CATCHWORDS

 

 

 

 

 

FEDERAL POLICE - action for unlawful trespass and arrest - before a forcible entry to effect an arrest under s 8A Crimes Act 1914 (Cth) will be lawful, police must first announce they are police with authority to enter and must give an opportunity to permit entry without force

 

FEDERAL POLICE - action for unlawful assault by "frisking" - limited scope under common law for police to search an arrested person

 

FEDERAL POLICE - unlawful seizure of documents - limited scope under common law for police to seize documents from an arrested person

 

STATE POLICE - action for unlawful assault by fingerprinting - s 43(1) Vagrants, Gaming and Other Offences Act 1931 (Qld) permits police to fingerprint an arrested person without his consent, provided there is a lawful arrest

 

 

 

 

 

Federal Court Rules - O 10A r 5, O 11 r 16, O 20 r 2

 

 

 

 

 

Australian Federal Police Act 1979 (Cth) - s 64B

Crimes Act 1900 (NSW) - s 352

Crimes Act 1914 (Cth) - s 3ZE, 3ZJ, 8A, 76(1)(a)

Criminal Code of Queensland - ss 3(2), 344

Human Rights and Equal Opportunity Act 1986 (Cth) - s 48

Judiciary Act 1903 (Cth) - ss 39B, 68

Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth)

Justices Act 1886 (Qld) - s 102C

Vagrants, Gaming and Other Offences Act 1931 (Cth) - s 43

 

 

 

 

 

Barnett & Grant v Campbell (1902) 21 NZLR 484 Followed

Clarke v Bailey (1933) 33 SRNSW 303 Followed

Field v Sullivan [1923] VLR 70 Followed

Grollo v Bates (1994) 125 ALR 492 Referred to

Halliday v Nevill (1984) 155 CLR 1 Referred to

Lippl v Haines (1989) 18 NSWLR 620 Followed

Mathews v Jones (Cooper J, unreported, 19 November, 1993) Referred to

Morris v Beardmore [1981] AC 446 Referred to

Plenty v Dillon (1990) 171 CLR 635 Referred to

R v McKay; ex parte McNee [1989] 1 QdR 559 Followed

Semaynes' Case 77 ER 194 Referred to

 

 

 

 

 

Russell Gordon Haig Mathews

v Joanne Kathryn Maddigan & Ors.

QG 180 of 1994

 

Russell Gordon Haig Mathews

v Detective Kerry A. Jones, Federal Police Officer & Ors.

QG 181 of 1994

 

 

 

 

 

Drummond J

Brisbane

18 May, 1995

IN THE FEDERAL COURT OF AUSTRALIA)    No. QG 180 of 1994

QUEENSLAND DISTRICT REGISTRY      )

GENERAL DIVISION                  )

 

 

 

          BETWEEN:  RUSSELL GORDON HAIG MATHEWS

 

                                      Applicant

 

          AND:      JOANNE KATHRYN MADDIGAN

 

                                      First Respondent

 

          AND:      DANIELLE JULIE BARKER

 

                                      Second Respondent

 

          AND:      LAURENCE JOSEPH BARKER

 

                                      Third Respondent

 

          AND:      FRAN DOUGLAS

 

                                      Fourth Respondent

 

          AND:      KEVIN PATRICK O'CONNOR

 

                                      Fifth Respondent

 

          AND:      DETECTIVE SENIOR CONSTABLE G.A. TESKE

 

                                      Sixth Respondent

 

          AND:      JOHN JOSEPH ARMSTRONG

 

                                      Seventh Respondent

 

          AND:      DANIELLE DILLON

 

                                      Eighth Respondent

 

          AND:      PHIL DAVIDSON

 

                                      Ninth Respondent

 

 

 

 

                      MINUTES OF ORDERS

 

 

JUDGE MAKING ORDER:          Drummond J

DATE OF ORDER:               18 May, 1995

WHERE MADE:                  Brisbane

 

 

 

THE COURT ORDERS THAT:

 

 

1.        The application against the first, second, third, fourth, fifth, seventh, eighth and ninth respondents be dismissed.

 

2.        The application against the sixth respondent be permanently stayed pursuant to O. 20, r. 2 the Federal Court Rules.

 

3.        The applicant pay the respondents' costs of and incidental to their notice of motion and of the proceedings, to be taxed.

 

 

 

 

NOTE:     Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA)    No. QG 181 of 1994

QUEENSLAND DISTRICT REGISTRY      )

GENERAL DIVISION                  )

 

 

 

          BETWEEN:  RUSSELL GORDON HAIG MATHEWS

 

                                      Applicant

 

          AND:      DETECTIVE KERRY A. JONES, FEDERAL POLICE

                   OFFICER

 

                                      First Respondent

 

          AND:      DETECTIVE CONSTABLE JACEK MAJCHRZAK

 

                                      Second Respondent

 

          AND:      COMMONWEALTH DIRECTOR OF PUBLIC

                   PROSECUTIONS

 

                                      Third Respondent

 

          AND:      MICHAEL HUGH WILSON

 

                                      Fourth Respondent

 

          AND:      SHANE HUNTER

 

                                      Fifth Respondent

 

          AND:      CONSTABLE ANGELA COATE, QUEENSLAND POLICE

                   OFFICER

 

                                      Sixth Respondent

 

          AND:      COMMONWEALTH OF AUSTRALIA

 

                                      Seventh Respondent

 

 

 

                      MINUTES OF ORDERS

 

 

JUDGE MAKING ORDER:          Drummond J

DATE OF ORDER:               18 May, 1995

WHERE MADE:                  Brisbane

 

 

THE COURT ORDERS THAT:

 

 

1.        The first, second, third, fourth, fifth and seventh respondents' notice of motion be dismissed.

 

2.        The sixth respondent's notice of motion be dismissed.

 

3.        The application against the third, fourth and fifth respondents be dismissed.

 

4.        The applicant pay the costs of the third, fourth and fifth respondents of and incidental to their notice of motion and of the proceedings, to be taxed.

 

 

 

 

NOTE:     Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA)    No. QG 180 of 1994

QUEENSLAND DISTRICT REGISTRY      )

GENERAL DIVISION                  )

 

 

 

          BETWEEN:  RUSSELL GORDON HAIG MATHEWS

 

                                      Applicant

 

          AND:      JOANNE KATHRYN MADDIGAN

 

                                      First Respondent

 

          AND:      DANIELLE JULIE BARKER

 

                                      Second Respondent

 

          AND:      LAURENCE JOSEPH BARKER

 

                                      Third Respondent

 

          AND:      FRAN DOUGLAS

 

                                      Fourth Respondent

 

          AND:      KEVIN PATRICK O'CONNOR

 

                                      Fifth Respondent

 

          AND:      DETECTIVE SENIOR CONSTABLE G.A. TESKE

 

                                      Sixth Respondent

 

          AND:      JOHN JOSEPH ARMSTRONG

 

                                      Seventh Respondent

 

          AND:      DANIELLE DILLON

 

                                      Eighth Respondent

 

          AND:      PHIL DAVIDSON

 

                                      Ninth Respondent

 

 

 

 

IN THE FEDERAL COURT OF AUSTRALIA)    No. QG 181 of 1994

QUEENSLAND DISTRICT REGISTRY      )

GENERAL DIVISION                  )

 

 

 

          BETWEEN:  RUSSELL GORDON HAIG MATHEWS

 

                                      Applicant

          AND:      DETECTIVE KERRY A. JONES, FEDERAL POLICE

                   OFFICER

 

                                      First Respondent

 

          AND:      DETECTIVE CONSTABLE JACEK MAJCHRZAK

 

                                      Second Respondent

 

          AND:      COMMONWEALTH DIRECTOR OF PUBLIC

                   PROSECUTIONS

 

                                      Third Respondent

 

          AND:      MICHAEL HUGH WILSON

 

                                      Fourth Respondent

 

          AND:      SHANE HUNTER

 

                                      Fifth Respondent

 

          AND:      CONSTABLE ANGELA COATE, QUEENSLAND POLICE

                   OFFICER

 

                                      Sixth Respondent

 

          AND:      COMMONWEALTH OF AUSTRALIA

 

                                      Seventh Respondent

 

 

 

Coram:    Drummond J

Date:     18 May, 1995

Place:    Brisbane

 

 

                    REASONS FOR JUDGMENT

 

 

          I see that the representation is as before, save that Mr. Mathews is not present this morning.  He was present in Court on Tuesday when I said I would give judgment now.  By notice of motion filed 5 April, 1995, the fifth, seventh, eighth and ninth respondents seek an order summarily dismissing the proceedings QG 180 of 1994 brought by Mr. Mathews against them.  By notice of motion filed on 26 April, 1995, the first, second and third respondents in that matter make the same application.  Similar orders are sought in respect of the other proceeding commenced by Mr. Mathews, QG 181 of 1994, by the first, second, third, fourth, fifth, seventh and also by the sixth respondents.

 

          Mr. Mathews represents himself as the applicant in both actions.  He commenced these proceedings by applications filed 6 December, 1994, which he amended on 10 January, 1995.  The originating application was supported in each case by his own affidavit filed on 6 December, 1994.

 

          On 17 February, 1995, I gave directions designed to ensure that Mr. Mathews would receive by 16 March, 1995 notice of the arguments on which the respondents intended to rely for the dismissal of his two actions.  I then fixed 20 April, 1995 as the date for hearing the dismissal applications.  Unfortunately, the fifth, seventh, eighth and ninth respondents in action QG 180 of 1994, and the first, second, third, fourth, fifth and seventh respondents in action QG 181 of 1994 did not comply with these directions and only gave Mr. Mathews the notices in question on 10 April, 1995.  On 20 April, 1995 I therefore granted Mr. Mathews' request for an adjournment of the hearing of the respondents' dismissal applications to 11 May, 1995 in view of his complaint that he had, by these respondents' failures to comply with my directions, been deprived of sufficient opportunity to prepare his response to the applications.

          On 20 April, 1995, counsel for the fifth, seventh, eighth and ninth respondents in action QG 180 of 1994 foreshadowed that he expected to receive instructions from the first, second and third respondents, who had only just got Legal Aid enabling them to retain the same solicitor as the fifth, seventh, eighth and ninth respondents, to apply for dismissal of the proceedings against them also.  I therefore then gave directions that Mr. Mathews receive notice of the grounds relied on by these three respondents by 27 April, 1995.

 

          On 11 May, 1995, I commenced to hear the matters and adjourned the hearing part-heard to Tuesday last, 16 May, 1995.

 

          Mr. Mathews has had sufficient opportunity to prepare his response to the applications by the first, second, third, fifth, seventh, eighth and ninth respondents in the first action, and by all the respondents in the other action, for dismissal of both proceedings and to file any additional evidence he wished - an opportunity he availed himself of on 11 May last.

 

          I should also say that at the start of the hearing on 11 May, 1995, Mr. Mathews sought an adjournment of the application by the first, second and third respondents in the first action, QG 180 of 1994, because he had, so he then told me, just that morning filed an application challenging the Attorney-General's decision to grant legal aid to the first, second and third respondents.  He had foreshadowed doing this at the hearing on 20 April, 1995, when counsel for the fifth, seventh, eighth and ninth respondents stated that legal aid had been approved for these three respondents.  In the course of the discussion that followed, I then said to counsel for those three respondents, in Mr. Mathews' presence:

 

          "I can certainly say that the first, second and third respondents, being legally represented at the moment, and having foreshadowed through you as their counsel an attack upon Mr Mathews' application against them, it is essential, it seems to me, for Mr Mathews to move promptly to attack the decision to provide them with publicly-funded representation.  If he does not move promptly, the first, second and third respondents would then be in the position where they could legitimately say, `We want to proceed with our striking-out application'."

 

          I let the directions stand, which I had already given, that the first, second and third respondents provide Mr. Mathews with notice of the grounds for their foreshadowed claim to have the proceedings against them summarily dismissed, while recognising that, if Mr. Mathews moved promptly to attack the decision to grant them legal aid, then he might well get an adjournment of the hearing of their particular dismissal application when the matter came on on 11 May, 1995 to enable him to obtain a decision of his challenge to the decision to grant legal aid.  However, without explanation, Mr. Mathews did not move promptly to do this.  He left it till the morning of 11 May, 1995 to institute that challenge.  As will appear, unjustifiable delay by Mr. Mathews is a characteristic of the way he has conducted the very extensive litigation in which he has been involved since 1989, all of it connected in one way or another with the issues he has raised in the present proceedings.  I therefore declined to grant him the adjournment he sought in relation to the attack by the first three respondents on his action QG 180 of 1994.

 

          The grounds for the attack by the respondents on both Mr. Mathews' proceedings are that the material upon which he has elected to rely does not disclose a reasonable cause of action; they are embarrassing; and his proceedings are also an abuse of the process of this Court.  It is open for me to receive evidence from the respondents and from Mr. Mathews in order to deal with such an attack pursuant to O. 20, r. 2(2) the Federal Court Rules.

 

          So far as action QG 180 of 1994 is concerned, the first respondent is the person who in July 1989 complained to the Human Rights and Equal Opportunity Commission of sexual harassment by Mr. Mathews when a company with which he was then associated was her employer.  The second and third respondents are her parents.  The fifth respondent is the Human Rights Commissioner who conducted a hearing into her complaint, finding for her against Mr. Mathews in March 1991.  The seventh, eighth and ninth respondents are officers of the Human Rights and Equal Opportunity Commission who were involved in one way or another in the proceedings instituted by the first respondent's complaint of sexual harassment against Mr. Mathews.

 

          The fourth respondent is a Queensland public servant whom Mr. Mathews has not yet served.  The six respondent was, at the relevant time, a Queensland police officer, but I was told from the Bar table he is no longer in the Queensland Police Service.  He, too, has not yet been served by Mr. Mathews.

 

          Initially, Mr. Mathews also sued in this action, QG 180 of 1994, and in the other action, QG 181 of 1994, a Ms. Scahill, another officer of the Human Rights and Equal Opportunity Commission.  He has been convicted of assaulting her.  His assault on Ms. Scahill is the background out of which his second action, QG 181 of 1994, arises.  He, in effect, discontinued his claims against her when he filed the amended applications in both these two actions on 10 January, 1995.

 

          In proceedings QG 181 of 1994, the first and second respondents are the Australian Federal police officers who arrested Mr. Mathews on 17 September, 1993 on charges arising out of his assault of Ms. Scahill on 16 September, 1993.  The fourth respondent is another Australian Federal police officer who, according to Mr. Mathews, directed the first and second respondents to arrest him on 17 September, 1993.  The seventh respondent, the Commonwealth, is sued pursuant to s. 64B the Australian Federal Police Act 1979 (Cth) in respect of the actions of the first, second and fourth respondents.  The fifth respondent is the prosecutor appointed by the third respondent, who prosecuted Mr. Mathews on the charge of assaulting Ms. Scahill.

 

          In proceedings in this Court heard in April 1992, Spender J reached the same conclusion on a re-hearing of the first respondent's complaint of harassment as the fifth respondent.  On 21 April, 1993, his Honour, in a reserved judgment, ordered Mr. Mathews to pay the first respondent $6,000 compensation.  It is plain that Mr. Mathews considers that he is the victim of an injustice as a result of the litigation that the first respondent commenced in the Human Rights and Equal Opportunity Commission.  He has repeatedly sought to vindicate this belief.  The present proceedings are another step in what has become a lengthy campaign by Mr. Mathews for justice as he sees it.

 

          I turn now to the position of the first, second and third respondents in action QG 180 of 1994.  Paragraphs 1 and 2 of Mr. Mathews' affidavit filed in these proceedings show that his complaint against the first, second and third respondents, in respect of which he seeks damages from them, is founded on his allegation that the first respondent unlawfully entered premises of which he claims he was in lawful possession on 27 February, 1989 and unlawfully took certain documents relating to her employment away.  Her parents, the second and third respondents, are said in paragraph 5 of the affidavit to have counselled the first respondent to remove those documents and are thus joint tortfeasors with her.  That is the totality of the case he has set up in his affidavit against the first respondent's parents.

 

          The case against the first respondent is the same case he made the subject of a private prosecution of her.  On application by the first respondent under s. 102C the Justices Act 1886 (Qld) and after hearing evidence from Mr. Mathews, a Stipendiary Magistrate dismissed Mr. Mathews's prosecution complaint as an abuse of the process of the Magistrates Court.

 

          I take the following chronology from the Magistrate's decision and from the other material available to me.

 

          At the end of 1988, the first respondent commenced work for a company, AAH-Rem Pty. Ltd., of which Mr. Mathews was then Managing Director.  On 27 February, 1989, the first respondent left that employment without prior notice; she took with her certain documents.  It is some of these documents which are the subject of Mr. Mathews' claims in paragraphs 2 and 3 of his affidavit in the present proceeding.  In May 1989, Mr. Mathews complained to police officers that these documents had been stolen from the company by the first respondent.  In July 1989, and subsequent to the matter of Mr. Mathews' complaint against her having been brought to the first respondent's attention, she commenced the proceedings against Mr. Mathews in the Human Rights and Equal Opportunity Commission that I have referred to.

 

          At the end of 1989, the police advised Mr. Mathews that they did not intend to lay any charges in respect of his complaint of theft against the first respondent.  In November 1989, Mr. Mathews ceased to be a member and director of the company AAH-Rem Pty. Ltd..  In January 1991, Mr. Mathews conducted himself in a manner which was later found by a jury to have constituted intimidation of the first respondent, in respect of her being a witness in the proceedings before the Human Rights and Equal Opportunity Commission.

 

          In March 1991, that Commission found for the respondent against Mr. Mathews on the first respondent's complaint of sexual harassment.  Between 22 and 28 April, 1992 the hearing, which I have referred to, before Spender J took place, with judgment being reserved on 28 April, 1992.  In mid June 1992, while awaiting trial on the charge of intimidating the first respondent, Mr. Mathews commenced the private prosecution in the Magistrates Court at Brisbane against her to which I have referred.

 

          On 30 July, 1992, Mr. Mathews was convicted after a jury trial on that charge of intimidating the first respondent.  In the course of submissions on sentence, the prosecutor, Mr. Hunter, who is also the fifth respondent in the second proceeding before me, QG 181 of 1994, submitted that Mr. Mathews' action in instituting and then continuing the prosecution of the private criminal complaint against the first respondent, that she had stolen the documents I have referred to, showed a lack of remorse on Mr. Mathews' part.  This exchange then took place between the District Court judge who presided over the criminal trial and Mr. Mathews' counsel:

 

          "His Honour:   Can I ask you what his attitude is towards those proceedings?

 

          Counsel:   Towards the private complaint?

 

          His Honour:   Yes.

 

          Counsel:   I will have to get some instructions on that.

 

          His Honour:   It seems to me they seem to be childish proceedings for him to take.

 

          Counsel:   They were taken prior to the commencement of the trial this week.  I have been instructed that Mr Mathews will, or does undertake, to pay any amounts ordered by the Honourable Justice Spender.

 

[I interpolate that Spender J's reserved judgment had not then been delivered.]

 

          His Honour:   What are those proceedings against Ms Maddigan [i.e., the first respondent]?  It just seems to me to be another form of harassment.

 

          Counsel:   It is an amended complaint.  I don't know if I can go so far as saying another form of harassment."

 

          And then a little while later:

 

          "Counsel:   I am instructed that he [Mr Mathews] will discontinue the private complaint.  That is all I have."

          It is reasonable for counsel for the first, second and third respondents to submit, as he did, that Mr. Mathews got the benefit of that undertaking in the sentence the District Court judge imposed on him, which was a fully suspended sentence of imprisonment.  Mr. Mathews did not, however, withdraw his private prosecution contrary to his promise.  I return to the chronology. 

 

          On 9 October, 1992, there was a successful application by the first respondent to the Magistrates Court to strike out this private prosecution by Mr. Mathews.  This was done, as I have said, after the Magistrate had heard sworn evidence from Mr. Mathews.  On 18 December, 1992, Mr. Mathews' appeal against his conviction for intimidating the first respondent as a witness was dismissed by the Queensland Court of Appeal.

 

          On 21 April, 1993, Spender J delivered his reserved judgment in the sexual harassment case in favour of the first respondent.  He also then gave judgment in favour of the Human Rights and Equal Opportunity Commission against Mr. Mathews on Mr. Mathews' challenge, brought in separate proceedings by him, to certain aspects of the Commission's conduct of the hearing of the first respondent's complaint against him.

 

          It is convenient to complete the chronology of events subsequent to this which are of particular relevance to the second action, QG 181 of 1994.  On 16 September, 1993, Mr. Mathews was alleged to have assaulted Ms. Scahill, an officer of the Human Rights and Equal Opportunity Commission and originally a respondent in both actions QG 180 of 1994 and QG 181 of 1994.

 

          According to a judgment given by Cooper J on 19 November, 1993 in proceedings instituted by action QG 160 of 1993 by Mr. Mathews against the persons who are the first, second and third respondents in action QG 181 of 1994, the circumstances in which this assault took place are as follows:

 

          "The charges arise out of an incident which occurred in the Brisbane Registry of this court on 16 September, 1993.  On that date Ms. Scahill attended to settle an appeal record in relation to an appeal lodged by the applicant [Mr Mathews] in proceedings brought against him by the Commission in this court which resulted in a judgment against him for sexual harassment.  The applicant in reliance upon the power of arrest given to a citizen by section 546(d) of the Criminal Code arrested Miss Scahill for an offence against Section 544 of the Criminal Code, namely being a person who became an accessory after the fact to a crime.

 

          The crime alleged by the applicant was misappropriation of property ... by one Joanne Baker (sic) [ie, the first respondent in QG 180 of 1994.  Ms. Baker (sic), a former employee of a business in which the applicant had an interest, was the complainant in the proceedings in the Human Rights Commission against the applicant and was the beneficiary of a compensation order made by the Commission and later by this court in proceedings against the applicant."

 

          On 17 September, 1993 Mr. Mathews was arrested at his home in respect of this incident by the first and second respondents in action QG 181 of 1994.  The two charges on which Mr. Mathews was then arrested appear from Cooper J's judgment of 19 November, 1993, viz., one count of intentionally and knowingly using violence against a Commonwealth officer, viz., Anne Maree Scahill, a Senior Legal Officer with the Human Rights and Equal Opportunity Commission who was carrying out a duty of such an officer under s. 76(1)(a) the Crimes Act 1914 (Cth), and one count of unlawful assault against Anne Maree Scahill with a circumstance of aggravation, viz., that Anne Maree Scahill was female - s. 344 the Criminal Code of Queensland.

 

          On 1 October, 1993 the charge of aggravated assault under the Criminal Code of Queensland was amended to a charge of assault occasioning bodily harm under the Code.  The charge under the Crimes Act 1914 (Cth) to which I have referred appears to have remained on foot.  On 16 November, 1993 the Full Court of this Court dismissed Mr. Mathews' appeals against Spender J's decisions, in effect, for want of prosecution by Mr. Mathews.  Wilcox J, delivering the leading judgment in the Full Court said:

 

          "Mr Mathews filed notices of appeal.  In the ordinary course of events we would have heard both appeals today.  Unfortunately this is not possible because appeal papers have not been filed.  The question that has been discussed today is what course ought to be taken.

 

          I should say at the outset that the court is conscious of the fact that the rule requirements for the filing of appeal papers can impose a burden on appellants, perhaps particularly appellants who appear in person; and even more particularly if those appellants lack means.  The Court is always anxious to ensure that cases are not denied a hearing in the Court, whether at first instance or on appeal, because of the indigence of litigants.  In appropriate cases steps are taken to assist appellants as may be necessary and within the resources available to the court.  I would therefore be reluctant to take any step involving the disposal of these cases without a full hearing if I were persuaded that the only reason why the matters cannot proceed to hearing was the lack of means of the appellant.

 

          The real question is whether that is the situation."

 

          His Honour, after dealing with the matter at some length, concluded:

 

          "However, as it seems to me, the more important thing is to determine whether or not Mr Mathews genuinely intends to prosecute these appeals.  He has asserted such an intention on several occasions; but, for my part, I cannot accept those assertions.  I have set out the history of the matter at some length, because it seems to me that it is eloquent in indicating Mr Mathews' refusal to co-operate in the steps which he must understand are essential if an appeal is to be heard and disposed of in a satisfactory way.  It is sufficient simply to go through the problems of settling the appeal index, and then Mr Mathews' total refusal to do anything about the appeal papers.  If, as I say, he had a genuine problem about financing the cost, but had been otherwise co-operative, then I think that the Court would be anxious to assist him in some way, but I am left with a strong feeling that Mr Mathews' purpose is to frustrate and obstruct the processes of the Court rather than to assist the Court in the determination on their merits of the appeals which he has filed."

 

          On 30 November, 1993 the committal hearing into the charges against Mr. Mathews with respect to Ms. Scahill was due to commence, but before that, on 19 November, 1993, Mr. Mathews unsuccessfully sought an injunction from Cooper J in the proceedings to which I have already made reference to prevent the committal going ahead.  On 21 November, 1994 Mr. Mathews was indicted in the District Court, Brisbane, on the charge of assaulting Ms. Scahill, thereby causing her bodily harm.  On 6 December 1994, on what appears to be the eve of the start of the District Court trial on this charge, Mr. Mathews instituted the present proceedings, QG 180 of 1994 and QG 181 of 1994.

 

          On 8 December, 1994, the trial before a jury commenced in the District Court before his Honour Judge Kimmins.  The fifth respondent in proceedings 181 of 1994 prosecuted.  On 14 December, 1994, the jury returned a verdict of guilty against Mr. Mathews.  In remarks preliminary to sentencing Mr. Mathews on 14 December 1994, Judge Kimmins said, referring to what had taken place just prior to the start of the trial on 8 December:

 

          "I came to the conclusion that you had endeavoured to place yourself in a position where you could try to avoid the matter being brought on for trial hence I adjourned the hearing until 10 a.m. on the next day.

 

          At 10 a.m. on Thursday, the 8th, no further application was made for an adjournment and nothing was said about your not being ready."

 

          In the course of what followed, his Honour made a number of further comments:

 

          "This has been a difficult trial and I believe you consciously set out to make it as difficult as you could.

 

          ...

 

          Further, I found that you were quite capable of saying anything if you considered it to your advantage.

 

          I further believe that your attempts of asking me to disbar myself and ... your references to your believing that I was `conspiring with the prosecution to corruptly conspire with the prosecution to allow the police to escape from their crime of breaking and entering and assault'.  I pointed out that you were making a fool of yourself in front of the jury.  Of course I couldn't tell the jury that in their absence this whole matter had been gone through.  That the police had given evidence, that there had been a discussion of their powers under section 8 and section 8A of the Commonwealth Crimes Act and that I had ruled they were entitled to enter.

 

          However, I believe that your references to my being involved in a criminal conspiracy were not only due to your somewhat irrational approach to everything but were also done deliberately to try and lay the ground work for an argument in a possible court of appeal that you're being hard done by.

 

          ...

 

          Your case is very unusual.  I believe you have strong delusions about all these matters concerned with Joanne Barker [the first respondent in QG 180 of 1994], the Human Rights Commission and now myself ..."

 

          His Honour ultimately released Mr. Mathews on bail, remanding him for sentence until pre-sentence reports had been obtained.  On 6 January 1995, before Judge Kimmins imposed sentence on Mr. Mathews in respect of the conviction for assaulting Ms. Scahill, Mr. Mathews filed his own very detailed notice of appeal against that conviction.

 

          It is apparent from the notice of appeal that issues which Mr. Mathews raised at the trial included, firstly, the legality of the actions of the first and second respondents, in action QG 181 of 1994, in entering Mr. Mathews' home on 17 September 1993, and in arresting him, an issue raised in QG 181 of 1994.  Secondly, that Ms. Scahill had received the company documents, allegedly stolen by the first respondent in action QG 180 of 1994, and which forms the subject matter of Mr. Mathews' complaint in that proceeding.  Thirdly, the alleged theft of Mr. Mathews' own documents on 17 September, 1993 by the first and second respondents in action QG 181 of 1994 - another matter raised in that action by Mr. Mathews.  Fourthly, the alleged illegal detention of Mr. Mathews on 17 September, 1993 after his arrest by the first and second respondents in action QG 181 of 1994 - another issue raised in those proceedings.

 

          I return now to what took place before the Magistrates Court in relation to Mr. Mathews' private prosecution of the first respondent in action QG 180 of 1994.  On 9 October 1992, in the course of reasons for dismissing that private prosecution, the Stipendiary Magistrate said of Mr. Mathews' position:

 

          "These complaints and the offences alleged therein cannot be viewed independently of the long running and obviously bitter course of litigation between the prosecutor [i.e. Mr. Mathews] and the defendant [i.e. the first respondent in QG 180 of 1994]."

 

          The Magistrate further said:

 

          "I found the prosecutor to be far from impressive as a witness, he demonstrated himself to be a man almost obsessed with this continuing feud."

 

          The Magistrate also said:

 

          "What matters is that a bitter and strenuously fought course of litigation was in progress at the time of the bringing of this complaint and that also at the same time the prosecutor was facing a serious charge in the District Court in which the defendant would be a principal witness."

 

          The Magistrate also said:

 

          "I am satisfied on the evidence, as well as from the way the prosecutor has conducted himself in this Court, that in bringing the complaint his motive, and intended purpose, was not to bring the offender to justice for a perceived offence, but to see her suffer a detriment or a penalty.  The defendant is deserving of punishment in the eyes of the prosecutor, not because she has offended against the laws of the State, but because she has offended against him.

 

          I am satisfied that although the complaint may have had a legitimate basis in May 1989, the purpose for which this complaint has been brought and maintained, have been predominantly, if not wholly, alien to the proper processes in the criminal jurisdiction."

 

          The Magistrate therefore concluded that the proceedings should be struck out as an abuse of process of the court.  However, the Magistrate also referred to the giving of the promise to the District Court judge, who sentenced Mr. Mathews on the charge of intimidating the first respondent in 180 of 1994, to withdraw those proceedings, a promise which he failed to honour.  The Magistrate in this regard said:

          "Finally, I shall deal with a matter which, in my view, would have justified a finding of abuse of process even if the circumstances just dealt with did not exist."

 

          And he concluded:

 

          "From what the prosecutor in these proceedings has said under oath in these proceedings, it is clear that he perceived that such an indication, to use a neutral term, although it might be argued that under the circumstances it was no less than an undertaking, nevertheless to use a neutral term, that that indication would be seen in mitigation of penalty, perhaps keep him out of gaol, and that he gave that indication for that purpose and to that end.  In my view to allow him to continue these proceedings would allow him to commit a fraud upon the District Court, and such a fraud is unquestionably an abuse of the process of the Courts of this State."

 

          It is important to note that what the Magistrate meant, by saying at page 8 of his reasons ".. although the complaint may have had a legitimate basis in May 1989", was this:  the Stipendiary Magistrate had already found that the premises from which Mr. Mathews alleged the first respondent stole the documents were those of the company, AAH-Rem Pty. Ltd., of which Mr. Mathews was, at that time, Managing Director.  He had already also found that the documents the first respondent took away with her from those premises "included 3 pages of record of training times and an agreement, all of which were records of the company and that she took also a partially used notepad also the property as I understand the evidence, of the company".

 

          The evidence before me indicates this notepad consisted only of blank sheets of paper.  Mr. Mathews' allegations against the first respondent in the private criminal prosecution are recited in the certificate of order recording the dismissal of that prosecution issued by the Magistrates Court.  Mr. Mathews' position with respect to occupation of the premises and ownership of the documents he alleges were violated by the first respondent in action 180 of 1994 was as follows:

 

          "1)  between the times of 6.30am and 8.15am on the 27th day of February, 1989 at the office of AAH-REM PTY LTD trading as T.I.P.S. FOR TAX AT 554 LUTWYCHE ROAD LUTWYCHE BRISBANE in the State of Queensland JO-ANNE KATHRYN MADDIGAN nee BARKER stole documents of agreement, of recording of training and work times and registers the property of one AAH-REM PTY LTD

 

          2)   AND FURTHER that between the times of 6.30am and 8.15am on the 27th day of February, 1989 at the office of AAH-REM PTY LTD trading as T.I.P.S. FOR TAX AT 554 LUTWYCHE ROAD LUTWYCHE BRISBANE in the State of Queensland JO-ANNE KATHRYN MADDIGAN nee BARKER stole documents of agreement, of recording of training and work times and registers the property of one AAH-REM PTY LTD and in order to steal the same opened a locked room being the employer's office at shop 2 554 Lutwyche Rd Lutwyche by means of a key,

 

          ...

 

          5)   AND FURTHER that on or about the 27th day of February, 1989 at the office of AAH-REM PTY LTD trading as T.I.P.S. FOR TAX AT 554 LUTWYCHE ROAD LUTWYCHE BRISBANE in the State of Queensland JO-ANNE KATHRYN MADDIGAN nee BARKER stole a partly used pad of blank A4 writing paper the property of one RUSSELL GORDON HAIG MATHEWS with the intent to permanently deprive the said owner of it,"

 

          It is apparent from paragraphs 2 and 3 of Mr. Mathews' affidavit in action QG 180 of 1994 that the blank pad, of  which alone, in the proceedings before the Magistrate, Mr. Mathews claimed he was the owner, is not one of the documents for the theft of which he now seeks damages from the first respondent.  The only documents in respect of which he is seeking damages from the first respondent in this action are documents which he told the Magistrates Court were the property of the company.  When the Magistrate said that in May 1989 Mr. Mathews was entitled to make the complaint of theft by the first respondent of documents, which he then made to the police, the Magistrate was referring, it seems to me, to Mr. Mathews' position as Managing Director of AAH-Rem Pty. Ltd., the company which Mr. Mathews then alleged was the owner of all the documents allegedly stolen, apart from the blank notepad.  As the Magistrate found in the course of his reasons:

 

          "It is also of some significance that at the time of bringing this complaint, the prosecutor [Mr Mathews] was no longer connected to the owner of the property the subject of the stealing charges, nor authorised by the owner to bring the complaint on its behalf."

 

          In my opinion, Mr. Mathews' proceedings in QG 180 of 1994 against the first respondent are an abuse of the process of this Court in that they are part of a long-running campaign that Mr. Mathews has mounted against her to punish her for the injustice he considers she is responsible for inflicting on him by her complaint to the Human Rights and Equal Opportunity Commission of sexual harassment back in 1989.  The prospect of any compensation for any loss he himself has suffered by reason of the theft of the company's documents and trespass upon the company's premises, which he alleged the first respondent committed, is, in my view, of no real significance to him.

 

          I have reached these conclusions for the following reasons:  firstly, Mr. Mathews took no action against the first respondent after the police, in late 1989, declined to act upon his complaint of theft against her for over two and a half years.  He took no action until mid June 1992, when he instituted his private prosecution of her.  He did this shortly before the start of his District Court trial on a charge of intimidating her as a witness against him in a sexual harassment case.  His actions in this regard, including his delay in proceeding against her, and the timing of his prosecution of her, strongly suggest he was attempting to put pressure on her when she was soon to be called as a witness in the District Court proceedings against him.  Further, his proffering to the District Court judge who sentenced him of a promise to withdraw his prosecution of the first respondent, when that was to his personal advantage, coupled with his failure to keep that promise, suggests that in continuing the prosecution of the first respondent he was motivated by spite towards her and a desire to punish her for the trouble she had caused him, rather than by any concern at a criminal offence not being properly dealt with by the relevant authorities.

          Secondly, after his private prosecution was struck out as an abuse of the process in the Magistrates Court in October 1992, he once again delayed for a long while before taking any further action against the first respondent with respect to her alleged theft and her alleged trespass.  It was not until a further two years passed, and it was two days before the start of his District Court trial on another charge flowing out of his involvement in the sexual harassment case brought by the first respondent, that he commenced the present action claiming, in his own name, damages from the first respondent for this alleged theft and associated trespass.  This resurrection of his interest in pursuing the first respondent in the Court long after the alleged wrongs were committed by her also suggests that he is not concerned to protect any legal right he may have or to obtain compensation for any violation of that right that he may have that motivated him in commencing action QG 180 of 1994.  His conduct suggests, instead, that his recent action in instituting this proceeding also stems from a desire to punish the first respondent for the trouble her sexual harassment complaint has once again brought upon him, in the form of his prosecution on the charge of assaulting a person associated with the sexual harassment case, a desire probably re-enlivened by the imminence of the start of that criminal court trial.  I do not accept Mr. Mathews' explanation from the Bar table that his interest in pursuing the respondent was renewed as late as December 1994 in respect of these ancient wrongs only by the realisation that the six year limitation period would soon expire when he might be in gaol, if he were convicted at the forthcoming assault trial, and when he would thus be not in a position to commence a civil action against the first respondent.

 

          Thirdly, according to what he put before the Magistrates Court in launching his private prosecution of the first respondent, the premises for the trespass upon which he now, in his own name, seeks damages from the first respondent, was the office of the company AAH-Rem Pty. Ltd., and the documents, which alone he alleges in this action, QG 180 of 1994, the first respondent stole and for which wrong he also seeks damages for himself, were that company's documents.  He has long ago ceased to be connected with the company.  Even if he is entitled to sue in his own name for both alleged wrongs, a matter on which I have doubts, on the evidence before me and in view of what appears in Fleming's The Law of Torts, 7th ed., at pages 40 and 48 to 49, he is likely to be able to recover nominal damages only.  He is, I think, well aware of this, as is shown by his comments in argument about his right of action being maintainable even if insignificant harm has been caused.  Mr. Mathews is not, I think, concerned to obtain compensation for any actual loss he himself has suffered.  He is concerned, instead, to obtain the personal satisfaction of putting the first respondent through a court hearing and getting a judgment that will prove his point that she is a thief.

 

          I will therefore dismiss the proceedings instituted by Mr. Mathews against the first respondent in action QG 180 of 1994 as an abuse of the process of this Court.

 

          As to the second and third respondents, her parents, the only case that Mr. Mathews attempts to make out against them is contained in his assertion in paragraph 5 of his affidavit that they counselled the first respondent to commit the two wrongs he alleges against her.  He offers no evidence to show how the Court might be justified in accepting that this conclusion is well-founded.  Mr. Mathews has had ample time to put any evidence on this issue before the Court on which he may wish to rely.  His assertion that the second and third respondents counselled the first respondent to infringe what he claims are his own rights without evidence to support it cannot possibly justify a verdict in his favour against the second and third respondents.

 

          Mr. Mathews has failed to show he has any reasonable cause of action against the second and third respondents.  His proceedings in QG 180 of 1994 against them are also embarrassing and vexatious within the meaning of those terms in the Rules of Court, and it must be dismissed.

 

          As to the fifth, seventh, eighth and ninth respondents who are not identified in Mr. Mathews material but who are identified in the respondents' evidence on the motion as officers of the Human Rights and Equal Opportunity Commission, all that Mr. Mathews says in his affidavit about what they are alleged to have done which entitles him to judgment against them is contained in paragraph 6:

 

          "The second, third, fourth, fifth, sixth, seventh, eighth, ninth and tenth respondents as joint tortfeasors have acted in the furtherance of the common design and have assisted the first respondent and the second and third respondents to escape consequences of their actions and have acted in the furtherance of the common design of the first and/or second and/or third respondents."

 

          He is no longer pursuing the person referred to here as the eighth respondent, i.e., Ms. Scahill.  The person referred to here as the ninth and tenth respondents are now called the eighth and ninth respondents in his amended application.

 

          The common design, participation in which is the essence of the case Mr. Mathews wants to run against these four respondents, is not identified by himself in paragraph 6 of his affidavit;  however, in paragraph 5, when dealing with the second and third respondents, he says:

 

          "They have acted in furtherance of the common design of defrauding the employer of the first respondent by removing the proof of debt."

 

          It appears that the allegations in paragraph 6 are allegations that these four officers of the Human Rights and Equal Opportunity Commission participated in this common design referred to in paragraph 5.  The last four lines of paragraph 6 of his affidavit appear only to repeat what is said in the first two and a half lines.  Paragraph 7 and 9 of his affidavit describe the conduct of all respondents, including these four respondents, as having been done maliciously and oppressively; however, nothing is said to identify what that conduct consisted of.

 

          The evidence that Mr. Mathews here relies on to prove that these four respondents were parties to a conspiracy actionable by him is, in my opinion, incapable of showing that Mr. Mathews has a reasonable cause of action against them.  In the context of his affidavit, it amounts to nothing more than an opinion by Mr. Mathews that these respondents have wronged him by joining the conspiracy he refers to in paragraph 5 of his affidavit.  Despite ample opportunity to do so, he has offered no evidence to show why it would be open to a court to accept his opinion in this regard as well founded.  The proceedings against these four respondents not only fail to disclose a reasonable cause of action against them but are also, for the reasons given, embarrassing and vexatious. 

 

          I should also mention that on 11 May, 1995 Mr. Mathews filed by leave a second affidavit that contains evidence to the effect that these four respondents acted in bad faith in connection with their involvements in the sexual harassment case heard by the fifth respondent in early 1991.  Mr. Mathews only sought to rely on this affidavit when counsel for these respondents submitted that s. 48 the Human Rights and Equal Opportunity Act 1986 (Cth) was a bar to his action against them and after I had observed that it appeared difficult for these respondents to show that s. 48 barred Mr. Mathews' claim, since it was premised on each respondent, as an officer of the Commission, having engaged in the conduct complained of in good faith, in carrying out his or her duties as an officer of the Commission, and there was no evidence from any of the respondents.  The material in Mr. Mathews' second affidavit does not provide any evidence showing how any of these four respondents may have assisted the first respondent in defrauding her employer, Mr. Mathews' company, by wrongfully taking the company documents relating to her employment.

 

          The proceedings against these respondents, the fifth, seventh, eighth and ninth respondents, are therefore dismissed.

 

          I conclude by mentioning that the matters referred to in paragraph 1 of Mr. Mathews' second affidavit (concerning the editing of the first respondent's initial complaint to the Commission) and in paragraph 4 (concerning disclosure by the seventh respondent to the fifth respondent of material prejudicial to Mr. Mathews prior to the hearing by the fifth respondent of the sexual harassment case) appear to be the same matters which formed the subject matter of issues raised by Mr. Mathews in the application he instituted by action QG 43 of 1991 to review the decision of the fifth respondent in the sexual harassment case.  Spender J, as I mentioned, heard this matter at the same time as he heard the application by the Commission in QG 79 of 1991, to enforce the fifth respondent's determination in favour of the first respondent against Mr. Mathews in the sexual harassment case and found against Mr. Mathews.

 

          I turn now to the position of the fourth respondent in action 180 of 1994, who has not yet been served. 

 

          For the same reasons that the proceedings against the fifth, seventh, eighth and ninth respondents failed to disclose a reasonable cause of action against them and are embarrassing and vexatious, the proceedings against the fourth respondent, which raise against her exactly the same issue as Mr. Mathews has sought to raise against the fifth, seventh, eighth and ninth respondents, are also bad.  It is unnecessary for me, however, to decide whether I have power of my own motion to strike out the proceedings against the fourth respondent now.  There is another good reason why Mr. Mathews should not be allowed to keep the proceedings on foot against her.  Mr. Mathews can only justify bringing proceedings in this Court, rather than in an appropriate State court, against the fourth respondent because he has claimed relief under s. 39B the Judiciary Act 1903 (Cth), viz., a mandamus ordering the return to him of the documents removed from his former company's premises at Lutwyche.  A reading of his affidavit and, in particular, paragraphs 2 and 4 shows that his case is that all these documents were, as at 23 June 1989, all back in the first respondent's possession.  He does not say what became of them since then.  There never was any possible basis for him to obtain the relief under s. 39B the Judiciary Act 1903 (Cth) which he has claimed.  He has never set up a case which might entitle him to an order from the Court directing a return of these documents to their owner, the company; he has never said that any Commonwealth officer was involved, against whom such a mandamus might once have issued.

 

          Where a person commences proceedings in the Federal Court which involves claims that, apart from the cross-vesting legislation, are not within the jurisdiction of this Court and also makes a claim for relief under the Judiciary Act 1903 (Cth) but does not attempt, in the evidence he elects to put before the Court to make out his claims, to show any possible basis for an entitlement to relief under the Judiciary Act 1903 (Cth), the inference is that the claims to Judiciary Act 1903 (Cth) relief is merely a ploy to try to justify proceeding in this Court rather than a State court, which is the appropriate forum for the particular claim in question.  For the reasons stated, I draw that inference here.

 

          Given this, Mr. Mathews' proceeding in this Court against the fourth respondent is an abuse of the process of this Court.  It should therefore be dismissed.  It is not proper to transfer to the Queensland Supreme Court under the cross-vesting legislation such a proceeding.

          I turn now to the position of the sixth respondent, who also has not been served.  The evidence on which Mr. Mathews relies to make out his entitlement to damages against the sixth respondent is contained in paragraph 6 of his affidavit.  Sufficient is there said to make out a possible cause of action against that respondent.  The case here is therefore different from that with respect to the fourth respondent.

 

          However, for the reasons I have given with respect to the claim against the fourth respondent, Mr. Mathews was not justified in pursuing the sixth respondent on that cause of action in this Court rather than in an appropriate State court.  For Mr. Mathews to insist on proceeding in this Court with this claim against the sixth respondent is thus capable of being regarded as an abuse of the process of this Court.

 

          Given that long before Mr. Mathews instituted action QG 180 of 1994 he had ceased to have any connection with the company which he himself says was the owner of the documents in question, even if he personally remains entitled to sue in respect of what he alleges the sixth respondent did while Mr. Mathews remained connected to that company, his damages would be minuscule.  The Supreme Court would not allow him to prosecute such a claim before it and would transfer it to the Magistrates Court.  I can only transfer the proceedings Mr. Mathews has brought in this Court against the sixth respondent to the Supreme Court under the cross-vesting legislation; I cannot transfer those proceedings to the Magistrates Court.  Mr. Mathews sought for his own reasons to sue in this Court when there was no justification to do that, rather than to sue in the Magistrates Court.  The likely quantum of his claim against the sixth respondent is minuscule.  The sixth respondent should not, in my opinion, be put to the expense of defending such a claim in this Court.  Mr. Mathews is not exposed to any costs at the sixth respondent's behest in these proceedings, the sixth respondent not having yet been served.  Mr. Mathews is unlikely to have incurred any significant costs himself in respect of the proceedings in QG 180 of 1994 against the sixth respondent (although he may have expended time and effort on this part of his case) since he is representing himself.

 

          If I transfer this particular proceeding to the Supreme Court, that court will inevitably transfer it to the Magistrates Court.  I therefore intend to stay permanently the further prosecution by Mr. Mathews of the proceedings in QG 180 of 1994 against the sixth respondent in the exercise of the discretion I have to do that under O. 20, r. 2 the Federal Court Rules.

 

          Mr. Mathews remains free, of course, to sue the sixth respondent in the Magistrates Court, which is the proper form for this claim if he wishes to do so, notwithstanding this stay.  The limitation period does not expire until late June next. 

          I will dismiss the proceedings brought by Mr. Mathews in action No. QG 180 of 1994 against the first, second, third, fourth, fifth, seventh, eighth and ninth respondents and I will order that the proceedings Mr. Mathews has brought against the sixth respondent in this action be permanently stayed.

 

          I turn now to action QG 181 of 1994.  All the issues Mr. Mathews has raised in this action arise out of the allegedly tortious conduct of three Australian Federal police officers, for which the Commonwealth is also said to be liable pursuant to s. 64B the Australian Federal Police Act 1979 (Cth), and out of the allegedly tortious conduct of a prosecutor who prosecuted Mr. Mathews for the Commonwealth Director of Public Prosecutions of the charge of assaulting Ms. Scahill, and out of the allegedly tortious conduct of a Queensland police officer on duty in the Brisbane watch-house on the day of Mr. Mathews' arrest by the three officers on the charges under the Crimes Act 1914 (Cth) and under the Criminal Code of Queensland.

 

          Mr. Mathews does not, in his affidavit, invoke the jurisdiction conferred on this Court by the jurisdiction of the Court's Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) to deal with matters otherwise solely within the jurisdiction of State courts.  He is required to expressly do this if he wishes to rely on the cross-vesting legislation to confer jurisdiction on this Court.  See O. 10A, r. 5.  However, he justifies bringing this action in this Court with his claim under s. 39B the Judiciary Act 1903 (Cth) for a mandamus against the two Australian Federal police officers for the return of certain of his own documents which he says were wrongly taken from him by them when they arrested him on 17 September, 1993.  These documents are different documents from those, the subject of his complaints against the first respondent in action QG 180 of 1994.  Counsel for the first and second respondents did not suggest that a mandamus under s. 39B could not issue to compel the first and second respondents to return documents if they were wrongly taken by them while purporting to perform their duties as Australian Federal police officers.

 

          I have already referred to the nature of the attacks made on Mr. Mathews' claims against the first, second, third, fourth, fifth and seventh respondents in this action, QG 181 of 1994.  The sixth respondent, the Queensland police officer, makes a similar challenge to these proceedings so far as they involve her, although the sixth respondent also relies on O. 11, r. 16.  Her counsel's reliance on this latter rule is misconceived.  It applies only to pleadings and there are none yet filed in this Court.

 

          Mr. Mathews did not challenge the entitlement of the first and second respondents to arrest him on the two charges, the one under the Crimes Act 1914 (Cth), the other under the Criminal Code Queensland, in respect of the incident on 16 September, 1993 involving himself and Ms. Scahill.  Rather did Mr. Mathews limit his attack on the lawfulness of the arrest to the proposition that, even if the arrest was otherwise justifiable, it was preceded by an unlawful trespass, the police not being entitled to force entry to his residence to effect the arrest.  The arrest is therefore itself said to be unlawful.  Mr. Mathews relied on Swales v Cox [1981] Q.B. 849 at 852, Halliday v Nevill (1984) 155 C.L.R. 1, Plenty v Dillon (1990) 171 C.L.R. 635, Clowser v Chaplin [1981] 1 W.L.R. 837, particularly at 841 and 842, and Morris v Beardmore [1981] A.C. 446.

 

          The evidence on which Mr. Mathews relies as against the first, second and third respondents to make out a case of trespass to land, assault and unlawful arrest and false imprisonment is set out in paragraphs 1 to 5 and 13 of his affidavit.  In paragraph 2 he says:

 

          "... the first and second respondents without the consent of the applicant in company of each other and after threatening violence to the rear door of the residential unit, entered the residential unit.  They then proceeded to purportedly arrest the applicant."

 

          In the notice of appeal against his conviction for the assault on this scale, Mr. Mathews also says:

 

          "As per the tape of the arrest of the accused by the federal police officers on the 17th of September 1993 they had threatened to break in the back door of the accused's premises if he did not open it. 
The fact that the accused subsequently opened the back door is not consent as it was not genuine."

 

          Mr. Mathews does not suggest in his affidavit anything inconsistent with what he says here.  I therefore proceed on the basis that he opened the door to the police after, according to him, they threatened to force entry if he did not let them in.  In the absence of an express or implied permission from Mr. Mathews (and on his version there was none) the first and second respondents could only lawfully enter his residence if they had some statutory or common law right of entry that made Mr. Mathews' permission unnecessary:  see Halliday v Nevill, supra, at 8. 

 

          It was not suggested there is anything in the Criminal Code Queensland that would have entitled the first and second respondents to enter in the place of Mr. Mathews' initial refusal of permission to effect the arrest.  The only statutory provision on which the first and second respondents can rely to justify their entry appears to be s. 8A the Crimes Act 1914 (Cth).  There is a discussion of the common law position with respect to the permissible use of force in effecting an arrest in Plenty v Dillon, supra.  But that discussion took place in the context of determining whether an occupier was entitled to hold his judgment for trespass against two police officers who had entered his property without his permission, not to arrest anyone but only to serve a summons on his daughter.  Mason CJ and Brennan and Toohey JJ referred with apparent approval at 641 to Lippl v Haines
(1989) 18 N.S.W.L.R. 620, another case to which Mr. Mathews also made reference, as an authority on the application of what is referred to as the third rule in Semaynes' Case 77 E.R. 194 to an arrest without warrant on a criminal charge.

 

          There is no evidence as to whether the arrests in question were made on warrants.  I will therefore consider the case on the basis most favourable to Mr. Mathews, that the arrests were made without warrants.

 

          In Lippl, armed police entered Lippl's home by forcibly opening a door in circumstances in which they reasonably, but wrongly, suspected that a dangerous criminal was in the house whom they intended to arrest on criminal charges.  Lippl, who was not arrested himself, sued for, among other things, trespass to his house.  The case turned on s. 352 the Crimes Act 1900 (NSW), which, so far as is presently relevant, is in similar terms to s. 8A of the Commonwealth Act.  The headnote is taken from the judgment of the Chief Justice at page 622.  The headnote reads as follows:

 

          "If a police officer is authorised by the Crimes Act 1900, s 352, to arrest a person without warrant then, according to common law principles, it may be lawful for him to engage in conduct that would otherwise amount to a trespass for the purpose of making, or endeavouring to make, such an arrest.  His conduct will be lawful where the entry is reasonably necessary for the purpose mentioned provided two conditions are satisfied.  First, he must believe on reasonable and probable grounds prior to entry, that the person he is seeking to arrest is on the premises.  Secondly, save in exigent circumstances, there must be a proper announcement prior to entry so that the occupier of the premises is made aware that a police officer claims authority to enter and is given an opportunity to permit entry without force."

 

          After stating this proposition at 622, the Chief Justice added:

 

          "The above principles are stated in terms of forcible entry because that is the problem which arises in the present case.  Non-forcible entry may give rise to additional questions, such as questions of implied licence, which are not presently relevant:  cf. Halliday v Nevill."

 

          Hope JA, with whom the Chief Justice expressed general agreement, although adding some comments of his own, and with whom Maher JA agreed, reached the same conclusion.  The English and Australian and other authorities are all discussed at length in Lippl.

 

          In my respectful opinion, the judgment of the Chief Justice contains an accurate statement of the law so far as the power of arrest without warrant under s. 8A the Crimes Act 1914 (Cth) is concerned.  On Mr. Mathews' own material, the first of these two requirements is clearly satisfied.  It follows that Mr. Mathews would have no claim against the first and second respondents either for trespass or in respect of their actions in arresting him in the circumstances of this case if, prior to their entry, they made an announcement to Mr. Mathews sufficient to make him aware that they were police officers who were claiming authority to enter, and if they also gave him an opportunity to permit entry without force.  There is nothing in the material before me to show that the respondents were exempt from this requirement.  It is not clear, however, from Mr. Mathews' uncontradicted evidence if it is beyond dispute that they satisfied the second requirement.

 

          I would in such circumstances ordinarily refuse to strike out the proceedings against the first and second respondents insofar as they allege trespass to premises and assault by the making of an arrest said to be unlawful.  It appears from what Mr. Mathews himself says in his notice of appeal, and in a letter which is incorporated in the material before me, that there is likely to be irrefragable evidence showing just what the first and second respondents did with respect to meeting this first requirement before the door was opened to them by Mr. Mathews.  Mr. Mathews refers to a tape recording of the events made by the first respondent as the events took place that was apparently in evidence before Judge Kimmins.  I would have been prepared to consider a further adjournment of the hearing, on terms, to give the first and second respondents the opportunity if they wished to put this tape and the transcript of the relevant parts of it before the Court.  But since I think Mr. Mathews is entitled to pursue his claims against the first and second respondents in respect of other events associated with this arrest, I will not follow that course but will decline to strike out this particular part of his case against the first and second respondents.

 

          Mr. Mathews also says in his affidavit that at the time of the allegedly wrongful arrest, the first and second respondents "frisked" him.  He argues that even if the arrest was lawful, the frisking was unlawful, and he can recover damages for this particular assault.  The first and second respondents cannot rely on s. 3ZE the Crimes Act 1914 (Cth) to justify any frisk search of Mr. Mathews, since that section, according to what counsel told me, only came into force in December 1994.  It is, in any event, a power hedged with conditions, as is the power of an arresting police officer at common law to search an arrested person.

 

          The limits of the common law power of an arresting police officer to search the arrested person are referred to in Clarke v Bailey (1933) 33 S.R.N.S.W. 303.  Davidson J, giving the judgment of the banco Court, said at page 310:

 

          "Apart from the statute, however, there was, at common law, a right of search, the necessity of which depended on the circumstances in each case.  It was based upon the principle of safety in some cases, and in others on the interests of justice, in order that evidence of crime might not be destroyed or lost."

 

          A search not falling within these limits would be an actionable interference with the common law rights of the citizens to immunity from interference of the person, notwithstanding that he had been lawfully arrested.  There is nothing in the evidence before me, limited as it is to evidence from Mr. Mathews, to suggest, let alone show, that his complaint about being frisked when he was arrested did not involve tortious conduct by the first and second respondents.  I will not strike out this part of his claim against them either.

 

          It is next said by Mr. Mathews in paragraphs 8 and 9 of his affidavit with respect to the first and second respondents that, while in his home on the occasion they arrested him, they took certain of his own documents from his facsimile machine.  The common law power of an arresting police officer to take possession of documents and other items in the course of arresting a person is also limited in scope.  In Barnett & Grant v Campbell (1902) 21 N.Z.L.R. 484, Cooper J, giving the judgment of the Full Court, said at page 491-2:

 

          "We think it may be taken to be settled law that a constable who is legally authorised to arrest an accused person may, at the time of such arrest, and as incidental to it, seize and take possession of articles in the possession or under the control of the accused person, as evidence tending to show the guilt of such person.  This is a power of common law, and exists as an incident to the arrest, and this whether the arrest is one which may be made without a warrant, or, as in the present case, one which can only be made under a warrant, and whether the offence is of the nature of a felony or merely a misdemeanour.  It is founded on the right to search a person upon his arrest; and the police are entitled to hold and detain property so taken as instruments of proof against the accused, subject to the right of the proper authority to direct such property to be restored to the accused person if it is found that it is in no way connected with the charge made against him."

 

          The Full Court decision in Field v Sullivan [1923] V.L.R. 70 is to the same effect.

          A seizure of documents belonging to an arrested person not authorised by this rule would also be an actionable wrong, even if made in the course of the arrest.  There is nothing in the evidence before me that establishes that Mr. Mathews' claim that the first and second respondents committed an actionable wrong by seizing the documents in question is unsustainable.  I will not strike out this part of the proceedings.

 

          Having reached the conclusion that the proceedings against the first and second respondents should not be dismissed, the proceedings against the seventh respondent, the Commonwealth, cannot be dismissed, in view of what Mr. Mathews alleges about the first and second respondents' conduct as Australian Federal police officers, and in view of s. 64B the Australian Federal Police Act 1979 (Cth).

 

          As to the fourth respondent, the only case Mr. Mathews makes against him is that he is said to have directed the first and second respondents to arrest Mr. Mathews.  There is no conceivable evidentiary foundation for a finding that even if the first and second respondents committed actionable wrongs in the course of arresting Mr. Mathews, and even if the fourth respondent did direct the first and second respondents to make this arrest, he is implicated in any unlawful conduct by the first and second respondents in relation to the arrest.  I will therefore strike out the proceeding against the fourth
respondent as disclosing no reasonable cause of action against him and as being embarrassing and vexatious.

 

          As to the sixth respondent, the only allegation against her is that she participated in an unlawful assault constituted by the finger and palm printing of Mr. Mathews at the watch-house soon after his arrest by the first and second respondent on 17 September, 1993.  Her counsel conceded it was open to Mr. Mathews to argue on the evidence before me that he was unlawfully assaulted in that way by the sixth respondent and another unidentified Queensland police officer at the watch-house.  The concession was made on the assumption that Mr. Mathews was arrested only on charges under Commonwealth law.  It was accepted, correctly in my opinion in view of Grollo v Bates (1994) 125 A.L.R. 492, that s. 68 the Judiciary Act 1903 (Cth) does not make applicable to persons arrested on charges under Commonwealth statutes provisions such as s. 43 the Vagrants, Gaming and Other Offences Act 1931 (Qld) and that, in the absence of statutory authority, the taking of fingerprints from a person lawfully arrested without his consent is still, itself, an unlawful assault.  Section 3ZJ the Crimes Act 1914 (Cth) now provides such authority but it was, as I have said, not in force on 17 September 1993.

 

          However, as I have indicated, it appears from Cooper J's judgments on 19 November, 1993 that Mr. Mathews was arrested on two offences on 17 September, 1993, one under the Crimes Act 1914 (Cth), and one under the Criminal Code of Queensland, a circumstance of aggravation also being included in that charge, as is provided for by s. 344 the Code.  This Code offence was the misdemeanour referred to in s. 335 of Chapter XXX of the Code.  That it was the intention of the first and second respondents, shown by their including the circumstance of aggravation in that charge, that it would be dealt with summarily, as is permitted by s. 341 of Chapter XXXI of the Code (subject to s. 342), does not, in my view, deprive this Code charge, on which the first and second respondents arrested Mr. Mathews, of its quality as an indictable offence under the Code.  See s. 3(2) of the Code and R v McKay; ex parte McNee [1989] 1 Qd.R. 559 at 563, per Thomas J, with Kneipp J agreeing.  It therefore, in my view, remains an offence punishable on indictment, even though the intention of the arresting police was to have Mr. Mathews dealt with summarily.  Section 43(1) the Vagrants, Gaming and Other Offences Act 1931 (Qld) provides, so far as is relevant:

 

          "Where a person ... is in lawful custody for any offence punishable on indictment pursuant to the Criminal Code, ... the officer in charge of police at the police station to which the person is taken after arrest or where the person is in custody, as the case may be, may take or cause to be taken all such particulars as may be deemed necessary for the identification of such person, including the person's photograph and fingerprints and palm prints."

 

          Section 43(1) thus conferred on the sixth respondent power to fingerprint and palm print Mr. Mathews without his consent, he being arrested for an offence of unlawful assault under the Criminal Code of Queensland, which was punishable on indictment.

 

          But s. 43(1) in terms only authorises fingerprinting and palm printing without consent if there is a lawful arrest.  Otherwise there can be no lawful custody.  Cf. Morris v Beardmore, supra, at 454-456.

 

          I have concluded that Mr. Mathews is entitled to pursue his claim against the first and second respondents for unlawful assault that involves the proposition that they unlawfully arrested him because there is no evidence that they made the necessary announcement before Mr. Mathews, as he says, "felt compelled to let them into his home."  There being no evidence before me to show that when the sixth respondent participated in the fingerprinting Mr. Mathews was then in lawful custody because he was lawfully arrested on a charge of assault under the Criminal Code of Queensland, I will therefore decline to strike out the proceedings against the sixth respondent.

 

          As to the fifth respondent, counsel who prosecuted Mr. Mathews on the charge of assaulting Ms. Scahill, the case Mr. Mathews raises against him is as follows:

 

          "The fifth respondent ... has with full knowledge of the actions of the first and second respondents in trespassing on land, trespassing of chattels, assaulting and battering amounting to criminal action under the Queensland Criminal Code has acted in the furtherance of the common purpose of these torts which is the vexatious persecution and prosecution of the applicant on fictitious charges."

 

          It is solely in reliance on what Mr. Mathews says was the fifth respondent's knowledge of the misconduct he also alleges the first and second respondents engaged in at the time of arresting him on 17 September, 1993, that makes the fifth respondent's own conduct in prosecuting him conduct in furtherance of the first and second respondents' intention to subject Mr. Mathews to wholly unjustifiable proceedings.  I observe that, far from the prosecution of Mr. Mathews on the charges in respect of Ms. Scahill being vexatious and fictitious, a jury of 12 persons were satisfied beyond reasonable doubt that Mr. Mathews was indeed guilty of the assault on her in respect of which the first and second respondents arrested him.

 

          But even assuming, for the purposes of argument that what Mr. Mathews has to say about the fifth respondent's conduct, there is in my opinion no basis for inferring from any knowledge of unlawful conduct on the part of the first and second respondents that the fifth respondent may have had, that the fifth respondent's running of the Crown case against Mr. Mathews on the assault charge involved any action or misconduct on the fifth respondent's part.  Cooper J, in the judgment to which I have referred a number of times, said:

 

          "No authority has been cited to me to support a conclusion that an unlawful arrest in itself protects a person from being charged with a criminal offence where there exist facts which would support a reasonable belief that an offence has been committed."

 

          Mr. Mathews has not sought to make good before me his earlier failure to draw to Cooper J's attention any such authorities.  I myself am aware of none.

 

          The proceedings against the fifth respondent must therefore be dismissed as not disclosing any reasonable cause of action and as being embarrassing and vexatious.

 

          Mr. Mathews makes no attempt to put before me any evidence to suggest he may have a case against the third respondent, the Director of Public Prosecutions.  The proceedings against the third respondent are also dismissed on the same grounds as those against the fifth respondent. 

 

          The result in relation to the attacks on proceedings QG 181 of 1994 is that I will order that the whole of Mr. Mathews' proceedings in that action against the third, fourth and fifth respondents be struck out.  I will further order that, save to that extent, the motion of the first, second, third, fourth, fifth and seventh respondents is dismissed and I will further order that the motion by the sixth respondent is also dismissed. 

 

          I will order that Mr. Mathews pay the costs of all respondents in proceedings QG 180 of 1990 of and incidental to the respondents' notice of motion and of these proceedings to be taxed.

 

          In relation to proceedings QG 181 of 1994, I will order that Mr. Mathews pay the costs of the third, fourth, and fifth respondents of and incidental to their notice of motion and of the proceedings to be taxed.

 

 

 

 

 

 

I certify that this and the preceding

48 pages are a true copy of the

reasons for judgment herein of the

Honourable Justice Drummond.

 

 

Associate:

 

 

Date:         18 May, 1995

QG 180 of 1995

 

 

Applicant appeared in person.

 

 

Counsel for the first, second,        Mr. P. Favell

 third, fifth, seventh, eighth

 and ninth respondents:

 

 

Solicitor for the first, second,      Australian Government

 third, fifth, seventh, eighth        Solicitor

 and ninth respondents:

 

 

Dates of Hearing:                     11 and 16 May, 1995

 

 

 

 

 

 

QG 181 of 1995

 

 

Applicant appeared in person.

 

 

Counsel for the first, second,        Mr. P. Favell

 third, fourth, fifth and

 seventh respondents:

 

 

Solicitor for the first, second,      Australian Government

 third, fourth, fifth and             Solicitor

 seventh respondents:

 

 

Counsel for the sixth respondent:     Mr. M. Conrick

 

 

Solicitor for the sixth respondent:   Crown Solicitor

 

 

Dates of Hearing:                     11 and 16 May, 1995