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[2015] QCA 22
Court of Appeal (Qld)
2015-02-27
Holmes and Fraser JJA and Jackson J, Separate reasons, for judgment of each member of the Court, each concurring as to the orders, made
Original judgment source is linked above.
Source: Queensland Judgments (Supreme Court Library Queensland) (www.queenslandjudgments.com.au). Converted to plain text by ZoeLaw. Not the official version.
SUPREME COURT OF QUEENSLAND
CITATION: Markan v Queensland Police Service [2015] QCA 22
PARTIES: PETER MARKAN (appellant) v QUEENSLAND POLICE SERVICE (respondent)
FILE NO/S: Appeal No 6892 of 2014 / SC No 4836 of 2014
DIVISION: Court of Appeal
PROCEEDING: General Civil Appeal
ORIGINATING COURT: Supreme Court at Brisbane
DELIVERED ON: 27 February 2015
DELIVERED AT: Brisbane
HEARING DATE: 18 February 2015
JUDGES: Holmes and Fraser JJA and Jackson J / Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS: 1.Appeal dismissed. / 2.The appellant pay the respondent’s costs of the appeal assessed on an indemnity basis.
CATCHWORDS: PROCEDURE – SUPREME COURT PROCEDURE – CONTEMPT, ATTACHMENT AND SEQUESTRATION – SCANDALISING COURTS AND JUDGES – where the appellant alleged three Court of Appeal judges were impersonators and committing human and civil rights abuses – where the appellant sought an investigation and prosecution of three Court of Appeal judges – where the appellant’s claims and relief was struck out – where the appellant appealed against such orders – whether the appellant’s actions constitute contempt / PROCEDURE – SUPREME COURT PROCEDURE – CONTEMPT, ATTACHMENT AND SEQUESTRATION – POWER OF COURT TO PUNISH FOR CONTEMPT – SUPREME COURT – GENERALLY – where the appellant sought extraordinary relief from the respondent’s failure to investigate and prosecute three Court of Appeal judges – whether the trial judge was correct in striking out the appellant’s claims / PROCEDURE – SUPREME COURT PROCEDURE – MISCELLANEOUS PROCEDURAL MATTERS – VEXATIOUS LITIGANTS AND PROCEEDINGS – where the appellant made baseless and scandalous allegations of three Court of Appeal judges – whether the appellant’s claims were frivolous, vexatious or an abuse of process / PROCEDURE – COSTS – DEPARTING FROM THE GENERAL RULE – ORDER FOR COSTS ON INDEMNITY BASIS – where the appellant made baseless and scandalous accusations of three Court of Appeal judges – whether indemnity costs against the appellant are justified / Police Service Administration Act 1990 (Qld), s 2.1, s 4.8 / Uniform Civil Procedure Rules 1999 (Qld), r 135(1), r 171, r 389A, r 703(1), r 766(1)(d), r 771 / Vexatious Proceedings Act 2005 (Qld), s 5 / AIG Australia Ltd v Jaques (No 2) [2015] VSCA 3, cited / Batistatos v Roads and Traffic Authority (NSW) (2006) 226 CLR 256; [2006] HCA 27, followed / Colgate-Palmolive Company v Cussons Pty Ltd (1993) 46 FCR 225; [1993] FCA 801, followed / Gallagher v Durack (1983) 152 CLR 238; [1983] HCA 2, referred to / Jeffery & Katauskas Pty Ltd v SST Consulting Pty Ltd (2009) 239 CLR 75; [2009] HCA 43, followed / LPD Holdings (Aust) Pty Ltd & Anor v Phillips, Hickey and Toigo & Ors [2013] QCA 305, cited / Markan v Crime and Misconduct Commission [2014] QCA 60, cited / Metropolitan Bank Ltd v Pooley (1885) 10 App Cas 210, cited / Re Glew; Ex parte Attorney-General (WA) [2014] WASC 107, cited / Williams v Spautz (1992) 174 CLR 509; [1992] HCA 34, followed
COUNSEL: The appellant appeared on his own behalf / M T Hickey for the respondent
SOLICITORS: The appellant appeared on his own behalf / Public Safety Business Agency for the respondent
HOLMES JA: I agree with the reasons of Jackson J and the orders he proposes.
FRASER JA: I agree with the reasons for judgment of Jackson J and the orders proposed by his Honour.
JACKSON J: On 23 July 2014, a judge of the trial division of this Court made an order striking out the appellant’s claim and statement of claim in proceeding number 4836/14. At the same time, the judge made an order dismissing an application by the appellant for orders in the nature of final relief of various kinds. His Honour also made orders for costs of the proceeding including the costs of the applications.
The appellant appeals against all of those orders. It is convenient to start consideration of the appeal with the primary judge’s order to strike out of the claim and the statement of claim (“strike out order”). If that order was rightly made, it is unnecessary to consider the appeal from the dismissal of the appellant’s application for orders in the nature of final relief. The strike out order was made under the Court’s inherent power and pursuant to Uniform Civil Procedure Rules 1999 (Qld) (“UCPR”) r 171. The grounds for the order were that the claim is so obviously untenable that it could not possibly succeed, that it is manifestly groundless, that it is so manifestly faulty that it does not admit of argument and that it does not disclose a case.
The claim was made against the “Queensland Police Service”. That is a non-existent defendant. There is no legal entity known as the Queensland Police Service, even though s 2.1 of the Police Service Administration Act 1990 (Qld) (“PSA”) requires that a body of persons is to be maintained under the name and style “Queensland Police Service”. However, it may be that the appellant intended to bring the proceeding against a Commissioner of the Queensland Police Service. That is an office established by s 4.1 of the PSA. The holder of that office is responsible for the efficient and proper administration, management and functioning of the police service.1 The individual who holds the office may have been the target of the appellant’s claim, having regard to the contents of the statement of claim.
For reasons which will appear next, it is not really possible to say whether the claim was brought to vindicate a private right to damages for alleged breach of contract or allegedly suffered by the appellant as a result of a contravention of a provision of the Australian Consumer Law. So, it is also not possible to say who would be the proper defendant. Nevertheless, for the reasons which will also presently appear, it is unnecessary in the present circumstances to engage in further discussion as to the proper defendant.
“The law endeavours to reconcile two principles, each of which is of cardinal importance, but which, in some circumstances, appear to come in conflict. One principle is that speech should be free, so that everyone has the right to comment in good faith on matters of public importance, including the administration of justice, even if the comment is outspoken, mistaken or wrong-headed. The other principle is that ‘it is necessary for the purpose of maintaining public confidence in the administration of law that there shall be some certain and immediate method of repressing imputations upon Courts of justice which, if continued are likely to impair their authority’… The authority of the law rests on public confidence, and it is important to the stability of society that the confidence of the public should not be shaken by baseless attacks on the integrity or impartiality of courts or judges. However, in many cases, the good sense of the community will be a sufficient safeguard against the scandalous disparagement of a court or judge…”
This is a case where that good sense of the community can be relied upon in relation to the appellant’s claim and statement of claim. Still, the serious nature of the appellant’s baseless and scandalous allegations should not be overlooked. A scandalous disparagement of a Court of Appeal may constitute a contempt.4
Turning to the basis of the decision of the Court below to make the strike out order, the absolute privilege protecting the publication of defamatory matter contained in allegations made in a statement of claim filed in this Court under s 27(2)(b)(i) of the Defamation Act 2005 (Qld) is, in a practical sense, counter-balanced by the Court’s power to permanently stay or dismiss a proceeding or to strike out a claim and statement of claim as an abuse of process because it is “a proceeding without reasonable grounds, so as to be vexatious and harassing”.5 It is an important principle that litigants are not to be lightly denied access to the Court. When the right to that access is exercised in a way which constitutes an abuse of process, the proceeding should be stayed, summarily determined or struck out.6
In the modern context, there are further statutory powers in the armoury of the Court to deal with applications in a proceeding that are frivolous, vexatious or an abuse of process: see UCPR r 389A. Under that rule, the Court may make an order, including one made of its own motion, that the relevant party must not make a further application in relation to the existing proceeding (including an appeal) without leave or that the relevant party must not start a similar proceeding in the Court against a party to the existing proceeding without leave. Further, the persons identified in s 5 of the Vexatious Proceedings Act 2005 (Qld) may make an application under s 6 of that Act for a vexatious proceedings order against a person who has frequently instituted or conducted “vexatious proceedings” as defined in that Act. Such an order prohibits a person from instituting proceedings or proceedings of a particular type in Queensland without the leave of the Court granted under s 13 of that Act. After the hearing of the appeal in this case, it came to the Court’s attention that on 15 September 2014 such an order was made against the applicant.7 However, as this appeal was heard without reference to that order having been made, I put that consideration to one side.
One ground of appeal against the strike out order is that the strike out application was a step in the proceeding made without first obtaining the court’s leave under UCPR r 135(1). The primary judge granted leave on 23 July 2014. In effect, his Honour rejected the appellant’s contention that leave must be granted before an application for a strike out order can be filed. In my view, his Honour’s view as to the operation of UCPR r 135 is correct. The primary judge exercised his discretion to grant leave because the respondent had given reasonable notice of its intention to make the application, a notice of address for service showing the respondent’s address for service and legal representatives had been filed and emailed and posted to the appellant and the appellant was not prejudiced by the absence of notice of the defendant’s request for leave. The appellant has not shown any reason why the primary judge’s discretion miscarried.
See s 4.8 of the Police Service Administration Act 1990 (Qld). ↩
See Markan v Crime and Misconduct Commission [2014] QCA 60. The relief claimed by the appellant as plaintiff in the proceeding against the Crime and Misconduct Commission in that case is similar to the relief claimed in the present case against the defendant. ↩
(1983) 152 CLR 238, 243. ↩
A recent example is Re Glew; Ex parte Attorney-General (WA) [2014] WASC 107. ↩
Batistatos v Roads and Traffic Authority (NSW) (2006) 226 CLR 256, 266-268, [10]-[15]; Metropolitan Bank Ltd v Pooley (1885) 10 App Cas 210, 220-221. ↩
Williams v Spautz (1992) 174 CLR 509, 518-530; Batistatos v Roads and Traffic Authority (NSW) (2006) 226 CLR 256, 262-269; Jeffery & Katauskas Pty Ltd v SST Consulting Pty Ltd (2009) 239 CLR 75, 103-105. ↩
Markan v Bar Association of Queensland (No 3) [2014] QSC 225. ↩
[2014] QCA 60. ↩
(1993) 46 FCR 225, 232-234, [24]. ↩
For example, LPD Holdings (Aust) Pty Ltd & Anor v Phillips, Hickey and Toigo [2013] QCA 305, [21]. ↩
Markan
Queensland Police Service [2015] QCA 22
(2006) 226 CLR 256
(1993) 46 FCR 225
(1983) 152 CLR 238
(2009) 239 CLR 75
(1992) 174 CLR 509
The claim filed sought extraordinary relief. By par 1, the appellant sought an order that the defendant make public apology utilising all major public media for the harm and distress caused by the defendant’s alleged unlawful conduct. By par 2, the appellant sought an order that the Court declare the Queensland Police Service to be a criminal organisation. By par 3, the appellant sought an order that the court make a recommendation that the people associated with the Queensland Police Service “be sent to re-education facilities where they will be subjected to hard physical labour…”. By par 4, the appellant sought an order that the defendant pay damages assessed as $10,000,000.13. There was an additional reservation of a right to claim interest and costs.
The statement of claim alleged that the defendant failed to act on complaints made by the appellant about an earlier proceeding in which the appellant was involved. In particular, par 4 alleged that the appellant asked the Commissioner of the Queensland Police Service to arrest, investigate and prosecute three of the judges of the Court of Appeal division of this Court. The subject matter of the appellant’s request to the Commissioner for those actions comprised assertions that their Honours were impersonating judicial officers and had engaged in abuse of human, civil and political rights.
The so-called impersonation and abuses appear to revolve around the appellant’s contention that on 21 March 2014, at the hearing of an appeal in the Court of Appeal, he demanded that the three judges provide evidence of their appointment and competence, which they failed to do. The hearing of the appeal proceeded in the Court of Appeal on that day. On 1 April 2014, the Court made an order dismissing the appeal.2
The balance of the statement of claim alleges that the Commissioner repeatedly failed to act on the appellant’s demands that he investigate, arrest and prosecute the relevant judges. It alleges that the Commissioner did so with gross malice and ill will towards the appellant.
In support of his claim, the appellant purports to set up the Commissioner’s failure to act as a breach of contract or as a contravention of the Australian Consumer Law as scheduled to the Competition and Consumer Act 2010 (Cth).
It is unnecessary to further describe the appellant’s claim and statement of claim. They were a clear abuse of process. The allegations made in the statement of claim were baseless and scandalous. The relief claimed is not arguably available at law.
Although not directly relevant to the decision of the Court on this appeal, I note that there is a class of contempt of court constituted by imputations of a court or judge which are calculated to bring the court into contempt or lower its authority. As was said in the majority judgment of the High Court in Gallagher v Durack:3
Consistently with the scandalous and baseless allegations made in the statement of claim against the three judges of appeal who decided Markan v Crime and Misconduct Commission,8 the appellant’s grounds of appeal to this Court otherwise largely comprise of challenges to the validity of the appointment of the primary judge, or his competence, or whether he acted bona fide in deciding the applications. They too, are baseless. For example, the grounds of appeal include that the primary judge’s conduct “highlights problems with the administration of justice in Queensland” including that “the futile concepts of ‘masters’ and ‘slaves’ are maintained to enable protection of depravity within the legal industry.”
In my view, among the 15 separately stated grounds of appeal, there is not otherwise a single arguable point. Accordingly, the appeal should be dismissed.
The respondent applies for an order that the appellant pay the costs of the appeal to be assessed on the indemnity basis. This court’s power to “make the order as to the whole or part of the costs of an appeal” under UCPR r 766(1)(d) includes the power to order that they be assessed on the indemnity basis under UCPR r 703(1) – see UCPR r 771. The principles for the award of indemnity costs include “the making of allegations which ought never to have been made or the undue prolongation of a case by groundless contentions” as a factor: Colgate-Palmolive Company & Anor v Cussons Pty Ltd.9 The principles in Colgate-Palmolive have been accepted in this Court10 and elsewhere.11
For the reasons previously outlined, in my view, it is appropriate to make an order that the appellant pay the respondent’s costs of the appeal to be assessed on the indemnity basis. This is an appeal based on groundless contentions which should never have been brought.
For example, AIG Australia Ltd v Jaques (No 2) [2015] VSCA 3, [11]. ↩