Rowe v Emmanuel College

Case [2015] QSC 45

SUPREME COURT OF QUEENSLAND

CITATION:

Rowe v Emmanuel College [2015] QSC 45

PARTIES:

CHAD EVERETT ROWE

(applicant)

v

EMMANUEL COLLEGE
ACN 010 563 256

(respondent)

FILE NO:

No 694 of 2015

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

6 March 2015

DELIVERED AT:

Brisbane

HEARING DATE:

18 February 2015

JUDGE:

A Lyons J

ORDER:

The application filed on 19 January 2015 is dismissed.

CATCHWORDS:

PROCEDURE – MISCELLANEOUS PROCEDURAL MATTERS – VEXATIOUS LITIGANTS AND PROCEEDINGS – where the applicant files an application under the Vexatious Proceedings Act 2005 (Qld) – where the applicant seeks leave to file an application to set aside previous orders and undertakings – whether the applicant has disclosed all facts which are material to the application for leave to institute proceedings – whether the application should be dismissed under the Vexatious Proceedings Act 2005 (Qld)

Vexatious Proceedings Act 2005 (Qld), ss 11, 12, and Schedule

Emmanuel College v Rowe [2014] QSC 238, cited
Hutchinson v Bienvenu (Unreported, HCA, 19 October 1971), cited
Jones v Skyring (1992) 109 ALR 303, cited
Mudie v Gainriver Pty Ltd (No 2) [2003] 2 Qd R 271, cited
Re Cameron [1996] 2 Qd R 218, considered
Re Skyring [2014] QSC 28, cited
Re Vernazza [1960] 1 QB 197, cited

Rowe v Emmanuel College [2015] QSC 3, cited
Rowe v Emmanuel College & Anor [2015] QSC 2, cited
Rowe v Emmanuel College & Schultz [2013] QCA 326, cited

COUNSEL:

Applicant in person

SOLICITORS:

Applicant in person

ANN LYONS J:

The current application

  1. Since June 2013, the applicant has been involved in a number of proceedings in this Court involving the respondent, Emmanuel College (“the College”), and his former wife. There have also been a number of applications in the Queensland Civil and Administrative Tribunal (“QCAT”) as well as the Federal Court, the Federal Circuit Court and the Magistrates Court. Pursuant to undertakings he has previously given to this Court, the applicant is required to comply with the provisions of the Vexatious Proceedings Act 2005 (Qld) (“VPA”) before he can institute any further proceedings in this Court.

  2. On 19 January 2015, Mr Rowe filed an application seeking Orders pursuant to s 11 of the VPA to serve the College with a copy of his proposed application which seeks “leave to file an application to set aside” the following Orders and Undertakings:

    (a)     the Order of Dalton J of 21 November 2013 as extended by Byrne SJA on 26 and 27 November 2013;

    (b)     the Undertakings entered by the Registrar on 17 December 2013; and

    (c)     Orders 1 and 3 of Atkinson J made on 29 September 2014.

    History

  3. In order to understand the current application, it is necessary to outline some of the history of the litigation.[1] The applicant Mr Rowe and his ex-wife Alison Schultz are the parents of a young child who attends Emmanuel College. A dispute arose between Mr Rowe and the College in 2013 about…

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Rowe v Emmanuel College [2015] QSC 45
Case
[2015] QSC 45
Decision Date

CaseChat Overview and Summary

The case of Rowe v Emmanuel College involved the applicant, Mr Rowe, a solicitor, seeking leave to file an application to set aside previous orders and undertakings made by the court. The dispute arose from a Deed of Settlement and subsequent court orders, which Mr Rowe sought to challenge. The court was required to determine whether Mr Rowe had disclosed all facts material to his application for leave to institute proceedings, as required by the Vexatious Proceedings Act 2005 (Qld), and whether the application should be dismissed under that Act.

The court found that Mr Rowe had not disclosed all facts material to his application for leave. It was clear that he intended to challenge the 2013 Orders made by Dalton J and Byrne SJA, and the 2014 Orders made by Atkinson J. The court concluded that Mr Rowe’s application did not seek to appeal the orders but to set them aside, aiming to argue that the college had failed in its obligations under the Deed of Settlement and that the Deed of Settlement had been terminated. The court noted that Mr Rowe had not sought to appeal the orders but wished to commence new proceedings to set them aside.

The court ultimately determined that Mr Rowe had not fully disclosed the material facts of his application. The Vexatious Proceedings Act requires that all relevant facts be disclosed to the court. The court held that Mr Rowe’s application did not meet this requirement and dismissed the application under the Act. Consequently, Mr Rowe was not granted leave to file the proposed application to set aside the previous orders and undertakings.

The court made an order dismissing the application filed on 19 January 2015. Mr Rowe was not granted leave to institute the proceedings he sought to bring, effectively preventing him from challenging the previous court orders through a new application.

Orders

Orders of the court

The application filed on 19 January 2015 is dismissed.

Background

Background to the litigation

Section 11(3)(c) of the VPA, however, requires that the applicant disclose all facts which are material to the application for leave to institute a proceeding. Has Mr Rowe disclosed all facts which are material to the application for leave to institute proceedings? It would seem from my reading of Mr Rowe’s submissions that he seeks leave essentially to agitate two issues in the proposed proceedings. The first relates to the Orders and Undertakings made in 2013 (“the 2013 Orders”) which relate to the Deed of Settlement, and the second issue relates to the decision of Atkinson J of 29 September 2014 (“the 2014 Orders”). Mr Rowe is a solicitor and he has in other applications sought leave to file applications to appeal to the Court of Appeal. I should make it clear that they are not, however, the orders he now seeks. The word ‘appeal’ does not appear anywhere on the application in relation to the 2013 Orders or the 2014 Orders. It would seem manifestly clear from the wording of his current application that he does not actually wish to file an appeal to the Court of Appeal in relation to the making of any of those Orders, but rather he wishes to institute proceedings in the trial division to “set aside” the 2013 Orders of Dalton J, Byrne SJA and the 2014 Orders of Atkinson J. In relation to the 2013 Orders, he wishes to institute a proceeding against the College on the basis that it has failed in its obligations under the Deed of Settlement, and argue that the Deed of Settlement has been terminated. In relation to the 2014 Orders, I note that not only does Mr Rowe not seek leave to file an application to appeal to the Court of Appeal, but in seeking to only have Orders 1and 3 set aside, he is not arguing about the sentence actually imposed. In relation to the 2013 Orders, Mr Rowe now seeks leave to institute proceedings against the College in which he says it has failed to comply with an obligation it has under the Deed of Settlement to make available to him copies of all relevant documents and information pertaining to his daughter. He argues that those failures constitute a breach of the Deed of Settlement and that on 20 November 2013 he sent a “notice to remedy breach” to the College, and on 28 November 2013 he purported to terminate the Deed of Settlement for serious breach of the Deed of Settlement. Accordingly, with respect to that aspect of the application, Mr Rowe wishes to commence a matter in which he would seek an order that the order of Dalton J of 21 November 2013 in BS 5853 of 2013, as extended by Byrne SJA on 26 November 2013 and further extended on 27 November 2013, be set aside and that the undertakings recorded in the order entered by the Registrar on 17 December 2013 in that proceeding be set aside. In relation to that aspect of his current application, Mr Rowe is arguing that Emmanuel College has failed, refused and/or neglected to comply with the requirements under the Deed of Settlement. He argues that he has given the College sufficient notice to comply with the Deed of Settlement and now claims termination of the Deed of Settlement on the basis that there has been a breach of an essential term of the agreement by the College, or alternatively, termination on the basis that there has been repudiation of the Deed of Settlement by the first respondent. He argues that the Deed of Settlement is an essential part of the agreement, and while time was not specified in the clause, he argues it was made of the essence when the notice to remedy breach was served on the first respondent.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

On 29 September 2014, Atkinson J held as follows:[3]“Conclusion[72] I am satisfied beyond reasonable doubt that Mr Rowe committed contempt by breaching:(1) the order of Dalton J made on 21 November 2013 in proceeding No. BS 5853 of 2013 ("the principal proceeding") as extended by order of Byrne SJA on 26 November 2013 and further extended on 27 November 2013; and(2) the undertakings recorded in the order entered by the Registrar on 17 December 2013 in the principal proceeding pursuant to the order of Byrne SJA of 27 November 2013.[73]I am satisfied that he committed those contempts as particularised in particulars 1, 2, 4, 5, 6, 7, 8, 9, 10, 11, 12 and 13.[3] Emmanuel College v Rowe [2014] QSC 238.Punishment[74] Having been satisfied that Mr Rowe has committed contempt of court, I turn now to the question of punishment.[75] Notwithstanding the obvious emotional turmoil brought about by the end of his marriage and his bitter disputes with his daughter's school, Mr Rowe was in a position to know that he ought not do what he was doing. He was a practising solicitor with expertise in information technology which enabled him to post the material and hide to a certain extent what he was doing. As a solicitor he was more than ordinarily aware of the need to comply with orders made by and undertakings given to the court. His explanation of why he initially formed the opinion that he did not have to comply with court orders lacked any credibility.[76] All of the posts were damaging to the applicant but some were particularly offensive and the offensiveness of the posts appeared to escalate. Mr Rowe was extremely persistent in his behaviour and continued to post to the internet despite orders made to the contrary. It appears that only the fear of imprisonment as a result of remarks made by Daubney J on the day this contempt application was first set down for hearing on 22 July 2014 caused him to remove those postings from the internet. The breach of court orders and undertakings was wilful and deliberate and not casual, incidental or unintentional.[77] The purpose of penalty in a case such as this is both to punish the contemnor and to deter him from future offending behaviour. In order to achieve these objectives, I sentence Chad Everett Rowe to 12 months imprisonment wholly suspended for a period of three years. Any further publications by Mr Rowe in breach of the orders and undertakings during the period of suspension would lead to his having to serve the 12 months period of imprisonment in actual custody.[78]He should be ordered to pay the applicant's costs on an indemnity basis.” Accordingly, Atkinson J was satisfied that Mr Rowe had committed contempt of court by publishing or causing to be published a number of internet postings which breached orders of the Court. I note that Mr Rowe had admitted the conduct complained of in relation to Particular 13 between 21 November 2013 and 5 February 2014. Mr Rowe was sentenced to 12 months’ imprisonment wholly suspended for a period of three years and ordered to pay the College’s costs on an indemnity basis.

Ratio Decidendi

Legal Principle Established

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