In support of its grounds of opposition, the defendant has filed a document entitled “Affidavit/Commercial Lien” sworn by its director, Anthony William Evans, on 15 January 2015. This document of some 15 pages comprises largely spurious legal nonsense. It is not necessary to deal with it in detail, but it is worth exposing some of the fallacies that it contains.
First, in paragraph 8, it refers to a ruling in the Chancery Division of the High Court in London on Friday 25 June 2004 as having stated, “letters patent issued under the great seal of Australia by the Queen appointing the Governor-General in Australia have been issued incorrectly”. It then goes on to assert that as a result of that ruling, the Governor-General of Australia holds no executive powers whatsoever and that as a result of that ruling all current Australian laws assented to on behalf of a British monarch by the Governor-General cannot hold any valid or executive authority as the Governor-General’s appointments have not been lawfully issued. Master Bowman agreed that the Letters Patent appointing the Governor-General, which for Major-General Michael Jeffery and several of his predecessors were clearly stamped with the Great Seal of Australia, should perhaps have been stamped with the Great Seal of Britain instead. But the success of Mr Fitzgibbon ended at this particular concession.“Essentially it is a matter of procedure and not necessarily of substance – that the wrong seal was used,” Master Bowman found in the judgement.“The claim should be struck out on the basis of hopelessness … and, where appropriate, embarrassment.” Accordingly, the judgment of Master Bowman provides no support whatsoever for the contentions for which it is cited in the so-called affidavit/commercial lien.
Secondly, the repeated proposition that the affidavit, being unrefuted, “stood as law and fact” is equally nonsense. Unrebutted affidavits do not necessarily conclusively establish the facts deposed to in them. They are evidence of facts. They do not establish them conclusively. Even less do they establish law. Thirdly, the idea that somehow by serving the so-called commercial lien on the Deputy Commissioner or anyone else those parties become bound by it is equally nonsense. Mere receipt or notice of a document does not mean that the recipient acknowledges, accepts or becomes bound by it. In the course of legal proceedings, parties are served with statements of claim and affidavits on a regular basis. The receipt of those documents does not of itself mean that the party is bound by or party to it, any more than receipt of a letter by an addressee means the party accepts its truth or becomes bound by it. The “affidavit/commercial lien” demonstrates no defence whatsoever to the winding-up proceedings.”