LSA v Queensland[2025] QCA 61

SUPREME COURT OF QUEENSLAND

1. [1]
   THE COURT:  On 29 May 2024, after a trial, the learned primary judge dismissed the appellant’s claim against the respondent and ordered him to pay the respondent’s costs of the proceeding.  Reasons for judgment were published.^[1]

2. [2]
   The appellant appealed against the judgment.

The appeal

3. [3]
   In his notice of appeal, the appellant listed 50 grounds.  Most were headings such as error of law, error of fact, unreasonableness, etc, without any detail.  The appellant was more precise in the orders he set out in paragraphs 2, 3 and 8 to 11 of his application filed on 28 June 2024, and in his outline of appeal filed on 22 August 2024, which was his outline for the purposes of the appeal.  Of the 20 matters the appellant sought to raise in the application filed 28 June 2024, 14 were dealt with by this Court on 19 July 2024 and dismissed.  There were six remaining matters.
4. [4]
   The first was the appellant’s contention that the judgment should be set aside “on the grounds of fraud by the respondent and those for whom the respondent is responsible.”  The second was the order that the appellant pay the respondent’s costs of the proceeding below, which the appellant sought to have vacated.
5. [5]
   By the third, the applicant sought orders correcting the “file numbers and the nature of the proceedings”.  By the fourth, he asked that the trial transcripts be corrected and perfected.  By the fifth, he sought the admission of “new documentary evidence”.  By the sixth, he asked for the admission of “additional evidence … to clarify issues arising from the judgment”.
6. [6]
   On 16 September 2024, the appellant filed an application.  By paragraphs 1 and 2, he sought leave to admit some or all the evidence in his affidavit sworn on 13 September 2024, which attached a USB containing further material.  Any other matters he raised in that application that were properly within the grounds pursued on the appeal from the primary judge’s judgment are dealt with in these reasons.  To the extent the application raised matters that amount to speculations or suspicions on the appellant’s part, they are not the proper subject of review by this Court on appeal.
7. [7]
   In addition to his written submissions, the appellant made oral submissions at the appeal hearing and answered questions from the bench.  The appellant made submissions about the conduct of many individuals, some named and others unknown, and about many activities beyond the scope of the claim he brought to trial.  Many of those submissions were discursive and concerned his suspicions and speculations about or derived from extraneous matters.  It has been a considerable enterprise to identify the points relevant to the appeal.
8. [8]
   To avoid irrelevant distractions, it is convenient to set out these reasons in five parts.  Part 1 deals with the appellant’s claim against the respondent in the context of the events on which it was based.  Part 2 deals with the findings of the primary judge about the respondent’s liability and on each of the appellant’s causes of action.  Part 3 deals with the appellant’s grounds of appeal against the dismissal of his claim and the costs order.  Part 4 deals with the appellant’s requests for changes to the file numbers and transcripts.  Part 5 deals with the fresh and additional evidence questions.

Part 1: The appellant’s claim against the respondent

9. [9]
   At the trial, the appellant had sought damages for false imprisonment, malicious prosecution, misfeasance in public office, collateral abuse of process and negligence.  His case had many parts.  In short, the appellant’s case was that the respondent was liable for the alleged conduct towards him by an individual (RBG) and by officers of the Queensland Police Service (QPS).  He contended that the respondent was liable for the conduct of RBG because he alleged RBG was an undercover QPS officer or a confidential informant to officers of the QPS.  He contended that the alleged conduct involved the commission of the torts of conspiracy to murder, false imprisonment, misfeasance in public office, collateral abuse of process, malicious prosecution, and negligence.
10. [10]
    The alleged conduct related to the investigation or prosecution of five separate alleged types of offences: domestic violence and breaches of related notices and orders; Weapons Act 1990 (Qld) (Weapons Act) offences; a fraud or stealing offence; and an attempted murder.  It is convenient to summarise the relevant facts about these matters.

Domestic violence allegations

11. [11]
    On 22 January 2019, QPS officers attended RBG at the Royal Brisbane & Women’s Hospital.  RBG alleged to the QPS that the appellant had committed acts of domestic violence against her.  Later that day, the appellant accompanied QPS officers to the Fortitude Valley police station, where a QPS officer issued a police protection notice (PPN)^[2] to him in respect of RBG’s allegations.  The PPN was taken to be an application for a protection order made by the QPS officer.^[3]  It came before the Magistrates Court the next day.  The appellant did not appear.  The Magistrate made a temporary protection order (TPO) against the appellant, pending a hearing of the allegations the subject of the PPN.^[4]
12. [12]
    On 28 January 2019, QPS officers arrested the appellant and charged him with breaching the PPN on 22 and 28 January 2019.^[5]  The appellant was detained in custody until his appearance in the Magistrates Court the following day.  He pleaded guilty to the two breaches.  He was fined.  No conviction was recorded.
13. [13]
    On 26 March 2019, the appellant was charged with breaching the PPN between 25 and 28 January 2019^[6] and breaching the TPO between 28 January and 13 February 2019.^[7]  These charges were stayed, pending the outcome of the proceeding the subject of this appeal (as were two charges of offences against the Weapons Act also made on this day, see paragraph [19] below).
14. [14]
    On 17 June 2019, the appellant sought a protection order in the Magistrates Court, alleging domestic violence by RBG.^[8]  The Magistrate made a TPO against RBG, pending a hearing of the appellant’s allegations.^[9]
15. [15]
    On 29 July 2019, the appellant was arrested and charged with breaching the TPO.^[10]  He was detained in custody until his appearance in the Magistrates Court the next day.  On 30 July 2019, before the Magistrate, the appellant pleaded guilty to the charge.  He was sentenced to imprisonment for one month, suspended immediately on condition he not re-offend within 18 months.
16. [16]
    On 2 December 2019, the PPN allegations and the appellant’s allegations were heard in the Magistrates Court.  The Magistrate made a final protection order (FPO) against the appellant and decided five years to 1 December 2024 was an appropriate period for the FPO to continue in force.^[11]  The Magistrate dismissed the appellant’s allegations against RBG, removing the TPO against RBG, which had been made on 17 June 2019: see paragraph [14] above.  The appellant appealed against those orders to the District Court.^[12]  His appeal was heard before Judge Sheridan on 4 August 2020.
17. [17]
    On 1 September 2020, Judge Sheridan gave judgment on the appellant’s appeal.  Her Honour dismissed the appellant’s appeal against the grant of the FPO for the benefit of RBG.^[13]  However, her Honour allowed his appeal against the refusal to grant an FPO for the benefit of the appellant and made such an FPO.^[14]  Both FPOs were to operate until 1 December 2024.

Weapons Act allegations

18. [18]
    On 21 January 2019, officers of the QPS located a rifle and some ammunition at a property from which the appellant operated a business.  The officers confiscated these items.
19. [19]
    On 26 March 2019, the appellant was charged with possessing, without reasonable excuse, a shortened firearm,^[15] and possessing, without reasonable excuse, a weapon with altered identification marks.^[16]  The charges related to the items confiscated on 21 January 2019.

Fraud or stealing allegations

20. [20]
    On 7 April 2019, the appellant was charged with fraud – dishonestly gain benefit or advantage,^[17] on a complaint made by two persons who alleged he took a deposit from them for domestic building work that was not performed.  He was given a notice to appear.
21. [21]
    By 4 February 2020, the appellant’s defence team had made a submission to police prosecutions about the fraud charge.  On 12 February 2020, at the recommendation of a police prosecutor, the charging QPS officer substituted a charge of stealing^[18] for the charge of fraud in a replacement bench charge sheet.
22. [22]
    On 3 March 2020, when the matter was next before the Magistrates Court, the police prosecutor withdrew the stealing charge.

Attempted murder allegations

23. [23]
    On 15 June 2019, the appellant complained to QPS that RBG and others were trying to kill him.  He gave the officers copies of Facebook conversations involving RBG, another person, and a person identified as Bartlett.
24. [24]
    QPS officers interviewed RBG and the other person.  They admitted to the Facebook conversations, saying they suspected the appellant was participating in the conversations as Bartlett, and they had made the relevant statements “to get a rise out of him” or “to egg him on”.  The QPS officers did not interview Bartlett.
25. [25]
    In January 2020, a QPS officer told the appellant their investigation was completed, and no further action would be taken.
26. [26]
    On 14 April 2021, a QPS officer interviewed Bartlett, who was serving a term of imprisonment in custody.  Bartlett told the officer he had not been a participant in the Facebook conversations and had been “locked out” of his Facebook account.  He denied ever messaging the other person named in the Facebook conversations about the appellant.  After this interview, the QPS confirmed no further action would be taken.

Part 2: The findings in the reasons for the judgment

27. [27]
    In the reasons, the primary judge reached the following conclusions on matters relevant to the torts alleged against the respondent.

Liability of the respondent for alleged conduct of RBG

28. [28]
    The primary judge found it unlikely RBG was an undercover police officer.  He specifically rejected the appellant’s evidence that RBG had told him she was an undercover police officer.  His Honour concluded there was no basis to find that RBG was an undercover police officer or a confidential police informant.  His Honour rejected the appellant’s argument that RBG was connected in some way to the QPS.  On this basis, his Honour found the respondent was not legally liable for any alleged conduct on the part of RBG.
29. [29]
    His Honour accepted the evidence of the QPS officers involved in dealing with the appellant in respect of each charge about the reasons for their conduct and the motives for their actions.  No QPS officer was alleged to have been a party to the Facebook communications, on which the appellant relied as evidence of an alleged threat to murder him.

Conspiracy to murder

30. [30]
    RBG was not a party to the proceeding before the primary judge.  Neither party called her as a witness.  Having found that the respondent was not legally liable for any of the alleged conduct of RBG, his Honour was not satisfied to the relevant standard that RBG had engaged in the conduct, which the appellant had alleged amounted to a conspiracy to murder him.

False imprisonment

31. [31]
    The primary judge was satisfied the appellant voluntarily accompanied the QPS officers to the Fortitude Valley police station on 22 January 2019 and voluntarily remained there to give the officers his version of events relating to the domestic violence complaint by RBG.  So, his Honour rejected the appellant’s claim that he was falsely imprisoned during the time he was at the police station that day.
32. [32]
    The primary judge was also satisfied that the police officer, who arrested the appellant on 28 January 2019 on charges of breaching the PPN, reasonably suspected the appellant had contravened the PPN on two occasions.  His Honour was also satisfied it was reasonably necessary to arrest the appellant on that occasion to prevent the repetition of a breach of the PPN and because the alleged offence was against the DFVP Act.

Misfeasance in public office

33. [33]
    The primary judge was satisfied on the evidence that the appellant and RBG were in an intimate personal relationship, within the meaning in s 14 of the DFVP Act, for about three months to January 2019, when RBG made her complaint of domestic violence against the appellant.  His Honour rejected the appellant’s submission that their relationship was not of that kind.  His Honour declined to make a finding that RBG had pretended to be in such a relationship with him in order to do the appellant harm.  The appellant’s challenge to the validity of the PPN and the TPO on this basis failed.
34. [34]
    The primary judge did not accept the appellant’s argument that the TPO contained two conditions that the Magistrate did not pronounce when making the order.  His Honour accepted the evidence that the Magistrate stated the TPO would contain “three by no contact conditions” and these included the two conditions the appellant contended had not been pronounced.  This disposed of the appellant’s contention that the TPO had been “falsified”.  It followed that the TPO was valid and authorised.
35. [35]
    As well, the appellant had alleged a particular QPS officer had “falsified” the TPO.  The primary judge accepted the officer’s evidence that she was not in the Magistrates Court on the day the TPO was made.  The appellant called no evidence to prove that the offer was present.  It followed that he failed to prove that the officer had “falsified” the TPO, as alleged.

Collateral abuse of process

36. [36]
    The primary judge found the appellant had failed to prove there was any improper act in the prosecution of the PPN.  There was no evidence that any QPS officer sought to maintain the application based on evidence they knew to have been fabricated, as the appellant had alleged.  His Honour rejected the appellant’s allegations that QPS officers fabricated evidence or made false statements about service or notice.  His Honour rejected the appellant’s evidence to the contrary.
37. [37]
    The primary judge was not satisfied that the appellant had demonstrated any improper conduct on the part of QPS officers in pursuing the Weapons Act charges or imposing conditions on the grant of bail in respect of those charges.

Malicious prosecution

38. [38]
    The primary judge accepted the evidence of the QPS officer, who issued the appellant with a notice to appear in respect of the fraud charge, that she honestly believed that the charge was justified.  His Honour was satisfied that when the officer brought the charge, she did so for the purpose of enforcing the criminal law.  The appellant failed to establish that the officer acted for any other purpose.  That later the charging officer had accepted and acted on the advice of police prosecutions in substituting the stealing charge, did not alter his Honour’s conclusion.  Nor did the subsequent withdrawal of the stealing charge.

Negligence

39. [39]
    The primary judge was not satisfied that the relationship between the appellant and the QPS officer who issued the PPN to him was of such a character that made it reasonable for the officer to consider the risk that the appellant might suffer economic loss (or any other loss) because of her actions.  It followed that the officer did not owe the appellant a duty of care, as he had alleged.  In any case, the appellant failed to prove that the issuing of the PPN caused him the loss he alleged.
40. [40]
    The appellant’s negligence claim in respect of the QPS investigation of his complaints against RBG also failed.  This was because the primary judge was not satisfied that there was any basis to find that RBG was an undercover police officer or a police informant, that QPS officers tampered with evidence or falsified documents, or that the officers who charged the appellant and imposed bail conditions did so for any collateral purpose, as the appellant had alleged.  It was also because the conduct of RBG that was the subject of the TPO granted by Judge Sheridan was the sending of a single text message calling the appellant a fool.^[19]  In the circumstances, the primary judge was not satisfied that the respondent owed the appellant a duty of care in relation to the investigation of his complaints about the conduct of RBG.
41. [41]
    His Honour was also not satisfied that anything the relevant QPS officers did or omitted to do during the investigation of the appellant’s complaints was a breach of the duty he alleged.  The primary judge was also not satisfied that the appellant had proved that he had suffered any loss caused by the way the QPS officers investigated his complaints.

Part 3: The grounds of appeal against the dismissal of the appellant’s claim

42. [42]
    In his outline of submissions on the appeal, the appellant listed 16 issues, which he characterised as errors of law and errors of fact.  Four of these issues concerned the dismissal of the appellant’s claim.  The other 12 issues were incapable of being a ground to set aside the judgment, because they had no logical or rational connection to the matters in issue at the trial or the findings made by the primary judge that formed the basis of the judgment.^[20]  In some instances this was because the issue concerned other relief.  Those issues are dealt with below when the other relief is considered.
43. [43]
    The appellant made submissions directed at his Honour’s particular findings only in respect of his claim of false imprisonment on 22 January 2019,^[21] the conspiracy to murder claim,^[22] and his negligence claim.^[23]  He made a general submission about the primary judge’s findings.^[24]  These submissions may be considered in turn.

The challenge to dismissal of the false imprisonment claim

44. [44]
    The appellant submitted that everything that followed from the issue of the PPN was unlawful because the QPS officer who issued the PPN to him on 22 January 2019 had failed to comply with ss 101 or 101A of the DFVP Act.
45. [45]
    A police officer may issue a PPN if the conditions in s 101 are met.  A police officer must issue a PPN when the conditions in s 101A are met.  In his outline of appeal, the appellant did not identify any requirement of either provision that was not met.
46. [46]
    As noted at paragraph [31] above, the primary judge found the appellant voluntarily accompanied the QPS officers to the Fortitude Valley police station on 22 January 2019 and voluntarily remained there to give the officers his version of events.  This finding - that the appellant was not imprisoned at all - did not depend upon the PPN being valid or authorised.  It is unchallenged by the appellant’s appeal.  The primary judge’s finding disposed of this part of the appellant’s claim.

The challenge to dismissal of the conspiracy claim

47. [47]
    The appellant submitted that the primary judge’s findings in respect of his allegation of a conspiracy to murder him were inconsistent with the decision of Judge Sheridan in his appeal from the dismissal of his application for a protection order.^[25]
48. [48]
    As the primary judge explained in the reasons, Judge Sheridan made no finding that a conspiracy to murder the appellant had been established on the evidence placed before her Honour.^[26]  There was no inconsistency between her Honour’s decision to grant a FPO for the benefit of the appellant and the primary judge’s finding that the appellant had failed to prove that RBG had been party to a conspiracy to murder him.

The challenge to the dismissal of the negligence claim

49. [49]
    The appellant contended that the respondent had admitted that representatives of the Commissioner of Police Service and police prosecutors owed to an unrepresented litigant a duty to act in the litigant’s best interests.
50. [50]
    The respondent made no such admission.  The appellant’s contention was simply wrong.

The general challenge to the findings of the primary judge

51. [51]
    The appellant submitted that the primary judge had failed to address all the allegation the appellant had made in the proceeding.
52. [52]
    The primary judge identified the matters necessary for decision by reference to the elements of each of the appellant’s causes of action.  This brought an appropriate order to the reasons.  Many, perhaps most, of the appellant’s submissions were directed at topics that the primary judge, with respect correctly, viewed as unnecessary to decide for the purpose of giving judgment on the appellant’s claim.  Those matters did not affect the outcome below.  They could not affect the outcome of the appeal.
53. [53]
    The appellant’s general complaint was that the primary judge did not accept his submissions at the trial and did not make the findings he urged in respect of his claim.
54. [54]
    The primary judge heard the evidence of the witnesses called by the parties over five days.  The appellant gave evidence for about three and a half hours over two days, including lengthy cross-examination by the respondent’s counsel.  The respondent called about 24 current and former QPS officers, including those who dealt with the appellant in respect of the investigations and prosecutions the subject of the appellant’s claim, and the more senior officers who reviewed or supervised those officers.^[27]  The respondent also called a human resources officer, a business services officer, and a legal officer, who gave evidence about other allegations made by the appellant.^[28]  Each of these witnesses was cross-examined by the appellant.  Numerous documents were tendered.  Five recordings were played.
55. [55]
    The primary judge’s reasons ran to 92 pages.  In them, his Honour reflected upon the entirety of the evidence.  Each decision on whether to accept or reject the evidence of one or more witnesses over another or others on conflicting points included his Honour’s assessment of the reliability of each witness, gauged by reference to their opportunity to observe or hear the matters the subject of their evidence, comparison with objective facts and contemporaneous records proved independently of the witness, the objective likelihood of the matters recalled or surmised by each witness, and his Honour’s views about their respective credibility.  In doing so, his Honour viewed the evidence as a whole.
56. [56]
    At the trial, the appellant alleged very serious wrong doing by individuals.  This necessarily affected whether his Honour was satisfied that material facts had been proved.  As his Honour noted, much of the appellant’s case consisted of speculations or suspicions as to what may have occurred or why certain things may have been done or not done.  These speculations or suspicions were unsupported by evidence.  Where the primary judge declined to make a finding of fact sought by the appellant, his Honour’s assessment of the quality, reliability and credibility of the appellant’s evidence on the matter formed a substantial part of the reason for doing so.
57. [57]
    Each of the primary judge’s findings was open on the evidence.  Each concerned a matter put in issue by the pleadings.  The reasons showed that the primary judge did not proceed upon any wrong principle.  Having seen and heard the witnesses, and considered the documentary evidence, the primary judge came to these conclusions in favour of the respondent, upon which the burden of proof did not lie.  The appellant had a difficult task to persuade this Court to interfere in his Honour’s findings.^[29]  He failed in that task.
58. [58]
    In his submissions for the appeal, the appellant did not identify any sound legal basis to set aside the factual findings made by the primary judge.

The costs order

59. [59]
    As the decision of the primary judge to dismiss the appellant’s claim has not been disturbed on appeal, there is no basis to alter his Honour’s order that the appellant pay the respondent’s costs of the proceeding.

Part 4: file numbers and transcripts

Correction of the official record

60. [60]
    The appellant sought relief that “the official record be corrected to reflect the true and correct file numbers and nature of the proceedings”.  This was a reference to the published reasons of Judge Sheridan in the appellant’s appeal against the dismissal of his protection order application against RBG.
61. [61]
    This appeal was not an appeal from that decision.  There has been no such appeal.  It would be inappropriate for this Court to alter any part of the record in that proceeding.

Trial transcripts

62. [62]
    The appellant sought an order that “the trial transcripts be corrected and perfected”.  He contended that the respondent “or its agents” had “created a false record” affecting his right to a fair appeal.
63. [63]
    In Queensland, all evidence given in a legal proceeding is recorded.^[30]  A document purporting to be a transcript of such a record is to be received by a court as evidence of anything recorded in the document, except to the extent the document is shown not to be an accurate transcription of the record.^[31]
64. [64]
    The transcript of the recording of the evidence, rulings, and submissions at the trial was produced for the appellant and the respondent.  As his Honour noted in the reasons, the parties identified some inaccuracies and corrections.  The primary judge made directions for the exchange of schedules of corrections.  Some corrections were agreed, including corrections to the spelling of names.  None of the agreed corrections altered the substance of the evidence led at trial, and none had any impact on the conclusions his Honour reached.  His Honour reviewed the appellant’s other suggested corrections, which were not agreed with the respondent.  His Honour was satisfied that those other suggested corrections, if made, would have had no bearing on the conclusions his Honour reached.^[32]
65. [65]
    The appellant’s allegation that the respondent or an agent “created a false record” is without any basis.
66. [66]
    The appellant’s full schedule of proposed amendments to the trial transcripts was considered by the primary judge.  This schedule was included in the supplementary appeal record.  This Court and the appellant and the respondent had “a note of everything necessary to enable the case to be laid properly and sufficiently before the appellate Court”.^[33] The absence of agreement on all the appellant’s suggested corrections did not prevent him being afforded a fair hearing before the primary judge and in the appeal.
67. [67]
    In the circumstances, it was not necessary to consider any further the appellant’s suggested other corrections or to “perfect” the transcript in the manner the appellant sought.

Part 5: New evidence and additional evidence

68. [68]
    The appellant sought leave to adduce “new documentary evidence” and “additional evidence”.  Some was set out in and exhibited to an affidavit the appellant swore on 28 June 2024.  Most was in his affidavit filed on 13 September 2024.
69. [69]
    The appellant divided the 28 June 2024 affidavit by headings, which identified that each part related to one or more of the 20 matters the appellant sought to raise in the appeal.  As noted above, only six of these matters remained to be decided.  However, the appellant contended that “the entirety of this affidavit” was relevant to whether the judgment and the costs order should be set aside.  The affidavit did not include evidence of any fact, matter or thing that occurred after the trial.  Save for extracts of the reasons of the primary judge, it consisted of documents and extracts of documents that were tendered at the trial and commentary on those documents.  These were included in the appeal record.
70. [70]
    In his affidavit filed on 13 September 2024, the appellant again quoted extensively from transcripts of hearings and other documents that were in evidence before the primary judge.  The affidavit is argumentative.  In it the appellant advances theories that were rejected by the primary judge.
71. [71]
    There is no purpose to allowing the appellant to tender evidence that is already before the Court in the appeal record.  It is only necessary to consider whether to grant leave to adduce any other evidence.  A person seeking leave to put fresh evidence before this Court in an appeal must show that with reasonable diligence they could not have obtained the evidence for use at the trial, that the evidence was likely to have an important influence on the result of the appeal, though it need not be decisive, and that the evidence was apparently credible.^[34]  This general rule serves the important public policy interest in the finality of litigation.^[35]  It has been said to apply in all but a truly exceptional case.^[36]
72. [72]
    The appellant’s new and additional evidence appeared to have been available to him before the trial.  In one instance, a recording of voicemail messages, the appellant told the Court he decided not to put the recording into evidence at the trial.
73. [73]
    The appellant told the Court he did not adduce the new or additional evidence at the trial because he did not appreciate the nature of the allegations against him until he read the reasons of the primary judge.  This is not a justification for the further material which the appellant seeks to adduce on the appeal.  An appeal does not provide an opportunity for a litigant to re-litigate the same matters that were dealt with in the trial, unless error on the part of the primary judge is shown.
74. [74]
    The appellant’s claim was advanced to trial with exchanges of pleadings, and disclosure of documents.  The respondent pleaded its defence to the appellant’s claim in the usual way.  The trial was conducted on the basis that the matters in issue between the parties were those arising on the pleadings.  The primary judge’s reasons dealt with those matters.
75. [75]
    The appellant has not shown any special ground to depart from the general rule.  The public interest in the finality of litigation requires this Court to refuse the appellant leave to adduce the new or additional evidence.

Final disposition

76. [76]
    The orders which should be made are:

1. 1. Applications for leave to adduce evidence refused.
2. 2. Appeal dismissed with costs.