Mathews, Russell Gordon Haig v Isaac, Hassan Andrew

[1996] FCA 1144

IN THE FEDERAL COURT OF AUSTRALIA           No QG 204 of 1996
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION

BETWEEN:RUSSELL GORDON HAIG MATHEWS

Applicant

AND:HASSAN ANDREW ISAAC

First Respondent

AND:DAVID EVANS

Second Respondent

AND:COMMONWEALTH OF AUSTRALIA

Third Respondent

AND:SENIOR CONSTABLE JUSTIN BERGIN;

SERVICE NO 6763

Fourth Respondent

AND:CONSTABLE PAUL A JOYCE; SERVICE NO 9208

Fifth Respondent

AND:STATE OF QUEENSLAND

Sixth Respondent

AND:ROBERT KENNETH FRANKS

Seventh Respondent

AND:BELINDA IRENE EMERY

Eighth Respondent

AND:COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS

Ninth Respondent

AND:ANASTASIA FARDOULYS DENTAL PTY LTD

ACN 058 497 877

Tenth Respondent

MINUTES OF ORDERS

CORAM:  Drummond J
DATE OF ORDER:  20 December 1996
WHERE MADE:  Brisbane

THE COURT ORDERS THAT:

1.  The time for service of the ninth respondent’s notice of motion be abridged.

2.  As against the ninth respondent, the application be set aside pursuant to O 9 r 7 the Federal Court Rules.

3.  The applicant pay the ninth respondent’s costs of and incidental to the notice of motion and the application to be taxed.

4.  As against the fourth, fifth, sixth, seventh, eighth and tenth respondents, the proceedings be struck out pursuant to O 6 r 9 the Federal Court Rules.

5.  As against the first, second and third respondents, the proceedings be struck out as involving an abuse of process.

6.  The applicant pay the costs of and incidental to the proceedings of the first, second, third, fourth, fifth, sixth and eighth respondents.

NOTE:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA                 No QG 204 of 1996

QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION

BETWEEN:RUSSELL GORDON HAIG MATHEWS

Applicant

AND:HASSAN ANDREW ISAAC

First Respondent

AND:DAVID EVANS

Second Respondent

AND:COMMONWEALTH OF AUSTRALIA

Third Respondent

AND:SENIOR CONSTABLE JUSTIN BERGIN;

SERVICE NO 6763

Fourth Respondent

AND:CONSTABLE PAUL A JOYCE; SERVICE NO 9208

Fifth Respondent

AND:STATE OF QUEENSLAND

Sixth Respondent

AND:ROBERT KENNETH FRANKS

Seventh Respondent

AND:BELINDA IRENE EMERY

Eighth Respondent

AND:COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS

Ninth Respondent

AND:ANASTASIA FARDOULYS DENTAL PTY LTD

ACN 058 497 877

Tenth Respondent

CORAM:Drummond J

DATE:20 December 1996

PLACE:Brisbane

REASONS FOR JUDGMENT

This is an application by the ninth respondent, the Commonwealth Director of Prosecutions, to strike out the proceedings against him.

I declined Mr Mathews’ request that I disqualify myself for bias, a request based solely on my participation in the Full Court dismissal on 16 November 1993 of Mr Mathews’ appeal from the decision of Spender J in Mathews v Human Rights and Equal Opportunity Commission:  I have in other proceedings brought by Mr Mathews rejected an identical request to disqualify myself.  See Mathews v Anastasia Fardoulys Dental Pty Ltd (QG 150 of 1995, 23 November 1995).

By his originating application, Mr Mathews sought an order of prohibition against the Commonwealth Director of Public Prosecutions, directing him not to proceed with the complaint and summons served by the first respondent on the applicant on 1 March 1996. 

The affidavit material relied on by Mr Mathews asserts that Mr Isaacs, in company with the second respondent, served a summons on him in circumstances in which Mr Mathews alleges a trespass was involved.  The material raises no allegation to the effect that the ninth respondent was in any way involved in the alleged trespass.  There is no foundation in Mr Mathews’ evidence for any claim against the ninth respondent.  Moreover, the material filed before me today by the ninth respondent shows that the prosecution proceedings that followed upon service of the summons have now been completed, so it would in any event now be futile to grant the only relief sought against the ninth respondent, the Commonwealth Director of Prosecutions.

Further, Mr Mathews’ theory is that he is entitled to a prohibition because the complaint and summons instituting his prosecution was illegally served.  There are obvious difficulties that face the applicant in maintaining a claim designed to prevent the continuance of criminal proceedings against him:  in Jarratt & Ors v Seymour & Ors (1993) 46 FCR 557, the Full Court of this Court, in a decision in respect of which the High Court refused leave to intervene, said that the Federal Court will only intervene in the criminal process in exceptional circumstances. Mr Mathews claims relief against the ninth respondent on the bare ground that the summons was served illegally because service involved a trespass. That by itself could never constitute exceptional circumstances of the kind referred to.

I will therefore make orders in terms of paragraphs 1 and 2 of the ninth respondent's notice of motion.

I turn next to the fourth, fifth, sixth and eighth respondents.  Counsel who appeared for the fourth, fifth and sixth respondents and the solicitor who appeared for the eighth respondent submit that the proceedings against their clients should be struck out as a misjoinder under O 6 r 9 the Federal Court Rules.

The applicant chose to commence proceedings in this Court against 10 respondents, the ninth respondent being the Commonwealth Director of Public Prosecutions, in respect of whom I have struck the proceedings out.  The material Mr Mathews relies on shows that the claims against the remaining nine respondents arise out of four wholly unrelated alleged trespasses at his residence.  That confined to the eighth respondent is alleged to have occurred on 15 March 1995.  That in which only the seventh and tenth respondents are involved is alleged to have occurred on 29 September 1995.  That in which the fourth, fifth and sixth respondents are alleged to have been involved occurred on 15 January 1996.  That in which the first, second and third respondents were alleged to have been involved occurred on 1 March 1996. 

While there may be, in terms of O 6 r 2(a)(i), a common question of law or fact generated by the legal significance of the "keep out" notice posted on Mr Mathews' premises, it seems to me quite plain that the proceedings involving the fourth, fifth, sixth, eighth and, for that matter, the seventh and tenth respondents cannot properly be joined with the proceedings against the first, second and third respondents, since it is plain that the rights to relief claimed against the four groups of respondents in respect of the four different trespasses cannot be said to be in
respect of or arise out of the same transaction or series of transactions, as is also required by O 6 r 2(a)(ii).

That seems to me to be well established by cases noted in the CCH annotations to the Rules and, in particular, Payne v Young (1980) 54 ALJR 448; Bishop v Bridgelands Securities (1990) 25 FCR 311 and The Thai Silk Co Ltd v Aser Nominees Pty Ltd (Hill J, unreported, 31 May 1989).  In the latter case, Hill J rejected the contention that separate contracts entered into by one party with a number of other persons could be said to be a series of transactions merely because one of the parties to those contracts remained constant.  His Honour declined an invitation to sever the proceedings and thought the appropriate course was to strike the misjoined proceedings out.

It seems to me quite plain that, so far as the proceedings against the fourth, fifth, sixth, seventh, eighth and tenth respondents are concerned, there has been a clear misjoinder and the Court has power, under O 6 r 9, on application by a party and also of its own motion, to strike out the wrongly joined parties.  I will therefore strike out the proceedings against the fourth, fifth, sixth and eighth respondents on the applications made by their lawyers and I would also indicate that I would be prepared, in each of those respondents' cases, to exercise the Court's power to act of its own motion under O 6 r 9, given the circumstances of the joinder.

The seventh and tenth respondents have been served, according to what Mr Mathews tells me.  They are not represented.  But this seems to me to be a
plain case in which, having decided that the proceedings against the fourth, fifth, sixth and eighth respondent should be struck out as involving misjoinder, the Court should act of its own motion and strike out the proceedings against the seventh and tenth respondents on the same basis.

Mr Mathews submits that, under O 6 r 2(b), the general discretionary power to give leave to join parties, he should be granted leave now to join those respondents.  But it seems to me that there is such a disparity of issues and parties that it would be quite inappropriate to allow him to join the various respondents to whom I have referred and in respect of whom I think the proper order is to strike out the proceedings:  he has four quite separate actions in which quite different issues by way of defence and damages are likely to arise.  The only issue common to all is, as I have said, the significance of his “keep out” notice.

I turn now to the application by the first, second and third respondents to cross-vest the matter to the Supreme Court.  They submit that I should cross-vest the action involving them, confined as it is to a claim for damages for common law trespass, to the Supreme Court; it being apparent, so counsel for those respondents submits, that this is a case which should really be in the Magistrates Court, the Supreme Court can then be expected to exercise its powers to transfer the matter to the Magistrates Court.  The submission is made, acknowledging that the cross-vesting legislation does not confer on this Court power to transfer the proceedings direct to the Magistrates Court, but should exercise that jurisdiction in effect as a subterfuge to create a situation in which this action will ultimately find its way into the
court where it should have been commenced.  That seems to me to be a quite inappropriate exercise of the cross-vesting jurisdiction.  Mr Mathews supports this submission and asks that the entire action be transferred to the Supreme Court since that will make it unnecessary for him to appeal any decision I make terminating the action now.  The material before me, in my view, makes it plain that there is no basis upon which it could be said that the Supreme Court is the appropriate tribunal to hear Mr Mathews' claim for common law damages against the first, second and third respondents.  The Magistrates Court appears to me, on the material, to be the court in which the proceedings against those respondents should be heard.  I am not prepared to exercise the cross-vesting power to procure indirectly what the statute prevents the Court achieving directly.

It seems to me that the proceedings were only brought in this Court by Mr Mathews in reliance on the claim for a prohibition under the Judiciary Act 1903 (Cth) sought against the ninth respondent.  But for the joinder of that respondent, it would have been plain that Mr Mathews' actions for common law damages for trespass should never have been brought in this Court.  The proceedings against the first three respondents should not be allowed to continue in this Court.

I have struck out the proceedings against the ninth respondent on the ground that they were shown never to have had any merits.  Given that and given that the action said to be properly brought in this Court has been used by Mr Mathews as the vehicle for also bringing before this Court separate, common law actions involving nine other persons, there is good reason for concern that Mr
Mathews has engaged in a device of suing a Commonwealth officer simply to get into this Court the common law claims he has brought against the other respondents.  He has brought proceedings in this Court, with which this Court has no jurisdiction to deal other than by force of the non-vesting legislation, against these three respondents.  He should have brought that action in one of the inferior State courts.

I therefore propose to strike out the proceedings against the first, second and third respondents as involving an abuse of process and as frivolous and vexatious.

I certify that this and the preceding seven
pages are a true copy of the reasons
for judgment herein of the Honourable
Justice Drummond.

Associate:

Date:  20 December 1996