Hubner v State of Queensland

[1998] QSC 201

IN THE SUPREME COURT
OF QUEENSLAND  Writ No.  42 of 1998
CAIRNS

[Hubner v State of Queensland]

BETWEEN:                COLIN RICHARD HUBNER
  Plaintiff
AND:  STATE OF QUEENSLAND
  Defendant

REASONS FOR JUDGMENT
  BEFORE THE HONOURABLE JUSTICE JONES
  DELIVERED THE 28TH DAY OF SEPTEMBER, 1998

This is an application by the State of Queensland for the striking out of an action commenced by Colin Richard Hubner by a Writ of Summons issued on 16 April, 1998 seeking a declaration and damages.

The original statement of claim was struck out with Mr. Hubner's consent when the matter first came before me on 20 July, 1998 and an argument was then focused on the terms of an amended statement of claim delivered on 10 July, 1998 (ex."A") to the affidavit of Sherman Gee Mun Oh sworn on 17 July, 1998).  At the end of argument on that day I indicated to Mr. Hubner my view that his pleading did not disclose a cause of action and granted him an adjournment to seek further advice or reconsider his position.

At the time of the adjourned hearing on 7 September, 1998 no further amended pleading had been received.  The further affidavit material filed and submissions made by Mr. Hubner did nothing to alter my previously expressed informal view.

The amended statement of claim identifies the relief sought as -

(i)a declaration that the State of Queensland (Executive) is obliged to obey a number of specified statutes;

(ii)damages (including exemplary damages) "for pain and suffering imposed on the plaintiff" by reason of alleged breaches of statutes and the Constitution of Australia;

(iii)imposition of penalties for an alleged breach of the Crimes Act 1914 (Cwlth) - such breach being described as official corruption and obstruction by reason of officers of the court refusing to file criminal informations;

(iv)an order directing the Registrar to file and seal the informations in respect of intended prosecutions against certain persons who were  witnesses in proceedings before this court in which the respondent was an unsuccessful litigant. 

The respondent has no formal legal training and appeared in person on each of the occasions this matter was before me.

This application is brought by the defendant pursuant to O.22 r.31 of the Rules of the Supreme Court which is in the following terms:-

"A court or a judge may order any pleading to be struck out, on the ground that it discloses no reasonable cause of action, or that it shows that the action is frivolous or vexatious; and that in any such case the court or judge may order that the action be stayed or dismissed or that judgment be entered as in default of pleading, as may be just."

It is acknowledged the power to strike out given by this rule reflects the inherent power of the court to stay or dismiss proceedings which are an abuse of process.  It is acknowledged that this power should be sparingly exercised and only in exceptional cases.  The words of Dixon J.  (as he then was) in Dey -v- Victorian Rail Commissioners (1948-9) 78 CLR 62 at p.91 are usually cited in this regard. He said:-

"A case must be very clear indeed to justify the summary intervention of the court to prevent a plaintiff submitting his case for termination in the appointed manner by the court with or without a jury.  The fact that a transaction is intricate may not disentitle the court to examine a cause of action alleged to grow out of it for the purpose of seeing whether the proceeding amounts to an abuse of process or is vexatious.  But once it appears that there is a real question to be determined whether of fact or law and that the rights of the parties depend upon it, then it is not competent for the court to dismiss the action as frivolous and vexatious and an abuse of process."

Conscious of these strictures I should examine each item of the relief sought to see if the court can or ought to be prevailed upon to provide such relief.  My task is to examine the terms of the amended statement of claim referred to above.  (See Dey -v- William Hill (Park Lane) Ltd. (1949) 1 KB 632)

The first issue raised is the declaration that the State of Queensland is bound by certain provisions and statute.

There is no doubt the court has power to grant supervisory declarations against the Crown in respect of the validity of statutes and regulations it's purported to make, in respect of decisions made by its various agencies and in respect of a variety of administrative decisions.  A litany of examples of the use of this power is set out in the text "Equity - Doctrines and Remedies" by Meagher, Gummow and Lehane, 3rd ed, commencing at p.472.

Whilst the jurisdiction to grant declaratory relief is very wide or in the words of Lord Sterndale "almost unlimited” (see Hansen -v- Radcliffe U.D.C. (1922) 2 Ch 490), the court does require the existence of an issue or dispute for determination before the jurisdiction is exercised.

In the amended statement of claim which the defendant puts forward there is no issue in respect of which any declaration could be made.  The respondent lists various enactments which he asserts the State of Queensland (Executive) is obliged to obey.  The first of these is the Crimes Act 1914  (Cwlth) whilst it is difficult to envisage any action which the State, as a corporate entity, would take which would give rise to liability under the Act, there can be no suggestion on the part of the applicant that it is not bound to obey the provisions of this Act.

Sections 42 and 43 of the Acts Interpretation Act 1954 respectively empower a person to take a proceeding for the imposition or enforcement of the penalty under an Act and for the disposition of any penalty imposed as a result of such proceeding.  Neither of these sections require any obedience by the State of Queensland and does not give rise to an issue that will be determined by a declaration.

The Anti-discrimination Act 1991 expressly provides by s.3 that the Act binds the Crown.  Its provisions are as follows:-

"3.This act binds -

(a)The Crown and the right of Queensland; and

(b)The Crown and all its other capacities sofar as the legislative power of the parliament allows."

Section 102A of the Justices Act 1986 simply identifies the applicability of other provisions of that Act to the procedure for bringing private complaints in respect of certain indictable offences.  The provision requires no obedience by the State of Queensland and consequently there is no issue in respect of which a declaration could be made.

Chapter 70 of the Criminal Code has not been repealed by the Anti-discrimination Act 1991 or by any other act. The respondent's assertion to this effect is plainly wrong and is not therefore an appropriate subject for a declaration.

Schedule 2 of the Human Rights and Equal Opportunity Commission Act 1986 is simply a reproduction of the international covenant on civil and political rights. The State of Queensland in its preamble to the enactment of the Anti-discrimination Act of 1991 indicates its support for the Commonwealth's ratification of that international agreement. The Commonwealth of Australia as a party to the covenant is bound by its terms and through the enactment of the Human Rights and Equal Opportunity Commission Act 1986 (Cwlth) has made laws consistent with the terms of the covenant. Again this is not a matter which gives rise to the granting of any declaration such as sought by the respondent.

I find that the respondent's amended statement of claim does not show any basis for the seeking of the declaration sought.

The second relief which the respondent raised in his amended statement of claim is damages and exemplary damages for pain and suffering imposed on him by reason of the breach of some unspecified act and the Constitution of Australia.  The pleaded facts upon which this supposed cause of action relies are found in paragraph 3 of the amended statement of claim.  The allegation is that the plaintiff presented two unsworn informations by which he intended to initiate a private prosecution of an indictable federal offence to the registry staff of this court.  The staff member, it is alleged, refused to witness the respondent's swearing of the information.  The task of witnessing documents, particularly an information seeking to initiate a private prosecution of a federal offence, is not a function of this court's registry staff.  The defendant could not conceivably be held liable, in damages or otherwise, for the non-performance of such a task.  The respondent's allegation in this regard appears to be based on a misconception of the procedures appropriate for the initiation of private prosecutions and the confusion as to the quite distinct procedures that apply in the Federal Court, in the Magistrates Court of Queensland and in this court.

Those same facts appear to be relied upon by the respondent to found an order that the State of Queensland be obliged to pay penalties by way of sanction for alleged criminal conduct in obstructing, delaying, perverting or defeating the course of justice, specifically an offence against s.43 of the Crimes Act. Allied with this is an allegation of official corruption pursuant to s.33 of the Crimes Act. The latter section is of course limited to the conduct of a Commonwealth officer and so has no application in the circumstances of the facts pleaded. The respondent's pleading is deficient on its face because no facts are pleaded to establish that there was any breach of either s.33 or s.43 of the Crimes Act. If the necessary facts did exist, the appropriate procedure would be to file an information in the Federal Court or alternatively, seek leave by way of motion pursuant to s.686 of the Criminal Code to present an information against the persons responsible. For these reasons I determine that there is no cause of action outlined in the amended statement of claim.

Finally, the respondent seeks an order that, effectively, is in the form of a mandatory injunction to force the Registrar of this court to file and seal informations which the respondent seeks to issue.  It appears from what I said above that the plaintiff is entirely mistaken as to the correct procedure to be applied.  It is not within the Registrar's power to do as the respondent would have the court order.  Consequently no such order can be made. 

In all the circumstances the amended statement of claim delivered by the respondent discloses no cause of action on the facts pleaded.  Nor indeed could the relief outlined in the Writ of Summons and the amended Statement of Claim be granted on the facts set out in that pleading.  The action should therefore be struck out.

My formal orders are that the action be struck out and that the respondent pay the applicant's costs of and incidental to the action to be taxed.