Rowe v Bishop (No 4) - [2023] SADC 29

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
ROWE AND ANOR v BISHOP AND ANOR (No 4)
[2023] SADC 29
Judgment of his Honour Judge Slattery
31 March 2023
CONTRACTS - BUILDING, ENGINEERING AND RELATED CONTRACTS
By an application dated 22 November 2022, the applicants request that the trial Judge recuse himself because he is ‘…in treason’.
Held:
1. The application is dismissed.
2. There is no harm alleged or pleaded to justify an assertion that a Judicial Officer is ‘…in treason…’
Observations about the requirements to prove treason, the inappropriateness of making such a claim against a Judicial Officer and why the application was doomed to fail from the outset.
Uniform Civil Rules 2020 (SA); Criminal Law Consolidation Act 1935 (SA) s 6, s 7; Criminal Code Act 1995 (Cth) s 80, s 82, referred to.

ROWE AND ANOR v BISHOP AND ANOR (No 4)
[2023] SADC 29

The applicants have brought an application dated 22 November 2022 that I recuse myself; this second application was commenced after I had delivered my second judgment which dealt with the merits of the parties’ claims. In judgment no 1, I dismissed an earlier application that I recuse myself.
On the 22^nd December 2022, I dismissed this further application of the applicants. I said then that I would publish my reasons. These are those reasons.
By interlocutory application filed on 22 November 2022, the applicants sought the following orders:-
1.Judge Paul Slattery has failed to respond to letters dated 3 August 2022 RPP44 63800094003704585602 and 15 August 2022 RPP446380094000 23076 07605 and 14 November 2022 RPP44 63800 09400 4260 72609.
2.Judge Paul Slattery recuse himself from bench as Judge Slattery is sitting in Treason.
3.This application is made on the grounds set out in the accompanying affidavit sworn by Skippy Rowe on 15 November 2022.[1]
[1] FDN133.
In order to properly comprehend these reasons, it is necessary that I set out in full the affidavit referred to in the application. That document is annexed to these reasons.
In paragraph numbered ‘1’ of the application (FDN132), there are references to letters followed by the expression ‘RPP’. These letters are followed by a series of numbers. It is apparent from the content of the first page of the affidavit described as ‘Bill-of-Lading’ that the reference to RPP is a registered post number.
This court has received by registered mail a series of documents sent to it by the applicants. Each of them are described as a bill of lading. One example, in relation to RPP ending in 00602 is dated the 15^th of January 2023. In light of this my discussion below, it is appropriate that I include a copy of that material hereunder. It provides:
The content of the Bill-of-Lading is described under the heading of ‘Cargo Manifest’ and there are 16 numbered items. Insofar as it is necessary, I have taken into account those items. It is apparent that item numbered ‘1’ misstates the date and I have read that date as 15 December 2022. So much is apparent from item numbered ‘2’. The court is familiar with the concept of a bill of lading in maritime law and under the law of negotiable instruments. The description of the document that I have set out above as a ‘Bill of Lading’ is misconceived.
In judgment (No.3) of this matter I have discussed the issue of the costs of the action and each of the matters that are described in the ‘Cargo Manifest’ portion of the affidavit; I have made findings in relation to each of them. The only matter that I have not canvassed in judgment No 3 is the expression at the end of item sixteen as follows:-
‘and; Crown asseveration for the covenant by the crown for the crown officer/Court Officer (Breach of the Admiralty Law is Lethal)(1 page) is shipped by the crown and witnessed and is shipped to the above named bailee
Copy of bill of lading (2 pages) by the crown and is shipped to the above-named bailee.’
When consideration is given to the content of the ‘bill of lading’, it appears to be the intention of the applicants that I be identified as the bailee. There is no relationship of bailment that does or could exist. Such a possibility could interfere with the principle of judicial independence. The use of the expression ‘bailee’ is equally misconceived.
The reference to asseveration I understand to mean the solemn or emphatic declaration or statement of something.
Paragraph 2 of the ‘-BILL-OF-LADING-’ refers to further documents. Each of them has, to the extent necessary, been considered by me in my third judgment in this action. The documents attached to the ‘-BILL-OF-LADING-’ commenced with the third affidavit of Sean Anthony Ryan sworn on 18 May 2022.[2] I have considered the content and effect of this affidavit in my third judgment. The bundle of associated material comprises eighty two pages. At the end of the second page thereof the following appears:-
‘For the purpose of verification, the undersigned/autographed witness: do personally verify that the copied document listed and pointed out above placed in the Registered POST in envelope (Registration POST number below) and sealed and deposited at the official registered mail depository under the exclusive face and custody of the letter carrier and covenant/contract/bailment services of the company AUSTRALIA POST.’
[2] FDN94.
The document is dated the 15^th of January 2023.
Before turning to the affidavit of Skippy Rowe of 14 November 2022, I reiterate that I am asked to recuse myself because it is said that I am ‘sitting in treason’.
The offence of treason is dealt with in s 6 and 7 of the Criminal Law Consolidation Act 1935. Those sections provide as follows:
Part 2—Treason
6—Repeal
The Acts 36 George III C. 7 and 57 George III C. 6 of the Imperial Parliament, except those provisions which relate to the compassing, imagining, inventing, devising or intending of the death or destruction, or any bodily harm tending to the death or destruction, maiming or wounding, imprisonment or restraint, of the person of Her Majesty, and the expressing, uttering or declaring of such compassings, imaginations, inventions, devices or intentions, are repealed.
7—Treason
Any person who compasses, imagines, invents, devises or intends—
(a)     to deprive or depose His Majesty from the style, honour or Royal name of the Imperial Crown of the United Kingdom or of any other of His Majesty's dominions and countries; or
(b)     to levy war against His Majesty within any part of the United Kingdom or any other of His Majesty's dominions in order—
(i)by force or constraint, to compel His to change His measures or counsels; or
(ii)to put any force or constraint on, or to intimidate or overawe, both Houses or either House of the Parliament of the United Kingdom or the Parliament of this State; or
(c)     to move or stir any foreigner or stranger with force to invade the United Kingdom or any other of His Majesty's dominions or countries under the obeisance of His Majesty,
and expresses, utters or declares such compassings, imaginations, inventions, devices or intentions by publishing any printing or writing, or by open and advised speaking, or by any overt act or deed, shall be guilty of an offence and liable to be imprisoned for life or for a term of not less than six months.
Treason is understood to mean a betrayal or committing an act of betrayal. This can include, for example, betrayal of a trust undertaken or reposed in any particular person and also any breach of faith or a treacherous action or an act of treachery.
S 80 of the Commonwealth Criminal Code makes it an offence punishable by mandatory life imprisonment to do any of the following:-
1.   Harm, imprison, detain, or cause the death of the Sovereign, the heir apparent of the Sovereign, the consort of the Sovereign, the Governor General or the Prime Minister;
2.   Levy war or do an act preparatory to levying war against the Commonwealth; and
3.   Instigating non citizen to make an armed invasion of the Commonwealth or a territory of the Commonwealth.
Under s 82 of the Commonwealth Criminal Code, it is an offence punishable by mandatory life imprisonment to assist another person to escape punishment for treason offences or to fail to inform police of another person’s intention to commit treason.
As I am asked to recuse myself on the basis of an allegation that I have committed treason, it is necessary to closely review the content of the affidavit of Skippy Rowe sworn 16 November 2022. Paragraph 1 refers to a presumption of public record. The applicants challenge, rebuke and reject a presumption of public record. It states that the action does not remain a private Bar Guild Matter under the Bar Guild Rules. Leaving aside the fact that the public record contains, for example, my judgments in this action, the rejection of a presumption of public record is not referable to any particular fact. Nor is there any expression of what may be thought or said to be a ‘Private Bar Guild Matter’. There is no obvious meaning to be given to the expression Private Bar Guild rules. The second paragraph appears to challenge aspects of public service. The applicants challenge members of the private Bar Guild who are not identified. This Guild is not identified, nor are its alleged members or what connection this alleged Guild and its members have to the issue of whether I should recuse myself. None is apparent. It is alleged that such persons have sworn a solemn secret absolute oath to the guild which is said to be identified. It is then alleged that such persons purport to act as public agents of the government by making additional oaths of public office and openly and deliberately contradict their private superior oaths to their own guild. I have not been able to make any sense of this allegation. There is no explanation about the guild to which reference is made, or of any connection of the so called oaths, of the secret oaths or the public oaths between them and the application that I recuse myself.
The third paragraph refers to a ‘presumption of a public oath’. It is suggested that I have a conflict of interest and I should recuse myself however, there is no basis for alleging such a conflict of interest exists. I am unable to obtain any assistance from this paragraph. It is meaningless.
The fourth paragraph speaks of the ‘presumption of immunity’. It suggests that I am a member of a private Bar Guild in my capacity as a Judge. It demands that I rebuke my oath but I am unsure to who or what, and that I suffer a liability and penalties for perjury. It is not said what I have done in my capacity as a ‘member of a Private Bar Guild’ which, in turn, is said to be inconsistent with the fulfilment of my role as an appointed Judicial Officer.
The fifth paragraph refers to the ‘presumption of summons’. There is no explanation given about what is meant by the ‘presumption of summons’. The paragraph ‘rebukes’ the presumption without informing the court what is meant by such a presumption.
The sixth paragraph refers to the ‘presumption of custody’. Again, there is no explanation given about what is meant by the expression ‘presumption of custody’. Similar to paragraph five, the applicants challenge, rebuke and reject the presumption of custody without in any way informing the court what is meant by such a presumption. I am unable to obtain any assistance from those two paragraphs about what is intended by the applicants.
The seventh paragraph refers to the ‘presumption of court guardian’; this expression is not explained. In the paragraph, the applicants challenge, rebuke and reject what is said to be the ‘presumption of court guardian’. It is said that the applicant Tony Rowe is the general guardian and general executor of this action before the Magistrates Court. It is then alleged that Skippy Rowe is the general guardian and general executor of that matter before this court. The court is not informed how it would be that a court action could come within the control of either of the applicants as ‘guardians’. Nor is it explained what is meant by a person being the guardian of a legal action which, it appears, is intended to displace the authority of the court over such an action.
The eighth paragraph refers to the ‘presumption of court of trustees’. There is no explanation about what is meant by the expression court of trustees or any presumption that may arise. Under the paragraph, the applicants inform the court that they challenge, rebuke and reject the presumption of the court of trustees. It is quite unclear what it is that applicants are challenging, rebuking and rejecting. Then it is said by the applicants that they are merely visiting ‘by invitation’ to clear up the action and they are not government employees or public trustees. It appears to have escaped the attention of the applicants that they were the moving party in the litigation, they sued the respondent for damages, they sought to allege and so prove that they had suffered damages in excess of one million dollars and then applied for this action to be moved to this court. I have perused the court file and have not seen any invitation issued to the court by the applicants. None exists.
The ninth paragraph refers to what is said to be the ‘presumption of government acting in two roles as executor and beneficiary’. Similar to the previous paragraphs, the applicants reject the presumption of the government acting in those two roles. There is no information provided about how it may be said that a government was acting in two roles as executor and beneficiary and in respect of what interest. The applicants then say that they are the executor/executrix and beneficiary of our named trust. It appears that this reference is to the Eureka Family Trust. The trustees of that trust were the legal owners of the property, beneficially for the trust.
The tenth paragraph refers to what is said to be the presumption of executor ‘De Son Tort’. The expression executor De Son Tort refers to those circumstances where a person, wrongfully purports to be an executor or administrator of an estate when that person has not been appointed to that position. The literal meaning of the expression ‘De Son Tort’ is of his her or their own wrong. Having reviewed the court file, I have not seen any suggestion that at any time, the applicants were acting as ‘Executors De Son Tort’. They assert their position as executors and beneficiaries but that is not the subject of any challenge for my determination.
The eleventh paragraph refers to what is said to be the ‘presumption of incompetence’. There is no explanation for the expression ‘presumption of incompetence’. In this paragraph, the applicants challenge, rebuke and reject this presumption. They claim that they are not ignorant of the law, they are competent to present their own argument before the court and challenge, rebuke and reject any contrary presumption. There is no contrary presumption apparent on the court record or in any argument put to me. The applicants have not succeeded in their damages claim after a trial on the merits. The applicants did not have legal representation during the course of the trial. They put their own case at trial and have received my decision in the first and second judgments. There has been no proposition put by the applicants that they were somehow incompetent or unable to present their own arguments. To the contrary, that is what has occurred in the trial of this action.
The twelfth paragraph refers to a ‘presumption of guilt’. There is no explanation about what this means. In the paragraph, the applicants rebuke the presumption of guilt, as demonstrated by an unrebutted affidavit, court orders and all of the evidence lodged in the matter. It is unclear what is referred to here. In my first and second judgments, I have considered all of the affidavit material produced and admitted into evidence and considered the documentary evidence tendered in the trial. I have heard the viva voce evidence and I have made my decisions. In doing so, I have considered all evidentiary material. I have considered a large and detailed tender book and the other exhibits that have been tendered. Similar to paragraph eleven, no proposition has ever been put that the whole of the evidence including affidavit evidence has not been considered in this matter. It has all been considered by me and so much is apparent from the face of the judgments.
Returning to the legal definition of treason and the offences of treason as set out in s 6 and 7 of the Criminal Law Consolidation Act and s 80 of the Commonwealth Criminal Code, there is no evidence before the court that I have committed any such offence. I have not done so; I have fulfilled my common law obligation as a judicial officer. I have heard all of the evidence in the action, I have delivered my judgments and I have determined and made the appropriate orders following the delivery of those judgments. This application is dismissed.
An allegation of treason is an extraordinarily serious matter. It is made without any foundation and, as I have demonstrated, there is no factual basis for making the allegation. The applicants do not display any understanding of the seriousness of the allegations or what is required to be proved in order to make out such allegations.
The applicants were prepared to make this allegation despite the fact that they have refused to continue to participate in the proceedings after the adverse judgment No 2 delivered by me on 10 May 2022. I consider that the application is absurd, the supporting material is nothing more than a misconceived rambling discourse and it is all intended to vex and harass this court. It is also symptomatic of the applicants being unable to accept a decision made upon a claim brought by them which does not favour them. Rather than accept the decision and proceed accordingly the applicants have adopted an approach of challenging the foundational principles of the independence of the judiciary. This is symptomatic of the failure of the applicants to comprehend what they are alleging and that in a proceeding which they commenced, they are bound by a judgment against them. No appeal has been brought against any of my judgments. It appears that the applicants are content to attack the judiciary and the judicial process because of their unhappiness with the result of the proceedings which they initiated. That is a regrettable development. It appears to be symptomatic of a level of public discourse that relies almost entirely upon a requirement that its adherents are unable to discern between logical reasoning based upon identifiable proven facts and an approach which scorns and derides such a method. It appears that as part of its role, this court must now also deal with this lamentable development
As there was no requirement for the respondents to make any submissions in relation to this application which was directed at me personally, it is not necessary that I make any order as to the costs of this application.