Mowen v State of Queensland [2011] QCA 137

Court of Appeal (Qld)|2011-06-21|Before: Fraser JA, Margaret Wilson AJA and Mullins, J, Separate reasons for judgment of each member of the Court, each, concurring as to the order made

[1] FRASER JA: I agree with the reasons for judgment of Mullins J and the order proposed by her Honour.

[3] MULLINS J: Mr Mowen applied ex parte for a mandatory injunction against the respondent, named in the application as Queensland State Government, to hold a referendum in Queensland on the sale of Queensland Rail. Mr Mowen appeared for himself before the Central Judge. He had delivered a copy of the application to the office of Mr Schwarten MP in Rockhampton, but did not attempt any service of the respondent at the office of the Crown Solicitor, as required by s 19 of the Crown Proceedings Act 1980 (Qld). At the commencement of the hearing before the Central Judge, the transcript shows that the bailiff called "Queensland State Government" three times and there was no appearance.

[4] The Central Judge, after hearing submissions from Mr Mowen, dismissed the application on a number of grounds, including that Mr Mowen did not have standing to seek such an injunction and the subject matter of the injunction was not justiciable, and gave written reasons: Mowen v Queensland State Government [2011] QSC 12 (the reasons).

[5] The notice of appeal continues to show the respondent incorrectly described as "Queensland State Government" with an address at Denham Street, Rockhampton. Mr Mowen did not attempt to serve the notice of appeal, because he considered that he was proceeding ex parte. A Deputy Registrar of the Court of Appeal sent details of the appeal to the Crown Solicitor. It was not surprising that there has been no response.

[6] Mr Mowen wished to put similar arguments before this court on appeal that he put at first instance. Mr Mowen as a citizen with no special interest in the subject matter of his application seeks to voice his concerns about the effect on public safety caused by an increased number of semi-trailers on Queensland roads, as a result of the sale of Queensland Rail, without the approval of the referendum of the citizens of Queensland. As explained in paragraph [17] of the reasons, Mr Mowen does not have standing to apply for an injunction against the respondent to draw attention to his concerns. In any case, he should not have pursued his application without properly serving the respondent.

[7] There was no error in the dismissal of Mr Mowen's ex parte application for a mandatory injunction. The appeal should also be dismissed.

Proceedings Act 1980

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