supreme Court has no authority to hear this matter as it is a corporation.

72. The second constitutional matter was put in this way:

“Land held of the Crown in Fee Simple may be assured in Fee Simple without licence and without fine and the person taking under the assurance shall hold the land of the Crown in the same manner as the land was held before the assurance took effect.

12 Charles II c 24 -The Tenures Abolition Act 1660 - s 4. 37 Tenure,

All tenures created by the Crown by way of the alienation of an estate in fee simple shall be taken to be in free and common socage without any incident of tenure for the benefit of the Crown.

This Act is Australian Law under Our Constitution and duplicates the Abolition of Tenures Act 1660 in stating we buy (take) and are assured (guaranteed) Our Land free of any debts.

Alienation means to lawfully transfer title to property in Real Property Law. With no incidence of tenure means the Crown has no holding or occupying right over the land. The purported courts only avenue of action is that you or the or both comply with and file a notice under 78B of the Judiciary Act and apply to the High Court under section 40 of that act.

The reason being is you have no control of the people on their land until you prove jurisdiction and authority. As you are aware the Constitution Stands as Supreme Law, and you have several huge issues since Western Australia never put its Lawful State Constitution 1889 in place at Federation. Until that happens, there has never been nor can be a Lawful Federal Parliament.”

73. I understand this complaint to be that the Council does not have the power under the Local Government Act to issue rates and thus had no lawful basis to sell his property.

74. Section 78B only operates when the circumstances which are said to appear to the Court to be constitutional issues are in fact constitutional issues. It does not operate simply because a party asserts those circumstances: Amrit Lal Narain v Parnell (1986) 9 FCR 479 at 489; 20 A Crim R 417. The duty under s 78B is enlivened where it is established, as opposed to simply asserted, that there is a matter arising under the Constitution or involving its interpretation, but the facts relied upon or the cause must “really and substantially involve the interpretation of the Constitution”: see Danielsen v Onesteel Manufacturing Pty Ltd (2009) 224 FLR 319; [2009] SASC 56 at [30].

75. I am not satisfied that either of the issues raised by Mr Jensen sensibly give rise to constitutional issues and I did not adjourn the hearing so that s 78B notices could be issued. Nor do I propose to transfer these proceedings to the High Court as there is no jurisdictional basis to do so. As I explained to Mr Jensen, that would not preclude him seeking special leave to the High Court in the event that he was firstly unsuccessful before me and also unsuccessful before the Court of Appeal.

76. Turning to the specific complaints, the difficulty with Mr Jensen’s application to have the originating process set aside is that final orders were made on 2 April 2025. The proceedings in which he has filed this Notice of Motion were for possession which occurred on 16 June 2025. Mr Jensen was evicted from the property on that date, nearly one year after he ceased to be the legal owner of that property. To the extent that the motion seeks that the originating process be set aside, the time within which it would have been possible for such an order to be made has long passed.

77. In any event, during submissions Mr Jensen accepted that he was aware of the proceedings and chose not to defend them initially because he did not accept the authority of the Court but also because he believed that he was the rightful owner of the property.

78. As for his complaints about lack of service, Mr Jensen admits that he was served with the first and second Statements of Claim but not the third, which was served on 11 March 2025. Rule 6.8 of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) provides that:

(1) If, when proceedings for possession of land are commenced, a person (the occupier) not joined as a defendant is in occupation of the whole or any part of the land, the plaintiff—

(a) must state in the originating process that the plaintiff does not seek to disturb the occupier’s occupation of the land, or

(b) must serve the originating process on the occupier together with a notice to the effect that—

(i) the occupier may apply to the court for an order that the occupier be added as a defendant, and

(ii) if the occupier does not so apply within 10 days after service, the occupier may be evicted under a judgment entered in the occupier’s absence.

(2) For the purposes of subrule (1), documents may be served on the occupier personally or by leaving the documents on the land concerned addressed to the occupier by name or addressed simply “to the occupier”.

79. Mr Hammond, the process server, has deposed that pursuant to r 6.8 of the UCPR, a Form 5 Notice to Occupier was placed on the front door of the property on 11 March 2025. I have seen the photos of that notice. Mr Jensen’s submission appears to be that it was not until the Newberrys sought to remove Ms Pearce as a defendant that he decided that he wanted to make submissions. The reasons for this late decision to become involved were not made clear and were inconsistent with his assertion that he did not accept the authority of the Court.

80. The originating process was served in accordance with the rules, including by personal service and emails. Mr Jensen responded to one of those emails after the proceedings were commenced. There can be no doubt that the Newberrys were asserting that they owned the property and that he was required to leave.

81. As for the failure to serve Ms Pearce, she had already left the property by the time of the auction and had been wrongly joined in any event. She is not a party to the motion and any question of service on her is otherwise not relevant.

82. As for Mr Jensen’s assertion that he was told by somebody at the Court that the proceedings were over while he still remained in the property, it is difficult to accept that assertion. Ultimately, nothing turns on it given his attitude that he did not accept that the Newberrys owned the property, and his assertion that the Court only has authority over him if he consented to it.

83. The judgment granting the Newberrys possession of the property was a default judgment given that Mr Jensen, on his own admission in this Court, chose not to participate in those proceedings. Rule 36.16(2) of the UCPR provides the Court with a discretionary power to set aside or vary a default judgment. In such cases, there not only needs to be an explanation as to why there was no appearance by the party who had default judgment entered against them, but the Court must also consider whether it is in the interests of justice to provide the applicant with an opportunity to defend the matter on its merits. The relevant principles were explained by Sackville AJA (with whom Barrett and Leeming JJA agreed) in Dai v Zhu [2013] NSWCA 412 at [89] as follows:

“… the authorities consistently state that, as a general rule, a defendant who seeks to set aside a judgment by default regularly obtained must show that he or she has a bona fide defence. This ordinarily requires the defendant to file an affidavit demonstrating a prima facie defence on the merits. The rationale for this requirement is that in the exercise of its ‘unfettered, though judicial, discretion’ the Court will consider:

(a) whether any useful purpose would be served by setting aside the judgment, and

(b) how it came about that the applicant found himself bound by a judgment regularly obtained.”

84. To the extent that the motion purports to set aside the default judgment, Mr Jensen has three difficulties. First, the substantive proceedings are now finalised. Secondly, he appears to have actively chosen not to participate in the proceedings and, in that sense, acquiesced to the orders, and thirdly, he has not put anything before the Court to suggest that he has a bona fide defence. There is nothing put before the Court to suggest that there is any arguable or triable issue as to why he should be permitted to return to reside at the property. Mr Jensen’s only defence to the Newberrys’ claim for possession of the property is that the original sale by the Council was unlawful. There is no evidence that any proceedings were ever brought to prevent that sale nor subsequent proceedings ever taken out against the Council. The Newberrys are simply the purchasers following the sale by the Council. On the material before the Court, they were entitled to possession once that sale had settled.

85. It is not clear why Mr Jensen did not seek to pay his rates or otherwise act to prevent the sale of his property. By the time he resisted the efforts by the Newberrys to evict him, they were already the legal owners. It is simply not in the interests of justice that he be provided with any opportunity to defend the matter on its merits. If any cause of action did arise, and it is not apparent to me that it does, it is not against the Newberrys, who are the legal owners of the land.

86. As for those portions of Mr Jensen’s complaint that suggests that his personal property has been damaged, such issues cannot be raised in a Notice of Motion in these proceedings. If Mr Jensen wishes to commence proceedings against the Newberrys for damages in either detinue or conversion with respect to those allegations, it is certainly open for him to do so but he cannot do it by way of Notice of Motion in these finalised proceedings.

87. Finally, I note that Mr Jensen relied on the decision in Fejo v NT in both his written and oral submissions as well as in the orders sought in the Notice of Motion. He relied on it in this way in his affidavit at [10]:

“’HC Justice Kirby 10 Sept. 1998 supporting HCA case in 1923 (Cth v NSW) (Fejo v Govn't) HCA 58 … Justice Kirby stated: No-one, not even the Queen, can trespass Or take away property held in Fee Simple.” (Emphasis added.)

88. It is worth noting that when these words in italics are searched for in Kirby J’s judgment in Fejo v NT they do not appear. When that purported quote by Kirby J is searched for on the internet at large, that exact quote can be found on a website entitled, “The Commonwealth of Australia: Unincorporated Association”. That website advises readers that if someone is “trespassing”, they can demand them to “get a High Court Order to over-ride Justice Michael Kirby J’s order.” It then refers to the “actual wording” of the decision at “point 47” and “point 93”.

89. In the interests of completeness, I note that the website appears to be referring to [47] of Fejo v NT, which is actually the decision of Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ. The paragraph reads:

“As Brennan J pointed out in Mabo [No 2], the conclusion that native title has been extinguished by a later grant of freehold to the land is a result that follows not from identifying some intention in the party making the later grant but because of the effect that that later grant has on the rights which together constitute native title. The rights of native title are rights and interests that relate to the use of the land by the holders of the native title. For present purposes let it be assumed that those rights may encompass a right to hunt, to gather or to fish, a right to conduct ceremonies on the land, a right to maintain the land in a particular state or other like rights and interests. They are rights that are inconsistent with the rights of a holder of an estate in fee simple. Subject to whatever qualifications may be imposed by statute or the common law, or by reservation or grant, the holder of an estate in fee simple may use the land as he or she sees fit and may exclude any and everyone from access to the land. It follows that, as there was no reservation or qualification on the grant that was made to Benham in 1882, that grant was wholly inconsistent with the existence thereafter of any right of native title.” (Emphasis added.)

90. It is only the italicised portion of that paragraph that is extracted on the website.

91. The website also seems to refer to [93] of Fejo v NT, which is the decision of Kirby J. This reads:

“Before the decision of this Court in Mabo v Queensland [No 2] which gave rise to legal claims of native title in Australia, the Court had expressed in the most ample terms the meaning of an estate in fee simple at common law. In The Commonwealth v New South Wales, Isaacs J said:

‘In the language of the English law, the word fee signifies an estate of inheritance as distinguished from a less estate … A fee simple is the most extensive in quantum, and the most absolute in respect to the rights which it confers, of all estates known to the law. It confers, and since the beginning of legal history it always has conferred, the lawful right to exercise over, upon, and in respect to, the land, every act of ownership which can enter into the imagination.’” (Emphasis added.)

92. Again, it is only the italicised portion of the quote that is extracted on this website.

93. The issue for determination in Fejo v NT was whether the Larrakia people, an Indigenous group, had native title to particular land. The land had previously been granted to an individual in 1992. The relevant question was whether that grant in fee simple extinguished the native title of the claimants. It was held that it did. That case has nothing to do with whether the Council has the statutory power under the Local Government Act to sell the land of a person or persons who do not pay that Council rates for 5 years or more.

94. It is not clear whether Mr Jensen accessed this website or another one that contained the same “legal advice”, but the Court was not assisted by reliance on that case in these proceedings.

95. Accordingly, I make the following orders:

1. The Notice of Motion is dismissed.

2. The applicant Steen Jensen is to pay the costs of the motion on the ordinary basis.

**********