Quail v Gibson

Case [2021] FCA 1115


FEDERAL COURT OF AUSTRALIA

Quail v Gibson [2021] FCA 1115  

File numbers: VID 321 of 2020
VID 458 of 2020
Judgment 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

Spencer v Commonwealth [2010] HCA 28; (2010) 241 CLR 118

The Queen v Quail [2013] VSC 190

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:

  1. 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

In the matter of Quail v Gibson, the respondent, Gibson, sought an order setting aside the applicant’s originating application and costs. The applicant, Quail, had filed proceedings alleging defamation and negligence against Gibson, a Victorian Senior Crown Prosecutor, and another party. The case was before the Federal Court of Australia. The court had to decide whether it had jurisdiction to hear the matter and if the proceedings should be summarily dismissed.

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

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

In that context it is unnecessary to consider the scope of s 46 of the Public Prosecutions Act.Conclusion The application that the originating applications be set aside pursuant to r 13.01(1) of the FC Rules on the basis of lack of jurisdiction is granted. If I had not so concluded, the proceedings would have been summarily dismissed. The applicant is to pay the respondents’ costs to be agreed or assessed.

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.