attempted to file an originating application – where the Registrar
Source
Original judgment source is linked above.
Catchwords
PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND –JURISDICTION AND GENERALLY – GENERALLY – wherethe applicantattempted to file an originating application – where the Registrarreferred the originating process to the courtpursuant to r 15 of the UniformCivil Procedure Rules 1999 (Qld) (UCPR) – where the court directed theRegistrar pursuant to r 15(2)(b) UCPR to refuse to issue the originating processwithout leave of the court – where the applicant applied for leave toissue an originating application – whether theoriginating application wasan abuse of process of the court or frivolous or vexatious – whether leaveought be granted tothe applicant to issue theoriginating applicationCriminal Code (Qld),s 204Domestic Violence and Family Protection Act 2012 (Qld),s 101, s 159Human Rights Act 2019 (Qld), s
53
Justices Act 1886 (Qld), s 102C, s 102D
Uniform Civil
Procedure Rules 1999 (Qld), r 15
Bass v Permanent Trustee Co Ltd
(1999) 198 CLR 334
[1999] HCA 9, cited
Commercial and General
Acceptance Ltd v Nixon (1981) 152 CLR 491
[1981] HCA 70, cited
DU v
Jackson [2023] QSC 185, followed
DU v Judge Jackson [2024] QCA
122, cited
Innes v Electoral Commission of Queensland (No 2)
[2020] QSC 293
(2020) 5 QR 623, followed
Momcilovic v The Queen (2011) 245 CLR 1
[2011] HCA 34, cited
Sankey v Whitlam (1978) 142 CLR 1
[1978] HCA 43,
cited
Stenner v Crime and Corruption Commission (2019) 2 QR 89,
cited
Stubberfield v Webster [1995] QSC 182
[1996] 2 Qd R 211, cited
Tomlinson
v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507
[2015] HCA 28,
cited
Judgment (31 paragraphs)
[1]
PROCEDURE - SUPREME COURT PROCEDURE - QUEENSLAND - JURISDICTION AND GENERALLY - GENERALLY - where the applicant attempted to file an originating application - where the Registrar referred the originating process to the court pursuant to r 15 of the Uniform Civil Procedure Rules 1999 (Qld) (UCPR) - where the court directed the Registrar pursuant to r 15(2)(b) UCPR to refuse to issue the originating process without leave of the court - where the applicant applied for leave to issue an originating application - whether the originating application was an abuse of process of the court or frivolous or vexatious - whether leave ought be granted to the applicant to issue the originating application
[2]
Domestic Violence and Family Protection Act 2012 (Qld), s 101, s 159
[1] On 8 July 2025, the applicant attempted to file an originating application in the registry but, because it appeared to the Registrar to be an abuse of process of the court, it was referred to the court pursuant to r 15 of the Uniform Civil Procedure Rules 1999 (Qld). The court subsequently directed the Registrar to refuse to issue the originating application without leave: UCPR r 15(2)(b).
[2] On 15 July 2025, the applicant filed the subject application for leave to issue the originating application. When the application came on for hearing before me on 22 August 2025, the applicant handed up a revised form of originating process which was styled, "Amended Originating Application for Declarations of Incompatibility pursuant to s 53 of the Human Rights Act 2019 (Qld)".[1] It is this process which the applicant seeks leave to issue. If leave is granted, the process will issue against two serving police officers as well as the Commissioner of the Queensland Police Service as first respondents and the Honourable Attorney-General for the State of Queensland as second respondent. These proposed respondents appeared at the hearing through their legal representatives to oppose leave being granted.[2]
[3] By the proposed amended originating application, the principal relief sought is a declaration under s 53 of the HRA to the effect that ss 100 and 101 of the Domestic Violence and Family Protection Act 2012 (Qld) are incompatible with several human rights embodied in the HRA. The applicant also seeks various forms of other relief including, as best I can gather, declarations regarding the proper construction of various legislative provisions (including ss 100 and 101 of the DVFPA), a declaration "confirming mandatory objective and procedural safeguards including the natural justice obligation, expert assessment requirements, and provision of legal aid" as well as the "availability of a genuine mental health defence" along with an order "invalidating any Police Protection Orders issued without compliance [with] these safeguards" and an order that the responsible Minister table any such declarations in the Legislative Assembly.
[17]
"if the respondent is not present at the same location as the police officer - [the police officer] has made a reasonable attempt to locate and talk to the respondent, including by telephone, to afford the respondent natural justice in relation to the issuing of a police protection notice": s 101(1)(b).
[18]
[7] The factual premise for both private prosecutions is an assertion by the applicant to the effect that, had he been contacted before the relevant notices were issued, the officers would have learned there was no proper basis for their issue. Their failure to do so, the applicant would seek to argue, constituted offences against s 204 of the Code. Unsurprisingly, the efficacy of his argument in that regard has not been warmly embraced by the respondents.
[8] The first in time of the private prosecutions - against Police Officer A - came before the Magistrates Court at Noosa on 20 June 2025. This was a preliminary hearing which was sought on behalf of the officer to determine whether the complaint should be dismissed on the ground that it was an abuse of process.[4] The learned magistrate decided that it was, and the complaint was accordingly dismissed with costs. An appeal to this court from that decision could have been instituted within 28 days,[5] but that did not occur.
[9] On 18 July 2025, the second private prosecution was also the subject of a preliminary hearing in the Magistrates Court at Noosa (but constituted by a different magistrate) to determine whether the complaint should be struck out. It will immediately be noticed that this hearing took place three days after the subject application for leave was filed. A copy of the proposed originating application (albeit in its original terms) was placed before the learned magistrate who was informed it was returnable in this court on 22 August 2025. The applicant also informed his Honour that he would not be representing himself on the application for leave. Instead, the applicant announced, he had retained a firm of solicitors (whom he named) along with King's Counsel (also named) to appear on his behalf. As his Honour recorded, the applicant then sought "a stay of his own complaint ... to a date after" 22 August. The applicant argued that, if leave was given by this court to issue the process, it would make sense for the Magistrates Court to stay its hand pending a determination of the construction and other issues he hoped to ventilate before this court because that determination could impact, in one way or another, the fate of his private prosecution. The learned magistrate agreed to do so, ordering a stay until further order.
[10] To obtain leave after making of a UCPR r 15 order, the applicant must demonstrate that the proposed originating process is not vexatious, frivolous or an abuse of process. When assessing whether an applicant has discharged this onus, it must of course be kept in mind that an application for leave is not a hearing or determination on the merits, but the very character of what is proposed by the originating process will often inform an answer to the question whether leave ought be refused on the ground that it would constitute an abuse of process. This will be where it can be seen, for example, that its issue would bring the administration of justice into disrepute. For the reasons that follow, this is such a case.
[19]
[2] The names of the applicant and the two police officers have been anonymised in these reasons because of the prohibition contained in s 159(1) of the Domestic Violence and Family Protection Act 2012 (Qld) which is to the effect that any information that identifies, or is likely to lead to the identification of, a person as a party to a proceeding under that Act must not be published.
[20]
[3] As to which, see Commercial and General Acceptance Ltd v Nixon(1981) 152 CLR 491, 498-499.
[4] It is necessary to briefly refer to some of the background to this application.
[5] On 29 August 2024, the applicant was served by Police Officer A with a police protection notice issued pursuant to s 101 of the Domestic Violence and Family Protection Act 2012 (Qld). Then, on 2 February 2025, he was served with another police protection notice, this time by Police Officer B.
[6] Subsequently, the applicant commenced separate private prosecutions by complaint and summons against Police Officer A and Police Officer B. In both proceedings the applicant alleged the issuing officer was guilty of a misdemeanour for omitting to do an act which the officer was required to do under the statute law of Queensland: Criminal Code (Qld), s 204.[3] In support of that allegation, the applicant contended that the police officers failed to make a reasonable attempt to locate and talk to the applicant before issuing the respective notices. This contention was said by the applicant to be significant because s 101(1) DVFPA provides that a police officer may issue police a protection notice against a respondent if the following precondition, among several others, is met:
[11] First, and fundamentally, the proposed proceeding would impermissibly fragment the criminal process that was set in train by the applicant himself through the filing of the complaint and summons in the case against Police Officer B.[9] There is no special reason why it would be necessary in the interests of justice to do so.[10] The applicant has available to him a statutory avenue of appeal to this court if he is aggrieved by the decision of a magistrate in the event that his complaint is dismissed. Such an avenue may be pursued as of right provided any such appeal is instituted within 28 days after the date when the decision is pronounced and, further, provided the applicant gives security for the costs of that appeal.[11] It would be quite wrong to allow the applicant to circumvent that process through pursuit of what he proposes under the umbrella of his amended originating application.[12] While it is understandable why the learned magistrate ordered a temporary stay of the complaint pending determination of this application for leave, the case should proceed unhindered to determination in that court.
[12] Second, much if not all the relief sought in the proposed amended originating application is misconceived. Section 53 of the HRA does not create any legal rights that have free-standing operation. The court's discretionary jurisdiction to make a declaration of incompatibility will only arise where such a declaration is relevant to a question of law that is properly before it.[13] The balance of what is sought by way of relief is equally misguided, comprising in the main pleas for advisory opinions on questions of construction or claims well beyond the bounds of the proper exercise of the judicial function.[14]
[13] In the result, the proposed originating process would, if allowed to issue, constitute an abuse of process. Leave to issue it is refused.
[14] I will hear the parties on the question of costs.