Aidan Llewellyn trading as the Trustee for the House of Llewellyn v State of New South Wales

By a summons filed on 27 April 2023 a party describing itself as "petitioner", being "the Trustee for the House of Llewellyn", sues the State of New South Wales, the New South Wales Treasury Corporation, New South Wales Treasury, and New South Wales Trustee. This is an application by those parties, referred to as respondents in the summons (the State), for the summons to be summarily dismissed or otherwise struck out as frivolous or vexatious for disclosing no cause of action. For the following reasons that relief will be granted.

The summons describes the type of claim as:

The summons claims this relief:

By notice of motion filed 9 June 2023 the State seeks this relief:

Mr Aidan Llewellyn appeared for the named “petitioner”. Mr Llewellyn informed me that he did not appear personally but did so in his capacity as trustee for the House of Llewellyn Trust. Because he is the natural person on the record I shall refer to him, without disrespect, as the Plaintiff. Ms E Dunlop of Counsel appeared for the State.

The Court has had the advantage of detailed written submissions from the parties, supplemented orally today by both Mr Llewellyn and Ms Dunlop.

On 1 May 2023, the Plaintiff filed in support of the summons a document entitled "Petition to compel the State of New South Wales et al., to disclose information associated with a state issued Australian government guarantee semi-government security." It included (omitting footnotes):

I have carefully read the “petition” and the affidavit in support made by Mr Llewellyn which constitutes the Plaintiff’s submissions in response to the State’s notice of motion and submissions. I shall return to Mr Llewellyn's affidavit.

The “petition” gives references to documents in registers maintained by the New South Wales Registrar-General. Copies of the relevant registrations were included in the material provided to the Court. The material registered as Book 4803 No 216 includes a document described as an affidavit and which refers to an attached document (emphasis added):

It will be apparent from what I have set out thus far that, at the heart of the case sought to be advanced by the Plaintiff, is the proposition that what the Plaintiff referred to as the "authenticated" copy of his birth certificate constitutes the “Trust owned Security” referred to in paragraph 1 of the relief claimed in the summons (see [3] above). Mr Llewellyn submitted that this was the basis of the right claimed in the summons to the information which he says the State has failed to provide, being the information set out in paragraph 4 of the “petition” (see [7] above). The State’s conclusive answer to the entire summons is that Mr Llewellyn’s birth certificate is not a “security” and that, therefore, the information sought by the Plaintiff does not exist.

It is necessary to say something about the “authenticated" birth certificate. It is a document comprising three pages. One page is a certified copy of Mr Llewellyn's birth certificate having registered number 103908/1988. It bears a certification by the Registrar, Mr Greg Curry, dated 29 April 2014 which states,

The first authentication of that document relied upon by the Plaintiff is a certification provided by Chukiet Vasana, who is described as an authentication officer for the Secretary of the Department of Foreign Affairs and Trade, Sydney Passport Office. The certification states:

The signature of Chukiet Vasana is itself further certified by another sealed document executed by a Consular Officer in the Australian embassy in Washington, Stephanie Nielsen:

Turning to the submissions provided by Mr Llewellyn in response to the present motion, these are set out in a document entitled “a living testimony in the form of an affidavit” and which describes the deponent as “Aidan Llewellyn, non-individual, as Trustee only”. It includes:

While in that document the Plaintiff purports to deny the proposition advanced by the State (that it is the “authenticated” birth certificate which is the "Trust owned Security" in the summons) it is clear, when the whole document is read, that it is the “authenticated” birth certificate which is the “Trust owned Security” referred to in paragraph 1 of the relief sought in the summons. Mr Llewellyn confirmed as much in the course of submissions and questions from me today.

As part of what is described to as the “affirmative testimony” in that document, the essence of the Plaintiff’s argument appears from paragraphs 58 to 69 (emphases in original):

Ms Dunlop's helpful submissions set out a number of reasons why, with great respect to the Plaintiff, the summons and the relief sought in it are completely misconceived as a matter of the laws applicable in New South Wales and, for that matter, the Commonwealth of Australia generally (Mr Llewellyn’s submissions appeared at one point to suggest a relevant distinction between state law and Commonwealth law). It is sufficient for me to deal with only two matters put by Ms Dunlop that are entirely dispositive of the Plaintiff’s claim.

The first is the Plaintiff’s proposition that either in and of itself, or by reason of the process of registration and certification or authentication, Mr Llewellyn's birth certificate is a form of security. The Court accepts the State’s submission that the birth certificate is plainly no such thing. Apart from anything else, it contains no words of charge, mortgage, guarantee or similar that one would expect to see in a document that met the orthodox legal definition of a "security". It is a birth certificate, undoubtedly an important document, but on no view is it a security creating rights as such under any law of this country.

The second fundamental difficulty with the Plaintiff’s case relied upon by the State appears from what I have set out in [16] above, which displays a basic misunderstanding of the expression "full faith and credit" where those words appear in s 118 of the Constitution (Cth) and in other legislation relied upon by the Plaintiff.

The Plaintiff, fastening upon an online definition from "Investopedia", submits that "credit" in the expression “full faith and credit” is something to do with guaranteeing or evidencing a debt. There can be no doubt that is not the meaning of "credit" in the expression "full faith and credit". "Credit" in that phrase refers to the concept of acceptance or belief in the validity of something.

The two reasons which I have identified are sufficient to demonstrate for the purposes of the State’s notice of motion that the summons discloses no reasonable cause of action and ought to be summarily dismissed accordingly. There is, in fact or law, no “Trust owned Security” about which any of the defendants can provide the information sought by the summons as explicated in the “petition”.

However, before leaving the substantive issues raised during the course of the hearing, I should also record that Mr Llewellyn "moved to strike" the State's submissions. He did so on the basis that those submissions were "non fact, hearsay, rhetoric, unwarranted, conjecture" and other epithets to like effect.

As I sought to explain to Mr Llewellyn during the course of argument, submissions are not evidence and are not required to be sworn. The State’s motion was supported by an affidavit sworn by a solicitor with the conduct of the matter. The State’s submissions are something quite different from the affidavit in support. They are exactly that – submissions – and not evidence. I therefore rejected Mr Llewellyn's application "to strike" the State’s submissions.

The State proposed short minutes of order in support of their application that their costs be assessed on a gross sum basis. The first step is for a costs order to be made.

I invited Mr Llewellyn to put any submissions as to why he, being the named “petitioner, Aidan Rees Llewellyn as trustee for the House of Llewellyn”, should not be ordered to pay the State’s costs of the summons including the present motion. He responded that he should not be ordered to pay costs as he did not accept the validity of my judgment because of the various facts upon which the Plaintiff relied. He submitted those facts had not been controverted by the State and that my reasons were inadequate.

This is a case where the usual principle should apply as to costs, namely that costs follow the event. Mr Llewellyn’s submissions do not provide a proper basis to depart from that position in the exercise of the Court’s discretion. The event is the dismissal of the summons in accordance with the State’s notice of motion. The Court will order that the Plaintiff pay the State’s costs of the summons, including of the State’s notice of motion, and make directions for the resolution of the application for costs on a gross sum basis.

The orders of the Court are: