MAGISTRATES COURTS OF QUEENSLAND
CITATION:
Ward v Saleh [2023] QMC 18
PARTIES:
Heidi Ward (Complainant)
v
Mohamed Saleh (Defendant)
FILE NO/S:
MAG-00069095/23(2)
DIVISION:
Magistrates Courts
PROCEEDING:
Application for strike out or permanent stay
ORIGINATING COURT:
Proserpine Magistrates Court
DELIVERED ON:
22 December 2023
DELIVERED AT:
Proserpine Magistrates Court
HEARING DATE:
6 October 2023
MAGISTRATE:
Magistrate Howard
ORDER:
1. THE PROCEEDING IS PERMANENTLY STAYED;
2. THE PARTIES MAY FILE IN THE COURT AND SERVE ON THE OTHER PARTY ANY FURTHER WRITTEN SUBMISSIONS OF NO MORE THAN 3 A4 PAGES AS TO THE POWER OF THE COURT TO MAKE AN ORDER FOR COSTS BY 29 JANUARY 2024;
3. THE DECISION ON THE COSTS APPLICATION IS FURTHER RESERVED.
CATCHWORDS:
CRIMINAL PROCEDURE—PRE-TRIAL PROCEDURE—APPLICATIONS FOR STAYS OF PROCEEDINGS — where private complaint – where orders made by Court for particulars and subsequently for further and better particulars—where duty alleged to be breached by act or omission of Defendant is not specified – where complaint alleges perverse failure of Defendant to ‘adequately’ act – where standard against which adequacy is to be measured not specified – where complaint is duplicitous— whether the complaint contains the essential factual ingredients so as to engage the jurisdiction of the Court—whether the Complainant has failed to provide sufficient particulars as ordered by the Court —whether the complaint is foredoomed to fail and/or the Defendant has no case to answer
CRIMINAL PROCEDURE—PRE-TRIAL PROCEDURE—APPLICATIONS FOR STAYS OF PROCEEDINGS—
IMPLIED POWERS OF MAGISTRATES COURT—whether the complaint is an abuse of process or frivolous or vexatious—whether jurisdiction of the Court is engaged by the Complaint—whether Complainant acting in accordance with prosecutorial duties – where private complaint—where the complaint does not contain the essential factual ingredients so as to engage the jurisdiction of the Court—where the Complainant has failed to provide sufficient particulars as ordered by the Court —where the complaint is foredoomed to fail
CRIMINAL PROCEDURE—SUMMARY PROCEEDINGS—COSTS-- where Defendant seeks costs pursuant to s158 of the Justices Act 1886((Qld) – where proceedings permanently stayed—whether power to award costs
Criminal Code 1899 (Qld) ss 200, 564
Justices Act 1886 (Qld) ss 42, 43, 48, 158
Domestic and Family Violence Protection Act 2012 (Qld) s 100
Re Cameron [1996] 2 Qd R 218
Dupois v Queensland Police Service [2020] QDC 328
Grassby v the Queen (1989) 1 CLR 1
Harrison v President of the Industrial Court of Queensland (2017) 1 Qd R 515
J Hutchinson Pty Ltd v Guilfoyle [2022] QCA 186
Jago v District Court (NSW) (1989) 168 CLR 23
Jeffrey & Katauskas Pty Ltd v SST Consulting Pty Ltd [2009] HCA 43
Kirk v Industrial Court of New South Wales (2010) 239 CLR 531
Landsal Pty Ltd (in liq) v REI Building Society (1993) 41 FCR 421
Pelechowski v The Registrar, Court of Appeal (NSW) (1999) 198 CLR 435
Power v Heyward [2007] 2 Qd.R 6
R v BDJ (2020) QCA 27
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- AGLC
- Ward v Saleh [2023] QMC 18
- Case
- [2023] QMC 18
- Decision Date
CaseChat Overview and Summary
The legal issues the court was required to decide centred on the sufficiency of the complaint. The court had to determine whether the complaint contained the essential factual ingredients necessary to engage its jurisdiction and whether the plaintiff had complied with the court's orders for particulars and further particulars. Additionally, the court needed to assess whether the complaint was fundamentally flawed and whether the defendant had a case to answer. The court had to weigh the adequacy of the complaint against the principles of fairness and procedural justice.
In its reasoning, the court found that the complaint was insufficiently particularised, as it failed to specify the duty allegedly breached, the standard against which adequacy was to be measured, and the precise nature of the defendant's alleged omissions. The court concluded that the complaint was vague, duplicitous, and did not provide sufficient particulars as ordered. Given these findings, the court determined that the complaint was unlikely to succeed and that the defendant had no case to answer. Consequently, the court permanently stayed the proceedings and reserved the decision on the costs application for further consideration.
The orders of the court included a permanent stay of the proceedings, a directive for the parties to file and serve any further written submissions on the costs application by a specified date, and a reservation of the decision on the costs application. This outcome effectively brought the matter to a close, barring any further action by the plaintiff against the defendant in relation to the complaint.
Orders
Orders of the court
1. THE PROCEEDING IS PERMANENTLY STAYED;
2. THE PARTIES MAY FILE IN THE COURT AND SERVE ON THE OTHER PARTY ANY FURTHER WRITTEN SUBMISSIONS OF NO MORE THAN 3 A4 PAGES AS TO THE POWER OF THE COURT TO MAKE AN ORDER FOR COSTS BY 29 JANUARY 2024;
3. THE DECISION ON THE COSTS APPLICATION IS FURTHER RESERVED.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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