CRIMINAL LAW – where it is alleged that the complaint and summons was
issued without regard to the plaintiff’s human rights
– where the
decision is not invalid but potentially unlawful – whether this matter
Source
Original judgment source is linked above.
Catchwords
CRIMINAL LAW – where it is alleged that the complaint and summons wasissued without regard to the plaintiff’s human rights– where thedecision is not invalid but potentially unlawful – whether this mattercould be raised as part of a stayapplication under section 590AA of theCriminal Code 1899 (Qld)PROCEDURE – abuse of process– fragmentation of criminal proceedings – where the plaintiff seeksdeclaratory reliefthat a complaint and summons was unlawfully issued by aJustice of the Peace – whether the proceeding would inappropriatelyfragment the criminal process – whether the proceeding should be stayedpending the determination of the criminal proceedingsPROCEDURE– CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – STRIKING OUTPLEADINGS – DISCLOSING NO REASONABLECAUSE OF ACTION OR DEFENCE –whether the claim that the issuing Justice of the Peace had failed to considerMr Palmer’s
human rights is maintainable – whether an action for
misfeasance in a public office maintainable – whether action for
breach of
statutory duty is maintainable
HUMAN RIGHTS – whether the issuing
of a complaint and summons was a breach of the right to equality, the right to a
fair trial,
the right to be informed and the right to a defence – whether
a failure to consider these invalidates a charge – whether
the issue can
be the subject of a stay application in the criminal proceedings
JUSTICES – whether section 38 of the Justices Act 1886 (Qld)
permits the plaintiff to seek an order for mandamus if the issuing justice
has not considered human rights before issuing a complaint
and
summons
JUSTICES – whether section 48 of the Justices Act 1886
(Qld) permits a defendant facing committal proceedings to submit that a
of the Peace and Commissioners and Declarations Act 1991 (Qld) ss 31G,
36
Uniform Civil Procedure Rules 1999 (Qld) r 16, 171, 658
Human Rights Act 1999 (Qld) ss 9, 13, 15, 31, 32, 58, 59
Austin BMI Pty Ltd v Deputy Premier [2023] QSC 95
(2023) 16 QR
377, cited
Baker v DPP (Vic) [2017] VSCA 58
(2017) 270 A Crim R 318,
cited
Cain v Glass (No 2) (1985) 3 NSWLR 230, considered
Chief
Executive Officer of Customs v Jiang [2001] FCA 145
(2001) 111 FCR 395,
cited
Citta Hobart Pty Ltd v Cawthorn [2022] HCA 16
(2022) 276 CLR
216, considered
Commissioner of Taxation v Futuris Corporation Ltd
[2008] HCA 32
(2008) 237 CLR 146, cited
Director of Housing v Sudi
[2011] VSCA 266
(2011) 33 VR 559, cited
DPP v Patrick Stevedores
Holding Pty Ltd [2012] VSCA 300
(2012) 41 VR 81, cited
Edwards v
Jones [1947] 1 All ER 830
KB 659, cited
Ex parte Curry (1904) 21
NSW (WN) 260, cited
Farah Custodians Pty Ltd v Commissioner of
Taxation [2018] FCA 1185, cited
Faruqi v Latham [2018] FCA 1328,
cited
Flanagan v Commissioner of the Australian Federal Police (1996)
60 FCR 149, applied
Fox v DPP [2022] VSCA 38
(2022) 66 VR 223,
cited
Gamage v Riashi [2023] NSWSC 390
(2023) 307 A Crim R 259, cited
Gedeon v Commissioner of the NSW Crime Commission [2008] HCA 43
(2008) 236 CLR 120, cited
GLJ v Roman Catholic Church [2023] HCA 32
(2023) 414 ALR 635, cited
Graham Barclay Oysters Pty Ltd v Ryan
[2002] HCA 54
(2002) 211 CLR 540, applied
Halstead v Clark
[1944] KB 250, cited
Higgins v Coman [2005] QCA 234
(2005) 153 A
Crim R 565, applied
Hutson v Australian Securities and Investments
Commission (ASIC) & Anor [2023] QCA 167
(2023) 17 QR 21,
cited
Innes v Electoral Commission of Queensland (No 2) [2020] QSC
293
(2020) 5 QR 623, cited
Johnson v Gibbins (1895) 16 NSWLR 27,
cited
Johnston & Ors v Carroll (Commissioner of the Queensland Police
Service) & Anor [2024] QSC 2
(2024) 329 IR 365, cited
Kirk v
Industrial Relations Commission of NSW [2010] HCA 1
(2010) 239 CLR 531,
cited
Lee v Abedian [2016] QSC 92
[2017] 1 Qd R 549,
applied
Lock v Australian Securities and Investments Commission (ASIC)
[2016] FCA 31
(2016) 248 FCR 547, cited
Northern Territory v Mengel
[1995] HCA 65
(1995) 185 CLR 307, cited
Nulyarimma v Thompson
[1999] FCA 1192
(1999) 96 FCR 153, cited
Nyoni v Shire of
Kellerberrin [2017] FCAFC 59
(2017) 248 FCR 311, cited
Obeid v
Lockley [2018] NSWCA 71
(2018) 98 NSWLR 258, cited
Obeid v R
[2016] HCA 9
(2016) 329 ALR 372, considered
Palmer v Australian
Securities and Investments Commission (ASIC) [2024] FCA 1167,
considered
Palmer v Magistrates Court (Qld) [2024] QCA 8,
considered
Palmer v Magistrates Court [2020] QCA 47
(2020) 3 QR 546,
cited
Palmer v Shipton [2025] FCA 273, cited
Plaintiff
M83A/2019 v Morrison (No 2) [2020] FCA 1198, cited
Polar Aviation Pty
Ltd v Civil Aviation Authority (No 4) [2011] FCA 1126
(2011) 203 FCR 293,
cited
Polar Aviation Pty Ltd v Civil Aviation Authority [2012] FCAFC
97
(2012) 203 FCR 325, cited
Polyukhovic v the Commonwealth [1990]
HCA 40
(1990) 64 ALJR 589, distinguished
R v Biron [1884] UKLawRpKQB 184
(1884) 14 QBD
474, cited
R v Boungaru [1993] NTSC 34
(1993) 113 FLR 211, considered
R v
Butler (1991) 24 NSWLR 66, considered
R v Chief Police Magistrate
[1924] St R Qd 223, cited
R v Licensing Authority of Ipswich
Ex Parte
Conway [1910] St R Qd 213, cited
R v Lyons [2021] QCA 136,
cited
R v Mirotsos [2022] QCA 76, cited
R v Ngalkin (1984)
12 A Crim R 29, considered
R v Ngo [2009] QSC 212
[2010] 1 Qd R 193,
distinguished
Nona v R [2013] ACTCA 39
(2013) 236 A Crim R 28,
cited
R v Police Magistrate at Brisbane
Ex Parte Butler [1932] QWN
13, cited
R v Police Magistrate at South Brisbane & Keys
Ex parte
Hinchsliff [1911] QWN 26, cited
Roberts v Magistrate Gett [2025]
FCA 360, cited
Royalene Pty Ltd v Registrar of Titles [2007] QSC 59,
cited
Sanders v Snell [1998] HCA 64
(1998) 196 CLR 329, cited
Sankey v Whitlam [1978] HCA 43
(1978) 142 CLR 1, applied
Slatcher v Globex Shipping SA [2019] QCA 167
(2019) 2 QR 134,
cited
Spencer v The Commonwealth [2010] HCA 28
(2010) 241 CLR 118,
cited
Sullivan v Moody [2001] HCA 59
(2001) 207 CLR 562, cited
Trade Practices Commission v Pioneer Concrete (Qld) Pty Ltd (1994)
124 ALR 685, cited
Williams & Humbert Ltd v W & H Trade Marks
(Jersey) Ltd [1986] 1 AC 368, applied
Williams v Spautz [1992] HCA 34
(1992)
174 CLR 509, cited
Judgment (266 paragraphs)
[1]
CRIMINAL LAW - where it is alleged that the complaint and summons was issued without regard to the plaintiff's human rights - where the decision is not invalid but potentially unlawful - whether this matter could be raised as part of a stay application under section 590AA of the Criminal Code 1899 (Qld)
[2]
PROCEDURE - abuse of process - fragmentation of criminal proceedings - where the plaintiff seeks declaratory relief that a complaint and summons was unlawfully issued by a Justice of the Peace - whether the proceeding would inappropriately fragment the criminal process - whether the proceeding should be stayed pending the determination of the criminal proceedings
[3]
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - STRIKING OUT PLEADINGS - DISCLOSING NO REASONABLE CAUSE OF ACTION OR DEFENCE - whether the claim that the issuing Justice of the Peace had failed to consider Mr Palmer's human rights is maintainable - whether an action for misfeasance in a public office maintainable - whether action for breach of statutory duty is maintainable
[4]
HUMAN RIGHTS - whether the issuing of a complaint and summons was a breach of the right to equality, the right to a fair trial, the right to be informed and the right to a defence - whether a failure to consider these invalidates a charge - whether the issue can be the subject of a stay application in the criminal proceedings
[5]
JUSTICES - whether section 38 of the Justices Act 1886 (Qld) permits the plaintiff to seek an order for mandamus if the issuing justice has not considered human rights before issuing a complaint and summons
[6]
JUSTICES - whether section 48 of the Justices Act 1886 (Qld) permits a defendant facing committal proceedings to submit that a charge is defective
Mr D Villa SC, Mr K Byrne and Ms W Liu for the plaintiff
[75]
Mr S McLeod KC and Mr B McMillan for the first defendant
[76]
Ms F Gordon KC, Mr M Hosking and Mr S Walpole for the second defendant
[77]
Norton Rose Fulbright Australia for the first defendant
[78]
[1] The first defendant applies for an order that the proceedings brought by the plaintiff be dismissed or alternatively, pursuant to rule 171 of the Uniform Civil Procedure Rules 1999 (Qld) (UCPR), the Amended Statement of Claim (ASOC) be struck out on the basis it discloses no reasonable cause of action and/or the Claim be struck out as it is an abuse of the process of the Court.
[2] The second defendant applies for dismissal of the application for declaratory relief under rules 16 or 658 of the UCPR and further seeks a stay of the proceedings temporarily, or for a dismissal of the action.
[3] The plaintiff opposes the above orders and seeks that the civil proceedings continue in the ordinary way.
[4] For the reasons which follow, I have determined that the plaintiff's claim for declaratory relief should be dismissed as it has the tendency of fragmenting the criminal proceedings. I conclude the ASOC discloses no reasonable cause of action as presently pleaded and should be struck out. I have also determined to stay the action until after the conclusion of the criminal proceedings. I will allow the plaintiff to replead some parts of the ASOC after the stay is lifted.
[79]
[5] On 6 February 2020, an employee of the second defendant (ASIC) made a complaint before the first defendant, Ms Gibson, in her role as a Justice of the Peace regarding the following allegations:
[80]
(a) Between the 5th day of August 2013 and the 5th day of September 2013 at Brisbane and elsewhere in the State of Queensland [the plaintiff] contrary to s 404C(1)(d) of the Criminal Code Act 1899 (Qld) dishonestly gained a benefit or advantage, pecuniary or otherwise, namely a chose in action, for any person, namely Cosmo Developments Pty Ltd and/or the Palmer United Party and others and the property is of a value of at least $30,000 namely $10,000,000.
(b) Between the 5th day of August 2013 and the 5th day of September 2013 at Brisbane and elsewhere in the State of Queensland [the plaintiff] contrary to s 184(2)(a) of the Corporations Act 2021 (Cth) dishonestly used his position as a director of a corporation namely Mineralogy Pty Ltd with the intention of directly or indirectly gaining an advantage for someone else, namely Cosmo Developments Pty Ltd and/or the Palmer United Party and others.
(c) Between 31 August 2013 and 3 September 2013 at Brisbane and elsewhere in the State of Queensland [the plaintiff] contrary to s 408C(1)(d) of the Criminal Code Act 1899 (Qld) dishonestly gained an advantage, pecuniary or otherwise, namely a chose in action, for another other person, namely Media Circus Network Pty Ltd and/ or the Palmer United Party and the property is of a value at least $30,000 namely $2,167,065.60.
(d) Between 31 August 2013 and 3 September 2013 at Brisbane and elsewhere in the State of Queensland [the plaintiff] contrary to s 184(2)(a) of the Corporations Act 2021 (Cth) dishonestly used his position as a director of a corporation, namely Mineralogy Pty Ltd, with the intention of directly or indirectly gaining an advantage for someone else namely Media Circus Network Pty Ltd and/or the Palmer United Party.
[81]
[6] There have been other cases where the plaintiff has used civil proceedings to challenge the criminal process which is the subject of this proceeding (referred to as the PUP payments prosecution) and in another criminal proceeding. By way of summary, the PUP payments prosecution was challenged by:
[82]
(a) Supreme Court proceeding BS2658/21 which was filed on 9 March 2021 and discontinued on 6 May 2021.
(b) Supreme Court proceeding BS6350/21 which was filed on 3 June 2021. This was dismissed by Callaghan J on 16 November 2022. Mr Palmer's appeal against that decision was dismissed on 6 February 2024.[1]
(c) Supreme Court proceedings BS8553 and BS9402 which were filed on 11 July 2023 and 28 July 2023 respectively and discontinued on 25 August 2023.
(d) Supreme Court proceeding BS11622/23 which was filed on 3 September 2024.
(e) Federal Court proceeding VID43/2025 which was filed on 6 January 2025.
(f) Federal Court proceeding VID37/2025 which was accepted for filing on 16 January 2025.
[83]
[7] The criminal matters remain at the pre-committal stage in the Magistrates Court. They are listed on 22 September 2025 for a five-day directions hearing concerning disclosure, cross examination of witnesses and for further particulars. The committal hearing itself is tentatively listed for two weeks commencing 17 November 2025.
[84]
[8] By paragraph 1 of the ASOC, the plaintiff pleads that he is entitled to various human rights under the Human Rights Act2019 (Qld) (HRA), namely:
[9] It is pleaded that Ms Gibson, the first defendant, was a Justice of the Peace; was an employee of ASIC and issued the complaint and summons.
[10] It is pleaded in paragraph 3 that Ms Gibson, by section 53 of the Justices Act1886 (Qld) (JA), had a discretion to witness a complaint and issue a summons but that the discretion needed to be exercised judicially and with material facts sufficient to inform the accused promptly of the nature and reason for the charge.
[11] In paragraph 6 it is alleged that by reason of s 31G of the Justice of the Peace and Commissioners and Declarations Act 1991 (Qld) (JP Act) she was obliged to act in a manner compatible with human rights, perform her functions honestly, fairly and competently, avoid bias and malice and employ proper judicial discretion in consideration of the applications for the issuing of summons. It is alleged these obligations are contained in the Justice of the Peace and Commissioners for Declarations Code of Conduct (Code of Conduct) and the QJA Guide to Justice of the Peace Practice in Queensland (5th edition) (Guide).
[12] In paragraph 7 the plaintiff refers to the Queensland Government handbook entitled Duties of Justices of the Peace and Commissions for Declarations (Handbook) and alleges there were obligations contained therein.
[13] In paragraph 8 it is alleged that Ms Gibson owed Mr Palmer a duty of care.
[87]
[14] The plaintiff returns to the issue of human rights in paragraphs 9, 10, 11, 12 and 13 of the ASOC. In paragraph 14 it is alleged that it is unlawful for a public entity to make a decision not compatible with human rights or to fail to give proper consideration to these rights by reason of section 58 of the HRA.
[15] In paragraph 22 it is alleged that the decision to issue the complaint was relevant to the plaintiff's human rights, or alternatively limited those rights.
[16] In paragraph 23 it is alleged the complainant's decision to issue the complaint was not reasonable or justified in that the plaintiff was entitled to the full scope and benefit of his human rights and Ms Gibson failed to understand those rights; turn her mind to the impact of the complaint on his human rights, identify countervailing interests and obligations and consider whether the complaint would be compatible with human rights.[2]
[17] In paragraph 24 it is alleged Ms Gibson did not give proper, or any, consideration of his human rights in the complaint decision. In the circumstances, it is alleged that the decision of Ms Gibson to witness the complaint was unlawful.
[18] Similar allegations are made regarding the summons decision (see paragraphs 27-32 of the ASOC).
[88]
[19] It is further alleged that Ms Gibson was the holder of a public office.
[20] It is alleged in paragraph 35 that Ms Gibson knew that her powers were limited in that she could not lawfully witness a complaint that did not comply with the proper discharge of obligations under the JP Act, the Handbook and the JA. She could not witness a complaint which was not compatible with human rights. She could not issue a complaint if she failed to give consideration to human rights.
[21] It is alleged in paragraph 36 that the purported exercise of power by Ms Gibson in deciding to witness the complaint was unlawful because:
[89]
(a) It did not comply with the proper discharge of obligations under the JP Act, the Handbook and the JA or was inconsistent with them.
(b) It was not compatible with Mr Palmer's human rights and unlawfully limited them.
(c) Ms Gibson failed to give proper consideration to the relevant human rights.
(d) Ms Gibson failed to ensure the complaint was not inconsistent with the JA_._
(e) Ms Gibson failed to ensure the complaint complied with the JP Act, the Handbook and the JA.
[90]
[22] It is alleged in paragraph 37 that at the time of witnessing the complaint Ms Gibson:
[91]
(a) knew that witnessing the complaint was unlawful for the reasons previously mentioned.
(b) knew that she failed to give proper consideration to the plaintiff's human rights.
[92]
[23] It is alternatively alleged in paragraph 38 that Mr Gibson was recklessly indifferent as to whether the complaint was unlawful for the reasons previously mentioned and was recklessly indifferent as to whether she gave proper consideration to the human rights of the plaintiff.
[24] It is alleged in paragraph 39 that Ms Gibson knew or ought to have known that the complaint was likely to cause loss or damage to the plaintiff or she was recklessly indifferent as to this.
[25] In those circumstances, she committed the tort of misfeasance in a public office, as a result of which the plaintiff has suffered loss and damage.
[26] It is further alleged for similar reasons that she engaged in misfeasance in a public office concerning the issuing of the summons.
[93]
[27] In paragraphs 49 to 54 it is further alleged that Ms Gibson owed a statutory duty to Mr Palmer, pursuant to the JP Act, to act in a manner compatible with human rights and employ proper judicial discretion. It is alleged she breached this statutory duty in making the decisions to witness the complaint and issue the summons by failing to comply with the alleged statutory duties the JP Act.
[28] Further, an order is sought under s 38 of the JA on similar grounds.
[94]
[29] The first defendant relies on the affidavit of Mr Cash filed on 28 April 2025. This affidavit deposes to the fact that Ms Gibson was employed at ASIC but has since retired. She became a JP on 14 June 2002. He produces a number of documents:
[95]
(a) Documents showing section 31G of the JP Act did not come into force until 1 April 2024.
(b) The Code of Conduct did not come into force until 1 April 2024.
(c) The Guide did not come into force until 2021.
(d) The 2017 guide.
[96]
[30] The second defendant relies on four affidavits by Mr McKerrow. In his first affidavit filed 10 March 2025, he states that the PUP payments prosecution commenced on 6 February 2020. The complaint was witnessed and the summons issued by Ms Gibson who was a JP and employed by ASIC. Annexure A sets out a history of the PUP payments prosecution. He also produces a number of documents relating to collateral proceedings involving the PUP payments matter and the Palmer Leisure Coolum (PLC) matter.
[31] In his affidavit filed 19 March 2025 he produces correspondence as to ASIC's intervention.
[32] In his affidavit filed 24 April 2025 he provides details of the status of the PUP and PLC prosecutions and collateral proceedings.
[33] In his fourth affidavit dated 18 June 2025 he advises that the PUP prosecution is listed for a directions hearing in September 2025 and has a tentative two week committal hearing in November 2025.
[34] The plaintiff relies on two affidavits of Mr Iskander. In his first affidavit filed 12 May 2025 he produces a copy of the fourth edition of the Handbook entitled "Duties of Justices of the Peace (Qualified), dated June 2017. He also attaches the Code of Conduct which was in force in October 2019. He also attaches correspondence which shows that Ms Gibson has no documents in her possession which evidence that she considered the HRA prior to the signing of the complaint and issuing the summons.
[35] In his second affidavit dated 19 June 2025 Mr Iskander provides further context concerning the prosecutions. There remain issues with disclosure and particulars.
[97]
[36] The first defendant submits that the proceeding brought by the plaintiff is an abuse of process because it fragments and dislocates the criminal proceedings currently before the Magistrates Court.
[37] It is secondly submitted that the whole of the ASOC is liable to be struck out under r 171 of the UCPR because it discloses no reasonable cause of action, would prejudice or delay the fair trial of the proceeding, is vexatious and is otherwise an abuse of process of the Court.
[38] It is submitted that proceedings which would fragment criminal proceedings may be an abuse of process where issues of fact and law should be properly determined by the criminal courts.
[39] Generally, it is submitted that this pleading does not disclose a reasonable cause of action and, as such, the pleading is embarrassing. It is submitted that the claims have no prospect of success at the final hearing and are vexatious.
[98]
[40] With respect to the HRA, it is submitted that any claim of unlawfulness under s 58 may only be brought if there is a reasonable cause of action available to the plaintiff independent from the HRA.[3] In this case there is no such independent ground.
[41] The HRA pleading is deficient anyway because:
[99]
(a) The plaintiff has not identified in the ASOC how he alleges Ms Gibson's conduct by either decision actually limited his human rights.[4] All the pleading does is baldly allege he was entitled to human rights.
(b) The relevant paragraphs of the ASOC do not plead how his human rights were limited. For example, nowhere does he state how he is unable to have a fair trial. It cannot be sensibly suggested that his ability to conduct his defence is limited by the mere issue of the summons.
(c) It is difficult to understand how the right in section 32(2)(b) is even engaged. These steps necessarily postdate the issue of the summons and cannot be engaged prior to its issue. The same applies to section 32(2)(a).
(d) It is not alleged for the purposes of his HRA claim that the decisions were not authorised by law or done maliciously and without reasonable cause.
[100]
[42] With respect to the allegations of breach of statutory duty under the JP Act, it is submitted that s 31G of the JP Act was not enacted at the time of the summons. It therefore has no application.
[43] Also, the Code of Conduct was not made until 7 February 2024 and approved on 1 April 2024.
[44] The Guide was not published until October 2021. Also, it is not alleged that Ms Gibson is or was a member of QJA at the relevant time.
[45] It is further submitted the Guide does not proport to impose any obligations on JP's.
[46] It follows that the claim for breach of statutory duty has no basis in law.
[47] Even if some basis from this claim could be discerned, s 36(2) of the JP Act provides for her immunity from suit other than in respect of an act which she knows is not authorised by law or which she undertook maliciously and without reasonable cause. No such allegation is pleaded in the ASOC.
[48] With respect to the Handbook, it is alleged in the ASOC that Ms Gibson owed Mr Palmer a duty of care, but the ASOC does not allege any breach of this alleged duty or claim relief arising from it. This is defective.
[49] In any event, in respect of the Handbook:
[101]
(a) The ASOC does not include any allegation capable of sustaining a cause of action known in law arising from a breach of duty.
(b) There is nothing in the text of the Handbook (chapter 2.3) which could found a duty of care actionable at law.
(c) Neither chapter 2.4 nor chapter 2.5 give rise to any duty.
(d) The Handbook simply provides guidance.
[102]
[50] The ASOC does not disclose any reasonable cause of action against Ms Gibson for breach of statutory duty. Further, the JP Act does not confer on the plaintiff any private right of action.
[103]
[51] With respect to the allegation of misfeasance in a public office, it is submitted that the ASOC does not meet the high bar for pleading a claim of misfeasance in a public office for the following reasons:
[104]
(a) The matters pleaded in paragraphs 36 and 43 aimed at the allegation of unlawfulness under s 58 of the HRA appear to approach what is necessary for the conduct element of the tort, but there is no other allegation in the ASOC capable of establishing the conduct element of misfeasance.
(b) The pleaded matters, even if established, would not render her conduct invalid.[5] A plaintiff needs to establish this. Section 58(6) of the HRA specifically provides that a decision is not invalid merely because the entity acts unlawfully under s 58(1) of the HRA. There are no pleaded facts of the alleged contravention.
(c) The pleading alleges non-compliance with the JP Act, the Handbook and the JA, but there is no pleading alleging her conduct was unlawful. At most, it might be deficient administration.[6]
(d) Insofar as the JA is relied on, there is no conduct alleged rendering her conduct invalid.
(e) The plaintiff has not pleaded material facts which, if proved, could establish a state of mind necessary to sustain the allegation of misfeasance. This is because misfeasance is an intentional tort and requires the plaintiff to demonstrate Ms Gibson acted with the intention of causing harm or had actual knowledge or acted with reckless indifference.[7] Here, the ASOC pleads nothing more than mere bald assertions. There are no material facts to support the assertions. Facts supporting inferences have not been pleaded.
(f) Misfeasance will not be established where there is an alternate hypothesis for conduct consistent with the honest exercise of power. The fundamental facts alleged here are consistent with Ms Gibson's honest exercise of the discretion under the JA.
(g) Nothing is pleaded tilting the balance towards dishonesty.
(h) The circumstances in which a court will find an administrative decision maker has acted in bad faith are rare and extreme and the ASOC does not support this.
[52] This claim is barred by section 36(2) of the JP Act.
[53] Also, with respect to this claim, it is not easy to discern precisely what the claim is.
[54] There is no legal basis for her have been obligated or to be subject to a duty to do the things pleaded. There is no basis to allege that she was required to inform the plaintiff of her unlawful conduct or to inform a court.
[55] Also, this claim clearly fragments the criminal proceedings.
[107]
[56] In the circumstances, the proceeding is an abuse of process and should be set aside or stayed.
[108]
[57] It is submitted by the second defendant that having regard to the nature of the allegations made and the relief sought by the plaintiff, the proceeding amounts to a direct and collateral attack on the PUP payments prosecution. Such a proceeding will only be heard and determined in exceptional circumstances. Ordinarily, such a proceeding will be dismissed or stayed. [8]
[58] It is submitted there has been a history of collateral attacks on the prosecution. It is submitted that there is a well-known principle against fragmentation of the criminal process.
[59] A relevant consideration is that the points raised by the plaintiff can be raised as part of the ordinary criminal process, such as under s 590AA of the Criminal Code Qld 1899 (Qld) (the Code). Also, the civil proceedings should not stray into matters which should be raised in the criminal proceedings.
[109]
[60] It is submitted that in this case, because the grant of declaratory relief is a discretionary matter and as the principle against fragmentation of criminal proceedings is contravened, the declarations should not be made. In those circumstances the claim should be set aside, stayed or dismissed.
[61] It is submitted that paragraphs 1 to 4 of the ASOC are a direct and collateral attack on the PUP payments prosecution.
[110]
[62] With respect to the claim for damages for alleged misfeasance in a public office and breach of statutory duty, these claims are characterised as a collateral attack on the prosecution. A stay should be granted as there are no exceptional circumstances here.
[63] In this regard, the second defendant relies on the case of Flanagan v Commissioner of the Australian Federal Police[9] where a stay was granted.
[111]
[64] Also, the claim pursuant to s 38 of the JA is a collateral attack on the prosecution. There are no exceptional circumstances such that the Court would hear that claim.
[112]
[65] In the circumstances, it is submitted that the claims for declaratory relief should be set aside, or the claims should be permanently or temporarily stayed, or the claims dismissed or the proceedings struck out.
[113]
[66] The plaintiff submits that the decisions made to issue the complainant and summons were not made in compliance with s 58 of the HRA and, as a result, the summons were unlawful and invalid and should be set aside. There is also a claim for damages for misfeasance in a public office and for breach of statutory duty.
[114]
[67] It is submitted that the court should reject the submission that the criminal proceedings should not be fragmented, for three reasons.
[68] First, it is submitted that the claim for the declaratory relief is in the supervisory jurisdiction of criminal proceedings and it is in the interests of justice for the Supreme Court to proceed with the declaration.[10] The criminal proceedings should not continue in circumstances where the complaint and summons relied on are unlawful and invalid.
[69] Second, it is submitted that the relief sought does not have an immediate or direct impact on the criminal proceedings. It does not seek to challenge any ruling made in that proceeding. While there is some nexus to the criminal proceeding, the determining factor is whether the issue can be determined by the criminal court.[11] The question of lawfulness and validity of the complaint and summons is not one which can be determined by the Magistrates Court. It is submitted that s 590AA of the Code does not apply as an indictment has not yet been presented.
[70] Third, it is submitted that the proceedings here are materially different to the decisions relied upon by the defendants. The proceedings here are exceptional. There is a supervisory jurisdiction of the Supreme Court over the Magistrates Court.[12] This application may dispose of the whole proceedings.[13]
[115]
[71] With respect to the strike out/summary dismissal application, it is submitted that such an order should not lightly be made. Parties should not be denied the opportunity of presenting their case to the court.
[72] A Statement of Claim must allege a cause of action with particularity sufficient to define the issues and inform the other party of the case it must meet. Where there is an arguable cause of action identified, the pleading should not be struck out.
[73] Even if a pleading is struck out, a party should ordinarily be granted leave to replead.
[74] It would be an error here to summarily dismiss the case.
[75] It is submitted that the first defendant clearly understands the case put against her and the Court should not accept the submission that it should be struck out. Further, it should not be dismissed or stayed.
[116]
[76] With respect to the HRA claim, it is submitted that when one reads s 58 and 59 of the HRA, there is an independent ground for remedy or relief, namely the actions for misfeasance and breach of statutory duty.
[77] It is submitted that the plaintiff does have a reasonable cause of action.
[78] First, it is submitted that the first defendant does not appear to challenge the plaintiffs pleaded case in relation to the "procedural limb" of s 58(1) of the HRA. The first defendant did not give any consideration to human rights relevant to the decisions. It is submitted that the first defendant, as a Justice of the Peace, was a public entity within the meaning of s 9 of HRA.
[79] Second, it is submitted that the plaintiff has pleaded how his rights were limited, contrary to the defence submissions.[14] It would be wrong to determine the application on the basis of whether the plaintiff has discharged his onus.
[80] Third, it is submitted that the plaintiff has pleaded the first defendant's malice/knowledge as part of the misfeasance claim. This answers the s 36(2) JP Act issue.
[117]
[81] First, it is submitted that whilst s 58(6) of the HRA provides that a decision is not invalid by reason of a breach of s 58(1), in Johnston & Ors v Carroll[15] it was found that a failure to comply with s 58(1) is a non-jurisdictional error and renders the decision unlawful. Declarations are available. It is submitted that the pleading that the first defendant did not give any consideration to the plaintiff's human rights is sufficiently pleaded.[16]
[82] Second, it is submitted that the plaintiff has pleaded material facts concerning the first defendant's state of mind.[17] It is pleaded that the first defendant knew or was recklessly indifferent to both her conduct being in excess of her power and the likelihood of harm to the plaintiff. It is the plaintiff's case that the inference is available to be drawn that the first defendant's conduct, in making the decisions, occurred without having regard to the relevant legislative provisions. At the least, there was reckless indifference. There can be a repleading if necessary.
[83] It is not to be accepted that dishonesty is a necessary part of the mental element of the tort of misfeasance. The requisite state of mind for misfeasance is whether a party knew or was recklessly indifferent as to whether the conduct was in excess of power and knew or was recklessly indifferent as to the likelihood of causing harm. In this particular case, there are triable issues about whether the elements can be proved.
[84] Third, it is submitted that whether the first defendant acted within her power or outside of it, this is a matter to be determined at the trial.
[85] Finally, regard should be had to the fact that the elements of the tort of misfeasance are still unsettled.[18]
[118]
[86] With respect to the breach of statutory duty claim, it is submitted that in determining the existence of a duty of care owed, one must have regard to the terms, scope and purpose of the statutory regime.[19]
[87] It is submitted that the statutory regime may create a cause of action in express terms or by necessary implication.[20] This is the case here and the pleading should not be struck out.
[88] It is accepted that s 31G of the JP Act was not in effect and the Guide was not published at the time. But even prior to the enactment of s 31G of the JP Act, the first defendant was bound by the Code of Conduct published with effect in October 2019 and the Handbook. This can be remedied by repleading.
[89] It is submitted that the duties pleaded are consistent with the JP Act in so far as the appointed Justice of the Peace must be a fit and proper person and there are duties set out in the Handbook.
[90] As to s 36(2) of the JP Act, it is submitted the plaintiff's pleading addresses these issues, but in any event, any defect can be cured by repleading.
[91] There is no basis for a conclusion that the JP Act did not impose a duty establishing a private right of action and this should be examined at trial.
[92] With respect to s 38 of the JA, it is submitted that this is not barred by s 36(2) of the JP Act. But regardless, the plaintiff has pleaded the appropriate knowledge.
[93] It is submitted the first defendant did owe the duties set out in paragraphs 54(e)-(f) of the ASOC and that if the first defendant has not acted consistently with her duties or obligations, the plaintiff is entitled to seek relief under s 38 of the JA.
[121]
[94] For the reasons advanced, the claim is not liable to be struck out nor summarily dismissed. Nor should it be stayed. If it was thought the claim was ambiguous or embarrassing, leave to replead could be given.
[95] The defendant's application should be dismissed.
[122]
[96] In deciding this case, I have regard to all of the evidence, the submissions made and the following principles:
[123]
(a) The court's discretion to strike out pleadings should only be exercised in clear cases.[21] One should err on the side of caution.[22]
(b) The discretion to strike out pleadings should not be exercised lightly.[23]
(c) A party should not be shut out from an arguable cause of action.[24]
(d) A party should not be denied the opportunity to put their case before the usual interlocutory processes are complete.[25]
(e) The decision to strike out or not strike out a pleading is a value judgment for the judge.[26]
(f) Just because the case is a weak one does not mean the pleadings should be struck out.[27]
(g) Relevant to the discretion includes whether the striking out will substantially reduce the burden of preparing for trial or the burden of the trial itself.[28]
(h) A court should not shrink from striking out a defective pleading where it does not disclose a reasonable cause of action.[29]
(i) Ordinarily a court would grant leave to replead unless it would be futile to do so.[30]
(j) If all that is left is a confusing residue that does not disclose a cause of action it is appropriate to strike out the whole pleading.[31]
[124]
[97] I also note that it may be said that declarations are available concerning breaches of the HRA.[32] Also, it may be accepted that the Supreme Court has a supervisory jurisdiction over the Magistrates Court.[33]
[98] There is a dispute of the application of the so-called fragmentation principle to which I will now turn.
[125]
[99] There is a general principle that, absent exceptional circumstances, a civil court will not proceed to hear and determine the substance of a matter which impinges on the course of a criminal proceeding, either directly or indirectly.
[100] The High Court in Sankey v Whitlam[34] decided that:
[126]
(a) The power of the court to make a declaration is a very wide one (page 20).
(b) The power is not excluded because the matter may fall for decision in criminal proceedings (page 20).
(c) The procedure in bringing applications for declarations is open to abuse and can be wrongly used (page 25).
(d) Even when an application is made without improper motive the move is likely to fragment criminal proceedings (page 26).
(e) A court will be reluctant to make declarations where they directly impinge on the course of proceedings in a criminal matter (page 26).
(f) Once the criminal proceedings have begun, they should be allowed to follow their ordinary course unless there is some special reason and it is in the interests of justice to make the declaratory order (page 26).
[127]
[101] In Obeid v R[35] Gaegler J noted the "longstanding and general reluctance on the part of this Court in point of policy to make orders which would have the effect of fragmenting a criminal process which has already been set in train."
[102] The reason for the rule was further explained by Dalton JA in Palmer v Magistrates Court of Queensland[36] where her Honour noted that such applications might lead to interruption, unacceptable discontinuity, and delay in the criminal proceedings. Relief will only be granted in exceptional cases.
[103] There is a need for restraint in civil courts becoming involved in aspects of the criminal process, particularly committal proceedings[37] and fragmentation of the criminal process is to be actively discouraged.[38]
[104] If a permissive attitude was taken towards fragmentation a well-resourced defendant could pursue administrative remedies for years.[39] Kirby P in Cain v Glass (No 2)[40] referred to the undesirability of disruption or delay in committal hearings and the potential costs involved.
[105] The threshold to establish exceptional circumstances is a high one and even sometimes a constitutional challenge to the charges will not suffice.[41]
[106] In Palmer v ASIC[42] it was said the application of the principle is not limited to a case where the orders sought from the civil court will have an immediate or direct impact on the criminal proceedings. It could apply where there is a direct or an indirect collateral attack on the criminal proceedings.
[107] The second defendant submits that the plaintiff can raise the issues concerning the alleged defects in the complaint at a s 590AA hearing, if he is committed for trial, or on appeal following conviction. This is where the matters raised in the ASOC should be dealt with. It is submitted that it is relevant that discretionary relief is sought. It is submitted the civil proceedings constitute a direct and collateral attack on the PUP payments prosecution.
[128]
Section 48 of the JA and Section 590AA of the Code
[129]
[109] An issue also arose as to whether Mr Palmer can agitate the HRA issues before the Magistrate in the committal proceedings and/or under s 590AA of the Code.
[110] Section 48 of the JA provides:
[130]
(1) If at the hearing of a complaint, it appears to the justices that -
[131]
(a) there is a defect therein, in substance or in form, other than a noncompliance with the provisions of section 43 ; or
[132]
(b) there is a defect in any summons or warrant to apprehend
[133]
(c) there is a variance between such complaint, summons or warrant and the evidence adduced at the hearing in support thereof;
[134]
(d) if an objection is taken for any such defect or variance - the justices shall; or
[135]
(e) if no such objection is taken - the justices may;
[136]
make such order for the amendment of the complaint, summons or warrant as appears to them to be necessary or desirable in the interests of justice."
[137]
[111] The second defendant submitted that s 48 of the JA[46] does not permit the Magistrates Court to quash or set aside a complaint and summons, but as part of its duty to hear and determine the matter, Mr Palmer could make a submission that the court lacked jurisdiction to hear and determine the committal.[47]
[112] It is also submitted that if a defect in the charge could not be cured by amendment, then it may be appropriate for the Magistrate to dismiss the charge.[48] But regardless, he may make a submission about it at a s 590AA hearing.[49]
[113] The plaintiff submits that it is not possible for him to submit at a s 590AA hearing in the District Court that the alleged breaches of the HRA are the basis of a stay application. He submits that the decision in R v Ngo[50] is on point. But in any event, it is submitted that it would be extraordinary for this Court not to consider whether the proceedings should continue which may well avoid the cost and expense of a committal and trial.
[114] The plaintiff submits that he is not able to make the arguments as to the HRA charge in the Magistrates Court. He relies on the fact that as an inferior court, the Magistrates Court has limited jurisdiction and powers.[51] There is no section which allows the Magistrate to strike out the charge on the basis of a defect. The only power is one of amendment or committal under s 108 of the JA.
[115] The case of Fox v DPP [52] relied on by the second defendant is to be distinguished.
[138]
Conclusion as to Section 48 of the JA and Section 590AA of the Code
[139]
[116] In my view, Mr Palmer cannot argue this matter in the Magistrates Court. My view is that s 48 is limited to amendment. If the charge was one not known to law and the prosecution neglected to amend the charge to be one known to law, then I consider it is arguable he would have a no case submission available at the committal.[53] However, in my view, as any potential failure to consider the HRA does not invalidate the charge[54], this would not be a basis to say that the charge is defective.[55] Also, the Magistrates Court conducting a committal has no power to stay a charge.[56]
[117] However, contrary to the plaintiff's submissions, I consider that a failure to consider the HRA may be considered at a stay application in the District Court as part of a general abuse of process argument.[57] Mr Palmer alleges that the prosecution is for an improper purpose. This may be a basis for a stay.[58]
[118] I consider R v Ngo[59] is to be distinguished from the present case. In Ngo the challenge was not to the legality of the charge, but to the order made for committal. Hence any failure to give reasons was overtaken by the presentation of the indictment. That is quite a different point to the present case. But in any event, Mullins J (as her Honour then was) noted that s 590AA could be used to quash or stay the matter, not as a review of the committal process.
[119] There have been other cases where the courts have entertained stay applications on the basis of defects with the committal process:
[140]
(a) R v Butler[60] - where the defendant was not present at the committal.
(b) R v Boungaru[61] - where there was the loss of the opportunity to cross examine witnesses at the committal based on the assurance of the prosecutor.
(c) R v Ngalkin[62]- where the prosecution failed to call all of the eyewitnesses at the committal.
[141]
[120] I also note Mr Palmer will seek to argue that the charge is defective for another reason, namely that there is a fundamental defect in the fraud charges in that it is not alleged how he was dishonest and how he was not authorised to transfer the funds to the PUP[63], but that is a different matter.
[142]
[121] The complaint was issued in this matter in 2020. It is now five years since that time. The affidavit of Mr McKerrow indicates that the criminal matter is listed for a directions hearing on 22 September 2025. Also, two weeks have tentatively been set aside for the committal hearing itself in November 2025.
[122] Having considered all these matters, I accept the second defendant's submissions. In my view, the case brought before this Court does not fall within the exception. The fact is, the issue of the lawfulness of the complaint and summons may be argued in a s 590AA application before the trial judge, if Mr Palmer is committed for trial. In light of the history of the matter[64] and the significant delay, I consider it would inappropriately further fragment the criminal proceedings if this Court was to embark on a trial concerning the complaint and summons. To proceed to a trial on the issues in the ASOC will not be quick. There would need to be disclosure and pleadings need to close. This would, in my view, have the potential to significantly delay the matters which are tentatively listed for committal.
[123] I also consider the action before this Court does amount to a collateral attack on the criminal proceedings directly in that the application is for a declaration that the complaint and summons was unlawful. The matters raised should be ventilated in the prosecution before a criminal court.
[124] I do not consider it is in the interests of justice for this Court to deal with the matter. I do not consider this to be an exceptional or special case.
[125] There is one other aspect to be considered. Even if it may be argued the decisions were unlawful under s 58(1) of the HRA, by reason of s 58(6) of the HRA, they are not invalid. Hence it hard to see that the decisions would be set aside. Any question of unlawfulness is more relevant to the actions of misfeasance and breach of statutory duty, or a stay application to be dealt with under s 590AA of the Code_._ Like in Gedeon v New South Wales Crime Commission[65], such a decision would be of limited utility.
[126] I consider this aspect of this case distinguishes it from Polyukhovic.[66] That case did concern the validity of the charge. I also note Gaudron J said:
[143]
"But it must be observed that this Court would be most reluctant to stay a prosecution if the court in which it was pending had not had an opportunity to consider whether it ought to be adjourned or whether other steps might be taken to avoid risk of injustice."
[144]
[127] I have decided to dismiss the claims for declarations pursuant to r 658 of the UCPR and to stay the action until further order.
[128] I now deal with the issues raised in the pleadings. Although I have determined there is fragmentation, this does not mean I should automatically dismiss the actions.[67]
[129] The essence of Mr Palmer's claim is that his rights under the HRA were ignored when the complaint was made and summons was issued. These rights are:
(b) The right to a fair trial under s 31 of the HRA.
(c) The right to be informed under s 32(a) of the HRA.
(d) The right to a defence under s 32(b) of the HRA.
[148]
[130] My conclusion is that the first defendant's submissions are correct and the plaintiff has not pleaded how his human rights were limited or breached by the decisions made by the first defendant.
[131] As to paragraph 22(a), it is suggested that the right to equality was engaged as he was singled out for special treatment in that a breach of contract is not criminal conduct and not conventionally the subject of prosecution. No particulars of this are given. It does not follow that because there is a breach of contract there is no criminal offence. The body of the charges pleaded in paragraph 19 do not state there is a mere breach of contract. I consider that paragraph (and 28(a)) defective and should be struck out.
[132] As to paragraph 22(b), as I have said there is nothing pleaded or in the material as to how the plaintiff will not receive a fair trial. I consider this paragraph (and 28(b)) defective. They should be struck out.
[133] As to paragraph 22(c), there is nothing pleaded as to how Mr Palmer was not informed. He has received the charges and can apply for further particulars if required. He can apply for disclosure orders and will receive a brief of evidence. I consider this paragraph (and 28(c)) defective and they should be struck out.
[134] As to paragraph 22(d), there is nothing pleaded as to how Mr Palmer's ability to conduct a defence is limited. I consider this paragraph (and 28(d)) defective and they should be struck out.
[135] It therefore follows that the following paragraphs should be struck out as they are dependent on paragraphs 22 and 28:
(e) Paragraphs 42(c) and (d), 43(c)-(e), 44(a)(iii), 44(b), 45(a)(ii) and (iii), 45(b).
(f) Paragraphs 49(a) and 50(a).
(g) Paragraph 54A(a).
[150]
[136] The next question is whether I would allow the plaintiff a chance to replead.
[137] To my mind, there are difficulties with the plaintiff's case, particularly with his allegation there may not be a fair trial, or he will be deprived of the right to a defence.
[138] Mr Palmer has been issued with a complaint and summons which sets out in full the details of the charges. This was issued on or about 6 February 2020. Mr Palmer is thus aware of the nature of the allegations against him.
[139] The JA provides for a number of steps before a committal hearing. Firstly, if Mr Palmer wishes to object to any defect in the complaint, he may make an application under s 48 of the JA and a Magistrate may make an order for amendment as necessary or desirable in the interests of justice.
[140] Section 41 of the JA provides that the prosecution has the disclosure obligations as defined in Chapter 62, Chapter division 3 of the Code. Section 590AB of the Code provides that:
[151]
(1) This chapter division acknowledges that it is a fundamental obligation of the prosecution to ensure criminal proceedings are conducted fairly with the single aim of determining and establishing truth.
[152]
(2) Without limiting the scope of the obligation, in relation to disclosure in a relevant proceeding, the obligation includes an ongoing obligation for the prosecution to give an accused person full and early disclosure of -
[153]
(a) all evidence the prosecution proposes to rely on in the proceeding; and
(b) all things in the possession of the prosecution, other than things the disclosure of which would be unlawful or contrary to public interest, that would tend to help the case for the accused person."
[154]
(1) A magistrate has an overall supervisory responsibility for any committal proceeding coming before a Magistrates Court at a place where the magistrate is appointed to constitute a Magistrates Court.
[155]
(2) The supervisory responsibility includes setting timetables for the committal proceeding to the extent not otherwise provided for under an Act or practice direction.
[156]
(a) the powers of a justice or justices to act in relation to the examination of witnesses in relation to an indictable offence; or
(b) any other power of the court to control a proceeding or of a magistrate to give a direction under section 83A; or
(c) the operation of the provisions of this division relating to registry committals; or
(d) the duty of a magistrate to comply with directions or requirements given or made by the Chief Magistrate."
[157]
[142] Mr Palmer may make whatever application he chooses before the Magistrate to ensure the fairness of any hearing.
[143] Section 104 of the JA provides as to proceedings upon and examination of witnesses in relation to an indictable offence. There is the right to make a no case submission and also a right to give evidence if he chooses to do so. Section 108 of the JA requires the Magistrate to consider all of the evidence before committing the defendant for trial. There can be a directions hearing under s 83A of the JA in which the Magistrate can make orders for disclosure and orders that particular witnesses be made available for cross examination. Section 83B of the JA provides for orders concerning non-compliance with directions about disclosure. Section 110C of the JA allows a Magistrate to permit the cross examination of a witness if there are substantial reasons why cross examination should be allowed.
[144] Further, if he is committed for trial, there are rights of pretrial applications under s 590AA of the Code, rights of disclosure and rights to obtain particulars. He has the right to a trial by jury.
[145] As can be seen, there are a number of safeguards for an accused person such as Mr Palmer, like any other citizen the subject of charge.
[146] In determining whether he will receive a fair trial, the crucial factor to be considered is whether the defendant will receive a fair hearing from a competent, independent and impartial tribunal.[68]
[147] In my respectful opinion, there is nothing pleaded to suggest that Mr Palmer will not receive a fair hearing from an impartial Magistrate. Again, it cannot be considered that if he is committed for trial to the District Court he will not receive a fair trial by an impartial tribunal.
[148] However, despite this, I am inclined to allow the plaintiff to replead. Even if I considered the case to be a marginal one, Mr Villa SC reminded me that s 58(1)(b) of the HRA provides that it is unlawful for a public entity in making a decision to fail to give proper consideration to a human right relevant to the decision.
[149] He submitted that Director of Housing v Sudi[69] supports the contention that the HRA may be invoked as proof of unlawful conduct, for example proof towards the misfeasance action. I do note what Ryan J said in but as a matter of caution I would permit a repleading after any stay is lifted.
[158]
[151] Section 31G of the JP Act is relied on. It is common ground that Section 31G of the JP Act did not commence until 1 April 2024. Therefore, the section was not in force at the time of the witnessing of the complaint and issuing of the summons.
[152] In those circumstances, I strike out paragraph 6 and the paragraphs reliant on s 31G (paragraphs 49-54).
[153] On the issue of repleading, Mr Villa SC relied on s 36(1) of the JP Act.
[154] This section provides:
[159]
(a) by an act done by a justice of the peace or a commissioner for declarations purportedly in the performance of the functions of office but which the justice of the peace or commissioner for declarations knows is not authorised by law; or
(b) by an act done by a justice of the peace or commissioner for declarations in the discharge of the functions of office but done maliciously and without reasonable cause;
[160]
may recover damages or loss sustained by the person by action against the justice of the peace or commissioner for declarations in any court of competent jurisdiction.
[161]
(2) Subject to subsection (1), action is not to be brought against a justice of the peace or commissioner for declarations in respect of anything done or omitted to be done in, or purportedly in, the performance of the functions of office."
[162]
[155] I think it is arguable that this section gives rise to an action for breach of statutory duty.[72]
[156] I agree that the "immunity" referred to in section 36(2) is matter of pleading by the defendant. Again, I need to exercise caution before dismissing a claim. I will allow the plaintiff to replead this cause of action after the stay is lifted.
[163]
[157] With respect to the issue of this cause of action, I consider it has become significantly wounded after the striking out of the HRA allegations and s 31G of the JP Act.
[158] That leaves reference to the Handbook, the JA, the Code and the common law.
[159] I strike out references to the JA, the Code and the common law. They are vague and imprecise allegations and are embarrassing.
[160] As to the Handbook, paragraph 7 of the ASOC alleges various obligations arose by reason of the Handbook. There is nothing in the misfeasance pleading alleging how Ms Gibson breached the Handbook and how this made her decision unlawful. Also, it is doubtful the Handbook creates any duty but more rather is just guidance. In this regard:
[164]
(a) It is not suggested the Handbook is promulgated by any statute.
(b) It states in the disclaimer section that it contains guidelines only and is not legal advice.[73]
(c) It is called a "Guide."
(d) Chapters 2.3, 2.4 and 5.1 do not appear to impose any obligation.
[165]
[161] I strike out the reference to the Handbook.
[162] All of this means I strike out the pleading concerning misfeasance in a public office.
[163] I now turn my mind to the question of repleading, specifically if I should allow the plaintiff to replead this cause of action, after the stay is lifted.
[164] An action for misfeasance in public office is a serious allegation and the allegations must be pleaded precisely and specifically.[74]
(a) The defendant, being the alleged wrongdoer, is a public officer or held a public office at the time of the alleged wrongdoing.
(b) The defendant engaged in conduct constituted by either act or omission that was invalid, unauthorised or otherwise beyond power.
(c) The conduct occurred in the exercise or purported exercise of public functions or duties.
(d) The defendant acted with a particular state of mind being either targeted malice or knowledge, or reckless indifference as to their conduct being invalid, unauthorised or beyond power and their conduct would probably cause harm to the plaintiff.
[167]
[166] The tort usually can only be established where the defendant acted maliciously or in bad faith, as distinct from carelessly or negligently.[76]
[167] It is not uncommon for pleadings of misfeasance to be struck out or summarily dismissed because the elements are demanding. For example Palmer v Shipton[77] was a case involving Mr Palmer suing a former officer of ASIC for misfeasance in a public office. That pleading was struck out.
[168] It is certainly necessary that the pleading pleads the essential facts that support the inference of knowledge.[78]
[169] Whilst I might have my doubts as to whether the action can be established, I have decided to permit the plaintiff to replead his case after the stay is lifted. It may be that he can establish the high bar necessary for such an action. The court needs to be careful from shutting a plaintiff out from having a cause of action being heard.
[168]
[170] For the reasons previously given, I strike out this claim. I have struck out paragraphs 49 to 53 and references to the JP Act, Handbook, JA, HRA, the Code and the common law.
[171] In considering the question of allowing the plaintiff to replead, s 38 of the JA provides:
[169]
(1) When a justice refuses to do any act relating to the duties of the justice's office as such justice the party requiring such act to be done may apply to the Supreme Court, or a judge thereof, upon affidavit of the facts, for an order calling upon such justice and also the party to be affected by such act to show cause why such act should not be done, and if after due service of such order good cause is not shown against it, the court or judge may make the same absolute with or without or upon payment of costs.
[170]
(2) A justice upon being served with an order absolute shall obey the order and do the act required by it to be done."
[171]
[172] In my opinion, this section does not apply to the decision to issue a complaint and summons. When I consider the JA, I consider this section relates to the decisions of Justices in the exercise of jurisdiction. For a start, s 38 of the JA is contained in the Part headed "Jurisdiction" and in Division 6 "Extent of Jurisdiction".
[173] That Division deals with:
[172]
(a) Justices may act outside of their geographic jurisdiction (s 32).
(b) Warrants of commitment and remans may be valid throughout the State (s 33).
(c) An apprehended person may be taken before any Justice (s 35).
(d) A summons or warrant is not voided by the death of the Justice (s 37).
(e) The power of the court to deliver certain property (s 39).
[173]
[174] I consider that these sections tend to reveal that s 38 relates to a Justice acting as Magistrate.
[175] The decided cases under the section support this view:
[174]
(a) Where a Magistrate wrongly adjourned a case.[79]
(b) Where Justices erroneously struck out a case on the ground it was res judicata.[80]
(c) Where the Magistrate decided he had no jurisdiction to hear the complaint.[81]
(d) Where Justices erroneously struck out a case on the ground of want of jurisdiction.[82]
(e) Where a police Magistrate refused to hear and determine an application for a summons.[83]
(f) Where the Justices erroneously dismissed a complaint on the grounds it disclosed no offence.[84]
(g) Where the Justices had not taken all evidence into consideration.[85]
[175]
[176] The other difficulty are the words of the section which raise these questions:
[176]
(a) Was the requirement to consider the HRA part of the duties of the office of the Justice?
(b) There appears to be no evidence that Ms Gibson actually refused to consider the HRA. There may have been neglect but not refusal.
(c) How can this court order her to now consider the HRA when the complaint and summons have already been issued? The horse has bolted so to speak.
[177]
[177] I therefore consider there is no cause of action available under s 38 of the JA and I refuse leave to replead.
[178]
[178] As nothing of any meaning is left in the pleading I strike out the whole statement of claim.
[179]
[179] In Flanagan v Commissioner of the Australian Federal Police[86] the Full Court of the Federal Court considered a case where the applicants sought declarations that warrants were unlawfully obtained and damages for misfeasance. The matters were the subject of ongoing criminal charges. For reasons of fragmentation, the applications for declarations were refused. The claims for misfeasance were adjourned until after the criminal proceedings.
[180] That is also the appropriate course here. This will avoid duplication and no doubt the result in the criminal matter will impact a number of issues in this matter, not the least of which is quantum.
[180]
[181] It was argued by the first defendant in particular that the entire proceeding is an abuse of process. In light of my findings, that may possibly be the case, but I am not prepared to make the finding contended for.
[181]
[182] For the reasons given, I make the following orders:
[150] I also note there is some evidence that, at least, there is no documentation supporting the contention that Ms Gibson did turn her mind to these rights.[71]
[108] The plaintiff submits that the threshold question is whether it is in the interests of justice for the Supreme Court to order declaratory relief.[43] It is submitted that the criminal proceedings should not continue where the complaint and summons are unlawful and invalid.[44] It is alleged that the proceeding does not seek to directly challenge a ruling made in the criminal proceeding. The key issue is whether the matters raised should be determined by the criminal court.[45] In this, they cannot be dealt with by the Magistrates Court. It is submitted the present case is an exceptional one which deals with the validity of the prosecution and this court should proceed to hear the matter.