CONSIDERATION
22 In Manolakis v Carter [2008] FCAFC 183 (Manolakis), the Full Court of this Court described the obligation of a self-represented litigant to properly state his or her claim in the following terms (at [12]):
An aggrieved self-represented applicant must, like any other litigant, address:
• his or her standing to make claims against other persons;
• the jurisdiction of the court in which he or she wishes to make those claims;
• the precise identity of the parties against whom the claims are to be made;
• the relief that is to be sought; and
• the facts which are said to found an entitlement to that relief.
23 In du Boulay v Worrell [2009] QCA 63 (du Boulay), Muir JA provided a summary of the conduct of a self-represented litigant in that case. His Honour said:
[68] The appellant appears to have succumbed to the phenomenon which inflicts many self-represented litigants of becoming so fixated on real or perceived wrongs that he has lost any semblance of objectivity and the power of discrimination. It does not appear to have occurred to him that by heaping allegation on allegation he has put it beyond his ability to plead, let alone conduct and finance his case. Nor does it appear to have occurred to him that the myriad of allegations has a tendency to destroy whatever credibility may have attached to a case involving fewer allegations more obviously supported by clearly identified material facts.
[69] It may be that self-represented litigants should be afforded a degree of indulgence and given appropriate assistance: Bhagat v Global Custodians Ltd [2002] FCA 223. But if a self-represented person wishes to litigate, he or she is as much bound by the rules of Court as any other litigant. Those rules exist to facilitate efficient, fair and cost-effective litigation. The Court's duty is to act impartially and ensure procedural fairness to all parties, not merely one party who may be disadvantaged through lack of legal representation. The other party to the litigation is entitled to protection from oppressive and vexatious conduct regardless of whether that conduct arises out of ignorance, mistake or malice.
24 When one examines Mr Krajniw's statement of claim in this proceeding, it becomes obvious that he has spurned the obligations described by the Full Court in Manolakis and instead produced a document which suffers most of the vices described by Muir JA in du Boulay above. Indeed, Mr Krajniw's statement of claim in this proceeding evokes the words of Searles DCJ in a previous proceeding involving him: Krajniw v Brisbane City Council [2011] QPELR 260 at [17], as follows:
Mr Krajniw has, in these proceedings, taken a 'scattergun' approach to raising a litany of issues that are variously repetitive, irrelevant, not supported by the evidence, misconceived, beyond the jurisdiction of the Court and, at times, scandalous.
The summary below of Mr Krajniw's statement of claim demonstrates why all these observations are entirely apt.
25 Before setting out that summary, it is worth recording that this proceeding is the most recent in a series of similar proceedings Mr Krajniw has commenced in this, and other courts over the past six to seven years. Importantly, that series of proceedings includes one that, in 2011, Dowsett J ordered should be summarily dismissed: Krajniw v Brisbane City Council (No 2) [2011] FCA 563 (Krajniw 2011). That proceeding related to a bicycle path that the Brisbane City Council proposed to construct on a part of the same land that is in question in this proceeding. Mr Krajniw claimed in that proceeding that the construction of the bicycle path would adversely affect "the squirrel glider, the koala, the southern day frog, the giant barred frog, the wallum sedge frog, the wallum froglet, the wallum dependent froglet and the green thighed froglet": see Krajniw 2011 at [13]. These species, it should be noted, are among the principal "threatened species" that are central to this proceeding. Furthermore, in applying for an injunction in that proceeding, Mr Krajniw relied upon the same provisions of the EPBC Act as he has in this proceeding. It is therefore appropriate to set out some extracts of the salient parts of that decision. They are:
[3] The application contained other deficiencies. There were references to the wallum froglet which should have been to the wallum sedge frog. Further, pursuant to s 481 a pecuniary penalty may only be sought by the Commonwealth. In that respect the application was misconceived. Notwithstanding the applicant's reference to numerous sections of the Act, it seemed that his cause of action was, in substance, limited to alleged contraventions of ss 18, 18A and 496C of the Act. …
[5] … To obtain injunctive relief the applicant must demonstrate an action or omission, or proposed action or omission which constitutes, or would constitute an "offence or other contravention" of the Act. The applicant purports to rely upon alleged breaches or potential breaches of sections 18, 18A, 48 and 496C. ... Section 48 deals with bilateral agreements between the Commonwealth and a State or Territory. As neither the Commonwealth nor any State or Territory is a party to these proceedings, the relevance of s 48 is unclear. …
[8] Where a person infringes s 18A on the land of another person, s 496C may impose criminal liability upon the latter person. I need not set out that section in these reasons. The various subsections of s 18 deal with conduct affecting different categories of listed threatened species. Section 18A deals with listed threatened species generally, but s 18A(4) excludes species in the extinct category from its operation. In order to obtain injunctive relief the applicant must demonstrate a contravention or threatened contravention of either s 18 or s 18A. In effect, he must demonstrate an action or threatened action that has, will have or is likely to have a significant impact on a relevant listed threatened species. …
[10] The term "significant" is not defined in the Act. The authorities suggest that it should be interpreted as meaning "important, notable, or of consequence having regard to its context or intensity": Booth v Bosworth (2001) 114 FCR 39 at [99]; ; Minister for the Environment & Heritage v Greentree (No 2) (2004) 138 FCR 198 at [191]-[192]; ; Bat Advocacy NSW Inc v Minister for Environment Protection, Heritage and the Arts [2011] FCA 113 at [109]. In my view the word is used to limit the operation of the Act. That purpose would not be achieved if any possibly adverse effect upon a species, however minor and however unlikely, was sufficient to engage either of ss 18 and 18A. Moreover, those sections are concerned with impact upon a relevant species. An adverse effect upon an individual member of the species, or even a number of individual members may not be sufficient to engage those sections. The applicant must demonstrate a risk of significant adverse impact upon the species as a whole. …
[13] The applicant identifies two species of mammal and six species of frog which, he says, have been, or will be negatively affected by the respondents' actions: the squirrel glider, the koala, the southern day frog, the giant barred frog, the wallum sedge frog, the wallum froglet, the wallum dependent froglet and the green thighed froglet. The squirrel glider, the koala, the wallum froglet, the wallum dependent froglet and the green thighed froglet are not listed threatened species for the purposes of the Act. Accordingly, any detrimental impact on them as a result of the respondents' actions is not regulated under the Act. Conduct which may produce such impact cannot be restrained in these proceedings. I should say that the applicant has frankly conceded that his primary purpose is to protect the squirrel glider and the koala. He seeks so to do by exploiting the alleged impact of the development on other species. I do not question the propriety of his so doing.
[14] The southern day frog is on the list of threatened species, but in the "extinct" category. Section 18 only applies to species which are "extinct in the wild", "critically endangered", "endangered" or "vulnerable", using the categories in the Act. For obvious reasons, s 18 does not regulate actions which may have significant impact on species which are "extinct". Section 18A(4) demonstrates that s 18A also does not apply to the southern day frog. The giant barred frog is in the "endangered" category. The wallum sedge frog in the "vulnerable" category. Pursuant to s 475, the Court may grant injunctive relief if it is satisfied that the development has had, will have or is likely to have a significant impact on either of these species. To the extent that the applicant relies on possible adverse impact upon species other than the giant barred frog and the wallum sedge frog, the proceedings must be dismissed. To the extent that he seeks relief other than in reliance upon ss 18, 18A and 496C, his amended application goes beyond his grant of leave. To that extent, too, the proceedings must be dismissed. …
[21] At various stages in these proceedings, the applicant has referred to alleged contraventions of s 48A(2) of the Act …
[22] Broadly speaking, Pt 5 Div 2 of the Act (which includes s 48A) provides for bilateral agreements between the Commonwealth and a State or self-governing Territory. Such agreements are to be for the purposes set out in s 45(2). A bilateral agreement may provide that actions or courses of action approved by a relevant State or Territory will not require approval pursuant to Pt 9 of the Act. Section 48A(2) provides that such an agreement must contain certain provisions. The applicant seems to suggest that s 48(2) places some limitation upon developments other than those imposed by ss 18 and 18A. However the relationship between those sections and Pt 9 does not lead to that outcome. Section 46 permits bilateral agreements to exempt some actions from approval under Pt 9 for the purposes of Div 3 (which contains ss 18 and 18A). This is presumably because the bilateral agreement will prescribe an alternative method of assessment to that prescribed in Pt 9. Section 48A(2) is part of the mechanism for achieving that result. It has no relevance for present purposes.
(Emphasis added)
I will return to this decision later in these reasons.
26 Mr Krajniw's originating application comprises 48 pages and 112 paragraphs. His statement of claim comprises 355 pages and 3267 paragraphs. It is apparent from what he said in Court on 20 November 2014 that Mr Krajniw has deliberately made these documents lengthy and difficult to understand. He said:
…if you were to read my application - I am seeking considerable orders. I have 50 pages, virtually, mostly orders and my statement of claim - I made it quite difficult to make these people work because they had (sic) never, ever worked in their lives.
27 Because of this prolixity and obscurity, it is very difficult to extract from the plethora of claims made in Mr Krajniw's statement of claim exactly what he is alleging against the respondents. Nonetheless, the following summary will serve to demonstrate that he has not pleaded the facts necessary to make out any genuine and valid claim against the respondents. It follows that it is his proceeding, rather than his statement of claim, that must be dismissed.
28 To give some flavour of the nature of the fundamental deficiencies in the claims Mr Krajniw has made in his statement of claim, it is worth providing some extracts from that document. This is not an easy task because the document contains an endless series of allegations of breaches of, and offences under, the EPBC Act, most of which are in the most general of terms. However, quoting from the following early paragraph of the statement of claim does serve to exemplify the character of the pleading:
The Applicant contends that he has standing under s 475(1)(b), and s475(6) to seek the grant of Injunctions and Orders under s475 of the Environment Protection and Biodiversity Conservation Act 1999 (Cth), to restrain the Respondents from engaging in conduct and activity of a kind constituting the commission of civil and criminal environmental offences, directed towards the destruction of Australia's largest known colony of Squirrel Glider Possums, by trapping and euphemising, starvation, torture, mutilation, blinding, and poisoning, and to stop the Respondents from committing any further environmental damage, environmental vandalism, environmental terrorism, that is:-- the persecution of Squirrel Glider possums -; the poisoning and baiting of listed threatened species, matters protected, and the baiting of a species, a thing that is not a matter protected, the poisoning and clearing ephemeral wetlands, poisoning and clearing riparian vegetation and marine plants, poisoning and clearing ground vegetation, poisoning and clearing significant Koala landscape trees, poisoning and clearing vine thickets, poisoning and clearing palm trees, poisoning and clearing ground ferns, poisoning and clearing marine ferns, poisoning and clearing marine couch, within the land bounded by the 1833 Creek Road property, 9.6 Hectares in area, in that the proposed action will have a significant adverse impact on the listed threatened ecological community, the declared and certified Conservation Area, a nature refuge, a declared and certified - Squirrel Glider critical core habitat, - 686 Wallum Froglet Essential Habitat, - 1670 Lewin's Rail Essential Habitat, - 1730 Grey Goshawk Essential Habitat, - Red Goshawk Essential Habitat, -- 29186 Koala Essential Habitat, a listed threatened ecological community, the Littoral Rainforest and Coastal Vine Thickets of eastern Australia, the Lowland Rainforest of Subtropical Australia, Grey Box (Eucalyptus macrocarpa) Grassy Woodlands and Derived Native Grasslands of South - eastern Australia, Lowland Grassy Woodland in the South East Corner Bioregion, matters of "National Environmental Significance" (matters of NES), an ecological community for the listed threatened species, matters protected, and a species a thing that is Not a matter protected.
(Errors and emphasis in original)
29 I should interpolate that Mr Krajniw's claims (above) to have standing under s 475 of the EPBC Act can be put aside for the purposes of these applications because, as is already noted above, the respondents accept his standing for that purpose only.
30 Another example of the character of the pleading, and the fundamental deficiencies in the claims made in it, are Mr Krajniw's allegations about "controlled actions". The EPBC Act defines such actions (in s 67) and regulates them. In particular, the taking of a controlled action, as defined, without an approval is prohibited: see s 67A of the EPBC Act. In relation to such controlled actions, Mr Krajniw asserts in his statement of claim that:
…the taking of a controlled action within the listed threatened ecological community by the Respondents, (which) will have a significant adverse impact on the life support systems of nature, and will promote the taking of matters protected, and a species, a thing that is not a matter protected, in that the assessment and approval process, did not have regard, and failed to take into account, in contravention of, and non compliance with the following provision of the EPBC Act 1999 (Cth).
(Emphasis in original)
31 The paragraphs above are by no means unique. They are representative of Mr Krajniw's failure to make out any basis for a claim which he has any prospect of successfully prosecuting. I have endeavoured to summarise why that is so in the following paragraphs.
32 First, approximately 300 sections and sub-sections (out of a total of 528 sections) of the EPBC Act are repeatedly referred to, or quoted, throughout the statement of claim. By his own account, Mr Krajniw has sought to rely on "303 points of law, at least". However, despite all these references to the provisions of the EPBC Act, Mr Krajniw has not attached any significance to any of those references nor, more importantly, has he provided any details of any conduct which might amount to a contravention of any of the provisions in question. The following paragraph exemplifies this phenomenon:
In addition that taking of a controlled action, with a significant adverse impact on the matters protected, does not comply with, and contravenes other provisions of the Environment Protection and Biodiversity Act 1999 (Cth), as listed below, but not limited to the following -
Section s3, s3(1), s3(2), s3A, s4, s5, s9, s10, s11, s18, s18(3), s18(4), s18(6), s18A, s19, s20, s20A, s20B, s25, s25A, s25AA, s28AB, s29, s30, s32, s33, s34, s34A, s34D, s34E, s37, s37A, s37B, s37C, s37G, s37H, s37M, s43A, s43A(2), s43B, s43B(2), s43B(3), s44, s45, s46(1), s46(2), s46(2A), s47, s48, s48(1), s48(2), s48A(3), s48A(4), s49, s49A, s50, s53, s54, s56, s66, s67, s56A, s68(1), s68(2), s68(3), s68(4), s68(5), s68(A), s69, s70, s71, s72, s73, s74, s74A, s74AA, s75, s76, s77, s77A, s80, s81, s82, s83, s84, s85, s87, s88, s89, s90, s91, s92, s93, s94, s95, s95A, s95B, s95C, s96, s96A, s96B, s97, s98, s99, s100, s101, s101A, s101B, s102, s103, s104, s105, s130, s136, s139, s140, s146, s146A, s146B, s146C, s146D, s146E, s146F, s146K, s146L, s158, s158A, s159… [and so on, in a similar manner] …
33 Secondly, while numerous references are made throughout the statement of claim to the squirrel glider possum and a number of other fauna (including the Queensland lung fish, various frog species and the koala) and flora (including palm trees and marine ferns), no details are provided of any conduct allegedly engaged in by any person that directly affected any of these fauna or flora. That is to say, facts such as: who engaged in the conduct, when the conduct was engaged in, where the conduct was engaged in and what the conduct involved.
34 Moreover, it necessarily follows that no attempt has been made to link any conduct of any of the respondents with any pertinent provision of the EPBC Act; for example, to identify a species (as distinct from an animal, or even a colony of animals) that is present on the land and, more importantly, that is listed as a threatened species (or vulnerable, endangered or critically endangered species) under the EPBC Act, in relation to which the respondents' conduct had, or will have, a significant impact: see the discussion of these elements in Krajniw 2011 at [8], [10], [13] and [14] (at [25] above). These observations particularly apply to the squirrel glider possum which appears to be the primary focus of the allegations in the statement of claim. It is not listed as a threatened species for the purposes of the EPBC Act. Accordingly, to the extent that Mr Krajniw's proceeding seeks relief based upon unspecified conduct which is said to have had, or will have, an adverse impact on the squirrel glider possum, or its habitat, the EPBC Act does not provide any remedy to him. Mr Krajniw should be well aware of this fact because it was one of the reasons why Dowsett J dismissed his similar proceeding in 2011: see Krajniw 2011 at [13] (at [25] above). Indeed, Mr Krajniw appears to acknowledge this fact at paragraph 527 of his statement of claim where he states:
Squirrel Gliders are:
a. NOT a listed threatened species pursuant to the Act.
b. No listed status under the EPBC Act.
c. NOT a species of National Environmental Significance
d. NOT listed on National Recovery Plan.
e. Least Concern wildlife under NCR 2006 in Qld.
f. Articulates and falls under section s48A(2) of the Act
(Emphasis in original)
35 Similar difficulties arise with the pleading in respect of each of the fauna mentioned in Mr Krajniw's statement of claim.
36 Thirdly, Mr Krajniw makes innumerable references in his statement of claim to "the proposed development" or "the proposed action" in relation to which he queries the "validity and legality of the assessment process". However, there is no pleading about, nor evidence of, any "proposed development" or any "proposed action" being undertaken on the land in question by any of the respondents, or anyone else.
37 Fourthly, and in a similar vein, despite referring often to "controlled actions", no action is identified in the statement of claim which is said to meet the definition of a "controlled action". This can be seen from the paragraph in relation to "controlled actions" above (at [30] above). And to add to this deficiency, there is no attempt in that paragraph, or elsewhere in the statement of claim, to identify any conduct of any of the respondents which may amount to a contravention of the controlled action provisions of the EPBC Act.
38 Fifthly, and still on the same theme, the statement of claim also contains a large number of references to a Bilateral Agreement between the State of Queensland and the Commonwealth. Such agreements are provided for in s 48 of the EPBC Act. The statement of claim contains numerous allegations of failures to comply with, or breaches of, that agreement. As with the alleged breaches of the EPBC Act, those allegations do not include any material facts. Moreover, quite apart from the fact Mr Krajniw was not a party to that agreement, and neither the Commonwealth nor the State of Queensland is a party to this proceeding, Mr Krajniw should well know from his 2011 proceeding that s 48 of the EPBC Act does not provide him with any basis for a claim in connection with this bilateral agreement: see Krajniw 2011 at [5] and [21]-[22] (at [25] above).
39 Sixthly, while this goes more to abuse of process issues, Mr Krajniw's statement of claim is, to adopt the description of the State respondents, "littered with emotive, scandalous and inflammatory language". To set out in detail all the examples of that language will only serve the improper end that Mr Krajniw obviously seeks to achieve. Nonetheless, the following examples will suffice. Mr Krajniw refers to the Liberal National Party as "Lunatics and Nazi Perverts" and the Australian Labor Party as "Australian Lame-brained Parasites". Further, in referring to various Queensland Government Departments, Mr Krajniw persistently adopts the phrase "Bludgers Paradise for incompetent bludging parasites" and, on numerous occasions, he refers to individuals working within those Departments as "sadistically perverted and criminally insane". Further, Mr Krajniw's statement of claim makes a number of offensive slurs against the courts. For example, he states: "Judges show sensitivity and compassion to child rapists but have condemned the Gliders to death".
40 Seventhly, there is the relief Mr Krajniw has claimed. Putting aside the absence of any cause of action which would found that relief as outlined above, there are many aspects of it that are not open to claim by Mr Krajniw, or which are plainly preposterous. The most obvious example of the former is his claim for pecuniary penalty orders under s 481 of the EPBC Act. As the State Respondents correctly observed, and as he must well know, Mr Krajniw has no standing to make such claims: see Krajniw 2011 at [3] (at [25] above). An example of the latter is his claim that the respondents be subjected to "prosecution, jailing and public shaming for gross dereliction of duty". To compound these defects, he seeks relief against a large number of persons who are not parties to the proceeding, such as the Queensland Police Service and various media outlets. And finally, he claims compensation totalling $53 million for depression and psychological trauma he claims to have suffered as a consequence of the "wilful destruction of the squirrel glider possums". Quite apart from the fact that the provisions of the EPBC Act do not offer protection to the squirrel glider possum as a species (see [34] above), and apart from the obvious novelty of this claim, nothing is alleged in Mr Krajniw's statement of claim to substantiate these personal injuries. In short, Mr Krajniw has not pleaded any facts in his statement of claim which would justify any of the relief he has claimed against any of the respondents.