Hemwlaar v Joachim

[2011] QMC 25

MAGISTRATES COURTS OF QUEENSLAND

CITATION:

Hemwlaar v Joachim [2011] QMC 25

PARTIES:

RYAN HEMWLAAR

(complainant)

v

DAVID JOACHIM

(defendant)

FILE NO/S:

MAG60727/11(2)

DIVISION:

Magistrates Courts

PROCEEDING:

Application for complaint to be dismissed

ORIGINATING COURT:

Magistrates Court at Southport

DELIVERED ON:

10 June 2011

DELIVERED AT:

Southport

HEARING DATE:

3 June 2011

MAGISTRATE:

Kilner RG

ORDER:

Application dismissed

CATCHWORDS:

CRIMINAL LAW – PRACTICE AND PROCEDURE – application to strike out proceeding – abuse of process

Justices Act 1886 (Qld), s 102C

Goldsmith v Sperrings [1997] 1 WLR 498

Williams and Anor v Spautz [1992] 174 CLR 509

COUNSEL:

Complainant appeared on own behalf

P Van Griensven appeared for defendant

SOLICITORS:

1. An application has been brought by the Defendant to a private complaint asking that it be dismissed on the basis that it is an abuse of process. The application is brought pursuant to the Justices Act 1886 (Qld) s 102C.

2. The applicant relies almost solely on the ground of ‘abuse of process’. The issues of a complaint being dismissed because it is ‘frivolous’ or ‘vexatious’ were touched upon in submissions but not argued to any extent..

3. Put shortly the facts leading up to the private complaint being filed are that the complaint and a number of his colleagues were granted a permit by the Gold Coast City Council to interfere with a road, namely Cavill Mall, by using a public address system to preach a religious message.

4. During the course of preaching it is alleged by the complainant that members of his team were assaulted by Constable Joachim and that he, the complainant, was restrained by the Constable from operating the volume control of the public address system. It is also alleged that the Constable turned down the volume of the system, apparently against the complainant’s wishes.

5. Primarily because of an undated letter written by one Joshua Corneloup (an alleged associate of the complaint) and received by the Surfers Paradise police on or about 8 April 2011, the applicant has formed the view that the complaint constitutes an abuse of process. In this regard he relies heavily upon the High Court decision of Williams and Anor v Spautz [1992] 174 CLR 509 (Williams case). Whilst the facts of that case are different to the one I am being asked to consider, nevertheless the Applicant argues that the principles that can be spelt out from it are relevant to the issues that I am asked to decide.

6. In order to distinguish Williams case it is necessary to briefly set out the facts of that case. A university lecturer brought a complaint alleging criminal conspiracy to defame and conspiracy to injure him by illegal means. The complaint was directed to various officers of the university who had earlier dismissed him from the university’s employment. The High Court divided on the issue with the majority deciding that the complaints had been brought for an improper purpose in that they were not intended to be prosecuted to a conclusion but rather to bring pressure to bear upon the University to reinstate the lecturer. This was so, it was held according to the headnote, even if a prima facie case may exist to justify the prosecution.

7. Upon a close reading of the majority judgment this last proposition is not, strictly speaking accurate. At page 522 the majority cited with approval the statement of Bridge LJ. in the case of Goldsmith v Sperrings [1997] 1 WLR 498 which is in the following terms:-

   “what if a litigant with a genuine cause of action, which he would wish to pursue in any event, can be shown to also to have an ulterior purpose in view as a desired by product of the litigation? Can he on that ground be debarred from proceeding? I very much doubt it.”

   The High Court then went on:-

   “ But his Lordship by implication, evidently sees no difficulty with the case in which the plaintiff does not wish to pursue his or her cause of action to a conclusion because he or she intends to use the proceedings for a collateral or improper purpose.”

8. In the case before me the applicant relies solely upon the letter of Mr Cornelup and the postings on a web site to support the proposition that the complainant here does not intend to pursue the prosecution, but rather has brought the prosecution for an improper purpose, namely an abuse of process, to use the words of the Justices Act. In Williams case it was found by the trial judge that there was an abundance of literature under the hand of the complainant to justify the finding that he made that the complainant did not intend to pursue the litigation to a conclusion and that it was only designed to get him reinstated to the University.

9. Turning to the evidence before me I note that the respondent who is self represented, argues that he did not authorise or approve the letter written by Mr Cornelup. He further argues that there is no evidence that he approved or wrote what is contained on the website. The applicant argues that they are all colleagues in pursuit of a common endeavour and therefore the respondent is deemed to have adopted what his colleagues have done. Whilst it was not put as such, it seems to me that the Applicant was arguing an agency point. In doing so he referred in the letter and in the complaint brought by the Respondent against the Applicant to the continued use of the word “we”. He also referred to the Council permit dated 11 February 2011 addressed to Mr Cornelup but which allowed certain named people, including the respondent to participate in the nominated activity.

10. Certain points arise from the evidence described above. Firstly if the letter is looked at, it is signed by Joshua Corneloup as the ‘civil litigation officer for Streetchurch Inc.” It does not purport to be written on behalf of any group that, from the evidence in front of me, includes the respondent. It was not argued that Streetchurch Inc was a legal practice that acted on behalf of the respondent or the group “OP 513” of which he was apparently a member. The authority upon which the letter was written was not clear. I therefore assume it was written by Mr Corneloup on his own initiative. Two further points should be noted from the letter. Firstly it says in the second paragraph as follows:-

    “With the criminal side of things aside, we will also be pushing the Gold Coast street preaching team to file several civil cases regarding assault, conversion, battery and trespass on persons.”

    This statement, it seems to me, is not corroborative of the Applicant’s argument that it was written by or with the authority of the Respondent. No doubt the use of the word we refers to the members of Streetchurch Inc.

11. The next point to be ascertained from the letter is the statement that:-

    “we are determined to see the matter through and though your departments have not had experience in these matters we have and have fought the good fight for over four years and have never lost a case to this present day.”
    This point would in my view take this case outside the realm of Williams case and bring it within the exception spoken about by Bridge L.J and cited above. This statement certainly implies some legal connection between Streetchurch Inc and the respondent and others, but it may also be, like other parts of the letter mere puffery.

12. The applicant referred to a copy of a web site on the internet under the banner of “OP 513”. It was argued that the site’s published material showed that the main purpose of the complaint was to harass police and to jam the courts with frivolous criminal complaints. After reading the exhibits MR4 to MR6 of the affidavit of Mathew Rosevear sworn 1 June 2011, I can find nothing that supports the contentions made by the Applicant. In fact quite the opposite, it seems to me that the site recites nothing more than what the respondent says occurred on the night in question. Further there is no suggestion that it was written by the respondent, although I am prepared, for the present argument, to assume that the author was acting as an agent for the respondent and the persons named on the website. Additionally there is nothing on the site that somehow legally connects the website promoters with “Streetchurch Inc.”

13. I therefore reject the argument that what is on the website somehow reinforces the claim that the predominant purpose of the respondent bringing the complaint amounts to an abuse of process.

14. Williams case can also be distinguished from the present case on the basis that the predominant reason for bringing the complaint is to cause high legal costs for the police force and thereby the Queensland Government. Certainly the issue of high legal costs is raised in the letter of Mr Cornelup but it is not done in such a way that indicates that this a prime reason for bringing the complaint by the respondent. Indeed as is well known at law, costs is a discretionary matter that a court has in its power and simply because a private complainant may win a case against a police officer is not a guarantee that costs will be awarded. Additionally, despite the huff and puff of the letter there is no certainty that the respondent will win the case and if he does not, then costs may be awarded against him. It cannot be said therefore that the prime purpose of the complaint is to get a costs order against the police.

15. In the same vein it cannot be said that to allow this complaint to proceed will open up the flood gates of further complaints. Each complaint must be dealt with on its merits and the argument that a complaint is vexatious, frivolous or an abuse of process cannot be determined in a general sense by simply deciding one complaint and thereby assuming that all subsequent complaints are in the same terms. This would amount to a fundamental denial of a statutory right available to every citizen.

16. In the case before me the lawfulness of the complainant’s actions was not raised by the Applicant. There was for example, no argument that the complainant was exercising his authority under the Police Powers and Responsibilities Act (Qld) 2000 s 52. I must therefore conclude, for the sake of this argument, that there is at least a prima facie case maintainable against the Applicant.

17. Several other arguments were put by the Applicant that can be disposed of shortly. Firstly it was argued that as evidence of the complainant’s intent of disrupting and discrediting the police force, he did not avail himself of the services of the CMC or the ESC. I asked if there was any statutory requirement that these organisations be availed of before a private complaint was launched and was told that there was not. The applicant conceded that the respondent was legally entitled to proceed straight to a complaint. That concession disposes of that argument. If a citizen has a legal right to issue a complaint, then without more, it cannot be seen as evidence of abuse of process.

18. An argument was raised about the broad particulars of the complaint. Put simply this issue can be cured by a defendant seeking particulars on an application and if they cannot be properly given then the defendant to the complaint has other rights available, but it cannot be said that the giving of broad particulars amounts to abuse of process.

19. It was also argued that the substantial intention of “Operation 513” is “to obtain an advantage or other benefit by attempting to place restrictions on all police officers who may come in contact with street preachers in the future.” I cannot as a matter of principle accept this submission. The restrictions on the actions of a police officer are contained in legislation as indeed are their powers. How anyone issuing a complaint against a police officer can somehow restrict that officer in the performance of his lawful duty is beyond me and, I might add, the submission was not particularised or expanded upon in any way.

20. The argument that the purpose of the complaint was to promote media coverage for “Operation 513” also has me perplexed. By and large proceedings in all courts are open to the public and the media are entitled to report on these proceedings as they see fit. It is up to the media to report what they think is of interest to the public. If they think that the prosecution of a private complaint is of interest that is up to them and cannot be a ground for deciding whether or not to stay a proceeding for abuse of process.

21. I dismiss the application.