FEDERAL COURT OF AUSTRALIA
Quail v Gibson [2021] FCA 1115
File numbers: VID 321 of 2020
VID 458 of 2020Judgment of: ABRAHAM J Date of judgment: 14 September 2021 Catchwords: PRACTICE AND PROCEDURE – application to set aside originating application – whether Court has jurisdiction – application to set aside originating application granted
PRACTICE AND PROCEDURE – application for summary dismissal – where no reasonable prospects of success – whether proceedings are frivolous or vexatious –whether proceedings are an abuse of Court process
Legislation: Defamation Act 2005 (Vic) s 27(2)
Federal Court of Australia Act 1976 (Cth) s 31A
Federal Court Rules 2011 (Cth) rr 13.01, 26.01(1)
Judiciary Act 1903 (Cth) s 39B(1A)
Public Prosecutions Act 1994 (Vic) s 46
Wrongs Act 1958 (Vic)
Cases cited: Arthur J S Hall & Co (a Firm) v Simons [2002] 1 AC 615
Clyne v Bar Association (NSW) [1960] HCA 40; (1960) 104 CLR 186
D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; (2005) 223 CLR 1
Giannarelli v Wraith [1988] HCA 52; (1988) 165 CLR 543
Kowalski v MMAL Staff Superannuation Fund Pty Ltd [2009] FCAFC 117; (2009) 178 FCR 401
Oliver v Nine Network Australia Pty Ltd [2019] FCA 583
Polar Aviation Pty Ltd v Civil Aviation Safety Authority(No 4) [2011] FCA 1126; (2011) 203 FCR 293
Quail v The Queen [2014] VSCA 336
Rana v Google Inc [2017] FCAFC 156; (2017) 254 FCR 1
Rondel v Worsley [1969] 1 AC 191
Division: General Division Registry: Victoria National Practice Area: Other Federal Jurisdiction Number of paragraphs: 39 Date of hearing: 30 August 2021 Counsel for the Applicant: Applicant appeared in person Counsel for the Respondents: Mr L Brown Counsel for the Respondents: Victorian Government Solicitor’s Office ORDERS
VID 321 of 2020
BETWEEN: JOHN QUAIL
Applicant
AND: RAYMOND GIBSON
Respondent
ORDER MADE BY:
ABRAHAM J
DATE OF ORDER:
14 SEPTEMBER 2021
THE COURT ORDERS THAT:
1.The applicant’s originating application be set aside pursuant to r 13.01 of the Federal Court Rules 2011 (Cth).
2.The applicant pay the respondent’s costs, to be agreed or assessed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
ORDERS
VID 458 of 2020 BETWEEN: JOHN QUAIL
Applicant
AND: THE DIRECTOR OF PUBLIC PROSECUTIONS OF THE STATE OF VICTORIA
Respondent
ORDER MADE BY:
ABRAHAM J
DATE OF ORDER:
14 SEPTEMBER 2021
THE COURT ORDERS THAT:
1.The applicant’s originating application be set aside pursuant to r 13.01 of the Federal Court Rules 2011 (Cth).
2.The applicant pay the respondent’s costs, to be agreed or assessed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
ABRAHAM J:
On 30 November 2012, after a trial before a jury in the Supreme Court of Victoria the applicant, Mr John Quail, was convicted of attempted murder. On 28…
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- AGLC
- Quail v Gibson [2021] FCA 1115
- Case
- [2021] FCA 1115
- Decision Date
CaseChat Overview and Summary
The court first considered the issue of jurisdiction. It found that the alleged defamatory conduct and negligence claims related to events occurring in a Victorian courtroom involving a prosecution under Victorian state law. Therefore, the court did not have jurisdiction as the claims were purely state matters. The court also noted that even if it had jurisdiction, the proceedings would still be summarily dismissed as they were a collateral challenge to a criminal conviction, which had already been unsuccessfully contested through criminal processes. The applicant sought substantial damages, including for losses due to his incarceration, despite acknowledging that the proceedings could not overturn his conviction.
The court concluded that the application to set aside the originating application on the basis of lack of jurisdiction should be granted. If the court had not granted the application, the proceedings would have been summarily dismissed. The applicant was ordered to pay the respondents’ costs, to be agreed or assessed.
In summary, the court found that it did not have jurisdiction over the matter as it involved state law issues. Even if the court had jurisdiction, the proceedings would have been dismissed as a collateral challenge to a criminal conviction. The applicant’s originating application was set aside, and he was ordered to pay the respondents’ costs.
Orders
Orders of the court
1. The applicant’s originating application be set aside pursuant to r 13.01 of the Federal Court Rules 2011 (Cth).
2. The applicant pay the respondent’s costs, to be agreed or assessed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
As to jurisdiction, the applicant submitted this Court has authority to deal with this case as I have made orders for the conduct of this hearing, which would not have occurred if there was no jurisdiction.Consideration Although the respondents press summary dismissal as its prime remedy, it is appropriate to first address the issue of jurisdiction.Jurisdiction The respondents’ submission must be accepted. As the defamatory conduct which is alleged to have occurred relates to statements and omissions by a Victorian Senior Crown Prosecutor (a statutory appointment under s 31 of the Public Prosecutions Act), in a Victorian courtroom in the conduct of the prosecution of an offence contrary to Victorian state law, there appears to be no basis demonstrated which could found the jurisdiction of this Court. This is a state matter. The defamation claims arise under the common law, as modified by the Defamation Act in force in Victoria, and not under any Commonwealth law. To the same effect, any claim that the DPP was negligent for an alleged failure to supervise Mr Gibson QC in the discharge of his functions, would also arise under State law, more precisely, the common law as modified by the Wrongs Act 1958 (Vic). As the present proceedings do not involve any federal claim, this Court also has no accrued or associated jurisdiction to determine the originating applications. For completeness, the applicant’s submission that as the Court made orders in respect to the preparation of the respondents’ interlocutory application it therefore has jurisdiction, is misplaced. The respondents raised, inter alia, the issue of jurisdiction at this early stage of the proceeding. The Court made orders to facilitate submissions on that issue in order to determine whether it did or did not have jurisdiction. The making of those orders does not, in itself mean that the Court has, or considers that it has, jurisdiction to determine the matter. Summary dismissal Although not strictly necessary to consider, in my view, even if I had concluded that there was jurisdiction, for the reasons advanced by the respondents, this is a matter which would be summarily dismissed. First, underpinning the applicant’s submission is the assertion that the statements made by Mr Gibson QC when prosecuting the charge against him, swayed the jury to convict him of a crime he says he did not do. The originating applications challenge, in civil proceedings, the conviction entered against him, and do so in a context where he has unsuccessfully challenged his conviction through the criminal processes. He has exhausted his options through the criminal process. As the respondents correctly submitted, these proceeding, properly considered are a collateral challenge to the criminal conviction. That the applicant submitted that he accepts this proceeding cannot overturn his conviction, does not detract from that proposition. He is seeking compensation of $5,000,000 in respect to each claim, which he contends includes losses due to his incarceration. There is no question that he is alleging he was incorrectly convicted of the offence for which he is currently serving a sentence.