Adelaide City Council v Lepse [2016] SASC 66

Adelaide City Council v Lepse [2016] SASC 66 was the appeal of a parking ticket conviction and fine. At the trial the defendant stood at the courtroom door and when the Lepse matter was called identified herself by her first name, said she was the personal representative of Lepse. The court informed her that the only person who could attend the hearing was Lepse, and unless she was present the court would proceed ex parte. This person claimed Lepse was a legal fiction and a birth certificate, and was subsequently removed and the matter proceeded.

“I note that in Meads v Meads, Rooke ACJ of the Court of Queen’s Bench of Alberta, Canada, has written a valuable and lengthy judgment dealing with a broad range of pseudolegal conduct. The judgment shows that many types of pseudolegal arguments have been encountered. I refer to some short excerpts particularly relevant to the present case from what is a very extensive judgment.

Common ‘scripted’ motifs include demands by the OPCA litigant:

  • that the court state whether it is addressing the litigant in one of two roles, such as whether this is to a “legal person” or a “corporation”, vs a “flesh and blood person”, or a “natural person” …

OPCA litigants often present documentation to the court or another party at the hearing itself, without prior service or warning. Common examples include:

  • an attempt to present the judge or a court official with documents that make the court a fiduciary, agent, or foist a contract on the judge or court official: this proceeding; and
  • presenting the judge, the court clerk, or an opposing litigant with a ‘fee schedule’ or other foisted unilateral agreement (see below).

A particularly difficult category of OPCA litigant are those who adhere to the OPCA concept that all interactions between the state, courts, and individuals are contracts. As is later explained in greater detail, persons who adopt this concept will interpret almost any invitation by the court or compliance with court procedure as the formation of a contract. For example, members of this Court have observed that litigants who apply the OPCA ‘everything is a contract’ strategy will refuse simple court directions and processes, such as to pass the bar, sit, stand, or acknowledge their identity. “To pass the bar” is the Canadian terminology for passing the dividing point in the courtroom between the public gallery and the area for litigants and counsel.

Similarly, litigants who refused to identify themselves but claim to represent an entity related to the litigant will often maintain this role in the face of strong court warning. These OPCA litigants are often very argumentative. The manner in which the refusal occurs is often highly formalistic. Similarly, OPCA litigants have demanded that court documents, such as informations and summons, display their names in all capital letters: R. v Lawson, 2012 BCSC 356 at para 9, 2012 D.T.C. 5069. That, presumably, would then allow the litigant to claim that the all-capitals name related to someone else, and thereby go free.

In Mercedes-Benz Financial v Kovacevic, [2009] O.J. No 783 at para 14, 2009 CanLII 9368 (Ont. Sup. Ct. J.), Justice Brown reproduces a “most unusual” contract: “… signed twice by Mr Kovacevic: once in his capacity as “secured-party, first-party”, and then again as “debtor, second-party”.” Brown J then at para 15 summarizes the document’s intended effect: “It appears that by this document Mr Kovacevic has attempted to split himself into two separate persons – a “flesh and blood living man”, and a “juristic person\strawman\legal entity” created by the Province of Ontario. If one takes the document at face value, then Mr Kovacevic impliedly acknowledges that up until December 11, 2007 – ie three months after he had purchased the Mercedes-Benz – he was a “juristic person”. He then attempts to transfer to his newly created “flesh and blood living man” all his property then owned. The document notably is silent as to what happened to the debt held at that time by the “juristic person”. He then concludes at para 45: “Of course this document has no legal effect. In the eyes of the law it is rubbish. However, when read together with the other documents created by Mr Kovacevic it forms part of what I conclude to be a deliberate effort on his part to avoid payment of his debt obligations.”

I note that in Re Magistrate M M Flynn; ex parte McJannett, McKechnie J, having heard an application by an unrepresented litigant who adopted an attitude rather similar to that of the present defendant, said: “The applicant appears to be one of a group of individuals without legal training who continue to espouse theories of constitutional law that have no basis. Courts in this State and throughout Australia, indeed the common law world, have steadfastly so ruled. As a result of his continuing pre-occupation with discredited legal theory the applicant has sworn in his affidavit such nonsense as:

  • 1. “I am a Man, a flesh and blood living soul created under God also known as a ‘Human Being’. I am not a corporate entity and I do not consent to my body being transferred to a corporate entity for the purposes of commerce including commercial transactions in any court.”
  • 2. “My name is Man or Robert Paul as per the ‘Birth Certificate’ extracted from my live birth record on 6 June 1961 annexed to this affidavit and marked RP 01 and of which Birth Certificate signifies the Cestui Que trust created by the State of Queensland without my consent.”

After reproducing more of the same, his Honour concluded: “It is not necessary to comment on these assertions. Mere quotation of these paragraphs is sufficient to explain why this action is vexatious and is dismissed.”

If he wishes to play games about his identity while engaged in the serious business of court hearings involving criminal charges, he should expect magistrates to respond as did this magistrate. There is no room in a crowded Magistrates Court for time wasting by idiosyncratic litigants who believe in legal theories that are without merit. Finally, judges administer justice according to law. They are not required to expend judicial time, a scarce public resource, on applications that have no legal foundation and involve a deluded understanding of the law. Thus, McKechnie J in effect held that the extent of the duty must be approached in a contextual way. I note that Rooke ACJ expressly took this position in Meads v Meads when his Honour stated:

“The Alberta Court of Appeal in Cold Lake First Nations v Alberta (Minister of Tourism, Parks and Recreation), 2012 ABCA 36 at para 24 described that obligation as a judge has “… a special duty to provide limited assistance to unrepresented parties …”. At para 25 the scope of that obligation is reviewed: The extent of this duty depends on the totality of the circumstances, including the seriousness of the offence, the defences raised, and the sophistication of the unrepresented party … The judge’s advice must be interactive, appropriate to the unrepresented party and to the surrounding circumstances of the case … Just how far a judge should go in guiding an unrepresented party is a matter of judicial discretion. That is clearly a contextual response. In OPCA litigation, that duty occurs in the face of vexatious litigation and procedural strategies that are designed to disrupt court operation and impede the exercise of legal rights. OPCA litigants have chosen to implement strategies that they have been told will, at a minimum, paralyze court operation, if not break it. That means OPCA litigants have, first and foremost, decided to adopt vexatious litigation strategies. These OPCA litigants claim (wrongly) to be outside court jurisdiction – the rules do not apply to them.”

As Rooke ACJ rightly recognised, assessing the extent of the court’s duty to advise and assist is very much a contextual response when it concerns unrepresented litigants who are deliberately attempting to assert meritless arguments and stratagems.

A need for registry staff to be vigilant

In the light of the surreptitious changing of a substantive part of a court- approved form referred to above, I consider it important that when court registry staff deal with unrepresented litigants, they should pay particular attention to any court-approved form in a wholly typewritten format that is presented for filing. It is not that an unwitting acceptance of an improperly altered document for filing, such as has occurred in this case, presents a substantive legal advantage to that litigant. The courts are not so powerless as to be unable to deal with such matters when they arise, as has been done in the present case. The real difficulty is that, if such additions are not discovered for some time, then at some later stage of the litigation, arguments may be put, possibly by either party, concerning the validity of a court process dependent on a court-approved form altered by one of the parties. The mere hearing and addressing such arguments may waste valuable court time.

That will be the most obvious modus operandi. But, of course, a determined fraudster could download a court-approved document, alter a substantive portion and then fill in the blank “required details” sections in handwriting, thus giving registry staff false confidence that the typed portion of the form is unaltered. This is a possibility that can no longer be discounted when accepting documents for filing.

“Witnessing” of documents by Justices of the Peace and others

In the present case, a Justice of the Peace has been prepared to append her signature and stamp to documents which falsely purport to be affidavits and, to a lay person, might well be presumed to be affidavits. However, it is quite clear that these documents have in no way been sworn of affirmed. I consider this to be a serious matter. However, the matter does not stop there. The content of documents may be so clearly redolent of an abuse of legal process that a person such as a Justice of the Peace should play no part in the advancing of such documentation, quite irrespective of whether they actually purport to be affidavits. This is not the first time that this matter has been addressed. In Meads v Meads, Rooke ACJ addressed the duties of practitioners in such a context thus:

“Like the judge, a lawyer who represents the target of an OPCA litigant faces a difficult task. However, as an officer of the court each lawyer has certain duties not only to the client, but also to the justice system as a whole.”

Notarization of OPCA Materials

One duty is to not participate in or facilitate OPCA schemes. During preparation of these Reasons, I reviewed a large number of OPCA litigation files in our Court. I was very disturbed and profoundly disappointed to see the number of occasions where an OPCA document was notarized by a practicing lawyer. Certain of Mr Meads’ materials were marked in that manner, by two different members of the Alberta Bar. Alberta Justice has instructed lay notaries to not endorse documents of this kind: Papadopoulos v Borg, 2009 ABCA 201 at para 3.

“This Court has, on previous instances, drawn to the attention of the Law Society of Alberta that this kind of action is inappropriate for an officer of the court. It assists implementation of vexatious litigation strategies. In my view, a lawyer has a positive duty not to engage in a step that would ‘formalize’ (though typically in a legally irrelevant manner) an OPCA document. I have previously noted that certain OPCA gurus place a peculiar and mythical authority in a notary’s hands. A lawyer should not, directly or indirectly, reinforce, or support that purpose.”

I consider his Honour’s comments apply equally in this jurisdiction. Justices of the Peace, or others, who purport to witness documents which on their face appear to be associated with meritless pseudolegal arguments may be seen to be giving support to such arguments. It is disappointing to see that documents of that sort in this case have been given what might appear to be some verisimilitude by appearing to have been formalised by a Justice of the Peace.”

Click to access adelaide-city-council-v-lepse-2016-sasc-66.pdf

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