Whiting v Whiting & Anor [2014] QSC 187 (18 August 2014)

Last Updated: 18 August 2014

SUPREME COURT OF QUEENSLAND

[1] The plaintiff, Steven James Whiting, commenced proceedings in this court on 22 July 2014 by filing a claim and statement of claim. In the claim he described himself as "his Royal Higness, King of the Whiting Kingdom, Baron of the Whiting Region, King Steven 1 ATF Steven James Whiting". His claim was brought against the first defendant, Karen Elisha Whiting and the second defendant described as Bruchelle Pty Ltd ACN 126 289 469 t/a Colville Johnstone Family Lawyers ABN 22 126 289 469.

[2] In the claim he described his claim as "Compensation for damages caused by the actions of the defendants. Specifically restoration of my children to my care immediately."

[3] In the statement of claim he said his claim was made in reliance on the following facts:

"1. As described in my affidavit.

Transcript of proceedings in FEDERAL CIRCUIT COURT OF AUSTRALIA no BRC6180/2012."

[4] He then claimed the following relief:

"1. Immediate restoration of the children involved to the care of myself.

The court to compel the queensland police service and the public prosecutor as representatives of the crown to vigourously and thoroughly investigate the proceedings in the FEDERAL CIRCUIT COURT OF AUSTRALIA BRC6180/2012 with intent of criminal prosecution of the court officers involved in the matter if evidence of wrong doing is found. Restoration of 1000 old esk road to my estate with clear alloidal title. For the protection of law to be granted to both the children and myself. I.e The queen to remedy or abdicate as per coronation oath of her office. For Miss Elisha Whiting to be criminally prosecuted for her abuse of myself and the children."

[5] He elected trial by jury. He described himself as I have set out and then said that he was "A self-represented Applicant exhausting his last peaceful avenues, before declaration of war."

[6] Attached to the statement of claim was what was described as a "NOTICE UNDER RULE 150(3)" which was in the following form:

"The plaintiff claims:

1. Restoration of the children to his sole custody

Compliance with undertaking given to the federal circuit court of australia regarding transfer of ownership of trust and company to him. Restoration of 1000 Old esk Road, Taromeo, Qld, 4306 to my sole possession, without encumbrance or mortgage. 28, 736 troy ounces of gold 2 troy ounces of gold per day for interest; and

The proceeding ends if you pay those amounts before the time for filing your notice of intention to defend ends. If you are in default by not filing a notice of intention to defend within the time allowed, the plaintiff is entitled to claim additional costs of 10,000 troy ounces of gold, costs of entering judgment in default.

Supreme Court and District Court only.

This notice is to be included if the plaintiff's claim is for a debt or liquidated demand only."

[7] As the notation to the statement of claim shows, rule 150(3) of the Uniform Civil Procedure Rules 1999 (UCPR) applies when the plaintiff's claim is for a debt or liquidated demand only which does not apply to this claim as other relief is claimed.

[8] The plaintiff filed an affidavit with the claim and statement of claim essentially complaining about proceedings in the Federal Circuit Court of Australia involving custody of the children of his marriage with the first defendant and orders with regard to matrimonial property. The first defendant is the plaintiff's former wife. The second defendant is the corporate identity of the legal representatives of the first defendant in the proceedings in the Federal Magistrates Court under the Family Law Act 1975.

[9] On 29 July 2014 the defendants filed a conditional notice of intention to defend in which they disputed the jurisdiction of this court to entertain the plaintiff's claim against the defendants for the following reasons:

"1. The Claim discloses no cause of action within the jurisdiction of the Court; and

The Claim is scandalous; and The Claim is vexatious; and The Claim is an abuse of the process of the Court; and The Claim is otherwise embarrassing."

[10] On the same date the defendants filed an application in the following terms:

"1. That, pursuant to Rule 16 of the Uniform Civil Procedure Rules (Qld) 1999, the proceeding has not been properly started by reason that the Court lacks jurisdiction in respect to the relief sought by the Plaintiff.

Further and/or in the alternative:

That, pursuant to Rule 16 of the Uniform Civil Procedure Rules (Qld) 1999, the commencement of the proceeding by the plaintiff was an abuse of process and that the proceeding is set aside, or in the alternative, permanently stayed.

Further and/or in the alternative:

That pursuant to Rule 171(1) of the Uniform Civil Procedure Rules (Qld) 1999, that the Respondent/Plaintiff's Claim and Statement of Claim be struck out. That pursuant to Rule 171(2) of the Uniform Civil Procedure Rules (Qld) 1999, that the Respondent/Plaintiff pay to the First Applicant/Defendant and the Second Applicant/Defendant, costs of and incidental to this Application calculated on an indemnity basis, or in the alternative, that the Respondent/Plaintiff pay to the First Applicant/Defendant and the Second Applicant/Defendant costs on the standard basis."

[11] The application was accompanied by an affidavit by the managing partner of the second defendant who was engaged by the first defendant in family law proceedings against the plaintiff. That affidavit sets out the history of the matters between the plaintiff and the first defendant in the Federal Circuit Court of Australia (file number BRC 6180/2012) and annexed copies of affidavits filed and orders made in that matter. The annexed documents show that the Federal Circuit Court has made orders with regard to parental responsibility for the children of the marriage and the division of property and that on 25 July 2014 the Federal Circuit Court ordered the Registrar of that court to sign various documents to enable completion of the sale of the property at 1000 Old Esk Road, Blackbutt.

Striking out a claim and statement of claim

[12] Rule 16 of the UCPR provides:

"16 Setting aside originating process

The court may—

(a) declare that a proceeding for which an originating process has been issued has not, for want of jurisdiction, been properly started; or

(b) declare that an originating process has not been properly served; or

(c) set aside an order for service of an originating process; or

(d) set aside an order extending the period for service of an originating process; or

(e) set aside an originating process; or

(f) set aside service of an originating process; or

(g) stay a proceeding; or

(h) set aside or amend an order made under rule 127; or

(i) make another order the court considers appropriate."

[13] Rule 171 provides:

"171 Striking out pleadings

(1) This rule applies if a pleading or part of a pleading—

(a) discloses no reasonable cause of action or defence; or

(b) has a tendency to prejudice or delay the fair trial of the proceeding; or

(c) is unnecessary or scandalous; or

(d) is frivolous or vexatious; or

(e) is otherwise an abuse of the process of the court.

(2) The court, at any stage of the proceeding, may strike out all or part of the pleading and order the costs of the application to be paid by a party calculated on the indemnity basis.

(3) On the hearing of an application under subrule (2), the court is not limited to receiving evidence about the pleading."

[14] As I observed in Markan v Bar Association of Queensland[1] there is a distinction between striking out a claim and striking out a statement of claim. Striking out a claim is the end of the proceeding whereas the striking out of a statement of claim does not necessarily, by itself, put an end to the proceeding, except in a case where the claim has also been struck out or the plaintiff is refused leave to replead.[2]

[15] The case must be very clear to justify the summary intervention of the court to prevent a party from presenting its case for determination at trial. Those principles were set out by the High Court in Dey v Victoria Railways Commissioners.[3] Barwick CJ summarised the authorities with regard to summary dismissal in General Steel Industries Inc v Commissioner for Railways (NSW):[4]

"... these cases uniformly adhere to the view that the plaintiff ought not to be denied access to the customary tribunal which deals with actions of the kind he brings, unless his lack of a cause of action – if that be the ground on which the court is invited, as in this case, to exercise its powers of summary dismissal – is clearly demonstrated. The test to be applied has been variously expressed; 'so obviously untenable that it cannot possibly succeed'; 'manifestly groundless'; 'so manifestly faulty that it does not admit of argument'; 'discloses a case which the Court is satisfied cannot succeed'; 'under no possibility can there be a good cause of action'; 'be manifest that to allow them' (the pleadings) 'to stand would involve useless expense'."

[16] The defendants must demonstrate a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way.[5]

Exclusive jurisdiction under the Family Law Act

[17] Paragraph 1 of the relief claimed is for immediate restoration of the children of the marriage to the plaintiff's care. Paragraph 3 seeks the restoration to the plaintiff of the title to a property which was the subject of contrary orders in the Federal Circuit Court. These matters are not within the jurisdiction of this court. The Federal Circuit Court was properly apprised of jurisdiction and that jurisdiction is exclusive to Federal courts and is not within the jurisdiction of a State court.

[18] Section 51 of Australia's Constitution sets out the legislative powers of the Commonwealth Parliament. They include in placitum (xxi), "Marriage" and in placitum (xxii) "divorce and matrimonial causes; and in relation thereto, parental rights, and the custody and guardianship of infants". Section 109 of the Constitution provides:

"When a law of a State is inconsistent with the law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid."

[19] Consistently with the constitutional powers of the Commonwealth, s 8 of the Family Law Act provides that after the commencement of the Family Law Act no proceedings by way of matrimonial cause can be instituted except under the Family Law Act. Matrimonial cause is defined in s 4 of the Family Law Act to include, inter alia, proceedings between the parties to a marriage with respect to the property of the parties to the marriage or either of them.

[20] Section 39(5) of the Family Law Act invested federal jurisdiction with regard to matrimonial causes in the Supreme Court of a State as well as the Family Court. Section 39(5A) invested the Federal Circuit Court with jurisdiction under the Family Law Act. However subsection 39(7) provides that the Governor General may by proclamation fix a day as the day on and after which proceedings in relation to matters arising under that part of the Family Law Act may not be instituted in, or transferred to, a court of summary jurisdiction in a specified State or Territory. Two such proclamations have been made. The first was made on 27 May 1976 and the second on 23 November 1983. Since then no matrimonial cause may be instituted in or transferred to the Supreme Court of Queensland.

[21] The effect of the Family Law Act and the proclamations made pursuant to it is that the Family Court and the Federal Circuit Court have exclusive jurisdiction to deal with matrimonial causes.

[22] The custody and guardianship of, and access to, children was referred to the exclusive jurisdiction of the Commonwealth by s 3 of the Commonwealth Powers (Family Law - Children) Act 1990. Under s 69H of the Family Law Act that jurisdiction was conferred upon the Family Court and the Federal Circuit Court of Australia.

[23] Accordingly, it can be seen that this court has no jurisdiction to hear proceedings relating to the custody and guardianship of, and access to, children. Nor does it have jurisdiction to deal with the property which has been the subject of orders in the Federal Circuit Court. This court has no jurisdiction to award compensation to any party disappointed by any such orders. In so far as the claim and the relief claimed refer to those matters they are not within the jurisdiction of this court.

Orders sought against the police and public prosecutor

[24] Paragraph 2 of the relief claimed seeks orders against the "queensland police service" and "the public prosecutor" as "representatives of the crown". No basis has or could be shown for the investigative or prosecuting authorities of this State to act in regard to proceedings in a federal court. Indeed the alleged offences raised by the applicant are found in Part III of the Crimes Act 1914 and are not within the purview of the State authorities. However, it is strictly unnecessary to decide this question as the relief seeks orders against persons who are not parties to the proceedings and are therefore not maintainable in this action.

[25] Paragraph 5 of the relief claimed seeks the criminal prosecution of the plaintiff's former wife. This presumes that the prosecuting authorities who are not parties to the action would be ordered by the court to take such a step. No basis has been shown that would enable the court to make such an order.

Call for the Queen to remedy or abdicate

[26] The plaintiff has failed to demonstrate any basis for this court to make any such orders against the monarch. It can be dismissed without further consideration.

Conclusion

[27] The claim is for "compensation for damages caused by the actions of the defendants. Specifically restoration of my children to my care immediately." For the reasons given, such a claim is not within the jurisdiction of this court. None of the relief sought in the statement of claim is capable of being granted in these proceedings. Both the claim and statement of claim are manifestly groundless and should be struck out.

Costs

[28] The defendants seek their costs on an indemnity basis. Given that the plaintiff makes extremely serious allegations against the defendants in a court without any apparent justification which are outside the jurisdiction of this court it is appropriate to order that the plaintiff pay the defendants’ costs of the proceedings on an indemnity basis pursuant to r 171(2) and r 703 of the UCPR.

[1] [2013] QSC 146 at [38]- [40]; upheld on appeal in Markan v Bar Association of Queensland [2013] QCA 379.

[2] Ronbar Enterprises Pty Ltd v Elliot Harvey Securities [2011] QSC 239 at 1-7 citing von Risefer v Permanent Trustee Company Limited [2005] QCA 109; [2005] 1 Qd R 681.

[3] (1949) 78 CLR 62 at 91. See also Hubbuck & Sons Ltd v Wilkinson, Heywood & Clark Ltd [1899] 1 QB 86 at 91; Davis v The Commonwealth of Australia [1986] HCA 66; (1986) 61 ALJR 32 at 35; Madden v Kirkegard Ellwood and Partners [1983] 1 Qd R 649 at 652; Stone v ACE-IRM Insurance Broking P/L [2003] QCA 218 at [5]; Barr Rock Pty Ltd v Blast Ice Creams Pty Ltd [2011] QCA 252 at [24]; Spencer v The Commonwealth [2010] HCA 28; (2010) 241 CLR 118 at [24].

[4] [1964] HCA 69; (1964) 112 CLR 125 at 129.

[5] Agar v Hyde [2001] HCA 41; (2000) 201 CLR 552 at [57]; Batistatos v Roads and Traffic Authority (NSW) [2006] HCA 27; (2006) 226 CLR 256 at [46]; Platinum United II Pty Ltd v Secured Mortgage Management Ltd (in liq) [2011] QCA 162 at [13].