WH v CK

Case [2023] QMC 19 22 December 2023

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MAGISTRATES COURTS OF QUEENSLAND

CITATION:

WH v CK [2023] QMC 19

PARTIES:

WH (Complainant)

v

CK (Defendant)

FILE NO/S:

MAG-000691007/23(1)

DIVISION:

Magistrates Courts

PROCEEDING:

Application for strike out or dismissal

Application for leave to amend complaint

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 COMPLAINANT’S APPLICATIONS FILED ON 3 JULY 2023 AND 5 SEPTEMBER 2023 ARE DISMISSED.

2.   THE COMPLAINT IS STRUCK OUT PURSUANT TO SECTION 102B(3) OF THE JUSTICES ACT 1886 (QLD).

3.   THE COMPLAINANT MUST PAY THE DEFENDANT’S COSTS OF AND INCIDENTAL TO THE PROCEEDING IN THE SUM OF $ 3047.20.

CATCHWORDS:

CRIMINAL PROCEDURE—PRE-TRIAL PROCEDURE— APPLICATION FOR STRIKE OUT OR DISMISSAL OF PRIVATE COMPLAINT PURSUANT TO JUSTICES ACT 1886 (QLD) PART 5 DIVISION 2— where private complaint— whether Part 5 Division 2 applicable— whether sufficient particulars provided— where application for leave to amend complaint made in response to application—whether complaint should be struck out pursuant to s 102B— in the alternative, whether complaint should be dismissed pursuant to s 102C – whether complaint is an abuse of process or frivolous or vexatious— further in the alternative, whether complaint should be permanently stayed or dismissed pursuant to the implied powers of the Magistrates Court

CRIMINAL PROCEDURE—PRE-TRIAL PROCEDURE—APPLICATION FOR LEAVE TO AMEND COMPLAINT—where application brought in response to application for strike out or dismissal –whether complaint within or beyond reach of power of amendment—whether amendment necessary or desirable in the interests of justice

CRIMINAL PROCEDURE—SUMMARY PROCEEDINGS—COSTS—where costs sought pursuant to 102B(3) of the JUSTICES ACT 1886 (QLD)—whether ‘just’ to make an order for costs

Justices Act 1886 (Qld) s 48, Part 5 Division 2, ss 102A, 102B, 102B(3), 102C

Re Cameron [1996] 2 Qd R 218

Harrison v President of the Industrial Court of Queensland (2017) 1 Qd R 515

Grassby v the Queen (1989) 1 CLR 1

Higgins v Comans (2005) 153 Crim R 565

J Hutchinson Pty Ltd v Guilfoyle [2022] QCA 186

Jeffery & Katauskas Pty Ltd v SST Consulting Pty Ltd (2009) 239 CLR 75

John L Pty Ltd v Attorney-General (NSW) (1987) 163 CLR 508

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
NK Collins Industries Pty Ltd v President, Industrial Court of Queensland (2014) 2 Qd R 304

P v H [2015] QSC 351.

Power v Heyward [2007] 2 Qd R 6

S Kidman & Co Ltd v Lowndes CM (2016) 314 FLR 358

Walton v Gardiner (1993) 177 CLR 378

APPEARANCES:

Ms WH appears in person as the Complainant/Respondent to the application

Mr Pemberton JP of Counsel instructed by QPS Legal Unit appears for the Defendant/Applicant

The Defendant (CK) is a sworn police officer. In her application filed on 26 June 2023 (as amended on 4 July 2023 and as further amended by leave on 6 October 2023), she applies for strike out of a private prosecution…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading WH v CK

Details

AGLC: WH v CK [2023] QMC 19
Case: [2023] QMC 19
Decision Date: 22 December 2023

CaseChat Overview and Summary

The case of WH v CK involved an application by the defendant, CK, to strike out or dismiss a private complaint lodged by the complainant, WH. The application was heard in the Magistrates Court of Queensland. The core issue was whether the private complaint lodged by WH contained sufficient particulars to proceed and whether it should be struck out or dismissed under the provisions of the Justices Act 1886 (Qld) or by virtue of the court's inherent jurisdiction.

The court examined whether the complaint met the statutory requirements of Part 5 Division 2 of the Justices Act, specifically if it provided adequate detail for the court to understand the nature of the complaint. The court also considered if WH's complaint could be amended to meet these requirements, and whether any such amendment would be in the interests of justice. Furthermore, the court assessed if the complaint was an abuse of process or frivolous or vexatious, and if the court should exercise its inherent power to permanently stay or dismiss the complaint.

In its reasoning, the court found that the private complaint did not contain sufficient particulars and that it did not fall within the ambit of what could be amended. The court also determined that the complaint was indeed frivolous and vexatious. Consequently, the complaint was struck out under section 102B(3) of the Justices Act, and WH was ordered to pay CK's costs of and incidental to the proceeding.

The court dismissed the complainant's applications for leave to amend the complaint and any further applications to stay or dismiss the complaint. The orders included the dismissal of WH's applications, the striking out of the complaint, and the imposition of costs on WH in the amount of $3047.20.

Orders

Orders of the court

1. THE COMPLAINANT’S APPLICATIONS FILED ON 3 JULY 2023 AND 5 SEPTEMBER 2023 ARE DISMISSED.

2. THE COMPLAINT IS STRUCK OUT PURSUANT TO SECTION 102B(3) OF THE JUSTICES ACT 1886 (QLD).

3. THE COMPLAINANT MUST PAY THE DEFENDANT’S COSTS OF AND INCIDENTAL TO THE PROCEEDING IN THE SUM OF $ 3047.20.

Background

Background to the litigation

Full text does not contain this section.

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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Actions

Citations

WH v CK [2023] QMC 19

Cases Citing This Decision

No citing cases yet.

Cases Cited

J Hutchinson Pty Ltd v Guilfoyle [2022] QCA 186
Citation 1 (Para 1)

…nce known to law.[15] [14] Harrison v President of the Industrial Court of Queensland (2017) 1 Qd R 515, [101]. [15] J Hutchinson Pty Ltd v Guilfoyle [2022] QCA 186, [36] to [40] (per Bowskill CJ, Morrison and Dalton JJ).…
R v BDJ [2020] QCA 27
Citation 2 (Para 1)

…identifiable transaction constituting the description of the charge, and which can be distinguished from other similar incidents in the evidence. [46][2020] QCA 27, [98].…
S Kidman & Co Ltd v Dr John Lowndes CM and Director of Public Prosecutions (NT) [2016] NTCA 5
Citation 3 (Para 1)

…Kidman ). [22][2022] QCA 186 (per Bowskill CJ, Morrison and Dalton JJ). [23][2022] QCA 186, [30] (per Bowskill CJ, Morrison and Dalton JJ). [24](2016) 314 FLR 358.…
Harrison v President of the Industrial Court of Queensland [2016] QCA 153
Citation 4 (Para 1)

…d amendment power, extending to defects of substance or form[14] and may extend to cases where it does not disclose an offence known to law.[15] [14] Harrison v President of the Industrial Court of Queensland (2017) 1 Qd R 515, [101]. [15] J Hutchinson Pty Ltd v Guilfoyle [2022] QCA 186, [36] to [40] (per Bowskill CJ, Morrison and Dalton JJ).…
P v H [2015] QSC 351
Citation 5 (Para 1)

…of process because it is manifestly groundless and without foundation,[54] manifestly unfair to the Defendant[55] and doomed to fail. [56] [53] P v H [2015] QSC 351, [61] (Applegarth J). [54] Jeffery & Katauskas Pty Ltd v SST Consulting Pty Ltd (2009)239 CLR 75, [27] (French CJ, Gummow, Hayne and Crennan JJ). [55…
Karimbla Construction Services P/L v President of the Industrial Court of Qld [2014] QSC 56
Citation 6 (Para 1)

…8; Kirk v Industrial Court of New South Wales (2010) 239 CLR 531; Karimbla Construction Services Pty Ltd v President of Industrial Court of Qld & Ors [2014] QSC 56; Harrison v President of the Industrial Court of Queensland (2017) 1 Qd R 515.…
Kirk v Industrial Court of New South Wales [2010] HCA 1
Citation 7 (Para 1)

…he jurisdiction of the court (and is a nullity), is not settled.[16] [16]For example, see John L Pty Ltd v Attorney-General (NSW) (1987) 163 CLR 508; Kirk v Industrial Court of New South Wales (2010) 239 CLR 531; Karimbla Construction Services Pty Ltd v President of Industrial Court of Qld & Ors [2014] QSC 56; Harrison v President of the Industria…
Jeffery & Katauskas Pty Ltd v SST Consulting Pty Ltd [2009] HCA 43
Citation 8

…65 J Hutchinson Pty Ltd v Guilfoyle [2022] QCA 186 Jeffery & Katauskas Pty Ltd v SST Consulting Pty Ltd (2009) 239 CLR 75 John L Pty Ltd v Attorney-General (NSW) (1987) 163 CLR 508 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 NK Colli…
Hearne v Street [2008] HCA 36
Citation 9 (Para 1)

…gs[67] or that the use of the material disclosed to her in her criminal proceedings is limited to the proceedings in which it was disclosed.[68] [67] Hearne v Street (2008) 235 CLR 152 [96] (per Hayne, Heydon and Crennan JJ) [68] Johns v Australian Securities Commission (1993) 178 CLR 408, 423-424 (per Brennan J)…
Higgins v Comans [2005] QCA 234
Citation 10 (Para 1)

…rcise its implied powers in respect of the matter, so long as this does not contravene a provision.[92] [89] Power v Heyward [2007] 2 Qd.R 6, [16]; Higgins v Comans (2005) 153 Crim R 565, [15-16, 22, 28]. [90] Power v Heyward [2007] 2 Qd.R 6, [16]. [91] Power v Heyward [2007] 2 Qd.R 6, [16]; Grassby v Queen (1989)1CLR 1,…
Johns v Australian Securities Commission [1993] HCA 56
Citation 11 (Para 1)

…h it was disclosed.[68] [67] Hearne v Street (2008) 235 CLR 152 [96] (per Hayne, Heydon and Crennan JJ) [68] Johns v Australian Securities Commission (1993) 178 CLR 408, 423-424 (per Brennan J)…
Walton v Gardiner [1993] HCA 77
Citation 12 (Para 1)

…[61] (Applegarth J). [54] Jeffery & Katauskas Pty Ltd v SST Consulting Pty Ltd (2009)239 CLR 75, [27] (French CJ, Gummow, Hayne and Crennan JJ). [55] Walton v Gardiner (1993) 177 CLR 378, 393 (Mason CJ, Deane and Dawson JJ). [56] P v H [2015] QSC 351, [61] (Applegarth J).…
Landsal Pty Ltd (In liq) v REI Building Society [1993] FCA 171
Citation 13 (Para 1)

…2 Qd.R 6, [16]. [91] Power v Heyward [2007] 2 Qd.R 6, [16]; Grassby v Queen (1989)1CLR 1, 17. [92] Landsal Pty Ltd (in liq) v REI Building Society (1993) 41 FCR 421, 427.…
John L Pty Ltd v Attorney-General (NSW) [1987] HCA 42
Citation 14 (Para 1)

…, and either cannot, or ought not be cured by amendment[12] pursuant to the JA. [12]Reliance is placed on John L Pty Ltd v Attorney-General (NSW) (1987) 163 CLR 508, esp. 527-528.…

Legislation Cited

Justices Act 1886 (Qld) 102B, 102B(3), 102C, 48
5 mentions (from Para 1)
Copyright Act 1968 (Cth)
1 mention (from Para 1)
Evidence Act 1977 (Qld)
1 mention (from Para 1)
Police Powers and Responsibilities Act 2000 (Qld)
1 mention (from Para 1)
Uniform Civil Procedure Rules 1999 (Qld)
1 mention (from Para 1)

CITATION:	WH v CK [2023] QMC 19
PARTIES:	WH (Complainant) v CK (Defendant)
FILE NO/S:	MAG-000691007/23(1)
DIVISION:	Magistrates Courts
PROCEEDING:	Application for strike out or dismissal Application for leave to amend complaint
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 COMPLAINANT’S APPLICATIONS FILED ON 3 JULY 2023 AND 5 SEPTEMBER 2023 ARE DISMISSED. 2. *THE COMPLAINT IS STRUCK OUT PURSUANT TO SECTION 102B(3) OF THE JUSTICES ACT* 1886 (QLD). 3. THE COMPLAINANT MUST PAY THE DEFENDANT’S COSTS OF AND INCIDENTAL TO THE PROCEEDING IN THE SUM OF $ 3047.20.**
CATCHWORDS:	CRIMINAL PROCEDURE—PRE-TRIAL PROCEDURE— APPLICATION FOR STRIKE OUT OR DISMISSAL OF PRIVATE COMPLAINT PURSUANT TO JUSTICES ACT 1886 (QLD) PART 5 DIVISION 2— where private complaint— whether Part 5 Division 2 applicable— whether sufficient particulars provided— where application for leave to amend complaint made in response to application—whether complaint should be struck out pursuant to s 102B— in the alternative, whether complaint should be dismissed pursuant to s 102C – whether complaint is an abuse of process or frivolous or vexatious— further in the alternative, whether complaint should be permanently stayed or dismissed pursuant to the implied powers of the Magistrates Court CRIMINAL PROCEDURE—PRE-TRIAL PROCEDURE—APPLICATION FOR LEAVE TO AMEND COMPLAINT—where application brought in response to application for strike out or dismissal –whether complaint within or beyond reach of power of amendment—whether amendment necessary or desirable in the interests of justice CRIMINAL PROCEDURE—SUMMARY PROCEEDINGS—COSTS—where costs sought pursuant to 102B(3) of the JUSTICES ACT 1886 (QLD)—whether ‘just’ to make an order for costs Justices Act 1886 (Qld) s 48, Part 5 Division 2, ss 102A, 102B, 102B(3), 102C Re Cameron [1996] 2 Qd R 218 Harrison v President of the Industrial Court of Queensland (2017) 1 Qd R 515 Grassby v the Queen (1989) 1 CLR 1 Higgins v Comans (2005) 153 Crim R 565 J Hutchinson Pty Ltd v Guilfoyle [2022] QCA 186 Jeffery & Katauskas Pty Ltd v SST Consulting Pty Ltd (2009) 239 CLR 75 John L Pty Ltd v Attorney-General (NSW) (1987) 163 CLR 508 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 NK Collins Industries Pty Ltd v President, Industrial Court of Queensland (2014) 2 Qd R 304 P v H [2015] QSC 351. Power v Heyward [2007] 2 Qd R 6 S Kidman & Co Ltd v Lowndes CM (2016) 314 FLR 358 Walton v Gardiner (1993) 177 CLR 378
APPEARANCES:	Ms WH appears in person as the Complainant/Respondent to the application Mr Pemberton JP of Counsel instructed by QPS Legal Unit appears for the Defendant/Applicant