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Affidavit dated January 10, 2013 opposing the ruling that Brendan is submitted to the jurisdiction of the Federal Court of Australia citing relevant case law
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1
Filed on behalf of (name & role of party) Brendan Knudson, Respondent
Prepared by (name of person/lawyer) Brendan Knudson
Law firm (if applicable) N/A
Tel N/A Fax N/A
Email globalconnect@acnibo.com
Address for service (include state and postcode)
The Republic of Armenia, Kotayq District, Dzhrvezh Village, Street 42, House 6
. [Form approved 01/08/2011]
Form 59 Rule 29.02(1)
Affidavit
No. QUD455 of 2012 Federal Court of Australia
District Registry: Qld
Division:
Ellen G. White Estate, Inc
Applicant
Brendan Knudson
Respondent
Affidavit of: Brendan Knudson
Address: The Republic of Armenia Kotayq District, Dzhrvezh Village, Street 42, house 6
Occupation: Self-Employed
Date: January 10, 2013
Contents
Document number
Details Paragraph Page
1 Affidavit of Brendan Knudson in further support of Defence for the Respondent affirmed on January 10, 2013
1-10
2 Annexure “BK001”, being copy of Correspondence sent from Brendan Knudson to Samuel Barber between December 14 and January 9, 2013
6 11-16
3 Annexure “BK002”, being copy of Correspondence sent from Samuel Barber to Brendan Knudson, January 9, 2013
7 17-100
4 Annexure “BK003a”, being a copy of Correspondence sent from Brendan Knudson to the Honourable Justice Greenwood, December 17, 2012
14 101-102
5 Annexure “BK003b”, being a copy of Correspondence sent from Brendan Knudson to the Registry and Honourable
14 103-104
2
Document number
Details Paragraph Page
Justice Greenwood, January 10, 2013
6 Annexure “BK003c”, being a copy of Correspondence sent from H. Baldwin, District Registrar to Brendan Knudson, January 21, 2013
15 105-108
7
Annexure “BK004”, being a copy of Correspondence sent from Brendan Knudson to Samuel Barber dated August 11, 2012, with reference to jurisdictional problems in the originating application
18 109-120
8
Annexure “BK005”, being a copy of Correspondence sent from Brendan Knudson to Samuel Barber, September 9, 2012, with reference to jurisdictional problems in the originating application
18 121-122
9 Annexure “BK006”, being a copy of Correspondence sent from Samuel Barber to Brendan Knudson, September 6, 2012, regarding Notice of Address for Service
20 123-124
10 Annexure “BK007”, being a copy of Correspondence sent from Samuel Barber to Brendan Knudson, September 7, 2012, regarding Notice of Address for Service
21 125-128
11 Annexure “BK008”, being a copy of Correspondence sent from Brendan Knudson to Samuel Barber, September 10, 2012, regarding Notice of Address for Service
22 129-130
12 Annexure “BK009”, being a copy of the Notice of Address for Service sent from Brendan Knudson to Samuel Barber, September 10, 2012
22 131-132
13 Annexure “BK010”, being a copy of Correspondence sent from Samuel Barber to Brendan Knudson, September 11, 2012, regarding Notice of Address for Service
23 133-134
14 Annexure “BK011”, being a copy of Correspondence sent from Samuel Barber to Brendan Knudson, September 17, 2012, regarding Notice of Address for Service
24 135-136
15 Annexure “BK012”, being a copy of Correspondence sent from Samuel Barber to Brendan Knudson, September 21, 2012, regarding Notice of Address for Service
25 137-138
16 Annexure “BK013”, being a copy of Correspondence sent from Samuel Barber to Brendan Knudson, September 25, 2012, regarding Notice of Address for Service
26 139-140
17 Annexure “BK014”, being a copy of Correspondence sent from Samuel Barber to Brendan Knudson, September 28, 2012, regarding Notice of Address for Service
28 141-143
18 Annexure “BK015”, being a copy of Correspondence sent from Brendan Knudson to Samuel Barber, September 28, 2012, regarding Notice of Address for Service
29 144-145
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I Brendan Knudson affirm:
1. I am the Respondent in this case.
2. I am currently resident in the country of Armenia and have been since December 19,
2011.
My Status with the Federal Court of Australia
3. I am not in a financial situation to be able to afford legal representation in Australia and
due to my residency outside of Australia am not eligible for legal aid.
4. As such I have had to do all research for this case on my own and with other volunteers
who are also not trained in the legal profession and have tried to diligently follow the
Federal Court Rules in all my submissions to the best of my ability.
5. I responded to these proceedings in December, 2012 on the basis of my research with
the intention of challenging the Statement of Claim of the Applicant.
6. From December 18, 2012 to January 8, 2013 I sent several emails to Samuel Barber
inquiring after the outcome of the hearing on December 14, 2012. These can be found
as document BK001.
7. On January 9, 2013 I finally received word from Samuel Barber, found in BK002. In this
correspondence Samuel Barber stated that at the December 14 hearing, “Justice
Greenwood placed on the record that you have submitted to the jurisdiction of the
Federal Court of Australia.”
8. I wish to challenge this record as I have at no time submitted unconditionally, nor do I
now submit unconditionally, to the jurisdiction of the Federal Court of Australia in these
proceedings.
(a) This is evidenced by the fact that a large portion of my defence to the Applicant’s
Statement of Claim argues against the jurisdiction of the Federal Court in these
proceedings.
9. In the email sent to me from Samuel Barber, counsel for the Applicant, he notes that “a
large component of the defence that you have filed in the proceedings seeks to rely
upon the fact that, in your opinion, you are not bound by the jurisdiction of the Federal
Court of Australia.” This testifies that even the Applicant understands my appearance to
be for the purpose of challenging the jurisdiction of the Court in these proceedings.
10. If there has been taken to be any submission to the Federal Court of Australia by my
filing Affidavits and Defence, then, it is only a conditional appearance which was a
necessary procedural step filed to enable me to bring the significant defects in the
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service of the originating process in the proceeding to the attention of the Court
(Robinson v Kuwait Liaison Office (1997) 145 ALR 68 at 75).
11. Justice McKerracher held in United Group Resources Pty Ltd v Calabro (No 4) [2010]
FCA 791 at 49 that “The key analysis in Robinson v Kuwait was as to the question of
whether the pursuit of an application to set aside orders on grounds that the Court did
not have jurisdiction to make them because there had been ineffective service of the
originating process, meant there had been a submission to jurisdiction. It was held,
consistently with Laurie v Carroll at 335-336; see also National Commercial Bank v
Wimborne (1979) 11 NSWLR 156 at 176-183 that it did not constitute a waiver of the
right to object to jurisdiction.”
12. Justice McKerracher held in United Group Resources Pty Ltd v Calabro (No 4) [2010]
FCA 791 at 50, that “Nothing done by the conditional respondents has constituted a
waiver of their right to contend that there has been no valid service of the originating
process so as to enliven the jurisdiction of the Court. Nor has it constituted a submission
to jurisdiction.”
Regarding the Notice of Address for Service
13. Along with my Defence and Affidavit filed in December, I also filed a Notice of Address
for Service.
14. Not only did I make repeated requests to learn of the outcome of the December 12
hearing from Mr Barber, but I sent several communications to the Registry and the
Honourable Justice Greenwood to learn of what transpired. The two letters to the
Honourable Justice Greenwood can be seen as Documents BK003a and BK003b.
15. In an email dated January 21, 2013, from H. Baldwin, District Registrar for the Federal
Court of Australia in Brisbane, he states that “you have nominated an address for
service in the Notice of Address for Service which is within the jurisdiction”. This letter
can be found in Document BK003c.
16. I understand from this that one potential reason for it being placed upon the record that I
have submitted to the jurisdiction of the Federal Court of Australia is my nominating an
address for service within that jurisdiction for service.
17. My filing of a Notice of Address for Service was at the repeated request of the legal
counsel for the Applicant and on the apparent advice of the court.
18. I informed Mr Barber, counsel for the Applicant, of my intention to challenge the claim on
jurisdictional grounds from the very beginning, including in the very first phone call we
had with each other, August 5, 2012. I repeated this intimation in correspondence sent
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with the aim of negotiating a settlement, dated August 11 and September 9, 2012. These
statements can be found as documents BK004 and BK005.
19. Mr Barber sent repeated requests between September 6 and October 3, 2012 for me to
file a Notice of Address for Service. In these he gave various reasons for me to file this
document.
20. On September 6, Mr Barber said, “it was noted at the Hearing that you have not yet filed
a Notice of Address for Service as contemplated by the Federal Court rules”. He did not
indicate who had “noted” this fact. With this email he sent a Notice of Address for
Service form. This document can be found as BK006.
21. In an email dated September 7, Mr Barber gave one reason for the need for a Notice of
Address for Service saying, “Please forward the Notice of Address as soon as possible
so that the issue of where you currently reside can be resolved with the Court once and
for all. Obviously at the moment the Court is not completely convinced that you are
actually in Armenia. The Lodgment of the Notice of Address for Service will resolve this.”
This document can be found as BK007.
22. In good faith, wishing to show my respect for the Court, but never wishing to legally
submit to the jurisdiction of the Court, being ordinarily resident overseas, I attempted to
file a Notice of Address for Service through eLodgement on September 9, 2012. I
advised Mr Barber that I was unsuccessful in this attempt on September 10. The Notice
of Address for Service I first tried to file, and then sent to Mr Barber to file on my behalf,
only included an Armenian address. This email and the original Notice of Address for
Service are found in documents BK008 and BK009.
23. On September 11, 2012, Mr Barber said he would attempt to file the Notice of Address
for Service and would get back to me if there were any problems. This is found in
Document BK010.
24. On September 17, I received an email from Mr Barber asking for the Notice of Address
for Service to be sent again in higher quality and with the address in Armenia recorded
in English as well as the Armenian font which should be used if posting mail to this
country. He stated, “In relation to your Notice of Address for Service provided to our
office on 11 September 2012, we advise that we have attended the Federal Court of
Australia Registry and attempted to file the document on your behalf. The Registry has
advised that the scan quality of the document needs to be higher. The Registry has also
advised that the address as recorded in the Notice of Address for Service needs to be in
English as well as in the font you have selected and used on the Notice of Address for
Service as forwarded on 11 September 2012. We are aware that you have, on previous
occasions, been able to record your current address in English. Please amend the
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Notice of Address for Service accordingly. Once you have done so please rescan the
Notice of Address for Service to us and ensure that it is of high quality... We look forward
to receiving from you a revised Notice of Address for Service.” This can be found as
document BK011.
25. On September 21, 2012, I received a further reminder from Mr Barber asking for a
Notice of Address for Service, saying "we note that you are yet to file a correct Notice of
Address for Service in the above named proceedings. We have been in contact with the
Federal Court of Australia Registry and it is imperative that you file this document in the
immediate future... Please note that until you file a correct Notice of Address for service
the issue of where you currently reside will not be resolved and the Federal Court of
Australia will not recognise that you reside in Armenia as you allege. We look forward to
receiving a correct Notice of Address for Service from you." This can be found as
document BK012.
26. On September 25, I again received a reminder from Mr Barber asking for a Notice of
Address for Service. In this he gave further reasons he believed it was imperative that
one was filed. He stated, “We note that we are yet to receive a correct Notice of Address
for Service from you. This further complicates matters beyond the Court being confused
as, as per the attached correspondence we have received from the National Australia
Bank on 24 September 2012, we are required to provide an address for you to the
National Australia Bank. We will only be in a position to do so and therefore guarantee
will only be issued once you issue a correct Notice of Address for Service. We look
forward to receiving such documentation from you.” This can be seen in document
BK013.
27. Unfortunately I do not have a PDF of the correspondence from the National Australia
Bank to attach as an Annexure. The format that this attachment was sent in is
‘noname.eml’, which I am unable to view correctly. I do note, however, that contrary to
the NAB requiring an official Notice of Address for Service, they actually only need an
address. The email from Peter Wright, Senior Business Banking Manager of the NAB
Sunshine Coast Banking Centre, said,
“Hi Carolyn,
Approval has been secured for the bank guarantee required to comply with the
attached court order. Various documents will be required to be signed by Glenn &
Byron however I will contact them direct to arrange time.
In the interim to prepare the bank guarantee for this court order I require the
following information:-
* Beneficiary Name & ABN of the Bank Guarantee
* Address of the Beneficiary”
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28. On September 28, 2012, Mr Barber sent an update again requesting that I file a Notice
of Address for Service. He gave feedback from the Registry and advice on how to
proceed. “The Federal Court of Australia Registry has quite rightly pointed out that Rule
11.01 of the Federal Court Rules, subsection (1), provides that "a party must include the
address of a place within Australia at which a document in the proceeding may, during
ordinary business hours, be left for the party and to which a document in the proceeding
may be post to the party". As such the Notice of Address for Service you provided to me
under cover of your email correspondence of 11 September 2012 does not comply with
Rule 11.01. I therefore request that you provide a new Notice of Address for Service that
lists an address in Australia. May I suggest that you utilise your mother's address in
Burpengary, Queensland.” This can be found in Document BK014.
29. I replied to Mr Barber on September 28, 2012 giving the reason for my lack of reply as
follows, “"I have started a new position here in Armenia which means I have much less
time than before for the next little while." I went on to inform him, "I have prepared an
amended Notification of Address for Service, however I cannot file it at this time as I am
intending to file an Interlocutory Application to Set Aside the Originating Application
under 13.01 of the Court Rules where (3) states that it must be filed with Affidavit at the
same time as the Notification of Address for Service." This document can be found as
BK0015.
30. At that time I had not found out the full cost of witnessing documents at the British
Embassy here and believed I would be able to afford it in late October. However when I
later asked and found out that the cost of witnessing was as high as $50 per page, I
could not file the documents in October.
31. I later chose to include my request for the court to set aside the originating application as
part of my Defence rather than as an Interlocutory Application as I could little afford the
money to file this document and did not want to spend money needed for other things on
filing documents which could be denied on technicalities due to my lack of proper legal
representation and any effect this might have on my filing of documents. As it is, I have
had some troubles filing documents for this very reason because of some basic mistakes
I have made as well as my absence from Australia and inability to have documents
properly witnessed.
32. At all times, I diligently researched the Federal Court Rules to comply as much as
possible with them out of respect for the Federal Court of Australia. At no time did I see
that the filing of a Notice of Address for Service with an address in Australia would be
tantamount to submitting to the jurisdiction of that Court.
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33. As mentioned above, Mr Barber was aware from the earliest stages of the Originating
Application that I challenged the jurisdiction of the proceedings. My eventual filing of a
Notice of Address for Service on December 12-14 was a good faith attempt to follow the
repeated requests of Mr Barber and the Registry. It still maintained that my actual
address was outside of Australia and the jurisdiction of the Federal Court.
34. If the reason it was placed on the record by the Honourable Justice Greenwood that I
had submitted to the jurisdiction of the Federal Court of Australia is the fact that I
submitted a Notice of Address for Service, I have given evidence that it was at advice
from my opposing counsel, Mr Barber, who gave various different reasons that it was
urgent that I do so.
35. I am unable to attend hearings or request transcripts at this stage, being resident
overseas, so I am unable to determine what prompted the Honourable Justice
Greenwood to place on the record that I have submitted to the jurisdiction of the Federal
Court of Australia. Should it be that this was at the request of my opposing legal counsel
that repeatedly insisted that I submit a Notice of Address for Service, even advising that I
use my mother’s address, this would be a serious breach of legal ethics and procedure.
Regarding the Service of the Originating Application
36. The originating application was launched by the Applicant on August 2, 2012. At this
time, I was not submitted to the jurisdiction of the Federal Court of Australia either
conditionally or unconditionally, on or off the record.
37. At this time, and at all times material to the events which have precipitated these
proceedings, I have been resident in the Republic of Armenia.
38. Further, the service of the originating Application was not carried out in accordance with
Rule 10.43;
(a) To my knowledge, the Applicant was not given leave under 10.43 (2);
(b) To my knowledge, the Applicant has not applied to the Court for an order confirming
the service according to subrule Rule 10.43 (6).
39. For the Court to confirm the service, the Applicant must satisfy the court according to
10.43 (4) and (7), which will be unable to do;
(a) Regarding 10.43 (7)(a) and 10.43 (4)(a), the Court’s jurisdiction over the matter is
questioned as raised in my Defence of December 12, 2012, and the Applicant has
failed to demonstrate that any offense has occurred within Austraila;
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(b) Regarding 10.43 (7)(a) and 10.43 (4)(b) This proceeding does not meet the kind of
proceeding under 10.42 in which an originating application may be served outside
Australia;
(c) At the time of the originating Application through to December 14, it was not even
placed on the record that I had submitted to the jurisdiction of the court, and this I am
now denying in this Affidavit;
(d) Regarding 10.43 (7)(c), it is my understanding that the Applicant had initiated
proceedings because of the incorrect information obtained from a private
investigator, George Nankervis, that I was in Australia. The hiring of a private
investigator should give the Applicant a greater ability to know that I was outside
Australia and according to evidence submitted by the Applicant, they admit that the
traffic to their website came to them through IP addresses in Armenia.
40. The service of the originating application by George Nankervis actually took place in
Australia and service was upon my brother, Ashley Knudson, who suffers from the legal
incapacity of autism.
41. Because of these points raised above, the originating application should be set aside
according to 13.01 of the Federal Court Rules as outlined in my Defence of December
12, 2012.
Regarding my continuing activities with the group SDAnonymous
42. I advise the Court that due to the lack of attendance on the Applicant to engage in
negotiations beyond its own demands, other members of SDAnonymous have now
decided to resume the release of the Public Domain Materials.
43. I have acted in all my dealings with the Applicant as a spokesperson for SDAnonymous,
and have faithfully delivered the thoughts and feelings of SDAnonymous regarding
delays in communication and the consequences of failure to attend to negotiations.
44. I have acted towards SDAnonymous at times in a capacity of counselling patience in
releasing the materials to allow negotiations to have as much chance as possible.
45. I will continue to act as a spokesperson for SDAnonymous to the media in raising
awareness of the actions of the Applicant and the course of these proceedings.
46. I will not be personally engaged in, nor have I ordered, the further dissemination of the
Public Domain Materials by SDAnonymous. This action will now be undertaken by third
parties who are neither under injunction by orders of this court or submitted to its
jurisdiction.
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47. I have performed all that is within my power to mediate between the interests of
SDAnonymous (representing the interests of a significant portion of the Seventh-day
Adventist constituency) and the interests of the Applicant. In consequence, the
forthcoming release of Public Domain Materials is a direct result of the Applicant’s failure
to engage in meaningful negotiations towards settlement.
Regarding the filing of this affidavit
48. I originally filed an affidavit similar to this one on January 10, 2013. This was rejected by
the Registry because I could not swear before a Commonwealth witness due to being in
Armenia and the high costs of witnessing documents.
49. This affidavit has the addition of a section regarding the Notice of Address for Service
based upon information received by the Registry in document BK003c.
50. I have affirmed these things according to a Notarial Authority approved by Republic of
Armenia.
51. All the facts and circumstances herein deposed to are within my knowledge save such
as are deposed to from information only and my means of knowledge and sources of
information appear on the face of this my affidavit.
Sworn / Affirmed by the deponent
at Yerevan
in Republic of Armenia
on February 6, 2013
Before me:
) ) ) ) )
Signature of deponent
Signature of witness
Recommended