FEDERAL COURT OF AUSTRALIA

Krajniw v Newman (No 2) [2015] FCA 673

THE COURT ORDERS THAT:

1.    Judgment be entered for the respondents against the applicant under s 31A(2) of the Federal Court of Australia Act 1976 (Cth) and r 26.01 of the Federal Court Rules 2011.

2.    The applicant pays the first to sixteenth respondents’ costs of and incidental to this application.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

INTRODUCTION

1    In early November 2014, Mr Krajniw commenced this proceeding against 17 respondents. Apart from the seventeenth respondent, Brisbane Tree Services, which has not been served with the proceeding, the other 16 respondents broadly fall into two groups: various persons connected with the State of Queensland (the State respondents) and various persons connected with the Brisbane City Council (the Council respondents).

2    Mr Krajniw is self-represented. He is not a lawyer and has no legal training.

3    His statement of claim is a voluminous and discursive document. In it, Mr Krajniw refers to numerous “threatened ecological communities” and “threatened species” which he appears to claim have been adversely affected by the respondents’ alleged breaches of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (the EPBC Act). In particular, he appears to allege that some, or all, of the respondents have poisoned and cleared plants and trees in an area of land which adjoins the caravan park in which he lives, and thereby destroyed the “threatened species” and the habitat of the “threatened ecological communities”.

4    The land in question is owned by the Brisbane City Council and is located in a Conservation Zone under the Brisbane City Plan 2014. It is referred to as 1833 Creek Road.

5    In addition to seeking permanent injunctive relief to prohibit any future conduct allegedly undertaken in breach of the EPBC Act, Mr Krajniw’s originating application included an application for interlocutory injunctive relief pending the trial of this proceeding. In December 2014, I dismissed that application for interlocutory relief: see Krajniw v Newman [2014] FCA 1454. Far from there being any evidence to support any of Mr Krajniw’s allegations that there had been poisoning and clearing of plants and trees on the land in question, there was evidence from an officer of the Brisbane City Council to the contrary: see at [9] and [12] of that decision.

THE ORDERS SOUGHT

6    In January 2015, the State respondents filed an application seeking the following orders:

1.    The proceeding against the Fourth, Fifth, Sixth, Seventh and Eighth Respondents be struck out and their names removed from the proceeding and State of Queensland be named in their place.

2.    Summary judgment dismissing or striking out the proceeding as against the First to Eighth Respondents be granted.

3.    The proceeding as against the First to Eighth Respondents be permanently stayed.

4.    Costs of the proceeding.

7    At about the same time, the Council respondents also filed an application seeking the following orders:

1.    pursuant to Rule 9.08 of the Federal Court Rules 2011 the 9th and 11th to 16th Respondents be removed as parties to the proceeding;

2.    pursuant to Rule 26.01 of the Federal Court Rules 2011 and s 31A(2) of the Federal Court Act 1976 the Applicant’s proceeding be struck out and summary judgment be entered against the Applicant;

3.    in the alternative to paragraph 2 (above), pursuant to Rule 16.21 of the Federal Court Rules the Applicant’s pleading be struck out;

4.    the Applicant pay the costs of the 9th to 16th Respondents of and incidental to the making of this interlocutory application …

THREE ISSUES RAISED

8    The orders sought by the State and Council respondents raise three broad issues for determination. They are:

(a)    whether certain respondents should be removed from this proceeding;

(b)    whether summary judgment should be entered in favour of the respondents in relation to the whole of the proceeding; and

(c)    whether, in the alternative to (b) above, Mr Krajniw’s statement of claim should be struck out.

THE PRINCIPLES RELATING TO THESE ISSUES

9    As can be seen from the orders sought in these applications, the respondents have variously relied upon s 31A(2) of the Federal Court of Australia Act 1976 (Cth) (Federal Court Act) and r 26.01 of the Federal Court Rules 2011 (Cth) (the Rules) in their applications for summary judgment, r 9.08 of the Rules in their applications for removal of various of the named respondents, and r 16.21 of the Rules to strike out Mr Krajniw’s statement of claim. I will briefly outline the principles applicable to these provisions in the paragraphs hereunder.

10    Save that s 31A(3) is not contained in r 26.01(1), the terms of s 31A of the Federal Court Act are reflected in r 26.01 of the Rules. Accordingly, s 31A and r 26.01 otherwise contain identical tests: see Zippo Manufacturing Co v Jaxlawn Pty Ltd [2011] FCA 1125 at [20] per Gordon J. The principles relating to an application for summary judgment under s 31A of the Federal Court Act have been examined many times since that section came into effect about 10 years ago. As a matter of convenience, I refer to the principles and authorities discussed in my decision in Australian Securities and Investments Commission v Cassimatis (2013) 220 FCR 256; [2013] FCA 641 at [15]–[50] (Cassimatis). In considering the respondents’ applications, I have had regard to those principles and, in particular, to the need to proceed with caution when deciding whether to grant an application for summary judgment.

11    Dismissing a proceeding for an abuse of process is also an exceptional power which ought to be used sparingly: see Sea Culture International Pty Ltd v Scoles (1991) 32 FCR 275 at 275-279. Whether an abuse of process has arisen obviously depends on all the circumstances of the case at hand and depends, among other things, on the purpose the particular applicant was pursuing in commencing the proceeding. As I observed in Cassimatis at [46], this requires a “practical judgment” to be undertaken of the case at hand: see also Spencer v Commonwealth (2010) 241 CLR 118; [2010] HCA 28 (Spencer) at [25]. Pertinent to this proceeding, it has been held to be an abuse of process to commence proceedings that are “foredoomed to fail”: see Walton v Gardiner (1993) 177 CLR 378 at 393.

12    It is also important to distinguish between an application for summary judgment and one directed to striking out a pleading: see Cassimatis at [45], citing Spencer at [23]. The former is concerned with substance, with the bringing and defending of proceedings and therefore with whether an applicant has a genuine and valid claim or defence. The latter is concerned more with form, with the pleadings, and therefore with whether a party has properly pleaded his or her claim or defence. Finally, it should be noted that the person bringing an application for summary judgment – in this case, the respondents – bears the onus of persuading the Court of their entitlement to have the proceeding determined summarily.

13    The principles applicable to an application to strike out pleadings under r 16.21 are also well-established, having been discussed in countless decisions in the past. Accordingly, I will gratefully adopt the helpful summary of those principles from a recent decision of Gleeson J in Mulhern v Bank of Queensland [2015] FCA 44:

[53]    The power to strike out a pleading (in this case, the statement of claim) requires a consideration of the terms of that document. A pleading may be struck out if it is unintelligible, ambiguous or so vague that it fails to identify the material factual allegations to the extent that the other party is not given notice of the real substance of the claim: Priest v State of New South Wales [2006] NSWSC 12 at [34].

[54]    It must be apparent on the face of the statement of claim that the facts pleaded, if proved, would establish the cause of action relied upon by the relevant plaintiff or plaintiffs. In Wride v Schulze [2004] FCAFC 216 at [25], a Full Court said:

… the pleadings must disclose a reasonable cause of action against the party against whom the cause of action is brought and must state all material facts necessary to establish that cause of action and the relief sought. A “reasonable cause of action“ for this purpose means one which has some chance of success if regard is had only to the allegations and the pleadings relied on by the applicant.

[55]    The power to strike out a pleading because it discloses no reasonable cause of action will be exercised only in a plain and obvious case, where it is clear that no reasonable amendment can cure the alleged defect and there is no reasonable question to be tried: Polar Aviation Pty Ltd v Civil Aviation Safety Authority [2012] FCAFC 97; (2012) 203 FCR 325 at [43].

[56]    In contrast, an application for summary judgment requires consideration of matters outside the pleading: Takemoto v Moodys Investors Service Pty Ltd [2014] FCA 1081 at [4] and the cases there cited.

[57]    Both powers are to be exercised with caution.

CONTENTIONS OF THE PARTIES

14    I will deal with the respondents’ applications for summary judgment first (the issue in [8(b)] above) because, if those applications are successful, there will be no necessity to consider the applications to remove parties under r 9.08, or to strike out the statement of claim under r 16.21.

15    The contentions of the State respondents and the Council respondents were to similar effect. They both submitted that Mr Krajniw had no reasonable prospect of successfully prosecuting this proceeding, that the proceeding was frivolous or vexatious, that no reasonable cause of action had been disclosed in Mr Krajniw’s statement of claim, and that the proceeding was an abuse of process. As to the particular allegations made by Mr Krajniw in his statement of claim, they submitted:

(a)    the proceeding appears to be for a collateral purpose; namely, to protect an animal –the squirrel glider possum – that is not the subject of protection under the EPBC Act;

(b)    the proceeding does not appear to be directed to any particular conduct but is in the nature of a general grievance with the Council, the State and many other entities who are not parties to the litigation;

(c)    to the extent that the proceeding is an attempt to relitigate matters the subject of previous court decisions, that would amount to an abuse of process;

(d)    despite significant experience before the courts, the pleadings appear to have been crafted so as to make them deliberately difficult to understand and respond to;

(e)    the pleadings contain a litany of scandalous and irrelevant allegations which bring into question Mr Krajniw’s bona fides in bringing this proceeding;

(f)    the conduct of Mr Krajniw in relation to the bringing of the interlocutory application without appropriate evidence would also cause the Court concern about Mr Krajniw’s bona fides: see Krajniw v Newman [2014] FCA 1454;

(g)    requiring the other parties to respond to these matters would be oppressive and impose unacceptable burdens on those parties, with the resultant costs being borne by taxpayers; and

(h)    much of the relief sought does not appear to be relief within the scope of the EPBC Act (for example, placement of individuals on the “public shame list” and monetary compensation).

16    As will appear from my observations later in these reasons, I consider most, if not all, of these submissions have merit.

17    In response, Mr Krajniw filed written submissions and made oral submissions at the hearing of these applications. However, in neither did he directly address the respondents’ applications for summary judgment. For the most part, Mr Krajniw’s written submissions comprised misconceived contentions about matters of little relevance. For example, he took issue with some instances where the respondents were late in filing material and the fact their submissions were 12 pages in length, rather than 10 pages, as ordered. He also dedicated a large number of paragraphs to the question whether he had standing under the EPBC Act, notwithstanding that the respondents had earlier conceded this issue for the purpose of these applications. Further, he reiterated some of the content of his statement of claim in respect of the alleged contraventions of the EPBC Act. However, in that process, he did not describe how the respondents had breached those provisions, nor how they related to the current applications, except to make broad statements such as: “the Respondents must be held accountable and their applications must be struck out”.

18    Putting the above matters aside, Mr Krajniw’s primary submission appeared to be that the respondents have “failed to adduce any further relevant tangible material” to support their applications for summary judgment. In support of this submission, Mr Krajniw set out a list of 26 items about which he contended the respondents should have provided evidence. The consequence of this, he contended, was that he was unable to respond to the applications. He stated:

The 1st – 16th Respondents pleading includes broad brush allegations and is devoid of facts in support of allegations as made. On that basis, the pleading is embarrassing as it fails to plead material facts, which has a consequence of failing to identify a cause of action to which the Applicant may respond. The relief sought against the Applicant is bound to fail.

(Emphasis in original)

I interpolate that I assume the references to the respondents’ “pleading” was intended to mean their applications, because none of them has yet filed a defence.

19    It hardly needs to be said that this submission is misconceived.

20    Finally, Mr Krajniw submitted that the respondents’ applications were themselves “embarrassing, frivolous and vexatious, contain scandalous material and [are] an abuse of process”. He therefore contended that they should be dismissed. He stated:

… [the respondents and their legal counsel] should not be afforded a license to use the Court as a forum for expression of and propagation of chicanery and mendacity, by taking an indulgence to pervert the proceedings and to promote the Applicants (sic) character assassination without adducing any relevant tangible evidence in support of their allegations.

(Emphasis in original)

21    As with his written submissions, Mr Krajniw’s oral submissions did not address the respondents’ applications for summary judgment. His oral submissions comprised little more than a series of emotional statements about the alleged destruction of the squirrel glider possum.

CONSIDERATION

22    In Manolakis v Carter [2008] FCAFC 183 (Manolakis), the Full Court of this Court described the obligation of a self-represented litigant to properly state his or her claim in the following terms (at [12]):

An aggrieved self-represented applicant must, like any other litigant, address:

•    his or her standing to make claims against other persons;

•    the jurisdiction of the court in which he or she wishes to make those claims;

•    the precise identity of the parties against whom the claims are to be made;

•    the relief that is to be sought; and

•    the facts which are said to found an entitlement to that relief.

23    In du Boulay v Worrell [2009] QCA 63 (du Boulay), Muir JA provided a summary of the conduct of a self-represented litigant in that case. His Honour said:

[68]    The appellant appears to have succumbed to the phenomenon which inflicts many self-represented litigants of becoming so fixated on real or perceived wrongs that he has lost any semblance of objectivity and the power of discrimination. It does not appear to have occurred to him that by heaping allegation on allegation he has put it beyond his ability to plead, let alone conduct and finance his case. Nor does it appear to have occurred to him that the myriad of allegations has a tendency to destroy whatever credibility may have attached to a case involving fewer allegations more obviously supported by clearly identified material facts.

[69]    It may be that self-represented litigants should be afforded a degree of indulgence and given appropriate assistance: Bhagat v Global Custodians Ltd [2002] FCA 223. But if a self-represented person wishes to litigate, he or she is as much bound by the rules of Court as any other litigant. Those rules exist to facilitate efficient, fair and cost-effective litigation. The Court’s duty is to act impartially and ensure procedural fairness to all parties, not merely one party who may be disadvantaged through lack of legal representation. The other party to the litigation is entitled to protection from oppressive and vexatious conduct regardless of whether that conduct arises out of ignorance, mistake or malice.

24    When one examines Mr Krajniw’s statement of claim in this proceeding, it becomes obvious that he has spurned the obligations described by the Full Court in Manolakis and instead produced a document which suffers most of the vices described by Muir JA in du Boulay above. Indeed, Mr Krajniw’s statement of claim in this proceeding evokes the words of Searles DCJ in a previous proceeding involving him: Krajniw v Brisbane City Council [2011] QPELR 260 at [17], as follows:

Mr Krajniw has, in these proceedings, taken a ‘scattergun’ approach to raising a litany of issues that are variously repetitive, irrelevant, not supported by the evidence, misconceived, beyond the jurisdiction of the Court and, at times, scandalous.

The summary below of Mr Krajniw’s statement of claim demonstrates why all these observations are entirely apt.

25    Before setting out that summary, it is worth recording that this proceeding is the most recent in a series of similar proceedings Mr Krajniw has commenced in this, and other courts over the past six to seven years. Importantly, that series of proceedings includes one that, in 2011, Dowsett J ordered should be summarily dismissed: Krajniw v Brisbane City Council (No 2) [2011] FCA 563 (Krajniw 2011). That proceeding related to a bicycle path that the Brisbane City Council proposed to construct on a part of the same land that is in question in this proceeding. Mr Krajniw claimed in that proceeding that the construction of the bicycle path would adversely affect “the squirrel glider, the koala, the southern day frog, the giant barred frog, the wallum sedge frog, the wallum froglet, the wallum dependent froglet and the green thighed froglet”: see Krajniw 2011 at [13]. These species, it should be noted, are among the principal “threatened species” that are central to this proceeding. Furthermore, in applying for an injunction in that proceeding, Mr Krajniw relied upon the same provisions of the EPBC Act as he has in this proceeding. It is therefore appropriate to set out some extracts of the salient parts of that decision. They are:

[3]    The application contained other deficiencies. There were references to the wallum froglet which should have been to the wallum sedge frog. Further, pursuant to s 481 a pecuniary penalty may only be sought by the Commonwealth. In that respect the application was misconceived. Notwithstanding the applicant’s reference to numerous sections of the Act, it seemed that his cause of action was, in substance, limited to alleged contraventions of ss 18, 18A and 496C of the Act. …

[5]    … To obtain injunctive relief the applicant must demonstrate an action or omission, or proposed action or omission which constitutes, or would constitute an “offence or other contravention” of the Act. The applicant purports to rely upon alleged breaches or potential breaches of sections 18, 18A, 48 and 496C. ... Section 48 deals with bilateral agreements between the Commonwealth and a State or Territory. As neither the Commonwealth nor any State or Territory is a party to these proceedings, the relevance of s 48 is unclear. …

[8]    Where a person infringes s 18A on the land of another person, s 496C may impose criminal liability upon the latter person. I need not set out that section in these reasons. The various subsections of s 18 deal with conduct affecting different categories of listed threatened species. Section 18A deals with listed threatened species generally, but s 18A(4) excludes species in the extinct category from its operation. In order to obtain injunctive relief the applicant must demonstrate a contravention or threatened contravention of either s 18 or s 18A. In effect, he must demonstrate an action or threatened action that has, will have or is likely to have a significant impact on a relevant listed threatened species. …

[10]    The term “significant” is not defined in the Act. The authorities suggest that it should be interpreted as meaning “important, notable, or of consequence having regard to its context or intensity”: Booth v Bosworth (2001) 114 FCR 39 at [99]; ; Minister for the Environment & Heritage v Greentree (No 2) (2004) 138 FCR 198 at [191]-[192]; ; Bat Advocacy NSW Inc v Minister for Environment Protection, Heritage and the Arts [2011] FCA 113 at [109]. In my view the word is used to limit the operation of the Act. That purpose would not be achieved if any possibly adverse effect upon a species, however minor and however unlikely, was sufficient to engage either of ss 18 and 18A. Moreover, those sections are concerned with impact upon a relevant species. An adverse effect upon an individual member of the species, or even a number of individual members may not be sufficient to engage those sections. The applicant must demonstrate a risk of significant adverse impact upon the species as a whole. …

[13]    The applicant identifies two species of mammal and six species of frog which, he says, have been, or will be negatively affected by the respondents' actions: the squirrel glider, the koala, the southern day frog, the giant barred frog, the wallum sedge frog, the wallum froglet, the wallum dependent froglet and the green thighed froglet. The squirrel glider, the koala, the wallum froglet, the wallum dependent froglet and the green thighed froglet are not listed threatened species for the purposes of the Act. Accordingly, any detrimental impact on them as a result of the respondents' actions is not regulated under the Act. Conduct which may produce such impact cannot be restrained in these proceedings. I should say that the applicant has frankly conceded that his primary purpose is to protect the squirrel glider and the koala. He seeks so to do by exploiting the alleged impact of the development on other species. I do not question the propriety of his so doing.

[14]    The southern day frog is on the list of threatened species, but in the “extinct” category. Section 18 only applies to species which are “extinct in the wild”, “critically endangered”, “endangered” or “vulnerable”, using the categories in the Act. For obvious reasons, s 18 does not regulate actions which may have significant impact on species which are “extinct”. Section 18A(4) demonstrates that s 18A also does not apply to the southern day frog. The giant barred frog is in the “endangered” category. The wallum sedge frog in the “vulnerable” category. Pursuant to s 475, the Court may grant injunctive relief if it is satisfied that the development has had, will have or is likely to have a significant impact on either of these species. To the extent that the applicant relies on possible adverse impact upon species other than the giant barred frog and the wallum sedge frog, the proceedings must be dismissed. To the extent that he seeks relief other than in reliance upon ss 18, 18A and 496C, his amended application goes beyond his grant of leave. To that extent, too, the proceedings must be dismissed. …

[21]    At various stages in these proceedings, the applicant has referred to alleged contraventions of s 48A(2) of the Act …

[22]    Broadly speaking, Pt 5 Div 2 of the Act (which includes s 48A) provides for bilateral agreements between the Commonwealth and a State or self-governing Territory. Such agreements are to be for the purposes set out in s 45(2). A bilateral agreement may provide that actions or courses of action approved by a relevant State or Territory will not require approval pursuant to Pt 9 of the Act. Section 48A(2) provides that such an agreement must contain certain provisions. The applicant seems to suggest that s 48(2) places some limitation upon developments other than those imposed by ss 18 and 18A. However the relationship between those sections and Pt 9 does not lead to that outcome. Section 46 permits bilateral agreements to exempt some actions from approval under Pt 9 for the purposes of Div 3 (which contains ss 18 and 18A). This is presumably because the bilateral agreement will prescribe an alternative method of assessment to that prescribed in Pt 9. Section 48A(2) is part of the mechanism for achieving that result. It has no relevance for present purposes.

(Emphasis added)

I will return to this decision later in these reasons.

26    Mr Krajniw’s originating application comprises 48 pages and 112 paragraphs. His statement of claim comprises 355 pages and 3267 paragraphs. It is apparent from what he said in Court on 20 November 2014 that Mr Krajniw has deliberately made these documents lengthy and difficult to understand. He said:

…if you were to read my application – I am seeking considerable orders. I have 50 pages, virtually, mostly orders and my statement of claim – I made it quite difficult to make these people work because they had (sic) never, ever worked in their lives.

27    Because of this prolixity and obscurity, it is very difficult to extract from the plethora of claims made in Mr Krajniw’s statement of claim exactly what he is alleging against the respondents. Nonetheless, the following summary will serve to demonstrate that he has not pleaded the facts necessary to make out any genuine and valid claim against the respondents. It follows that it is his proceeding, rather than his statement of claim, that must be dismissed.

28    To give some flavour of the nature of the fundamental deficiencies in the claims Mr Krajniw has made in his statement of claim, it is worth providing some extracts from that document. This is not an easy task because the document contains an endless series of allegations of breaches of, and offences under, the EPBC Act, most of which are in the most general of terms. However, quoting from the following early paragraph of the statement of claim does serve to exemplify the character of the pleading:

The Applicant contends that he has standing under s 475(1)(b), and s475(6) to seek the grant of Injunctions and Orders under s475 of the Environment Protection and Biodiversity Conservation Act 1999 (Cth), to restrain the Respondents from engaging in conduct and activity of a kind constituting the commission of civil and criminal environmental offences, directed towards the destruction of Australia’s largest known colony of Squirrel Glider Possums, by trapping and euphemising, starvation, torture, mutilation, blinding, and poisoning, and to stop the Respondents from committing any further environmental damage, environmental vandalism, environmental terrorism, that is:-- the persecution of Squirrel Glider possums -; the poisoning and baiting of listed threatened species, matters protected, and the baiting of a species, a thing that is not a matter protected, the poisoning and clearing ephemeral wetlands, poisoning and clearing riparian vegetation and marine plants, poisoning and clearing ground vegetation, poisoning and clearing significant Koala landscape trees, poisoning and clearing vine thickets, poisoning and clearing palm trees, poisoning and clearing ground ferns, poisoning and clearing marine ferns, poisoning and clearing marine couch, within the land bounded by the 1833 Creek Road property, 9.6 Hectares in area, in that the proposed action will have a significant adverse impact on the listed threatened ecological community, the declared and certified Conservation Area, a nature refuge, a declared and certified - Squirrel Glider critical core habitat, - 686 Wallum Froglet Essential Habitat, - 1670 Lewin’s Rail Essential Habitat, - 1730 Grey Goshawk Essential Habitat, - Red Goshawk Essential Habitat, -- 29186 Koala Essential Habitat, a listed threatened ecological community, the Littoral Rainforest and Coastal Vine Thickets of eastern Australia, the Lowland Rainforest of Subtropical Australia, Grey Box (Eucalyptus macrocarpa) Grassy Woodlands and Derived Native Grasslands of South - eastern Australia, Lowland Grassy Woodland in the South East Corner Bioregion, matters of “National Environmental Significance” (matters of NES), an ecological community for the listed threatened species, matters protected, and a species a thing that is Not a matter protected.

(Errors and emphasis in original)

29    I should interpolate that Mr Krajniw’s claims (above) to have standing under s 475 of the EPBC Act can be put aside for the purposes of these applications because, as is already noted above, the respondents accept his standing for that purpose only.

30    Another example of the character of the pleading, and the fundamental deficiencies in the claims made in it, are Mr Krajniw’s allegations about “controlled actions”. The EPBC Act defines such actions (in s 67) and regulates them. In particular, the taking of a controlled action, as defined, without an approval is prohibited: see s 67A of the EPBC Act. In relation to such controlled actions, Mr Krajniw asserts in his statement of claim that:

…the taking of a controlled action within the listed threatened ecological community by the Respondents, (which) will have a significant adverse impact on the life support systems of nature, and will promote the taking of matters protected, and a species, a thing that is not a matter protected, in that the assessment and approval process, did not have regard, and failed to take into account, in contravention of, and non compliance with the following provision of the EPBC Act 1999 (Cth).

(Emphasis in original)

31    The paragraphs above are by no means unique. They are representative of Mr Krajniw’s failure to make out any basis for a claim which he has any prospect of successfully prosecuting. I have endeavoured to summarise why that is so in the following paragraphs.

32    First, approximately 300 sections and sub-sections (out of a total of 528 sections) of the EPBC Act are repeatedly referred to, or quoted, throughout the statement of claim. By his own account, Mr Krajniw has sought to rely on “303 points of law, at least”. However, despite all these references to the provisions of the EPBC Act, Mr Krajniw has not attached any significance to any of those references nor, more importantly, has he provided any details of any conduct which might amount to a contravention of any of the provisions in question. The following paragraph exemplifies this phenomenon:

In addition that taking of a controlled action, with a significant adverse impact on the matters protected, does not comply with, and contravenes other provisions of the Environment Protection and Biodiversity Act 1999 (Cth), as listed below, but not limited to the following -

Section s3, s3(1), s3(2), s3A, s4, s5, s9, s10, s11, s18, s18(3), s18(4), s18(6), s18A, s19, s20, s20A, s20B, s25, s25A, s25AA, s28AB, s29, s30, s32, s33, s34, s34A, s34D, s34E, s37, s37A, s37B, s37C, s37G, s37H, s37M, s43A, s43A(2), s43B, s43B(2), s43B(3), s44, s45, s46(1), s46(2), s46(2A), s47, s48, s48(1), s48(2), s48A(3), s48A(4), s49, s49A, s50, s53, s54, s56, s66, s67, s56A, s68(1), s68(2), s68(3), s68(4), s68(5), s68(A), s69, s70, s71, s72, s73, s74, s74A, s74AA, s75, s76, s77, s77A, s80, s81, s82, s83, s84, s85, s87, s88, s89, s90, s91, s92, s93, s94, s95, s95A, s95B, s95C, s96, s96A, s96B, s97, s98, s99, s100, s101, s101A, s101B, s102, s103, s104, s105, s130, s136, s139, s140, s146, s146A, s146B, s146C, s146D, s146E, s146F, s146K, s146L, s158, s158A, s159… [and so on, in a similar manner] …

33    Secondly, while numerous references are made throughout the statement of claim to the squirrel glider possum and a number of other fauna (including the Queensland lung fish, various frog species and the koala) and flora (including palm trees and marine ferns), no details are provided of any conduct allegedly engaged in by any person that directly affected any of these fauna or flora. That is to say, facts such as: who engaged in the conduct, when the conduct was engaged in, where the conduct was engaged in and what the conduct involved.

34    Moreover, it necessarily follows that no attempt has been made to link any conduct of any of the respondents with any pertinent provision of the EPBC Act; for example, to identify a species (as distinct from an animal, or even a colony of animals) that is present on the land and, more importantly, that is listed as a threatened species (or vulnerable, endangered or critically endangered species) under the EPBC Act, in relation to which the respondents’ conduct had, or will have, a significant impact: see the discussion of these elements in Krajniw 2011 at [8], [10], [13] and [14] (at [25] above). These observations particularly apply to the squirrel glider possum which appears to be the primary focus of the allegations in the statement of claim. It is not listed as a threatened species for the purposes of the EPBC Act. Accordingly, to the extent that Mr Krajniw’s proceeding seeks relief based upon unspecified conduct which is said to have had, or will have, an adverse impact on the squirrel glider possum, or its habitat, the EPBC Act does not provide any remedy to him. Mr Krajniw should be well aware of this fact because it was one of the reasons why Dowsett J dismissed his similar proceeding in 2011: see Krajniw 2011 at [13] (at [25] above). Indeed, Mr Krajniw appears to acknowledge this fact at paragraph 527 of his statement of claim where he states:

Squirrel Gliders are:

a.    NOT a listed threatened species pursuant to the Act.

b.    No listed status under the EPBC Act.

c.    NOT a species of National Environmental Significance

d.    NOT listed on National Recovery Plan.

e.    Least Concern wildlife under NCR 2006 in Qld.

f.    Articulates and falls under section s48A(2) of the Act

(Emphasis in original)

35    Similar difficulties arise with the pleading in respect of each of the fauna mentioned in Mr Krajniw’s statement of claim.

36    Thirdly, Mr Krajniw makes innumerable references in his statement of claim to “the proposed development” or “the proposed action” in relation to which he queries the “validity and legality of the assessment process”. However, there is no pleading about, nor evidence of, any “proposed development” or any “proposed action” being undertaken on the land in question by any of the respondents, or anyone else.

37    Fourthly, and in a similar vein, despite referring often to “controlled actions”, no action is identified in the statement of claim which is said to meet the definition of a “controlled action”. This can be seen from the paragraph in relation to “controlled actions” above (at [30] above). And to add to this deficiency, there is no attempt in that paragraph, or elsewhere in the statement of claim, to identify any conduct of any of the respondents which may amount to a contravention of the controlled action provisions of the EPBC Act.

38    Fifthly, and still on the same theme, the statement of claim also contains a large number of references to a Bilateral Agreement between the State of Queensland and the Commonwealth. Such agreements are provided for in s 48 of the EPBC Act. The statement of claim contains numerous allegations of failures to comply with, or breaches of, that agreement. As with the alleged breaches of the EPBC Act, those allegations do not include any material facts. Moreover, quite apart from the fact Mr Krajniw was not a party to that agreement, and neither the Commonwealth nor the State of Queensland is a party to this proceeding, Mr Krajniw should well know from his 2011 proceeding that s 48 of the EPBC Act does not provide him with any basis for a claim in connection with this bilateral agreement: see Krajniw 2011 at [5] and [21]–[22] (at [25] above).

39    Sixthly, while this goes more to abuse of process issues, Mr Krajniw’s statement of claim is, to adopt the description of the State respondents, “littered with emotive, scandalous and inflammatory language”. To set out in detail all the examples of that language will only serve the improper end that Mr Krajniw obviously seeks to achieve. Nonetheless, the following examples will suffice. Mr Krajniw refers to the Liberal National Party as “Lunatics and Nazi Perverts” and the Australian Labor Party as “Australian Lame-brained Parasites”. Further, in referring to various Queensland Government Departments, Mr Krajniw persistently adopts the phrase “Bludgers Paradise for incompetent bludging parasites” and, on numerous occasions, he refers to individuals working within those Departments as “sadistically perverted and criminally insane”. Further, Mr Krajniw’s statement of claim makes a number of offensive slurs against the courts. For example, he states: “Judges show sensitivity and compassion to child rapists but have condemned the Gliders to death”.

40    Seventhly, there is the relief Mr Krajniw has claimed. Putting aside the absence of any cause of action which would found that relief as outlined above, there are many aspects of it that are not open to claim by Mr Krajniw, or which are plainly preposterous. The most obvious example of the former is his claim for pecuniary penalty orders under s 481 of the EPBC Act. As the State Respondents correctly observed, and as he must well know, Mr Krajniw has no standing to make such claims: see Krajniw 2011 at [3] (at [25] above). An example of the latter is his claim that the respondents be subjected to “prosecution, jailing and public shaming for gross dereliction of duty”. To compound these defects, he seeks relief against a large number of persons who are not parties to the proceeding, such as the Queensland Police Service and various media outlets. And finally, he claims compensation totalling $53 million for depression and psychological trauma he claims to have suffered as a consequence of the “wilful destruction of the squirrel glider possums”. Quite apart from the fact that the provisions of the EPBC Act do not offer protection to the squirrel glider possum as a species (see [34] above), and apart from the obvious novelty of this claim, nothing is alleged in Mr Krajniw’s statement of claim to substantiate these personal injuries. In short, Mr Krajniw has not pleaded any facts in his statement of claim which would justify any of the relief he has claimed against any of the respondents.

CONCLUSION

41    I bear in mind the great caution that needs to be taken when determining a summary judgment application such as this. However, having regard to the nature of the allegations Mr Krajniw has made in his statement of claim, and the fate of the similar allegations Mr Krajniw had made in proceedings in this Court in recent times, I do not consider this is a situation where Mr Krajniw’s difficulties lie in the way he has pleaded his claims. Rather, I consider they lie in the lack of any legal or factual foundation for any of his claims. I do not consider therefore that Mr Krajniw has any reasonable prospect of successfully prosecuting this proceeding against the respondents. Having come to this conclusion, it is unnecessary for me to consider the other orders the respondents have sought.

42    For these reasons, this proceeding must be dismissed.

Associate:

Dated:    3 July 2015