Federal Court of Australia

Quail v Gibson [2021] FCA 1115

ORDERS

THE COURT ORDERS THAT:

1.    The applicant’s originating application be set aside pursuant to r 13.01 of the Federal Court Rules 2011 (Cth).

2.    The applicant pay the respondent’s costs, to be agreed or assessed.

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

ORDERS

THE COURT ORDERS THAT:

1.    The applicant’s originating application be set aside pursuant to r 13.01 of the Federal Court Rules 2011 (Cth).

2.    The applicant pay the respondent’s costs, to be agreed or assessed.

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

REASONS FOR JUDGMENT

ABRAHAM J:

1    On 30 November 2012, after a trial before a jury in the Supreme Court of Victoria the applicant, Mr John Quail, was convicted of attempted murder. On 28 March 2013, the applicant was sentenced to a term of imprisonment of 12 years and 6 months: The Queen v Quail [2013] VSC 190. On 18 December 2014, the Victorian Court of Appeal dismissed his appeal from conviction: Quail v The Queen [2014] VSCA 336, and on 11 September 2015, special leave to appeal to the High Court was refused: [2015] HCA Trans 233. The applicant was represented in his criminal proceedings.

2    The applicant, by originating applications filed on 7 May 2020 and 2 July 2020 now brings proceedings in this Court, alleging defamation against Mr Raymond Gibson QC, Senior Crown Prosecutor, in relation to conduct in the course of his trial, and the Director of Public Prosecutions (together, the respondents) for failing to properly supervise Mr Gibson QC in relation to that alleged defamatory conduct. Mr Gibson QC is a Crown Prosecutor within the meaning of s 3 of the Public Prosecutions Act 1994 (Vic) (Public Prosecutions Act).

3    The applicant is unrepresented in these proceedings.

4    The respondents seek summary dismissal of the originating applications pursuant to s 31A(2) of the Federal Court of Australia Act 1976 (Cth) (FCA Act) and r 26.01(1) of the Federal Court Rules 2011 (Cth) (FC Rules), or alternatively, that the originating applications be set aside under r 13.01. In summary, the respondents submit that the proceedings should be summarily dismissed because the claims made by the applicant have no reasonable prospects of success. Alternatively, the originating applications should be set aside on the basis that this Court lacks jurisdiction to hear them.

5    For the reasons below, the originating applications are set aside.

Relevant principles

Summary judgment

6    Section 31A of the FCA Act relevantly provides:

(1)     The Court may give judgment for one party against another in relation to the whole or any part of a proceeding if:

(a)     the first party is prosecuting the proceeding or that part of the proceeding; and

(b)     the Court is satisfied that the other party has no reasonable prospect of successfully defending the proceeding or that part of the proceeding.

(2)     The Court may give judgment for one party against another in relation to the whole or any part of a proceeding if:

(a)     the first party is defending the proceeding or that part of the proceeding; and

(b)     the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.

(3)     For the purposes of this section, a defence or a proceeding or part of a proceeding need not be:

(a)    hopeless; or

(b)     bound to fail;

for it to have no reasonable prospect of success.

(4)     This section does not limit any powers that the Court has apart from this section.

 (5)     This section does not apply to criminal proceedings.

7    The power to dismiss an action summarily is not to be exercised lightly: Spencer v Commonwealth [2010] HCA 28; (2010) 241 CLR 118 (Spencer) at [60] and see [24], although it does not require that the proceedings to be seen as “frivolous”, “untenable” or “groundless”: Spencer at [24], [53]-[60]. The critical question is whether the moving party has persuaded the court that the opposing party has no reasonable prospect of success: Polar Aviation Pty Ltd v Civil Aviation Safety Authority (No 4) [2011] FCA 1126; (2011) 203 FCR 293 at [17].

8    The meaning of reasonable prospect of success in this provision was considered in Spencer with the plurality, Hayne, Crennan, Kiefel and Bell JJ observing at [59]-[60]:

[59]     In many cases where a plaintiff has no reasonable prospect of prosecuting a proceeding, the proceeding could be described (with or without the addition of intensifying epithets like "clearly", "manifestly" or "obviously") as "frivolous", "untenable", "groundless" or "faulty". But none of those expressions (alone or in combination) should be understood as providing a sufficient chart of the metes and bounds of the power given by s 31A. Nor can the content of the word "reasonable", in the phrase "no reasonable prospect", be sufficiently, let alone completely, illuminated by drawing some contrast with what would be a "frivolous", "untenable", "groundless" or "faulty" claim.

[60]     Rather, full weight must be given to the expression as a whole. The Federal Court may exercise power under s 31A if, and only if, satisfied that there is "no reasonable prospect" of success…

9    The inquiry required under s 31A is “not an enquiry directed to whether a certain and concluded determination could be made that the proceeding would necessarily fail”: Spencer at [52].

10    The assessment of whether a proceeding has no reasonable prospects of success necessitates the making of value judgments in the absence of a full and complete factual matrix and argument, with the result that the provision vests a discretion in the Court: Kowalski v MMAL Staff Superannuation Fund Pty Ltd [2009] FCAFC 117; (2009) 178 FCR 401 at [28].

11    Rule 26.01 provides for circumstances in which a party can make an application to the Court for summary judgment which relevantly includes where the applicant has no reasonable prospects of successfully prosecuting the proceeding: r 26.01(a); where proceedings are vexatious or an abuse of process: r 26.01(b); and where no reasonable cause of action is disclosed: r 26.01(c).

Jurisdiction

12    In Rana v Google Inc [2017] FCAFC 156; (2017) 254 FCR 1 (Rana), the Court at [15]-[22] summarised the scope of federal jurisdiction. For present purposes, relevantly at [15]- [19], the Court observed:

Principles of federal jurisdiction and the jurisdiction of this Court

[15]    The jurisdiction exercised by the Federal Court is always federal jurisdiction: Re Wakim; Ex parte McNally (1999) 198 CLR 511. The content of that jurisdiction exercised by this Court is derived from ss 75 and 76 of the Constitution of the Commonwealth (the Constitution), and that jurisdiction is defined by laws that are authorised by s 77(i) of the Constitution. Section 19 of the Federal Court of Australia Act provides that the Federal Court “has such original jurisdiction as is vested in it by laws made by the Parliament”. Leaving to one side specific conferrals of jurisdiction on the Court by individual Acts of the Commonwealth Parliament, by s 39B(1A)(c) of the Judiciary Act 1903 (Cth), Parliament has conferred upon the Court a general federal civil jurisdiction, being “jurisdiction in any matter … arising under any laws made by the Parliament”.

[16]    Crucial to the scope and operation of federal jurisdiction, to the question whether a proceeding is within federal jurisdiction and to the question whether a proceeding is within the jurisdiction of this Court, is the concept of a “matter”. In Re Wakim, Gummow and Hayne JJ at [139]-[140] described a “matter”, and the process of its identification, as follows:

[139]    The central task is to identify the justiciable controversy. In civil proceedings that will ordinarily require close attention to the pleadings (if any) and to the factual basis of each claim.

[140]     In Fencott it was said that: “in the end, it is a matter of impression and of practical judgment whether a non-federal claim and a federal claim joined in a proceeding are within the scope of one controversy and thus within the ambit of a matter.” The references to “impression” and “practical judgment” cannot be understood, however, as stating a test that is to be applied. Considerations of impression and practical judgment are relevant because the question of jurisdiction usually arises before evidence is adduced and often before the pleadings are complete. Necessarily, then, the question will have to be decided on limited information. But the question is not at large. What is a single controversy “depends on what the parties have done, the relationships between or among them and the laws which attach rights or liabilities to their conduct and relationships”. There is but a single matter if different claims arise out of “common transactions and facts” or “a common substratum of facts”, notwithstanding that the facts upon which the claims depend “do not wholly coincide”. So, too, there is but one matter where different claims are so related that the determination of one is essential to the determination of the other, as, for example, in the case of third party proceedings or where there are alternative claims for the same damage and the determination of one will either render the other otiose or necessitate its determination. Conversely, claims which are “completely disparate”, “completely separate and distinct” or “distinct and unrelated” are not part of the same matter.

[17]    The “matter” is the justiciable controversy between the parties arising out of the substratum of facts and claims representing, or amounting to, the dispute or controversy between or amongst the parties. Where federal and non-federal claims comprise the same justiciable controversy, a court exercising federal jurisdiction will have jurisdiction to resolve the entire matter in the exercise of its federal jurisdiction. The non-federal part of the matter is sometimes referred to as “accrued jurisdiction” (as distinct from the associated jurisdiction provided for under s 32 of the Federal Court of Australia Act). It is better understood and expressed, however, as being part of the one matter. References to “accrued jurisdiction” need to be treated with caution or, indeed, to be avoided: see Rizeq v Western Australia (2017) 91 ALJR 707; 344 ALR 421 at [55] per Bell, Gageler, Keane, Nettle and Gordon JJ. (It should also be noted at this point that no issue concerning s 79 of the Judiciary Act arises in this case.)

[18]    A matter will “arise under” a law of the Parliament in a number of ways. These include cases where a cause of action is created by a Commonwealth statute; where a Commonwealth statute is relied upon as establishing a right to be vindicated; where a Commonwealth statute is the source of a defence that is asserted; where the subject matter of the controversy owes its existence to Commonwealth legislation — that is where the claim is in respect of or over a right which owes its existence to federal law; where it is necessary to decide whether a right or duty based on a Commonwealth statute exists even where that has not been pleaded by the parties, or where a federal issue is raised on the pleadings but it is unnecessary to decide: see generally R v Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett (1945) 70 CLR 141 at 154; Felton v Mulligan (1971) 124 CLR 367 at 374, 388, 403; Moorgate Tobacco Company Ltd v Philip Morris Ltd (1980) 145 CLR 457 at 476; LNC Industries Ltd v BMW (Australia) Ltd (1983) 151 CLR 575 at 581-582; Re McJannet; Ex parte Australian Workers’ Union of Employees (Qld) (No 2) (1997) 189 CLR 654 at 656-657; CGU Insurance Ltd v Blakeley (2016) 259 CLR 339; Australian Solar Mesh Sales Pty Ltd v Anderson (2000) 101 FCR 1 at 7-8. A matter may also exist prior to the commencement of formal proceedings and be federal in character at that point: Hooper v Kirella Pty Ltd (1999) 96 FCR 1 at [45]-[55]. There is a difference, however, between a matter “arising under” a law of the Parliament and a matter that merely involves the interpretation of a federal law (and which will not on its own attract federal jurisdiction): see Felton at 374, 408-409, 416.

[19]    The Court (French CJ, Kiefel, Bell and Keane JJ) said the following in CGU at [30]-[31] in discussing federal jurisdiction:

[30]    The justiciability requirement encompassed in the concept of “matter” appears in the description of that term by the majority in Fencott v Muller as “a justiciable controversy, identifiable independently of the proceedings which are brought for its determination and encompassing all claims made within the scope of the controversy”. It has an evaluative element as also appears from the majority judgment in Fencott:

What is and what is not part of the one controversy depends on what the parties have done, the relationships between or among them and the laws which attach rights or liabilities to their conduct and relationships. The scope of a controversy which constitutes a matter is not ascertained merely by reference to the proceedings which a party may institute, but may be illuminated by the conduct of those proceedings and especially by the pleadings in which the issues in controversy are defined and the claims for relief are set out.

The evaluative element is illustrated by, but not confined to, the delineation of the so called “accrued jurisdiction” to entertain non-federal claims in federal jurisdiction, by their Honours’ observation that it is:

a matter of impression and of practical judgment whether a non-federal claim and a federal claim joined in a proceeding are within the scope of one controversy and thus within the ambit of a matter.

[31]    The existence of jurisdiction is anterior to the existence of the power to grant particular relief. As Gleeson CJ and McHugh J said in MIMIA v B:

In a legal context the primary meaning of jurisdiction is “authority to decide”. It is to be distinguished from the powers that a court may use in the exercise of its jurisdiction

(footnotes omitted)

The distinction has been made frequently in this court.

13    For a discussion of this Court’s jurisdiction in the context of defamation see, Oliver v Nine Network Australia Pty Ltd [2019] FCA 583 at [6]-[18].

Submissions

14    In summary, the respondents submitted that even if the allegations of fact made by the applicant are taken at their highest, he has no reasonable prospect of successfully prosecuting the proceedings; the proceedings are frivolous or vexatious; no reasonable cause of action is disclosed; or the proceedings are an abuse of the process of the Court.

15    It was submitted that this was so because:

(1)    the applicant makes an impermissible collateral attack on his conviction by a jury of the Supreme Court of Victoria; and/or

(2)    in relation to Mr Gibson QC and his conduct and statements made in the course of prosecuting the charge for which the applicant was convicted:

(a)    Mr Gibson QC has a defence of absolute privilege at common law and under s 27(2) of the Defamation Act 2005 (Vic) (Defamation Act);

(b)    Mr Gibson QC has the benefit of advocates’ immunity; and

(c)    pursuant to s 46 of the Public Prosecutions Act, Mr Gibson QC (in his capacity as Crown Prosecutor) and the Director or Public Prosecutions (the DPP) would be immune from liability for conduct done in good faith and pursuant to their statutory powers, functions and duties.

16    In the alternative, the respondents submit that this Court lacks jurisdiction to hear and determine the originating applications. Although this Court may exercise original jurisdiction in the “matters” that it is authorised by statute to hear, including matters “arising under” Commonwealth law: s 39B(1A)(c) of the Judiciary Act 1903 (Cth), this Court lacks jurisdiction in matters arising purely under State law, which it contended this is.

17    The applicant opposed the applications and submitted that he was not making an attack on the justice system, but on the respondents for their conduct of his trial. He submitted the allegations were baseless and defamatory of him, and the defamatory statements were used to sway the jury. The applicant alleged that the “DPP had come to an arrangement with my legal team, not to say anything about the baseless allegations, or question Mr Gibson why he made the baseless allegation, or ask for proof of that allegation, my legal team, did not say anything to the court”.

18    The applicant gave examples of the allegations he relies on. He referred to there being a conspiracy between his legal team and the DPP. The acts carried out by Mr Gibson QC and his team at the Office of Public Prosecutions (OPP), were supported and sanctioned by the Director “because they are the gate keeper of the DPP, and should know that they are responsible for what happens in the Department of the Public Prosecution”, and the “buck stops with the Director”. The applicant submitted that the respondents did not obey the rules that bind a prosecutor. He submitted that the respondents are “pulling out all the rules like Immunity, rules and acts that allowed Mr Gibson and the DPP to break these laws, when these laws state they can be only implemented if Mr Gibson and the DPP had operated within these rules” and the respondents know they cannot justify immunity because “Mr Gibson and his team went outside the rules and as an officer of the Court and this cannot be tolerated by the justice system, because it opens the door for every other prosecuting barrister to do the same thing”.

19    As to jurisdiction, the applicant submitted this Court has authority to deal with this case as I have made orders for the conduct of this hearing, which would not have occurred if there was no jurisdiction.

Consideration

20    Although the respondents press summary dismissal as its prime remedy, it is appropriate to first address the issue of jurisdiction.

Jurisdiction

21    The respondents’ submission must be accepted.

22    As the defamatory conduct which is alleged to have occurred relates to statements and omissions by a Victorian Senior Crown Prosecutor (a statutory appointment under s 31 of the Public Prosecutions Act), in a Victorian courtroom in the conduct of the prosecution of an offence contrary to Victorian state law, there appears to be no basis demonstrated which could found the jurisdiction of this Court. This is a state matter. The defamation claims arise under the common law, as modified by the Defamation Act in force in Victoria, and not under any Commonwealth law. To the same effect, any claim that the DPP was negligent for an alleged failure to supervise Mr Gibson QC in the discharge of his functions, would also arise under State law, more precisely, the common law as modified by the Wrongs Act 1958 (Vic). As the present proceedings do not involve any federal claim, this Court also has no accrued or associated jurisdiction to determine the originating applications.

23    For completeness, the applicant’s submission that as the Court made orders in respect to the preparation of the respondents’ interlocutory application it therefore has jurisdiction, is misplaced. The respondents raised, inter alia, the issue of jurisdiction at this early stage of the proceeding. The Court made orders to facilitate submissions on that issue in order to determine whether it did or did not have jurisdiction. The making of those orders does not, in itself mean that the Court has, or considers that it has, jurisdiction to determine the matter.

Summary dismissal

24    Although not strictly necessary to consider, in my view, even if I had concluded that there was jurisdiction, for the reasons advanced by the respondents, this is a matter which would be summarily dismissed.

25    First, underpinning the applicant’s submission is the assertion that the statements made by Mr Gibson QC when prosecuting the charge against him, swayed the jury to convict him of a crime he says he did not do. The originating applications challenge, in civil proceedings, the conviction entered against him, and do so in a context where he has unsuccessfully challenged his conviction through the criminal processes. He has exhausted his options through the criminal process. As the respondents correctly submitted, these proceeding, properly considered are a collateral challenge to the criminal conviction. That the applicant submitted that he accepts this proceeding cannot overturn his conviction, does not detract from that proposition. He is seeking compensation of $5,000,000 in respect to each claim, which he contends includes losses due to his incarceration. There is no question that he is alleging he was incorrectly convicted of the offence for which he is currently serving a sentence.

26    Prima face, such proceedings are an abuse of process, and ordinarily would be summarily dismissed: Arthur J S Hall & Co (a Firm) v Simons [2002] 1 AC 615 (Arthur J S Hall) at 679-680 per Lord Steyn, at 753 per Lord Millett. As observed by Mason CJ in Giannarelli v Wraith [1988] HCA 52; (1988) 165 CLR 543 (Giannarelli) at 558, the impact of a successful collateral challenge “would be destructive of public confidence in the administration of justice”: and see Arthur J S Hall at 684-685 per Lord Browne-Wilkson. This is because there may be two conflicting decisions from proceedings, which would have been conducted under different circumstances: Giannarelli at 588; Arthur J S Hall at 684-685 per Lord Browne-Wilkson, and at 706 per Lord Hoffman. Moreover, as Lord Morris observed in Rondel v Worsley [1969] 1 AC 191 at 250-251:

…it would not be in the public interest to permit a sort of unseemly excrescence upon the legal system whereby someone who has been convicted and has, without success, exhausted all the procedures for appeal open to him should seek to establish his innocence (and get damages) by asserting that he would not have been convicted at all but for the fact his advocate failed to exercise due care and skill.

27    The same must equally apply to prosecuting counsel. I note that although prosecuting counsel is the subject of these proceedings, the applicant alleges that there was a conspiracy between the prosecutors and his lawyers. In the circumstances, this appears to be an attempt to overcome the fact his lawyers did not make the allegations now made by him, and no complaint was raised in the appeal process.

28    There is a statutory scheme for criminal appeals from convictions of criminal offences in Victoria, as there is throughout Australia. Allowing such collateral challenges to a criminal conviction from a jury verdict would have the “end result is that the civil action is converted into a de facto avenue of appeal outside the carefully constructed statutory framework of criminal appeals”: Giannarelli at 574 per Wilson J.  In that context, it is against the public interest for civil actions to become de facto criminal appeals. Thus, there is long standing policy of the common law against allowing the re-trial of criminal cases by collateral means. 

29    There is an undoubted and well recognised public interest in the finality of judicial decisions: see for example: D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; (2005) 223 CLR 1 (D'Orta-Ekenaike) at [34].

30    Second, in any event, and aligned with the issue of finality, the respondents could plainly avail themselves of defences and immunities. The three bases identified by the respondents apply.

31    The statements made by Mr Gibson QC were made in the course of conducting the prosecution of the applicant in the Victorian Supreme Court, and therefore constitute matters published on an occasion of absolute privilege, such that no action in defamation may be brought in respect of the statements: s 27(2)(b) of the Defamation Act; Clyne v Bar Association (NSW) [1960] HCA 40; (1960) 104 CLR 186 at 200.

32    Mr Gibson QC's statements would also attract advocates immunity: see for example Giannarelli at 558.

33    In D'Orta-Ekenaike at [37]-[38] Gleeson CJ, Gummow, Hayne and Heydon JJ observed:

Parties who fail in litigation, whatever its subject, may well consider the result of that litigation to be wrong, even unjust. Seldom will a party have contested litigation without believing, or at least hoping, that it will be resolved in that party's favour. If that party does not succeed, an explanation for failure may be sought in what are perceived to be the failures of others - the judge, the witnesses, advocates - anyone other than the party whose case has been rejected.

This is no new phenomenon. It is a problem with which the common law has had to grapple for centuries. Its response has been the development of immunities from suit for witnesses, judges and advocates.

34    The immunity applies in respect to allegations of defamation. For example, in D'Orta-Ekenaike McHugh J observed at [192]:

Collateral attack and re-litigation are not the only bases for maintaining the advocates' immunity. The immunity of other participants in legal proceedings - the judge, jurors and witnesses - rests on the necessity that those who participate in the administration of justice should not be hampered in the discharge of their duties by fear of litigation concerning what they say and do. The administration of justice demands fearless and independent advocates who are not hampered in the discharge of their role by the need to consider whether their conduct might be actionable. The advocates' immunity from a suit for defamation in part rests on this basis.

35    That such immunity applies in respect to allegations of defamation is also apparent from the reasons of Kirby J at [286].

36    Also in this regard, in Giannarelli Mason CJ said at 577:

…the exception in favour of counsel is in conformity with the privilege which the law has always conferred in the interests of public policy on those engaged in the administration of justice, whether as judge, juror, witness, party counsel or solicitor, in respect of what they say in court: Cabassi v Vila (31); Munster v Lamb (32).

The foundation for that principle is the perception that great mischief would result if those engaged in the administration of justice were not at liberty to speak freely. The immunity is not confined to actions for defamation. As McTiernan J noted in Cabassi (at 144) with reference to the rule in its application to witnesses:

It is a rule of law that no civil action lies at the suit of any person for any statement made by a witness in the course of giving evidence in a judicial proceeding. The rule, which is founded on public policy, is not confined to actions for defamation but applies to any form of action.……

37    The applicant’s submission that Mr Gibson QC cannot claim advocates immunity or absolute privilege because he was not his advocate, but was his adversary, misunderstands the nature of the privilege. Contrary to the submission put by the applicant, simply because he makes the allegation of the defamatory conduct, it does not deprive the respondents of those defences.

38    In that context it is unnecessary to consider the scope of s 46 of the Public Prosecutions Act.

Conclusion

39    The application that the originating applications be set aside pursuant to r 13.01(1) of the FC Rules on the basis of lack of jurisdiction is granted. If I had not so concluded, the proceedings would have been summarily dismissed. The applicant is to pay the respondents’ costs to be agreed or assessed.

Associate:

Dated:    14 September 2021