Young v Martin
[2020] QCA 266
•2 December 2020
SUPREME COURT OF QUEENSLAND
CITATION:
Young & Anor v Martin [2020] QCA 266
PARTIES:
SERGEANT MYEE ARANDALE
(first respondent/not a party to the application)
DR JEANNETTE YOUNG
(second respondent/first applicant)
STATE OF QUEENSLAND
(third respondent/second applicant)
v
ARJAY RASE MARTIN
(appellant/respondent)FILE NO/S:
Appeal No 10191 of 2020
DC No 195 of 2020DIVISION:
Court of Appeal
PROCEEDING:
Miscellaneous Application – Civil
ORIGINATING COURT:
District Court at Southport – Unreported, 21 August 2020 (Muir DCJ)
DELIVERED EX TEMPORE:
2 December 2020DELIVERED AT:
Brisbane
HEARING DATE:
2 December 2020
JUDGE:
Morrison JA
ORDERS:
1. Pursuant to rule 69 of the UCPR, the second and third respondents be removed from the application for leave to appeal and the appeal.
2. The respondent to this application pay the applicants’ costs on the standard basis.
3. Direct that the registry not take action on the three requests for subpoenas until further order.
CATCHWORDS:
PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – PARTIES AND REPRESENTATION – PROPER OR NECESSARY PARTY AND STANDING – where the applicants apply to be removed from those proceedings pursuant to rule 69 of the Uniform Civil Procedure Rules 1999 (Qld) – where the applicants were not parties to the proceedings before the Magistrate – where the original notice of appeal did not include them as parties – where they became parties upon the filing of an amended notice of appeal in the District Court – where an application to strike out the appeal came before Muir DCJ – where the application was on the basis that there was no jurisdiction in the District Court to hear an appeal under the Peaceful Assembly Act – where her Honour held there was no jurisdiction to hear the appeal – whether the applicants should be removed from the proceedings
Peaceful Assembly Act 1992 (Qld), s 92
Uniform Civil Procedure Rules 1999 (Qld), r 69Oaky Creek Coal Pty Ltd v Brodsky [2018] 2 Qd R 149; [2017] QSC 188, cited
Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589; [1981] HCA 45, consideredCOUNSEL:
S D Munasinghe for the first and second applicants
The respondent appeared on his own behalfSOLICITORS:
Crown Law for the first and second applicants
The respondent appeared on his own behalf
MORRISON JA: The applicants (the second and third respondents to the application for leave to appeal and the appeal) apply to be removed from those proceedings pursuant to rule 69 of the Uniform Civil Procedure Rules 1999 (Qld). The proceedings concern, in sequence, the following decisions. The first was by Magistrate McKenzie on 29 May 2020. His Honour held that Mr Martin’s notice of intention to hold a public assembly was non-compliant with the Peaceful Assembly Act 1992 (Qld), particularly section 92(h), and, on that basis, prohibited a public assembly sought to be held by him.
Mr Martin lodged an appeal from the decision of Magistrate McKenzie. The applicants were not parties to the proceedings before the Magistrate. The original notice of appeal did not include them as parties. They became parties upon the filing of an amended notice of appeal in the District Court.
The matter was then reviewed by McGinness DCJ in the District Court on 31 July 2020, at which time it was simply adjourned for hearing on 21 August 2020.
The second decision, by Muir DCJ on 21 August 2020, came on an application to strike out the appeal. The application was on the basis that there was no jurisdiction in the District Court to hear an appeal under the Peaceful Assembly Act. Her Honour, after hearing the parties and considering written submissions, held there was no jurisdiction to hear the appeal, relying upon the decision of Justice Jackson in Oaky Creek Coal Pty Ltd v Brodsky,[1] where his Honour held that there was no right of appeal under the Peaceful Assembly Act.
[1][2018] 2 Qd R 149; [2017] QSC 188 at [53].
In my view, the joinder of the applicants was an abuse of process. The appeal to the District Court was from a proceeding in the Magistrates Court to which the applicants were not parties. They were joined in the course of an appeal lodged in the District Court. Muir DCJ held that there was no jurisdiction to hear the appeal.
There is reason to believe that the applicants were joined for collateral purposes, rather than any issue that was dealt with by the Magistrate or that was due to be dealt with on the appeal in the District Court. That is because they were not parties at first instance, but were sought to be made parties on a variety of bases, which included their susceptibility to a claim for damages for a variety of causes of action, which included allegations of fraud, a misuse of public power and other matters. Those issues were not issues before the Magistrate and they were not issues on the appeal before the District Court. The sole issue on the appeal to the District Court would have been whether the Magistrate was correct in holding that Mr Martin’s notice of intention to hold a public assembly was non-compliant with the Peaceful Assembly Act. No other relief was likely to be in issue given that the appeal would have been long after the nominated date for the proposed assembly.
Secondly, it appears that they were joined in order to make applications for access to a very wide range of documents, which go well beyond any legitimate issue in the District Court. So much was, effectively, conceded by Mr Martin in the hearing before me. In addition, he said he had other bases upon which to pursue them, which were essentially grounded in misbehaviour by those parties in their official capacities, rendering them liable for damages sustained by him as a consequence of their actions.
The sole issue before this Court will be whether the learned District Court Judge was right to hold that there was no jurisdiction to hear the appeal. That was the sole issue on the application to strike out. This Court is not concerned with wider issues that might be levied against the applicants under the guise of a cause of action for damages or for breach of public duty or anything else. The only issue is a quite discrete issue, which, if resolved in Mr Martin’s favour, would see the matter remitted to the District Court in order for it to be heard according to law.
Thirdly, Mr Martin submitted that the joinder was necessary to avoid an Anshun estoppel.[2] This was said to be on the basis that he had claims he intended to bring against the second and third respondents in the future, for damages. He said he had sought some informal advice from an unnamed solicitor, who had recommended the joinder to avoid the estoppel. No acceptable evidence of the advice was tendered, and the solicitor’s name was not mentioned. In any event, if such advice were given (which I doubt) it was in error. An Anshun estoppel applies to issues which could have been, but were not, raised in an earlier proceeding between existing parties to a current proceeding. That was never the case here.
[2]See Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589; [1981] HCA 45.
Mr Martin raised questions about the efficacy of remittal to the District Court in the event that he is successful, on the basis that he contends that the District Court Judges and Magistrates in Southport have either exhibited actual bias against him or that there is a reasonable apprehension of bias against him. I pass no comment on those assertions at all, but simply observe that if that were the case and it could be reasonably shown that that was a problem, the remitter could be made to other Judges of the District Court.
In my view, there is no valid reason for the applicants to be kept as parties to this application for leave to appeal and the appeal. I therefore order, pursuant to rule 69 of the UCPR, that they be removed from the application for leave to appeal and the appeal.
On the question of costs, the applicants seek their costs against Mr Martin, on the basis that they were improperly joined and should never have been joined, given that they were not parties to the Magistrates Court proceeding in the first place. Mr Martin has raised a variety of points against that, which I will summarise now.
He contends that there should be no order for costs or, at worst, that any costs order he is subjected to should be paid by the first respondent (Sergeant Arandale) on the basis of its vexatious conduct in, effectively, bringing proceedings in the Magistrates Court and then not conceding that the District Court had jurisdiction to hear the appeal. He contends that this is a public interest case and that warrants that there be no order for costs.
Secondly, that the applicants are model litigants in receipt of public funding far in excess of anything available to him or any other member of the public and for that reason they should not receive an order for costs against him.
Thirdly, he contends that he is impecunious and that that is a reason, combined with others, why a costs order should not be made. Fourthly, that the first respondent should be ordered to pay any costs he is ordered to pay, on the basis that their conduct in the District Court warrants that, as well as considerations of ultimate fairness.
Next, he points out that he relied upon the advice of a solicitor and, therefore, that should be taken into account in deciding not to order costs against him, on the basis that he was not acting vexatiously, but in accordance with advice given to him. The difficulty with that, though, is that he concedes this was not formal advice under a proper retainer.
Next, he contends that the second and third respondents had to be here today anyway, because of other applications with which they are concerned. And, lastly, he contends that each party should bear their own costs, as a matter of ultimate fairness in the case.
In my view, there is no reason why costs should not follow the event. In accordance with the reasons I have given above, the second and third respondents were improperly joined to an appeal proceeding in the District Court when they had not been parties in the Magistrates Court. The joinder was for improper purposes, partly to launch a damages claim against them and to seek disclosure of documents ranging far more widely than the limits of the case. It is true that the second and third respondents are model litigants, but that does not mean that they cannot recover costs, where that is appropriate. In all the circumstances, I can see no good reason why costs should not be ordered. I order that the respondent to this application, the appellant in the appeal, pay the applicants’ costs on the standard basis.
In light of what has been said about the requests for subpoenas, I direct that the registry not take action on the three requests for subpoenas until further order.
The orders are:
1.Pursuant to rule 69 of the UCPR, the second and third respondents be removed from the application for leave to appeal and the appeal.
2.The respondent to this application pay the applicants’ costs on the standard basis.
3.Direct that the registry not take action on the three requests for subpoenas until further order.
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