National Australia Bank Ltd v Joyce [2012] WASC 224

The respondents would not accept service of the banks documents for foreclosure, made allegations of trespass citing Plenty v Dillon (1991) HCA 5 1 and chased the applicants from the property. In National Australia Bank Ltd v Joyce [2012] WASC 224 2 they submitted that the court had no authority to act ‘either under its constitutional seal or its corporate seal’, pointing to the seal of the court affixed to the chamber summons, and referring to covering clause 5 of the Constitution. They also quoted from the decision of Kirby J in Re Wakim; ex parte McNally [1999] HCA 27 3 that a ‘legislature cannot, by preambular assertions, recite itself into constitutional power where none exists’, contending that the court has no power to act under either the “constitutional seal” or the “corporate seal” affixed to the chamber summons. The court responded (at 20):

“Section 106 of the Constitution of the Commonwealth of Australia expressly continues the Constitution of each State of the Commonwealth, subject to the Commonwealth Constitution, continue as at the establishment of the Commonwealth until altered in accordance with the Constitution of the State. At the time of Federation, s 2(1) of the Constitution Act 1889 (WA) dealt with the establishment of the Western Australian Legislative Council and Legislative Assembly and provided that it should ‘be lawful for Her Majesty, by and with the advice and consent of the said Council and Assembly, to make laws for the peace, order, and good government’ of the Colony and its dependencies. Section 2(1) has never been amended, and the words ‘peace, order and good government’ confer plenary power. (See Attorney-General (WA) v Marquet[2003] HCA 67; [16] 4 Union Steamship Co of Australia Pty Ltd v King [1988] HCA 55; [9] 5)

Section 15 of the Supreme Court Act 1935 (WA) provides for the Supreme Court to use a seal and for the power of the judges of the court to make rules providing for the purposes for or occasions on which the seal may be used. Order 67 r 4 of the Rules of the Supreme Court 1971 (WA)provides that the official seals to be used in the Central Office shall be such as the Chief Justice from time to time directs. There is no separate constitutional seal or corporate seal. Only one official seal exists, and the Chief Justice has directed its use. The official seal of the court, commonly affixed to court documents in accordance with the direction of the Chief Justice, bears the Western Australian coat of arms depicting two kangaroos each holding a boomerang in one paw and a shield in the other. It also bears the words ‘the seal of the Supreme Court of Western Australia’. In accordance with common practice, that seal was affixed to the chamber summons by the Central Registry of this court. The affixing of the official seal has the effect that the chamber summons can be received in evidence without any signature or other formality.

Despite being given the opportunity to do so on numerous occasions, at no time did either of Messrs Trystan and Ryan Joyce identify how the ‘seal’ under which the court was said to be acting affected the jurisdiction of the court to hear the matter, or the power to make the orders sought. The best that might be said of the submission is that it bore some resemblance to a more detailed argument made in O’Connell v The State of Western Australia [2012] WASCA 96. 6 In that case, Mazza JA (with whom Martin CJ and Buss JA agreed) considered two arguments relating to issues which were asserted by the appellant to be constitutional issues: (i) that the passage of the Acts Amendment and Repeal (Courts and Legal Practice) Act 2003 (WA) (which, in broad terms, changed references to the Crown or her Majesty in a large number of statutes, including the District Court Act 1969 (WA), to the Governor or the State) ‘purported to dissolve the indissoluble Federal Commonwealth; under the Crown of the United Kingdom by removing the Sovereign’; and (ii) that since the Department of the Attorney General has an Australian Business Number (ABN) the courts in this State have effectively become corporations and that the judiciary is no longer a separate and independent arm of government. His Honour addressed that submission in detail, concluding that the arguments were hopeless and had no reasonable prospect of succeeding. The same must be said of the submission, if it were a submission, in this case.”

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