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Mowen v State of Queensland

 

[2018] QSC 183

 

SUPREME COURT OF QUEENSLAND

 

CITATION:

Mowen v State of Queensland [2018] QSC 183

PARTIES:

BEVAN ALAN MOWEN

(applicant)

v

STATE OF QUEENSLAND

(respondent)

FILE NO/S:

635 of 2017

DIVISION:

Trial

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Rockhampton

DELIVERED ON:

14 August 2018

DELIVERED AT:

Rockhampton

HEARING DATE:

20 July 2018

JUDGE:

Crow J

ORDER:

  1. “State of Queensland” be substituted for “The Crown in the State of Queensland” as the proper name of the respondent.
  2. The applicant’s application filed 20 October 2017 and amended application filed 14 May 2018 be dismissed.
  3. There be judgment for the respondent against the applicant on the claim.
  4. The applicant pay the respondent’s standard costs assessed at $9,000.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – SERVICE – GENERALLY – where the applicant served the State of Queensland by serving his local state member of parliament – where the applicant was informed by Crown Law that this was not proper service – whether this was proper service under the Crown Proceedings Act 1980 (Qld)

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – ENDING PROCEEDINGS EARLY – SUMMARY DISPOSAL – SUMMARY JUDGMENT FOR THE DEFENDANT OR RESPONDENT: STAY OR DISMISSAL OF PROCEEDINGS – where the applicant filed an application for default judgment – where the applicant filed an amended application seeking, in addition to default judgment that a trial date be set – where the application for default judgment cannot succeed as the applicant has not properly served his claim and statement of claim – where the respondent brought an application for default judgment on the claim which had not been properly served – where summary judgment for the respondent requires as a prerequisite that a defence be filed – where due to the failure to properly serve the claim and statement of claim the respondent has failed to meet the prerequisite of filing a defence – whether there should be judgment for the respondent against the applicant

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – INDEMNITY COSTS – RELEVANT CONSIDERATIONS GENERALLY – where the respondent seeks an order for indemnity costs – where the applicant opposes an order for indemnity costs – where the applicant is a self-represented litigant – whether costs should be awarded on an indemnity basis

Crown Proceedings Act 1980 (Qld), s 19

Uniform Civil Procedure Rules 1999 (Qld) r 5, r 171, r 281, r 282, r 283, r 293, r 371, r 469

Mowen v Rockhampton Regional Council, [2018] QSC 44, cited

Fingleton v The Queen (2005) 227 CLR 166, followed

The Beach Retreat Pty Ltd v Mooloolaba Yacht Club Marina Ltd & Ors [2009] QSC 84, cited

COUNSEL:

The applicant appeared on his own behalf

A M Arnold for the respondent

SOLICITORS:

The applicant appeared on his own behalf

Crown Law for the respondent

  1. [1]
    On 11 September 2017, Mr Mowen filed a claim in the Supreme Court of Queensland seeking damages in the sum of $30,240,000 for trespass to the person as a result of assault, battery and false imprisonment.
  1. [2]
    The claim is brought against the State of Queensland and relates to when Mr Mowen was found guilty of contempt at the Magistrates Court at Rockhampton and sentenced to 14 days’ imprisonment. Following sentence, Mr Mowen was taken to the Capricornia Correctional Facility for seven days before being released on parole for the remainder of the sentence. Mr Mowen claims that his sentence to imprisonment was unlawful and vindictive.
  2. [3]
    Mr Mowen appealed his conviction for contempt of Court and the appeal was conceded by the Crown. The allegation of contempt was remitted back to the Magistrates Court at Rockhampton to be heard and determined according to law.  From Mr Mowen’s perspective as a layman, the fact that he was incorrectly sentenced to a period of imprisonment for 14 days results in the logical consequence that he was falsely imprisoned and therefore he is entitled to claim damages for his false imprisonment.
  3. [4]
    It is in this respect that Mr Mowen filed his claim for $30,240,000 against the State of Queensland. In filing the claim in the Supreme Court, Mr Mowen served the State Member for Rockhampton, Mr Bill Byrne, at his Rockhampton place of business. This was carried out by leaving the claim and statement of claim with Mr Byrne’s staff member. That occurred on 18 September 2017. It is plain that that is improper service and contravenes s 19 of the Crown Proceedings Act 1980 (Qld). Section 19 provides:

19  Service of documents

  1. (1)
    Subject to any other Act or law or any practice, a document or other writing required to be served on the Crown for the purposes of or in connection with a proceeding by or against the Crown shall be served on the crown solicitor and service of a document or other writing in accordance with this subsection shall be duly effected if it is left at the office of the crown solicitor with some responsible person.
  2. (2)
    Save as prescribed by subsection (1), a notice, order or other writing authorised or required by this Act to be given to or served on any person shall be duly given or served if—
    1. it is served personally on the person to whom it is directed;
    2. it is left at the place of residence or business of the person to whom it is directed last known to the person who gives it;
    3. it is sent by post to the place of residence or business of the person to whom it is directed last known to the person who gives it.
  1. [5]
    Mr Byrne forwarded a copy of the claim and statement of claim to the Crown Law Office, whom on 19 October 2017 wrote to Mr Mowen, informing him that the service to Mr Byrne was not proper service. Mr Mowen was also informed:

“In order to properly effect service on the State of Queensland service must be effected in accordance with s 19 [of] the Crown Proceedings Act 1980. You have not properly served the State of Queensland by serving Mr Byrne.  The claim must be served on the office of the Crown Solicitor by leaving it with a responsible person who is authorised to accept service.”

  1. [6]
    The senior principal lawyer for the Crown Solicitor thus informed Mr Mowen of precisely what he needed to do to regularise and properly bring proceedings. Mr Mowen has deliberately chosen not to undertake the correct method of service, as from his perspective it was pointless to properly serve the Crown, when the Crown Solicitor was writing to him. Again, from a layman’s perspective, Mr Mowen’s perspective would seem logical, however it does not accord with the law.
  2. [7]
    On 8 May 2018, Mr Mowen filed an application for default judgment pursuant to rr 281, 282 and 283 of the Uniform Civil Procedure Rules 1999 (Qld). On 14 May 2018, Mr Mowen filed an amended application seeking, in addition to default judgment under rr 281, 282 and 283 of the Uniform Civil Procedure Rules 1999 (Qld), that a trial date be set pursuant to r 469 of the Uniform Civil Procedure Rules 1999 (Qld). It is plain that Mr Mowen’s application for default judgment cannot succeed as Mr Mowen has never properly served his claim and statement of claim. Furthermore, it is clear that a Court cannot exercise its discretion in favour of Mr Mowen pursuant to r 469 of the Uniform Civil Procedure Rules 1999 (Qld) in circumstances where the claim has never been properly served, and hence there is no defence, nor has any other interlocutory step been undertaken.  Mr Mowen’s application filed 8 May 2018 and his amended application dated 14 May 2018 was dismissed.
  3. [8]
    On 11 May 2018, the respondent filed an application requesting that its correct name under the Crown Proceedings Act 1980 (Qld) the “State of Queensland” be substituted for “The Crown in the State of Queensland”.  Mr Mowen did not oppose that application. The State of Queensland then brought an application for judgment on the claim which had not been properly served pursuant to r 293, alternatively an application to strike out the claim and statement of claim. There was also a further application for indemnity costs.
  4. [9]
    The basis of the respondent’s application is that the claim discloses no cause of action. The respondent’s submission is rightly made. In Fingleton v The Queen Gleeson CJ said:[1]

“We are concerned with the application of the Code, not the common law. Even so, it is material to note the policy of the common law, reflected also in the Code. Most discussion of judicial immunity concerns the possibility of civil liability, including liability for damages, at the suit of an aggrieved litigant. The general principle is as stated by Lord Denning MR in Sirros v Moore:

‘Ever since the year 1613, if not before, it has been accepted in our law that no action is maintainable against a judge for anything said or done by him in the exercise of a jurisdiction which belongs to him. The words which he speaks are protected by an absolute privilege. The orders which he gives, and the sentences which he imposes, cannot be made the subject of civil proceedings against him. No matter that the judge was under some gross error or ignorance, or was actuated by envy, hatred and malice, and all uncharitableness, he is not liable to an action.’

An allegation of judicial misconduct by a dissatisfied litigant often, perhaps even typically, will be accompanied by an accusation of malice or want of good faith in the exercise of judicial authority. In Re McC, Lord Bridge of Harwich said:

‘It is, of course, clear that the holder of any judicial office who acts in bad faith, doing what he knows he has no power to do, is liable in damages. If the Lord Chief Justice himself, on the acquittal of a defendant charged before him with a criminal offence, were to say: 'That is a perverse verdict', and thereupon proceed to pass a sentence of imprisonment, he could be sued for trespass. But, as Lord Esher MR said in Anderson v Gorrie: ‘the question arises whether there can be an action against a judge of a court of record for doing something within his jurisdiction, but doing it maliciously and contrary to good faith. By the common law of England it is the law that no such action will lie.’’

This immunity from civil liability is conferred by the common law, not as a perquisite of judicial office for the private advantage of judges, but for the protection of judicial independence in the public interest. It is the right of citizens that there be available for the resolution of civil disputes between citizen and citizen, or between citizen and government, and for the administration of criminal justice, an independent judiciary whose members can be assumed with confidence to exercise authority without fear or favour. As O'Connor J, speaking for the Supreme Court of the United States, said in Forrester v White, that Court on a number of occasions has ‘emphasized that the nature of the adjudicative function requires a judge frequently to disappoint some of the most intense and ungovernable desires that people can have.’ She said that ‘[i]f judges were personally liable for erroneous decisions, the resulting avalanche of suits ... would provide powerful incentives for judges to avoid rendering decisions likely to provoke such suits.’

This does not mean that judges are unaccountable. Judges are required, subject to closely confined exceptions, to work in public, and to give reasons for their decisions. Their decisions routinely are subject to appellate review, which also is conducted openly. The ultimate sanction for judicial misconduct is removal from office upon an address of Parliament. However, the public interest in maintaining the independence of the judiciary requires security, not only against the possibility of interference and influence by governments, but also against retaliation by persons or interests disappointed or displeased by judicial decisions.”

  1. [10]
    The above extract from the reasons of Gleeson CJ in Fingleton was expressly brought to Mr Mowen’s attention.  Mr Mowen, after considering that passage and the reason for judicial immunity, conceded that his action had no prospect of success. It is clear therefore that Mr Mowen’s action, being his claim and statement of claim ought to be dismissed.
  2. [11]
    Summary judgment for the respondent pursuant to r 293 Uniform Civil Procedure Rules 1999 (Qld) requires, as a prerequisite, that a defence be filed. In the present case, due to the failure to properly serve the claim and statement of claim, a defence has not been filed. The respondent relies upon a combination of rr 293 and 171 Uniform Civil Procedure Rules 1999 (Qld). Rule 171 however, relates to pleadings and allows the pleadings to be struck out, but not specifically the claim. In this present case, the respondent has brought an application pursuant to r 293 Uniform Civil Procedure Rules 1999 (Qld), but has failed to meet the prerequisite of filing a defence (and for the reason that the claim was never properly served). It may be accepted that in bringing an application for judgment pursuant to r  293 that the respondent has failed to comply with the Uniform Civil Procedure Rules 1999 (Qld). However, pursuant to r 371, failure to comply with the rules is considered an irregularity and does not render the proceeding, document, step or order made in the proceeding a nullity. Rule 5 of the Uniform Civil Procedure Rules 1999 (Qld) requires the rules to be applied by the Courts with the objective of avoiding undue delay, expense, technicality and facilitating the purpose of these rules.  It is unduly technical and a waste of expense to require the respondent to file a defence to Mr Mowen’s claim, which is, in law, hopeless, prior to giving a summary judgment. In the circumstances, there is judgment for the respondent against the applicant on the claim.
  3. [12]
    Mr Arnold on behalf of the respondent seeks an order for indemnity costs, albeit the indemnity costs being limited to $12,099.80.  Mr Mowen opposes an order for indemnity costs on the basis that he is an impecunious pensioner who suffers from a disabling back condition. Mr Arnold points to case law in support of his proposition that an order for indemnity costs ought to be made.[2]
  4. [13]
    This is not the first occasion upon which Mr Mowen has lost a case and indemnity costs have been sought against him. The principles regarding indemnity costs in particular against Mr Mowen are the subject of the decision of McMeekin J in Mowen v Rockhampton Regional Council.[3]
  5. [14]
    In the present case, I decline to exercise the discretion to order indemnity costs. As Mr Mowen pointed out in extensive written submissions, in other cases of contempt in the face of the Court, fines of $100 and $500 have been imposed, which is a matter quite distinct from the sending of a 59-year-old disabled pensioner to prison for a period of 2 weeks. I therefore cannot be persuaded that Mr Mowen was not genuine in his view that he ought to receive compensation for his unlawful imprisonment. The applicant, Mr Mowen, will therefore be ordered to pay the respondent’s costs only on the standard basis.
  6. [15]
    The affidavit of Mr Lack, Senior Principal Lawyer of the Crown Solicitor’s office, filed 17 July 2017, contains a detailed schedule of the costs which total some $12,099.80. In paragraph 8 of his affidavit, Mr Lack estimates that on a standard basis on the relevant scale, costs would be assessed at $9,000.  Having perused the 10-page schedule of costs, I conclude that Mr Lack’s estimation at the standard costs in the sum of $9,000 is reasonable. I therefore order the applicant Mr Mowen to pay the respondent’s costs of and incidental to the claim and the applications fixed in the sum of $9,000.
  7. [16]
    I make the following orders:
    1. “State of Queensland” be substituted for “The Crown in the State of Queensland” as the proper name of the respondent.
    2. The applicant’s application filed 20 October 2017 and amended application filed 14 May 2018 be dismissed.
    3. There be judgment for the respondent against the applicant on the claim.
    4. The applicant pay the respondent’s standard costs assessed at $9,000.

Footnotes

[1]   (2005) 227 CLR 166 at [36]-[39]. Footnotes omitted.

[2] The Beach Retreat Pty Ltd v Mooloolaba Yacht Club Marina Ltd & Ors [2009] QSC 84 at [101] - [103].

[3]   [2018] QSC 44 at [15] – [19].

Close

Editorial Notes

  • Published Case Name:

    Mowen v State of Queensland

  • Shortened Case Name:

    Mowen v State of Queensland

  • MNC:

    [2018] QSC 183

  • Court:

    QSC

  • Judge(s):

    Crow J

  • Date:

    14 Aug 2018

  • White Star Case:

    Yes

Litigation History

Event Citation or File Date Notes
Primary Judgment [2018] QSC 183 14 Aug 2018 Plaintiff's application for default judgment, and that a trial date be set, dismissed; summary judgment for the defendant: Crow J.

Appeal Status

No Status