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- Unreported Judgment
 QCA 205
COURT OF APPEAL
Appeal No 1461 of 2018
SC No 12210 of 2017
GREGORY RAYMOND YOUNG Applicant/Respondent
CRIME AND CORRUPTION COMMISSION Respondent/Applicant
FRIDAY, 18 SEPTEMBER 2020
McMURDO JA: Mr GR Young brought a proceeding in the trial division against the Crime and Corruption Commission by a claim and statement of claim. In February 2018, Justice Martin ordered that the claim and the amended statement of claim, filed on 31 January 2018, be struck out: see  QSC 12. Mr Young appealed to this Court, which dismissed his appeal by a judgment delivered on 13 September 2019: see  QCA 189. In essence, the Court upheld the conclusions of Justice Martin that the claim and amended statement of claim raised no arguable cause of action and that, given the history of the proceeding, it was appropriate that not only the pleading but also the claim itself be struck out. On 11 December 2019, the High Court refused Mr Young’s application for special leave to appeal against this Court’s judgment.
Recently, on 4 September, Mr Young filed an application in this Court seeking a different outcome from that which resulted from the dismissal of his appeal last year. He sought orders in purported reliance upon r 668(1)(b) of the Uniform Civil Procedure Rules. Under that rule a court may stay enforcement of its order if facts are discovered, after the order is made, that, if discovered in time, would have entitled the person against whom the order is made to an order or decision in the person’s favour or to a different order.
Mr Young has sworn two affidavits and presented extensive written submissions as to the basis for his returning to this Court seeking to revisit the effect of its judgment. He has also presented oral submissions this morning which confirm my impression of his present application, having read his extensive written material. In essence, Mr Young comes to this Court, not on the basis of newly discovered facts, but upon the basis of legal arguments which, it may be accepted for present purposes, were not presented to the Court when hearing his appeal last year. In that sense, it could be said that he has discovered things which were unknown to him at the time that the Court made an order to dismiss his appeal. But it is clear, beyond doubt, that he does not identify any newly discovered fact so as to engage the operation of r 668. Consequently, this application, filed on 4 September 2020, is bound to fail.
It is an application made upon a misconception of the operation of r 668. No purpose would be served by permitting this application to proceed further and it should be struck out.
The order will be that the application filed 4 September 2020 by Mr Young be dismissed. Subject to any submission that Mr Young might wish to make, it is my present view that it must be dismissed with costs. The Crime and Corruption Commission seeks the costs of its application for the striking out, or dismissal, of Mr Young’s application upon an indemnity basis and I would hear further submissions on that question as well as anything which Mr Young might wish to say about paying any costs of the CCC for his application and the Commission’s cross-application for strike out. Now, as I’ve said, the orders will be, and these are orders made both within the application by Mr Young and the application returnable this morning by the Commission, that the application filed 4 September 2020 be dismissed.
McMURDO JA: There is a further application this morning by the Crime and Corruption Commission for an order, pursuant to r 389A of the Uniform Civil Procedure Rules, that the applicant not file any further application in relation to the claim in the trial division proceeding, number 12210 of 2017, or in the proceeding in this Court, number 1461 of 2018, without the leave of the Court.
The application of r 389A, in the present circumstances, is not without some difficulty. There is a question as to whether “the Court” referred to in sub-rule (1) of rule 389A is a reference to the Court of Appeal or alternatively to the Supreme Court in its appellate and trial divisions. If it is the former, the rule could be engaged only if the court is satisfied that Mr Young has made more than one application in the Court of Appeal in relation to this proceeding, that is frivolous, vexatious or an abuse of process.
I have already dismissed Mr Young’s application returnable this morning. It is presently unnecessary for me to now consider whether it should be described as frivolous, vexatious or an abuse of process, terms which I have not used in my reasons for dismissing his application. The complication is that the Court would have to be satisfied that there has been more than one application of that kind. Counsel for the Commission referred me to the judgment of the President, on 28 March 2018, which struck out Mr Young’s then Notice of Appeal; however, it may not be correct to characterise that as an application, in the existing proceeding, that was frivolous, vexatious or an abuse of process as distinct from the notice of appeal itself being an abuse of process. However, it is unnecessary, in my view, to decide what is the scope for the application of r 389A in the present case.
The Court has its inherent jurisdiction to control its own process and to prevent that process from being abused. The most recent correspondence from Mr Young to the Commission, namely that which is exhibited to an affidavit read by leave this morning by Counsel for the Commission, indicates that Mr Young, as late as yesterday afternoon, was minded to continue to agitate his case within this proceeding in the Court of Appeal. Having dismissed his application under r 668, I have been referred to no other basis upon which the Court could revisit its judgment which dismissed his appeal. Within this proceeding, the Court has exercised its jurisdiction and Mr Young should not be seeking to agitate his case further without demonstrating how that jurisdiction could be enlivened.
There will, therefore, be an order that Mr Young not file any further application in the proceeding in this Court, numbered 1461 of 2018, without the leave of a judge of the Court. I will not make a similar order in relation to the proceeding in the trial division.
McMURDO JA: The remaining questions concern the costs of these applications. Having regard to the fact that I have refrained from describing Mr Young’s application under r 668 as frivolous, vexatious or an abuse of process, counsel for the Commission, very properly, conceded that the Commission should not press for indemnity costs. Mr Young, nevertheless, must be ordered to pay the costs of his application and of the Commission’s application, to be assessed on the standard basis. That is because of the rule that, ordinarily, costs follow the event and there is no case for an exception to that rule which is raised in the circumstances here.
- Published Case Name:
Young v Crime and Corruption Commission
- Shortened Case Name:
Young v Crime and Corruption Commission
 QCA 205
18 Sep 2020