Bert v State of Queensland
[2019] FCA 2058
•6 December 2019
FEDERAL COURT OF AUSTRALIA
Bert v State of Queensland [2019] FCA 2058
File number: VID 1183 of 2019 Judge: O’CALLAGHAN J Date of judgment: 6 December 2019 Date of hearing: 6 December 2019 Registry: Victoria Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: No catchwords Number of paragraphs: 33 Counsel for the Applicant: The applicant appeared in person Counsel for the Respondent: D M Favell Solicitor for the Respondent: Crown Law ORDERS
VID 1183 of 2019 BETWEEN: JEAN-CLAUDE BERT
Applicant
AND: STATE OF QUEENSLAND
Respondent
JUDGE:
O’CALLAGHAN J
DATE OF ORDER:
6 DECEMBER 2019
THE COURT ORDERS THAT:
1.The proceeding be dismissed.
2.The applicant pay the respondent’s costs of the proceeding on an indemnity basis.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
O’CALLAGHAN J:
The applicant has filed what purports to be an originating application and statement of claim dated 30 October 2019.
The statement of claim reads as follows:
1.On 23 July 2014, my family and I filed a claim and statement of claim in the Supreme Court of Queensland under proceeding BS1467/16, seeking compensation for alleged deceitful conduct by a company director, alleged breach of the continuous disclosure obligations and alleged misleading statements made by the company Red 5 Limited (Red 5) in relation to our shareholdings in the company.
2. On 16 December 2016, the primary judge dismissed our claim.
3.There were a large number of facts finding errors and oversights in the judgement as some crucial written evidence contradicted the findings of the judge. On 7 February 2017, my family and I filed an appeal in the Queensland Court of Appeal against the decision of the primary judge.
4.On 13 October 2017, the decision of the primary judge was upheld. A majority of the critical facts finding errors and oversights that the primary judge had made in his judgement were not identified or corrected by the Appellate Court.
5.While the list of fact finding errors not corrected in Appeal is extensive, some of them were absolutely pivotal in the outcome of the case. In his judgement, the primary judge wrote the following sentences: “As at 15 March 2012 there was no problem with groundwater inflow” ... “The dewatering was working” ... “The evidence is that at 14 March 2012, they were able to deal with the inflow” ...”However, the dewatering system was successfully operating by mid-March 2012” ... All the objective written evidence before the Courts pointed to the exact opposite.
6.In respect to the cause of the underperformance and not achieving the production forecast, the primary judge wrote the following sentence: “That failure was mainly the result of delivering insufficient ore to the mill for processing and to a lesser extent what appeared to be below grades in the ore, reduced mill recovery and at time shortage of power”. However, undisputable written evidence before the Courts showed that the failure to dewater the pit was the major cause of underperformance and not achieving the production forecast.
7.Such critical fact findings errors not corrected in Appeal were crucial in the outcome of the case and are evidence that support my claim that my family and I were deprived of a fair proceedings before an independent and impartial court.
8.On 2 November 2017, I filed an Application for special leave to Appeal (B59 of 2017) in the High Court of Australia. Since the specific rules applying to the Application do not allow extensive material, I was unable to provide to the High Court the evidence showing that the decisions made by the Queensland Courts were based on inaccurate and erroneous findings.
9.On 15 February 2018, special leave was refused by the High Court of Australia, meaning that my family and I had exhausted the appeals process.
10.On 15 August 2018, in response to a correspondence from the Head of the Judicial Branch of the Queensland government (the Chief Justice of the Supreme Court of Queensland), I sent to the Office of the Attorney General and to the Chief Justice of the Supreme Court of Queensland, material containing a large number of undisputable specific written evidence which were before the primary judge and comprehensively contradicted his findings, and which showed that the decisions of the Courts were not based on crucial objective evidence. I also invited the Chief Justice and the Office of the Attorney General to inform me if they wished to deny or contest the content of all these written evidence.
11.To this day, none of these critical facts finding errors have been opposed or even disputed either by the Office of the Attorney General or the Chief Justice or by any department or agency of the Queensland government who has had access to this material. No branch of the government of Queensland has contested or challenged the fact that there have been critical factual errors affecting the outcome of the case which were not identified or corrected in Appeal.
12.The fact that these Court decisions were not based on objective written evidence, as it could be expected in any civilized legal system, but relied upon a number of serious and critical facts findings errors made by the primary judge has created unfairness and injustice for my family and me.
Applicant pleadings:
13.In those specific circumstances, having exhausted our appeal process, our fundamental common law right to fair proceedings and to appear before a competent, independent and impartial Court has been breached within the meaning of the International Covenant on Civil and Political Rights (Article 14(1)). The Queensland Anti-Discrimination Act 1991 recognizes also this fundamental principle of the rule of the law and reminds us in his preamble of its support to this international legislation.
14.If a person is deprived of his basic fundamental right and this person is also denied adequate compensation for the loss of this right, then it would constitute a breach of a fundamental common law principle, such as there is no right without a remedy “Ubi jus ibi remedium” Ashby v White (1703). The International Covenant on Civil and Political Rights (Article 2(3)a recognizes also this important common law principle.
15.Reparation cannot be done by the Court, as there is no independent judicial commission inside the Judicial Branch of the Queensland government who repair damages to victims of a serious dysfunction in the administration of justice. Therefore appropriate and adequate compensation should be awarded by the State of Queensland to repair the atrocious financial and moral harm that my family and I have suffered as a consequence of the alleged breach of our common law right to fair proceedings.
The Claim:
16.For the reasons cited above, I ask this Court an order that the Respondent (the State of Queensland) pays the following financial remedies:
a.An amount of AUD 1.3 Million corresponding to the financial and economic prejudice suffered by my family and me.
b.An amount of AUD 5 Million as moral damage for the horrible harm caused to my family and I. Not only the alleged breach has had a major impact upon the life and means of each member of my family; it has also caused a lot of distress and anxiety for each of us and has affected in a very destructive way our family integrity.
The originating application reads as follows:
On the grounds stated in the statement of claim and accompanying genuine steps statement prescribed by the Rules, the applicant claims an Order that the State of Queensland pays the following financial remedy:
An amount of AUD 6.3 Million as compensation to repair the financial, economic and moral prejudice suffered by my family and me as a result of a serious dysfunction in the Administration of Justice on the ground of an alleged breach of our common law right to fair proceedings which is also recognize in our fundamental constitutional right to appear before a competent, independent and impartial Court and is conform to the International Covenant on Civil and Political Rights.
It is difficult to know what to make of all this, on the face of it. Helpfully, the Assistant Crown Solicitor for the State of Queensland, Ms Freeleagus, has sworn and caused to be filed an affidavit, in support of an application to dismiss the proceeding (among other things), which explains the following.
The applicant’s statement of claim in this court refers to a number of proceedings.
As a result of undertaking searches Ms Freeleagus has been able to obtain copies of the relevant judgments and orders.
The applicant has previously sought to challenge the matters raised in his statement of claim in this court in Supreme Court Proceeding No. 4507 of 2019. The Crown Solicitor acted for the respondent in that proceeding.
On 23 July 2014, the applicant (together with his wife and daughters) commenced proceedings against Red 5 Limited and Colin Jackson. A trial of the proceeding took place over 5 days before Applegarth J.
On 16 December 2016, Applegarth J delivered judgment, dismissing the proceeding. See Bert v Red 5 Limited [2016] QSC 302.
On 10 February 2017, Applegarth J delivered judgment with respect to the question of costs. See Bert v Red 5 Limited [2017] QSC 8.
On 7 February 2017, the applicant filed an appeal in the Queensland Court of Appeal.
On 13 October 2017, the Court of Appeal dismissed the appeal. See Bert v Red 5 Limited [2017] QCA 233.
The applicant then sought special leave to appeal to the High Court.
On 15 February 2018, the High Court refused to grant special leave and directed that the application be dismissed.
On 29 April 2019, the applicant commenced proceedings in the Supreme Court against the “Qld Court of Appeal” by way of an Originating Application (Proceeding No. 4507 of 2019).
In an affidavit in support of that application, the applicant alleged that “some of the finding errors made by the primary judge which have led to errors of law had not been identified and corrected by the Appellate Court. As the Appellate Court did not overturn the decision of the primary judge, a breach of the rules of natural justice has happened.”
On 15 May 2019, Flanagan J made orders with respect to the proceeding, as a consequence of which the applicant amended his Originating Application.
On 11 October 2019, Crown Law sent a letter by email to the applicant, inviting him to discontinue the proceedings, and enclosed a Notice of Discontinuance.
On or about 17 October 2019, the applicant filed the Notice of Discontinuance.
On 17 October 2019, Crown Law was copied into an email sent by the applicant to the Attorney-General of Queensland, attaching a letter in which the applicant advised that he would be commencing proceedings in the Federal Court of Australia.
On 29 October 2019, Crown Law sent a letter to the applicant advising that any contemplated Federal Court proceedings would be doomed to fail, due to a lack of jurisdiction and no discernible cause of action.
On 29 October 2019 at 2:25pm, the applicant sent an email to Crown Law in response to the letter sent by Crown Law earlier that day, advising that he would continue to pursue proceedings in the Federal Court.
On 29 October 2019 at 7:22pm, the applicant sent a further email to Crown Law, advising that he disagreed that there was no evidence to support his allegation that he was deprived of a fair hearing before an independent and impartial court.
On 13 November 2019, the applicant served the originating application and statement of claim in this proceeding on the Crown Solicitor’s office.
On 13 November 2019, the applicant sent an email to Crown Law, enclosing a letter dated 12 November 2019 in response to the letter sent by Crown Law on 29 October 2019.
On 22 November 2019, Ms Freeleagus sent an email enclosing a letter to the applicant, inviting him to discontinue his proceedings in the Federal Court because the Federal Court has no jurisdiction to hear the matters complained of and that the application otherwise disclosed no cause of action and is an abuse of process.
On 22 November 2019, Ms Freeleagus received an email from the applicant enclosing a letter in which he declined to discontinue the proceedings.
On 24 November 2019, Ms Freeleagus received an email from the applicant maintaining the letter of 22 November 2019 was “without prejudice”.
On 26 November 2019, Ms Freeleagus received a further email from the applicant enclosing a letter in which he further responded to her letter of 22 November 2019.
It is plain that this court has no authority (jurisdiction) to entertain the applicant’s pleaded grievances.
I will accordingly dismiss the proceeding.
On two occasions (29 October 2019 and 22 November 2019), the respondent wrote to the applicant and told him that any proceeding in this court had no basis and was doomed to fail. The applicant was told that if he discontinued, the respondent would not have sought costs against him. The offer was declined and the respondent has now been put to the cost of dealing with a proceeding, which should never have been brought. The discretion to award indemnity costs is thus enlivened. This is a clear case for the exercise of it.
I will therefore order that the applicant pay the respondent’s costs of the proceeding on an indemnity basis.
I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice O’Callaghan. Associate:
Dated: 6 December 2019
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