ABK v Foreign State of Queensland

[2024] QCA 84

SUPREME COURT OF QUEENSLAND

CITATION:

ABK v Foreign State of Queensland [2024] QCA 84

PARTIES:

ABK
(applicant)
v
FOREIGN STATE OF QUEENSLAND
(first respondent)
ALLIANZ AUSTRALIA INSURANCE LIMITED
(second respondent)

FILE NO/S:

Appeal No 5181 of 2024
SC No 3020 of 2024

DIVISION:

Court of Appeal

PROCEEDING:

Miscellaneous Application – Civil

ORIGINATING COURT:

Supreme Court at Brisbane – Unreported, 28 March 2024 (Applegarth J)

DELIVERED EX TEMPORE ON:

16 May 2024

DELIVERED AT:

Brisbane

HEARING DATE:

16 May 2024

JUDGE:

Mullins P

ORDER:

Application for leave to appeal refused.

CATCHWORDS:

APPEAL AND NEW TRIAL – STATE AND TERRITORY COURTS: JURISDICTION, POWERS AND GENERALLY – VEXATIOUS LITIGANTS, PROCEEDINGS AND RELATED MATTERS – OTHER MATTERS – whether the applicant was required to apply ex parte for leave to appeal from an order of the Trial Division that pursuant to rule 389A of the Uniform Civil Procedure Rules 1999 (Qld) the applicant must not start similar proceedings in “this Court” or the District Court against the State of Queensland without leave of the Court – where the order did not exclude an appeal from the operation of the order – whether the appeal from the order is “similar proceedings” – where the reference to “this Court” in the order is a reference to the Supreme Court of Queensland, including the Court of Appeal – where leave is required under rule 389A to pursue the appeal

Supreme Court of Queensland Act 1991 (Qld), s 5
Uniform Civil Procedure Rules 1999 (Qld), r 389A

COUNSEL:

The applicant appeared on his own behalf
A L Marks for the State of Queensland as amicus curiae

SOLICITORS:

The applicant appeared on his own behalf
G R Cooper, Crown Solicitor for the State of Queensland as amicus curiae

MULLINS P:  The applicant filed an originating application in the Trial Division on 11 March 2024.  It was supported by an affidavit filed on 18 March 2024.  It appears the applicant is being treated for mental health issues and has many complaints about his treatment and all Court decisions made in respect of him, including a decision made at QCAT.  The second respondent appears to have been joined in the originating application as the result of a motor vehicle accident claim which the applicant had in respect of an accident that occurred on 6 May 2017 that was settled by an administrator appointed to act on behalf of the applicant, who had been declared in a QCAT proceeding to be without capacity for pursuing that claim.

The applicant had made an earlier application in the Trial Division involving the same parties, BS4098 of 2021, that was dismissed and an order made pursuant to rule 389A of the Uniform Civil Procedure Rules 1999 (Qld). On 28 March 2024, Justice Applegarth made the following orders:

1. The originating application filed 11 March 2024 be set aside pursuant to rule 16(e) of the Uniform Civil Procedure Rules 1999 (Qld).

2. Leave to commence proceedings against the State of Queensland and the second respondent is refused.

3. Pursuant to rule 389A of the Uniform Civil Procedure Rules 1999 (Qld) the applicant must not start a similar proceeding in this Court or the District Court against the State of Queensland without leave of the Court.

4. The applicant is to pay the first respondent and second respondent’s costs of the proceeding.

The applicant has filed an appeal against Justice Applegarth’s decision.  The notice of appeal is difficult to understand.  The only ground of appeal set out states: “Natural justice.  I have been accused and I’d like to face my accusers in a competent Court and not a tribunal that doesn’t examine evidence.”

The orders that are sought in the notice of appeal do not relate directly to Justice Applegarth’s orders, but to the applicant’s mental health treatment.  They include orders to nullify mental health records, appointment of a Court assessor to evaluate damages of depot injection by international standards, and return of all forms of capacity, medical, financial and legal.

I reviewed this matter on 29 April 2024. On that date, I indicated that the applicant’s appeal appeared to be caught by paragraph 3 of Justice Applegarth’s order. That order does not exclude an appeal from the operation of the order. The reference to “this Court” in paragraph 3 is a reference to the Supreme Court of Queensland. The Court of Appeal, though named as a Court, is in fact a division of the Supreme Court of Queensland: see section 5(1)(b) of the Supreme Court of Queensland Act 1991 (Qld). That is why the applicant is required to apply ex parte for leave to appeal from Justice Applegarth’s order. Ms Marks of counsel, instructed by the Crown Solicitor, appears as amicus curiae.

I understand that the applicant has set out his concerns about his treatment in the health and justice systems in Queensland in his affidavits filed in support of his applications filed in respect of this appeal.  They are, in general terms, irrelevant to the issue to be decided on whether he should be given leave to appeal Justice Applegarth’s order, which was made in the exercise of the Court’s discretion to regulate its processes, including to ensure that other parties are not needlessly put to cost and expense by applications that are doomed to fail.

The applicant is misguided about the purposes for which he can use the Court proceedings. The appeal against Justice Applegarth’s order is also doomed to fail. It is therefore not appropriate to give the leave required under rule 389A of the UCPR to enable the appeal to be prosecuted in this Court. Even if the applicant’s appeal were not subject to rule 389A, I would have struck it out as an abuse of process. The order of the Court is:

Application for leave to appeal refused.

So I cannot help you, I am sorry.  I encourage you to look for the avenues that are available within the mental health system.

APPLICANT:  Thank you, your Honour.

MULLINS P:  All right.

MS MARKS:  Thank you, your Honour.

MULLINS P:  Thank you.  I will adjourn.