von Schulz v Attorney-General (Qld)
[2000] QCA 406
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- Unreported Judgment
- Appeal Determined (QCA)
- von Schulz v Attorney-General (Qld)[2000] QCA 406
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von Schulz v Attorney-General (Qld)[2000] QCA 406
von Schulz v Attorney-General (Qld)[2000] QCA 406
SUPREME COURT OF QUEENSLAND
CITATION: | von Schulz v Attorney-General Qld [2000] QCA 406 |
PARTIES: | KARL VON SCHULZ AND THERESIA MARTHA CITRA VON SCHULZ (plaintiffs/applicants) v THE ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND (defendant/respondent) |
FILE NO/S: | Appeal No 6805 of 2000 District Court No 1422 of 2000 |
DIVISION: | Court of Appeal |
PROCEEDING: | Application for leave s 118 DCA (Civil) |
ORIGINATING COURT: | District Court at Brisbane |
DELIVERED ON: | 6 October 2000 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 25 September 2000 |
JUDGES: | de Jersey CJ, Thomas JA and White J Separate reasons for judgment of each member of the Court, each concurring as to the orders made |
ORDER: | 1.The application for extension of time is refused 2.The application for leave to appeal is dismissed |
CATCHWORDS: | PROCEDURE – COURTS AND JUDGES GENERALLY – JUDGES – IMMUNITY FROM PROCEEDINGS Criminal Code, s 328, s 332, s 686 District Court Act 1967, s 118(3) Supreme Court Act 1991, s 113 Uniform Civil Procedure Rules, r 748, r 786(5) Adams v Adams [1971] P 188, referred to Attorney-General v Times Newspapers Limited [1974] AC 273, referred to Auckland Health Board v Attorney-General [1993] 1 NZLR 235, referred to Durack v Gassior High Court, unreported decision of Aicken J, 13 April 1981, followed Gallo v Dawson (1989) 63 ALJR 121, referred to General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125, followed Moll v Butler (1985) 4 NSWLR 231, referred to Purson v Ray (1967) 386 US 547, considered Rajski v Powell (1987) 11 NSWLR 522, followed Wentworth v Wentworth (Estate of Wentworth) Supreme Court of NSW No 3784 of 1989, Unreported decision of Santow J, 10 November 1997, followed |
COUNSEL: | The applicants appeared on their own behalf PA Freeburn for the respondent |
SOLICITORS: | The applicants appeared on their own behalf Crown Law for the Respondent |
- de JERSEY CJ: I would refuse the application for extension of time, and dismiss the application for leave to appeal, for the reasons given by White J, which I have had the advantage of reading.
- THOMAS JA: The background circumstances are set out in the reasons of White J which I have had the advantage of reading and with which I am in essential agreement.
- The applicants need not only an extension of time but also leave to appeal from Shanahan DCJ's decision. The order in question was the striking out of an appeal from a decision in the Magistrates Court on the ground that the appeal was frivolous, vexatious or an abuse of process. Such an order is not a "final judgment" under s 118(2) of the District Court Act 1967. The judgment in the Magistrates Court which was similarly struck out as an abuse of process was also interlocutory.
- Having examined the application that was made in the Magistrates Court I agree with the magistrate's observation that the material filed by the applicants in that court did not give rise to a coherent, intelligible or reasonable cause of action. I also agree with Shanahan DCJ's conclusion that the application and in turn the appeal to him was an abuse of process.
- The intervention of the Attorney-General in applying to strike out the proceedings was in my view appropriate in his role as first law officer and guardian of the public interest.[1] The relevant interest here was the administration of justice and the protection of the judiciary. The claim against the firstnamed judge in the application is based upon allegations concerning acts done by his Honour in the exercise of his judicial function and he is absolutely entitled to immunity from suit in respect of such activity.[2] The claim against the secondnamed judge originates in her activity prior to her appointment as a judge when she acted as a mediator in alternative dispute resolution in which the applicants were parties. Under s 113(1) of the Supreme Court of Queensland Act (1991), "in performing the functions of mediator or case appraiser, an ADR convenor has the same protection and immunity as a judge performing the functions of a judge".[3]
- To say the least, the application and allegations said to support it are baseless and unintelligible. Further, no facts are pleaded or proved which might support any sustainable claim against either defendant.
- If the need for extension of time stood alone, I would not be troubled by the question whether the delay has been properly explained. Although the applicants have attributed highly unlikely remarks to the deputy registrar there is no doubt that the applicants attended the registry within the required period for commencement of the necessary application, and it may be inferred that there was a misunderstanding. However there is no basis upon which it would be right to grant leave to bring an appeal which would itself be another abuse of the process of the court. It is therefore appropriate that the application for extension of time also be refused.
- In the result I would order that the application for extension of time be refused, and that the application for leave to appeal be dismissed.
- WHITE J: The applicants, Mr and Mrs von Schulz, seek leave to appeal orders made by a District Court judge on 25 May 2000, striking out an appeal brought by them in respect of a decision made by a magistrate on 20 March 2000 to strike out their claim in that court.
- The applicants seek an extension of time for filing this application, since it was made on 4 August 2000 some six weeks after the time of twenty-eight days stipulated in the Rules for filing a notice of appeal subject to leave had expired, UCPR, r 748, r 786(5). They also seek an extension of time in which to file their notice of appeal. The material filed by the applicants does contain a notice of appeal with quite lengthy grounds. The explanation offered for the delay is that when the applicants attempted to file their notice of appeal on 22 June 2000 a deputy registrar said that they could not appeal without leave. This is correct, see s 118(3) of the District Court Act 1967, but, if the conversation occurred as the applicants depose, it may have caused some misunderstanding on the part of the applicants.
- The action in the Magistrates Court was struck out on the application of the Attorney-General, who is the respondent to this appeal. That action was brought by the applicants against two currently serving members of the Supreme Court. The applicants do not object to this court hearing their application accepting that the judges constituting the court know the defendants in the action. In that action each applicant seeks $50,000 as compensation for pain, suffering, defamation and other losses against the defendants. The allegations against the secondnamed judge relate, inter alia, to the way in which she carried out her function as a mediator, including an allegation of falsely signing the mediator’s certificate on 3 December 1997 to the affect that settlement had been reached between the parties. The mediation related to an action commenced in the Trial Division of the Supreme Court by the applicants against their landlords and a pest control company and a person who carried out the work, for damages for personal injury allegedly arising from the ingestion of arsenic trioxide. The applicants make the further allegation that since her Honour has been a judge she has conspired with the firstnamed judge in some unspecified manner to cover up her conduct as mediator.
- As best can be discovered from the statement of claim, the allegations against the firstnamed judge are that he conspired with the secondnamed judge and other judges as a member of the Court of Appeal which delivered judgment on 21 August 1998 in Von Schulz v Morriello and Ors [1998] QCA 236, the action the subject of the mediation, and was a member of the Court of Appeal which dismissed an appeal and application on 16 November 1999 involving the applicants. The principal allegation against his Honour appears to be a statement in the judgment of 21 August 1998 that the settlement agreement reached at the mediation was proven and that it had been reached with the apparent assent and affirmation of the applicants. The allegation against him in respect of an appeal and application on 16 November 1999 is likely to be similar although his Honour merely agreed with another judge of appeal who gave the principal judgment. In any event his Honour was alleged to have conspired with the secondnamed judge in causing the applicants’ pain and loss.
- The material before the court does not reveal the basis upon which the Attorney-General became involved in the proceedings in the Magistrates Court, but it is likely that it was as intervenor. Although strongly critical of the Attorney-General for seeking to strike out the action, the applicants do not contest his entitlement to do so, but, being unrepresented, they are not likely to be able to muster legal argument on that point. Indeed the applicants’ material shows little legal skill being repetitious, unintelligible for the most part, with no or little attempt to formulate a reasonably coherent cause of action.
- The scope of the Attorney-General’s role has not been precisely defined, see G Carney The Role of the Attorney-General (1997) 9 Bond LR 1, but does include representing the public interest in the administration of justice and, more particularly, as it relates to the courts, Wentworth v Wentworth (Estate of Wentworth) No 3784/89 (NSW) unreported decision of Santow J of 10 November 1997 at 6 and 9. See also Adams v Adams [1971] P 188 and Auckland Health Board v Attorney-General [1993] 1 NZLR 235. The material and pleadings filed in the Magistrates Court and on this appeal constitute an attack on the impartiality and integrity of two sitting justices of the Supreme Court. There is a public interest in the Attorney-General seeking to protect the judges in general in carrying out their judicial functions. It is not appropriate that the judges themselves do so when proceedings of this kind are brought against them.
- Before considering the application further something should be said about the background to the action which was struck out. A chronology is set out at the end of Mr Freeburn’s outline of submissions for this hearing which is substantially derived from the Court of Appeal reasons for judgment in Von Schulz v Morriello. It is sufficient to say that the applicants brought an action for damages in the Supreme Court in 1997 alleging that during 1995 their landlords and a pest control company caused them to ingest arsenic trioxide, deliberately so, when a termite extraction procedure was applied to parts of the unit that they occupied. After numerous interlocutory applications a court ordered mediation was held with the secondnamed judge when a barrister as mediator on 3 December 1997. The original order had identified another barrister as the mediator. The applicants contend that the change of mediator was part of the conspiracy against them. The mediation concluded with agreement being reached although the applicants strenuously contest this. Almost three weeks later the applicants repudiated the settlement. The terms of settlement required the applicants to file a notice of discontinuance of the action. They did not do so. Applications were made to the court to compel them do so. The appeal to the Court of Appeal to which I have made reference earlier was as a result of various orders made by judges in the Trial Division which, in effect, held that the applicants’ action against the landlords and the pest control company was ended.
- The applicants instituted further proceedings in the Supreme Court in October 1998 identical to the earlier action. It was struck out by order of a chamber judge on 29 October 1998 on the grounds that it constituted an abuse of process and was vexatious. The applicants filed an appeal against that order which was struck out for want of prosecution. The applicants then sought, unsuccessfully, to set aside that order and to reinstate the appeal on 16 November 1999. On that day the applicants also sought the leave of the Court of Appeal to permit them to present a criminal information against certain persons pursuant to s 686 of the Criminal Code for maliciously administering poison with intent to harm contrary to s 332 of the Code or, alternatively, for negligently causing harm, s 328 of the Code. Since the facts and circumstances were the same as those which formed the basis of the first and second civil actions leave was refused. The applicants are seeking to obtain special leave to appeal to the High Court from that decision.
- Finally, the applicants instituted the present proceedings on 29 February 2000 in the Magistrates Court alleging conspiracy and fraud in the matter of the mediation and subsequent appeals and other proceedings.
- In considering whether to extend time, even in the absence of no compelling explanation for the delay, the court will be concerned to consider the merits of a proposed appeal. In this case there are none. The courts below were correct in striking out the action if it could be clearly demonstrated that the applicants had no cause of action, General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 129. So far as the action against the firstnamed judge is concerned, the law is clear: “…no action may be brought under our legal system against judges for acts done in the course of hearing or deciding cases which come before them,” per Aicken J in an unreported decision, Durack v Gassior (High Court of Australia, 13 April 1981) quoted by Priestley JA in Rajski v Powell (1987) 11 NSWLR 522 at 538. Kirby P in that case referred to numerous authorities in other countries to the same effect at 529 and following. This immunity from suit of judges when carrying out their public duty as judges is for the benefit of the public and not the judges. It is in the interest of the public that the judges should be at liberty to exercise their functions with independence and without fear of the consequences, Pierson v Ray (1967) 386 US 547 per Warren CJ at 553 to 554. Litigants with a grievance about how their case has been conducted have access to appeal procedures to ventilate those concerns.
- So far as the secondnamed judge is concerned, she has the same immunity from suit as a mediator as a judge has, s 113 Supreme Court Act 1991 and further the issue of the settlement of the action at mediation has been amply ventilated on numerous occasions. There is no additional factual basis advanced for the allegations against her or the allegations of a widespread conspiracy by all members of the legal profession, court officers and the judges who have had anything to do with the applicants in the course of their many applications and appeals, and now the Attorney-General, to cover up the alleged fraud. It is all assertion.
- The magistrate was correct in striking out the action, as was the District Court judge in striking out the appeal from that decision. Leave should not be granted to extend time since the appeal has no prospects of success.
- The orders which I would make are:
- Refuse the application for extension of time.
- Dismiss the application for leave to appeal.
Footnotes
[1] Attorney-General v Times Newspapers Limited [1974] AC 273, 311, 326; Adams v Adams (1971) P 188, 197-198 per Sir Jocelyn Simon P; Auckland Health Board v Attorney-General (1993) 1 NZLR 235, 240.
[2] Rajski v Powell (1987) 11 NSWLR 522 at 527-530 per Kirby P and 538-539 per Priestley JA; Moll v Butler (1985) 4 NSWLR 231 at 238-242 per Wood J; Gallo v Dawson (1989) 63 ALJR 121 at 122 per Wilson J.
[3] An ADR convenor is defined to mean a mediator or case appraiser: see s 2 and Schedule 2.