Brian Shaw

Brian Shaw argues with a non-existent court

One of my favourite passages from Brian Shaw’s cases, that really highlights the paradox and internal inconsistency that OPCA litigants in general create for themselves, was stated by Maxwell P in Shaw v Attorney-General for the State of Victoria [2011] VSCA 63 (at 25): 

“If the Constitution Act 1975 (Vic) is invalid, it follows that this is not a validly–constituted court and, if it is not a valid court, then there is no point in Mr Shaw’s being here. That is a fundamental obstacle. The very arguments which Mr Shaw wants to present are arguments which show that the court does not exist, has no valid powers and is comprised of judges who were not validly appointed.

He also said in the course of his submissions something along these lines: “If you’re pooling writs and trading birth certificates, you’re not the Supreme Court, you’re a branch of the stock exchange.” This statement highlights the inescapable internal contradiction in Mr Shaw’s spending time arguing his case before a non-existent court.

The difficulty (and it is insoluble) is that Mr Shaw and those in court supporting him are very firmly – passionately – of the view that his arguments do have legal merit and, moreover, that this Court should entertain them. That is a problem to which the Supreme Court can provide no solution, as none of the arguments proposed by Mr Shaw has any legal merit at all, and this Court has no jurisdiction to consider the kinds of matters that Mr Shaw wants to ventilate.

This is just the latest in a series of rulings by different judges expressing essentially the same view, that the arguments advanced by Mr Shaw are legally unintelligible. His propositions do not engage any of the principles of law which this Court is bound to apply.”

A similar point it was noted in Ross Bradley‘s final case Bradley v The Crown [2020] QCA 252:

“…it would be hard to understand why the applicant was agitating his complaints before this court, which is one that has been established under the laws that he says do not apply to him.  This paradox did not trouble the applicant and he has now applied for leave to appeal against the order dismissing his appeal.”

The paradox was subsequently raised in several cases, such as Reiman v Commissioner of Police [2021] QDC 242 (at 20):

“…despite contending that the District Court lacked jurisdiction and was a fraud, when invited to discontinue her appeal, the appellant declined to do so”

And in Maher v R [2021] NSWDC 212 (at 9) that he:

“…appealed to the District Court, notwithstanding his assertion that the appeal process had been established by the laws he said did not apply to him.”

One of the main contentions that Brian Shaw has, related to his desire to convene a Grand Jury, is connected to his understanding that the Crown has been removed unlawfully. The “Misprision of treason” allegation, the subject of many of his private prosecutions, is regarding the replacing of the reference to “the Crown” in judicial oaths with a reference to “the people” of that State, both in Victoria with the Courts and Tribunals Legislation (Further Amendment) Act 2000 (Vic) amending section 6(1)(c) of the Legal Practice Act 1996 (Vic) and Western Australia with the Acts Amendment and Repeal (Courts and Legal Practice) Act 2003 (WA). For explanation, see the articles “What is “the Crown” and “Oaths and Affirmations of Public Office“.

Both Wayne Glew and Brian Shaw have periodically brought the allegation many times. After initiating dozens of these proceedings, Brian Shaw was prevented from initiating any further such abuse of process, and Wayne Glew was likewise declared a vexatious litigant by Master Sanderson in Attorney General (WA) v Glew [2014] WASC 100. In Glew v Shire of Greenough [2006] WASCA 260, Wheeler JA (with whom Pullin and Buss JJA agreed) observed, at (17-18), that 2003 State legislation bringing about the change in terminology did not effect any change to constitutional reality. It did not attempt to alter the relationship between the Crown and the various bodies contained within the Acts amended. Her Honour said:

“There is no constitutional prohibition upon the alteration of the terminology which refers to the Crown or to her Majesty. Further, the changes of terminology contained within the Acts Amendment and Repeal (Courts and Legal Practice) Act 2003 are consistent with constitutional reality.”

(See also Glew v The Governor of Western Australia [2009] WASC 14.) The contention has been raised many times in Western Australia, see for example Wilson v White [2007] WASCA 87 (at 46), Krysiak v Hodgson [2009] WASC 16 (at 5), Williamson v Hodgson [2010] WASC 95 (at 40), Mills-Edward v Russell [2011] WADC 9 (at 27), National Australia Bank Ltd v Joyce [2012] WASC 224 (at 30), Hedley v Spivey [2012] WASCA 116 (at 5-6), O’Connell v The State of Western Australia [2012] WASCA 96 (at 91-92), Palmer v City of Gosnells [2013] WASCA 446 (at 113), Re Culleton [2016] FCA 1193 (at 12),Balwyn Nominees Pty Ltd v Culleton [2016] FCA 1578 (at 128-132), Bride v Shire of Katanning [2017] WASCA 59 (at 26), Corica v Throssell [2017] WASCA 209 (at 5), Rural Bank (A Division Of Bendigo And Adelaide Bank Limited (ACN 068 049 178) v Manolini [2019] WASC 313 (at 94), Sprlyan v Wyborn [2019] WASC 227 (at 286).

Strangely, the allegation was even raised in South Australia, regarding both the Western Australian and Victorian statutes, which is completely outside their jurisdiction. In Daniels v Deputy Commissioner of Taxation [2007] SASC 114 (at 27), the appeal grounds concerned allegations that treason and misprisions of treason have been committed by enacting the Acts Amendment and Repeal (Court and Legal Practice) Act 2003 (WA), and in Haughton v Chang [2020] SADC 94 the applicant sought to have the matter in the District Court in South Australia referred to the Supreme Court of Victoria, “where the current 54 criminal defendants are sitting there now and concealed since 2004 all the way up to 2009 .with the Attorney-General, Robert Hulls concealing all those criminal charges…” (at 12) and purported to serve criminal proceedings on the Court by leaving a large box of documents on the bar table. He said to McIntyre J that he would be seeing Her Honour in the Full Court of the Supreme Court of Victoria (at 20). The applicant in McFarlane v McFarlane [2021] VSC 197 went further, contending the Acts Amendment and Repeal (Courts and Legal Practice) Act 2003 (WA), removed the Queen as the constitutional head of the State of Victoria. (at 7-10). See also in the ACT in Jakaj v Kinnane [2019] ACTSC 71 (at 17-20).

Both in Victoria and in Western Australia, decisions from Brian Shaw’s cases in the Supreme Courts of each of those jurisdictions are referred to in rejecting the contention.

Brian Shaw’s litigation history in Western Australia

Brian Shaw came to Western Australia at the request of Peter Ridout to assist him in litigation in which Peter Ridout and others were then involved in against the Commonwealth Bank. (Commonwealth Bank of Australia v Ridout Nominees Pty Ltd & Ors [2000] WASC 37 to Commonwealth Bank of Australia v Ridout Nominees Pty Ltd [2003] WASC 215). On appeal in Ridout Nominees Pty Ltd & Ors v Commonwealth Bank of Australia [2003] WASC 158, Pullen J, with whom Roberts-Smith J and Murray J agreed) noted (at 21):

“The proposed new grounds were 25 in number and raised various alleged constitutional points, a ground relating to the standing of the bank to sue, several grounds about freemasonry, Masonic oaths, the Knights of St John, the monarch’s allegiance, a point about whether the Victorian Constitution received the royal “accent”, and for good measure a ground consisting entirely of a quote from the Old Testament. Leave to amend was refused by the Court.”

And (at 24):

“Only after the Court reserved its decision did I become aware of the decision of Re Shaw (2001) 4 VR 103. I infer that Mr Shaw is the same person who was the applicant in Re Shaw. In that case, in the Victorian Court of Appeal, Mr Shaw tried unsuccessfully to run arguments similar to several of those which appeared in the proposed amended grounds of appeal.  This case provides a good example of why courts have to be very careful in allowing unqualified persons to seek to participate in proceedings.  The danger is that such persons may have undisclosed motives for introducing their own arguments in the guise of assisting the litigants in the case.”

Brian Shaw was also involved as a plaintiff in a Supreme Court action against State of Western Australia, the Attorney General Mr Jim McGinty, the Grand Lodge of Western Australia Ancient and Accepted Freemason Grand Master Mr J Maley, in Shaw & Ors v The State of Western Australia & Anor [2004] WASC 144. The second ground reads:

“The State of Western Australia by removal of the Crown became a non-legal entity and as such ceased to exist as a State under the Crown after the illegal enactment of the Acts Amendment and Repeal (Courts and Legal Practice) Act 2003 enacted on 1 January 2004.”

And, further, as ground 5:

“By the illegal enactment of the Acts Amendment and Repeal (Courts and Legal Practice) Act 2003 1 January 2004 the Government, Parliament and judiciary of the State of Western Australia has committed an act of treason, sedition and treachery against the appellants plus the people of Western Australia and Commonwealth of Australia activating s 80 of the Commonwealth Constitution.”

And, further, at ground 11:

“Paragraph 10 of the reasons for judgment errs in law and makes a mockery of the evident fact, that, very specifically, various foreign agendas are at work within the legal framework of Western Australia and the Commonwealth of Australia to attack and subvert the existing allegiance to the Monarch and Crown, in particular the agenda of Freemasonry the second respondent.”

Master Newnes struck out the statement of claim and gave detailed and comprehensive reasons, which involved him in an attempt to analyse the statement of claim which, of itself, probably defies analysis. The learned Master’s description of the statement of claim (at 3) is telling:

” … It must be said that at the outset, with all due respect to the plaintiffs, that the statement of claim which is 153 pages long is to say the least, very difficult to understand. So far as I am able to discern, what appears to emerge from it is a concern on the part of the plaintiffs that the second defendant with the assistance or acquiescence of the first defendant, the State of Western Australia, has usurped the constitutional structure of government in Western Australia and has acted unlawfully by administering oaths and introducing, or attempting to introduce, the laws of the second defendant.”

The learned Master went on to comment (at 5):

“I accept the submissions of counsel for the defendants that, on its face, the statement of claim is plainly embarrassing. As I have said, it is almost devoid of material facts and in many parts, if not in its entirety, is incomprehensible. There is in no instance any clear connection, if any discernable connection, between the 40 substantive allegations and the particulars provided of those allegations. The various particulars which are in almost all cases voluminous, make up the vast bulk of the statement of claim and consist in each instance of material that is not properly the subject of particulars. The particulars are made up of a large number of extracts from a variety of statutes, including the Constitution Act 1889 (WA), the Criminal Code 1913 (WA), the Supreme Court Act 1935 (WA), the Justices Act 1902 (WA), the Public Interest Disclosure Act 2003 (WA), the Australia Act 1986 (Cth), the Crimes Act 1914 (Cth), the Commonwealth Constitution, the Bill of Rights 1688 (UK) and Magna Carta, together with the Coronation oath of Her Majesty Queen Elizabeth II, a large number of what are said to be Masonic oaths and extracts from books relating to Freemasonry, an extract from a lecture on Magna Carta, passages from sundry other books and a number of passages from the Bible, in particular from the Books of Zechariah, Jeremiah, Isaiah and Lamentations and the gospels of James and Matthew. In no instance do the particulars of any substantive allegation contain assertions of fact.”

Brian Shaw had subsequently been the complainant in 14 private prosecutions in the Court of Petty Sessions at Perth. These complaints named as the defendants the Hon Justice Murray of the Supreme Court of Western Australia, Mr Robert Cock QC, Director of Public Prosecutions for the State of Western Australia, the Hon Mr Jim McGinty MLA, Attorney General for the State of Western Australia, Alex McLean (a solicitor involved in the Civil Proceedings) Master Newnes of the Supreme Court of Western Australia and Mr Damien Bugg QC, Commonwealth Director of Public Prosecutions, making allegations against the various defendants by summons ranging from attempting to pervert the course of justice, exercising jurisdiction in a matter having a personal interest (as a Judge or Magistrate) and doing an act or thing with intent to overthrow the Constitution of the Commonwealth by revolution or sabotage or to overthrow by force or by violence the established government of the Commonwealth and treason. He had also apparently sought unsuccessfully to lodge an appeal from the decision in the Civil Proceedings in the High Court.

As a result, the Attorney General and the Commonwealth Director of Public Prosecutions were granted orders against Brian Shaw under the Vexatious Proceedings Restriction Act 2002 by Braddock C in Attorney General v Shaw [2004] WASC 280, that: “…no legal proceeding shall be instituted by Brian William Shaw or any person acting on behalf of Brian William Shaw in the State of Western Australia in the Supreme Court or in any inferior court or tribunal, unless Brian William Shaw shall first obtain the leave of the Supreme Court, or inferior court or tribunal.”

In his affidavit, Brian Shaw commences as follows:

“1. The central facts of this matter concern the existence and function of an international conspiracy to infiltrate, fragment, incorporate and destroy the Christian church using every means possible, but, specifically international freemasonry.”

The affidavit then continues to expand upon this assertion, with historical references to the settlement of Australia, the Constitution of Australia, and quotes extensively from scripture. The respondent continues:

“11. This current action against myself by the current Attorney General of the State of Western Australia, the author of the overt act of treason committed 1st January 2004 and the Commonwealth Public Prosecutions Office under the title ‘Vexatious’ is in itself vexatious against a Bible-believing Christian who has retained and affirmed and allegiance with Her Majesty because of the agreed covenant with Almighty God clearly set out and stated in the Coronation Oath, all of which Australian and international Freemasonry would seek to destroy and replace with their Masonic Republic.

12. In defence of my Christian belief and allegiance I have laid private prosecution charges against various named offenders within the State of Western Australia for attempting to pervert the course of justice by being in agreement and conspiracy to defeat the course of justice and change the law without the knowledge or consent of electorate.

13. The named offenders at present hold high offices in the executive, legislative and judicial capacity within the State of Western Australia, but, have since 1st January 2004 unlawfully and illegally created a legal situation whereby the former State of Western Australia created a federation and legally bound to the Commonwealth Constitution Act 1900, no longer exists in such capacity by the overt act of treason committed 1st January 2004.”

Brian Shaw applied for leave to file a notice of appeal against this decision declaring him a vexatious litigant in Shaw v Attorney General for the State of Western Australia [2005] WASC 149. McKechnie J noted initially that Brian Shaw questioned His Honour’s impartiality to hear the case, as he is associated with the respondents, which was rejected. His Honour begins with the statement:

“These proceedings seemed to be characterised by zelotypia, a condition that often afflicts litigants pro se.”

After briefly addressing each of the 28 grounds of appeal, and finding they were largely incoherent, or else depended on patently wrong legal principles, McKechnie J concludes:

“This application for leave is a blend of a little but dangerous and ill‑informed legal knowledge, coupled with an unreasoning irrationality bordering on obsession in relation to Freemasonry. Added to the blend is a belief that somehow the alteration of the form of an oath from requiring allegiance to the Queen to requiring allegiance to the State by the Acts Amendment and Repeal (Courts and Legal Practice) Act 2003 somehow effected a cataclysmic constitutional upheaval. It did not.”

Costs were awarded against Brian Shaw by Wheeler JA, (with whom Steytler P and Buss JA agreed) in Shaw v Jim McGinty in his capacity as Attorney General [2006] WASCA 231 (S). The grounds submitted included that it is not open to the Court to make costs orders against him, since “the writers of the Judgment are primary offenders to Treason”. 

Brian Shaw filed a notice of appeal against McKechnie J’s decision in Shaw v Jim McGinty in his capacity as Attorney General [2006] WASCA 231 initially putting forward 63 grounds of appeal, and then adding a further 36 proposed grounds of appeal, of which only ground 64 related in any way to that subject matter, and the remainder were struck out. In total, with four exceptions, all of the proposed grounds were found to be vexatious, embarrassing and simply unintelligible, and those four themselves were each rejected as being wrong by Wheeler JA, (with whom Steytler P and Buss JA agreed). Leave to appeal was denied, and costs were awarded to the respondents. 

Brian Shaw sought to challenge decisions made by Registrar Powell during the taxation of bills of costs in Shaw v Attorney General (WA) [2005] WASC 149 and Shaw v Jim McGinty in his capacity as Attorney General [2006] WASCA 231, and was therefore seeking leave to institute proceedings pursuant to the Vexatious Proceedings Restriction Act 2002 (WA) in Shaw v Attorney General for the State of Western Australia [2007] WASC 270. Again, the basic proposition was that the Acts Amendment and Repeal (Courts and Legal Practice) Act 2003 contains provisions in which references to her Majesty or to the Crown have been removed, and this constitutes a repudiation of allegiance, and therefore treason, to the Crown, and a major and unacceptable change to the constitution of the State of Western Australia, which requires compliance with the special manner and form requirements of s 73(2) of the Constitution Act 1889 (WA), including approval of the electors of this State by referendum. At the commencement of the proceedings Brian Shaw again foreshadowed an objection to EM Heenan J sitting on this application, and it was noted (at 6):

“A curious side effect of that argument, which Mr Shaw himself acknowledges, is that if it is correct, then this court, and myself as a judge of the court, and indeed other judges, would have no jurisdiction to hear or to entertain the very application which he has brought before the court. This somewhat ironical situation is pointed to by Mr Shaw as illustrating in some way the strength of his argument.”

The application was dismissed, as nothing had been shown to illustrate any arguable ground to contend that the proceedings can be instituted without being vexatious. It was concluded (at 11) that:

“The prime purpose of the proceedings, perhaps their only purpose, is to challenge final decisions of this court and the Court of Appeal when the time for appealing has already expired and when detailed reasons were given rejecting the very argument now sought to be re-agitated.”

Brian Shaw again sought to appeal the judgment of EM Heenan J in Shaw v The State of Western Australia [2007] WASCA 288 where one of the grounds was that EM Heenan J should of disqualified himself, and therefore: “Justice Heenan violated the critical maxim that a Judge must not be a Judge in his own cause and as such voided the hearing.” Other grounds made irrelevant and unsubstantiated allegations of ‘criminal activity’, ‘fraud’, ‘treason’, and ‘criminal breach’ of various sections of various Acts by politicians, judges and other people.

Pullen JA, (with whom Beech AJA agreed), determined the proposed grounds were frivolous and vexatious, had no reasonable prospect of succeeding, they revealed no prima facie case, and in any event the Court of Appeal did not have jurisdiction to entertain the application.

Brian Shaw’s litigation history in Victoria

In 1996 Brian Shaw made an application by affidavit in the Magistrates’ Court to revoke enforcement orders made against him in relation to three traffic offences (exceeding the speed limit). The application was refused and an appeal from that order was also refused. Brian Shaw filed a notice of appeal against that decision in the County Court supported by a document entitled “Submission for Appeal” which stated, among other things, his ground of appeal as “the convictions are nugatory because the Magistrate’s Court at Werribee was never legally Constituted, because Victoria does not have a valid Constitution”. His Honour Judge Howse dismissed the appeal stating that the Court had no jurisdiction.

In 1998, a Magistrate convicted and fined Brian Shaw for exceeding the speed limit. He sought to appeal from that decision to the Supreme Court on a question of law, filing an affidavit for that purpose. Master Kings dismissed the appeal, not being satisfied that the material in the appellant’s affidavit raised a question of law.

In 1999, the Magistrates’ Court fined Brian Shaw $50.00, without recording a conviction, for exceeding the speed limit. He sought to appeal from that decision to the Supreme Court on a question of law, filing an affidavit which stated, among other things, that “The Queen of England has abdicated her role as DEFENDER OF THE FAITH, that faith being Christian, by abdicating to the foreign power of Freemasonry” and that “The real question of law in all of this revolves around the issue of a determination of the law of God and Freemasonry”. Master Evans dismissed the appeal.

Brian Shaw and his sons commenced a proceeding by writ and indorsement of claim filed in the Supreme Court, seeking permanent and interlocutory injunctions restraining G Fragapane Nominees Pty Ltd from commencing work, placing padlocks on, or doing any act which would interfere with the plaintiffs’ access and right to quiet enjoyment of a farming property known as Bambra Park. G Fragapane Nominees Pty Ltd was purchaser of the land under a contract yet to be completed, and was purporting to exercise rights against the plaintiffs under a sharefarming agreement between the plaintiffs and the vendor, pursuant to a power of attorney granted to the purchaser by the vendor. In his affidavit, after referring to having received a letter from G Fragapane Nominees Pty Ltd solicitors, Harwood Andrews, making specific demands in relation to the sharefarming agreement, Brian Shaw deposed that:

“My reply to this letter was immediate, but, at no time did I acknowledge the purchase of the property to be legal. On that basis I ignored the demands of the letter. My first reply to Harwood Andrews of Geelong was based on two specific backgrounds, these being Biblical and Constitutional.”

The remaining five pages of the affidavit provided details of these biblical and constitutional matters, alleging the influence of Freemasonry on the judiciary and that “Our Victorian Parliament has broken the law since its birth and continues to break the law today” with the result that the transfer of Bambra Park to G Fragapane Nominees Pty Ltd was invalid. G Fragapane Nominees Pty Ltd filed a summons seeking judgment or a permanent stay as the proceeding was an abuse of process, did not disclose a cause of action, and was scandalous, frivolous or vexatious. In Shaw v Fragapane Nominees Pty Ltd [1999] VSC 374, Warren J refused the injunction sought by the plaintiffs, stating that she could not be satisfied on the evidence that there was a serious question to be tried, and that in any event the discretion would not be exercised in the plaintiffs’ favour as they were “arguably in default of the terms of the sharefarming agreement and which default has led it appears to the agreement being properly terminated”. As to the G Fragapane Nominees Pty Ltd summons, her Honour said that the plaintiffs’ case appeared extremely weak but “could not be described at this point as hopeless, an abuse of process or vexatious”, thus her Honour adjourned the summons to be heard by a Master on a date to be fixed.

Brian Shaw and his sons then sought leave to appeal from the decision of Warren J. Brooking and Buchanan JJA stated that as the proposed appeal was from an order refusing an injunction, leave to appeal was not required, but as the time for filing a notice of appeal had expired, the plaintiffs required an extension of time to file a notice of appeal. Their Honours refused to extend time, stating that:

“We need not summarise the unusual basis of the proposed appeal. It appears from the draft notice of appeal and from the affidavits of Mr Shaw and the numerous exhibits. We have in the course of argument tried to explain to him that the matters which he wishes to agitate are really contrary to a large body of cases which are binding upon us, and that in those circumstances we cannot form the view that the appeal which he wishes to bring would have some prospect of success.”

There were numerous interlocutory hearings and orders in relation to this proceeding, and applications for leave to appeal between 2000 and 2007. In 2000, Master Evans ordered that the statement of claim be struck out. Brian Shaw and his sons have sought leave, on more than one occasion, with affidavits in support referring to matters of Freemasonry, religion and constitutional validity. To keep this history in chronological order of date, further hearings are covered later.

In 2001, Brian Shaw attempted to file a writ in the Supreme Court against the Masonic Lodge. The Prothonotary did not accept the writ. It appears that the question of whether to accept the writ was referred to, or reviewed by, Beach J in the Practice Court. As to that, Brian Shaw deposed in an affidavit in Shaw & Ors v G Fragapane Nominees Pty Ltd [2007] VSC 454 that at 6.30pm on Saturday 9 June 2001 he phoned the Supreme Court seeking an injunction and was referred to the Associate to Beach J, who stated that the matter had been before Beach J on the Friday afternoon and that they were not going to entertain the application to lodge the writ or seek an injunction.

Brian Shaw and Carmen Walter then attempted to file an application in the Court of Appeal for the purpose of summoning a Grand Jury “to hear indictment charges” against the organisation of Freemasonry, Beach J, and his Honour’s Associate. The affidavit in support stated, among other things, that the refusal of Beach J (with the involvement of his Associate) to allow the issuing of the writ was an attempt to pervert the course of justice and was conspiracy to conceal the indictable offences revealed in the writ. It appears from an undated document that the Registrar of the Court of Appeal refused to accept the application and affidavit, in essence on the basis that the requirements of section 354 of the Crimes Act 1958 (Vic) were not made out.

Brian Shaw and Carmen Walter filed another application in the Court of Appeal, supported by affidavit, seeking to summon a Grand Jury. The affidavit stated that “the cause of this action is the breach of section 316 and 321 of the Crimes Act 1958 inter alia by corporations specified in the application”. The corporations included Grand Lodge Holding Ltd and Freemason’s Victoria Pty Ltd. The affidavit went on to refer to the previous attempts to file Grand Jury applications, the involvement of Beach J, and then alleged that indictable offences had been disclosed to the Court but the Court had refused to commit the alleged offender by refusing to issue the writ and present the matter. The affidavit also alleged that various Judges and Masters were involved in Freemasonry and unlawful oaths. Brian Shaw did not reveal his address in the affidavit, explaining that he concealed this information because every Freemason has taken an oath to maim or kill.

In Re Shaw [2001] VSCA 175 the Full Bench of the Court of Appeal (Winneke P, Brooking JA, Charles JA, Buchanan JA, and Chernov JA) delivered an ex parte analysis of the history of Grand Jury’s, their application, and lack of it to the present matters. The court explained (at 14) that broadly speaking, section 316 makes it an offence to administer or take an oath: to commit treason or murder; to engage in any mutinous or seditious enterprise; to commit any indictable offence other than treason or murder; to disturb the public peace; to be of any association formed for the purpose of doing any of those acts; to obey the commands of any body of men not lawfully constituted or of any leader not having authority by law; not to inform or give evidence against any other person; not to reveal any unlawful association or any illegal act or any illegal oath.

It was noted that this was not the first occasion on which Brian Shaw had come before the courts complaining of the activities of Freemasons, he has unsuccessfully sought to file a writ naming three bodies as defendants and complaining of the infiltration by Freemasonry of the law-making and law-enforcement arms of this State.  The proposed action sought an injunction against “all masonic workings and rituals”.  He wished to obtain an order that all members of Parliament and all judges, masters and magistrates in this State make an affidavit disclosing whether they are Freemasons. The court noted (at 26):

“They have made it plain that they regard every part of the legal system as infested – that is the kind of word they would use – with Freemasons and that they are convinced that the courts in general and we in particular will never give them the justice to which they are entitled. Many of the expressions were offensive. (“You break the law by the week.” “The courts cannot be trusted. You bend the statute law at the whim of whatever decision you want to make. But God’s law will win.” These are only examples of repeated imputations of bad faith.) The applicants have said to us that, each time their application is dismissed, “We will be back tomorrow.” We realise that nothing we say will deflect them from their course. We have, however, during the argument, tried to convey to them a little about abuse of process.”

The Court held that the application was hopeless and it was dismissed.

In 2002 Brian Shaw and Carmen Walter applied to the Court of Appeal for a rehearing of the Grand Jury application. The application was not accepted by the Registry on the basis that Master Dowling came to the view that there were no significant differences between the present material and the material previously relied on.

Brian Shaw and Carmen Walter then attempted to file an application in the High Court Registry for a Writ of Mandamus, naming the “Supreme Court of Victoria, Full Court” as the respondent. Alternatively, they sought special leave to appeal from the decision of the Court of Appeal. The application was not accepted by the Registry, the Senior Registrar stating that the matter was not within the High Court’s jurisdiction as the Justices of the Court of Appeal were not officers of the Commonwealth and were not exercising federal jurisdiction in considering the Grand Jury application.

Also in 2002, Brian Shaw filed an affidavit by which he sought to appeal to the Supreme Court from a conviction and fine imposed by the Magistrates’ Court for exceeding the speed limit. The affidavit did not identify any questions of law as such, but alleged, among other things, that the Victorian Constitution of 1975 was invalid, that “fraud vitiates everything” and “constitutional fraud leads into treason”. Master Evans dismissed the appeal.

Brian Shaw appealed from that decision to the Judge in the Practice Court in Shaw v Gilsenan [2002] VSC 169, Ashley J dismissed the appeal observing that Brian Shaw had raised two defences to the speeding offence in the Magistrates’ Court – (a) that the Victorian Constitution was invalid and hence the Road Safety Act 1986 under which he was charged was also invalid, and (b) that the judicial process in Victoria was subverted by the involvement of Freemasonry – and had again raised those defences on the appeal. His Honour found his argument “unintelligible” despite “close consideration of his affidavit and his oral exposition”. His Honour concluded that “there is absolutely nothing to this appeal. The Master was right to refuse to grant an order under Rule 58.09”.

After Charles Wheeler, then a Master of the Supreme Court, dismissed another application for leave to appeal the order of the Magistrates’ Court, Brian Shaw issued a charge and summons out of the Magistrates’ Court at Melbourne against him, alleging the taking and administering of unlawful oaths, attempting to pervert the course of justice, and conspiracy to pervert the course of justice (conspiracy to defraud), described as indictable offences under sections 316 and 321 of the Crimes Act 1958 (Vic). The Director of Public Prosecutions took over and dismissed the charges under section 22 of the Public Prosecutions Act 1994 (Vic) on the basis that the offences could not be made out, that in any event the Master was immune from criminal process in respect of his judicial functions, and that the charges were brought for an improper purpose.

In 2004, Brian Shaw issued a charge and summons out of the Magistrates’ Court at Melbourne against John Spence Winneke, then President of the Court of Appeal, regarding His Honour’s hearing of his application to summon a Grand Jury in Re Shaw [2001] VSCA 175. The charge against Winneke P was that “On October 2 2001 he did act oppressively by refusing relevant disclosure, additionally entered into evidence involving his father without disclosure”, being an indictable offence under section 34(1)(b) of the Crimes Act 1914 (Cth). The affidavit in support alleged that: “President Winneke did not disclose that the Governor who illegally repealed the Victorian Constitution Act, 1855 and unlawfully assented to the Victorian Constitution Act, 1975 was his father, Henry Winneke.” 

He also charged the other members of the Court of Appeal regarding their hearing of the case, (Brooking, Charles, Buchanan and Chernov JJA), with “intentionally and perversely exercising federal jurisdiction in a matter containing a personal interest”, contrary to section 34(1)(b) of the Crimes Act 1914 (Cth).

Brian Shaw further issued a charge and summons out of the Magistrates’ Court at Melbourne against Master Cain, Registrar of the Court of Appeal, supported by an affidavit affirmed by the defendant on 16 March 2004. The Master was charged with “attempting to pervert the course of justice by refusing to file application for grand jury charges against Mr Charles Wheeler Nov 2002, Feb 2003, March 2003, Sept 2003”, being an indictable offence under section 43 of the Crimes Act 1914 (Cth). Master Cain refused to accept the application on the basis that the prerequisites in section 354 of the Crimes Act 1958 (Vic) were not satisfied.

Then, he sought to file a further eight applications to summon a Grand Jury, against five Justices of Appeal, and Master Cain, including an application against the Victorian Director of Public Prosecutions, charging him with “treachery” and attempting to pervert the course of justice contrary to the Crimes Act 1914 (Cth), with his affidavit in support stating that these charges arose from the Director “deliberately blocking application process for private prosecution of the unlawful oaths”, and an application against the Governor-General, Michael Jeffery, charging him with a range of offences under the Victorian and Commonwealth Crimes Act relating to the taking and administering of unlawful oaths, attempting to pervert the course of justice, and that “by permitting and consenting to an unlawful and alternative set of law, oaths, rules and allegiances he has by intent and sabotage attempted to overthrow the Constitution of the Commonwealth”. Brian Shaw stated in essence that the charge of attempting to pervert the course of justice emanated from Master Cain’s repeated refusals to accept for filing applications for a Grand Jury hearing. He added “I have stated on a number of occasions that the common sense solution concerning this issue is a ‘Trial of the issue’, but, common sense has not prevailed, accordingly the charges have been laid”. Each of these charges were dismissed by the Commonwealth Director of Public Prosecutions as they were without substance and were misconceived in law.

In response, Brian Shaw issued a charge and summons out of the Magistrates’ Court against the Commonwealth Director, charging him with numerous indictable offences under the Crimes Act 1914 (Cth) including attempting to pervert the course of justice by failing to prosecute the indictable offences against the Governor-General and others, protecting and defending indictable offences committed by the Governor-General, and compounding offences by agreeing to abstain from and discontinue prosecuting indictable offences. There were also charges of treason and being “an accessory to the fact in that the current Governor General Michael Jeffrey has breached his Oath of Allegiance, by taking an additional, Secret Oath of Allegiance to serve Freemasonry”. There were also similar charges under the Crimes Act 1958 (Vic). The Magistrates’ Court struck out the charges on the basis that the charges had been withdrawn by the Director.

Brian Shaw issued separate charges and summonses out of the Magistrates’ Court against Justice Smith and Master Kings, charging the former with intentionally and perversely exercising federal jurisdiction in a matter in which he had a personal interest, and the latter with attempting to defeat, and conspiring with other Masters to defeat, the course of justice in relation to the judicial power of the Commonwealth. The Magistrates’ Court also struck out the charges on the basis that they had been withdrawn.

Back to the proceeding regarding G Fragapane Nominees Pty Ltd, in 2004, Brian Shaw and his sons issued a summons for leave to file an amended statement of claim. Master Kings ordered that the summons be dismissed and that no further amended statement of claim be filed, save with the leave of the Court. The amendments included the joining of Harwood Andrews and the State of Victoria as defendants.  The Master concluded that the proposed amended statement of claim contained “narrative and assertions” and did not disclose a cause of action against G Fragapane Nominees Pty Ltd or their solicitors Harwood Andrews.  Further, the application to join the State of Victoria, on the basis that it had “created a tort against the Plaintiffs by permitting Masonic corruption of Commonwealth Judicial Officers and Courts”, was unrelated to the underlying dispute about the sharefarming agreement and power of attorney.

Brian Shaw and his sons then appealed from that decision, and Smith J dismissed that appeal. His Honour said that the proposed amended statement of claim “falls well short of what is needed before any leave could be given” and that “on the last occasion the Master explained the sorts of problems that existed and some specific ones as well, but nothing has been done to address them. The appeal, in my view, had to fail and therefore costs orders should be on an indemnity basis”.

Brian Shaw and his sons then sought leave to appeal to the Court of Appeal, and the Court of Appeal dismissed that application. Phillips JA (with Gillard AJA agreeing) refused the application for leave to appeal out of time from the order of Smith J, but refused to award costs against Brian Shaw and his sons on an indemnity basis. Phillips JA observed that:

“In none of the material that I have seen did the applicants attempt to canvass the matters that were described by Master Kings as possible justification for the action taken by the new owner leading to the ejection of the applicants from Bambra Park. In the circumstances, one can have no confidence at all that, even in relation to the share farming agreement, the applicants have a case fit for trial. That is subject to any case that may hereafter be raised in relation to the powers of attorney because, as I have said, no case has yet been articulated – or articulated sufficiently – in relation to those powers.”

In 2005, Brian Shaw and his sons made an application before Mandie J to stay four costs orders which had resulted from the failed applications. Mandie J made an order removing the affidavit which had been filed in support of that application, as it was full of argumentation and contrary to the Rules of the Court. His Honour adjourned the matter to allow Brian Shaw to file an affidavit in proper form, and the matter returned to court, where Whelan J dismissed Brian Shaw’s summons.

In the meantime, Master Bruce had taxed and allowed G Fragapane Nominees Pty Ltd costs from the earlier hearings at $26,466.60. Brian Shaw sought leave to appeal from the order of Mandie J, stating, among other things, in a document entitled “draft grounds of appeal” that “The serious indictable issues discovered and involve relating to the Laws of the State of Victoria were unlawfully ignored by Justice Mandie”. The Court of Appeal (Maxwell P and Nettle JA) refused leave to appeal from the order of Mandie J and ordered costs on a solicitor-client basis.

From that order the plaintiffs then sought special leave to appeal to the High Court in Shaw and Ors v G Fragapane Nominees Pty Ltd [2006] HCATrans 383. The “Application for Special Leave” document contains 44 grounds of appeal, running over 16 pages. The grounds were not limited to the Court of Appeal decision, but include that “All cost orders in this matter have been obtained by fraud, in particular Master Evans (Freemason) and Master Kings” and numerous allegations as to unlawful oaths, Freemasonry and constitutional matters. Kirby J dismissed the application for special leave, noting that the proposed appeal was “premised on the notion that the judges involved in the applicants’ litigation acted illegally by virtue of some Masonic oath or obligation. There was no foundation for such assertion or complaint”. His Honour concluded that “there are no prospects of success of any appeal to this Court”.

Meanwhile, Brian Shaw had filed a summons seeking an order permanently staying the proceeding.  It appears that the summons was adjourned, pending the determination of his application for special leave, and was subsequently adjourned again. In 2007 Master Efthim decided, in light of an application by the Attorney-General to declare Brian Shaw a vexatious litigant, to adjourn the summons again.

In 2006, Brian Shaw issued a charge and summons out of the Magistrates’ Court at Melbourne against the Attorney-General for the State of Western Australia, laying 18 separate charges, including common law treason and offences under the Crimes Act 1914 (Cth) and Criminal Code Act 1995 (Cth), over his role in enacting the Acts Amendment and Repeal (Courts and Legal Practice) Act 2003 (WA) the purpose of which he alleged was “to remove and replace Her Majesty Queen Elizabeth II, Her Heirs, Her Successors and Her Subjects without lawful consent of the People nor the knowledge of the People”. Then, Brian Shaw issued charges and summonses against other Western Australian persons including judges of the Supreme Court, the Minister for Resources, the Director of Public Prosecutions and some other persons, in essence being similar charges to those against the Attorney-General. At around the same time, he filed charges against the Attorneys-General of the Commonwealth, Victoria, South Australia, New South Wales, the ACT, Queensland, and Tasmania, alleging misprision of treason at common law. He filed a further 19 charges of offences at common law and under the Crimes Act 1914 (Cth) and Criminal Code Act 1995 (Cth) against the Commonwealth Director, and also charged the Governor-General, Prime Minister, and former Leader of the Federal Opposition with treason and misprision of treason at common law. Brian Shaw also issued further charges and summonses against the Victorian Attorney-General, the Commonwealth Director, the Victorian Director, the Chief Magistrate, five Justices of the High Court, two church representatives, and a member of Federal Parliament, charging each with misprision of treason at common law. The Magistrates’ Court struck out all of these charges on the basis that the Commonwealth Director had taken over and withdrawn the prosecutions.

In response, in 2007 Brian Shaw filed a “Notice of Appeal on a Question of Law” in the Supreme Court, naming the Commonwealth Director as respondent and seeking to appeal against the earlier decision of the Chief Magistrate to strike out the proceedings. The notice of appeal alleged that 32 questions of law arose, including for example question 32 which read “In the Melbourne Magistrates’ Court 15th December 2006, did the Chief Magistrate Ian Gray legally discharge the 27 named offenders or was the purported legal process a sham to conceal discovered Treason”. Then followed eight grounds of appeal, including that: “All Senators and House of Representatives sitting in either Commonwealth House from the former State of Western Australia after the illegal removal of both Crown and Monarch are sitting illegally.” and “The current Governor General is in agreement with the illegal removal of both Crown and Monarch from Western Australia creating an inconsistency with section 109 of the Commonwealth of Australia Constitution Act 1900.” The notice of appeal sought orders that the decision of the Chief Magistrate was void and “that all matters of Treason and Misprision of Treason must be reserved for Grand Jury exclusively in accordance with Law”. His affidavit in support alleged, among other things, “That a plot to sabotage the Constitution of the original States in addition to the Commonwealth has been uncovered. Such plot involves Collusion between the Various State Parliaments, inclusive of the Commonwealth Parliament” and that the Chief Magistrate acted unlawfully and illegally in striking out the charges against the 27 named conspirators and “was clearly and evidently in agreement with the concealment of the discovered conspiracy”. Master Daly dismissed the appeal, noting that the defendant did not have standing to appeal against the decision of the Chief Magistrate, and further that the decision of the Chief Magistrate was made on committal and was thus not appealable under section 92 of the Magistrates’ Court Act 1989. 

Brian Shaw issued over 40 Grand Jury applications in January 2007 – following the orders of the Chief Magistrate on 15 December 2006 striking out the criminal charges – although some may have been filed earlier. These applications include three applications against the Attorney General.

After initiating dozens of frivolous proceedings habitually and persistently over the years, Brian Shaw was declared a Vexatious Litigant by Hansen J in Attorney-General for the State of Victoria v Shaw [2007] VSC 148.  It was clear from the evidence that Brian Shaw “has issued proceedings automatically and regardless of the fate that his earlier proceedings had met”.  He had done this “whenever he comes across a person, judicial officer or public official who makes an adverse finding or decision and it is his knee jerk response to matters”.  His stubborn persistence was apparent from the fact that he continued to institute proceedings making the same basic allegations even after a bench of five judges of the Court of Appeal concluded that his contentions were untenable, and persisted in instituting criminal proceedings even after the Attorney General filed the originating motion in this case. All the cases Brian Shaw has initiated over time are listed, including his many private prosecutions, all of which were dismissed.

Table A lists 35 separate criminal charges brought by the defendant in the Magistrates’ Court of Victoria between September 2002 and August 2006, against 20 persons including the Governor-General, Justices of the High Court, Judges and Masters of the Supreme Court of Victoria, the Director of Public Prosecutions for the State of Victoria, the Commonwealth Director of Public Prosecutions, and the Attorney-General for the State of Victoria.  The charges included taking and administering unlawful oaths, attempting to pervert the course of justice, conspiracy to pervert the course of justice, treason, and a range of other offences under Victorian and Commonwealth law.  Each proceeding was ultimately struck out by the Magistrates’ Court on the basis that the relevant Director of Public Prosecutions, who had taken over the prosecution, withdrew the charge.  Table A then lists 19 other applications and appeals brought by the defendant in the Magistrates’ Court, County Court, Supreme Court/Court of Appeal between 1996 and about August 2005, all of which were dismissed or struck out. Table B lists 35 persons against whom the defendant instituted criminal charges in the Magistrates’ Court of Victoria in November and December 2006.  Those persons included the Governor-General, State and Federal politicians (including the Prime Minister, the former Leader of the Federal Opposition, and various State Attorneys-General), judicial officers (including Justices of the High Court and Victorian judicial officers) and State and Commonwealth Directors of Public Prosecutions.  The charges include treason and misprision of treason at common law, and offences under the Crimes Act 1914 (Cth) and Criminal Code Act 1995 (Cth). Each charge was ultimately struck out by the Magistrates’ Court on the basis that the Commonwealth Director, who had taken over the prosecution, withdrew the charges. Table B also lists an appeal instituted by the defendant in January 2007 in which he sought to challenge a decision of the Magistrates’ Court to strike out the criminal charges brought by the defendant against the Commonwealth Director. A supplementary affidavit of the plaintiff’s solicitor states that, on 13 February 2007, Master Daly dismissed the appeal.

Also covered in this case (at 62) is his assertions relating to a Grand Jury:

“Relevantly, s 354 of the Crimes Act 1958 (Vic) gives the Full Court a discretion to order that a grand jury be summoned “Upon the application of any person supported by an affidavit disclosing an indictable offence and either that the same has been committed by some body corporate or that a court has declined or refused to commit or hold to bail the alleged offender or that no presentment was made against him at the court at which the trial would in due course have taken place, or upon the application of the Director of Public Prosecutions”. The defendant has relied on this provision to seek to summon a grand jury on numerous occasions and against numerous individuals. However, as the Court of Appeal found in 2001, the defendant’s material failed to show that Freemasons administer or take oaths proscribed by s 316 of the Crimes Act. Further, their Honours considered that there was no reason for supposing that the papers ever would or ever could be put in a state which would warrant the summoning of a grand jury. In my view, although the form of some of the allegations may have changed since 2001, the substance of the allegations remains the same. And while the defendant has repeatedly asserted that a whole range of indictable offences have been committed by all manner of people, he has not adduced any cogent evidence to substantiate such claims. In short, he has not provided an affidavit disclosing any indictable offence, which means that he has repeatedly failed to satisfy s 354 at the threshold. In my view, the allegations he wishes to place before a grand jury are untenable. Even so, and after being told of that position by the Court of Appeal in 2001, the defendant has habitually and persistently sought to file grand jury applications.”

As to Shaw v Fragapane, Hansen J agreed that the proceeding was not vexatious when it was before Warren J in 1999, but had been infected by Brian Shaw’s contentions as to a Masonic conspiracy and illegality of the constitution. Nevertheless, Hansen J did not characterise it as a vexatious proceeding, and included an exception to his orders that Brian Shaw may continue the Shaw v Fragapane proceeding. A few months later, Master Daly of the Supreme Court ordered a stay on the proceeding, on the ground that it was frivolous and vexatious.

Brian Shaw subsequently appealed the decision in Shaw v G Fragapane Nominees Pty Ltd [2007] VSC 454. Kaye J noted (at 10-12):

“…the plaintiffs have sought repeatedly to ventilate a number of issues including constitutional issues, criminal issues, issues relating to Freemasonry and religious issues. … Mr Shaw submitted that those issues are inextricably connected with the issues arising from the removal of the plaintiffs from the land. It has been submitted to me that various persons have committed the crime of treason. Mr Shaw submitted that in this proceeding he wishes to ventilate those matters. He has submitted that there is a case that the crime of treason has been committed by, as I understand it, the enactment of the Australia Act 1986, by the removal of the oath of allegiance in the Legal Profession Act, and also by amendments which were brought into the Western Australian law in the Acts Amendment and Repeal (Courts and Legal Practice) Act of Western Australia 2003.”

His Honour dismissed the application as an abuse of process, concluding (at 16) that Brian Shaw was “intent on pursuing, under the umbrella of this action, claims and allegations which simply are not known to our civil law”. Noting (at 21):

“The plaintiffs have persistently, as I say, refused and not wished to confine their allegations in this proceeding to the narrow point arising out of the share farming agreement and the dispute with the defendant out of which it would seem these proceedings first arose. It is perhaps a pity that they have not seen fit to do so, but it is clear that Mr Shaw on behalf of the plaintiffs does not wish to do that and it would seem to me hopeless to expect in the future that he would do so.”

Brian Shaw then applied for special leave to appeal to the High Court, which was rejected in Brian William Shaw v G Fragapane Nominees Pty Ltd and Ors [2012] HCASL 125 where Kiefel J and Gummow J noted:

“The applicant seeks special leave to appeal to this Court to re‑agitate in this Court the arguments that were made before the Courts below.  The applicant does not address the decision of the Court of Appeal.”

Brian Shaw later applied for leave to issue a proceeding in the High Court, which was refused by Bell J in Shaw, In the matter of an application for leave to issue a proceeding [2009] HCATrans 45

In Attorney-General for the State of Victoria v Shaw (No. 2) [2010] VSC 73 Beach J considered an application for leave to file a proceeding by Brian Shaw. At the commencement of the hearing, Brian Shaw applied to have Beach J disqualify himself for bias, on the basis that his father, as a Judge of that Court, in 2001 refused to make an order permitting Brian Shaw to file originating process. The application was refused. The proposed relief included leave to commence proceedings against the Premier of Victoria, the Electoral Commissioner of Victoria, the Victorian Electoral Commission and seven candidates for the State seat of Altona; a declaration that the Altona by-election was void on the grounds of “Fraud, Treason and Misprision of Treason”, and transfer into “the criminal Jurisdiction of the Full Court of Victoria for grand jury process”. 

Beach J noted that Brian Shaw sought to allege that by enacting the Courts and Tribunals Legislation (Further Amendment) Act 2000, the Parliament of Victoria has committed an act of treason and this act of treason had been “compounded thereafter by every judicial officer and court within the State of Victoria”. Beach J refused the application on the basis that “a proceeding of the kind foreshadowed in which serious allegations are made without any evidentiary foundation would be an abuse of process”.

With respect to the proposed Grand Jury, His Honour noted that, on 1 January 2010, the common law procedure of calling a Grand Jury was abolished by section 253 of the Criminal Procedure Act 2009, which provided for the abolition in terms, and section 422(2)(a), which repealed the former section 354 of the Crimes Act 1958. Brian Shaw contended that section 354 of the Crimes Act 1958 remained in force because the repealing Acts were invalid, citing Byrne v Armstrong (1899) 25 VLR 126, which Beach J noted was overruled in Re Shaw [2001] VSCA 175. Of Brian Shaw’s arguments, Beach J said:

“At the foundation of Mr Shaw’s proposed claim is the proposition that any legislative provision of the State of Victoria or decision of this Court which cuts across the argument he wishes to run is invalid because of some fraud and/or treason and/or misprision of treason. Arguments based upon such a foundation are foredoomed to fail. This, of itself, is a sufficient ground for dismissing Mr Shaw’s application.”

Brian Shaw then applied for leave to issue process in the High Court, which was refused by Kiefel J in Shaw, In the matter of an application for leave to issue process [2011] HCATrans 10:

Brian Shaw also applied for leave to appeal from the order made by Beach J, in Shaw v Attorney-General for the State of Victoria [2011] VSCA 63. At the commencement of the hearing, Brian Shaw again applied to have Buchanan JA disqualify himself for bias, on the basis that his Honour was a member of that Court which in 2001 heard and dismissed his application to summon a grand jury. This application was again refused. Maxwell P (with whom Buchanan JA agreed) noted (at 21-22):

“The difficulty (and it is insoluble) is that Mr Shaw and those in court supporting him are very firmly – passionately – of the view that his arguments do have legal merit and, moreover, that this Court should entertain them.  That is a problem to which the Supreme Court can provide no solution, as none of the arguments proposed by Mr Shaw has any legal merit at all, and this Court has no jurisdiction to consider the kinds of matters that Mr Shaw wants to ventilate. This is just the latest in a series of rulings by different judges expressing essentially the same view, that the arguments advanced by Mr Shaw are legally unintelligible.  His propositions do not engage any of the principles of law which this Court is bound to apply.  Applying those rules, Beach J was entirely correct and I would therefore refuse leave to appeal.”

Several fundamental difficulties were highlighted (at 24-30). One being that his argument partly concerned legislation in Western Australia, which no court in Victoria has any jurisdiction to deal with. Likewise, no Victorian Court has jurisdiction to deal with any matter concerning the validity of Federal elections, those are matters for a court of disputed returns. Similarly with the Altona by‑election in which Brian Shaw was a candidate, there is a provision for a court of disputed returns in respect of Victorian parliamentary seats, although the paradox is that he does not accept that the Parliament of Victoria is operating lawfully, so the law which provides for adjudication of disputed returns is itself invalid.

“Mr Shaw went so far as to say that there was a ‘secret government’. Mr Shaw says that the agenda of that secret government is the “destruction of each State economy and each State government”. He went on to say: “Something absolutely destructive is happening.” If there was any truth in these assertions, it would be of great concern to citizens. He should be spending his time alerting other members of the community, rather than two judges who have no power to deal with these matters.”

In 2011 Brian Shaw commenced proceedings seeking to have the order of Hansen J declaring him a vexatious litigant set aside. He procured the issue of a number of subpoenas in connection with that application, and in 2012 Ferguson J set the subpoenas aside as an abuse of process. The Court of Appeal (Warren CJ and Bongiorno JA) dismissed the application for leave to appeal from the orders of Ferguson J setting aside the subpoenas. Warren CJ characterised the proposed grounds of appeal as “nonsensical” and “reflective of the very matters that led to his declaration as a vexatious litigant in the first place”. 

Brian Shaw sought special leave to appeal to the High Court regarding the orders of Ferguson J setting aside the subpoenas. V.M. Bell and S.J. Gageler dismissed the application in Brian William Shaw v Attorney-General For the State Of Victoria [2013] HCASL 66, noting “Nothing in the incoherent material filed in support of the application calls into question the correctness of the order below.”

In Attorney-General for the State of Victoria v Shaw [2012] VSC 334 Forrest J considered the application to set aside the order of Hansen J declaring him a vexatious litigant. His Honour noted that the order of Hansen J was based on Shaw’s conduct in issuing proceedings alleging treason against numerous public officials based on assertions that the Victorian Constitution Act 1975 (Vic) was invalid and the Acts Amendment and Repeal (Courts and Legal Practice) Act 2003 (WA) was an illegal conspiracy.  In support of his application for the order to be lifted, Mr Shaw raised arguments, which Forrest J noted were similar to those raised before Hansen J. J Forrest J dismissed the application noting that “but for the fact that 5 years had elapsed since the order of Hansen J, I would have dismissed it as an abuse of process”.

Brian Shaw sought an extension of time to apply for leave to appeal to the Court of Appeal from the decision of Forrest J. The Court of Appeal (Whelan JA and Vickery AJA) dismissed the summons on the basis that there was no explanation for the delay and that there was no prospect of the applicant obtaining leave to appeal.

Brian Shaw then applied for special leave to appeal to the High Court, which was rejected by V.M. Bell and S.J. Gageler in Brian William Shaw v The Attorney-General For the State Of Victoria [2013] HCASL 119:

In Attorney-General for the State of Victoria v Shaw (No 5) [2013] VSC 106 Beach J considered an application by Brian Shaw for leave to file criminal charges against the then Chief Justice, including on the basis the Chief Justice committed treason by sitting in federal jurisdiction with the knowledge that the oath of allegiance had been removed. Beach J noted that Brian Shaw again based his claim on the allegation that in enacting the Courts and Tribunals Legislation (Further Amendment) Act 2000, the Parliament of Victoria had committed a treason.  Beach J dismissed the application as an abuse of process on the following five bases:

First, the proceeding would be premised upon a number of propositions which have been already rejected by a number of different courts. Secondly, there is no basis in law or in fact for the laying of the charges Mr Shaw seeks to lay. Thirdly, Mr Shaw’s application demonstrates that if he was given leave to commence the proceedings he proposes, such proceeding would be mired in an array of irrelevant, misconceived and baseless allegations. Fourthly, as Mr Shaw’s applications to date demonstrate, if Mr Shaw was given leave to commence the proceeding he wishes to commence, he would conduct it in open disregard of any binding authority with which he does not agree (generally asserting that the court responsible for that authority has itself committed treason or fraud). Fifthly, any proceeding issued would have no prospects of success.”

Brian Shaw then applied for special leave to appeal to the High Court, which was rejected by V.M. Bell and S.J. Gageler in Brian William Shaw v The Attorney-General For the State Of Victoria [2013] HCASL 120: noting “His application and written case are largely unintelligible and must be dismissed. “:

In The ANZ Executors and Trustee Co Ltd v Shaw [2015] VSC 288 Rush J considered an application by Brian Shaw to continue proceedings in three matters where costs orders were made against him. The plaintiff company was the trustee of the estate of his deceased father and Brian Shaw’s allegations against the trustee included that the real corporate entity was not the plaintiff but rather “Fidelity Investments Institutional Services Co Inc of Boston, USA”, that birth certificates are being converted into bonds and treated as securities held by Fidelity Investments; that the solicitors for the plaintiff and numerous judges and officers of the Supreme Court were guilty of treason by reason of the removal of the oath of allegiance to Queen Elizabeth II from the Legal Profession Act. Rush J dismissed the application on the basis that the ‘various extraordinary allegations” were “sufficient to demonstrate the applications are based on hopeless, untenable, indeed bizarre, materials”.

Brian Shaw then applied for special leave to appeal to the High Court, which was rejected by V.M. Bell and S.J. Gageler in Brian William Shaw v The ANZ Executors And Trustee Company Limited (As the Trustees Of the Estate Of John William Shaw, Deceased) [2013] HCASL 179, noting

“The application for special leave to this Court does not engage with any aspect of the merits of the decisions below. No question of principle is raised and the application enjoys no prospect of success.”

Brian Shaw later applied for leave to issue or file in the High Court, which was refused by Edelman J in Shaw, In the matter of an application for leave to issue or file [2019] HCATrans 239 seeking orders that a petition be filed in the Court to have:

• “the entire election of the most recent Commonwealth election declared invalid”
• “all criminal issues discovered in this legislation … be remitted to the Full Court of the Supreme Court of the State of Victoria for Grand Jury indictments based on lack of jurisdiction for indictments, under section 42(2) of the Judiciary Act 1903 and the High Court of Australia Act 1979, ‘Transfer of Proceedings’, in addition to Common Law rights”
• “this Originating Application sit sine die until the criminal issues are discovered and ruled upon by jury; that is Grand Jury indictment followed by a State Trial, indictment obtainable by both Statute Law and Common Law”
• “the Court submit this originating application Statement of Claim to both Houses of the Commonwealth Parliament in accordance with Section 47 of the Commonwealth Constitution Act 1900”.
• “the suspension of the following: all Justices of the High Court of Australia, all staff of the Melbourne Registry of the High Court of Australia, all State Governors, and all current Attorneys‑General.”

Brian Shaw’s Influence

Others have been prompted to make the same allegations in Victoria, each time dismissed, such as in Donohue v Victorian Electoral Commission [2015] VSC 98 where Garde J considered an application by GJ Donohue to restrain the State general election.  The statement of issues relied upon included:

• The removal of Her Majesty Queen Elizabeth the Second, Her heirs and successors and subjects from statute law within the State of Western Australia
• The creation of invalid Acts and activation and use of such invalid Acts creating criminal offences
• The involvement of respective State Governors in the concealment of the criminal removal of Her Majesty and substitution of the Governor of Western Australia beginning 1 January 2004, Governor John Sanderson (WA), Governor Ken Michael (WA), Governor Malcolm McCusker (WA), Governor Kerry Sanderson (WA)
• The illegal and criminal removal of Her Majesty creates the twin criminal offences of treason defined in law as breach of Allegiance and misprision of treason. Such offences are both common law and statue law in both State and Commonwealth Codes in addition to common law.
• The criminal converting and trading of Australian Birth Certificates on world stock exchanges without the knowledge nor consent of each Australian named on such Birth Certificate criminally converted to trading bonds
• The receiving entity (the trustee) is Fidelity Investments (USA); such entity also trades all court room transactions inclusive of all lawyers trust accounts, involving every lawyer, magistrate and judge in the criminal offence of trading Australians on world stock exchanges via Fidelity Investments using CUSIP or QCINS references.
• It is also to be noted that Mr Mark Pedley sits in the Supreme Court, Court of Appeal as the Judicial Review Officer to handle and/or suppress all grand jury lodgements and/or grand jury documents. In the year 2004 Mr Pedley was the Deputy Director of the Commonwealth Public Prosecution Office subject to Damian Bugg, the Director.
• The criminal offence set out at Section 34 Crimes Act 1914 (Cth) in relation to judges and magistrates exercising federal jurisdiction with a personal interest.
• The judicial corruption involving the concealment of all Grand Jury Applications lodged at the Victorian Supreme Court Criminal Jurisdiction prior to any purported abolition of such grand jury statute right, inclusive of the ten Grand Jury Applications lodged in March 2008 relating to Justice Nettle and the involvement of Mr Mark Pedley in the concealment of such, meaning the collusion between the Office of Public Prosecutions (Cth) and the Victorian Supreme Court in particular the Full Court or Court of Appeal.

Garde J dismissed the application on the basis that the allegations in the petition, including those set out above, were an abuse of process, irrelevant and in some cases scandalous.

In DPP v Sacco on 10 August 2018, the defendant was found guilty of attempting to pervert the course of justice, and appealed the conviction in in Sacco v The Queen [2018] VSCA 353 on the ground that a ‘substantial miscarriage of justice’ had occurred. In her submissions was an eight page document headed “Treason and Misprison of Treason”, signed by Brian Shaw. The argument, which was plainly untenable, included the following elements:

First, in 1855 the Imperial Parliament passed The Constitution Act, which established the Colony of Victoria as a self-governing colony with responsible government. Secondly, the Constitution Act 1975 (Vic) was ineffective to ‘repeal’ the Act of 1855. Thirdly, the Australia Act 1986 (Cth) and Australia Act 1986 (UK) — which removed, first, any possibility for the United Kingdom to enact legislation with effect in Australia; secondly, for the United Kingdom to be involved in Australian government; and thirdly, for an appeal from any Australian court to be heard by a court of the United Kingdom — were enacted in breach of s 128 of the Commonwealth Constitution, and were therefore void. Fourthly, the removal of the necessity in s 6(1) of the (since repealed) Legal Practice Act 1996 for a legal practitioner to take an oath of allegiance (effected by s 3 of the Courts and Tribunals Legislation (Further Amendment) Act 2000), was unlawful.  Fifthly, as a result, ‘any legal practitioner purporting to derive their authority from such Act therefore has no valid standing in any court’.  Sixthly, the removal of references to the Crown and Queen from Victorian law (including the Public Prosecutions Act 1994) means that no valid indictment exists, so that the trial ‘cannot proceed’.  Seventhly, the abrogation of the oath of allegiance means that the Office of Public Prosecutions ‘and its representatives are therefore devoid of proper legal standing’, so that any proceedings brought by them ‘are therefore null and void ab anitio [sic]‘.

In Members Equity Bank Pty Ltd v Elefterescu [2018] VSC 223 the second defendant in contended that Associate Justice Lansdowne refused the challenge to her standing, which raised the need to issue notices under s 78B of the Judiciary Act 1902 (Cth) on the basis of the effect of “the removal of Her Majesty Queen Elizabeth II – the Crown” in two pieces of legislation being the Courts and Tribunal Further Amendment Act 2000 (Vic) and the Acts Amendment and Repeal of Courts Legal Practices Act 2004 (WA).  Further, she submitted her Honour failed to address issues of (i) bias; (ii) apprehension of bias; (iii) indictable offences under section 34 of the Crimes Act 1914 (Cth), treason, misprision of treason and attempting to pervert the course of justice.

“The second defendant further contended that 28 Grand Jury applications were lodged at the Melbourne Magistrates’ Court and exhibited 24 pages purporting to be a ‘Criminal Charge for Common Law Grand Jury’ with Brian Shaw as the purported informant and witnessed by 24 individuals. The purported crimes being the subject of the ‘Criminal Charge’ are treason and misprision of treason. The affidavit also exhibited materials alleging a Masonic conspiracy to undermine the Australian Constitution, in which ‘all Judges, Magistrates, Registrars, Lawyers, Barristers have implicated themselves.”

Brian Shaw’s latest attempts at his same old contention, despite having no approval to initiate proceedings, 4th of September 2020

In 2021, Anthony Herman, initiated a private prosecution against Daniel Andrews for “Misprision of treason” using Brian Shaw’s argument regarding the removal of references to the Crown in judicial oaths. Brian Shaw was heavily involved, coaching him through the process, he even submitted the statement of claim from one of his failed cases as the statement of claim for this prosecution, and gave a speech outside the Myrtleford Magistrates Court at the mention on the 17th December 2021.

Three pertinent points to consider:

The alteration of the terminology which refers to the Crown in various legislation, replacing it with a reference to the body politic, did not effect any change to constitutional reality, much less “remove the Crown” or even alter the relationship between the Crown and the various bodies contained within the Acts amended. Further, there is no constitutional prohibition upon the alteration of the terminology.

There is no evidence that Freemasons administer or take oaths proscribed by section 316 of the Crimes Act 1958 (Vic) as contended.

The common law procedure of calling a Grand Jury under section 354 of the Crimes Act 1958 (Vic) was abolished by section 253 of the Criminal Procedure Act 2009 (Vic), which provided for the abolition in terms, and section 422(2)(a), which repealed the former section 354 of the Crimes Act 1958 (Vic).