Young & Young v Attorney General of New South Wales

[2024] NSWSC 282

Supreme Court

New South Wales

Medium Neutral Citation:	Young & Young v Attorney General of New South Wales [2024] NSWSC 282
Hearing dates:	On the papers
Date of orders:	20 March 2024
Decision date:	20 March 2024
Jurisdiction:	Equity
Before:	Kunc J
Decision:	Summonses dismissed with costs
Catchwords:	EQUITY — Equitable interests in property — Nature of equitable interests — Birth certificate does not evidence or create any type of property or interest in property
Legislation Cited:	Uniform Civil Procedure Rules 2005 (NSW) Pt 13, r 13.4; Pt 14, r 14.28.
Cases Cited:	Aidan Llewellyn trading as the Trustee for the House of Llewellyn v State of New South Wales [2023] NSWSC 1250
Texts Cited:	Oxford English Dictionary, 2nd ed (1991)
Category:	Principal judgment
Parties:	Proceedings 2023/292705 Kyle Anthony Young (Plaintiff) Attorney General of New South Wales (Defendant) Proceedings 2023/292696 Shaun Anthony Young (Plaintiff) Attorney General of New South Wales (Defendant)
Representation:	Proceedings 2023/292705 Plaintiff (Self) Counsel: C Gardiner (Solicitor Advocate) (Defendant) Solicitors: Crown Solicitor (Defendant) Proceedings 2023/292696 Plaintiff (Self) Counsel: C Gardiner (Solicitor Advocate) (Defendant) Solicitors: Crown Solicitor (Defendant)
File Number(s):	2023/292705 2023/292696
Publication restriction:	Nil

JUDGMENT

Summary

1. The plaintiffs wish to give legal effect to their objection to being part of civil society under the rule of Australian law. If there is a way by which that can be done, they have not found it. For the reasons which follow, on the application of the defendant Attorney General (AG) each proceeding will be struck out with costs.

2. Each of the plaintiffs (to whom I shall refer without disrespect as Shaun and Kyle) has filed a summons naming the defendant as “His Majesty the King as represented by the Attorney General for the state of New South Wales”. By motion in each proceeding, the AG seeks orders that each summons be dismissed or struck out pursuant to Uniform Civil Procedure Rules 2005 (NSW) (UCPR) Pt 13, r 13.4 or Pt 14, r 14.28. Save for referring to the applicable plaintiff, Shaun’s and Kyle’s documents filed in each proceeding (including in response to the AG’s motions) are identical. In these reasons I shall refer only to Shaun. However, each reference should be read as including Kyle.

3. The AG’s motions came before me in the Applications List. Each of the plaintiffs appeared for himself. Mr C Gardiner, a Solicitor Advocate in the Crown Solicitor’s Office, appeared for the AG and was the author of the AG’s submissions in support of the motions.

4. In accordance with directions which I made, each of the plaintiffs filed (identical) submissions in response to the AG’s submissions. The parties then agreed at a directions hearing on 15 March 2024 that I should determine the motion on the papers.

Shaun’s case

5. The starting point of Shaun’s case appears to be what he submits is the non-consensual effect of his registered birth certificate. In Aidan Llewellyn trading as the Trustee for the House of Llewellyn v State of New South Wales [2023] NSWSC 1250, I considered a similar claim. In that case it was asserted that a registered birth certificate was a form of security:

18   The first is the Plaintiff’s proposition that either in and of itself, or by reason of the process of registration and certification or authentication, Mr Llewellyn's birth certificate is a form of security. The Court accepts the State’s submission that the birth certificate is plainly no such thing. Apart from anything else, it contains no words of charge, mortgage, guarantee or similar that one would expect to see in a document that met the orthodox legal definition of a "security". It is a birth certificate, undoubtedly an important document, but on no view is it a security creating rights as such under any law of this country.

6. In this case, Shaun does not directly assert that his birth certificate operates as a “security” (although there are suggestions in his affidavit that he thinks that to be the case). In these proceedings his birth certificate is fundamental to his submission that the registration of the birth certificate created both a legal interest and served to “deposit” an equitable estate with the Crown.

7. The tenor of the relief sought in the summons (which includes references to the Law Reform (Law and Equity) Act 1972 (NSW), the Trustee Act 1925 (NSW), the Conveyancing Act 1919 (NSW) and the Law Reform (Miscellaneous Provisions) Act 1965 (NSW)) may be gleaned from the first prayer for relief (Exhibit EX-1 being an authenticated copy of his birth certificate):

1. Where it appeared to the Court upon the discovery, and determination of a life or lives for the recovery of property pursuant to the Imperial Acts Interpretation Act 1969 No 30, Division 13:38 (5) Determination of a life or lives, where the plaintiff makes claim and thereby entitled (entitled "in-trust") to an equitable estate or right or to relief on an equitable ground against a Deed (Exhibit EX-1), and where it appears to the court no other party could possibly have a prior, equal or superior claim to the title, right(s), and interests claimed by the plaintiff, and upon grounds found that proper trust relations exist respecting the parties regarding the particular subject matter of the case: the parties involved ought to be put into the direct possession or direct control of the respective rights and corresponding duties touching and concerning the parties, given the plaintiff wishing to be discharged from the trusteeship, concerning a contingent right, namely, for the disposition of the legal title, right(s) and interest(s) of the legal estate, to be vested in the Crown; and the equitable estate or equitable title, rights and interests arising thereby in favour of the plaintiff, and where it urgently appears just, convenient and necessary to grant the order(s) for the relief(s) prayed for both generally and specially in nature, orders ought to issue out of and under the seal of the honorable (sic) court, made under the urgent nature of the plaintiffs case, and the court is warranted to grant the relief(s) unto the plaintiff duly prayed for, by virtue of the Supreme Court Act 1970 No.52, Section 58: Equities of the plaintiff…

8. Shaun’s complaint about the alleged effect of his birth certificate appears in this passage from his written submissions:

Whereas the plaintiff was not the issuer of Exhibit EX-1 (he who issues owns), nor having any part in its creation, nor said instrument bearing the plaintiffs signature or seal, and furthermore the plaintiff not having signed the founding document (birth registration statement) that the accusation was derived from, the said accusation of placing the civil legal surname upon a child at the time of the legal "birth event”:

9. Shaun sets out this summary of his claim in his submissions:   

The proceeding was initiated by the plaintiff for the intent purpose of seeking the execution of a trust and for complete redress regarding fraud that has come to my attention (there is no statute of limitations for fraud), said fraud having been committed whereby I as the plaintiff unknowingly, by mistake (error) assumed a legal interest and title to property belonging to the State (the Crown) due to not having full disclosure regarding the nature of the "birth event'; non-disclosure = lie of omission and/or an outright lie that is used/deployed as a line of darkness against others to blind them to allow the liar to take advantage of them; both forms of lie are tantamount to wilful negligent fraud. Such fraud is often allowed under the pathetic excuse of "plausible deniability".

I am a conscientious objector to any form of legal civil participation, nor can I bear a gentilitious name ("surname") in a good faith, said gentilitious name ("the Crowns property") being the addition to, and placed over my God given Christian name; Addition - whatever is added to a Man's name by title or description: the Legal cloak (Job 32:21-22 KJV), "where truth is, the fiction of law (legal) is extinguished". I have come to the Court to remove the legal cloak from my being, thereby no longer acting "in persona”.

10. “Gentilitious” is a seventeenth century word which means “of or pertaining to a gens or family” (Oxford English Dictionary, 2^nd ed (1991)).

11. Finally, to understand Shaun’s claim I gratefully adopt as an accurate summary this extract from Mr Gardiner’s submissions:

14.   From the plaintiffs' reply to those queries, read in conjunction with the material contained in the affidavit filed in support of the summons, the defendant understands the claim to be based upon the following propositions:

•   That, by virtue of their birth, the plaintiffs were granted an interest in an estate which they describes as:

“a birthright estate (equitable estate), the priority equitable interest to lands (dominion) from the Creator/God (Yahweh) by and through my co­ creators (mother and father), with said equitable estate identified by my God given 'Christian name"

•   That, by virtue of the registration of his birth, this 'birthright estate' was 'deposited' with the Registrar General;

•   That the registration of his birth resulted in the creation of a legal estate (consisting of, or connected to, their surname), held in trust by the Crown;

•   That all interests in the estate were abandoned by the failure of the plaintiffs' parents to express any trust relationship or give directives in relation to nominating the plaintiffs as beneficiary of the trust or appointing the monarch as trustee;

•   That, by voluntarily engaging with various government agencies under the name reflected in their birth certificate, they "voluntarily undertook trusteeship of the legal title as trustee ex maleficio, which "further confirmed the abandonment" of the equitable estate. Further, they "unknowingly assumed possession of Crown property" by using their surname "merged" with his "God given" name;

•   That the plaintiffs seek to be discharged from the trusteeship of the legal title and return it to the Crown, and consequently restore their original position within the equitable estate;

15.   The plaintiffs assert that they are claiming their beneficial interests in the 'birth event' recorded by the Registrar General in their birth certificate, such to "serve the Creator/God (the Father/Lord) in my birthright estate." They further assert that they are "no longer in need of any guardianship", seeks to expunge their name from electoral rolls so as no other party may execute his will with regards to the power of representation, namely parliamentary representation.

Consideration

12. What follows is derived from, and reflects an acceptance by the Court of, the AG’s submissions.

13. The “birthright estate” which appears to lie at the heart of Shaun’s claim is not an estate known to law or equity. It is certainly not something which is brought into existence by the act of registration of a birth or is evidenced by a birth certificate. In Llewellyn I determined that a birth certificate, either in and of itself or by its registration, does not create or evidence anything which the law would recognise as a “security”. Similarly, the Court finds that a birth certificate, either in and of itself or by its registration, does not create, evidence or alter any kind of property or right in property known to Australian law, whether in law, equity or otherwise.

Conclusion

14. Shaun’s claim is predicated upon the existence of an estate or interest in property of a kind that does not exist under Australian law. There is therefore nothing which can be the subject of the various estates or interests referred to in the summons.

15. It follows from the preceding paragraph that the requirements of both UCPR Pt 13, r 13.4 and Pt 14, r 14.28 are clearly satisfied. The Court finds that the summons discloses no reasonable cause of action within the meaning of either rule.

16. Pursuant to UCPR r 13.4(1)(b), in relation each of Shaun and Kyle’s proceedings, the orders of the Court are:

1. Summons dismissed.

2. The plaintiff is to pay the defendant’s costs of the proceedings.

3. Liberty to the defendant to apply on or before 4 April 2024 by email to the Associate to Kunc J in relation to any special costs application, including for costs to be assessed as a gross sum.

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Decision last updated: 20 March 2024