Rowe v Schultz[2016] QCA 59

SUPREME COURT OF QUEENSLAND

[1] MARGARET McMURDO P:  I joined in this Court’s order dismissing the appeal for the reasons given by Gotterson JA.

[2] FRASER JA:  I agree with the reasons for judgment of Gotterson JA.

[3] GOTTERSON JA:  On the application of Alison Jane Schultz, the respondent to this appeal, orders were made by a judge of the Trial Division against Chad Everett Rowe, the appellant, on 29 May 2015.  Those orders are as follows:

“1.The applicant has leave, pursuant to s 5(2) of the Vexatious Proceedings Act 2005 (“the Act”), to apply for vexatious proceedings orders;

2.It is declared for the purposes of s 6(l)(a) of the Act that the respondent, Chad Everett Rowe, is a person who has frequently instituted or conducted vexatious proceedings in Australia;

3.It is ordered that the respondent be prohibited from instituting proceedings in Queensland (apart from an appeal against these orders) without first obtaining leave under the Act;

4.It is ordered that the proceeding filed by the respondent against the applicant on 16 March 2015 in the Magistrates Court of Queensland (matter number 50890 of 2015) be stayed;

5.It is ordered that the appeal filed by the respondent against the applicant on 5 November 2015 in the District Court of Queensland (matter number 4337 of 2014) be stayed.”[1]

[4] On 22 June 2015, Mr Rowe filed a notice of appeal to this Court.[2]  This document stated that the appeal was against the whole of the orders made on 29 May 2015.  However, in his written submissions, Mr Rowe clarified that he had not opposed the grant of leave to Ms Schultz (Order 1)[3] and confirmed that he had conceded before the learned primary judge that there were good grounds to determine that he is a vexatious litigant.  (Order 2).[4]

[5] At the hearing of the appeal on 4 March 2016, Mr Rowe informed the Court that he did not challenge the stays of proceedings made in Orders 4 and 5.  He stated that his appeal is concerned with the ambit of Order 3, and, to a limited extent, with Order 2.

[6] In summary, Mr Rowe’s case is that the ambit of Order 3 is too wide.  The prohibition in it ought to apply, he submits, to proceedings against Ms Schultz and against Emmanuel College, a school at the Gold Coast, only.  Conformably with that, he submits that the declaration in Order 2 ought to have identified the vexatious proceedings underlying the declaration made against him, as those that he had brought against Ms Schultz and against Emmanuel College.

[7] As to relief, Mr Rowe indicated to the Court that despite a request for an order for remitter to the Trial Division for a re-hearing, what he was seeking was, in substance, a substituted Order 3, limited, as he had suggested, to proceedings against Ms Schultz and against Emmanuel College.

[8] Also at the hearing of the appeal, leave was granted to the Attorney-General of Queensland to appear as amicus curiae.  The Attorney-General had appeared by counsel in that capacity before the learned primary judge.

[9] Oral submissions were received from Mr Rowe, Ms Schultz and Mr D Keane of counsel for the Attorney-General.  At the conclusion of submissions, and after a short adjournment the Court made an order dismissing the appeal with reasons to be published at a later date.[5]  The following are my reasons for the order then made.

The grounds of appeal

[10] In the Notice of Appeal, Mr Rowe advanced two grounds of appeal, namely:

“a.The Justice erred in that he provided insufficient and inadequate reasons to support his decision.

b.The Justice erred in that his decision was unreasonable and unfair and not supported by the evidence before him, leading to a miscarriage of justice.”[6]

[11] In written submissions, Mr Rowe elaborated the first ground of appeal in these terms:

“The Justice did not consider whether a limited vexatious proceedings order would be appropriate in the circumstances as requested by the Appellant considering the evidence showed that the only parties to whom vexatious proceedings were made only consisted of the Respondent and Emmanuel College, and thus provided inadequate and insufficient reasons to support the decision made.”

[12] The second ground of appeal was developed as follows:

“As the Justice did not consider whether a limited vexatious proceeding order would be or could be more appropriate in the circumstances or give any consideration to such, the Justice failed to properly consider in a reasonable and fair manner the most appropriate order in the circumstances.  In this manner, the Justice led to a miscarriage of justice in that he did not consider all alternatives that were put before him in a fair and equitable manner.”

The discretion

[13] Section 6 of the Vexatious Proceedings Act 2005 (Qld) (“the Act”) regulates the types of orders, the court may make if it is satisfied that a person has frequently instituted or conducted vexatious proceedings in Australia.  The Court “may make any or all of the following orders–

(a)an order staying all or part of any proceeding in Queensland already instituted by the person;

(b)an order prohibiting the person from instituting proceedings, or proceedings of a particular type, in Queensland;

(c)any other order the Court considers appropriate in relation to the person.”[7]

[14] Order 3 is an order that was made in exercise of the discretion conferred by this provision.  In order to impugn the exercise of the discretion on appeal, it was necessary for Mr Rowe to demonstrate that it was tainted by legal error.  What may constitute legal error in this context was described in comprehensive terms by Dixon, Evatt and McTiernan JJ in House v The King[8] thus:

“The manner in which an appeal against an exercise of discretion should be determined is governed by established principles.  It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course.  It must appear that some error has been made in exercising the discretion.  If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so.  It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance.  In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.”

Mr Rowe’s challenge to the exercise of the discretion

[15] It is noteworthy that, here, Mr Rowe did not make submissions which were referenced to House.  He did not identify any specific error of a kind described by their Honours in that case and contend that it is one that vitiated the making of Order 3.  In contrast, in oral submissions, his approach was to criticise the ambit of the order as made as being “not absolutely necessary” and to claim that the narrower order proposed by him is “more appropriate”.

[16] I turn now to the submissions made by Mr Rowe in writing.  They concern the consideration given by the learned primary judge to the ambit of the order that he ought make and the adequacy of the reasons given by him for the order that was made.

[17] The proposition advanced by Mr Rowe in his written submissions that the evidence showed that the only parties against whom he had maintained vexatious proceedings are Ms Schultz and Emmanuel College, understates the range of persons against whom he had commenced and relentlessly pursued legal proceedings.  On the evidence before the learned primary judge, those parties included a friend of Ms Schultz, her employer at the time, a real estate agent engaged by Mr Rowe and Ms Schultz, Mr Rowe’s former fiancée and the Official Receiver.[9]  In the case of the employer, the proceedings were pressed to an unsuccessful application for special leave to appeal to the High Court of Australia.

[18] In his reasons, the learned primary judge referred to the proceedings against those parties.[10]  He referred also to a finding of contempt of court made against Mr Rowe on 29 September 2014 for breaching an order of the Supreme Court and of undertakings given by him to the court.[11]

[19] The scope of the evidence on this issue has some significance in another respect.  Mr Rowe’s oral submissions appeared to suggest reliance upon a proposition that, as a matter of statutory construction, an order made against a respondent under s 6(2)(b) of the Act may prohibit the institution of proceedings against persons only if, on the evidence, they had already been subjected to vexatious proceedings by the respondent.  He contended that the only such persons here are Ms Schultz and Emmanuel College.

[20] It need be said that the validity of such a proposition is dubious, at least.  No such constraint is expressly stated in s 6(2)(b).  Nor is there a persuasive basis for interpreting the discretion thereby conferred as impliedly subject to such a constraint.

[21] In any event, such a proposition, even if correct, would not avail Mr Rowe.  The evidence before the learned primary judge indicated a number of persons in addition to Ms Schultz and Emmanuel College who have been vexed by proceedings instituted by him.

[22] As well, his Honour addressed a submission made by Mr Rowe against an order in the form that was made, based upon the latter’s aspiration to regain a practising certificate as a solicitor.[12]  He explained how that aspiration might be accommodated in the context of an order of the type that was made.  His Honour thereby gave appropriate consideration to the ambit of the prohibition in the order that he was about to make.

[23] The further proposition advanced by Mr Rowe in his written submissions that the learned primary judge provided insufficient reasons for the order made is unsustainable.  As I have explained, reasons were given for it and they were sufficient.

Disposition

[24] In summary, Mr Rowe failed comprehensively to demonstrate legal error in the exercise of the discretion by which Order 3 was made.  His failure to do so warranted a prompt dismissal of his appeal.