Brendan Knudson Second Affidavit in White Estate Lawsuit

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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 [email protected]

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


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


23 133-134


24 135-136


25 137-138


26 139-140


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