Turnbull v Clarence Valley Council

[2023] NSWCA 295

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Turnbull v Clarence Valley Council [2023] NSWCA 295

Hearing dates:

19 October 2023

Date of orders:

8 December 2023

Decision date:

08 December 2023

Before:

Simpson AJA at [1]
Basten AJA at [56]

Decision:

1. Leave to appeal is refused;

2. The applicant is to pay the respondent’s costs of the application.

Catchwords:

Appeals – application for leave to appeal from summary dismissal of proceedings – pleading disclosed no reasonable cause of action – no prospect that leave to replead would result in viable claim – leave to appeal refused – no issue of principle

Legislation Cited:

Local Government Act 1993 (NSW)

Supreme Court Act 1970 (NSW), s 101

Uniform Civil Procedure Rules 2005 (NSW), rr 13.4, 14.28

Cases Cited:

BBH v The Queen (2012) 245 CLR 499; [2012] HCA 9

Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; [2011] HCA 21

Goktas v Government Insurance Office (NSW) (1993) 31 NSWLR 684

Papakosmas v The Queen (1999) 196 CLR 297; [1999] HCA 37

Category:

Principal judgment

Parties:

Christopher Luke Turnbull (Applicant)
Clarence Valley Council (Respondent)

Representation:

Counsel:
Applicant in person
J Guihot (Respondent)

Solicitors:
Not applicable
Moray & Agnew (Respondent)

File Number(s):

2023/80345

 Decision under appeal 

Court or tribunal:

Supreme Court of NSW

Jurisdiction:

Civil

Citation:

Turnbull v Clarence Valley Council [2023] NSWSC 83

Date of Decision:

14 February 2023

Before:

Schmidt AJ

File Number(s):

2022/73988

JUDGMENT

1. SIMPSON AJA: The applicant (who identifies himself as “‘Christopher Luke’ of the family ‘Turnbull’ for the appellant ‘Christopher Turnbull’”) seeks leave to appeal against orders made on 14 February 2023 in the Common Law Division of the Supreme Court dismissing with costs proceedings commenced by him by Statement of Claim filed on 15 March 2022: Turnbull v Clarence Valley Council [2023] NSWSC 83. The applicant filed an amended Statement of Claim on 1 August 2022. He named the Clarence Valley Council (the respondent) as the sole defendant.

2. On 17 August 2022 the respondent filed a notice of motion seeking, in the alternative:

1. an order pursuant to Uniform Civil Procedure Rules 2005 (NSW), r 13.4(1)(b) (“UCPR”) that the proceedings be dismissed on the basis that no reasonable cause of action is disclosed;

2. an order pursuant to UCPR 13.4(1)(c) that the proceedings be dismissed as disclosing no cause of action for personal injury or wrong against the second defendant (it may be that “second defendant” is a typographical error – as noted above, only one defendant is named in the Statement of Claim and the Amended Statement of Claim); or on the basis that the proceedings are an abuse of process;

3. an order pursuant to UCPR r 14.28 that the proceedings (the Amended Statement of Claim) be struck out on the basis that the Amended Statement of Claim –

1. discloses no cause of action appropriate to the nature of the pleading or

2. has a tendency to cause prejudice, embarrassment or delay in the proceedings; or

3. is otherwise an abuse of process of the court.

3. On 8 November 2022 the respondent’s notice of motion was fixed for hearing on 6 February 2023. On 30 January 2023 the applicant served on the solicitors for the respondent (but did not file) a document entitled “Interlocutory Application” and an affidavit sworn on 27 January 2023. In para 1 of the “Interlocutory Application” the applicant sought orders that the respondent “under Discovery … provide written evidence” of:

1. [the respondent’s] claim of Authority to conduct business on the land known as ‘Terra Australis’, and local areas known as ‘Bundjalung, Gumbaynggirr and Yaegl’[;]

2. [the respondent’s] claim of Authority over ‘the claimant’, so as to make its claim over ‘the claimant’[;]

3. [the respondent’s] claim of ownership of all its listed caravan camping grounds and parks, reserves and buildings.”

   4. In para 2 the applicant sought an injunction “to restrain or prevent the matter proceeding” until the documents sought were supplied and “a judge has ruled on each of the matters raised in 1. above”. In para 3 he claimed “and if such written evidence cannot be produced within 14 days, that the matter be ruled in favour of ‘the claimant’ and awarded in full including court costs”.

   5. As directed, the respondent’s notice of motion came on for hearing before the primary judge on 6 February 2023. The primary judge rejected the applicant’s request that his 30 January 2023 notice of motion be determined prior to the respondent’s 17 August 2022 notice of motion.

   6. As indicated above, after a contested hearing the primary judge made an order, pursuant to UCPR r 13.4(1)(b) that the proceedings be dismissed (on the basis that the Amended Statement of Claim disclosed no reasonable cause of action).

The proceedings in the Supreme Court

7. Having regard to the reasoning of the primary judge and the application for leave to appeal, it is necessary to begin by reference to the Amended Statement of Claim.

8. The origin of the proceedings brought by the applicant appears to be his construction of a building, on land owned by “the grandparents of [the applicant’s] children” in the local government area controlled by the respondent.

9. The Amended Statement of Claim begins with a narrative, recounted over more than two pages of typescript, of events said to have taken place in the early part of 2019. Put shortly, the applicant pleaded that, with the permission of the owners of the land, he had commenced the erection of a “shed” on the land, the purpose of which was to provide a workshop in which he could construct motor homes for sale. The applicant pleaded that, while he was out of the country on a short vacation, employees of the respondent had issued a “stop work” order on the construction on the basis that it was not a shed, but a dwelling, for which no development approval had been granted. The applicant recorded in the Amended Statement of Claim some confrontations with employees of the respondent.

10. The applicant claimed that the “stop work” order was unlawful, and that the building was a shed (for which development approval was not required) and not a “dwelling” (for which development approval would have been required). He pleaded that the so-called unlawful order constituted breaches of several provisions of the Local Government Act 1993 (NSW) as well as criminal offences under various provisions of the Criminal Code (Cth), including “Treatchory” (having been done with the intention of overthrowing the Commonwealth Government); conspiracy to defraud, and numerous others. The applicant also pleaded that the conduct constituted breaches (apparently of Articles 3, 8, 17 and 30) of the Universal Declaration of Human Rights.

11. The applicant then pleaded that, as a consequence of the respondent’s actions, the landowners had withdrawn their agreement to his use of the land for the construction of the “shed” and had agreed with the respondent that the construction was a “dwelling”, and that they then issued him with a “letter of eviction”, as a result of which he became homeless and had to live on the streets. The applicant pleaded that an employee of the respondent, a ranger named “Scott” began a course of “constant harassment”. An example of the harassment was the issue of parking tickets when the applicant parked his motor home in certain locations during hours to which parking prohibitions imposed by the respondent applied.

12. The applicant pleaded that this conduct was unlawful, that the respondent had “no legal law to exist with their self-entitled powers called Local Government Act 1993”. This, he pleaded, was because local government is not mentioned in the Australian Constitution, and because, in a referendum in 1988, Australian electors had declined to insert recognition of local government into the Constitution. The applicant then pleaded that the respondent had:

“…made itself into a corporation with an ACN number, and pretended to represent the people of the commonwealth, but in fact, was not legitimate, and has been operating unlawfully ever since.” (WB 84 [58]).

13. The applicant pleaded that the respondent had:

“…made themselves the owners of all camping and caravan parks in the entire shire and made rules and regulations to keep the people under their power unlawfully when they have no right or power to empower themselves.” WB 84[59]

He pleaded that, in doing so, the respondent had committed the same criminal offences as he had previously identified, and breaches of the Universal Declaration of Human Rights.

14. The applicant next pleaded that the respondent’s conduct was “a classic case of racketeering”. He again pleaded that the respondent had committed the same criminal offences and breaches of the Universal Declaration of Human Rights.

15. The applicant claimed “personal compensation” of $25,000,000, compensation for loss of income of $735,000, damages for loss of a stable place “for my lifestyle, workshop and place to park my life” of $128,700, personal compensation for harassment by the respondent of $100,000, and loss of tools and belongings of $15,000. (WB 87)

16. On 22 November 2023 the applicant served on the respondent a “Statement and Declaration of Truth Affidavit”, which covered 43 pages of typescript. This was summarised by the primary judge as follows at [11]:

“… [the applicant] states that his purpose (occupation) is ‘Galactic Emissary’; explains that he is the living man incarnated into Christopher Luke of the tribe/family/house/clan Turnbull; explains his various beliefs about matters such as the soul, the living man and competence; as well as various assertions, including about his own Universal sovereignty; deficiencies in his birth registration; that he is not lost at sea; claimed fictions; personage flowing from the Creator; and claimed violations of the Universal Declaration of Human Rights, on which he relies, despite his rejection of the United Nations. It, he says is a false authority and fictitious entity of identified claimed governments, including of this State. He also explains the reclaimed rights of his living body; private property; privacy data; as well as presumptions of claimed law on which he relied, including as to contracts, legal liability and the consequences of claimed responses, including silence.”

17. The “affidavit” opened with a statement of what were said to be “internationally accepted Maxims and Principles of Law”, and, in para 2, stated:

“This ‘Statement and Declaration of Truth’/‘Affidavit’ is given to all in order to;

i    establish, signify, proclaim, and verify the status of this living being; and

ii   to eliminate/deny any and all presumption by any and all fictitious, corporate or private entities; and

iii   to rebut any and all alleged claimed authority and/or jurisdiction of any and all fictitious, corporate or private entities, over the deponent, those entities being without standing upon the land … .” (WB 257)

18. There was a great deal more in the Affidavit. For example, the applicant asserted:

“4   We are a cosmic consciousness, also referred to as a ‘soul’; and

5   We are a vibrational awareness;

…

9   We are an aspect/creation of All That Is the Supreme Consciousness, also known as the Collective Consciousness, Allah, Yahweh, Source, and/or God Almighty, hereafter referred to as ‘The Creator’

…

17   Our ‘soul’ has had many incarnations in this ‘Earthly’ realm.”

19. There were many more pages of similar assertions. Some can be related to the claims made in the Amended Statement of Claim.

20. The applicant gave his “purpose (occupation)” as “Galactic Emissary”.

The proceedings in the Supreme Court

21. As mentioned above, the primary judge rejected the applicant’s request that his “Interlocutory application” of 30 January 2023 be addressed before the respondent’s earlier filed notice of motion. By reference to the “Statement and Declaration of Truth”, as well as to the Amended Statement of Claim, and other evidence provided by both the applicant and the respondent, the primary judge concluded that all the applicant’s claims are untenable. Her Honour dealt with the applicant’s claims under five headings, as follows:

• existence and authority of the respondent;

• allegations of racketeering;

• claimed breaches of the Universal Declaration of Human Rights;

• alleged breaches of the Local Government Act; and

• damages claimed.

Her Honour concluded, in each case, that the applicant’s claims were untenable.

22. With respect to the applicant’s argument concerning “the existence and authority of [the applicant]”, her Honour concluded at [44]:

“I am satisfied that despite the way in which [the applicant’s] arguments were variously advanced, there is no reasonably available argument that the Local Government Act is inconsistent with the Commonwealth Constitution, or that it or the [respondent] suffer from any illegality. The Constitution makes no reference to local government. That referenda which sought to insert such references in the Constitution failed is irrelevant to the laws made by the NSW Parliament, as its Constitution Act [1902 (NSW)] permits.”

23. With respect to the applicant’s claims of “racketeering and other alleged offending”, her Honour recounted, in summary form, the applicant’s contentions, which included contentions concerning the respondent’s powers concerning land usage, the absence of prior authorisation by First Nation’s people and “the laws of God”. Her Honour considered (at [55]-[59]) that these claims also were untenable.

24. Her Honour considered that the applicant’s claims of breaches of the Universal Declaration of Human Rights were not justiciable in the Supreme Court, there being no domestic, Commonwealth or state legislation making the provisions of the Declaration part of domestic law: at [60-[62]. Her Honour devoted several paragraphs to the applicant’s claim of breaches of the Local Government Act, but found that these, too, were untenable: at [63]-[76]. Her Honour then recorded the applicant’s claims for damages and concluded that there was no conceivable basis for the award of the claimed damages, noting that the applicant’s breaches of parking regulations were not disputed and that there was no basis for the applicant’s claims of illegality of the regulations.

25. Her Honour considered that the “real question” was whether the applicant should be given leave to replead. At [32] she acknowledged that proceedings should not be dismissed if there may be a real question to be tried, but also recognised that, if there is a high degree of certainty about the ultimate outcome if the proceedings were allowed to go to trial and it appears that there is no legally tenable cause of action, summary dismissal is the appropriate course. Her Honour cited authority to that effect.

The application for leave to appeal

26. The applicant purported to file a notice of appeal on 25 May 2023 which he served on the respondent on 5 June 2023. At a directions hearing on 21 June 2023 the applicant was advised by the Registrar that, as the orders against which he sought to appeal were interlocutory, his proposed appeal required leave: Supreme Court Act 1970 (NSW), s 101(2)(e). On 14 July 2023 the applicant filed a Summons Seeking Leave to Appeal. The grounds of appeal are stated (in the purported Notice of Appeal, which I will treat as a Draft Notice of Appeal) as:

1. Conflict of interest of Judge ‘Schmidt AJ’ as she did not declare that she is a member of the ‘BAR’, and did not declare that she works for ‘SUPREME COURT’ no authority.

2. Lack of due process, as the interlocutory Application was not dealt with.

3. Not given the right to be heard by a Jury.

4. No one living man can sit in Judgment of another living man. ‘MAXIM OF LAW’

5. Unchallenged Statement and Declaration of Truth Affidavit has been breached [with reference to paragraph numbers].”

   27. The applicant sought orders that the appeal be allowed, “the [unspecified] allegations be dismissed”, that his notice of motion “be completed”, trial by a jury, and that the matter be “reheard de novo” (WB 26).

   28. The applicant provided a Summary of Argument in support of his summons seeking leave to appeal. This document consisted of 76 short paragraphs, all except two of which state a different proposition. The propositions bear little, if any, relation to the grounds stated in the purported Notice of Appeal. I set out below samples of the applicant’s propositions, with comments.

   29. The applicant’s sixth proposition was as follows:

   “6.   I seek leave on the basis that due process was not followed.”

There was no further explanation of the failure to follow due process. It may be taken that this was a reference to the rejection by the primary judge of the applicant’s request that his “Interlocutory application” be dealt with before the respondent’s notice of motion. The determination of the primary judge to deal with the respondent’s notice of motion was both open to her as a matter of discretion, and logical. Acceptance of the respondent’s contentions could have resulted (and did result) in the termination of the proceedings. The respondent was entitled to have its notice of motion disposed of before being required to respond to the applicant’s belated “Interlocutory application”.

30. The applicant’s tenth proposition was:

“10.   The Judge has not addressed Constitutional issues involving its validity.”

This is incorrect: the primary judge, at [44] rejected the applicant’s contentions of Constitutional invalidity.

31. The applicant’s twelfth proposition was:

“12.   The Judge has not addressed the Separation of Powers.”

No issue of separation of powers was raised by the applicant, and his contention in the Summary of Argument is not further explained.

32. The applicant subsequently submitted that:

“24.   The Judge has not addressed the issue of First Nations People and their calls for Justice.

…

34.   The Judge has not addressed my title of Galactic Emissary and Diplomat.

…

37.   The Judge has exhibited a deliberate bias in characterising and referring to me as a ‘citizen’ or a ‘person’ and calling me ‘Mr Turnbull’ so as to bring it under a jurisdiction of her choice and not of the matter.”

The applicant has not explained the relevance of his claim to the title of Galactic Emissary. No issue was raised before the primary judge as to his status in this respect. Nor was any issue raised in the Amended Statement of Claim about First Nations people; a contention that the powers of the respondent depend on the consent of First Nations peoples was dealt with, correctly, by the primary judge at [57]:

“[First Nations people] are simply not given such powers, by either the Commonwealth or State Constitutions nor any laws made under them to which he referred, even if the Council has recognised such peoples to be traditional landowners of the land falling within its local council area.”

His complaints about being referred to as a “citizen”, or “person”, or as “Mr Turnbull” are not explained.

33. Further propositions were as follows:

“38.   The Judge has consented to the press-ganging of our land and financial assets and those of our ancestors.

…

42.   The Judge has failed to mention her oath or membership with the ‘Private Bar Guild’.

…

44.   The Judge has failed to address my agreement with the Creator and its authority over all other earth based agreements and authority.

The meaning of “press-ganging of our land” is obscure, as is the complaint about the primary judge’s oath or membership of “the Private Bar Guild”. Neither was raised during the proceedings. No issue was raised about the applicant’s agreement with the Creator.

34. This is only a small sample of the applicant’s propositions contained in the Summary of Argument. I have read and considered each of the propositions. Nothing in those propositions establishes any error on the part of the primary judge. In my opinion the primary judge correctly disposed of all contentions made by the applicant in the proceedings before her.

34. At the commencement of the hearing of the application for leave to appeal the applicant provided a document setting out his “Arguments for appeal”, under 11 headings.

35. The first heading was “Procedure”. The applicant referred to the decision of this Court in Goktas v Government Insurance Office (NSW) (1993) 31 NSWLR 684, which is a decision concerned with apprehended bias by a judicial officer. Apart from his complaint about being referred to as a “citizen”, “a person” or “Mr Turnbull”, the applicant identified no factual basis for any apprehended bias on the part of the primary judge. The argument may relate to the ground of appeal that complains that the primary judge failed to declare her membership of “the BAR”, and that she “works for ‘SUPREME COURT’”. If the applicant’s complaint is reference to the primary judge’s asserted membership of the NSW Bar Association, there is no evidence of any such membership, and if, indeed, her Honour is a member (or associate member) of that organisation, it provides no basis for an assertion of apprehended bias. That the primary judge “works for the Supreme Court” must be obvious; the proceedings would not have been before her Honour had she not held a commission as an acting judge of the Supreme Court.

36. The ninth heading in the applicant’s argument was “apprehended bias”. The argument made under that heading was that the primary judge did not admit the applicant’s affidavit into evidence. That assertion is incorrect. Her Honour did admit the affidavit and referred to parts of it in her judgment.

37. The second heading in the applicant’s argument was “Circumstances arising during the hearing”. The applicant complained that the primary judge made “adverse observations” during the course of the hearing. The bulk of the applicant’s submissions under this heading concerned her Honour’s decision not to deal with his “Interlocutory application” before dealing with the respondent’s notice of motion. I have addressed this argument at [29] above. Under this heading the applicant also made reference to authorities concerning “undue interference by a judge”. Apart from, again, making reference to the primary judge’s determination to deal with the respondent’s notice of motion first, the applicant did not identify any instance of undue interference by the primary judge.

38. The third heading in the applicant’s argument was “the opinion rule”, with reference to s 76 of the Evidence Act 1995 (NSW) and to the decision of the High Court in Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; [2011] HCA 21. The applicant did not identify any instance in the proceedings before the primary judge in which opinion evidence was tendered and either admitted or rejected. This contention was that his affidavit:

“…has to [be] accepted as it is, with all its relevance to the case, and it’s unrebutted authority, [sic] and, as the Council has failed to provide evidence requested in email of ownership and authority … that brings the Interlocutory application into relevance as a priority, and has been requested of the court to make orders for … [the sentence is incomplete].”

40. The opinion rule was not invoked in the proceedings before the primary judge and has no bearing on the present application for leave to appeal.

41. The fourth, fifth and sixth headings in the applicant’s argument were, respectively, “Discovery and inspection during proceedings”, “Discovery generally”, and “Relevant documents”. The applicant referred to UCPR r 21.2(1). He asserted that his “Interlocutory application” was a “document of discovery and is in alignment with rule for, order for discovery, of documents during proceedings”. That assertion is plainly incorrect. I have dealt with the primary judge’s treatment of the “Interlocutory application” at [29], above. No formal application for an order for discovery has been made and no order has been made. Discovery was immaterial in the proceedings before the primary judge, which were concerned with whether the Amended Statement of Claim disclosed any reasonable cause of action, had a tendency to cause prejudice, embarrassment or delay in the proceedings or was otherwise an abuse of the process of the court.

42. The applicant also made reference to an Equity Division Practice Note concerning discovery. This is plainly immaterial to the present proceedings.

43. The seventh heading in the applicant’s argument is “Jurisdiction”. The applicant referred to s 66(1) of the Supreme Court Act, which empowers the Supreme Court to grant orders restraining any threatened breach of contract or other injury.

44. The applicant contended that the respondent had “breached a contract that [he] had in place”. Presumably, this was a reference to the arrangement he had with the owners of the land on which building the subject of the respondent’s “stop work” order was being constructed, which (the applicant asserts) was terminated as a result of the stop work order issued by the respondent.

45. Again, the applicant’s argument was that his Interlocutory application should have been dealt with before the respondent’s notice of motion. I have disposed of this argument above.

46. The eighth heading in the applicant’s argument was “Relevant evidence”, with a reference to s 55 of the Evidence Act. The applicant referred to Papakosmas v The Queen (1999) 196 CLR 297; [1999] HCA 37 and BBH v The Queen (2012) 245 CLR 499; [2012] HCA 9 to the effect that evidence that is relevant is admissible so long as it has probative value. His complainant in this respect is difficult to identify, as the primary judge admitted, and had regard to, all of the evidence he put before her.

47. As mentioned above, the ninth heading in the argument was “Apprehended bias”. I have dealt with that in conjunction with the first heading.

48. The tenth heading in the argument is “Fraud”. The applicant cited a decision of the Supreme Court of the United States, and contended that “there is no place in Law for Fraud as outlined in the various points of Law presented to the Judge near the conclusion of the hearing, as Points of Fraud”.

49. The primary judge comprehensively and correctly dealt with the applicant’s allegations in the Amended Statement of Claim that the respondent’s conduct constituted, inter alia, conspiracy to defraud and racketeering. The applicant has not identified any error in the approach taken by her Honour.

50. The eleventh and final heading in the applicant’s argument was “Principals” (sic). The applicant complained that “breaches of Principles” were not dealt with (although the “principles” were not identified).

51. Under this heading the applicant contended:

“It seams [sic] that the entire last 100 years of recorded history that outlines the evidence of a global conspiracy is too much for the judge to fathom, despite the facts and science of the Covid-19 scam, and the calls of the W.E.F for a global control system of health, money, property, and genetics, by a private club that dictates to all governments, as outlined in the evidence,

Yes this case can seam [sic] to be very complicated, as the councils are making deals with these private clubs, or the case can be seen very simply, as in the charges against the council of Racketeering and Fraud charges that have not been addressed by the judge, as she dismisses the Affidavit of Truth like it’s a fiction story, instead of the claimed authority as a living man, over the fiction name of the C.Q.V Trust accounts that the council uses in its course of business, as seen in the harassment and fines that the council rangers issued, once again the authority of the council to make contracts with living people is in question, as they only deal with the trust accounts and in fraud.”

52. In the lengthy text that appears under this heading I can discern no identifiable error asserted to infect the reasoning of the primary judge.

53. The primary judge was conscious that the provisions of the UCPR invoked by the respondent (other than r 13.4(1)(b)) admitted of the possibility of making an order, short of dismissal of the proceedings, that would permit the applicant an opportunity to remedy any defect in the pleadings. The orders made indicate that her Honour considered that such an opportunity would be futile, since there is no semblance of any reasonably arguable cause of action in any of the documents filed by the applicant. That is a correct assessment.

54. Like the primary judge I am conscious that an order could be made that would allow the applicant further opportunity to plead his case. Like the primary judge I am satisfied that no amount of liberty would result in a viable pleading. The claims the applicant seeks to pursue are fundamentally flawed, and based upon an erroneous understanding of relevant legal principles.

55. I propose the following orders:

1. Leave to appeal is refused;

2. The applicant is to pay the respondent’s costs of the application.

   56. BASTEN AJA: I agree.

**********

Decision last updated: 08 December 2023