Brookfield v State of Queensland
[2024] QSC 219
•27 September 2024
SUPREME COURT OF QUEENSLAND
CITATION:
Brookfield v State of Queensland [2024] QSC 219
PARTIES:
IAN WALTER BROOKFIELD
(plaintiff)
v
STATE OF QUEENSLAND(defendant)
FILE NO/S:
BS15087 of 2021
DIVISION:
Trial Division
PROCEEDING:
Claim
ORIGINATING COURT:
Supreme Court at Brisbane
DELIVERED ON:
27 September 2024
DELIVERED AT:
Brisbane
HEARING DATE:
15-19 April 2024
JUDGE:
Cooper J
ORDER:
1. The amended claim filed on 21 July 2022 is dismissed.
2. I will hear the parties as to costs.
CATCHWORDS:
TORTS – INTERFERENCE WITH THE PERSON – FALSE IMPRISONMENT – LAWFUL JUSTIFICATION – ARREST AND DETENTION AND IMPRISONMENT IN CRIMINAL PROCEEDINGS – where the plaintiff, in pursuing a debt, repeatedly contacted the debtor, as well as his staff, family, and business associates, via text, email, and social media – where the police initially declined the debtor’s request to investigate the plaintiff’s conduct on the basis that it was a civil dispute – where the police subsequently investigated the debtor’s complaint, arrested the plaintiff and charged him with various offences related to his conduct towards the debtor, including breaching bail conditions – where the charges against the plaintiff were subsequently dismissed or dropped – where the plaintiff was arrested pursuant to a warrant and charged for dishonesty offences relating to his alleged forgery of a signature on a contract – where those charges were subsequently dismissed by a magistrate – whether the arrests of the plaintiff were lawful
TORTS – ABUSE OF LEGAL PROCESS – MALICIOUS PROSECUTION – ESSENTIALS OF ACTION – ABSENCE OF REASONABLE AND PROBABLE CAUSE – where the plaintiff’s conduct towards the debtor led to him being arrested for and charged with stalking and using a carriage service to menace, harass or cause offence – where the arresting officer gave evidence that he honestly believed that the available material made it appropriate to charge the plaintiff with the offences – where the plaintiff’s conduct included sending emails and other communications to the debtor, his family members, and his staff accusing the debtor and his family of criminal conduct, insulting them, complaining about their conduct, and creating harassing social media posts – where the plaintiff was also separately investigated for and charged with fraud for taking a deposit payment on a vehicle that was encumbered – where a breach of bail charge was laid based on what one police officer told another regarding the plaintiff attending a courthouse where the complainant was, in contravention of a bail condition – where the material relied on to support charges of forgery, uttering and perjury was said to demonstrate that the plaintiff knew the complainant had not signed the contract but the plaintiff was nevertheless purporting to rely on it in court proceedings – whether it would have been open to a jury to convict the plaintiff of the offences – whether the charging police officers acted without reasonable and probable cause in charging the plaintiff
TORTS – ABUSE OF LEGAL PROCESS – MALICIOUS PROSECUTION – ESSENTIALS OF ACTION – MALICE – GENERALLY – where a charging police officer’s evidence was that his purpose was to enforce the criminal law when he charged the plaintiff – where police initially believed the matter to be civil in nature but later changed their position upon a detailed review of the evidence – where police had told the plaintiff that there was new material to justify charging him but failed to identify that new material – where a charging officer sent an email to the lawyers acting for the complainant which summarised the facts of the complaint and which the plaintiff said demonstrated that the officer acted to assist the complainant in his civil dispute with the plaintiff – whether the police acted maliciously in charging the plaintiff
TORTS – MISCELLANEOUS TORTS – MISFEASANCE IN PUBLIC OFFICE – where police requested that the plaintiff provide his mobile telephone and computer to police and informed him that he would be arrested and detained while a warrant was obtained if he refused – where police requested the plaintiff to accompany them to a police station and participate in an interview – where the plaintiff was arrested on numerous occasions for various offences – where police imposed a bail condition on the plaintiff prohibiting him from commencing any further civil proceedings against the alleged debtor – where the plaintiff complained to police about the police’s conduct in arresting and charging him and he was dissatisfied with the outcome of those complaints because there were errors in the reports made by police in relation to his complaints – whether any of the police conduct constituted invalid or unauthorised acts, or otherwise constituted misfeasance in public office
TORTS – MISCELLANEOUS TORTS – NOVEL OR DEVELOPING TORTS – where the plaintiff alleged the police perverted the course of justice by allegedly assisting the complainant debtor’s lawyers, directing a police officer to arrest and charge the plaintiff, and imposing a bail condition restraining the plaintiff from instituting further civil proceedings against the debtor – where this aspect of the plaintiff’s claim is arguably framed as a breach of statutory duty – whether the plaintiff had a private right of action against the police for allegedly perverting the course of justice
TORTS – MISCELLANEOUS TORTS – INTIMIDATION – where the plaintiff alleged that the police’s conduct in the course of arresting and charging him amounted to intimidation – where the plaintiff did not characterise any of the alleged acts as a threat by the relevant police officers which was intended to compel the plaintiff to comply with a demand – whether the police conduct amounted to intimidation
TORTS – MISCELLANEOUS TORTS – CONSPIRACY – GENERALLY – where the plaintiff alleged that the police conspired with the complainant/debtor and his lawyers to have the plaintiff charged and arrested – where there was no evidence of such an agreement between the police and solicitors – whether the police conduct amounted to conspiracy
Police Powers and Responsibilities Act 2000 (Qld), s 365, s 367, s 369
A v New South Wales (2007) 230 CLR 500, cited
Ballard v Multiplex [2012] NSWSC 426, cited
Ferguson v State of Queensland [2007] QSC 280, cited
Irving v Pfingst [2020] QSC 280, cited
Irving v Pfingst [2021] QCA 280, cited
Jack Brabham Engines Ltd v Beare [2010] FCA 872, cited
Lee v Abedian [2017] 1 Qd R 549, approved
McFadzean v Construction, Forestry, Mining & Energy Union (2007) 20 VR 250, cited
Northern Territory v Mengel (1995) 185 CLR 307, cited
R v Bossley [2015] 2 Qd R 102, approved
R v Kovacevic [2020] QSC 399, cited
COUNSEL:
The plaintiff appeared on his own behalf
DM Favell for the defendant
SOLICITORS:
The plaintiff appeared on his own behalf
Crown Solicitor for the defendant
From about 2016, the plaintiff (Mr Brookfield) took steps to recover a debt which he claimed was owed to him by Mark Mergard. That debt was said to be owed to Mr Brookfield in circumstances where Mr Mergard’s company, Real Estate Now Pty Ltd (Real Estate Now), agreed to purchase a rent roll from Blue Prop Pty Ltd (Blue Prop), a company owned by Mr Brookfield’s friend, Ms Nightingale. Mr Brookfield claimed that Real Estate Now did not comply with its obligation to pay for the rent roll. Blue Prop subsequently assigned the debt, or its cause of action for breach of contract, to Mr Brookfield.
In pursuing the debt, Mr Brookfield commenced various civil proceedings against Mr Mergard and Real Estate Now. He also sent emails and text messages to Mr Mergard, his family, staff and business associates; and he published social media posts about Mr Mergard. In doing so, Mr Brookfield did not limit himself to statements about Real Estate Now’s obligation to pay the debt which Mr Brookfield claimed was owed to him; he also addressed other unrelated matters.
Mr Brookfield’s conduct led Mr Mergard to complain to the Queensland Police Service (QPS). As a consequence of those complaints, Mr Brookfield had various interactions with QPS officers stationed at Bundaberg. Mr Brookfield was charged with various offences. All of the charges were eventually dismissed.
Mr Brookfield claims that, in investigating Mr Mergard’s complaints and charging him with criminal offences, QPS officers committed numerous torts against him: false imprisonment, malicious prosecution, misfeasance in public office, perverting the course of justice, intimidation and conspiracy. He seeks damages in an unspecified sum, but in any event an amount greater than $750,000.
For the reasons which follow, all of Mr Brookfield’s claims must be dismissed.
Mr Mergard’s first complaint about Mr Brookfield’s conduct
On 30 October 2017, Mr Mergard complained to officers at Bundaberg police station that Mr Brookfield was stalking him. Detective Senior Constable Jon Murray was tasked with investigating Mr Mergard’s complaint.
During his investigation, Officer Murray had a telephone conversation with Mr Cliff, a partner at the law firm Mills Oakley, who was acting for Mr Mergard. During the discussion, Officer Murray recommended that Mr Cliff send a letter to Mr Brookfield making it clear he should not make further contact with Mr Mergard, and that if Mr Brookfield’s conduct continued it might constitute the offence of stalking under the Criminal Code or the Commonwealth offence of using a carriage service to menace, harass or cause offence. Officer Murray described this as drawing a line in the sand after which any further communications by Mr Brookfield could be investigated by the QPS.
On 7 November 2017, Mr Brookfield attended the Bundaberg police station wishing to speak to police about his dispute with Mr Mergard. Officer Murray spoke to Mr Brookfield. An audio recording of this conversation was captured on Officer Murray’s electronic recording device.
Mr Brookfield commenced the conversation by stating that Mr Mergard had sworn two false affidavits in civil proceedings and described the nature of his dispute with Mr Mergard. Officer Murray said that Mr Brookfield’s assertion about Mr Mergard giving false evidence was not a matter for police at that stage: it had to be tested in the civil proceedings.
Officer Murray then moved the conversation to the complaint Mr Mergard had made about Mr Brookfield’s conduct. He told Mr Brookfield that Mr Mergard’s solicitors would be sending a letter to Mr Brookfield demanding he cease his communications with, and about, Mr Mergard. He said that a line was being drawn in the sand. He told Mr Brookfield that he was not to send any further correspondence to Mr Mergard or to have any form of contact with Mr Mergard, other than by contacting Mr Mergard’s solicitors. If Mr Brookfield continued to communicate with Mr Mergard going forward he would be charged with stalking. Mr Brookfield confirmed that he understood what Officer Murray had said to him.
Later in the conversation, Officer Murray said the following to Mr Brookfield:
“You have to stop this shit, okay? Immediately, okay? You will find yourself, if this continues, going down the criminal line. We will pursue any person who breaches the Criminal Code, … Really, we could go back eighteen months and deal with all the emails, all the messages, Facebook, whatever it may be, because that is menacing, harassing and threatening in nature. Now, threatening can be just by purely ‘I’m going to take you to court’ but continual menace and harassment, okay? That is an offence under the Commonwealth Crimes Act, okay, using a carriage device to menace, harass or intimidate, okay? We could go down that line. We have chosen, at this point, because it is [the subject of] civil proceedings, to leave it in the civil jurisdiction, okay. That’s the only reason we are not pursing that criminal conduct – and it is criminal, okay?
As it is a long and protracted series of contacts, it is stalking, okay? Under the stalking legislation it clearly fits that criteria, the elements are proven. … Again, we are not pursuing that, at this point, because we believe that it is before the civil jurisdiction and we find that it is a civil dispute at this stage.”
Officer Murray told Mr Brookfield that any future contact with Mr Mergard, other than through his solicitors, would not be lawful and would lead to him being pursued by the QPS for the offences just explained to him.
Towards the end of the conversation, Officer Murray asked Mr Brookfield if he understood that his conduct towards Mr Mergard was to cease. Mr Brookfield confirmed that he understood.
The day after his conversation with Mr Brookfield, Officer Murray sought and obtained approval from Detective Senior Sergeant Bishop, the Officer in Charge of Bundaberg Criminal Investigation Branch, to finalise Mr Mergard’s complaint without taking any further action on the basis that the complaint was considered to be a civil matter.
Mr Mergard’s further complaints about Mr Brookfield’s conduct
On 29 June 2018, Mr Mergard sent an email to Officer Murray attaching a Facebook post published by Mr Brookfield. The post referred in derogatory terms to a vessel which Mr Mergard used to conduct tours from the town of 1770 through a business named “1770 Reef”. It appears that Mr Brookfield operated a competing tour business that was based in Bundaberg.
That email was forwarded to Detective Sergeant Andrew Self because Officer Murray was on long service leave. After considering Mr Mergard’s email and the Facebook post, Officer Self advised Mr Mergard it did not constitute evidence of stalking. He indicated that Mr Mergard’s complaint was civil in nature and not a matter for investigation by the QPS. He recommended that Mr Mergard seek advice from his solicitor as to what civil remedies might be available to him.
On 17 July 2018, Rod Jellyman, a solicitor at Mills Oakley, sent an email to Senior Sergeant Glenn Cameron. It listed various conduct by Mr Brookfield which caused Mr Jellyman to form the view that Mr Brookfield might have committed the offences of stalking and of using a carriage service to menace, harass or cause offence. Officer Cameron advised Mr Jellyman that Mr Mergard’s complaint was being dealt with by Officer Self. Mr Jellyman said that Mills Oakley was collating evidence in the form of emails, text messages and screen shots for Officer Self to consider. Officer Cameron forwarded this email correspondence to Officer Bishop, as Officer in Charge of Bundaberg CIB. Officer Bishop then forwarded the email exchange to Officer Self.
In October 2018, Mr Jellyman telephoned Officer Self and asked that the QPS revisit its investigation of Mr Mergard’s complaint. Officer Self asked Mr Jellyman to provide him with the material to support Mr Mergard’s complaint.
On 25 October 2018, Officer Self received a letter from Mills Oakley signed by Mr Cliff. The letter asserted that Mr Brookfield had committed serious offences which should be investigated by the QPS. The possible offences identified in the letter included perjury, forgery, making false statements, attempted fraud, stalking, theft and using a carriage service to menace, harass or cause offence. Along with the letter, Mills Oakley sent two folders of supporting documents.
Officer Self tasked Detective Senior Constable David May with reviewing the material contained in the two folders provided by Mills Oakley to determine if any criminal conduct could be substantiated.
On 27 November 2018, Officer May completed a report on his review of the material provided by Mills Oakley. The report set out a timeline of events and an analysis of the possible offences. Officer May concluded that the material provided by Mills Oakley did not contain any evidence of criminality on Mr Brookfield’s part. He stated that it was clear that the matters raised by Mr Mergard were civil in nature and described Mr Mergard’s complaint to the QPS as vexatious.
Some time prior to 20 December 2018, Officer May had a telephone conversation with Mr Jellyman and informed him that the QPS had decided not to further investigate Mr Mergard’s complaint against Mr Brookfield. On 20 December 2018, Mr Jellyman sent an email to Officer May requesting that Officer May provide written confirmation of that decision.
Officer May replied to Mr Jellyman’s email later the same day. He stated that the investigation of Mr Mergard’s complaint had been finalised after a detailed and thorough review. He said that the material provided by Mills Oakley was not sufficient to found a prima facie case for a criminal prosecution of Mr Brookfield.
On 10 January 2019, Mr Jellyman sent an email to Officer Self requesting that he provide the QPS file number for Mr Mergard’s complaint. Mr Jellyman expressed difficulty comprehending the reluctance of the QPS to enforce the law against stalking in respect of Mr Brookfield’s conduct. He said he was seeking the QPS file number to enable Mills Oakley to advise Mr Mergard on possible courses of redress open to them in respect of his complaint.
On the same day he received Mr Jellyman’s email, Officer Self read the report that Officer May had prepared following his review of the two folders of material provided by Mills Oakley. Officer Self accepted the conclusions which Officer May had set out in his report. Officer Self did not review the individual documents contained in the two folders provided by Mills Oakley because he had delegated that task to Officer May.
Officer Self then sent an email to Mr Jellyman on 10 January 2019, stating that there was insufficient evidence to consider laying a charge of stalking. He also explained his reasons for agreeing with Officer May’s conclusion that there was insufficient evidence to proceed against Mr Brookfield in respect of any of the other offences previously identified by Mills Oakley. Officer Self concluded his email with the following summary:
“In my view as a Senior Investigator, this matter appears to be a ‘tit for tat’ type scenario. Both parties are attempting to commence legal action of any type, against each other, for minor issues, to gain some advantage or leverage. There is insufficient evidence to prove any offence beyond a reasonable doubt which is the standard which police investigations are held. A large volume of irrelevant material does not constitute evidence that would be considered by a court. I am satisfied with the review conducted by DSC MAY and concur with his findings that there is insufficient evidence for these allegations to proceed further.
I recommend that any further legal avenues be considered in the civil courts.”
Mr Jellyman replied to Officer Self, requesting the file number for the two folders of material which Mills Oakley had provided. He said that Officer Self would understand the file numbers and the folders of material may be needed for reference by others should Mr Mergard not be satisfied with Officer Self’s response and the actions taken by the QPS under Officer Self’s guidance.
In response, Officer Self sent an email to Mr Jellyman stating that the folders of material would be returned to Mills Oakley because they were not considered evidence. He informed Mr Jellyman that he would be happy to review any further material which constituted evidence that would be acceptable to a criminal court.
On 25 March 2019, Mr Mergard sent an email to Officer Cameron referring to Officer Self’s decision not to further investigate his complaint against Mr Brookfield and requesting a meeting with Officer Cameron for the purpose of showing him the documents previously provided by Mills Oakley to Officer Self and subsequently returned.
Officer Cameron forwarded Mr Mergard’s email to Officer Bishop, as Officer in Charge of Bundaberg CIB. In turn, Officer Bishop forwarded the email to Officer Self asking whether there was anything new to the information and requesting that Officer Self respond to Mr Mergard’s solicitor. Officer Self replied to Officer Bishop, confirming that there was no new information. He had had extensive dealings with Mr Mergard’s solicitor regarding the complaint, but Mr Mergard refused to accept the finding.
On 28 March 2019, Officer Self sent an email to Mr Jellyman asking if he still represented Mr Mergard. He received a reply from Alison O’Connell informing him that Mr Jellyman no longer worked at Mills Oakley and that all future correspondence should be addressed to her and to Mr Cliff.
On 29 March 2019, Officer Self sent an email to Ms O’Connell in which he referred to Mr Mergard’s recent email to Officer Cameron on 25 March 2019 and to his email to Mr Jellyman on 10 January 2019 notifying his decision on the stalking complaint. He stated that the position set out in his email to Mr Jellyman had not changed.
On 3 May 2019, Ms O’Connell sent an email to Officer Self in which she stated that the matters identified in the Mills Oakley letter dated 25 October 2018 and the accompanying folders of material constituted a fresh complaint about Mr Brookfield. She requested that Officer Self provide the QPS file number for that fresh complaint. Ms O’Connell also attached an affidavit of Mr Mergard which had recently been filed in Federal Court proceedings. Ms O’Connell stated that the exhibits to that affidavit demonstrated the threats and harassment which Mr Mergard had been subjected to by Mr Brookfield up to 23 April 2019.
Officer Self replied to Ms O’Connell on 7 May 2019 in which he said (among other things) that the affidavit of Mr Mergard appeared to be a scan of the material in the two folders previously provided by Mills Oakley and later returned.
On 8 May 2019, Ms O’Connell sent an email to Officer Self addressing the points he had raised in his email the previous day. She stated that the affidavit of Mr Mergard which she had attached to her email of 3 May 2019 did not simply reproduce the material in the two folders previously provided by Mills Oakley. She also attached further messages and posts by Mr Brookfield which she asked Officer Self to consider.
Officer Self and Ms O’Connell then continued to exchange email correspondence in which Ms O’Connell pressed Officer Self about the prospect of Mr Brookfield being charged with a criminal offence.
On 14 May 2019, Officer Self sent an email to Ms O’Connell. He said he had spent the previous few days going through the documents which Ms O’Connell had provided and reviewing them, apparently for the first time, in chronological order. He said he would consider the offence of stalking but would also look at a possible offence under s 119B of the Criminal Code which addressed intimidation of a witness. He asked Ms O’Connell to notify him of Mr Brookfield’s next court appearance in the civil proceedings and to provide a list of all court dates involving Mr Brookfield and Mr Mergard. In a further email sent on 15 May 2019, Officer Self explained to Ms O’Connell that emails or Facebook posts which Mr Brookfield sent or published immediately prior to a court hearing might constitute evidence of intimidating a witness. After Ms O’Connell informed Officer Self that Mr and Mrs Mergard had not been present at any of the earlier hearings in the civil proceedings, Officer Self said that he would not look further at the offence of intimidating a witness.
After further email correspondence between Officer Self and Ms O’Connell, Mr Mergard attended the Bundaberg police station with Ms O’Connell on 22 May 2019, to meet with Officer Self and provide further information in respect of the complaint about Mr Brookfield. During that meeting, Officer Self commenced taking a statement from Mr Mergard in support of his complaint. There was not enough time to complete that statement at the meeting and Mr Mergard had to return to finalise it at a later date. Ms O’Connell asked that she be provided with a copy of the statement to check it before it was signed by Mr Mergard.
At the meeting, Ms O’Connell provided Officer Self with two folders of material in what appeared to Officer Self to be the same folders that had previously been provided in October 2018. However, Officer Self did not know if any material had been added to those folders. The material in the two folders comprised 802 pages. Ms O’Connell also provided Officer Self with copies of Facebook posts, emails and text messages which he had not seen before. Ms O’Connell told Officer Self that Mr Mergard had a hard drive containing further relevant material and that she would arrange for Mr Mergard to deliver a copy of that hard drive to Officer Self.
Ms O’Connell told Officer Self that Mr Mergard’s wife, Katrina Mergard, also wished to make a complaint about Mr Brookfield. Officer Self telephoned Mrs Mergard to confirm that she was also making a complaint. Officer Self asked Mrs Mergard to explain her version of events over the telephone. Mrs Mergard subsequently attended Bundaberg police station and Officer Self took a statement from her in support of her complaint.
After the meeting on 22 May 2019, Mr Mergard attended the Bundaberg police station and provided Officer Self with the hard drive which had been discussed at the meeting. Officer Self reviewed that hard drive and found that it contained numerous emails, text messages, Facebook posts and other material which appeared to Officer Self to have been created by Mr Brookfield. Officer Self copied the relevant material and downloaded it onto a QPS hard drive before returning the original hard drive to Mr Mergard. The material which Officer Self downloaded onto the QPS hard drive comprised 2,256 pages.
Officer Self printed out approximately 50 documents from the material he had downloaded onto the QPS hard drive for the purpose of referring to those documents if Mr Brookfield agreed to be interviewed about the matters raised by Mr Mergard’s complaint.
Between 22 May 2019 and 25 May 2019, Officer Self reviewed the documents downloaded onto the QPS hard drive and the statements he had taken from Mr Mergard and Mrs Mergard. I accept Officer Self’s evidence that it was after reviewing this material that the volume, content and frequency of Mr Brookfield’s communications became apparent to him, and he formed the view that there was sufficient evidence to arrest Mr Brookfield and charge him with the offences of stalking and using a carriage service to menace, harass or cause offence to Mr Mergard and Mrs Mergard.
Fraud investigation
On 8 April 2019, a Mr Carlisle made a complaint to the QPS that Mr Brookfield had advertised a motor vehicle for sale on Gumtree when he did not have title to the vehicle. Mr Carlisle claimed that (at Mr Brookfield’s direction) he had transferred money into a bank account in the name of “Lady Musgrave Eco Tours & Reef Cruises” as payment for the vehicle, but that Mr Brookfield had failed to transfer ownership of the vehicle.
On 15 May 2019, Officer May was tasked with investigating the fraud complaint against Mr Brookfield.
Arrest of Mr Brookfield on 25 May 2019
At approximately 11:05 am on 25 May 2019, Officer Self attended Mr Brookfield’s residence with two other QPS officers. An audio recording of what occurred was captured on Officer Self’s electronic recording device.
After introducing himself, Officer Self explained that he wished to speak to Mr Brookfield about a complaint made by Mr Mergard. He asked whether Mr Brookfield would go to the station for that purpose. Mr Brookfield indicated that it would be more convenient for him to attend the station on another day. Officer Self then explained that if Mr Brookfield did not come to the station voluntarily, he would be arrested.
Mr Brookfield expressed surprise when Officer Self told him that the complaint was about using a telecommunications device to threaten or menace, and stalking. He said that he had not communicated with Mr Mergard for more than five months and the Bundaberg police station had already dealt with Mr Mergard’s complaint. Officer Self explained that a fresh complaint had been made to the QPS.
Officer Self then informed Mr Brookfield that he intended to seize any mobile phone or computer in Mr Brookfield’s possession. Officer Self explained that, as he did not have a warrant to seize those items, Mr Brookfield had the choice to either consent to provide those items or Officer Self would arrest him and hold him in the watchhouse while he obtained a warrant. Mr Brookfield eventually agreed to provide his mobile phone and computer to Officer Self. Officer Self informed Mr Brookfield that he could withdraw his consent to the QPS officers taking those items at any time.
Before Mr Brookfield left his residence with the QPS officers, Officer Self told him that he had not been arrested. Officer Self asked if Mr Brookfield wanted to drive to Bundaberg police station and meet the officers there. Mr Brookfield said he was happy to go in the QPS vehicle with Officer Self and the other officers. Officer Self cautioned Mr Brookfield before he got into the QPS vehicle and explained his right to silence. Officer Self suggested to Mr Brookfield that he would be better off not talking during the drive. As they drove to the Bundaberg police station, Officer Self asked Mr Brookfield to confirm that he was in custody voluntarily. Mr Brookfield confirmed that to be the case.
Once at the Bundaberg police station, Officer Self explained that the complaint was about Mr Brookfield sending emails and text messages, and publishing social media posts, from 2016 up to as recently as April 2019, which were threatening, menacing, or harassing towards Mr and Mrs Mergard, including communications about Real Estate Now Pty Ltd and the 1770 Reef business. He informed Mr Brookfield he was investigating the offences of stalking and using a telecommunications device to menace. Officer Self repeated the caution he had previously given to Mr Brookfield about his right to silence, including his right to refuse to take part in an interview, and his right to have a lawyer present if he did take part in an interview. Mr Brookfield confirmed he was happy to take part in an interview and did not wish to contact a lawyer or anyone else.
Officer Self conducted an electronic record of interview with Mr Brookfield. A video and audio recording of that interview was captured on a QPS recording device.
At the commencement of the interview, Mr Brookfield again confirmed he understood that he was not under arrest and that he had come to the Bundaberg police station voluntarily in the QPS vehicle. Officer Self repeated the cautions he had previously given to Mr Brookfield a second time, and Mr Brookfield confirmed that he understood his rights.
During the interview, Mr Brookfield:
(a)described the history of his relationship with Mr Mergard, including his role in approaching Mr Mergard in June 2015 about the purchase of the rent roll from Blue Prop. He stated that he had attended on Mr Mergard with his friend, Ms Nightingale, to sign the contract for the sale of the rent roll. He stated that Mr Mergard failed to pay the purchase price for the rent roll within the 60-day period required by the contract. In late 2016, Ms Nightingale caused Blue Prop to assign the debt owed by Real Estate Now under the contract to Mr Brookfield. Mr Brookfield then immediately commenced proceedings to recover the debt from Real Estate Now;
(b)provided his mobile phone number and email address to Officer Self and confirmed that he was the only person who used that number and that email address;
(c)confirmed that he had created a Facebook profile under the name “1770reef”, which he knew to be the name of the business operated by Mr and Mrs Mergard, but stated that he had since removed that profile;
(d)agreed that he had sent the emails and text messages, and published the Facebook posts, that were the subject of Mr Mergard’s complaint.
The emails which Officer Self referred to during the interview were sent to Mr and Mrs Mergard, Rhonda Hansen (who Mr Brookfield identified as being Mr Mergard’s office manager and a director of Real Estate Now), Katherine Reid (who Mr Brookfield identified as having previously been married to Mr Mergard’s brother and as having used her position at Bundaberg Burnett Tourism Board to promote Mr Mergard’s 1770 Reef business over local Bundaberg tourism operators) and various other persons working for local government and the media.
Mr Brookfield described some of the emails he had sent as having gone over the top. He agreed he had been harsh and aggressive in the way he had gone after Mr Mergard. He did not accept, however, that the emails were harassing or menacing. He justified the aggressive nature of the emails on the basis that he and Ms Nightingale had been “conned” by Mr Mergard. He said Mr Mergard had a reputation of being a crook and that he deserved to be driven out of Bundaberg. He said he was angry at the way Mr Mergard had behaved in connection with the sale of the rent roll.
Officer Self asked Mr Brookfield about an email which he sent to Mrs Mergard on 22 July 2016. Mr Brookfield agreed he sent the email, and that it referred to Mr Mergard cheating on Mrs Mergard. The email also stated that Mr Mergard’s conduct would see Mrs Mergard lose her home, cars, and everything of value as Mr Mergard had tried to “rip off” the wrong person. When Officer Self asked what the allegation of cheating had to do with the commercial dispute, Mr Brookfield justified it on the basis that he was explaining the big picture to Mrs Mergard in circumstances where Mr Mergard had a history of marital infidelity. Mr Brookfield said most people would wish to know if their spouse was cheating but accepted that Mr Mergard would find such communications harassing.
Mr Brookfield said he had sent such a large volume of emails to Mr and Mrs Mergard because he was very angry with them; he was getting stuck into them. He accepted that emails he sent to Mr and Mrs Mergard, and to other people, raised issues that had nothing to do with the dispute about the rent roll. To the extent Mr Brookfield had sent communications to people other than Mr and Mrs Mergard, he said they were people who had financial issues with Mr Mergard. He claimed he had acted in the public interest to prevent Mr Mergard from “ripping off” other people.
Officer Self referred Mr Brookfield to an email he sent to Mrs Mergard and others on 15 November 2016. It stated that Mr Mergard’s days as a local business were numbered. It also stated that Mr Mergard had chosen the wrong person to lie to and rip off and that he would pay dearly for his deceit. Mr Brookfield denied that this statement could be considered threatening. He said it was a statement of fact.
Mr Brookfield described an email he sent to Mrs Mergard and Ms Hansen on 30 November 2016, referring to Mr Mergard’s stupidity for sourcing a boat which would not be allowed to take passengers to Lady Musgrave Island, as a smart-arse comment. He said his conduct in sending emails like that was not professional and a waste of time, but denied the email was harassing.
Officer Self referred Mr Brookfield to an email he had sent to Mrs Mergard on 8 December 2016, stating she needed to get herself a lawyer as she would end up losing everything. Mr Brookfield said he was simply putting Mrs Mergard on notice so that she could get some independent advice rather than believing what Mr Mergard was telling her. Mr Brookfield agreed he had commenced legal proceedings by the time he sent that email.
Mr Brookfield accepted he should not have sent some of the emails. He sent them because he was angry at Mr Mergard, who he knew to be a “lying crook”. He said he ceased sending those sorts of communications after he had been spoken to by someone from Bundaberg CIB. I infer this was a reference to his discussion with Officer Murray (see [8] to [13] above). He said that since that discussion, the only communications he had sent were approximately six emails to Real Estate Now related to the civil proceedings.
Officer Self then asked Mr Brookfield about Facebook posts which he had published under the 1770reef profile and his own personal profile. Those posts criticised the Mergards’ tour business, described Mr Mergard as a criminal, referred to a forthcoming prosecution of Mr Mergard by the Office of Fair Trading and to forthcoming liquidation proceedings against him. Mr Brookfield said he published those posts in the public interest because Mr Mergard was trying to raise money.
At the conclusion of the interview, Mr Brookfield said he was satisfied with the way the interview had been conducted and the way he had been treated by the QPS. He described that treatment as being very professional.
Once the interview had been completed, Officer Self arrested Mr Brookfield for the offence of stalking. He took him to the watchhouse so that he could be charged and released on bail conditions. Officer Self charged Mr Brookfield with the following offences:
(a)using a carriage service to menace, harass or cause offence under s 474.17(1) of the Commonwealth Criminal Code, with the particulars of the charge being that between 20 January 2016 and 30 April 2019 he used email, internet and text message service in such a way that reasonable persons would regard that use as being menacing, harassing or offensive;
(b)unlawful stalking under s 359E(1) of the Criminal Code, with the particulars of the charge being that he unlawfully stalked Mr Mergard between 1 January 2015 and 25 May 2019;
(c)unlawful stalking under s 359E(1) of the Criminal Code, with the particulars of the charge being that he unlawfully stalked Mr Mergard between 1 January 2015 and 25 May 2019.
An audio recording of what occurred after the interview had finished and Mr Brookfield was taken to the watchhouse was captured on Officer Self’s electronic recording device.
Officer Self informed Mr Brookfield that, in his view, there was sufficient evidence to charge Mr Brookfield with stalking because (as Mr Brookfield had accepted during the interview) some of his emails went too far. He explained that Mr Brookfield would be released on bail conditions which prohibited him from having any contact with Mr Mergard, or approaching within a specified distance of him unless for the purpose of attending court for civil proceedings. Officer Self informed Mr Brookfield that if he posted anything on Facebook about Mr Mergard or Mrs Mergard, sent any email or text messages, or approached Mr Mergard or Mrs Mergard then he would breach his bail.
In response to a question from Mr Brookfield about why he had not been charged when Officer Murray had spoken to him about the communications the previous year, Officer Self explained that a fresh complaint had been made and that new material had been provided which Officer Self did not believe had been provided to the QPS previously.
Officer Self then told Mr Brookfield that Officer May wished to speak to him about another matter. Officer May located Mr Brookfield in the watchhouse and explained the substance of the fraud complaint which had been made by Mr Carlisle. I accept Officer May’s evidence that he asked Mr Brookfield if he was willing to take part in a recorded interview in relation to the fraud complaint, but that Mr Brookfield declined to be interviewed about that complaint. Officer May then charged Mr Brookfield with the offence of Fraud – Dishonestly gain benefit/advantage under s 408C(1)(d) of the Criminal Code.
Mr Brookfield was then released on bail on all four charges. As had been foreshadowed by Officer Self, one of the bail conditions imposed on Mr Brookfield prohibited him from approaching or being within 50 metres of Mr Mergard or Mrs Mergard “unless for the purpose of attending court”.
Evidence of charges against Mr Brookfield used in Federal Court proceedings
On 26 May 2019, Officer Self sent an email to Ms O’Connell which:
(a)informed Ms O’Connell that he would be on leave for a month from the following day;
(b)asked if Mr Mergard’s statement could be updated to include the effect that Mr Brookfield’s communications and the civil proceedings were having upon Mr Mergard’s business interests, finances, health and mental state;
(c)informed Ms O’Connell of the three offences which Mr Brookfield had been charged with the previous day;
(d)notified Ms O’Connell of the bail conditions imposed on Mr Brookfield and said she could report any breach of those bail conditions on the policelink telephone service;
(e)set out a summary of facts which the email stated would be “read to the court if and after the defendant is found guilty.” The email also stated that the summary of facts might be edited after plea negotiations.
On 5 June 2019, an application by Mr Brookfield to wind up Real Estate Now was heard by Justice Derrington in the Federal Court of Australia. In opposing that application, Real Estate Now relied on Officer Self’s email to Ms O’Connell in support of a submission that the winding up application should be dismissed as an abuse of process. Justice Derrington’s decision dismissing the winding up application contained the following passage:[1]
“[45] [Real Estate Now] also sought to support its claim that the winding up application was part of a concerted and orchestrated scheme of intimidation by Mr Brookfield, by adducing evidence of a series of emails, texts and internet posts which Mr Brookfield had sent or uploaded to the internet. [Real Estate Now] also relied on an email from an officer of the Queensland Police Service in relation to charges which have been preferred against Mr Brookfield. The two matters appear to be related. As mentioned above, to the extent to which it is possible to ascertain, the internet posts and emails appear to have been sent or posted in the period between 2015 and 2017. For reasons which are not immediately clear, the Queensland Police appear to have only now sought to charge Mr Brookfield with various offences relating to the misuse of a carriage service and stalking. That said, the correspondence produced might suggest that the charging has occurred as a result of the intervention of the company’s solicitors. On 26 May 2019, a person described as Andrew Self, Detective Acting Senior Sergeant of the Bundaberg Criminal Investigation Branch, sent an email to the solicitors acting for [Real Estate Now] and Mr Mergard. It has Mr Self’s official Queensland Police footer on it. The purpose of the email is not immediately apparent but it has the appearance of a statement purportedly setting out the conduct of the police investigation, the arrest of Mr Brookfield and the bail conditions. Mr Self identifies a number of charges which he says are brought against Mr Brookfield. The statement of the offences are remarkable for the lack of any reference to the dates on which the alleged offences occurred. That is important, as the email of Mr Self was sent only a few days prior to the hearing of this application and, it might seem, to assist [Real Estate Now] and Mr Mergard in this litigation. One must wonder why, if the harassment occurred or at least commenced a number of years ago, the police have only recently arrested Mr Brookfield and why full details of police operations and the manner of the investigation were disclosed as they were. Given the historical practice of police forces in Australia not to disclose their methods of investigation and processes it is a remarkable document indeed. Even disclosing to alleged victims of crime the conduct of investigations and the steps taken to prosecute could not be thought to be common amongst police forces.
[46] Given the long history of hostilities between the parties I pay little attention to the unsworn allegations made by Mr Self in his email. Regardless of what the circumstances are in the present case, it would be a matter of great regret to find that members of the police force would involve themselves in assisting particular parties in civil litigation. Not in the least is that it tends to undermine the confidence that the public might have that the police undertake their tasks in an unbiased and dispassionate manner.
[47] The arrest of Mr Brookfield shortly before the hearing gives cause for concern. It may well have been coincidental. If, however, there was evidence that it had been arranged for the purposes of this matter, reference to the proper authorities would be required. Fortunately, there is no such evidence.”
[1]Brookfield v Real Estate Now Pty Ltd (2019) 137 ACSR 641, 653-654 [45]-[47].
Arrest of Mr Brookfield for breach of bail
On 17 June 2019, Mr Mergard was to appear at the Bundaberg Magistrates Court in a prosecution brought against him by the Office of Fair Trading. Ms O’Connell was present in the courtroom instructing counsel who appeared for Mr Mergard.
When that matter was called on before Magistrate Duroux, Mr Mergard’s counsel said the following:
“There is a gentleman in the back of the court who is charged with two counts of stalking and menacing – using a carriage service to cause threats – the offence under the Crimes Act. Again – and with Mr Mergard as the complainant in relation to those matters. He has bail conditions that prevent him from being within 50 metres of Mr Mergard. Despite that, he has chosen in violation of those bail conditions to attend the court hearing this morning. That’s Mr Brookfield ---"
Magistrate Duroux responded by saying to those present:
“If there’s somebody in my court who’s in the – presently committing an offence, I advise you very quickly desist and remove yourself very quickly, otherwise I’ll be calling police over here to investigate a possible breach of bail. I don’t know anything about it. I really don’t know, and I don’t care. I’m just putting people on notice that if that is an issue, and if there is a bail condition, there might be an issue – I’m not going to take it any further at this stage.”
Mr Mergard’s counsel indicated to Magistrate Duroux that the police had already been contacted. The matter was then adjourned for a short period. When it resumed, Mr Mergard’s counsel complained to Magistrate Duroux that Mr Brookfield had not left the court building. Magistrate Duroux stated that his jurisdiction was limited to the courtroom and suggested that police should be called. During that exchange, Magistrate Duroux made the following statement:
“… Do I think that – if there’s a bail condition there, do I think it’s a live issue? You bet I do. Do I think that – do I think it’s sort of – well, someone’s here and they shouldn’t be here – intimidation – call it what you will.
…
In my view, police should be called, and police should be brought over here urgently. I don’t know whether you can – the sergeant up the back can give you some assistance ---”
The person referred to by Magistrate Duroux as “the sergeant up the back” was Sergeant Dean Burgess who was conducting prosecutions for the QPS at the Bundaberg Magistrates Court that day and was present in the courtroom when Magistrate Duroux made the statement extracted in the preceding paragraph. Magistrate Duroux then engaged in a discussion with Officer Burgess and indicated that he did not have any issue with a person being arrested in the court building. Officer Burgess then spoke to Mr Mergard’s counsel.
In addition to having counsel raise Mr Brookfield’s presence in the courtroom with Magistrate Duroux, Ms O’Connell telephoned Officer Self and told him that she thought Mr Brookfield was breaching his bail conditions by being present in the courtroom. Officer Self, who was not working that day, told Ms O’Connell to tell the QPS prosecutor on duty that day about her concern.
Officer Self then spoke to Officer Burgess on the telephone. Officer Burgess does not have any specific recollection of what was said during that telephone call. I address Officer Self’s evidence later in these reasons.
Officer Burgess’ evidence was that, after speaking with Mr Mergard’s counsel and Officer Self, he understood that Mr Brookfield:[2]
(a)was subject to a bail condition that he not approach within 50 metres of Mr Mergard unless it was for a court purpose;
(b)was not involved in any court matter that day;
(c)had come within 50 metres of Mr Mergard without a court purpose and was therefore in breach of his bail conditions.
[2]Exhibit 28, [13].
Officer Burgess telephoned Senior Constable Michael Sellars at the Bundaberg police station and told him that there was a person at the court building in breach of bail conditions. Officer Burgess asked Officer Sellars to come to the court building to transport the person to the watchhouse.
Officer Burgess then spoke to a person outside the courtroom who confirmed that he was Mr Brookfield. After a brief discussion, Officer Burgess informed Mr Brookfield that he was under arrest for having breached his bail conditions. Officer Burgess then took Mr Brookfield to the holding cells in the court building.
Officer Sellars arrived at the court building, with Constable Lucy Buchanan, while Officer Burgess was speaking with Mr Brookfield. Officer Sellars heard Officer Burgess tell Mr Brookfield that he was under arrest for breaching his bail conditions and observed Officer Burgess escort Mr Brookfield to the back of the court building.
Officer Sellars’ evidence was that Officer Burgess told him:[3]
(a)the person he had arrested was Mr Brookfield;
(b)Mr Brookfield was not allowed to be within 50 metres of Mr Mergard unless he was attending court;
(c)he had checked with court staff and they had advised him that Mr Brookfield had no matters before the Court and was not required to be at the court building that day;
(d)Mr Brookfield had gone within 50 metres of Mr Mergard.
[3]Exhibit 29, [9] and [16].
Officer Sellars and Officer Buchanan then took Mr Brookfield from the holding cells and transported him to the watchhouse. Mr Brookfield told Officer Sellars that he had a lawful purpose for attending the court building that day but did not provide any further information to support that statement.
Officer Sellars then undertook checks on QPRIME which indicated that one of Mr Brookfield’s bail conditions required that he not be within 50 metres of Mr Mergard unless for the purposes of attending court. After conducting these checks, Officer Sellars charged Mr Brookfield with having breached a condition of his bail undertaking. Mr Brookfield was then released from custody on his own undertaking.
Dismissal of the fraud charge
On 5 July 2019, Officer May was tasked with preparing a brief of evidence in relation to the fraud charge he had laid against Mr Brookfield. He then attempted to obtain a formal statement from Mr Carlisle.
Sometime before 30 August 2019, Mr Carlisle telephoned Officer May and advised him that the money he had paid as a deposit for the vehicle had been returned to him. Mr Carlisle did not wish to continue with the prosecution of the fraud charge against Mr Brookfield.
In preparing the brief of evidence, Officer May also identified a deficiency in the prosecution case which was not apparent to him when he laid the fraud charge. After reviewing data obtained from Mr Brookfield’s mobile phone, Officer May discovered that Mr Brookfield had not always been present in Queensland when he dealt with Mr Carlisle. This raised a jurisdictional issue with respect to the fraud charge.
Given Mr Carlisle’s position, the fact that the money Mr Carlisle had paid at Mr Brookfield’s direction had been returned and the jurisdictional issue with the charge, Officer May decided that it was no longer in the public interest to proceed with the prosecution of Mr Brookfield for the fraud charge. Officer May requested that the charge be withdrawn. That request was approved by Officer Bishop.
On 30 August 2019, the fraud charge was dismissed in the Bundaberg Magistrates Court with no evidence having been offered.
Dismissal of the breach of bail charge
On 9 August 2019, Officer Sellars prepared a brief of evidence in relation to the breach of bail charge and submitted it to the Bundaberg Brief Manager for QPS prosecutions. Officer Sellars later supplemented the brief of evidence with statements he obtained from Mr Mergard and Officer Burgess, as well as the transcript of proceedings before Magistrate Duroux.
On 17 September 2020, the breach of bail charge was dismissed in the Bundaberg Magistrates Court with no evidence having been offered. The reason that course was taken was explained in evidence given by Sergeant Grant Klaassen, the QPS prosecutor responsible for prosecuting the breach of bail charge, who was called as a witness by Mr Brookfield.
Officer Klaassen made the decision not to proceed with the prosecution, and to formally offer no evidence in relation to the charge, based upon his consideration of the sufficiency of the evidence and the public interest. Officer Klassen considered that the wording of the bail condition which Mr Brookfield was alleged to have breached could be interpreted as permitting Mr Brookfield to attend court for any purpose, not only for matters to which he was a party. On that basis, Officer Klaassen concluded that it was not in the public interest to continue to prosecute the breach of bail charge.
Arrest of Mr Brookfield for failure to appear
On 27 January 2021, Mr Brookfield attended the Bundaberg police station and spoke to Sergeant Timothy Lowth. Mr Brookfield advised Officer Lowth that he had been to the Bundaberg courthouse that day and court staff had told him that he was wanted on a warrant for having failed to appear on an earlier date. The court staff had told him that he needed to go to the police station to rectify the problem.
Officer Lowth conducted checks on QPRIME and confirmed that a warrant had been issued following Mr Brookfield’s failure to appear in the Bundaberg Magistrates Court on 21 January 2021 in relation to a variety of maritime safety offences.
Officer Lowth arrested Mr Brookfield and took him to the watchhouse to be charged. Mr Brookfield was placed in a holding cell while Officer Lowth completed the relevant paperwork. Officer Lowth then charged Mr Brookfield with failure to appear in accordance with the undertaking he provided when released on bail for the maritime safety offences. Mr Brookfield was then released from custody on his own undertaking.
On 15 June 2021, Mr Brookfield was found guilty in the Bundaberg Magistrates Court on the failure to appear charge. He was sentenced to no further punishment and no conviction was recorded.
Progress of the prosecution of the carriage service and stalking charges
By about 30 August 2019, Officer Self had completed a brief of evidence in relation to the carriage service charge and the stalking charges.
On 12 February 2020, Mr Brookfield applied to the Bundaberg Magistrates Court to exclude evidence obtained from his mobile phone from the trial of the carriage service charge and the stalking charges. Officer Self gave evidence on the hearing of that application and was cross-examined by Mr Brookfield about the basis for the change in position from January 2019 (when Officer Self agreed with Officer May’s assessment that Mr Mergard’s complaint was a civil matter – see [24] to [28] above) to Mr Brookfield being charged with stalking on 25 May 2019. During that cross-examination, Officer Self explained that he made his assessment that there was evidence of criminal offending by Mr Brookfield after Ms O’Connell provided him with documents, and Mr Mergard provided him with the hard drive which contained a large volume of material which Officer Self had not seen before. He further explained that all this material had been provided to Mr Brookfield in the brief of evidence in relation to the carriage service charge and the stalking charges.
At the conclusion of the hearing that day, Officer Klaassen informed Magistrate Duroux he had been instructed to seek a further bail condition which would prevent Mr Brookfield from making any further applications or commencing any civil proceedings against Mr Mergard or his family or business interests without the leave of a magistrate. Magistrate Duroux expressed concern about imposing such a condition which would have the effect of preventing Mr Brookfield from seeking to exercise his legal rights in respect of his civil dispute with Mr Mergard. Given that concern, Officer Klaassen did not press the application to add a further bail condition.
On 27 October 2021, the committal hearing for the carriage service charge and the stalking charges was conducted in the Bundaberg Magistrates Court. Acting Magistrate Milburn concluded that the evidence offered in support of those charges was not capable of supporting a guilty verdict on any of the charges. All three charges were dismissed. After addressing aspects of the civil dispute between Mr Brookfield and the Mergards, including the decision of Justice Derrington referred to in [72] above, Acting Magistrate Milburn described the evidence of Mr Brookfield’s communications as follows:
“In terms of the actual communications that were referred to by Justice Derrington, and considered by me as part of the overall brief, I do categorise them as robust, and to some eyes, potentially rude. But at no stage do they reach the level where a properly instructed jury could reasonably consider that they are menacing, harassing or offensive, or in relation to the charge of stalking, of a nature of [sic] kind to constitute the stalking charge.
The matter has not, in my view, become personal. This is not a typical allegation of stalking. And, in my view, the communications, albeit robust and numerous, relate to commercial matters. But commercial communications are robust. They are meant to be decisive, and to some degree, tough. It is not uncommon for communication of open court civil matters to be reported elsewhere beyond the court. There is no evidence of any privilege attaching to any communications. The specific details and digital communications were no [sic], in my view, sufficient to warrant the matter proceeding as a criminal charge.
In my view there are substantial remedies [sic] in the Crown case that cannot be remedied. In those circumstances, I have formed the view that there is not sufficient evidence, even evidence that is tenuous or inherently weak or vague, to justify committing the defendant upon trial for any one of the three charges.”
Further complaint by Mr Mergard
On about 5 July 2021, Mr Mergard attended the Bundaberg police station and provided Officer Self with copies of affidavits which Mr Brookfield had sworn in proceedings relating to the disputed debt. Mr Brookfield had previously sworn that Mr Mergard did not sign the contract for the sale of the rent roll by Blue Prop to Real Estate Now. Mr Mergard complained that Mr Brookfield’s position had changed and that he had sworn a subsequent affidavit which exhibited a copy of the contract for the sale of the rent roll which had a signature which purported to be that of Mr Mergard. Mr Mergard said he had not signed that contract and complained that Mr Brookfield had forged his signature on the copy of the contract which he was then relying upon in his claim to recover the debt from Real Estate Now.
On 3 August 2021, Officer Self assigned the task of investigating this further complaint to another officer in the Bundaberg CIB, Detective Sergeant Zanco. At that time, Officer Bishop was on leave and Officer Self was acting in Officer Bishop’s position as Officer in Charge of Bundaberg CIB. It was in that role that Officer Self assigned the investigation of Mr Mergard’s complaint about the forgery of his signature to Officer Zanco.
By 17 August 2021, Officer Bishop had returned from leave. Upon his return, Officer Zanco informed Officer Bishop that she did not wish to undertake the investigation of Mr Mergard’s complaint about the forgery of his signature. Officer Zanco expressed concern that by undertaking that investigation she would become the subject of complaints by Mr Brookfield. By that stage Mr Brookfield had already made several complaints to the Crime and Corruption Commission and the Ethical Standards Command of the QPS about Officer Self’s conduct in investigating Mr Mergard’s previous complaints, and in laying the carriage service charge and the stalking charges. Officer Bishop shared Officer Zanco’s concerns. Officer Self and Officer Zanco were the only two detective sergeants in the Bundaberg CIB working underneath Officer Bishop. Officer Bishop determined that if the investigation of Mr Mergard’s forgery complaint was to result in further complaints by Mr Brookfield it would be better that only one of his detective sergeants, Officer Self, be the subject of such complaints. For that reason, and because of Officer Self’s existing knowledge of the dispute between Mr Brookfield and Mr Mergard, Officer Bishop decided to reallocate the task of investigating Mr Mergard’s forgery complaint from Officer Zanco to Officer Self.
Arrest of Mr Brookfield for forgery, uttering, perjury and attempted fraud
I turn now to consider the acts of the various officers.
Conduct of Officer Self on 25 May 2019
Officer Self’s request that Mr Brookfield provide his mobile telephone and computer to the QPS officers (see [49] above) was neither an invalid act nor an unauthorised act. I am satisfied that, notwithstanding Officer Self’s advice that if Mr Brookfield refused to provide those items he would be arrested and detained while a warrant was obtained, Mr Brookfield provided those items to Officer Self voluntarily. It is clear from the whole of the interaction between Officer Self and Mr Brookfield, prior to the conclusion of the interview on 25 May 2019, that Mr Brookfield was happy to provide those items because he considered he had nothing to hide.
Likewise, Officer Self’s request that Mr Brookfield accompany the officers to the police station and participate in an interview was neither an invalid act nor an unauthorised act. I have already explained at [128]-[130] above my reasons for concluding that Mr Brookfield went to the police station voluntarily and agreed to participate in the interview with Officer Self.
Finally, I have already explained my reasons for concluding that:
(a)Officer Self’s arrest of Mr Brookfield on 25 May 2019 was lawful;
(b)there was reasonable and probable cause for Officer Self to lay the charges he laid against Mr Brookfield upon his arrest;
(c)Officer Self did not act maliciously in laying those charges.
None of Officer Self’s actions on 25 May 2019 amounted to misfeasance in public office.
Conduct of Officer May on 25 May 2019
I have already explained my reasons for concluding that:
(a)Officer May’s arrest of Mr Brookfield on 25 May 2019 was lawful;
(b)there was reasonable and probable cause for Officer May to lay the fraud charge against Mr Brookfield;
(c)Officer May did not act maliciously in laying that charge.
None of Officer May’s actions on 25 May 2019 amounted to misfeasance in public office.
Conduct of Officer Self on 17 June 2019
I have not accepted the submission that Officer Self directed Officer Burgess to arrest Mr Brookfield and charge him with breach of bail. Instead, I have accepted that Officer Self conveyed what he had been told by Ms O’Connell to Officer Burgess but left it to Officer Burgess to deal with the breach of bail complaint.
Nothing which Officer Self did on 17 June 2019 could properly be described as an invalid or unauthorised act. Nor could Officer Self’s conduct in speaking to Ms O’Connell and Officer Burgess be regarded as malicious. That conduct did not amount to misfeasance in public office.
Conduct of Officer Burgess on 17 June 2019
I have already explained my reasons for concluding that Officer Burgess’ arrest of Mr Brookfield for breach of bail was lawful. On that basis, Officer Burgess’ conduct on 17 June 2019 did not amount to misfeasance in public office.
Conduct of Officer Sellars on 17 June 2019
I have already explained my reasons for concluding that there was reasonable and probable cause for Officer Sellars to charge Mr Brookfield with breach of bail on 17 June 2019, and that, in laying that charge, Officer Sellars did not act maliciously. On that basis, Officer Sellars’ conduct on 17 June 2019 did not amount to misfeasance in public office.
Conduct of Officer Self on 15 October 2021
I have already explained my reasons for concluding that:
(a)Officer Self’s arrest of Mr Brookfield on 15 October 2021 was lawful;
(b)there was reasonable and probable cause for Officer Self to lay the charges he laid against Mr Brookfield upon his arrest;
(c)Officer Self did not act maliciously in laying those charges.
Although I have agreed that Officer Self’s imposition of a bail condition which sought to prevent him from commencing any further civil proceedings against Mr Mergard and Real Estate Now was not appropriate, I have explained why I do not accept that Officer Self acted maliciously in imposing that bail condition. Even if I was satisfied that Officer Self had acted maliciously in imposing that bail condition, Mr Brookfield did not identify any harm which he suffered as a consequence of Officer Self’s conduct in imposing the bail condition, particularly in circumstances where Magistrate McGarvie removed that condition shortly after it had been imposed by Officer Self.
None of Officer Self’s actions on 15 October 2021 gave rise to an action for misfeasance in public office.
Conduct of Officer Bishop
In response to complaints Mr Brookfield made about his having been arrested and charged on the various occasions addressed above, Officer Bishop reviewed the conduct of Officer Self and the other officers. Mr Brookfield was unhappy with the outcome of those complaints. He cross-examined Officer Bishop about various factual errors which he had detected in reports Officer Bishop had prepared setting out his assessment of the complaints.
Although it can be accepted that Officer Bishop’s reports contained some factual errors, Mr Brookfield has not established that anything Officer Bishop did could be properly characterised as an invalid or unauthorised act, or that Officer Bishop acted maliciously. I am not satisfied that any of Officer Bishop’s actions amounted to misfeasance in public office.
Conclusion on the claim for misfeasance in public office
Mr Brookfield has not established that any conduct by any QPS officer gave rise to a cause of action for misfeasance in public office. That part of Mr Brookfield’s claim must be dismissed.
Perverting the course of justice
Mr Brookfield’s amended statement of claim identified the following matters as the basis for his claim in respect of conduct which, on his case, perverted the course of justice:
(a)Officer Self assisting Mills Oakley in the conduct of civil proceedings in the Federal Court (paragraphs 26, 33 and 131);
(b)Officer Self directing Officer Burgess to arrest and charge Mr Brookfield for breach of bail (paragraph 56);
(c)Officer Self’s imposition of a bail condition which sought to prevent Mr Brookfield from commencing any further civil proceedings against Mr Mergard and Real Estate Now (paragraphs 67 and 73).
Conduct by which a person attempts to pervert the course of justice constitutes a criminal offence.[124]
[124]Criminal Code, s 140.
Mr Brookfield did not identify the source of any private right of action for damages which is available to him in respect of conduct which might fall within the criminal offence of attempting to pervert the course of justice.
It might be argued that the claim could be framed as a claim for breach of statutory duty. If that is the way Mr Brookfield sought to frame this aspect of his claim, I would reject it.
In Young v Crime and Corruption Commission,[125] McMurdo JA (with whom Fraser and Morrison JJA agreed) said that more than a breach of a duty imposed by a statute is required for the existence of a right of action for damages for such breach. A right of action only exists where a statute imposes a duty for the protection or benefit of a particular class of persons, from which it can been seen that, upon its proper construction, the statute intends to provide a ground of civil liability when the breach of the duty causes injury or damage.
[125][2019] QCA 189, [18].
That requirement is not satisfied in respect of this aspect of Mr Brookfield’s claim. As Crow J observed in Dickson v Cubela,[126] the provisions of the Criminal Code do not give rise to any right of action which may form the basis of a claim for breach of statutory duty.
[126][2018] QSC 34, [11].
In any event, for the reasons already given, I accept the defendant’s submission that there is no evidence which could support a finding that any of the QPS officers who dealt with Mr Brookfield attempted to pervert the course of justice.
Intimidation
The elements of the tort of intimidation are:[127]
(a)the defendant must threaten to use unlawful means to compel the person threatened to obey the defendant’s demand;
(b)the person threatened must comply with that demand;
(c)the plaintiff must suffer damage as a consequence of that compliance; and
(d)the defendant must have acted with the intention of harming the plaintiff.
[127]Ballard v Multiplex [2012] NSWSC 426, [88]; Jack Brabham Engines Ltd v Beare [2010] FCA 872, [303].
As Jagot J explained in Jack Brabham Engines Ltd v Beare,[128] ill-considered actions, inflammatory words, unfortunate and inappropriate conduct do not constitute the tort of intimidation. To establish that the tort has occurred a plaintiff bears the onus of proving each element of the cause of action.
[128][2010] FCA 872, [304].
Mr Brookfield did not address his case to the elements of the tort.
The amended statement of claim pleaded the following conduct as acts of intimidation:
(a)Officer Self attending Mr Brookfield’s residence on a Saturday (25 May 2019) with two other officers who were armed, taking Mr Brookfield into custody and placing him in the watchhouse cells for several hours (paragraph 34);
(b)Officer Self arresting Mr Brookfield and laying charges against him on 25 May 2019 for matters which had previously been investigated by QPS officers with no findings made (paragraph 100);
(c)Officer May abusing and threatening Mr Brookfield in the watchhouse on 25 May 2019 and then charging him with fraud without any caution being given or any formal interview being conducted (paragraphs 41 and 101-104);
(d)the manner in which Officer May directed officers at the charge desk on 25 May 2019 to get Mr Brookfield back into the cells (paragraphs 42 and 101);
(e)Officer Self instructing that Mr Brookfield be arrested publicly at the courthouse on 17 June 2019 (paragraphs 53, 56 and 110);
(f)Officer Burgess taking Mr Brookfield into custody and marching him through the courthouse to be placed in the court cells on 17 June 2019 (paragraphs 57 and 109);
(g)Officer Sellars handcuffing Mr Brookfield and taking him to the Bundaberg police station in a marked police car on 17 June 2019 (paragraph 58).
The claim for damages must be dismissed because the findings I have made in considering the claims for false imprisonment and malicious prosecution mean I am not satisfied that any of the QPS officers acted unlawfully. The difficulty with this aspect of Mr Brookfield’s claim is, however, more fundamental.
Mr Brookfield’s pleading did not characterise any of the alleged acts of intimidations as a threat by the relevant QPS officer which was intended to compel Mr Brookfield to comply with a demand made by the officer. No demand was identified. Compliance with any demand was not pleaded. It was not alleged that any of the QPS officers had the intention of harming Mr Brookfield when they made a relevant threat. Nor was it alleged that Mr Brookfield suffered damage as a consequence of complying with any demand by a QPS officer (as distinct from the officers’ conduct in a general sense). Nor was there any evidence of any of those material facts.
The claim for intimidation must be dismissed.
Conspiracy
In Lee v Abedian,[129] Bond J (as his Honour then was) set out the following statement of the principles regarding the tort of conspiracy:
[129][2017] 1 Qd R 549, 567-568 [68]-[75] (citations omitted, underlining in original).
[68]There are two torts of conspiracy to injure – the first is a conspiracy to injure by lawful means and the second is a conspiracy to injure by unlawful means.
[69]The elements of the tort of conspiracy to injure by lawful means are:
(a) there was a combination or agreement between two or more persons;
(b)the sole or dominant purpose of the combination or agreement was to injure the plaintiff;
(c)the combination or agreement was carried into effect by the defendants’ conduct;
(d)the defendants’ conduct in carrying the combination or agreement into effect caused damage to the plaintiff.
[70]The elements of the tort of conspiracy to injure by unlawful means are:
(a)there was a combination or agreement between two or more persons to engage in conduct amounting to unlawful means;
(b)a purpose of that combination or agreement was to injure the plaintiff;
(c)the combination or agreement was carried into effect by the commission of the agreed unlawful acts; and
(d) those unlawful acts caused damage to the plaintiff.
[71]It can be seen that the two torts have in common the need to prove the conspiracy; that the conspiracy involved an intention to injure; that the conspiracy was carried into effect; and that so doing caused damage to the plaintiff. And it may also be observed in relation to both torts, that in a case based on a clandestine arrangement or arrangements between conspirators, a plaintiff, who can be expected to be unable to plead the terms of an express agreement in the usual way, must at the least be able to plead and particularise the overt acts it intends to rely on to justify the inference that the agreement on which it relies was in fact made as it alleges.
[72]There are three key distinctions between the two torts.
[73]The first lies in the prominence of the required purpose of injuring the plaintiff. Both torts require the plaintiff to prove that a purpose of the conspiracy was to injure the plaintiff. For a lawful means conspiracy, however, the plaintiff must prove that the purpose of injuring the plaintiff was the sole or predominant purpose of the conspiracy. That is not required for an unlawful means conspiracy where it will suffice for a plaintiff to prove that causing injury to the plaintiff was a purpose of the conspiracy.
[74]The second lies in the nature of the means agreed to be used to injure the plaintiff. For an unlawful means conspiracy, the plaintiff must prove that the combination or agreement was to engage in conduct which amounted to unlawful means. In other words, the unlawful means aspect must exist at the time the combination or agreement was made. That is not required for a lawful means conspiracy.
[75]The third lies in the nature of the means in fact used to carry the conspiracy into effect and cause injury to the plaintiff. For an unlawful means conspiracy, the plaintiff must prove that the conspiracy was carried into effect by commission of the agreed unlawful acts and those agreed unlawful acts caused damage to the plaintiff. That is not required for a lawful means conspiracy where the plaintiff does not have to show that it was the unlawful part of the conspiracy that caused loss to the plaintiff.
Mr Brookfield’s amended statement of claim identified the following matters as the basis for his claim for conspiracy:
(a)between 10 January 2019 and 25 May 2019, Officer Self conspired with solicitors from Mills Oakley to bring criminal charges against Mr Brookfield to assist Mr Mergard in civil proceedings (paragraphs 20-26);
(b)on 17 June 2019, Officer Self conspired with solicitors from Mills Oakley to have Mr Brookfield arrested for breach of bail (paragraphs55-56);
(c)between 6 October 2021 and 15 October 2021, Officer Self conspired with Mr Mergard to have Mr Brookfield arrested and charged in respect of matters already dealt with by the QPS and found to amount to a civil complaint (paragraphs 62-65).
As to the first of these allegations, there is no evidence of any agreement between Officer Self and Mr Mergard’s solicitors to the effect that criminal charges would be brought against Mr Brookfield with the intention of assisting Mr Mergard, and hindering Mr Brookfield, in civil proceedings. Nor am I prepared to draw an inference that such an agreement existed. Mr Mergard, through his solicitors, complained that Mr Brookfield’s conduct was criminal. Officer Self investigated that conduct and, notwithstanding the conclusion previously reached by Officer May and Officer Self previously having accepted that conclusion, formed the view that the material provided to the QPS warranted Mr Brookfield being arrested and charged. I have already found that the arrest of Mr Brookfield on 25 May 2019 was lawful and that there was reasonable and probable cause for bringing the charges which were laid against him on that occasion. I have also accepted that Officer Self did not send the email to Ms O’Connell on 26 May 2019 for the purpose of assisting Mr Mergard in opposing the application to wind up Real Estate Now. When Officer Self sent that email, he did not know it would be used in the winding up application (see [209]-[210] above).
As to the second allegation, there is no evidence that Officer Self agreed with Mr Mergard’s solicitors that he would cause Mr Brookfield to be arrested for breach of bail on 17 June 2019. Nor am I prepared to draw an inference that such an agreement existed. I have accepted Officer Self’s account of his telephone conversations with Ms O’Connell and Officer Burgess that morning. On that basis, I have already found that Officer Self did not direct Officer Burgess to arrest or charge Mr Brookfield for breach of bail (see [152]-[157] above). I have also found that the arrest of Mr Brookfield on 17 June 2019 was lawful and that there was reasonable and probable cause for him to be charged with breach of bail.
As to the third allegation, there is no evidence that Officer Self agreed with Mr Mergard that Mr Brookfield would be further charged with offences arising from his reliance on the rent roll agreement bearing Mr Mergard’s (allegedly forged) signature. Nor am I prepared to draw an inference that such an agreement existed. Officer Self’s attempt to allocate the investigation of Mr Mergard’s complaint about the allegedly forged signature to another QPS officer is inconsistent with the existence of any such agreement. As is the case with the first two allegations, I have already found that the arrest of Mr Brookfield on 15 October 2021 was lawful and that there was reasonable and probable cause for bringing the charges which were laid against him on that occasion.
In those circumstances, Mr Brookfield has failed to establish the elements of the tort of conspiracy. That part of his claim must be dismissed.
Conclusion on Mr Brookfield’s claims
For the reasons set out above, the amended claim filed on 21 July 2022 is dismissed.
I will hear the parties as to costs.
Brookfield v State of Queensland [2024] QSC 219
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