PROCEDURE – STATE AND TERRITORY COURTS: JURISDICTION, POWERS AND
GENERALLY – INHERENT AND GENERAL STATUTORY POWERS –
TO STAY OR
DISMISS ORDERS OR PROCEEDINGS – TO PREVENT ABUSE OF PROCESS – where
Source
Original judgment source is linked above.
Catchwords
PROCEDURE – STATE AND TERRITORY COURTS: JURISDICTION, POWERS ANDGENERALLY – INHERENT AND GENERAL STATUTORY POWERS –TO STAY ORDISMISS ORDERS OR PROCEEDINGS – TO PREVENT ABUSE OF PROCESS – wherethe plaintiff filed an application forreview in which he seeks interlocutoryand final relief in the form of mandatory injunctions and declarations –where thereis in existence a separate and earlier proceeding in the same courtcovering the same subject-matter as this proceeding –where thedefendants brought an application for an order setting aside the proceeding forbeing an abuse of court process –whether this proceeding is an abuse ofthe court processUniform Civil Procedure Rules 1999 (Qld),r 16, r 171Agar v Hyde (2000) [2001] HCA 41201 CLR 552,citedBatistatos v Roads and Traffic Authority (NSW) [2006] HCA 27
(2006) 226 CLR
256, cited
General Steel Industries Inc v Commissioner for Railways (NSW)
[1964] HCA 69
(1964) 112 CLR 125, cited
Henry v Henry [1996] HCA 51
(1996) 185 CLR 571,
followed
Innes v Electoral Commission of Queensland & Anor [2020]
QSC 293, cited
Jorgensen & Anor v Jorgensen [2017] QCA 110,
cited
Markan v Bar Association of Queensland [2013] QSC 146,
cited
Oceanic Sun Line Special Shipping Co Inc v Fay [1988] HCA 32
(1988) 165 CLR
197, cited
Moore v Inglis (1976) 50 ALJR 589, followed
Platinum
United II Pty Ltd v Secured Mortgage Management Ltd (in liq) [2011] QCA 162,
cited
Rogers v The Queen [1994] HCA 42
(1994) 181 CLR 251, cited
SRV v
Commissioner of the Queensland Police Service & Anor [2020] QDC 208,
cited
UBS AG v Tyne [2018] HCA 45
(2018) 265 CLR 77, cited
Voth v Manildra
Flour Mills Pty Ltd [1990] HCA 55
(1990) 171 CLR 538, cited
Judgment (40 paragraphs)
[1]
PROCEDURE - STATE AND TERRITORY COURTS: JURISDICTION, POWERS AND GENERALLY - INHERENT AND GENERAL STATUTORY POWERS - TO STAY OR DISMISS ORDERS OR PROCEEDINGS - TO PREVENT ABUSE OF PROCESS - where the plaintiff filed an application for review in which he seeks interlocutory and final relief in the form of mandatory injunctions and declarations - where there is in existence a separate and earlier proceeding in the same court covering the same subject-matter as this proceeding - where the defendants brought an application for an order setting aside the proceeding for being an abuse of court process - whether this proceeding is an abuse of the court process
[1] Mr Keelan Lewis, who is not legally represented, commenced this proceeding on 17 March 2022 on the filing of a document entitled, "Application for review", and two affidavits that he had sworn in support of that application. Despite naming himself in the proceeding as "plaintiff", Mr Lewis is the applicant for a novel variety of interlocutory and final orders in the form of mandatory injunctions and declarations, all of which seem in one way or another to be related to his ongoing grievance against members of the Queensland Police Service for an alleged failure to act on his complaints.[1]
[2] On 28 March 2022, an application was filed on behalf of the defendants pursuant to r 16 of the Uniform Civil Procedure Rules1999 (Qld) for an order that, as it was ultimately put,[2] the proceeding be set aside for being an abuse of the court process. It is that application about which this judgment is solely concerned.
[3] The power under UCPR r 16(e) to set aside an originating process will only be exercised in the clearest of cases. It is a power that is materially different in consequence to, for example, the power under UCPR r 171 to strike out a claim or statement of claim under UCPR r 171 which, when exercised, will not put an end to the proceeding unless leave to replead is refused.[3] In contrast, when the court orders that an originating process be set aside under UCPR r 16, the proceeding is summarily terminated. Given such a dire consequence, the defendants must positively demonstrate why Mr Lewis should be deprived of "the customary tribunal which deals with actions of the kind he brings".[4] Unless this onus is discharged to a high level of certainty, Mr Lewis ought not be denied the opportunity to place his case before the court in the ordinary way, and after taking advantage of the usual interlocutory processes.[5] That, for instance, might be so where it is established that there is no possible cause of action or where, as the defendants here contend, the proceeding is properly to be regarded as an abuse of process.
[18]
"The 'right' of the plaintiff with a common law claim to institute an action is not at large. It is subject to the operation of the whole of the applicable procedural and substantive law administered by the court, whose processes are enlivened in the particular circumstances. This includes the principles respecting abuse of process."[11]
[19]
[6] More recently in UBS AG v Tyne,[12] an appeal concerning the power to permanently stay proceedings as an abuse of the process of the court, Kiefel CJ, Bell and Keane JJ said:
[20]
"The courts must be astute to protect litigants and the system of justice itself against abuse of process. ... The concern is as to whether the processes of the court are being abused. Given that this is the central concern, the circumstance that the abuse is effected by the use of multiple entities orchestrated by a single mind and will is no reason to tolerate it.
[21]
Nor does the undue vexation which a stay of proceedings is concerned to prevent arise only when proceedings in respect of the same issue have been concluded by a judgment on the merits. Serial proceedings discontinued prior to judgment would be an obvious example of an abuse of process. The pursuit of substantially the same claim by serial proceedings conducted by different entities under common control is no less obviously an abuse of process."[13]
[22]
[7] Once those statements of general principle are appreciated, it should come as no surprise to record that the commencement of a second or subsequent proceeding in a court if a proceeding is already pending with respect to the matter or matters in issue in the same court will be "prima facie vexatious and oppressive" and liable to be stayed or set aside as an abuse of process of that court.[14] Indeed, unless proper justification for the maintenance of multiple proceedings can be discerned, such an outcome would have to be regarded as inevitable.
[8] It is necessary to now say something about the factual background.
[9] Mr Lewis had been in a relationship with a woman over a period of months commencing in October 2018. It broke down after an incident which the woman alleged involved Mr Lewis assaulting her. The police became involved and a temporary protection order under the Domestic and Family Violence Protection Act2012 (Qld) was not long after made in her favour. A final order to similar effect was made by the Magistrates Court at Brisbane on 2 December 2019 following a hearing. Mr Lewis brought a cross application at that hearing for a protection order in his favour after alleging, amongst other things, that the woman had conspired to have him murdered, but that application was dismissed.
[10] Mr Lewis appealed to the District Court against both orders, that is to say, against the grant of a protection order in favour of his former partner and against the refusal of a protection order in his favour. That appeal was heard on 4 August 2020 with judgment handed down by her Honour Judge Sheridan on 1 September 2020.[15] Her Honour dismissed Mr Lewis' appeal against the making of a protection order in favour of his former partner but allowed his appeal against the refusal to grant a mirror order in his favour. Her Honour then made a protection order under the Act naming Mr Lewis as the aggrieved and his former partner as the respondent. It was in unremarkable terms and for a period ending on 1 December 2024.
[23]
[1] It was suggested by counsel for the defendants at the hearing of their applications that Mr Lewis may be seeking a statutory order of review under the Judicial Review Act1991 (Qld) but, apart from the title of his initiating document and a number of references in Mr Lewis' material to "judicial review", there is nothing in that document or the substance of the accompanying affidavit material to consider that to be so.
[13]UBS AG v Tyne[2018] HCA 45; (2018) 265 CLR 77, [45]-[46]. And see, to like effect, the observations made by Sofronoff P (with whom Gotterson JA and North J agreed) in Jorgensen & Anor v Jorgensen[2017] QCA 110 to the effect that subsequent proceedings raising the same grounds of complaint against the same parties are "textbook examples of abuse of the court's process".
[15]SRV v Commissioner of the Queensland Police Service & Anor[2020] QDC 208.
[38]
[16]SRV v Commissioner of the Queensland Police Service & Anor[2020] QDC 208, [94].
[39]
[17]SRV v Commissioner of the Queensland Police Service & Anor[2020] QDC 208, [106].
[40]
[18] As to which, see Innes v Electoral Commission of Queensland & Anor[2020] QSC 293, [269]- [270].
Parties
Applicant/Plaintiff:
Lewis
Respondent/Defendant:
Minister for Police and Corrective Services and Minister for Fire and Emergency Services & Ors [2022] QSC 70
Cases Cited (9)
(2006) 226 CLR 256
(1964) 112 CLR 125
(1996) 185 CLR 571
(1988) 165 CLR 197
(1976) 50 ALJR 589
(1994) 181 CLR 251
(2018) 265 CLR 77
(1990) 171 CLR 538
(2000) 201 CLR 552
[4] In Batistatos v Roads and Traffic Authority (NSW),[6] Gleeson CJ, Gummow, Hayne and Crennan JJ observed that what amounts to an abuse of court process is "insusceptible of a formulation comprising closed categories".[7] One example then referred to by their Honours emerges from the line of authority dealing with the stay of proceedings instituted in a second forum where there are pending proceedings in another forum and the continuance of the second proceedings would be an abuse of the process of the first forum.[8] Reference was also made to what McHugh J said in Rogers v The Queen[9] to the effect that abuses of procedure "usually fall into one of three categories: (1) the court's procedures are invoked for an illegitimate purpose; (2) the use of the court's procedures is unjustifiably oppressive to one of the parties; or (3) the use of the court's procedures would bring the administration of justice into disrepute".[10]
[5] Later their Honours concluded:
[11] In the course of her Honour's reasons, reference was made to screenshots of Facebook conversations tendered at the hearing before the Magistrate and a copy of them is in evidence before me These conversations were alleged to have taken place between Mr Lewis' former partner and two "third parties". Her Honour described the content of the messages as "very disturbing".[16] After setting out extracts from the conversations, her Honour observed that their content suggested "in one form or another, the existence of a threat against [Mr Lewis] and other behaviours consistent with the threats in a way which affects [Mr Lewis] and causes him to fear for his own safety or wellbeing".[17]
[12] Going back slightly in time, Mr Lewis earlier made a complaint to police about his former partner and the conduct threatened or referred to in the exchange of Facebook messages considered by Sheridan DCJ. An investigation was commenced, and this included the taking of a statement from Mr Lewis on 14 July 2019. Mr Lewis' former partner was also interviewed by police (on 23 July 2019), along with one of the "third parties" referred to by Sheridan DCJ (on 31 July 2019). The investigation appears to have stalled at that point, but it was reawakened in April 2021. The other "third party" to whom Sheridan DCJ referred was then interviewed and the investigation, as a whole, reviewed. The officer in charge of the investigation, Sergeant Peatling, concluded that "the Police could not be reasonably confident that a conviction could be secured against" Mr Lewis' former partner or the "third parties". There were grounds to doubt the provenance of the Facebook messages on which Mr Lewis relied to support this complaint. Sergeant Peatling considered that there were "no further lines of inquiry for the Police to pursue" but added that, if this changed, "the Police will give consideration to enlivening the investigation". Despite this outcome, Mr Lewis maintains that his former partner and others conspired to have him murdered, or at least seriously harmed, and that the threat is ongoing. Indeed, he alleges that there have been five separate attempts on his life since January 2019 with the last two attempts being in January of this year. His complaints to police have, he says, fallen on deaf ears.
[13] On 3 February 2021, Mr Lewis commenced a proceeding by claim in this court (No 1253 of 2021) against the State of Queensland in which he claims damages for various torts including misfeasance in public office, malicious prosecution and negligence. This proceeding is on the Self-Represented Litigant Supervised Case List which is currently being managed by Ryan J. At a review on 2 December 2021, the development of a joint list of issues for determination at the trial of that proceeding was discussed. Subsequently, the list was settled (on 16 February 2022). The issues include whether the Queensland Police Service owed a duty of care to investigate the complaints made by Mr Lewis that "an act of domestic violence and/or conspiracy to murder had been committed against him", whether the Queensland Police Service "breached any duty of care requiring them to investigate [Mr Lewis'] complaint" and whether Mr Lewis "has suffered any foreseeable loss by reason of the [Queensland Police Service] allegedly breaching its duty of care to investigate [his complaints]".
[14] After proceeding No 1253 of 2021 was commenced, Mr Lewis commenced another proceeding in this court through the filing of an originating application on 9 March 2021. The Commissioner of the Queensland Police Service was named as the respondent. Application was promptly brought on behalf of the Commissioner to set aside that proceeding.
[15] On the first return of the originating application on 15 March 2021, my attention was drawn by Mr Lewis to the decision of Sheridan DCJ and, in particular, to the observations made by her Honour concerning the content of the Facebook messages. I enquired as to the status of that investigation and, in end, directed the respondent to provide an affidavit devoted to that topic. This subsequently occurred and it may well have been that this provoked the reawakening of the investigation earlier discussed (at [12]). In any event, the application was heard and determined by me on 24 March 2021. The respondent proved that Mr Lewis already had a proceeding on foot (No 1253 of 2021) covering the same subject-matter and then submitted that proceeding No 2645 of 2021 constituted an abuse of process. I agreed with that submission and set aside the proceeding.
[16] When the subject application was heard on 31 March 2022, Mr Lewis relied on his two affidavits that were filed with his application on 17 March 2022, along with affidavits sworn by him on 28 March 2022, 29 March 2022 and 30 March 2022. Those affidavits and the voluminous exhibits that accompanied them contain a great deal of duplication but after reviewing all of that material, I reached precisely the same conclusion I reached in relation to proceeding No 2645 of 2021, that is, that this proceeding should also be set aside as an abuse of process.
[17] Although the State of Queensland is not a party to this proceeding and the defendants in this proceeding are not parties to proceeding No 1253 of 2021, both proceedings cover the same subject-matter. Indeed, if anything, the earlier proceeding has a broader ambit. Furthermore, by my assessment, all of that which Mr Lewis complains about in this proceeding is already advanced in proceeding No 1253 of 2021. Indeed, not only are the broad allegations that the police failed to act on his complaints captured by both proceedings, but a number of further, specific allegations are also common to both. One of those is the allegation that Mr Lewis' former partner is a police officer or in some way associated with the police, something that has been roundly denied by the defendants but, despite that, still persisted with by Mr Lewis.
[18] It is therefore unnecessary to deal with the alternative submission made on behalf of the defendants that this proceeding should be set aside for failing to disclose a cause of action. In that regard, the defendants point out that the interlocutory and final relief sought against the first defendant as the Minister responsible for police, the second defendant as Attorney-General and Minister of Justice for the State of Queensland and the third and fourth defendants, as Commissioner and Assistant Commissioner of Police respectively, are entirely misconceived and, for the most part, founded on factually incorrect and/or scandalous allegations. Likewise, it was submitted that Mr Lewis has sought different forms of substantive relief based on a fundamental misconstruction of the Human Rights Act2019 (Qld).[18]
[19] In finding as I have that this proceeding is an abuse of the court process, I express no view as to the merits or otherwise of such of Mr Lewis' contentions as are not already advanced in the earlier proceeding (No 1253 of 2021). Rather, I hold that if Mr Lewis wishes to pursue them, he should have done so under the umbrella of the earlier proceeding. To do so now will require an application in that proceeding to add the current defendants pursuant to UCPR r 69, although the success of any such application will of course turn on whether the presence of any or all of those defendants before the court is either: (1) necessary to enable the court to adjudicate effectually and completely on all matters in dispute in that proceeding (r 69(1)(b)(i)); or (2) desirable, just or convenient to enable the court to adjudicate effectually and completely on all matters connected with the proceeding (r 69(1)(b)(ii)).
[20] This proceeding is an abuse of the court process. An order will be made setting it aside, with costs.