Oliver v Zhouand
[2025] QSC 272
•22 October 2025
SUPREME COURT OF QUEENSLAND
CITATION:
Oliver v Zhouand [2025] QSC 272
PARTIES:
DANIEL FREDERICK OLIVER
(plaintiff)
v
SAMAY ZHOUAND(first defendant)
AND
THE PUBLIC TRUSTEE OF QUEENSLAND(second defendant)
FILE NO/S:
BS No 16366 of 2024
DIVISION:
Trial Division
PROCEEDING:
Application
ORIGINATING COURT:
Supreme Court at BrisbaneDELIVERED ON:
22 October 2025
DELIVERED AT:
Brisbane
HEARING DATE:
12 June 2025
JUDGE:
Kelly J
ORDER:
1. The plaintiff’s applications filed 3 April 2025 and 5 June 2025 are dismissed.
2. The proceeding is permanently stayed as an abuse of process.
CATCHWORDS:
PROCEDURE – STATE AND TERRITORY COURTS: JURISDICTION, POWERS AND GENERALLY – INHERENT AND GENERAL STATUTORY POWERS – TO PREVENT ABUSE OF PROCESS – GENERALLY – Where the plaintiff claims damages against the defendants in relation to the administration of his deceased brother’s estate – where the defendants filed an application seeking an order permanently staying the proceeding or an order striking out the plaintiff’s pleading with no leave to replead – where the approach to summary termination or determination is attended with caution – where rr 16(g) and (i) of the Uniform Civil Procedure Rules 1999 (Qld) provide that the court may stay a proceeding or make another order the court considers appropriate – where superior courts have an inherent jurisdiction to stay proceedings which amount to an abuse of process – where a pleading must not oppress a defendant by vague or uncertain allegations, lacking particularity – where the plaintiff’s pleading makes allegations against the defendants that are vague, uncertain and lacking in particularity – where the plaintiff has no standing to bring any such claims – whether the proceeding should be permanently stayed as an abuse of process
Bankruptcy Act 1996 (Cth), s 58, s 116
Mental Health Act 1974 (Qld), s 55
Succession Act 1981 (Qld), s 45(1), s 45(2)Uniform Civil Procedure Rules1999 (Qld), r 16(g), r (16(i), r 293
Batistatos v Roads & Traffic Authority (NSW) (2006) 226 CLR 256, cited
Impiombato v BHP Group Ltd (No 2) [2020] FCA 1720, cited
Mio Art Pty Ltd v Macequest Pty Ltd (2013) 95 ACSR 583
Polar Aviation Pty Ltd v Civil Aviation Safety Authority(No 4) (2011) 203 FCR 293, cited
Public Trustee of Queensland v Oliver [2017] QCA 73, relatedSpencer v The Commonwealth (2010) 241 CLR 118, cited
COUNSEL:
The plaintiff appeared on his own behalf
S A Amos for the defendants
SOLICITORS:
The plaintiff appeared on his own behalf
Crown Law for the defendants
Competing applications by the plaintiff and the defendants
On 11 December 2024, the plaintiff, Mr Daniel Oliver, started this proceeding by originating application against Mr Samay Zhouand, the first defendant, and the Public Trustee of Queensland (“the Public Trustee”), the second defendant. Mr Zhouand is variously described in the plaintiff’s written material as “the 2019 Acting Public Trustee of Queensland”[1] and the “2025 Public Trustee of Queensland”.[2]
[1]Second affidavit of David Coco, exhibit DC-10.
[2]CFI 13.
By an order dated 7 January 2025, the plaintiff was granted leave to file and serve a claim and statement of claim. By an order dated 18 February 2025, the plaintiff was ordered to file and serve an amended claim and an amended statement of claim by 14 March 2025. On 14 March 2025, the plaintiff filed and served documents styled as a claim and statement of claim (“the pleading”). On 26 March 2025, the defendants filed a conditional notice of intention to defend.
The filing and service of the pleading has resulted in several applications. The relevant procedural history to the filing of those applications is as follows. On 19 March 2025, Muir J ordered the defendants to file and serve any application, affidavits and outline of submissions by 26 March 2025 and the plaintiff to file and serve any affidavits and outline of submissions by 16 April 2025. On 26 March 2025, the defendants filed an application for summary judgment under r 293 of the Uniform Civil Procedure Rules1999 (Qld) (“the UCPR”). In the alternative to summary judgment, that application sought orders striking out the pleading or permanently staying this proceeding. On 3 April 2025, the plaintiff filed and served an application which did not refer to any particular provision of the UCPR but sought judgment against the defendant in the sum of $2,615,902.32. On 16 April 2025, Williams J adjourned the plaintiff’s application filed 3 April 2025 and ordered the parties to agree a list of issues to be determined on the hearing of the two applications. On 9 May 2025, the defendants filed a document headed “Defendants’ list of issues”. On 5 June 2025, the plaintiff filed a further application seeking, inter alia, judgment against the defendants. The three applications came on for hearing in the applications list on 12 June 2025. At that hearing, the plaintiff said that his application filed 5 June 2025 was his “new application”[3] and he did not seek to rely upon his earlier application filed on 3 April 2025.
[3]T1-4.15.
The Public Trustee did not press its application for summary judgment and submitted that r 293 is only engaged where a defence has been filed. The Public Trustee submitted that the appropriate orders were an order permanently staying the proceeding or an order striking out the pleading with no leave to replead.
Background to this proceeding
The plaintiff is the brother of the late Mr Steele William Oliver (“the deceased”). For most of his adult life, the deceased suffered from severe and chronic schizophrenia. The deceased was confined in hospital from around the age of 19 years old until his death at the age of 61 years old. The deceased never married and had no children. He had four siblings, two sisters, Mrs Jennifer McBride and Ms Lynette Mason, and two brothers, the plaintiff and Mr Russell Oliver.
On 28 May 1990, the Public Trustee was appointed as the deceased’s administrator for all financial matters on and from 28 May 1990. That appointment was successively continued by various orders of the Guardianship Administration Tribunal and the Queensland Civil and Administrative Tribunal.
On 11 October 2011, the deceased executed a will (“the Will”).
On 25 July 2012, the plaintiff entered bankruptcy and Mr David Hambleton was appointed his trustee in bankruptcy.
On 18 November 2014, the deceased died.
On 2 March 2016, the Public Trustee applied for probate of the Will. On 24 March 2016, the plaintiff lodged a caveat in the probate proceeding. The Public Trustee’s application for probate of the Will was heard by Dalton J on 10 November 2016. On 18 November 2016, Dalton J declared that the Will was not a valid Will. Her Honour was not persuaded that the deceased had capacity at the time of the Will but also found that, on the basis of the evidence then before the court, it was “clear that the deceased man’s mental state was one which fluctuated from time to time”. Dalton J refused to appoint the plaintiff as the administrator. Her Honour observed that the plaintiff was not at that time in communication with his sisters and was “not able to rationally and impartially fulfill the duties of administrator”. By an order dated 18 November 2016, Dalton J appointed the Public Trustee as the administrator of the deceased’s estate on intestacy.
On 3 February 2017, the applicant commenced a proceeding by way of originating application against the Public Trustee. In that proceeding, the plaintiff sought to remove the Public Trustee as the administrator of the deceased’s estate and sought to have his wife appointed as the replacement administrator. The plaintiff’s trustee in bankruptcy did not consent to the application. On 9 February 2017, Boddice J dismissed that proceeding and ordered the plaintiff pay the Public Trustee’s and the plaintiff’s trustee in bankruptcy’s costs of the application on the standard basis. Boddice J further ordered that to the extent that the Public Trustee’s costs of the application on the indemnity basis were not recovered pursuant to the costs order, the Public Trustee was entitled to deduct the same from the share of the estate of the plaintiff which was vested in the plaintiff’s trustee in bankruptcy and to the extent, if any, that share was insufficient, from the other assets of the deceased’s estate.
On 1 March 2017, the plaintiff filed a notice of appeal to the Court of Appeal from the decision of Boddice J. The plaintiff’s trustee in bankruptcy did not consent to the institution of the appeal. The grounds of appeal asserted various errors described as “errors in law”. Broadly stated, by the notice of appeal, the plaintiff sought to contend that:
(a)the plaintiff had not been permitted to “undo a criminal wrong done to Daniel Frederick Oliver or the criminal defrauding of Steele William Oliver (sic) Estate of around $25,333.99, from 18 November 2014 to the (sic) 18 November 2014, by the Public Trustee”;
(b)the Public Trustee “is not and cannot be the Legal Administer of Steele William Oliver (sic) Estate from 18 November 2014 to 28 February 2017 … because the Deputy Registrar on … 18 November 2016, put the wrong name in Order Number 4, the Public Trustee instead of the real or legal name of the Public Trustee of Queensland”;
(c)“under Queensland Law and Criminal Law, any person/Daniel Frederick Oliver who has had $25,333.99 defrauded from his legal share of Steele William Oliver (sic) Estate from 18 November 2014 to 18 November 2016, can apply himself, to have the Public Trustee of Queensland, removed as the Administrator of Steele William Oliver (sic) Estate, for criminally defrauding Steele William Oliver (sic) Total Estate of $25,333.99 from 18 November 2014 to 18 November 2016 …”;
(d)Boddice J unlawfully refused to appoint the plaintiff and Mr Russell Oliver as the new administrators;
(e)Boddice J had not required the Public Trustee of Queensland to repay $25,333.99 plus interest plus damages;
(f)the Court of Appeal in an earlier appeal,[4] had permitted the plaintiff to have standing in that appeal and, as a result, Boddice J was required to recognise that the plaintiff had standing in respect of the proceeding started on 3 February 2017.
[4]Appeal Number 4878 of 2016 heard on 30 September 2016.
On 20 March 2017, the Public Trustee applied to have the notice of appeal struck out.
By an order dated 26 April 2017, Gotterson JA struck out the notice of appeal. His Honour relevantly reasoned as follows:
“Mr Daniel Oliver has, at all material times since 25 July 2012, been a bankrupt. Consistently with the decision of the Court of Appeal of Western Australia in Macchia v The Public Trustee, upon the deceased’s death, Mr Daniel Oliver’s right to due administration of the intestate estate vested exclusively in his trustee in bankruptcy, Mr David Hambleton. Mr Hambleton has not consented either to the application made at first instance or the institution of this appeal.
Insofar as his application ventilated a grievance that the Public Trustee has mismanaged the deceased’s assets or estate before or after his death, any right to redress that Mr Daniel Oliver might otherwise have had, would reside with his trustee in bankruptcy. Clearly it would not be property preserved to him by the operation of s 116(2)(g) of the Bankruptcy Act 1966 (Cth) as the learned primary judge correctly held and the Public Trustee here submits.
Mr Daniel Oliver himself has no vested right to due administration of the estate or otherwise to relief against the Public Trustee. He therefore had no standing to bring an application of the kind that he has brought. That has been the established law in Queensland since Griffith CJ declared it to be so in Re French. For the same reason, he has no standing to institute this appeal. The notice of appeal must therefore be struck out.”
Gotterson JA ordered the plaintiff pay the Public Trustee’s costs of the appeal and of the application. His Honour made a further order that, to the extent that the Public Trustee’s costs of the appeal and of the application on the indemnity basis were not recovered by the Public Trustee pursuant to the costs order, the Public Trustee was entitled to deduct the same from the share of the deceased’s estate which had vested in the plaintiff’s trustee in bankruptcy and, to the extent that share was insufficient, from the other assets of the deceased’s estate.
In the proceedings at first instance before Boddice J and in the Court of Appeal before Gotterson JA, the Public Trustee had been legally represented by counsel instructed by the Official Solicitor. The Public Trustee received tax invoices from the Official Solicitor in relation to its legal services provided in relation to each proceeding. The total cost of those legal services, inclusive of counsel’s fees, was $44,668.42.
Following the dismissal of the notice of appeal, the Public Trustee made interim distributions to Ms Mason and Mr Russell Oliver each of $1,000.00 and to Mrs McBride in the amount of $990.00 (a bank fee of $10 having apparently being associated with that transaction). No interim distribution was made to the plaintiff, who remained a bankrupt and subject to the costs orders. The deceased’s estate appears to have been finally administered on or about 28 January 2021. On 28 January 2021, final distributions were made to Mrs McBride in the amount of $15,026.16, to Ms Mason in the amount of $15,026.16 and to the estate of Mr Russell Oliver in the amount of $15,026.16. Mr Russell Oliver had died on 16 December 2020.
The plaintiff’s quarter share of the deceased’s estate, which had vested in the plaintiff’s trustee in bankruptcy, was $16,026.16. The Public Trustee paid that amount from the deceased’s estate in diminution of its costs the subject of the costs orders. The balance of the Public Trustee’s costs in the amount of $28,642.26 remained unpaid. Although pursuant to the costs orders, the Public Trustee was entitled to recover the full amount of its legal costs from the deceased’s estate, the Public Trustee decided to bear the amount of its remaining unpaid costs rather than have the other beneficiaries of the deceased’s estate bear the burden of the costs orders made against the plaintiff.
Between 2019 and 2023, the plaintiff wrote to the Public Trustee and received responsive correspondence, including information from the Public Trustee in relation to its administration of the deceased’s estate. The chronology of the relevant correspondence is as follows:
(a)letter plaintiff to Public Trustee dated 10 October 2019;
(b)letter Public Trustee to the plaintiff dated 9 December 2019;
(c)letter plaintiff to Public Trustee dated 16 November 2020;
(d)letter Public Trustee to the plaintiff dated 21 December 2020;
(e)letter plaintiff to Public Trustee dated 5 April 2021;
(f)letter Public Trustee to the plaintiff dated 11 June 2021;
(g)letter plaintiff to Public Trustee dated 22 July 2021;
(h)letter Public Trustee to the plaintiff dated 27 August 2021;
(i)letter plaintiff to Public Trustee dated 20 February 2023;
(j)letter Public Trustee to the plaintiff dated 13 March 2023.
The correspondence sent by the plaintiff raised allegations of wrongdoing by the Public Trustee. Those allegations, as far as they are able to be understood, materially included the following contentions.
(a)the Public Trustee should have closed its “account” in respect of the deceased from the date of his death;
(b)the Public Trustee wrongfully paid items, such as hospital and funeral expenses out of the deceased’s funds prior to its being granted letters of administration of the deceased’s estate and in circumstances where there was no valid will;
(c)in 2014, 2015 and 2016, Mr Zhouand and a Mr Crofton, who is referred to in the correspondence as “the 2015 Public Trustee”, committed “criminal crimes” in circumstances where they “stopped” the plaintiff from legally enforcing the plaintiff’s application for provision out of or from the deceased’s estate;
(d)inaccurate submissions were made before Dalton J and “crimes” were committed by various lawyers before her Honour at or during the hearing on 10 November 2016;
(e)the plaintiff was in possession of over 3,000 Public Trustee documents which proved that from 20 May 1990 to 9 December 2019 the Public Trustee “criminally defrauded Steele William Oliver Financial Matter from 20 May 1990 to 18 November 2014” and the deceased’s estate “from 18 November 2014 to 16 November 2020”;
(f)the tax invoices and the costs statements, in respect of the costs the subject of the costs orders had been served on the plaintiff’s trustee in bankruptcy but not on the plaintiff;
(g)Gotterson JA was not permitted as a matter of law to make a costs order against a bankrupt;
(h)The Public Trustee criminally defrauded the plaintiff of $16,026.16 which should have been paid to the plaintiff or the plaintiff’s trustee in bankruptcy.
A statement of affairs was filed in the plaintiff’s bankruptcy on 23 August 2021. The plaintiff was discharged from bankruptcy on 24 August 2024.
The pleading
The pleading is not readily comprehensible. The total amount of the claim is $2,615, 902.32. The statement of claim includes a series of damages claims which may be outlined as follows. There is a claim for $876,000 in damages “against Samay Zhouand, the 2025 Public Trustee of Queensland”. The amount of $876,000 is the product of this calculation: “$100.00 a day x 365 days = $36,500.00 x for 24 years in total = $876,000.00”. The amount of $876,000 is apparently claimed twice in the calculation of the total amount of the claim. There is a claim for $415,925 in damages “against Samay Zhouand, the 2025 Public Trustee of Queensland”. The amount of $415,925 is the product of this calculation: “fortnightly total Disability Support Pension payment x of 26 payments a year = $17,030.00 x 24 years in total = $408,720.00 on and from 30 May 1990 to 30 May 2014, PLUS $655.00 fortnightly total Disability Support Pension payment x of 11 payments = $7,205.00 + $408,720.00 = $415,925.00”. The amount of $415,925 is apparently claimed twice in the calculation of the total amount of the claim. There is a claim for damages in the amount of $32,052.32 against “Samay Zhouand the 2025 Public Trustee of Queensland” which is made on the basis that “Samay Zhouand the 2025 Public Trustee of Queensland only administrated Steele W Oliver Total Estate on 28 January 2021 for only $32,052.32 instead of $60,104.64”. The figure of $32,052.32 appears to reflect two of the four shares of the deceased’s estate.
The material allegations discernible from the pleading are as follows:
(a)in circumstances where the deceased’s mother had been the deceased’s “Legal Financial Matters Administrator” from 1972 to 30 May 1990, the Public Trustee “criminally applied” to remove the deceased’s mother as administrator;
(b)the Public Trustee “criminally” obtained and used the deceased’s private and confidential information being a “Wolston Park Hospital Medium Secure Mental Health Unit Doctor’s Form 7 issued under Queensland Mental Health Act Services Act 1974 to 1984 (Section 55, Fifth Schedule Classe 1, 3)” (“the Form 7”);
(c)the Public Trustee was never the deceased’s “Financial Matters Administrator” from May 1990 until his death;
(d)the Public Trustee sent documents to the deceased each year from July 1990 to July 2014 seeking his “approval”, when he could not legally read or write or approve or understand any document;
(e)the deceased’s estate on and from 18 November 2014 “should have been $415,925.00” instead of being only $60,104.64;
(f)Mr Zhouand or the Public Trustee wrongfully failed to make distributions of the deceased’s estate to the plaintiff and his late brother, Mr Russell Oliver.
In his oral submissions, the plaintiff sought to expand on the pleaded contentions in the following way. He made reference to “Steele’s Human Rights Act” and submitted that the letters sent by the Public Trustee to the deceased and his mother did not “comply with his human rights” because the deceased could not “approve” the letters “as required under his human rights” and his mother could not approve the letters because the deceased was at the relevant times over 18 years old. He described the Form 7 as “Steele’s document” which he “legally owned” and he submitted that the Form 7 could not be used by the Public Trustee. In terms of the 3,000 documents which the plaintiff says he presently holds, he was prepared to “sell them back to the Public Trustee for $24 million”. He then said “I want $100 million for them”. The plaintiff submitted that he had a further claim against the Public Trustee for $20 million. He explained that claim in the following exchange:
“PLAINTIFF: Yeah. … The reason why I wanted that was in relation to Steele’s administration of Steele’s estate. They started administrating it on the day he was - passed away, appointed themselves as the administrator of his estate. Then when it come up for payment, my brother died six weeks before they distributed his - the money out of Steele’s estate. The Public Trustee took it out of Steele’s estate, no documents, no nothing to anybody, took eight and a-half thousand dollars out of his money and then paid it to my sister, who wasn’t a beneficiary. When the two beneficiaries come along, they go along to him, “Where's our $15,000?” Well, they only had - well, you've got to talk eight and a-half- round eight and a-half thousand dollars out of it, and that’s what the two beneficiaries got instead of their total fifteen thousand something dollars. My money of $ 15,000 plus 1,000 from 2017 distribution that I didn’t get - and they - see, they distributed $1,000 to---
HIS HONOUR: How do you get to the figure of 20 million?
PLAINTIFF: Beg your pardon?
HIS HONOUR: How do you calculate the figure of $20 million?
PLAINTIFF: Well, that’s what I’m just asking off them for the damages for---
HIS HONOUR: But how do you calculate that?
PLAINTIFF: That’s just what I require because I - I don’t expect to get it, and I don’t expect him to pay it, but that’s what I put into the - into my claim for what I wanted from him. It’s up to him to come back to me and say to me - my - excuse me. My way of looking at it is I ask for something. If he wants something serious and really wants something, well, then let him make an offer, and I’ll look at it.
HIS HONOUR: All right. Thank you.
PLAINTIFF: That’s the reason why. It's no good saying I want $100,000 for that and then get $10.”
Relevant principles concerning summary determination or termination
The approach to summary termination or determination is attended with caution.[5] It is generally accepted that the power to strike-out a pleading on the basis that it fails to disclose a reasonable cause of action, “must be exercised with caution and should only be exercised in the plain and obvious case”.[6]
[5]Spencer v The Commonwealth (2010) 241 CLR 118 at 131 [24].
[6]Polar Aviation Pty Ltd v Civil Aviation Safety Authority(No 4) (2011) 203 FCR 293 at 299 [10]; Impiombato v BHP Group Ltd (No 2) [2020] FCA 1720 at [141].
Rules 16(g) and (i) of the UCPR provide that the court may stay a proceeding or make another order the court considers appropriate. In Batistatos v Roads & Traffic Authority (NSW),[7] the High Court considered appeals which were concerned with abuse of process as understood in the exercise of the inherent jurisdiction of superior courts to stay proceedings. In that context, and with reference to previous authorities, the joint judgment[8] explained the broad principles relevant to abuse of process as follows:
[7](2006) 226 CLR 256.
[8]Gleeson CJ, Gummow, Hayne and Crennan JJ.
“What amounts to abuse of court process is insusceptible of a formulation comprising closed categories. Development continues. …
A convenient starting point for consideration of the development that has occurred is the statement made by Lord Blackburn in 1885, in a case frequently cited in Australian courts. The causes of action at stake in Metropolitan Bank Ltd v Pooley were in tort. Lord Blackburn said:
‘[F]rom early times (I rather think, though I have not looked at it enough to say, from the earliest times) the Court had inherently in its power the right to see that its process was not abused by a proceeding without reasonable grounds, so as to be vexatious and harassing – the Court had the right to protect itself against such an abuse; but that was not done upon demurrer, or upon the record, or upon the verdict of a jury or evidence taken in that way, but it was done by the Court informing its conscience upon affidavits, and by a summary order to stay the action which was brought under such circumstances as to be an abuse of the process of the Court; and in a proper case they did stay the action.’
…
Several other points are to be made respecting that statement in Metropolitan Bank. The first is that Lord Blackburn treated vexatious process as synonymous with, or at least an instance of, abuse of process. Secondly, the issues to be considered go beyond a question as to whether the claim or defence in question is bad in law; the demurrer was developed to deal with that situation. Thirdly, and as later emphasised in this Court in authorities to which reference has already been made in these reasons, Lord Blackburn indicated that the power existed to enable the court to protect itself from abuse of its process thereby safeguarding the administration of justice. That purpose may transcend the interest of any particular party to the litigation. …
[I]n this Court much attention has been given to the nature and extent of the inherent power to deal with abuse of process.
In Ridgeway v The Queen, Gaudron J explained:
‘The powers to prevent an abuse of process have traditionally been seen as including a power to stay proceedings instituted for an improper purpose, as well as proceedings that are “frivolous, vexatious or oppressive”. This notwithstanding, there is no very precise notion of what is vexatious or oppressive or what otherwise constitutes an abuse of process. Indeed, the courts have resisted, and even warned against, laying down hard and fast definitions in that regard. That is necessarily so. Abuse of process cannot be restricted to “defined and closed categories” because notions of justice and injustice, as well as other considerations that bear on public confidence in the administration of justice, must reflect contemporary values and, as well, take account of the circumstances of the case. That is not to say that the concept of “abuse of process” is at large or, indeed, without meaning. As already indicated, it extends to proceedings that are instituted for an improper purpose and it is clear that it extends to proceedings that are “seriously and unfairly burdensome, prejudicial or damaging” or “productive of serious and unjustified trouble and harassment”.’
Earlier, in Rogers v The Queen, McHugh J observed:
‘Although the categories of abuse of procedure remain open, abuses of procedure usually fall into one of three categories: (1) the court's procedures are invoked for an illegitimate purpose; (2) the use of the court’s procedures is unjustifiably oppressive to one of the parties; or (3) the use of the court's procedures would bring the administration of justice into disrepute.’
His Honour added:
‘Many, perhaps the majority of, cases of abuse of procedure arise from the institution of proceedings. But any procedural step in the course of proceedings that have been properly instituted is capable of being an abuse of the court's process.’
To that it should be added that the power to deal with procedural abuse extends to the exclusion of particular issues which are frivolous and vexatious. Further, the failure to take, as well as the taking of, procedural steps and other delay in the conduct of proceedings are capable of constituting an abuse of the process of the court.”
Later, the joint judgment,[9] repeated an earlier statement by a joint judgment of the High Court in Agar v Hyde[10] in the following terms:
“Ordinarily, a party is not to be denied the opportunity to place his or her case before the court in the ordinary way, and after taking advantage of the usual interlocutory processes. The test to be applied has been expressed in various ways, but all of the verbal formulae which have been used are intended to describe a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way.”
[9](2006) 226 CLR 256 at 275 [46].
[10](2000) 201 CLR 552 at 575-6 [57].
The proceeding is an abuse of process
The claimed damages arise out of the Public Trustee’s administration of the deceased’s estate pursuant to the 18 November 2016 orders and the Public Trustee’s earlier conduct as the administrator for the deceased’s financial matters from 28 May 1990 until his death.
As to the first aspect, the plaintiff seeks monetary compensation in respect of alleged mismanagement or improper administration of the deceased’s estate by the Public Trustee in its capacity as the administrator of the deceased’s estate. The plaintiff has no vested right to due administration of the deceased’s estate or other remedy as against the Public Trustee. The plaintiff has no standing to bring any such claims. In that regard, I rely upon the reasoning of Gotterson JA in Public Trustee of Queensland v Oliver.[11] To that reasoning, I would add the following:
(a)Gotterson JA applied the reasoning in Macchia v the Public Trustee[12] to the situation of a chose in action comprising the right to due administration of an intestate estate in Queensland;
(b)in Queensland, by reason of s 45(1) of the Succession Act 1981 (Qld) (“the Succession Act”), on the date of a deceased person’s death, the deceased person’s property devolves to and vests in his or her executors unless there is no executor, or no executor able to and willing to act, in which case it vests in the Public Trustee;[13]
(c)in Queensland, by reason of s 45(2) of the Succession Act, upon a court granting letters of administration of an estate of any deceased person, property vested in the Public Trustee devolves to or vests in the person to whom the grant is made, in this case the Public Trustee;
(d)there is no valid distinction for the purposes of ss 58 and 116 of the Bankruptcy Act 1996 (Cth) (“the Bankruptcy Act”) between the right to due administration of a testate estate and the right to due administration of an intestate estate;[14]
(e)by reason of ss 58 and 116 of the Bankruptcy Act, all property that belonged to or was vested in the plaintiff at the time of commencement of his bankruptcy or which was acquired by him or devolved on him after the commencement of his bankruptcy and before his discharge, vested in the plaintiff’s trustee in bankruptcy as property divisible amongst the plaintiff’s creditors;
(f)the transmission effected by ss 58 and 116 of the Bankruptcy Act encompasses not only the chose in action but also the expected fruits of the chose in action;[15]
(g)the plaintiff’s discharge from bankruptcy did not operate to revest the title to property which had vested in the plaintiff’s trustee in bankruptcy.[16]
[11][2017] QCA 73.
[12](2008) 251 ALR 385 at 396-7 [44] to [48].
[13]Dal Pont, Law of Executors and Administrators, LexisNexis [7.5].
[14]Macchia at [48].
[15]Official Receiver in Bankruptcy v Schultz (1990) 170 CLR 306 at 314.
[16]Pegler v Dale (1975) 6 ALR 62; Stone v ACE-IRM Insurance Broking Pty Ltd [2004] 1 Qd R 173 at [2].
As to the second aspect, the plaintiff seeks monetary compensation in respect of the alleged misconduct, mismanagement or improper administration by the Public Trustee as the administrator for the deceased for all his financial matters from 28 May 1990 until his death. The pleading and the plaintiff’s filed documents do not disclose any valid legal ground for contending that the plaintiff has standing to claim damages in respect of those allegations. It is notable that one contention made by the pleading is that the deceased’s estate should have been $415,925 instead of $60,104.64. That contention, taken at face value, would seem to implicitly contemplate that there may have been a claim pursuable by the Public Trustee as administrator as part of its duty to get in and realise the deceased’s estate. That is a matter concerned with the due administration of the deceased’s estate. Any right in that regard vested in the plaintiff’s trustee in bankruptcy. But in any case, as Gotterson JA has observed, to the extent that the plaintiff seeks to ventilate a grievance that the Public Trustee mismanaged the deceased’s assets before his death, any right that the plaintiff had to redress that grievance vested in the plaintiff’s trustee in bankruptcy. Further, to the extent that any possible claim articulated by the pleading was not a claim able to be advanced by the administrator in the due administration of the deceased’s estate, the plaintiff has not established any arguable basis to contend that any such claim survived the deceased’s death and that the plaintiff has standing to pursue any such claim.
There are other matters which support a finding that the proceeding is an abuse of process.
First, the pleading makes allegations of serious misconduct against the Public Trustee, Mr Zhouand and Mr Crofton. To the extent that these allegations involve alleged criminal conduct or the commission of crimes, and hence intentional conduct, the allegations are vague, uncertain and lacking in particularity. In Mio Art Pty Ltd v Macequest Pty Ltd,[17] Jackson J observed that a pleading must not “oppress a defendant by vague or uncertain allegations, lacking particularity”. His Honour went on to state:
“This principle is applied with rigour where the allegations made against a defendant are of fraudulent or serious misconduct – ‘fraud must be pleaded specifically and with particularity’. In such a case, more precision is required than in other cases.”
[17](2013) 95 ACSR 583 at [70].
Secondly, the unparticularised allegations of serious misconduct appear to be fundamentally misconceived. The Form 7 is said by the plaintiff to be the deceased’s private and confidential document, apparently unlawfully obtained and then misused by the Public Trustee. The Form 7 is in evidence.[18] The Form 7 is relevantly headed “Notice by Designated Medical Practitioner of Assessment of Patient as Incapable”. The Form 7 begins by stating “I give notice to you that [the deceased] a patient admitted to the [Wolston Park] hospital … is in my opinion mentally ill and incapable of managing his estate”. The Form 7 outlines the basis of the medical practitioner’s opinion and notably states that the deceased “ … failed the ability to plan finances and meet his budgeting needs”. The Form 7 then contains a notation at the bottom “To: The Public Trustee”. Section 55 of the Mental Health Act 1974 (Qld) (“the Mental Health Act”) expressly contemplated that the Public Trustee would be notified in writing once a medical practitioner formed the opinion that a person admitted to a psychiatric hospital was mentally ill and incapable of managing his or her estate. It is plainly apparent that the Form 7 was, for the purposes of s 55 of the Mental Health Act, the means by which the designated medical practitioner sought to notify the Public Trustee that the deceased was a person admitted to a psychiatric hospital and incapable of managing his estate. To the extent that the Form 7 refers to section 55 of the Mental Health Services Act 1974-1984, that would appear to be a mistake, the intended reference being to the Mental Health Act.
[18]CFI 15 at page 103.
The plaintiff alleges criminal or serious misconduct involving the Public Trustee, during the deceased’s lifetime, having written to the deceased in terms which sought his “approval”, in circumstances where the deceased is alleged to have been incapable of reading, understanding and approving any documentation. As to the latter contention, there is no evidence as to the deceased’s capacity at any of the times when he received any particular correspondence. In that regard, it is noteworthy that Dalton J has previously observed in the probate proceeding that it was “clear that the deceased’s man’s mental state was one which fluctuated from time to time”. In any case, on my reading and consideration of the correspondence sent by the Public Trustee to the deceased during his lifetime, the correspondence did not seek approvals as such but was rather in the nature of correspondence provided to the deceased for his own information and record keeping. The correspondence between the Public Trustee and the deceased’s mother is also unremarkable. That correspondence gives rise to no suggestion that the Public Trustee abrogated its duties owed to the deceased. To the extent that the Public Trustee at any time sought input from the deceased’s mother, that input was apparently sought in an effort to ensure that “all available information is considered when planning for the management of [the deceased’s] financial affairs”.[19] This conduct simply reflected a reasonable, practical approach to administration by the Public Trustee.
[19]Letter Public Trustee to Mrs Oliver dated 19 June 2026.
The claim to the effect that on 28 January 2021, the Public Trustee only distributed $32,052.32 instead of $60,104.64 from the deceased’s estate suffers from two obvious problems. To the extent that the plaintiff is complaining that his share of the estate was not distributed to him, his share vested in the plaintiff’s trustee in bankruptcy and was dealt with by the Public Trustee in accordance with the costs orders made by Boddice J and Gotterson JA. To the extent that the plaintiff is complaining about the treatment of the share of the deceased’s estate belonging to his late brother, Mr Russell Oliver, he has not established any standing to make any claim for or on behalf of his late brother.
Thirdly, there are also obvious problems in the plaintiff’s approach to the quantum of damages. One claim is based on an arbitrary figure of “$100 per day” imposed over a period of 24 years. Another claim seeks to recoup the amount of the deceased’s disability pension over a period of 24 years without apparently making any allowance or adjustment for the deceased’s expenses and costs of living. The claims for $876,000 and $415,925 are without any explanation or justification, duplicated in the total quantum of the claim ($2,615,902.32)
Fourthly, it is not readily apparent that Mr Zhouand is a necessary party to the proceeding having regard to ss 8(2)(c) and 128 of the Public Trustee Act 1978 (Qld).
Fifthly, the plaintiff’s oral submissions referenced “Steele’s Human Rights Act” in circumstances where the deceased died on 18 November 2014 and the Human Rights Act 2019 (Qld) commenced on 1 January 2020.
The Public Trustee made a general submission to the effect that the claims are likely to be time barred. I have not considered it necessary to consider the limitations argument. For the reasons I have provided, the plaintiff has no standing to pursue the claims sought to be advanced in this proceeding. There is also a high degree of certainty that the claims as outlined in the pleading and in the plaintiff’s supporting affidavit material have no prospect of success and are being advanced in contravention of the procedural rules concerning the requirements for pleadings. I find that the proceeding is vexatious and harassing. The proceeding is seriously and unfairly burdensome, prejudicial and damaging and is an abuse of this court’s process.
Orders
The orders I make are as follows:
1.The plaintiff’s applications filed 3 April 2025 and 5 June 2025 are dismissed.
2.The proceeding is permanently stayed as an abuse of process.
3.I will hear the parties as to costs.
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