Planck & Planck

[2024] FedCFamC1F 341

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Planck & Planck [2024] FedCFamC1F 341

File number(s):

PAC 2629 of 2021

Judgment of:

RIETHMULLER J

Date of judgment:

22 May 2024

Catchwords:

FAMILY LAW – JURISDICTION – Pseudolegal argument – Where the applicant alleges assents to legislation and appointments by the sovereign are invalid – Where the applicant alleges that wrong seal/signet was used by sovereign – Application dismissed.

Legislation:

Australian Constitution ss 7, 23, 58, 75(v)

Acts Interpretation Act 1901 (Cth) s 6

Administrative Decisions (Judicial Review) Act 1977 (Cth)

Crimes Act 1914 (Cth) s 4

Family Law Act 1975 (Cth) s 117

Federal Circuit and Family Court of Australia Act 2021 (Cth) s 44

Federal Court of Australia Act 1976 (Cth) s 23

Judiciary Act 1903 (Cth) s 33

Public Governance, Performance and Accountability Act 2013 (Cth)

Royal Signature By Commission Act 1830 (Imp), 4 Geo 1, c 23  

Royal Style and Titles Act1953 (Cth) s 4(1)

Royal Style and Titles Act1973 (Cth)

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)

High Court Rules 2004 (Cth) r 25.17

Cases cited:

Attorney-General (NSW) v Quin (1990) 93 ALR 1; [1990] HCA 21

Cassell v R (2000) 201 CLR 189; [2000] HCA 8

Clampett v Hill & Ors [2007] QCA 394

Coshott v Coshott (2010) 184 FCR 495; [2010] FCA 300

Gunter v Hollingworth [2002] FCA 943

Joosse v Australian Securities and Investment Commission (1998) 159 ALR 260; [1998] HCA 77

Kelly v Campbell [2002] FCA 1125

Liston v Davies (1937) 57 CLR 424; [1937] HCA 22

Lohe v Gunter [2003] QSC 150

Meads v Meads [2013] 3 WWR 419; (2012) 543 AR 215; (2013) 74 Alta LR (5^th) 1; [2012] ABQB 571

Minister for Natural Resources v New South Wales Aboriginal Land Council (1987) 9 NSWLR 154

Pham v Secretary, Department of Education, Employment and Workplace Relations [2009] FCA 1310

R v Brewer (1942) 66 CLR 535; [1942] HCA 33

R v Kirby; ex parte Boilermakers’ Society of Australia (1956) 94 CLR 254; [1956] HCA 10

Rutledge v Victoria (2013) 251 CLR 457; [2013] HCA 60

Sharples v Arnison [2002] 2 Qd R 444; [2001] QCA 518

Sprlyan v Wyborn [2019] WASC 227

Hobbs, Harry, Young, Stephen and McIntyre, Joe, “The Internationalisation of Pseudolaw: The Growth of Sovereign Citizen Arguments in Australia and Aotearoa New Zealand” (2024) 47 UNSW Law Journal 309

Judge Cash, Glen “A Kind of Magic: The Origins and Culture of ‘Pseudolaw’” (Speech, Queensland Magistrates State Conference, 26 May 2022)

Netolitzky, Donald J., “Organized Pseudolegal Commercial Arguments as Magic and Ceremony” (2018) 55(4) Alberta Law Review 1045

Netolitzky, Donald J., “The Perfect Weed for this Spoiling Soil: The Ideology, Orientation, Organization, Cohesion, Social Control, and Deleterious Effects of Pseudolaw Social Constructs” (2023) 6 International Journal of Coercion, Abuse, and Manipulation 1

UK Parliament, Parliamentary Debates, House of Commons, 28 May 1830, vol 24, col 1149 (Sir R Peel).

Division:

Division 1 First Instance

Number of paragraphs:

22

Date of hearing:

25 April 2024

Place:

Parramatta

Counsel for the Applicant:

Litigant in person

Solicitor for the Respondent:

Coleman Greig Lawyers

ORDERS

PAC 2629 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MR PLANCK

Applicant

AND:

MS PLANCK

Respondent

ORDER MADE BY:	RIETHMULLER J
DATE OF ORDER:	22 MAY 2024

THE COURT ORDERS THAT:

1.The application in a case filed on 12 September 2023 be dismissed.

2.The applicant pay the respondent’s costs of the application in a case filed on 12 September 2023 in the sum of $8,311.28.

Note:   The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

RIETHMULLER J

1. The applicant commenced proceedings in the Federal Circuit and Family Court of Australia (Division 2) on 17 May 2021, seeking that the court exercise its jurisdiction under the Family Law Act 1975 (Cth) with respect to married spouses by making parenting orders with respect to the children of him and the respondent.

2. On 2 July 2021, the respondent filed a Response seeking different parenting orders to those sought by the applicant and also seeking property settlement orders.

3. There have been 29 previous orders issued in this matter. After the matter was filed it was adjourned for three months to allow the parties to participate in family dispute resolution. Thereafter, a registrar placed the matter in the Evatt List, however, that order was later discharged on review by a registrar. A further five procedural orders were made by various registrars before interim parenting orders were made on 17 September 2021. The matter was heard by a registrar on 28 September 2021 when orders were made for interim injunctions concerning the property issues and later a second set of orders were made adjourning the matter pending the production of an expert report concerning the children’s issues (which had been ordered eleven days earlier). The applicant sought a review of the registrar’s orders by application filed on 29 October 2021.

4. The matter was next heard by a judge on 10 November 2021 when further procedural directions were made. On 9 December 2021, a judge heard the applicant’s Application in a Case filed on 23 November 2021, seeking orders discharging the Independent Children’s Lawyer. This application was dismissed on 10 December 2021. The father’s application to review the registrar’s decision was not heard on that day, but on 20 December 2021, when the judge discharged some of the parenting orders made by the registrar. The matter was again before a judge on 31 January 2022, who discharged most of the parenting orders made by the registrar and made orders for one child to live with each parent.

5. On 17 March 2022, another judge made orders, by consent, for the parties to obtain expert evidence from a psychiatrist. On 28 April 2022, the matter was again listed before the judge when it was adjourned to the following day. On 29 April 2022, the judge made orders providing for the Independent Children’s Lawyer to provide various documents to the expert and restraining the parties from providing recordings to the expert. 

6. On 3 June 2022, orders were made listing the matter for a compliance and readiness hearing on 15 July 2022 along with various procedural orders. The parties would have been unable to file a certificate of readiness pursuant to the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (as is required for a compliance and readiness hearing) as the psychiatric report was not yet available (and was not produced until 29 August 2022). On 30 June 2022, the compliance and readiness listing was vacated and the matter listed for a compliance and readiness hearing on 9 September 2022. However, by orders made on 29 August 2022, the listing for 9 September 2022 was vacated and the matter listed for a compliance and readiness hearing on 10 November 2022.

7. On 1 September 2022, noting the release of the psychiatric report on 29 August 2022, orders were made in chambers again listing the matter for further directions on 9 September 2022.  On 9 September 2022, interim parenting orders were made by consent and various directions were made concerning the property settlement proceedings and for the parties to attend a conciliation conference on 19 September 2022 with a registrar. On 10 November 2022, further procedural orders were made and the matter adjourned to a compliance and readiness hearing on 9 December 2022.

8. On 9 December 2022, the case readiness judge vacated a listing that had been made by the registry for the parties to appear before a judge on 23 January 2023 (to hear the applicant’s Application in the Proceeding filed on 2 December 2022) and transferred the matter, with the consent of the parties, to the Federal Circuit and Family Court of Australia (Division 1).

9. On 6 February 2023, the matter was heard by a registrar who dismissed the father’s Application in a Case filed on 2 December 2022 (by consent) and made various procedural orders. On 24 May 2023, a registrar made final parenting orders by consent and placed the matter in the list of matters awaiting listing before a judge of this court. 

10. Following this, despite the very large number of documents filed with the court and the many court events (including final parenting orders), the applicant filed an application on 12 September 2023 seeking:

    A stay on proceedings … until authority and jurisdiction has been established as per the following 12 points …

    (1)Provide proof of authority that every judge, registrar, magistrate and public servant employees are commonwealth public officers, as per section 3 definitions of the crimes act 1914 Commonwealth, and

    (2)Provide proof of jurisdiction as per crimes act 1914, s4, application of common law of England, and

    (3)Provide proof of jurisdiction as per Judiciary act 1903, Section 80, Common law to govern, Common Law of England, and

    (4)Provide proof of authority that every judge, registrar, magistrate and public servant employees are commonwealth public officers, as per Chapter III of the Commonwealth of Australia Constitution Act 1901 as Proclaimed and Gazetted, and

    (5)Provide proof you have made available, Trial by jury, as per s80 of the Commonwealth of Australia Constitution Act 1901 as Proclaimed and Gazetted, and

    (6)I request the instrument, or otherwise information, that demonstrates that the Federal Court of Australia Act 1976 complied with section 58 of the Commonwealth of Australia Constitution Act 1901 as Proclaimed and Gazetted, to establish the Federal Court of Australia, and

    (7)I request the instrument, or otherwise information, that demonstrates that the Family Law Act 1975 complied with section 58 of the Commonwealth of Australia Constitution Act 1901 as Proclaimed and Gazetted in becoming law, to establish the family law act 1975, and

    (8)Provide proof that the Governor-General of the Commonwealth of Australia has been appointed by Her Majesty Queen Elizabeth the Second and her heir Charles III of the United Kingdom of Great Britain and Ireland, be appointed by Commission under Letters Patent, Dated 29th October 1900, Royal Sign Manual and Signet and represent The Queen's Most Excellent Majesty, Elizabeth the Second by the Grace of God of the United Kingdom of Great Britain and Northern Ireland and of Our other Realms & Territories Queen, Head of the Commonwealth, Defender of the Faith, Section 61 of Our Primary Law, Commonwealth of Australia Constitution Act 1901 as Proclaimed and Gazetted, and

    (9)Provide proof that the Governor of the State has been appointed by Her Majesty Queen Elizabeth the Second and her heir Charles III of the United Kingdom of Great Britain and Ireland, According to the Letters Patent, Dated 29th October 1900, Royal Sign Manual and Signet and represent The Queen's Most Excellent Majesty, Elizabeth the Second by the Grace of God of the United Kingdom of Great Britain and Northern Ireland and of Our other Realms & Territories Queen, Head of the Commonwealth, Defender of the Faith, and

    (10)Provide proof of authority as to which Commonwealth entity, you are administrating as per The Public Governance, performance & Accountability Act 2013, chapter 2, division 2 -11.

    (11)Provide proof of the oath or affirmation of allegiance as required by the Commonwealth of Australia Constitution Act 1901 as Proclaimed and Gazetted, subscribed by Chief Justice William Alstergren, as provided for in the Schedule, and

    (12)If the first requested document cannot be found, I request such a document showing any undertaking that Chief Justice William Alstergren made prior to taking his position in the Federal Court system.

    (As per original)

11. Each of the points are drafted as a demand that the court provide proofs to the applicant. This form of request was declined by me during argument, pointing out to the applicant that I am sitting to hear the case and not to be cross-examined by him. It is not the role of the court to provide evidence or opinions, rather, to determine applications made to the court by parties. 

12. The approach of the applicant cannot succeed for a number of other reasons:

    (a)First, there is a general presumption of regularity (omnia praesumuntur rite et solenniter esse acta donec probetur in contrarium: see Minister for Natural Resources v New South Wales Aboriginal Land Council (1987) 9 NSWLR 154, 164). The presumption forms part of Australian law: see R v Brewer (1942) 66 CLR 535, 548; and Cassell v R (2000) 201 CLR 189 at [17]. If the applicant seeks to challenge the validity of the legislation and appointments of the judges, he bears the onus of raising an evidentiary basis for the claim. It is not open to him to attempt to place himself in the position of arbiter by demanding that the Court prove its authority to him.

    (b)Secondly, there is an element of sophistry in how the applicant frames the argument as it is apparent that he would never be satisfied of any proof provided. On his approach, he will always be able to demand further proof: for example, any witness other than the sovereign would simply be asked to prove their authority, and if the sovereign appeared, no doubt the applicant would require that the sovereign prove his identity and sovereignty.

    (c)Thirdly, it appears from the form of the application that the applicant effectively arrogates to himself the power to issue the ancient writ of quo warranto. Section 75(v) of the Constitution vests original jurisdiction in the High Court in any matter in which a writ of prohibition and mandamus or an injunction is sought against an officer of the Commonwealth. Section 33 of the Judiciary Act 1903 (Cth) also allows the High Court to make orders or direct the issue of constitutional writs. Relief in the nature of quo warranto can be sought from the High Court. The modern process is specified in r 25.17 of the High Court Rules 2004 (Cth), which provides that an injunction or declaration may be granted if an applicant proves that a person has not been validly appointed to an office: see Liston v Davies (1937) 57 CLR 424 at 445). As the applicant’s argument has the effect that no currently sitting judge in Australia is validly appointed, it is unclear to which court he would need to address his request for the issue of such a writ (presumably either the King or the High Court of England).

13. On this basis, the Application in a Case as it is framed demanding a stay until jurisdiction is established should be dismissed. 

14. However, as the applicant was unrepresented, I proceeded to consider his application affidavit, filed on 12 September 2023 (124 pages), and his 116-page tender bundle filed in support of his application on the basis of his argument that the court lacked jurisdiction.

15. Whilst the argument of the applicant, as it is identified in the material, appears long and complex, much of the complexity arises as a result of his adoption of common forms of pseudolegal arguments as described in detail by Judge Rooke in Meads v Meads (2012) 543 AR 215 (Alberta, Canada), and insightfully discussed in a number of articles by Donald J Netolitzky, including “Organized Pseudolegal Commercial Arguments as Magic and Ceremony” [2018] Alberta Law Review 1045; and “The Perfect Weed for this Spoiling Soil: The Ideology, Orientation, Organization, Cohesion, Social Control, and Deleterious Effects of Pseudolaw Social Constructs” (2023) 6 International Journal of Coercion, Abuse, and Manipulation 1. In Australia, pseudolaw has been discussed in a speech delivered by Judge Cash, “A Kind of Magic: The Origins and Culture of Pseudolaw” [2022] QldJSchol 16; and in an article by Harry Hobbs, Stephen Young and Joe McIntyre, “The Internationalisation of Pseudolaw: The Growth of Sovereign Citizen Arguments in Australia and Aotearoa New Zealand” (2024) 47 UNSW Law Journal 309.

16. The applicant’s core argument is that the letters patent and assents to legislation by Queen Elizabeth II are invalid since Her Majesty changed the phrase “under Our Sign Manual and signet” to “under Our Sign Manual and the Great Seal of Australia” and due to changes in the description of the Queen, for example omitting the title “Defender of the Faith”. The purpose of these processes is simply to provide evidence of the sovereign’s actions. The ability to change the method by which the sovereign demonstrates their assent is long recognised. For example, in 1830 the House of Commons passed the Royal Signature By Commission Act 1830 (Imp) to allow King George IV to appoint certain persons to affix the royal signature to instruments, instead of signing, due to his illness affecting his ability to sign documents. Sir R Peel remarked during the First Reading of the Bill:

    “The present Bill provides that his Majesty may, by his Royal warrant or commission, to be signed with the sign manual, appoint one or more persons to attach a stamp to those instruments which require the Royal Signature. That stamp will be provided under the direction of the Lord President of the Council. There will be two stamps; one of which will bear the words 'George R.,' and the other, 'G. R.,' the initials only, for such instruments as are usually signed in that way... The stamp can only be affixed by the King's express command, and in the presence of his Majesty, and the party affixing it must attest by his own signature, that the stamp has been affixed by his Majesty's express command, and in the presence of his Majesty” [1149].

17. The applicant’s arguments must fail for a number of reasons:

    (a)Section 6 of the Acts Interpretation Act 1901 (Cth) provides that:

    The date appearing on the copy of an Act printed by the Government Printer, and purporting to be the date on which the Governor-General assented thereto, or made known the Sovereign’s assent, shall be evidence that such date was the date on which the Governor-General so assented or made known the Sovereign’s assent, and shall be judicially noticed.

    (b)There is no claim that the Queen did not execute the relevant letters patent or give her assent. Even if there is some reason that the form of words are defective, it does not change the underlying reality that these are actions of Queen Elizabeth II. The purpose of the details raised by the applicant are not to convert the document into one that is of legal effect, but rather to provide a suitable mechanism to demonstrate that the acts were those of the sovereign (or the Governor-General): see, for example, the discussions in Rutledge v Victoria (2013) 251 CLR 457at [9] – [11] and Coshott v Coshott (2010) 184 FCR 495 at [24] – [26].

    (c)The “sign manual” is simply an archaic phrase for a handwritten signature, and the word “signet” simply refers to the seal that is used from time to time. There is no basis for concluding that the sovereign is unable to change the signet that they use, nor that they would be restricted to only one seal to be used in all of their realms. The choice by Elizabeth II to use the Great Seal of Australia (or such other seal as may have been Her Majesty’s pleasure) is not impeachable, at least when done with the assent of Parliament.

    (d)The use of the Great Seal of Australia followed a meeting of the Federal Executive Council at Government House whereby a Royal Warrant was granted on 16 February 1954, as contemplated by the Royal Style and Titles Act 1953 (Cth). Whilst the applicant referred to the schedule, which set out the changes to the royal signs and seals, it was apparent that he had not read the Act itself, which included a provision at s 4(1) that:

    The assent of the Parliament is hereby given to adoption by Her Majesty, for use in relation to the Commonwealth Royal style of Australia and its Territories, in lieu of the Style and Titles at and Titles in relation present appertaining to the Crown, of the Style and Titles set forth in the Schedule to the RST Act, and to the issue for that purpose by Her Majesty of Her Royal Proclamation under such seal as Her Majesty by Warrant appoints.

    (e)The applicant also failed to note that the Royal Style and Titles Act 1953 (Cth) received the Royal Assent of Queen Elizabeth II. Similarly, the Royal Style and Titles Act 1973 (Cth) again provided Parliament’s consent to the Queen changing her royal style and titles, as were effected by a Royal Warrant on 19 October 1973, just as had occurred with King Edward VII in 1901.

1. Arguments of this type have been consistently rejected by many courts, although the applicant addressed none of the authorities: see; Joosse v Australian Securities and Investment Commission (1998) 159 ALR 260, 263 [12]; Sharples v Arnison [2002] 2 Qd R 444; Kelly v Campbell [2002] FCA 1125; Gunter v Hollingworth [2002] FCA 943; Lohe v Gunter [2003] QSC 150; Clampett v Hill & Ors [2007] QCA 394; Sprlyan v Wyborn [2019] WASC 227.

2. The applicant also complains that various Prime Ministers’ and Cabinet Ministers’ oaths did not include oaths (or affirmations) of allegiance to the Monarch in the form of words set out in the schedule to the Constitution. The oath set out in the Constitution is required to take up a position as a member of the House of Representatives or the Senate. Each Member and Senator takes the oath set out in the Constitution. Since 1991, the oath of allegiance has not been repeated upon being sworn in as a Minister as it has previously been taken. This argument is without foundation.

3. The 12 points raised in the Application can be briefly dealt with:

   (1)The applicant has not raised any evidentiary basis for doubting the authority of the Court.

   (2)Section 4 of the Crimes Act 1914 (Cth) deals with common law principles relating to criminal liability for offences pursuant to the legislation. Section 4 is irrelevant to these proceedings.

   (3)Section 80 in Chapter III of the Constitution requires trial by jury for offences prosecuted on indictment. Section 80 is irrelevant to these proceedings.

   (4)The request for proof of authority has been dealt with above.

   (5)These proceedings do not engage s 80 of the Constitution for the reasons set out at (3) above.

   (6)The Federal Court of Australia Act 1976 (Cth) is not relevant to these proceedings as the proceedings are not pending in the Federal Court.

   (7)There is no basis to doubt the assent to the Family Law Act for the reasons set out above.

   (8)There is no basis to doubt the appointment of the Governor-General for the reasons set out above.

   (9)Governors of States are irrelevant to the federal jurisdiction and need not be addressed here.

   (10)The Public Governance, Performance and Accountability Act 2013 (Cth) applies to Commonwealth entities exercising executive powers and corporation sole. The Court does not exercise executive powers: see R v Kirby; ex parte Boilermakers' Society of Australia (1956) 94 CLR 254. Thus, the Public Governance, Performance and Accountability Act is irrelevant to these proceedings.

   (11) and (12)Arguments as to the appointment of the Chief Justice are irrelevant to these proceedings as the case is not being heard by the Chief Justice.

4. As none of the applicant’s arguments have any merit the Application in a Case filed on 12 September 2023 must be dismissed.

5. The respondent sought orders for costs in the event that the application was dismissed. Costs are determined in accordance with s 117 of the Family Law Act. Whilst parties ordinarily bear their own costs, the court may make orders for costs after considering the factors set out in s 117(2A). In this matter the parties are now litigating only with respect to a property settlement. The assets of the parties are relatively modest. The application in a case was entirely without merit. The applicant did not choose to bring the application until after he had obtained orders he sought with respect to parenting and is now resisting property settlement orders sought by the respondent. The costs sought by the respondent are modest, some $8,311.28. I am satisfied that in the circumstances the applicant ought to pay the respondent’s costs of the application and that the costs sought are reasonable. It is appropriate to make a lump sum order to that effect.

I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Riethmuller.

Associate:

Dated:       22 May 2024