Mowen v State of Queensland

[2011] QCA 137

SUPREME COURT OF QUEENSLAND

CITATION:

Mowen v State of Queensland [2011] QCA 137

PARTIES:

BEVAN ALAN MOWEN

(appellant)
v
STATE OF QUEENSLAND
(respondent)

FILE NO/S:

Appeal No 1775 of 2011
SC No 703 of 2010

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Rockhampton

DELIVERED ON:

21 June 2011

DELIVERED AT:

Brisbane

HEARING DATE:

14 June 2011

JUDGES:

Fraser JA, Margaret Wilson AJA and Mullins J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Appeal dismissed

CATCHWORDS:

EQUITY – EQUITABLE REMEDIES – INJUNCTIONS – INJUNCTIONS FOR PARTICULAR PURPOSES – TO RESTRAIN BREACH OF STATUTES, REGULATIONS OR ORDINANCES – LOCUS STANDI OF APPLICANT –where appellant applied for a mandatory injunction against the State of Queensland to hold a referendum on the sale of Queensland Rail without serving the respondent – where appellant did not have standing to apply for the injunction – whether appellant should have served the respondent

Crown Proceedings Act 1980 (Qld), s 19

COUNSEL:

The appellant appeared on his own behalf
No appearance for the respondent

SOLICITORS:

The appellant appeared on his own behalf
No appearance for the respondent

[1]      FRASER JA:  I agree with the reasons for judgment of Mullins J and the order proposed by her Honour.

[2]      MARGARET WILSON AJA:  The appeal should be dismissed for the reasons given by Mullins J.

[3]      MULLINS J:  Mr Mowen applied ex parte for a mandatory injunction against the respondent, named in the application as Queensland State Government, to hold a referendum in Queensland on the sale of Queensland Rail. Mr Mowen appeared for himself before the Central Judge. He had delivered a copy of the application to the office of Mr Schwarten MP in Rockhampton, but did not attempt any service of the respondent at the office of the Crown Solicitor, as required by s 19 of the Crown Proceedings Act 1980 (Qld). At the commencement of the hearing before the Central Judge, the transcript shows that the bailiff called “Queensland State Government” three times and there was no appearance.

[4]      The Central Judge, after hearing submissions from Mr Mowen, dismissed the application on a number of grounds, including that Mr Mowen did not have standing to seek such an injunction and the subject matter of the injunction was not justiciable, and gave written reasons:  Mowen v Queensland State Government [2011] QSC 12 (the reasons).

[5]      The notice of appeal continues to show the respondent incorrectly described as “Queensland State Government” with an address at Denham Street, Rockhampton.  Mr Mowen did not attempt to serve the notice of appeal, because he considered that he was proceeding ex parte.  A Deputy Registrar of the Court of Appeal sent details of the appeal to the Crown Solicitor.  It was not surprising that there has been no response.

[6]      Mr Mowen wished to put similar arguments before this court on appeal that he put at first instance.  Mr Mowen as a citizen with no special interest in the subject matter of his application seeks to voice his concerns about the effect on public safety caused by an increased number of semi-trailers on Queensland roads, as a result of the sale of Queensland Rail, without the approval of the referendum of the citizens of Queensland.  As explained in paragraph [17] of the reasons, Mr Mowen does not have standing to apply for an injunction against the respondent to draw attention to his concerns.  In any case, he should not have pursued his application without properly serving the respondent.

[7]      There was no error in the dismissal of Mr Mowen’s ex parte application for a mandatory injunction.  The appeal should also be dismissed.