McEwan v Cloudsdale[2022] QSC 284

SUPREME COURT OF QUEENSLAND

1. [1]
   The first, fourth and fifth respondents apply to set aside the originating process for this proceeding, and for good reason; it is an abuse of process.
2. [2]
   In November 2020, the applicant made a complaint to the third respondent, the Office of the Australian Information Commissioner (OAIC) by which she alleged a breach of privacy by an employee of the Australian Taxation Office. A decision on her complaint was made on 10 March 2022 by the first respondent, Ms Cloudsdale, as delegate for the OAIC. On 27 May 2022, the applicant commenced a judicial review application with respect to that decision in the Brisbane District Registry of the Federal Court of Australia. The respondents to that application were the OAIC and the Commissioner of Taxation. The fourth respondent, Mr Venus, is a member of the firm of solicitors who acted for the OAIC in the Federal Court proceeding and the fifth respondent, Ms Falk, is the Australian Information Commissioner. As Commissioner, Ms Falk (rather than her office which is separately named as the third respondent) is the appropriate respondent.^[1]
3. [3]
   On 28 June 2022, the applicant filed an interlocutory application in the Federal Court proceeding seeking an order, amongst other things, that the OAIC provide her with a copy of what was described as a “preliminary determination letter”. As it turns out, the relevant preliminary determination was not a letter. It took the form of a draft (but unsent) email which had been prepared by the case manager who initially reviewed the applicant’s complaint, a Mr Tanyous, on or about 10 February 2022.
4. [4]
   The interlocutory application was set down to be heard in the Federal Court on 5 July 2022 but, the day before, Mr Venus in his capacity as solicitor for the OAIC emailed an electronic file to the applicant in response to her request for the “preliminary determination letter”. The electronic file was a copy of the draft email prepared by Mr Tanyous.
5. [5]
   When the interlocutory application came on for hearing before Logan J in the Federal Court the next day, his Honour dismissed that application and made directions to facilitate the hearing of the judicial review application. The hearing took place on 8 November 2022 and the application book for it included a copy of Mr Tanyous’ draft email. The application was dismissed with costs. 
6. [6]
   Two days later, the applicant commenced this proceeding by the filing of an originating application, with an amended originating application being filed on 18 November.^[2] In between, on 15 November, the applicant filed an appeal from the decision of Logan J dismissing her judicial review application. Amongst the applicant’s grounds for that appeal is a complaint that his Honour “failed to address and place any weight on tampered evidence relevant to the proceeding that was placed” in the court application book, namely, the draft email prepared by Mr Tanyous.
7. [7]
   By the amended originating application, the applicant seeks an order that the first, third and fourth respondents provide her “with an electronic copy [of Mr Tanyous’ draft email] that includes the metadata for it for “independent forensic verification by a computer expert”, an order requiring the same parties to “provide a sworn statement attesting to the document they tendered to the applicant that was placed into the court application book … is the true and correct copy” of Mr Tanyous’ draft email and, if the document included in the court application book is not the draft email “authored by Mr Tanyous”, an order that the same parties provide a “sworn statement annexing the true and correct copy of” the draft email. Lastly, apart from costs, the applicant seeks against all respondents:

“Compensation for conspiracy to injure by unlawful means by way of a written apology from the respondents to the applicant.”

8. [8]
   The application filed by the fourth respondent seeks an order, relevantly, that this proceeding be set aside pursuant to the inherent jurisdiction of the court, UCPR rr 16(e), 16(g), 16(i) and UCPR r 658 and the first and fifth respondents seek dismissal of the amended originating application pursuant to UCPR r 658 and the inherent jurisdiction of the court. It is not necessary, however, to look beyond UCPR r 16(e) which confers power on the court to set aside an originating process. 
9. [9]
   In Lewis v Minister for Police and Corrective Services and Minister for Fire and Emergency Services & Ors,^[3] I made these observations about that rule:

“The power under UCPR r 16(e) to set aside an originating process will only be exercised in the clearest of cases. It is a power that is materially different in consequence to, for example, the power under UCPR r 171 to strike out a claim or statement of claim under UCPR r 171 which, when exercised, will not put an end to the proceeding unless leave to replead is refused.^[4] In contrast, when the court orders that an originating process be set aside under UCPR r 16, the proceeding is summarily terminated. Given such a dire consequence, the defendants must positively demonstrate why [the plaintiff] should be deprived of “the customary tribunal which deals with actions of the kind he brings”.^[5] Unless this onus is discharged to a high level of certainty, [the plaintiff] ought not be denied the opportunity to place his case before the court in the ordinary way, and after taking advantage of the usual interlocutory processes.^[6] That, for instance, might be so where it is established that there is no possible cause of action or where, as the defendants here contend, the proceeding is properly to be regarded as an abuse of process.

In Batistatos v Roads and Traffic Authority (NSW),^[7] Gleeson CJ, Gummow, Hayne and Crennan JJ observed that what amounts to an abuse of court process is “insusceptible of a formulation comprising closed categories”.^[8] One example then referred to by their Honours emerges from the line of authority dealing with the stay of proceedings instituted in a second forum where there are pending proceedings in another forum and the continuance of the second proceedings would be an abuse of the process of the first forum.^[9] Reference was also made to what McHugh J said in Rogers v The Queen^[10] to the effect that abuses of procedure “usually fall into one of three categories: (1) the court’s procedures are invoked for an illegitimate purpose; (2) the use of the court’s procedures is unjustifiably oppressive to one of the parties; or (3) the use of the court’s procedures would bring the administration of justice into disrepute”.^[11]  Later their Honours concluded:

‘The ‘right’ of the plaintiff with a common law claim to institute an action is not at large. It is subject to the operation of the whole of the applicable procedural and substantive law administered by the court, whose processes are enlivened in the particular circumstances. This includes the principles respecting abuse of process.’^[12]

More recently in UBS AG v Tyne,^[13] an appeal concerning the power to permanently stay proceedings as an abuse of the process of the court, Kiefel CJ, Bell and Keane JJ said:

‘The courts must be astute to protect litigants and the system of justice itself against abuse of process. … The concern is as to whether the processes of the court are being abused. Given that this is the central concern, the circumstance that the abuse is effected by the use of multiple entities orchestrated by a single mind and will is no reason to tolerate it.

Nor does the undue vexation which a stay of proceedings is concerned to prevent arise only when proceedings in respect of the same issue have been concluded by a judgment on the merits.  Serial proceedings discontinued prior to judgment would be an obvious example of an abuse of process.  The pursuit of substantially the same claim by serial proceedings conducted by different entities under common control is no less obviously an abuse of process.’^[14]

Once those statements of general principle are appreciated, it should come as no surprise to record that the commencement of a second or subsequent proceeding in a court if a proceeding is already pending with respect to the matter or matters in issue in the same court will be “prima facie vexatious and oppressive” and liable to be stayed or set aside as an abuse of process of that court.^[15] Indeed, unless proper justification for the maintenance of multiple proceedings can be discerned, such an outcome would have to be regarded as inevitable.”^[16]

10. [10]
    With that summary of the applicable principles in mind, I return to the originating process in this case. 
11. [11]
    By the amended originating application, the applicant pursues against the first, third and fourth respondents disclosure of the same electronic file and associated metadata that she pursued in the Federal Court proceeding which is currently under appeal, along with what might be presumed to be ancillary relief to which I earlier referred (at [7]). Furthermore, the applicant made it plain that the singular purpose for the filing of the process in this court is so that she can rely on what is ordered to be disclosed or sworn in her appeal to the Full Court of the Federal Court. 
12. [12]
    Both during the hearing of the applicant’s interlocutory application for disclosure in the Federal Court and at the final hearing of her judicial review application in the same court, the applicant complained about what she contended were discrepancies in the recording (or non-recording) of the date of the draft email in different printed versions of the electronic file. This, she submitted to Logan J, suggested that “there has been evidence (the draft email was) tampered with” and, in written submissions on the hearing of this application, she put that a review of the “various versions of the document provided [by Mr Venus] … raises serious questions as to the authenticity of the document”.
13. [13]
    Whatever may be the provenance of the draft email included in the court application book in the Federal Court, her pursuit of the electronic file and associated metadata for it in this court is plainly an abuse of process. Not only is the applicant seeking to again litigate an issue that has been litigated in another court and is now the subject of an appeal, she seeks to do so for the express purpose of aiding her prosecution of that appeal. In this regard, it matters not that this court might in an appropriate case cross-vest Federal jurisdiction because this proceeding, wherever it is brought, constitutes a second proceeding in respect of an issue that has already been decided and is pending appeal. Indeed, in the written and oral submissions made by the applicant, she could advance no sensible justification for bringing this proceeding. 
14. [14]
    That makes it unnecessary to consider in any detail the other points of objection raised by the respondents other than to record that the jurisdictional basis for the making of the orders sought in the amended originating application is by no means apparent^[17] and even if a disclosure order could be made, how that could be legitimately used to advance litigation in another court.^[18]
15. [15]
    As to the applicant’s claim against all respondents for a written apology, this was said to be premised on a series of pleaded assertions to the effect that the respondents were each party to an unlawful conspiracy designed to cause detriment to the applicant. There is no substance in these assertions, and the claim is otherwise hopeless because it is legally flawed.^[19]
16. [16]
    It follows that the whole of the amended originating application should be set aside as an abuse of process.
17. [17]
    There are two final matters. 
18. [18]
    First, when the application came on for hearing on 6 December, the applicant applied for an adjournment. The reason advanced for requiring an adjournment was that an appeal had been lodged by the applicant against a decision made by Williams J on 24 November 2022. On that day, her Honour dismissed an interlocutory application brought by the applicant for being an abuse of process because the same relief was claimed as that which had been sought by way of final relief. The applicant submitted that the determination of the subject applications brought by the first, fourth and fifth respondents should await the outcome of the appeal but as nothing was decided by Williams J about the merits of these applications, there was no proper justification to defer determining them and good reason to do so given the scandalous nature of the allegations made against the personally named respondents.
19. [19]
    Second, following the hearing of the application, on 12 December 2022 the applicant requested that the matter be brought back on so that she could make further submissions. That application was refused but leave was granted to file and serve short supplementary submissions on terms that also permitted the first, fourth and fifth respondents to reply. When the applicant’s supplementary submissions were received she sought leave to further amend the amended originating application to place reliance on a range of provisions including reference to a non-existing provision of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Qld). She also sought leave to “completely remove all pleadings from the [amended originating application] and only seek relief by way of orders”.  Otherwise, the applicant asserted that “there is a prima facie case of fraud” and that she should therefore “be free to uncover what appears to be a counterfeit document”. The application for leave to amend is brought too late and would not advance the applicant’s cause if leave was granted. Leave is refused. The supplementary submissions otherwise made by the applicant do nothing to alter the conclusion I have reached about the fate of the originating process.
20. [20]
    For these reasons, the amended originating application will be set aside and the applicant ordered to pay the costs of the first, fourth and fifth respondents to be assessed on the standard basis.