Mowen v Rockhampton Regional Council - [2018] QSC 192

SUPREME COURT OF QUEENSLAND

CITATION:

Mowen v Rockhampton Regional Council [2018] QSC 192

PARTIES:

BEVAN ALAN MOWEN

(plaintiff/respondent)

v

ROCKHAMPTON REGIONAL COUNCIL

(defendant/applicant)

FILE NO:

449 of 2017

DIVISION:

Trial Division

PROCEEDING:

Application

DELIVERED ON:

28 August 2018

DELIVERED AT:

Rockhampton

HEARING DATE:

20 August 2018

JUDGE:

Davis J

ORDER:

1. Leave is granted to the Rockhampton Regional Council under s 5 of the Vexatious Proceedings Act 2005 (Qld) to bring an application against Bevan Alan Mowen for a vexatious proceedings order.

2. Pursuant to s 6 of the Vexatious Proceedings Act 2005 (Qld), Bevan Alan Mowen is prohibited from commencing or continuing proceedings claiming damages or aggravated damages for defamation against the Rockhampton Regional Council.

CATCHWORDS:

PROCEDURE – STATE AND TERRITORY COURTS: JURISDICTION, POWERS AND GENERALLY – VEXATIOUS LITIGANTS, PROCEEDINGS AND RELATED MATTERS – where the applicant has previously applied for vexatious proceedings orders – where that application was refused – where the respondent has joined the applicant to further proceedings – whether the respondent should be declared a person who frequently instituted or conducted vexatious proceedings – whether the respondent should be prohibited from bringing actions against the applicant

Commonwealth Electoral Act 1918 (Cth) s 245
Limitation of Actions Act 1974 (Qld)
Local Government (Planning and Environment) Act 1990 (Qld) s 7.6
Uniform Civil Procedure Rules 1999 (Qld) r 171, r 293, r 371

Vexatious Proceedings Act 2005 (Qld) s 5, s 6, s 10

Ex parte Edwards [1989] 1 Qd R 139, cited
Fingleton v The Queen (2005) 227 CLR 166, cited
Fung v Tam [2012] QCA 10, cited
Lohe v Sargent [2001] QSC 386, cited
Markan v Bar Association of Queensland [2015] QCA 128, cited
Mowen v Australian Electoral Commission [2016] QCA 152, cited
Mowen v Electoral Commission of Queensland [2015] QSC 16, cited
Mowen v Electoral Commission of Queensland [2015] QCA 221, cited
Mowen v McGowran [2010] QCA 86, cited
Mowen v Morning Bulletin/APN and Ors [2012] QSC 194, cited
Mowen v The Morning Bulletin/APN & Ors [2013] QCA 36, cited
Mowen v Queensland State Government [2011] QSC 12, cited
Mowen v Queensland State Government [2011] HCASL 190, cited
Mowen v Rockhampton Regional Council; Bendigo and Adelaide Bank Limited v Mowen [2017] QSC 295, cited
Mowen v Rockhampton Regional Council [2018] QSC 44, cited
Mowen v State of Queensland [2011] QCA 137, cited
Mowen v State of Queensland [2018] QSC 183, cited
Mudie v Gainriver Pty Ltd (No 2) [2003] 2 Qd R 271, considered
Re Mowen [2012] QSC 434, cited
Re Skyring (Unreported, Supreme Court of Queensland, White J, 5 April 1995), cited

Ross-James v Turnbull [2017] QSC 275, cited

COUNSEL:

M P Amerena for the applicant

The respondent appeared in person

SOLICITORS:

King & Company for the applicant

The defendant Council applies for orders under the Vexatious Proceedings Act 2005 (Qld) against the plaintiff, Mr Mowen. While the plaintiff appeared on the application, he evinced…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] QSC 192
Decision Date: 28 August 2018

CaseChat Overview and Summary

The Rockhampton Regional Council applied for orders against Mr Mowen under the Vexatious Proceedings Act 2005 (Qld) in the Supreme Court of Queensland. Mr Mowen had instituted proceedings against the Council claiming damages for defamation, aggravated damages, costs, and interest. The Council had previously applied for a vexatious proceedings order against Mr Mowen, which was refused. The Council cross-applied for summary judgment, to strike out parts of the statement of claim, for further particulars, and for orders under the Vexatious Proceedings Act. Mr Mowen did not contest the Council's application for a vexatious proceedings order but made submissions in relation to it. The Court was required to decide whether the Council should be granted leave to apply for a vexatious proceedings order and whether Mr Mowen should be prohibited from bringing actions against the Council. The Court found that Mr Mowen's claims were frivolous and vexatious, and that he had previously instituted proceedings against the Council that were also vexatious. The Court granted the Council leave to apply for a vexatious proceedings order and prohibited Mr Mowen from commencing or continuing proceedings claiming damages or aggravated damages for defamation against the Council.

The Council was granted leave to bring an application for a vexatious proceedings order against Mr Mowen. The Court found that Mr Mowen's claims were frivolous and vexatious and that he had previously instituted proceedings against the Council that were also vexatious. The Court noted that Mr Mowen had not contested the application for a vexatious proceedings order but made submissions in relation to it. The Court also found that Mr Mowen's counterclaims in District Court proceedings 2778 of 2017 were vexatious, and that the Council should be granted a declaration that Mr Mowen is a person who frequently instituted or conducted vexatious proceedings and be prohibited from bringing actions against the Council. The Court held that Mr Mowen's claims were baseless and that he had acted unreasonably in pursuing them. The Court also found that Mr Mowen had acted vexatiously in joining other defendants by counterclaim in District Court proceedings 2778 of 2017 and in seeking to join that proceeding with Supreme Court proceedings 449 of 2017. The Court noted that Mr Mowen had not provided any evidence to support his claims and that the Council had acted reasonably in seeking to recover unpaid rates from the property. The Court held that Mr Mowen's actions had caused the Council significant expense and inconvenience and that a declaration and prohibition were necessary to prevent further vexatious proceedings.

Orders

Orders of the court

1. Leave is granted to the Rockhampton Regional Council under s 5 of the Vexatious Proceedings Act 2005 (Qld) to bring an application against Bevan Alan Mowen for a vexatious proceedings order.

2. Pursuant to s 6 of the Vexatious Proceedings Act 2005 (Qld), Bevan Alan Mowen is prohibited from commencing or continuing proceedings claiming damages or aggravated damages for defamation against the Rockhampton Regional Council.

Background

Background to the litigation

The defendant Council applies for orders under the Vexatious Proceedings Act 2005 (Qld) against the plaintiff, Mr Mowen. While the plaintiff appeared on the application, he evinced an intention not to contest it[1] in circumstances I describe later.[1]Except perhaps on appeal.Background Mr Mowen instituted proceedings by filing a claim in this Court on 6 July 2017 with an accompanying statement of claim. That became Supreme Court proceedings 449 of 2017.[2][2]The current proceedings. Mr Mowen had, for some time, been in dispute with the Council over the calculation of rates claimed by the Council concerning a property in which Mr Mowen had an interest at a place called Struck Oil. Mr Mowen asserts that the rates ought to have been calculated to take account of a pensioner discount to which he says he is entitled. Bendigo and Adelaide Bank Limited (Bendigo) holds a mortgage over the property. The Council allegedly told Bendigo that:(a)there were unpaid rates on the property in excess of $14,000; and(b)the Council was about to exercise powers to sell the property to recover the outstanding rates. Bendigo, no doubt in order to preserve its security, then paid the outstanding rates to the Council. Presumably, Bendigo claims that an amount equivalent to the money paid to the Council is now owing to it by Mr Mowen and secured by the mortgage over the property. In the statement of claim in Supreme Court proceedings 449 of 2017, Mr Mowen claimed that defamatory imputations arise from the two statements made by the Council to Bendigo. In Supreme Court proceedings 449 of 2017, Mr Mowen claimed against the Council:“(a) Damages for Defamation in the sum of $250,000;(b) Aggravated damages of $250,000;(c) Costs; and (d) Interest pursuant to s 47 of the Supreme Court Act 1995.” In its defence, the Council made various denials and pleaded the defence of qualified privilege.[3] Amended pleadings were delivered, the details of which are not relevant to the present application.[3] Defamation Act 2005 (Qld) s 24(1). In the meantime, Bendigo instituted proceedings against Mr Mowen in the District Court seeking recovery of a debt. They are District Court proceedings 2778 of 2017. Mr Mowen counterclaimed against the bank and also joined other defendants by counterclaim. On 27 November 2017 McMeekin J heard various applications concerning Supreme Court proceedings 449 of 2017 and District Court proceedings 2778 of 2017. Mr Mowen sought orders from McMeekin J that:(a)District Court proceedings 2778 of 2017 be transferred to the Supreme Court;(b)District Court proceedings 2778 of 2017 and Supreme Court proceedings 449 of 2017 be “joined”. His Honour dealt with the second part of Mr Mowen’s application on the basis that Mr Mowen sought either consolidation of the two proceedings or an order that they be heard together or heard in sequence.[4][4]Mowen v Rockhampton Regional Council; Bendigo and Adelaide Bank Limited v Mowen [2017] QSC 295 at [36]; UCPR rr 78, 79. The Council cross-applied:(a)for summary judgment pursuant to r 293 of the Uniform Civil Procedure Rules 1999 (Qld) (UCPR); or in the alternative(b)to strike out all or various parts of the statement of claim pursuant to r 171 UCPR; or in the alternative(c)further and better particulars of the statement of claim; and(d)various orders under the Vexatious Proceedings Act.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Mowen v Rockhampton Regional Council [2018] QSC 192
PARTIES:	BEVAN ALAN MOWEN (plaintiff/respondent) v ROCKHAMPTON REGIONAL COUNCIL (defendant/applicant)
FILE NO:	449 of 2017
DIVISION:	Trial Division
PROCEEDING:	Application
DELIVERED ON:	28 August 2018
DELIVERED AT:	Rockhampton
HEARING DATE:	20 August 2018
JUDGE:	Davis J
ORDER:	1. *Leave is granted to the Rockhampton Regional Council under s 5 of the Vexatious Proceedings Act* 2005 (Qld) to bring an application against Bevan Alan Mowen for a vexatious proceedings order.** 2. Pursuant to s 6 of the Vexatious Proceedings Act 2005 (Qld), Bevan Alan Mowen is prohibited from commencing or continuing proceedings claiming damages or aggravated damages for defamation against the Rockhampton Regional Council.
CATCHWORDS:	PROCEDURE – STATE AND TERRITORY COURTS: JURISDICTION, POWERS AND GENERALLY – VEXATIOUS LITIGANTS, PROCEEDINGS AND RELATED MATTERS – where the applicant has previously applied for vexatious proceedings orders – where that application was refused – where the respondent has joined the applicant to further proceedings – whether the respondent should be declared a person who frequently instituted or conducted vexatious proceedings – whether the respondent should be prohibited from bringing actions against the applicant Commonwealth Electoral Act 1918 (Cth) s 245 Limitation of Actions Act 1974 (Qld) Local Government (Planning and Environment) Act 1990 (Qld) s 7.6 Uniform Civil Procedure Rules 1999 (Qld) r 171, r 293, r 371 Vexatious Proceedings Act 2005 (Qld) s 5, s 6, s 10 Ex parte Edwards [1989] 1 Qd R 139, cited Fingleton v The Queen (2005) 227 CLR 166, cited Fung v Tam [2012] QCA 10, cited Lohe v Sargent [2001] QSC 386, cited Markan v Bar Association of Queensland [2015] QCA 128, cited Mowen v Australian Electoral Commission [2016] QCA 152, cited Mowen v Electoral Commission of Queensland [2015] QSC 16, cited Mowen v Electoral Commission of Queensland [2015] QCA 221, cited Mowen v McGowran [2010] QCA 86, cited Mowen v Morning Bulletin/APN and Ors [2012] QSC 194, cited Mowen v The Morning Bulletin/APN & Ors [2013] QCA 36, cited Mowen v Queensland State Government [2011] QSC 12, cited Mowen v Queensland State Government [2011] HCASL 190, cited Mowen v Rockhampton Regional Council; Bendigo and Adelaide Bank Limited v Mowen [2017] QSC 295, cited Mowen v Rockhampton Regional Council [2018] QSC 44, cited Mowen v State of Queensland [2011] QCA 137, cited Mowen v State of Queensland [2018] QSC 183, cited Mudie v Gainriver Pty Ltd (No 2) [2003] 2 Qd R 271, considered Re Mowen [2012] QSC 434, cited Re Skyring (Unreported, Supreme Court of Queensland, White J, 5 April 1995), cited Ross-James v Turnbull [2017] QSC 275, cited
COUNSEL:	M P Amerena for the applicant The respondent appeared in person
SOLICITORS:	King & Company for the applicant