Scottish Court of Session Decisions

 

OUTER HOUSE, COURT OF SESSION   [2006] CSOH 85
	OPINION OF LORD CARLOWAY   in the Petition   KENNETH CLYDE IVORY   Petitioner;   for   Registration of a foreign judgment       ­­­­­­­­­­­­­­­­­________________

 

 

Petitioner: Party

 

1 June 2006

 

1. Statutory and Procedural Framework

 

Section 9 of the Administration of Justice Act 1920 (c10 & 11 Geo V c 81) provides:

"9(1) Where a judgment has been obtained in a superior court in any part of His Majesty's Dominions outside the United Kingdom to which this part of this Act extends, the judgment creditor may apply to the...Court of Session in Scotland...to have the judgment registered in the court, and on any such application the court may, if in all the circumstances of the case they think it just and convenient that the judgment should be enforced in the United Kingdom, and subject to the provisions of this section, order the judgment to be registered accordingly.

12(1)...

The expression 'judgment' means any judgment or order given or made by a court in any civil proceedings...whereby any sum of money is payable."

 

The Territory of Norfolk Island is a reciprocal territory for the purposes of the Act, but Australia is not (see Reciprocal Enforcement of Judgments (Administration of Justice Act 1920, Part II) Order (SI 1984 No. 129 as amended).

The Foreign Judgments (Reciprocal Enforcement) Act 1933 (23 & 24 Geo V c 13) provides:

"2(1) A person, being a judgment creditor under a judgment to which this Part of this Act applies, may apply to the [Court of Session]...to have the judgment registered in the [Court of Session], and on any such application, the court shall, subject to proof of the prescribed matters and to the other provisions of this Act, order the judgment to be registered.

11.(1)...

'Judgment' means a judgment or order given or made by a court in any civil proceedings...

 

Australia is a country to which the provisions of the 1933 Act extend (Reciprocal Enforcement of Judgments (Australia) Order (SI 1994 No 1901). The Territory of Norfolk Island is not.

The Rules of Court provide that a petition for registration need only be signed by the party. Authority of the court is not required in that regard (Rule 4.2.(3)(d)). Where a petition for registration is presented, it requires to be accompanied by an affidavit referring to the judgment or a certified copy of the judgment issued by the original court and authenticated by its seal (Rule 62.6). The Rules also state:

"62.7.(1) The Court shall, on being satisfied that the petition complies with the requirements of the Act of 1920 or the Act of 1933, as the case may be, pronounce an interlocutor granting warrant for the registration of the judgment.

(2) The interlocutor under paragraph (1) shall specify a date by which the judgment debtor may apply to the court to set aside the registration..."

 

 

2. The Petition and Productions

The petitioner has presented a petition in which he avers that:

"on 9 March 2006 the petitioner obtained judgment in the Court of Faculties in the Territory of Norfolk Island acting as an alternative Court to the Supreme Court under the Royal Authority invested in...a Notary Public on and for the Territory of Norfolk Island...appointed for life by the Archbishop of Canterbury"

 

The judgment is said to be against the Commonwealth of Australia and the Telstra Corporation for $AUS5,386,943,767.00 in respect of an unsatisfied Bill of Exchange accepted by the Telecommunications Minister for and on behalf of the Commonwealth of Australia and the Telstra Corporation on 8 February 2005. The petitioner relies on section 9 of the 1920 Act and section 2 of the 1933 Act. He avers that both Australia and the Telstra Corporation own heritable property on Norfolk Island, hence giving the courts of the Territory jurisdiction. Both are said also to have such property in Scotland, including an office of the Australian High Commission in Edinburgh. Reference is also made to the British Law Ascertainment Act 1859 (22 & 23 Vict c 63). The petition is signed by the petitioner himself and he appeared personally at the bar of the court to argue its merits.

In support of the averments, the petitioner lodged an affidavit in its support.

This includes the following:

"Therefore, with Royal Authority of the Court of Faculties invested in the Lord Archbishop of Canterbury, to be a Lord Spiritual and to be a member of the House of Lords, and the upper House of the legislature, which House of Lords office consists of the Lords Spiritual and of the Lords Temporal and Commons and with the Court of Faculties Lord Archbishop of Canterbury being one of the bishops of London, he has the enacted judicial power granted in Notary Publics via the Court of Faculties to take Ecclesiastical Court action as a duly admitted and enrolled Notary Public to act under the Court of Faculties and is fully authorised to perfect the necessary judicial act, when and as the Notary deems necessary, in particular in relation to a Notary's historically and still very valid craft of performing judicial acts in particular when entering a judgement in relation to unsatisfied debts owing when the said debt in pertaining to the said unsatisfied bill of exchange or with respect to any such negotiable instrument...

A judicial act means: an act by a judicial officer which is not merely ministerial.

Therefore, seeing that the herein said Territory of Norfolk Island, Notarial officer/judge of the Court of Faculties, did personally research and authored his said instrument being a certificate recording of a judgement, pertaining to, the said unsatisfied Bill of Exchange as a negotiable instrument, and by the Notary lawfully perfecting a Judicial Act the judgement was entered the said "action" in which the Notary Public perfected a valid Judicial Act, as is evidenced by, the said Norfolk Island, Notaries 9^th March 2006 judgement entered, in which he certified and attested to and Sealed by his hand pertaining to his adjudged decisions that are set out within his Court's official Certificate of Recording of Judgment."

 

The affidavit appears to narrate that the petitioner has had no satisfaction from the Australian courts, which he describes as being politically controlled, in relation to his Bill of Exchange.

The document relied on by the petitioner as a judgment is headed:

"THE COURT OF FACULTIES

OF THE LORD ARCHBISHOP OF CANTERBURY

NOTARIAL CERTIFICATE OF RECORDING OF JUDGMENT"

 

It runs in the name of John Francis Patrick Cyril Colclough Walsh of Brannagh as a notary public on Norfolk Island. It says that on 9 March 2006 the petitioner appeared before him and presented a:

"Dishonoured Bill of Exchange wherein the Commonwealth of Australia and its agency Telstra Corporation...is the Acceptor...such Bill of Exchange being issued on 7th February 2005".

 

It narrates that the Bill was accepted by a Senator on behalf of the Australian Government on 8 February 2005 and subsequently dishonoured. The document states that a Notice of Dishonour was "entered" by a notary in New South Wales and refers to a "Certificate of Judgment" being "entered" by another notary in that state. This certificate was "accepted" by the Australian Department of Treasury on 7 February, 2006 when a "Certificate of Debt" for the sum referred to above was "notarised and recorded" by a third notary in New South Wales, this certificate also being accepted by the Treasury. A document bearing signatures is produced as evidence of the acceptance of the Bill and Certificates by the Australian Government. The document goes on to record a lien over the Australian Government's shares in Telstra. There is a schedule attached which bears to be a notarised certificate by the petitioner: "in the matter of Casualties of Telstra (CoT) Claims made by [the petitioner] and the Solar Mesh Entities" again relative to the Bill of Exchange. A further document attached repeats much of the matter outlined above and is also in notarised form

The document stated to be the Bill of Exchange is produced and runs to some eighty pages. A large part of this is an accountant's report on what seems to be a damages claim by Solar-Mesh against the Telstra Corporation and a letter from the petitioner to a senator in Queensland outlining that claim. It is at least possible to gather from the various documents that the phrase "Casualties of Telstra" does not relate to feudal dues but to small businesses said to have suffered loss because of failures in Telstra's provision of telephone services.

 

3. Decision

 

There are several obstacles in the way of granting the prayer of this petition in so far as relating to the 1920 Act. The first is that, under section 9 the 1920 Act, what the court is entitled to do is to register a "judgment". A judgment must be a decision of some description. The document presented for registration does not appear to be a judgment at all, but a notarial certificate of certain matters. In that regard, it does not appear that the Court of Faculties has arrived at any decision in relation to the subject matter of the dispute between the petitioner, the Australian Government and the Telstra Corporation. Its involvement seems to have been restricted to the appointment of various of the notaries involved in the certification of the sundry documents. It is a requirement of the rules that the relevant judgment, or a court certified copy, be produced. No document that can reasonably be described as a judgment has been produced. At best, there is a document which narrates and certifies certain events concerning the "acceptance" and "dishonouring" of a document which does not even resemble a Bill of Exchange, at least as such a Bill is recognised in Scotland.

Secondly, under sections 9 and 12, the judgment requires to emanate from a court in the course of civil proceedings. A Court of Faculties is not a civil court determining such proceedings but an ecclesiastical one which exercises limited jurisdiction in church matters and in the appointment of notaries. A judgment of a Court of Faculties, even if one existed in relation to the subject matter of the petitioner's dispute, cannot therefore be registered under the Act.

Thirdly, in terms of section 9, the court has to be a "superior" one. In the case of the Territory of Norfolk Islands, that court is the "Supreme Court of Norfolk Island" under and in terms of section 52 of the Norfolk Island Act 1979 (Australian Act no 25 of 1979). That is the only court whose judgments could be registered in the Court of Session under the 1920 Act.

The relevant Rule of Court is expressed in mandatory terms. The Court must register a judgment if it is satisfied that the petition complies with the statutory requirements. Furthermore, the scheme for registration envisages a situation whereby registration occurs and any challenges on the merits of registration are brought later on an application to "set aside". However, in terms of the 1933 Act, the Court is afforded a discretion on whether to register the judgment. One of the statutory requirements is that the Court must be satisfied that: "in all the circumstances...it is just and convenient that the judgment should be enforced in the United Kingdom". There is no reason, in this case, for supposing that it might be convenient for a judgment against the Commonwealth of Australia and a part state owned corporation, purportedly granted in the Territory of Norfolk Island, to be enforced in the United Kingdom. The dispute between the petitioner, the Australian Government and the Telstra Corporation relates to events occurring, so far as can be seen, exclusively in Australia. There is no connection between them and the United Kingdom. Although in many cases that might not be particularly relevant, where a sum of this magnitude is involved and the defender is a foreign state, it must be a factor of some weight. Even assuming that the petitioner could successfully maintain that Australia did not have state immunity in respect of the subject matter of the dispute, were an action to be raised in Scotland, the only place in which any judgment of this type might be conveniently enforced is Australia itself. In that regard, although the petitioner makes some vague criticisms of the Australian courts, the subject matter of these criticisms can hardly be made the object of debate, far less resolution, in a court in the United Kingdom.

So far as the 1933 Act is concerned, it is sufficient to say that the Territory of Norfolk Island does not appear to be covered by the provisions of that Act. The 1859 Act has no application to the present proceedings.

For all of these reasons, the prayer of the petition is refused.