Re AZZ[2023] QSC 299

SUPREME COURT OF QUEENSLAND

1. [1]
   The applicant seeks leave pursuant to s 686 of the Criminal Code 1899 (Qld) to present an information to commence criminal proceedings against the applicant’s exwife (who for the purposes of the application I will refer to as the respondent).
2. [2]
   The applicant seeks to commence criminal proceedings for the following offences allegedly committed by the respondent:

   1. Perjury (ss 123 and 124 of the Criminal Code);
   2. Fabricating evidence (s 126 of the Criminal Code);
   3. Making a false verified statement (ss 193 and 195A of the Criminal Code);
   4. Fraud as an employee to the value of $30,000 or more (s 408C of the Criminal Code);
   5. Obtaining identification information (s 408D of the Criminal Code);
   6. Fraudulently falsifying a record (s 430 of the Criminal Code); and
   7. Forging and uttering (s 488 of the Criminal Code).
3. [3]
   The application (in Form 13) is accompanied by draft forms of information pursuant to Sch 3 of the Criminal Practice Rules 1999 (Qld) in respect of these offences: namely Form 78 perjury, Form 79 fabricating evidence, Form 102 making a false verified statement, Form 241 fraud as an employee to the value of $30,000 or more, Form 242 obtaining identification information, Form 259 fraudulently falsifying a record, Form 318 forging and uttering.
4. [4]
   The application is also supported by an affidavit from the applicant, which exhibits documents including:

1. An extract of the affidavit of the respondent in Federal Circuit and Family Court of Australia family law proceedings;
2. A copy of a Shareholders Agreement in respect of [Company A];^[1]
3. Directors’ meeting minutes for [Company B] dated 13 November 2019;
4. Directors’ meeting minutes for [Company B] dated 15 April 2020;
5. Copy front and back of the applicant’s driver’s licence (with some information masked); 
6. Document containing affirmation from the applicant as to his signature and containing example signature;
7. Affidavit from a third party in Federal Circuit and Family Court of Australia family law proceedings; 
8. Notice of remedy from the applicant to the respondent dated 1 June 2023;
9. Notice of wrong from the applicant to the respondent dated 12 June 2023; and
10. Notice of trespass from the applicant to the respondent dated 20 June 2023.

Criminal Code procedure for an information by a private person for indictable offences

5. [5]
   Section 686 of the Criminal Code provides as follows:

“(1)Any person may by leave of the Supreme Court present an information against any other person for any indictable offence, alleged to have been committed by such other person.

2. An information presented by leave of the court is to be signed by the person on whose application the leave is granted, or some other person appointed by the court in that behalf, and filed in the Supreme Court.
3. The person who signs the information is called the prosecutor.
4. The information is to be intituled ‘The Queen on the prosecution of the prosecutor (naming the person) against the accused person (naming the person)’, and must state that the prosecutor informs the court by leave of the court.
5. Except as otherwise expressly provided, the information and the proceedings upon it are subject to the same rules and incidents in all respects as an indictment presented by a Crown Law Officer and the proceedings upon such an indictment as hereinbefore set forth.” 

6. [6]
   Section 687 provides that before the information is presented, the prosecutor is to be required to give security in such amount and in such manner as the court on giving leave to present the information may direct. The security is in relation to the prosecutor prosecuting the information without delay and the accused’s costs incurred in respect of the person’s defence to the charge as the court may order the prosecutor to pay.
7. [7]
   Section 688 requires that an office copy of the information is to be served upon the accused person following the registrar endorsing a summons and applying the seal of the court, requiring the person to appear and plead to the information.
8. [8]
   Section 689 requires the accused person to enter an appearance and file a plea in writing in the Supreme Court and to deliver a copy to the prosecutor.
9. [9]
   Section 690 outlines a process in default of a plea by the accused person.  Section 691 outlines the process in relation to the time and place of trial.
10. [10]
    Section 694 deals with costs of the defence and states as follows:

“In any of the following cases, that is to say—

1. if an application for leave to present an information against a person (the accused person) ends without the application being granted;
2. if the accused person pleads to the information, and is not brought to trial within a year after filing the person’s plea;
3. if a Crown Law Officer informs the court that the Crown Law Officer will not further proceed on the information;
4. if the accused person is acquitted upon trial; the court, or the judge before whom the trial (if any) is had, may award costs to the accused person.”

Service and material from the respondent

11. [11]
    Rule 23 of the Criminal Practice Rules provides that a person making an application to the Supreme Court must serve a copy of the filed application and any supporting documents on the accused person. The copies must be served at least 2 clear business days before the date the application is to be heard. The court has the ability to extend or shorten time. Further, the accused person may agree in writing to attend the hearing despite receiving the copies less than 2 clear business days before the hearing.
12. [12]
    There is an affidavit of service that the application was served on the respondent on 11 October 2023 by a Court Bailiff.
13. [13]
    The application was filed on 24 August 2023 and was set down for hearing on Friday, 24 November 2023, being the next Supreme Court circuit in Toowoomba.
14. [14]
    The respondent emailed material to the Toowoomba Courthouse on 7 November 2023. This material has been Marked for Identification A and subsequently marked as Exhibit 1. The email from the respondent to the Court refers to a discussion with the Supreme Court Registry on 13 October 2023, which is consistent with the affidavit of service.
15. [15]
    Pursuant to r 24 of the Criminal Practice Rules, the court may decide an application whether or not the accused person appears at the hearing of the application. 
16. [16]
    The respondent contacted the Court Registry and requested to be able to appear at the application by telephone. Leave to appear by telephone was granted. 
17. [17]
    At the hearing on 24 November 2023 the respondent appeared by telephone and made brief submissions. 

Relevant authorities 

18. [18]
    Holmes J (as the Chief Justice then was) helpfully considered s 686 of the Criminal Code in the matter of Gilbert v Volkers [2005] 1 Qd R 359.
19. [19]
    Her Honour noted that s 686(1) of the Criminal Code provides no criteria for the grant of leave and that the provision has received relatively little judicial consideration.
20. [20]
    Relevantly, Holmes J considered two relevant authorities, namely:

    1. The Full Court of the Supreme Court of Western Australia who considered an equivalent provision in Gouldham v Sharrett [1966] WAR 129;^[2] and
    2. The Queensland Supreme Court decision of Wanstall J in Ex parte Marsh [1966] Qd R 357.^[3] 

21. [21]
    In Gouldham v Sharrett, the Court refused an application for leave under s 720 in respect of an allegation of perjury where the Attorney-General had indicated that he would not proceed with the charge. In that case, the refusal of the Attorney-General to file an indictment was “a matter of great weight” taken into account by Wolff CJ, with whom the other members of the court agreed. 
22. [22]
    Wolff CJ identified the following criteria as being relevant to considering an application for leave to commence a criminal proceeding by way of an information by a private person:

    1. Is the type of offence of such grave character that the determination whether to prosecute should be left to the Attorney-General (for example, prosecutions for such offences as non-capital homicide, perjury and so on)?
    2. Is the admissible evidence in support of the prosecution inherently credible and sufficient to found a prima facie case?
    3. If there have been no proceedings for committal, is there any good reason why the usual proceedings for committal before Justices should not be resorted to?
    4. Has the accused already been committed for trial by a petty sessional court?

    5. Has the Attorney-General entered a nolle prosequi or intimated that he will not file a bill?
    6. Is the administration of justice likely to be impaired by reason of some discreditable motive on the part of the prosecutor?
    7. Is the situation such that if leave is refused a grave injustice will be done to the applicant or somebody standing in close relationship to him?^[4]
23. [23]
    In Ex parte Marsh, the applicant sought to proceed against a police officer who, he alleged, had assaulted him. Wanstall J reviewed the history of the procedure, including that the Supreme Court’s power to permit the bringing of private prosecutions was a peculiarity from the early days of the colony.
24. [24]
    Wanstall J concluded that there was no restriction as to the type of offence for which leave could be granted, since the provision made no distinction. Further, in the  exercise of the discretion, the usual matters relevant to the exercise of any judicial discretion applied.

25. [25]
    Holmes J observed that the headnote in Ex parte Marsh overstates the observations of Wanstall J in regard to whether the procedure under s 686 of the Criminal Code was unusual and extraordinary. Her Honour agreed that as a matter of history, the procedure was unusual and extraordinary. Further, her Honour observed that a legislative expectation could be inferred, against that historical background, that its adoption would not become an everyday affair.
26. [26]
    However, her Honour did not consider that Wanstall J determined that the procedure should only be countenanced in cases presenting unusual features. The actual reasoning of Wanstall J does not support that. However, as her Honour identifies, Wanstall J arrived at that view because of the absence of any committal hearing in the case before him.
27. [27]
    Wanstall J on the facts in Ex parte Marsh considered that there had been no committal was a feature circumscribing the exercise of the discretion. Further, his Honour concluded that to permit the applicant to present an indictment would deprive the accused of the protection afforded by firstly, the committal procedure and secondly, the Attorney-General’s consideration of whether a true bill should be found. 
28. [28]
    It was in those circumstances that Wanstall J concluded that there was no unusual or extraordinary feature which would justify his sanctioning a procedure which deprived the accused of that protection. Accordingly, leave was refused. 
29. [29]
    Justice Holmes notes the comments of the Court of Appeal, constituted by Macrossan CJ, Pincus JA and Davies JA, in Re Smith [1993] 2 Qd R 218 at 221-222 that it was open to grant leave with a stay so as to allow committal proceedings to take place. The Court of Appeal otherwise did not criticise the earlier decision of Wanstall J and there was no suggestion by the Court of Appeal that the analysis was incorrect in respect of the discretion being unconstrained by the type of offence alleged.
30. [30]
    The facts of Gilbert v Volkers can be distinguished from the current application. In that case the respondent had been committed for trial, and the Director of Public Prosecutions had indicated that she would not present an indictment. 
31. [31]
    Holmes J recognised that there was no limitation on how the discretion fell to be exercised, other than the guide provided by public interest considerations. Further, in considering what the public interest indicated, her Honour had regard to the criteria identified in Gouldham v Sharrett, with some qualifications.
32. [32]
    In respect of the criterion of gravity of the alleged offence, her Honour highlighted the difficulties in undertaking a classification of an offence as sufficiently serious to warrant leave to present an information. Her Honour highlighted some of the difficulties with considerations as to whether some matters should be left to the Attorney-General to decide whether to prosecute or not.  How this could be determined is not clear.
33. [33]
    In considering allegations of a sexual offence against a child, her Honour concluded that she did not think there was any reason to regard them as belonging to a class which ought to be reserved for the Attorney-General’s attention.
34. [34]
    Reference is made to Blackstone’s list of matters which could be the subject of a private complaint. This list would suggest that matters which tend “to disturb the government” or those affecting the administration of justice could be a category left in the hands of the State prosecuting authorities. This may extend to perjury, but it is not clear whether this would include the other allegations of various fraudulent or dishonest conduct alleged by the applicant in the current case.
35. [35]
    The second criterion considered by Holmes J was the evidence put forward by the applicant. This involves an analysis of whether a prima facie case exists. In the case of Gilbert v Volkers, given the committal had taken place, considerable detailed evidence was provided to the Court in respect of that application. This included crossexamination at the committal, testing the strength of some of the evidence. 
36. [36]
    The third criterion considered by Holmes J was the Director of Public Prosecutions’ decision. In that case the respondent had been committed for trial on seven charges. After the committal, materials were provided to the Director of Public Prosecutions and a decision was made not to proceed. 
37. [37]
    An explanation was provided by letter indicating that the decision to discontinue did not reflect on the applicant’s credibility but rather difficulties in the way of prosecution, in the form of absence of independent evidence, the age of the offences being more than 15 years and the requirement for a Longman direction. In that case, the matter was also referred to the Office of the New South Wales Director of Public Prosecutions for further consideration and a report was prepared. That report in effect went further than the explanation from the Queensland Director of Public Prosecutions, in effect supporting the decision that was made.

38. [38]
    For the purposes of the application, Holmes J concluded that the fact that the Director had decided not to prosecute must of itself be accorded some weight, in the exercise of the Court’s discretion. However, her Honour recognised that the decision could not be conclusive.
39. [39]
    The next criterion considered was whether there was a prima facie case. On the particular facts, her Honour concluded that there was a prima facie case on all four charges including the three counts contained in the proposed indictment. 
40. [40]
    The next criterion considered in accordance with Gouldham v Sharrett was the applicant’s motives. In that case, there had been considerable media reporting on the circumstances. Her Honour concluded that there was no basis to conclude that the applicant was motivated by malice and further, that there was nothing discreditable about the applicant’s conduct in making the situation public.
41. [41]
    The next criterion considered was the potential criticism of the criminal justice system. In that case, her Honour considered that there was a real risk that rather than the public seeing a trial, being the criminal justice system at work, it could be perceived as an extension of the media contest between the parties.
42. [42]
    The next criterion considered was whether there was injustice to the applicant. Consideration was given to options for civil proceedings, including a personal injuries action and a defamation action. Her Honour concluded that there could be no assurance that the applicant’s complaint would be fully ventilated or resolved. However, her Honour did recognise that the applicant had not been left without a voice.
43. [43]
    Her Honour’s approach then was to consider the factors in favour of a grant of leave and factors militating against leave.
44. [44]
    The factors in favour of grant of leave included that there was a prima facie case, the applicant had been left without the opportunity of giving her account in a trial or seeing the issues resolved by a jury. Further, the charges were serious and involved significant breaches of trust.
45. [45]
    The factors militating against leave in that case included the media coverage and publicity. In that case, a trial being conducted by an independent prosecutor with the distance and authority of the Crown would not occur.
46. [46]
    Her Honour recognised at [47] that:

“On a criminal trial, the prosecution should be, and should appear to be, conducted on behalf of society as a whole, without the distracting winds of personal indignation or outrage. There is, I think, an overwhelming risk that if this trial were to be conducted on the basis that it was the applicant who was the prosecutor of the respondent, the perception of a personal contest between applicant and respondent would continue, with an attendant risk that the jury would perceive the process as one involving either the affirmation of the applicant’s account and denunciation of the respondent on the one hand, or a rebuffing of the applicant and preferring of the respondent on the other. The impact of any attempt to cure that perception by direction would be considerably diminished by the very appearance of applicant and respondent as opposing parties.”

47. [47]
    Ultimately, her Honour weighed the public interest in a resolution of the allegations by a jury trial against the public interest of not permitting a trial flawed by delay, publicity and the risk of misperception of its purpose and concluded that leave not be granted.
48. [48]
    The decision of Gouldham v Sharrett is also of some assistance in the current case. The facts in that case were that the applicant had been convicted and sentenced to a term of imprisonment on a charge of him being an agent who deceived his principal by failing in an account submitted to him to disclose a deduction made for monies paid to him on the principal’s account. On release from prison the applicant visited the respondent and obtained answers which were tape recorded. The applicant then made a complaint charging the respondent with perjury. The preliminary hearing included evidence of the statement pre-recorded on the tape and also a typed letter where the respondent’s signature appeared in the margin.
49. [49]
    The Magistrate committed the respondent for trial. However, the Chief Crown Prosecutor informed the applicant that the Minister for Justice would not proceed with the charge. However, the process gave the applicant time to make an application for leave to present a private information. A motion for leave was then made which was referred to the Full Court.
50. [50]
    The Full Court refused the application. The reasons included that the evidence was tenuous, including that some of the evidence was inadmissible as it had been obtained by a person in the position of a potential prosecutor using overbearing methods and trickery. Further, the handwritten part of the document was also inadmissible as the applicant had failed to identify it with the respondent or explain what the writing had contained when the respondent signed in the margin.
51. [51]
    The Court recognised that there is no definite rule that the Court will refuse to give leave to a private prosecutor to present any information because the Attorney-General has refused to file an indictment. However, such a refusal is to be taken into account by the Court as a matter of great weight. As part of this reasoning, the Court identified the criteria which were later summarised by Justice Holmes in Gilbert v Volkers. 
52. [52]
    Wolff CJ concluded that where a private individual commences a private prosecution by way of information, the private individual is authorised and has the burden of engaging counsel and taking the steps to bring the accused to trial and for the conduct of the trial. It is recognised however that the Attorney-General may intervene and inform the Court that they will not proceed further on the indictment. If that occurs, the Crown in effect indicates it will not lend its authority anymore to the prosecution and in withdrawing its authority the prosecution will stop. 
53. [53]
    It is in these circumstances that Wolff CJ noted:

“There are further reasons of policy which would influence me in deciding whether or not to grant the authority asked. This is an allegation of perjury – one of the most serious of offences under the Criminal Code and an offence which, in my opinion, should generally be left to the law officers to prosecute on indictment. I feel that once the law officers have had an opportunity to consider the facts of the case, as they have here, this court should be loath to give authority except in a most glaring instance.”^[5]

54. [54]
    The Queensland Court of Appeal in Re Smith [1993] 2 Qd R 218 considered an appeal from an unsuccessful applicant for leave pursuant to s 686 of the Criminal Code to present an information against 16 people for indictable offences. The Court of Appeal recognised that the discretion on its face is not limited. Consideration was also given to the interaction between s 686 of the Criminal Code and s 42, together with ss 102A to 102H, of the Justices Act 1886.
55. [55]
    In that case it was recognised that the Justices Act provides a comprehensive procedure for a private complaint to be brought. It also includes various safeguards including an examination of all of the evidence at an early stage and also a right to appeal to the Supreme Court.
56. [56]
    It was submitted that the procedure under s 686 of the Criminal Code enables the matter to be brought immediately before a superior court without proper knowledge of the case against the defendant, thereby depriving the defendant of the opportunity to test the evidence at the earliest stage.
57. [57]
    In that case, the appellant asserted that he had approached the police to have proceedings instituted but was not successful. No complaint was made under the Justices Act and there was no evidence of why there was a failure to do so.
58. [58]
    The Court recognised:

    1. that the procedure under s 686 of the Criminal Code did not ordinarily involve committal proceedings unless a stay were granted and also it did not involve the additional protections provided by ss 102A to 102H of the Justices Act; and 
    2. that s 686 was a valuable safeguard for a private citizen against refusal by police and justices of the peace to act where an offence has been committed.
59. [59]
    The Court considered that in an appropriate case for which leave is granted, the Court may grant a stay so as to permit committal proceedings to take place.
60. [60]
    However, in that particular case the Court went on to conclude that two further considerations led to the appeal being dismissed. The Court stated as follows:^[6]

“The existence of alternative means by which a private citizen may, without leave, institute criminal proceedings for an indictable offence  which have committal proceedings as an integral element; and whether the applicant has sought to utilise all of those means. Here the appellant failed to seek to institute proceedings pursuant to s 42 of the Justices Act 1886. He gave no satisfactory explanation for that failure and there was no other feature of the case which made it plainly unjust to refuse leave.”

61. [61]
    In those circumstances the Court concluded that there was no error in the exercise of the discretion.

Consideration

62. [62]
    In exercising the discretion pursuant to s 686 of the Criminal Code, I adopt the approach endorsed by Holmes J in Gilbert v Volkers. Namely, that there is no limitation on how the discretion is to be exercised other than the general guide provided by public interest considerations and general principles applicable to the judicial exercise of a discretion. Further, the criteria identified in Gouldham v Sharrett are of assistance in considering the public interest considerations.
63. [63]
    The first criterion is:  Is the type of offence of such grave character that the determination whether to prosecute should be left to the Attorney-General?  Here, the offending is perjury, fabricating evidence and various other allegations of fraud, fraudulent behaviour or dishonesty. 
64. [64]
    As discussed in the authorities, some offences may arguably be better left in the hands of the state prosecuting authorities particularly where they are offences affecting the administration of justice. Perjury was recognised in Gouldham v Sharrett as being an offence in that category. In that case the Full Court considered that the Court “should be loath to give authority except in a most glaring instance”. That was particularly so given that the Crown prosecutor had considered the relevant information and had decided not to proceed.
65. [65]
    In the current case the gravity of the offending is serious and potentially affects the administration of justice. This is particularly so when the alleged perjury and fabrication of evidence occurred in the context of current proceedings in the Federal Circuit and Family Court of Australia. Whilst there is no evidence that the relevant prosecution authorities have considered the allegations in this case, the gravity and nature of the offences may be a factor against the grant of leave. 
66. [66]
    However, this may not be conclusive as it is also accepted in the Queensland authorities that the grant of leave is not limited to certain offences.
67. [67]
    The second criterion is: Is the admissible evidence in support of the prosecution inherently credible and sufficient to found a prima facie case?  The evidence put forward by the applicant is minimal.  While it may give rise to lines of further investigation or enquiries, on its own, it is difficult to see that it establishes a prima facie case. 
68. [68]
    Even if a prima facie case is assumed for the purposes of the application, the other criteria need to be considered.
69. [69]
    The third criterion is: If there have been no proceedings for committal, is there any good reason why the usual proceedings for committal before justices should not be resorted to? Here, there is no evidence of the Director of Public Prosecutions considering or making a decision in relation to the allegations. Some of the matters considered further below are also relevant to this criterion.  
70. [70]
    The applicant says he has discussed the allegations with police but has decided to pursue this process to deal with it himself and to save police resources.
71. [71]
    The fourth criterion is: Has the accused already been committed for trial by a petty sessional court?  Here, there has been no committal.
72. [72]
    The fifth criterion is: Has the Attorney-General entered a nolle prosequi or intimated that he or she will not file a bill?  Here, there is no evidence of this.
73. [73]
    The sixth criterion is: Is the administration of justice likely to be impaired by a reason of some discreditable motive on the part of the prosecutor? What is apparent from the evidence before the Court is that the allegations arise out of current family law proceedings in the Federal Circuit and Family Court of Australia. 
74. [74]
    Orders have been made by the Federal Circuit and Family Court of Australia in respect of the assets from the former marriage of the applicant and the respondent and provide for a distribution of those assets. The applicant has made an application to set aside the orders, which is set down in February 2024.
75. [75]
    It is also apparent from the orders which have been provided by the respondent to the Court which form part of Exhibit 1 that the respondent has, subject to the application to set aside the orders, the significant benefit of the orders that have been made in the family law proceedings.
76. [76]
    It is also apparent that there is in place a Protection Order pursuant to the Domestic and Family Violence Protection Act 2012 (Qld) with the respondent as the aggrieved and the applicant as the respondent to the Protection Order. Two children also have the benefit of the Protection Order.
77. [77]
    The Protection Order was made on 27 May 2021 and continues in force up to and including 26 May 2026. The terms of the Protection Order include:

    1. Pursuant to Condition 1, the respondent must be of good behaviour towards the aggrieved and not commit domestic violence against the aggrieved.
    2. Pursuant to Condition 3, the respondent is prohibited from following or approaching to within 100 metres of the aggrieved when the aggrieved is at any place. 
    3. Pursuant to Condition 5, the respondent is prohibited from contacting or attempting to contact or asking someone else to contact the aggrieved. 
    4. Pursuant to Condition 6, the respondent is prohibited from using the internet or any other communication device to communicate with, publish pictures or to make comments concerning the aggrieved. 
    5. Pursuant to Condition 7, the respondent is prohibited from making telephone calls or sending text messages to the aggrieved.
    6. Pursuant to Condition 8, the respondent is prohibited from locating, attempting to locate or asking someone else to locate the aggrieved.
78. [78]
    An exception is that Condition 3 does not apply to the extent that is necessary for the respondent to appear personally before a court or tribunal.
79. [79]
    Further, Condition 5 does not apply to the extent that is necessary for the parties to attend an agreed conference, counselling, mediation session or messaging in respect of compliance of an order of the court or contact with a child authorised by a representative of the Department of Communities.

80. [80]
    An issue that arises in the context of the current application is whether the current proceedings are a mechanism by which the applicant orchestrates contact with the respondent, thereby circumventing the Protection Order. Further, it may be an attempt to re-litigate matters that have been heard and determined in the Federal Circuit and Family Court of Australia.
81. [81]
    This issue also raises one of the concerns identified by Holmes J as a factor militating against leave. In that case, her Honour identified the risk that the private prosecution could be seen as a personal contest between the two parties. The passage is referred to in full previously in these reasons. 
82. [82]
    In the current case, there is a significant risk that the trial would be conducted on the basis that it is a personal dispute between the applicant and the respondent rather than as an independent prosecution conducted on behalf of society as a whole. This factor is a strong factor against leave.
83. [83]
    The seventh criterion is:  Is the situation such that if leave is refused, a grave injustice will be done to the applicant or somebody standing in close relationship to him or her?   Here, there are other processes available to the applicant both by way of civil proceedings, a complaint under the Justices Act (with the relevant safeguards) and also raising the issue as part of the ongoing proceedings in the Federal Circuit and Family Court of Australia.
84. [84]
    Given that there are already proceedings on foot dealing with the very subject matter, which is the subject of the allegations, it would be appropriate for the matters to be raised within those proceedings in the first instance.
85. [85]
    The applicant has indicated that he has applied to set aside the Federal Circuit and Family Court orders and the application is to be heard in February 2024.
86. [86]
    Further or alternatively, the applicant could make a complaint to the police or request the Federal Circuit and Family Court of Australia to make a referral to the prosecuting authorities.
87. [87]
    In respect of the claims made in respect of the company, there may be relief under the Corporations Act 2001 (Cth) or a complaint to ASIC as the relevant regulator.  There may also be other civil claims that could be brought seeking relevant relief.  In this regard I note Chubb J’s comments in R v Hamill [1903] QWN 76 in respect of the general objection to assisting redress of personal grievances by operation of the criminal law.
88. [88]
    Also consistent with the comments of the Court of Appeal in Re Smith, a complaint under the Justices Act would alternatively commence a process with built in safeguards to enable the evidence to be considered at an early stage to ascertain whether there is sufficient evidence to put the respondent on trial. 
89. [89]
    These alternative procedures are more appropriate than commencing criminal proceedings by way of private information pursuant to s 686 in the Supreme Court where there is no ability to test the sufficiency of the evidence at an early stage. 
90. [90]
    Whilst it is possible for leave to be granted and a stay issued to permit a committal proceeding to take place in accordance with the comments of the Court of Appeal in Re Smith, in circumstances where there are clearly other appropriate and viable procedures available for the applicant, those avenues should be pursued first.
91. [91]
    In the circumstances, it is necessary to weigh the public interest in a resolution of the applicant’s allegations by a jury trial against the public interest in not permitting a trial to proceed where:

    1. there is another more appropriate procedure available under the Justices Act for a criminal complaint where the sufficiency of evidence can be fully tested at an early stage prior to the matter proceeding to trial;
    2. the issues can be raised in on-going proceedings in the Federal Circuit and Family Court of Australia and, in particular, where there is a current application to set aside the orders in the proceedings in which the subject matter of the allegations was first raised;
    3. there are other appropriate civil remedies which have not been considered or pursued by the applicant;
    4. the serious offences involved would arguably be more appropriately considered by the prosecuting authorities as they raise concerns as to the administration of justice and there is no evidence that they have been raised with any relevant prosecuting authority; and
    5. the evidence relied upon in support of the application does not clearly establish a prima facie case.
92. [92]
    In all of these circumstances, on balance I conclude that leave ought not to be granted for the applicant to present an information against the respondent.
93. [93]
    Accordingly, the application is dismissed and the order of the Court is that, leave is refused.