Supreme Court of Norfolk Island

Westpac Banking Corporation v Summerscales (No 2) [2023] NFSC 5

ORDERS

THE COURT ORDERS THAT:

1.    The defendant’s Interlocutory process dated 31 May 2023 and the defendant’s Application in proceeding dated 31 May 2023 be dismissed.

2.    There be judgment for the plaintiff against the defendant for possession of land as mortgagee pursuant to the terms of Registered Mortgage No. 8627 (Mortgage) given by the defendant in respect of the land described as Lot 7 Section 32 Portion 145g Sheet Number 85 being the whole of the land contained in Title Number 2016 and known as 10 Berrys Lane (also known as Portion 145G Berrys Lane) on Norfolk Island.

3.    No application under Chapter 2, Part 2.18, Division 2.18.13 of the Court Procedures Rules 2006 (ACT) be made for an order authorising an enforcement officer to enter on the land referred to in the preceding order and deliver possession of the land and appurtenances to the plaintiff before 12 February 2024.

REASONS FOR JUDGMENT

BESANKO CJ:

Introduction

1    This is an application by the plaintiff to a proceeding before the Court, Westpac Banking Corporation (Westpac), for summary judgment against the defendant, Grant Oliver Summerscales (Mr Summerscales). The Application for summary judgment is brought by Westpac pursuant to r 1146(2) of the Court Procedures Rules 2006 (ACT) (the Rules) (see s 19(4) of the Supreme Court Act 1960 (NI)). That rule provides that the Court may grant summary judgment unless the Court is satisfied that the defendant has a good defence to the claim for relief on the merits or sufficient facts are disclosed to entitle the defendant to defend the claim for relief generally.

2    The order which is sought by Westpac against Mr Summerscales is as follows:

The Court gives summary judgment for the Plaintiff against the Defendant for possession of land as mortgagee pursuant to the terms of Registered Mortgage No. 8627 (Mortgage) given by the Defendant in respect of the land described as Lot 7 Section 32 Portion 145g Sheet Number 85 being the whole of the land contained in Title Number 2016 and known as 10 Berrys Lane (also known as Portion 145G Berrys Lane) on Norfolk Island.

3    Unless possession is given voluntarily, such an order is the first stage of the process whereby Westpac may obtain possession of the land. The second stage involves Westpac obtaining an order for delivery of possession of the land (rr 2451–2452).

4    These reasons are divided into three sections. The first section deals with the evidence put forward in support of Westpac’s claim. The second section deals with the matters Mr Summerscales has raised in response to Westpac’s claim. The third section deals specifically with the events surrounding Westpac’s application for summary judgment.

The Evidence in Support of Westpac’s Claim

5    The first affidavit relied on by Westpac is that of Ms Lauren Clarke, who is a case manager employed by Westpac. Ms Clarke gives evidence of the loan agreement and mortgage referred to below by reference to Westpac’s business records.

6    On or about 15 September 2011, Westpac sent a letter to Mr Summerscales which contained an offer by Westpac to provide a loan to Mr Summerscales of $318,000. The loan was to carry interest at the bank’s variable housing rate and was repayable over a period of 25 years. The loan was to be secured by a mortgage and upon the loan being made, an existing loan was to be repaid.

7    The letter contained a section entitled “Additional Terms and Conditions” which included the following:

LOAN PURPOSE

The predominant purpose of this loan is repay existing Loan account 032855 141059 in the name of Grant Oliver Summerscales and Candida Laura Langman and to assist with Family settlements.

…

SECURITY

The following will be Security for this contract. You are not obliged to give any new Security to the Bank but your loan cannot be drawn until the Security is completed and signed in the form required by the Bank.

An existing Mortgage by Grant Oliver Summerscales and Candida Laura Langman over: Portion 145g Berrys Lane Norfolk Island (To be released).

A new Mortgage by Grant Oliver Summerscales over: Portion 145g Berrys Lane Norfolk Island (to be taken).

The document is signed in two places by Mr Summerscales and dated 22 September 2011. Westpac’s terms and conditions included terms and conditions in a loan booklet which was referred to in the letter and accompanied it. The loan booklet contains a statement that it sets out the bank’s standard terms and conditions for its home loans.

8    Under the terms of the loan agreement, Mr Summerscales was required to make monthly repayments of $2,281 from 15 October 2011 to 15 September 2036. A mortgage document was prepared and apparently executed by Westpac and Mr Summerscales and is dated 19 December 2011.

9    Under the loan agreement, “default interest” becomes payable on the overdue amount if the borrower does not make a payment when due and is payable from the day it was due until it is paid and is calculated daily at the default rate divided by 365. The security was to be completed and signed in the form required by the bank before the loan could be drawn down. Mr Summerscales’ security obligations are set out in, among other documents, the loan booklet at clause 13 and those obligations include an obligation to do everything he promised to do under the mortgage or security for the loan. The mortgage document includes a Memorandum of Common Provisions and, as Westpac pointed out in argument, those common provisions include the following:

(1)    Clause B1 requires Mr Summerscales to pay to Westpac all money he owes to the bank under the secured arrangements and the term “secured arrangement” is defined to include the loan agreement (including interest and charges) and to pay all reasonable amounts that Westpac reasonably spends or incurs in relation to the enforcement of the mortgage;

(2)    Clause C2 provides that if Mr Summerscales fails to pay Westpac an amount due under the mortgage or fails to do what he has promised to do and that failure continues for at least 7 days, then Westpac may serve a notice on Mr Summerscales outlining the failure and then if the failure continues for a further 31 days, Westpac may require Mr Summerscales to pay all of the money secured by the mortgage and may take possession of and sell the property; and

(3)    Clause E4 provides that a written statement by an officer of Westpac as to amounts owing under the mortgage is sufficient evidence against Mr Summerscales unless he can prove that it is wrong.

10    The loan was drawn down by Mr Summerscales.

11    On 15 September 2022, the amount in arrears under the loan agreement was $134,696.16. At that point, Mr Summerscales was in default under the loan agreement and the mortgage and Westpac issued and served a Notice of default in respect of those defaults under s 88 of the National Credit Code. As I have said, the unpaid amount was $134,696.16 and if that amount was not paid within 31 days, then the amount payable was $362,607.16.

12    The evidence provided in an affidavit of Rachel Maree Rouyanian, who is a solicitor employed by Westpac’s solicitors, satisfies me that the default notice under s 88 was served on Mr Summerscales.

13    I am satisfied that the default notice was not complied with.

14    If we move forward a little under a year to 15 August 2023, the amount in arrears at that point was $181,351.47 and the amount payable by Mr Summerscales under the loan agreement and the mortgage was $410,833.47. The evidence satisfies me that there has been no deposit into the account by way of reduction of the debit balance of the loan facility since a deposit of $1,800 was made on 20 December 2016.

15    Ms Clarke deposes to the fact that she has read Mr Summerscales’ Defence and Amended Defence and that in light of the matters set out in her affidavit, she does not believe he has a good defence to the claim for relief on the merits and there has been no disclosure of sufficient facts to entitle Mr Summerscales to defend the claim for relief and that Mr Summerscales has no prospects of success.

16    Mr Robert Kneen is a First Constable of Police on Norfolk Island. Affidavits from him establish service on Mr Summerscales of the Application for summary judgment and accompanying affidavits and submissions.

17    After Westpac commenced these proceedings, Mr Summerscales filed a Notice of intention to respond to Westpac’s claim on 1 June 2023 challenging the jurisdiction of the Court and asserting an irregularity.

18    It is not without significance in terms of the merits of Westpac’s claim, that Mr Summerscales told me at the first case management hearing in this proceeding on 22 June 2023 that he had asked Westpac to release him from “this lease” and asked it “to give me a payout figure so that I could pay”. He said that Westpac had refused to do that.

Mr Summerscales’ Response to Westpac’s Claim

19    I divide this topic into matters raised in documents and matters raised in hearings and start with matters raised in documents.

20    Mr Summerscales has filed two Defences in the course of this proceeding.

21    His first Defence was filed on 31 August 2023. In that Defence, he did not raise any matter which specifically related to the loan agreement or the mortgage or Mr Summerscales’ alleged default under the provisions in either of those documents. He purports, however, to challenge the jurisdiction of the Supreme Court of Norfolk Island. He refers to various pieces of legislation and he asserts that certain legislation was “unlawful and illegal and void, ab initio and as to the constitution and/or composition of the so-called said Supreme Court of Norfolk Island …”. He also asserts that any judicial officer or registrar sitting in the Supreme Court of Norfolk Island was doing so as a “persona designate” and had no lawful capacity or jurisdiction to do so. He further asserts that Westpac was trading unlawfully, illegally and in direct violation of the laws of “Norf’k Ailen” or Norfolk Island people in every manner whatsoever. He challenges Westpac’s standing to bring this proceeding.

22    In his Amended Defence filed on 12 September 2023, Mr Summerscales reiterates these “pleas” and adds the following “plea”:

4.    and in that at the outset, the standing of the Applicant Plaintiff to bring this action whatsoever, is challanged [sic] in that pursuant to the Territories Legislation Amendment Act, 2016 (Cth) [Act No 26 of 2016] [Assented to on 23 March 2016], the amendments to the ACTS INTERPRETATION ACT 1901 (Cth) “Norfolk Island” was only included into the definition of “Australia” within the meaning of the Commonwealth of Australia, on or after 24th March 2016, were unlawful and illegal AND as such and banking arrangements between the Applicant/Plaintiff and the Respondent/Defendant which were concluded before the abovementioned date dictates that any such arrangement breaches any contractual arrangement between the parties, rendering the arrangement void and/or voidable ab initio. and as such, also breaching the Banking Act, 1959 (Cth).

23    On 27 July 2023, Mr Summerscales filed an Interlocutory process and affidavit. In the former document, Mr Summerscales made a request for a number of “orders”, including the following order:

An order that the plaintiff provide sufficient evidence that this Court, sitting as the Supreme Court of Norfolk Island is a competent court of record and is legally and lawfully constituted, to be able to hand down confident judgment and has the requisite jurisdiction to bind this “court” and the parties to this action.

24    In the affidavit, Mr Summerscales alleged that “the only lawful and legal government on Norfolk Island is that law introduced to Norfolk Island by the Pitcairn Settlers” and that the descendants of the Pitcairn Settlers still survive and include Mr Summerscales. As I understand it, Mr Summerscales asserts that neither Westpac nor the Commonwealth of Australia nor the State of New South Wales has any jurisdiction over Mr Summerscales or the Pitcairn people (“me or my people”).

25    This Interlocutory process was dismissed at the hearing on 10 August 2023 which is described below.

26    On 7 August 2023, Mr Summerscales purported to file an Amended Interlocutory process and affidavit. The main thrust of this seemed to be that Mr Summerscales will be seeking an order that Westpac pay a sum of “five (5) times the sum of this action, to be paid into Court as a ‘Peregrini Payments into Court’”. This Interlocutory process was also dismissed on 10 August 2023.

27    On 9 August 2023, two documents were filed. One document was an “Application for leave to intervene” filed by a person purporting to be the Attorney-General of the Norf’k Ailen Government. The document purported to be an Application to intervene and for orders that the current proceedings be dismissed for want of jurisdiction of the Court. The affidavit was filed by a person claiming to be “‘RO’ of the clan ‘i.am.ro’” and claiming to be the current Attorney-General of Norf’k Ailen Government. The person apparently swearing the affidavit said that he was appointed to his current position by the Norf’k Ailen Chief Magistrate. He deposes that he did not appoint or establish any Supreme Court on the “terra-firma” known as Norf’k Ailen since his tenure. He states that since his appointment, no Court known or addressed as the Supreme Court was in existence. He states that he did not appoint any Chief Justice and he states that no such office existed upon his appointment. He states that any seals applied to the documents are not seals approved or authorised by the Norf’k Ailen Government. As to the Court, he states that it is “not a Court that has any jurisdiction upon the Constitution and Laws of the Norf’k Ailen Government, either now or historically from before these people arrived on Norf’k Ailen from Pitcairn Island on 8th June 1856”. The Application for leave to intervene was dismissed on 10 August 2023.

28    The only matters raised by Mr Summerscales relating to the loan agreement or the mortgage or Mr Summerscales’ alleged default under the provisions of either document were the provision of an account with respect to the amounts owing under the loan agreement and mortgage and the provision of a certified copy of the mortgage. Those matters appear to be the subject of his Interlocutory process dated 31 May 2023 and his Application in proceeding also dated 31 May 2023. As to the former matter, I am satisfied that the provision of the Westpac statements for the period from 15 February 2017 to 15 May 2023 attached to Ms Rouyanian’s affidavit sworn on 21 June 2023 (Statements Nos 24 to 48) and as to the latter matter, the certified copy of the mortgage attached to the same affidavit are sufficient answers to those requests in the absence of any evidence to suggest that that is not the case. The position with respect to the applications should be formalised and I will make an order dismissing those applications.

29    One other matter should be mentioned. Reference was made to the recording of the mortgage on the certificate of title for the land issued under the Land Titles Act 1996 (NI). Although that was done and is shown on Edition 7 in 2019, for some reason unexplained in the correspondence from the Registrar of Titles, it appears it was omitted from Edition 8 in May 2022 and reinstated on Edition 9 in August 2022. There is no suggestion that this correction was not lawfully made by the Registrar under the Land Titles Act. In any event, in the absence of any persuasive submissions to the contrary, I am unable to see how the date of registration of the mortgage on the title is relevant to the existence of the mortgage or its enforceability.

30    There have been a number of hearings before the Court and I turn now to make some relevant observations about what has transpired at those hearings.

31    At the first case management hearing on 22 June 2023, Mr Summerscales appeared in person. He told me that he had a disability and would like a friend to assist him. I was informed that the name of that friend was a Ms Cherri Buffett. Westpac had no objection and I permitted that to occur, although in the result, Ms Buffett made no comments to the Court and Mr Summerscales made oral submissions on his own behalf. I have already referred to Mr Summerscales’ statement that he was seeking a payout figure so that he could pay out Westpac.

32    At the first case management hearing, Mr Summerscales asserted that the Court did not represent the people of Norfolk Island “people like myself”. He said that the Court that I was sitting in and the documents produced appeared to be foreign to the people of Norfolk Island. He asserted that he needed to be satisfied that the Court had jurisdiction in Norfolk Island. I made an order that Mr Summerscales file a Defence by 27 July 2023 and adjourned the matter for a further case management hearing on 10 August 2023.

33    I conducted a second case management hearing on 10 August 2023. At that time, Mr Summerscales had not filed a Defence. He said that that was because the Court had not actually established its jurisdiction and that it was not possible to go forward until the jurisdiction of the Court was established. I referred Mr Summerscales to the conferral of jurisdiction by s 5 of the Supreme Court Act of Norfolk Island and asked Mr Summerscales to identify a basis upon which I could go behind that conferral of jurisdiction. Mr Summerscales asked whether “my Attorney general” was in the Court in Adelaide. Mr Summerscales asked whether it was possible for “my Attorney general to speak for me”. I told him that that was not possible. I again asked Mr Summerscales to identify the basis upon which I could go behind the conferral of jurisdiction by s 5 of the Supreme Court Act of Norfolk Island. Mr Summerscales then asserted that the Court was an unlawful court. As to the Supreme Court Act of Norfolk Island, he said the following:

… those are all Acts that – pushed on us by Australia, not Acts made by people of Norfolk Island or our Norfolk Island government.

34    At or about this point, an adult female in the courtroom in Norfolk Island interrupted the proceeding and asserted that she was the Chief Magistrate “as appointed by the people of Norfolk Island to act under the Pitcairn Constitution that was brought here and instigated in 1856”. There was then an exchange between this person and myself which is recorded in the transcript. The female adult asserting to be the Chief Magistrate then said the following referring to a person she described as “our Attorney general”:

He has on file documents appointing an Attorney general under the Pitcairn Constitution, and he showing bias to the Australian judicial system by not even imploring our request to have our Attorney general in court. So you need to explain why we do not have representation in your court.

35    Mr Summerscales then asserted that Norfolk Island did not belong to Australia. It was not in my jurisdiction and not in my Constitution. He asserted that I was acting outside of my Constitution and violating “our constitution and our court”. At that point, I asked Mr Summerscales whether he wanted an opportunity to put in writing why I should go behind the conferral of jurisdiction in s 5 of the Supreme Court Act of Norfolk Island. At that point, the adult female said that the Court is a defunct court and a court not erected by the Norfolk Island government and the people of Norfolk Island.

36    I then heard from Westpac. After they had completed their submissions, I noted for the purposes of the transcript that the defendant and Ms Buffett and the person claiming to be the Chief Magistrate left the courtroom in Norfolk Island before counsel for Westpac commenced her submissions.

37    A person identifying himself as Mr Ro was present in the courtroom in Adelaide and I asked him whether he had anything to add to the material that was put forward in support of his Application to intervene. He made some observations. I then dismissed the application for leave to intervene.

38    It will be clear from what I have set out above that nothing has been put forward by Mr Summerscales to indicate that he has any defence to Westpac’s claim on the merits. Nor have sufficient facts been disclosed to entitle Mr Summerscales to defend the claim for relief.

Westpac’s Application for Summary Judgment

39    At a case management hearing on 13 September 2023 at which Mr Summerscales appeared (announcing that his name was “Grant”), Westpac foreshadowed an application for summary judgment. I made the following orders:

1.    Any application for summary judgment (Summary Judgment Application) be filed by the Plaintiff by 20 September 2023.

2.     The Defendant file and serve any affidavit material in response to the Summary Judgment Application by 4 October 2023.

3.     The Plaintiff file and serve a written outline of submissions in respect of its Summary Judgment Application by 11 October 2023.

4.    The Defendant file and serve any written outline of submissions in respect of the Summary Judgment Application by 25 October 2023.

5.     The Summary Judgment Application be listed for hearing on 10:30am Norfolk Island time on 14 November 2023 or on the date next available to this Honourable Court.

6.     Any material to be filed in accordance with Orders 1 to 5 may be filed electronically by sending it by email to the Registry at the following email addresses: allen.bataille@courts.gov.nf; Margaret.evans@courts.gov.nf; and registrar@courts.gov.nf.

40    Westpac issued its summary judgment application on 20 September 2023 together with the affidavits of Ms Clarke and Ms Rouyanian (order 1). It provided an outline of submissions on 11 October 2023 (order 3). As it happened, I was not available on 14 November 2023 and the parties were advised that the matter had been relisted for 21 November 2023. I will come back to how Mr Summerscales was advised of the change of date.

41    Mr Summerscales did not file any affidavit material by 4 October 2023 in accordance with order 2 or a written outline of submissions by 25 October 2023 in accordance with order 4 and he did not appear on 21 November 2023.

42    What Mr Summerscales did do between 13 September 2023 and 21 November 2023, or claimed that he did, was the following:

(1)    It seems that on or about 14 November 2023, Mr Summerscales sought to file an Interlocutory process and affidavit. The Registrar of the Court refused to accept the documents (r 6142). The documents were returned to Mr Summerscales as required by the Rules (r 6143). As it happened, copies of the documents were later sent to the Registry of the Court on Norfolk Island with “no apparent sender” via Officeworks which is not located on Norfolk Island. In light of Mr Summerscales’ status as a self-represented litigant and the significance of the order being sought by Westpac, I considered the matters raised in the documents in case they raised something new that might be relevant to whether or not summary judgment ought to be granted. They do not. The focus of a foreshadowed defence is the jurisdiction of the Court and whether, to use Mr Summerscales words, “the sitting of this Court is under a foreign jurisdiction, namely under Australian laws”. The alternative or perhaps additional defence (which of these it is not clear to me) was that my appointment as Chief Justice was and is invalid because it was made before “Norf’k Ailen” became part of Australia on 24 March 2016. Mr Summerscales also asserted that the Australian Government “are still attempting to mask their unlawful behaviour to try to usurp control over Norf’k Ailen (also known as Norfolk Island)”. Finally, Mr Summerscales asserted that Westpac “acted unlawfully in its dealings with the banking transactions related to the core matters of the merits of this Claim”. No particulars whatsoever of this serious allegation of unlawful conduct are provided. Mr Summerscales has had ample opportunity to provide any relevant particulars of any alleged unlawful conduct by Westpac. Had I thought that there was anything in these documents, I might have given Mr Summerscales an opportunity to file a further affidavit, but there is nothing. In his affidavit, Mr Summerscales said that he attended the Court on 14 November 2023 and that he was then told that the matter had been stood over to 21 November 2023.

(2)    There was then correspondence between the Registrar and Mr Summerscales wherein Mr Summerscales complained about the Registrar’s refusal to accept his documents and the fixing of a new date. He said that he was unavailable on the new date.

Mr Summerscales delivered a letter to the Registrar on 16 November 2023. He complained about the reference to a post office box on Norfolk Island. He states that he is bewildered as to why the Registrar would address a letter to a post office box number. He states that he does not have a post office box. He again raises the Registrar’s refusal to accept documents. He states that he has not been served with any advice or information of the orders made on 13 September 2023, nor any advice that the matter was now stood adjourned to 21 November 2023. He states that he will appeal from the refusal to allow him to file his Interlocutory application. He states that he is unavailable to attend Court on 21 November 2023. He states that should the Registrar be prepared to allow him to appear by video link, he will endeavour to accommodate matters.

(3)    On the morning of 21 November 2023 and shortly before the hearing on that day, Mr Summerscales sent a letter to the Court which contained the following:

I, Grant of the Summerscales family hereby authorise Cherri Buffett, to act on my behalf and to have a look at my file SC 4 2022 and to request copy of any documents within that file.

If there is a Hearing today for SC 4 2022 then I request to appear by AVL and would ask you to give Cherri Buffett the log in details.

I refused the request in the second paragraph of this letter. It is true that I allowed Westpac’s counsel, who was located in New South Wales, to appear remotely. Mr Summerscales, however, was on Norfolk Island and the request in the second paragraph was made very late and without a reason being provided. The nature of the request was unclear. The Court was asked to provide log in details to Ms Cherri Buffett and Mr Summerscales stated that he authorised Ms Cherri Buffett to appear on his behalf. Precisely what that meant was unclear. Even if this was no more than a request to be assisted by a McKenzie friend, I considered that allowing a person to appear remotely assisted by a McKenzie friend was a matter which was capable of creating difficulties.

43    In terms of the notice given to Mr Summerscales of the change of date from 14 November 2023 to 21 November 2023 and then the adjournment from 21 November 2023 to 28 November 2023, the following should be noted.

44    Mr Summerscales filed a Notice of intention to respond on 1 June 2023, the notice records his address for service as 10 Berrys Lane, Norfolk Island, no other contact details are included in the notice or any subsequent documents filed by Mr Summerscales.

45    On 14 June 2023, Mr Summerscales hand delivered a letter to the Registry dealing with the post office box. The letter was in the following terms:

Dear Deputy Registrar

Thankyou for your email and the information received from the Associate of Judge Besanko.

I do not have an internet service and I would like to have any communication of documents sent to c/- PO Box 8 Norfolk Island. This way I can be assured that the documents will be received by me.

Thank you for your assistance in this matter.

Regards

Grant: of the Summerscales family

46    Since 14 June 2023, correspondence from the Court has been sent to the above post office box.

47    I note at this point that Westpac has copied in an email address for Mr Summerscales in its correspondence to the Court. The Court has also copied in the email address for Mr Summerscales in addition to sending the correspondence to the post office box. There is evidence contained in an affidavit filed by Westpac that Mr Summerscales has communicated with Westpac using an email address. The affidavit of Ms Rouyanian sworn on 21 June 2023 and, in particular, RR-1 pages 13–14, show communications between Westpac’s solicitors and Mr Summerscales in late May 2023 using an email address for Mr Summerscales. The Court advised the parties by email of the change of date from 14 November 2023 to 21 November 2023. I do not need to rely on this to conclude that Mr Summerscales had notice of the hearing on 21 November 2023 because it is clear from the matters referred to below that he did have such notice (see [49]).

48    Mr Summerscales appeared in person at the Norfolk Island courthouse for the case management hearing on 13 September 2023. During the case management hearing, Mr Summerscales was provided with a hard copy of the proposed orders sought by Westpac and the Court adjourned for a period of time to allow Mr Summerscales to consider those orders. The Court asked Mr Summerscales if he wanted to say anything about the orders. The orders were then made orally in the form proposed by Westpac except for the date in order 5 being extended to 14 November 2023 or on the date next available to the Court because Mr Summerscales had “some other matters on”.

49    As I have said, the parties were advised of the change of date from 14 November 2023 to 21 November 2023 by email on 2 November 2023. A letter enclosing the email and a copy of the 13 September 2023 orders were posted to the post office box address provided by Mr Summerscales. In addition, on his own account, Mr Summerscales was also advised of the change of date when he attended the Registry to file documents on 14 November 2023. There is also Mr Summerscales’ letter provided to the Court shortly before the hearing on 21 November 2023 and referred to in [42](3) above.

50    At the hearing on 21 November 2023, counsel for Westpac appeared, but there was no appearance by Mr Summerscales. I heard submissions from counsel for Westpac in support of Westpac’s application for summary judgment. Although I considered Mr Summerscales had adequate notice of the hearing on 21 November 2023, I decided to give him a further chance to appear and make submissions. I then made the following orders:

1.    The application brought by the plaintiff dated 19 September 2023 be adjourned to Tuesday, 28 November 2023 at 10:30 am Norfolk Island time.

2.    The plaintiff serve the defendant with a copy of the transcript of this morning’s hearing and a note as to the adjourned hearing date and time by 4:00 pm on Thursday, 23 November 2023.

51    On 23 November 2023, Westpac filed an affidavit of Senior Constable of Police, Robert Kneen. Senior Constable Kneen was instructed by Westpac to serve Mr Summerscales with a letter from Westpac’s solicitors stating that Westpac’s summary judgment application had been adjourned to 10.30 am Norfolk Island time on Tuesday, 28 November 2023. A sealed copy of the order and the transcript of the hearing was also part of the instructions.

52    Senior Constable Kneen attended Mr Summerscales’ property with Senior Constable Mukhim on 23 November 2023 and he left a copy of the documents that had been placed in a clear plastic sleeve on the front doormat on the porch of the property. Photographs of the documents in that position are attached to Senior Constable Kneen’s affidavit. Senior Constable Kneen deposes as follows:

Mr Summerscales is known to me in my capacity as officer of the Australian Federal Police. I have spoken to Mr Summerscales on two previous occasions and seen him on Norfolk Island on multiple occasions. I know the Property to be Mr Summerscales’ place of residence because I have personally served Mr Summerscales at that location on one prior occasion and I have previously responded to a noise complaint whereby the complainant stated Mr Summerscales was trying to rest at that address and was being disturbed by shooting on a neighbouring property.

53    There was also an affidavit by a solicitor employed by the solicitors for Westpac (Harriet Campbell Lomas). The solicitor annexed the same letter, transcript and sealed order of 21 November 2023. The solicitor deposes to the fact that she sent the letter and transcript to Mr Summerscales at the email addresses she had for him and shortly thereafter, a copy of the sealed order. Again, I do not need to rely on this in view of the other evidence previously outlined.

54    A bundle of papers was handed to the Registrar by Ms Cherri Buffett before the hearing on the morning of 28 November 2023. Those papers included a letter from Mr Summerscales dated 28 November 2023, a letter purporting to be from the Chief Magistrate of the Norf’k Ailen Government dated 28 November 2023, and two affidavits, one of Darryl Mark O’Bryan and the other of Darren Dickson.

55    In his letter, Mr Summerscales refers to the refusal by the Registrar to accept documents he put forward for filing. Mr Summerscales asserts that he had not been consulted as to his availability for another date for hearing and, in particular, 28 November 2023. He refers to the fact that he attended the courthouse on 14 November 2023 and that it was closed. He states that he then went to the Registrar’s office and was advised that the hearing had been postponed. He had not been advised that the hearing would not be held on 14 November 2023. He states that “for personal medical reasons” he would not be able to attend a hearing on 28 November 2023 and now did not have a confirmed date as to when that may even be considered. He asserts that since his first appearance in the matter, all of his documents have been ignored or dismissed. He asserts that I have failed in various duties. He states that since the first hearing in the matter, he has continued to ask for evidence that the Court is a lawful and legal court of “Norf’k Ailen (also known as Norfolk Island)”. He states that he considers that he is entitled to question the jurisdiction of the Court and that the Court must address the jurisdictional question. He states that the Australian Government Hansard shows that Norfolk Island has never been part of the State of New South Wales since Federation. He also refers to publicly available Australian Government official documents after 2014. He states that they show that Norfolk Island has never been part of the State of New South Wales and is not part of, owned by, or annexed to the Commonwealth of Australia. He asserts that the Australian Government has no authority in law to be administering Norfolk Island. He refers to the Acts Interpretation Act. He refers to the fact that the Local Government Act 1993 (NSW) does not include Norfolk Island. He refers to the fact that further inquiries have revealed that these proceedings and the claim itself, especially “with respect to Corporation only registered a ‘mortgage encumbrance’ on my property (to which this matter refers) on 29th August 2022”. He asserts (as he has in the past) that “on the merits of the claim itself in this matter” he will file pleadings which demonstrate that Westpac has acted unlawfully in its dealings with the banking transactions relating to the core matters of the merits of this claim. He also asks that Westpac provide written evidence to him and the court that the court sitting as the Supreme Court of Norf’k Ailen is a competent court of record and is legally and lawfully constituted to be able to hand down competent judgments and that the so-called court has the requisite jurisdiction to bind the parties to this action. Finally, he states that he considers that I have shown bias and that that is evident from the communication prior to the hearing on 21 November 2023 and to the email sent to his McKenzie friend dated 21 November 2023. He asserts that the content of that email, which is set out below, sent to his McKenzie friend denied him his human rights to be heard at the hearing by AVL. He concludes his letter by referring to the two affidavits relating to the hearing on 21 November 2023. He also asserts that the Court should take into account Magna Carta. He asserts that the judge and the Court have erred in relation to this matter and that the judge’s statements and orders are void and this whole matter, the judge, the courts are “Coram non judice and nullity”.

56    The letter from the person purporting to be the Chief Magistrate of Norf’k Ailen Government is dated 28 November 2023. The person, whose name does not appear, referred to her appearance on 10 August 2023 when she presented herself as the Chief Magistrate of Norf’k Ailen. The letter refers to the Supreme Court of Norfolk Supreme as “defunct”. The author of the letter states that she has received a complaint from Mr Summerscales. She states that neither she nor her Attorney General has appointed me to office. She states the following:

Let me remind you, the power, and laws of the Constitution of Pitcairn Island, dated 1838 and those laws and Constitution which the Pitcairn Settlers brought to Norf’k Ailen (also known as Norfolk Island), and along with the Great Seal issued to the Norf’k Ailenders in 1856, and the Pacific Islanders Protection Act 1875, to name a few, are still very much the authority here on this ailen.

I strongly advise yourself, and any other person who has not been appointed by myself as Chief Magistrate of Norf’k Ailen (also known as Norfolk Island), or my Attorney General, to cease your actions effective immediately, or you may find yourself and others liable for prosecution for usurping the laws and governance of Norf’k Ailen (also known as Norfolk Island).

57    The letter states that copies had been sent to the Governor General of the Commonwealth of Australia, the Attorney-General of the Commonwealth of Australia, the Chief Justice of the Federal Court of Australia, Westpac and the Registrar.

58    Mr O’Bryan is resident in Victoria. He states that he attended the courthouse on Norfolk Island “for the purpose of entertainment as a tourist to Norfolk Island on the 21st of November 2023”. On attending at the courthouse, he witnessed a number of Federal Police standing at the entrance to the courthouse. That led him to believe that a court case was in motion. He states that on approaching the entrance to the courthouse, a member of the Federal Police and a lady dressed in black attire restricted entrance to the court building. The Federal Police officer asked why he and his friend Darren were entering the courthouse. Darren replied that they were there to witness a public court hearing. The Federal Police officer replied that the only matter scheduled for hearing was an AVL hearing. He states that he was confused as the police, and it seemed like court staff, were in attendance for the purpose of a public hearing. He states that he was reading the plaques placed near the entrance to the court building. The lady dressed in black came out and said “Is Mr Summerscales here”. Mr O’Bryan said that this confused him and he made a comment to the effect that he thought that the event was an AVL hearing. The lady did not reply.

59    Mr Dickson’s affidavit is to broadly similar effect. He is also a resident of Victoria. As he walked to enter the court to attend an open public hearing, he was approached by a police officer and a female court officer and asked what he wanted. He replied that he wanted to attend the court to watch a public hearing. The police officer replied that there were none and that all hearings were being held by AVL which he explained was by video link. On the way out of the courtyard, Messrs O’Bryan and Dickson stopped to look at the tourist information plaques which explained the layout of the courtyard. The lady who had accompanied the police officer came out calling for Grant Summerscales. Mr Dickson states that his friend Darren said that he thought it was an AVL court. This confused Mr Dickson because he was uncertain as to why they would be calling for someone to appear if the Court was closed for AVL video link cases only.

60    The matter came on again for hearing on 28 November 2023. There was no appearance at that time by Mr Summerscales. There was no proper basis to adjourn the matter further. I indicated that I wished to deliver written reasons at the time I made orders and, in those circumstances, I reserved my decision.

Conclusion

61    I recognise that the power to award summary judgment must be exercised sparingly and the case must be clear. Nevertheless, I consider that this is such a case. Westpac is entitled to summary judgment (General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 at 128–129 per Barwick CJ; Fancourt v Mercantile Credits Ltd [1983] HCA 25; (1983) 154 CLR 87 at 99; Aspen Medical Pty Ltd v BA Capital Inc [2021] ACTSC 321 at [62]–[70] per Crowe AJ; and Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552 at 575–576).

62    Having regard to the nature of the order and the time of year, I will order that no application for an order for delivery of possession of land be made under Chapter 2, Part 2.18, Division 2.18.13 of the Court Procedures Rules 2006 (ACT) before 12 February 2024 (Westpac Banking Corporation v Glynn [2022] NSWSC 1770).

Associate:    

Dated:    21 December 2023