Beames v Justice Margaret Wilson & Anor [2010] QSC 441

SUPREME COURT OF QUEENSLAND CITATION: Beames v Justice Margaret Wilson & Anor [2010] QSC 441 PARTIES: DOUGLAS MACLEOD BEAMES (respondent/plaintiff) v JUSTICE MARGARET WILSON (first applicant/first defendant) and STATE OF QUEENSLAND (second applicant/second defendant) FILE NO/S: 1557/2010 DIVISION: Trial PROCEEDING: Amended Application filed by leave on 11 November 2010 (first applicant/first defendant) Application filed 26 October 2010 (second applicant/second defendant) ORIGINATING COURT: Brisbane DELIVERED ON: 26 November 2010 DELIVERED AT: Brisbane HEARING DATE: 11 November 2010 JUDGE: Byrne SJA ORDERS: On the first defendant’s application, the Court orders that: 1. The plaintiff’s proceeding (“the proceeding”) commenced by Claim and Statement of Claim filed on 16 February 2010 is, so far as it relates to the first defendant, dismissed. 2. The plaintiff pay the first defendant’s costs of and incidental to the proceeding, including those of the amended application filed by leave on 11 November 2010, to be assessed. On the second defendant’s application, the Court orders that: 1. The plaintiff’s proceeding (“the proceeding”) commenced by Claim and Statement of -- 1 of 10 -- 2 Claim filed on 16 February 2010 is, so far as it relates to the second defendant, dismissed. 2. The plaintiff pay the second defendant’s costs of and incidental to the proceeding, including those of the application filed on 26 October 2010, to be assessed. CATCHWORDS: PROCEDURE – COURTS AND JUDGES GENERALLY – JUDGES – Immunity from proceedings – where plaintiff made various allegations against a Judge of the Supreme Court of Queensland – where proceeding had no prospect of success – Claim dismissed. PROCEDURE – QUEENSLAND – JURISDICTION AND GENERALLY – Abuse of process – where plaintiff had commenced an action by claim in 1999 in respect of real property – where new claims were substantially the same – whether present proceedings were an abuse of process. HIGH COURT AND FEDERAL COURT – THE FEDERAL JUDICATURE – PROCEEDINGS BY AND AGAINST THE COMMONWEALTH – Other matters – where plaintiff intended to deliver notices pursuant to the Judiciary Act 1903, s 78B – where plaintiff alleged the Supreme Court of Queensland was not validly constituted – whether s 78B engaged. Judiciary Act 1903 (Cth), s 78B Uniform Civil Procedure Rules 1999 (Qld), r 293, r 389, r 667 Beames v State of Queensland [2010] QSC 4, cited Daniels v Deputy Commissioner of Taxation [2007] SASC 431, followed Fingleton v The Queen (2005) 227 CLR 166, considered State of Queensland v Beames [2002] QCA 209, cited State of Queensland v Beames [2003] QSC 399, cited Walton v Gardiner (1993) 177 CLR 378, considered COUNSEL: The plaintiff appeared on his own behalf R J Anderson for the first defendant D D Keane for the second defendant SOLICITORS: Crown Law, Queensland for the first and second defendants -- 2 of 10 -- 3 Originating Application dismissed [1] On 19 January, Margaret Wilson J dismissed Mr Beames’s originating application1 No. 12359 of 2009 against the State of Queensland seeking relief in respect of land that he had once owned. New Claim [2] Although Mr Beames did not appeal, on 16 February, during the time within which an appeal might have been brought, he filed a Claim, and accompanying Statement of Claim, against the Judge and the State. [3] Against the Judge, who is the first defendant, Mr Beames seeks a declaration that the “judgment” of 19 January is a nullity; that it “be stricken from the Court record”; and that his dismissed application be “enlivened”. Judge’s summary judgment application [4] The Judge seeks summary judgment dismissing the new proceeding so far as it relates to her, contending that it has no real prospect of success and that there is no need for a trial.2 [5] Mr Beames’s Statement of Claim pleads: “1. By the application of s 19 of the Crown Proceedings Act 1980, the First Defendant merged the “State of Queensland” with the “Crown” in the judgment delivered by the First Defendant in proceeding SC No. 12359 of 2009 Douglas Macleod Beames (applicant) v. The State of Queensland (respondent) in this Court on 19 January 2010 (“the judgment”). 2. The consequences of that merger in the judgment and its delivery by the First Defendant are: (i) The formation and crystallisation of a seditious intention within the meaning of s 44 of the Criminal Code Act 1899 (Queensland) by the First Defendant without lawful excuse or in particular; within the meaning of s 45 of the Criminal Code Act 1899 (Queensland); (ii) The undertaking of a seditious enterprise within the meaning of s 46 of the Criminal Code Act 1899 (Queensland) by the seditious writing and publication of the judgment; (iii) The First Defendant is guilty of a misdemeanour under ss 52 (1)(a) and (b) of the Criminal Code Act 1899 (Queensland). 1 Beames v State of Queensland [2010] QSC 4. 2 See UCPR 293. Judicial immunity from suit was not invoked as a reason for dismissing the Claim, although there is no reason for supposing that the Judge might be amenable to the process: Fingleton v The Queen (2005) 227 CLR 166, 185-187, [36]-[41]. -- 3 of 10 -- 4 3. As a judicial officer, the First Defendant may not be criminally responsible for the misdemeanour referred to in subparagraph 2(iii) of this Statement of Claim, however, the First Defendant’s carriage of this misdemeanour renders the judgment nugatory and disqualifies the First Defendant from any further sitting in this Court.” [6] These assertions, it seems, relate to a point dealt with in her Honour’s reasons in this way: “Finally, Mr Beames questioned the authority of the Crown Solicitor to represent the State in this application. He brought the application against the State of Queensland as respondent. The Crown Solicitor is the solicitor for the Crown in right of the State of Queensland. Under s 19 of the Crown Proceedings Act 1980 documents required to be served on the Crown are to be served on the Crown Solicitor. The Crown Solicitor is the head of the Crown Law Office, which is funded by the fees paid for its legal services by “clients” comprised only of Queensland Government departments, agencies and instrumentalities. The point sought to be taken by is Mr Beames is without foundation.” [7] Mr Beames’s contention about merger of State and Crown is not easy to grasp. But whatever he may be wishing to convey, the Judge has not purported to merge anything or anyone. [8] Moreover, his proposition that the Judge formed the seditious intention or engaged in the seditious enterprise asserted is absurd. This conclusion makes it unnecessary to consider other grounds upon which it might have been held that the Claim against the Judge is hopeless. [9] The proceeding against the Judge has no prospect of success. Nor is there otherwise a reason for a trial of the allegations against her Honour. [10] There must be summary judgment dismissing the Claim so far as it relates to the Judge. State’s summary judgment application [11] The allegations Mr Beames makes against the State in his Statement of Claim are: “4. In the course of case managed proceeding S7742 of 1999 the State of Queensland v. Douglas Macleod Beames, the Plaintiff in that proceeding (the Second Defendant in this proceeding) brought an application (Citation: State of Queensland v. Beames [2003] QSC 399). The application came before Justice P McMurdo on 26 September 2003 and His Honour’s judgment was delivered on 21 November 2003. -- 4 of 10 -- 5 5. By the application referred to in paragraph 4 of this Statement of Claim, the applicant (the State of Queensland), inter-alia; sought access to the defendant’s (Beames) land in East Brisbane, bounded by Norman Creek (Lot 29 on RP 12574, County of Stanley, Parish of Bulimba - “Lot 29”). The access sought was to enable the Plaintiff’s experts to enter Lot 29 and gather the expert evidence required to discredit the accuracy of the registered plan of resurvey (a resurvey of Lot 29) No. 905522 and thereby prove the Plaintiff’s claim (as finally amended) in the case managed proceeding S7742 of 1999 referred to in paragraph 4 of this Statement of Claim. 6. In particular, the Court ordered that: (a) A surveyor engaged by the plaintiff as an expert, and any professional colleague or assistant of his or hers, be granted such access to Lot 29 as is needed for the purposes of carrying out surveys of the land, observing trenching works and preparing an expert report in relation to these proceedings; (b) Any survey pegs placed on Lot 29 by the surveyor not be removed by either party until completion of these proceedings; (c) if required, the surveyor engaged by the plaintiff may insert tank screws into the concrete on the perimeter of the house foundation is located on Lot 29. These may not be removed by either party until completion of these proceedings; (d) A botanist engaged by the plaintiff as an expert be granted such access to Lot 29 as is needed for the purposes of determining changes in vegetation on the land and delineating the areas of marine influence, observing trenching works and preparing an expert report in relation to these proceedings; (e) A geotechnical engineer engaged by the plaintiff as an expert, and any professional colleague or assistant of his or hers, be granted such access to Lot 29 as is needed for the purposes of determining how access will be gained to Lot 29, where trenches will be dug and carrying out trenching works and preparing an expert report in relation to these proceedings; (f) The boundary fence of Lot 29 may be removed if necessary to gain access to Lot 29. If this is done, the plaintiff is to reinstate the fence to the condition it was in immediately before the access point was made as soon as reasonably possible after the trenching work has been completed; and (g) The plaintiff is to give the defendant 24 hours written notice prior to anyone accessing Lot 29 in accordance with this order. -- 5 of 10 -- 6 7. The plaintiff’s claim in proceeding S7742 of 1999 referred to in paragraph 4 of this Statement of Claim is and remains bogus for these reasons: (i) The State of Queensland is not the Crown Solicitor (including the State Law Office); the Registrar of Titles; or a registered proprietor or registered owner within the meaning of the Land Title Act 1994. The making of the claim (S7742 of 1999) is beyond the power of the State of Queensland (in any of its forms) because of the indefeasibility provision in ss184 (1) of the Land Title Act 1994; (ii) The State of Queensland claim that it is the owner of land is unlawful because it makes such claim against an express and subsisting reservation of minerals in the Crown in the physical sense of the meaning of the word “land”; and, in the conceptual sense, it makes such a contrary claim (by morphing as opposed to legal acquisition or divestiture from the Crown) when all land is owned by or vested in the Crown; (iii) The Crown is not the State of Queensland and the attempted merger and/or substitution of the “State of Queensland” for the “Crown” without a referendum; any other lawful means; or, any lawful excuse is an act of sedition punishable at law; (iv) On 16 July 2004, the Registrar of Titles recorded the registration of a conveyance or transfer of Lot 29 to Austin Ward and Angela Topatig whilst at all material times: (a) Knowing that the fundamental claim by the State of Queensland in proceeding S7742 of 1999 is that the plan of resurvey of Lot 29, namely; registered plan No. 905522 is inaccurate because of its wrongful inclusion of land owned by the State of Queensland within Lot 29; (b) Knowing that the Plaintiff’s experts had not gathered the expert evidence required to discredit the accuracy of the registered plan of resurvey (a resurvey of Lot 29) No. 905522 and thereby prove the Plaintiff’s claim (as finally amended) in the case managed proceeding S7742 of 1999 referred to in paragraph 4 of this Statement of Claim; and, (c) Knowing that the plan of resurvey of Lot 29 (registered plan No. 905522) had not been altered or corrected so as not to include an area of alienated Crown land within Lot 29 subsequent to its registration in the freehold land register or since the commencement of proceeding S7742 of 1999 referred to in paragraph 4 of this Statement of Claim. -- 6 of 10 -- 7 8. This bogus claim and the countenancing of this bogus claim has been made and undertaken for no purpose other than: (1) To deny Natural Justice to Douglas Macleod Beames in his capacity as first defendant and counterclaimant in proceeding S7742 of 1999, and, as applicant in proceeding SC No 12359 of 2009 in this Court; (2) To conceal the act of sedition and the acts of official corruption facilitating the act of sedition in an attempt to convert the present monarchical systems of the government in Australia to republican forms of government by stealth and contrary to the wishes of the public as affirmed by the most recent Australian Republic Referendum; and, (3) To conceal the calculated destruction of the indefeasibility of title created under the Land Title Act 1994 and the consequential rendering of the value of freehold land in the State of Queensland registered under the Land Title Act 1994 as fictional. 9. In addition to the orders referred to in paragraph 7 of this Statement of Claim, the Court ordered that: (i) The plaintiff have leave to proceed against the defendant (Beames) pursuant to r 72 of the UCPR; (ii) Raj Khatri and Morgan Lane (as trustees of Douglas Macleod Beames) be added as defendants; (iii) The plaintiffs application to strike out the counterclaim is dismissed; (iv) The costs of this application be reserved; and (v) Liberty to apply. 10. As a consequence of those additional orders referred to in paragraph 9 of this Statement of Claim, Douglas Macleod Beames, the Plaintiff in this proceeding is not caught or fettered: Under s 60 of the Bankruptcy Act 1966 (Cth) because Douglas Macleod Beames did not commence any action subsequent to his bankruptcy. The counterclaim in the proceeding S7742 of 1999 aforesaid is the inverse of his defence in the proceeding and a defence is not an action within the meaning of s 60 of the Bankruptcy Act 1966; Under r 72 of the Uniform Civil Procedure Rules 1999 (Queensland) – (“UCPR”) because the action underlying the counterclaim in proceeding S7742 of 1999 aforesaid is the defence of that proceeding. A defence (inverse or otherwise) does not vest in Raj Khatri and Morgan Lane (as trustees of Douglas Macleod Beames – “the trustee”). Consequently, Douglas Macleod Beames is not required to obtain the leave of the court to proceed with his defence. Instead, the trustee is added as a second defendant under r 72 of the UCPR; Under r 389 of the UCPR because no final order bringing an end to the proceeding S7742 of 1999 has been made. The -- 7 of 10 -- 8 making of an application for a final order such as a judgment in default of pleading (including failure to prosecute) is not taken to be a step for the purposes of this rule 389 (vide rr 389(3) of the UCPR). The entitlement to judgments in favour of Douglas Macleod Beames on the claim and the counterclaim arises out of the illegality and/or impropriety of the plaintiff’s claim; the fact that the plaintiff has not availed itself of any direction given by Justice P McMurdo (vide paragraph 6 of this Statement of Claim); the plaintiff has not been able to prove its claim or dismiss the counterclaims; and the plaintiff has not prosecuted its claim within the time period required for a case on the supervised list or at all.” Alternative claims against the State [12] The object of those contentions is to obtain “default judgment” in Mr Beames’s favour on the dismissed application or else another “default judgment” on the State’s claim against him, and on his counterclaim, in proceedings the State brought against him about eleven years ago. Summary judgment in respect of the dismissed application? [13] Those extracts from Mr Beames’s pleading contain all the material facts he relies on in support of the claim against the State for a judgment contrary to that pronounced by the Judge in dismissing Mr Beames’s originating application. [14] Having regard to those allegations, the relief Mr Beames seeks is not supported by reference to any thing that could, by any possibility, afford a ground for setting aside the Judge’s orders3 let alone also granting him, as he seeks, “default judgment in … proceeding SC No 12359 of 2009”. [15] As the claim to that default judgment is inevitably foredoomed to fail, it should be summarily dismissed pursuant to UCPR 293. 4 The 1999 proceeding [16] The claim to default judgments in Mr Beames’s favour in proceeding S7742 of 1999 requires brief reference to the course of those proceedings.5 [17] In proceeding S7742 of 1999, the State sought against Mr Beames declaratory relief concerning land adjoining Norman Creek. Questions arose concerning title to land. Mr Beames sought summary judgment. At first instance, and on appeal, he lost. Then he became bankrupt. 3 See, just as examples, UCPR 667. 4 This part of the Claim is no more than an attempt to re-litigate issues determined by the Judge in arriving at orders disposing of the originating application and is, therefore, an abuse of process: Walton v Gardiner (1993) 177 CLR 378, 392-393. But it is unnecessary to consider the remedy of a stay as there will be summary judgment dismissing this part of the new proceeding. 5 The details are recorded elsewhere: State of Queensland v Beames [2002] QCA 209; State of Queensland v Beames [2003] QSC 399; and Beames v State of Queensland [2010] QSC 4. -- 8 of 10 -- 9 [18] In November 2003, P McMurdo J granted the State leave to proceed against Mr Beames, added his trustees in bankruptcy as defendants and dismissed the State’s application to strike out Mr Beames’s counterclaim. [19] In 2004, the land the subject of the litigation was sold. Thereafter, the proceeding lay dormant. So Mr Beames may, it seems, require leave to proceed in respect of his counterclaim.6 [20] It is not easy to understand the points Mr Beames is trying to make. But the prayer for relief indicates that he is propounding essentially the same claims in respect of real property in the 1999 proceeding as in his latest Claim. [21] No justification is advanced for the prima facie vexatious course of concurrently pursuing the same claims by separate proceedings. And as Mr Beames has not indicated an intention to discontinue either proceeding, the present Claim, so far as it relates to the 1999 proceeding, is an abuse of the Court’s process. [22] More to the point so far as a defendant’s application under UCPR 293 for summary judgment is concerned, the facts pleaded do not state an arguable basis for granting the relief Mr Beames seeks. [23] As there is no prospect that the new claim to a “default judgment” in the 1999 proceedings might succeed, and there is otherwise no reason for a trial, the appropriate remedy is to dismiss the entirety of the Claim against the State. Section 78B Judiciary Act [24] Mr Beames contends that the applications by Judge and State should not be entertained because he intends to deliver notices pursuant to s 78B of the Judiciary Act 1903 asserting that “the Supreme Court of Queensland at Brisbane is not validly constituted for the purpose of the continuation of the proceeding before it.” The alleged invalidity is, Mr Beames says, “particularised” in an “election petition”. [25] Although the “petition” uses words and phrases that, in isolation, are intelligible, considered as a whole, the document is an ill-assorted jumble of extracts from legislation and other sources. It is not a set of rational propositions logically constructed. The result is that the petition is, in a word, incomprehensible. Mr Beames, however, summarised what he claims to be its effect in this way: “On January 1, 2004, the Parliament of Western Australia, took the Crown out of Western Australia and thereby fractured the indissoluble union which constituted the Commonwealth of Australia under the Commonwealth of Australia Constitution Act 1900.” [26] And he maintains, as best I understand his position, that this Court cannot have survived that dissolution of the Commonwealth. [27] The petition does not mention, nor did Mr Beames identify, any arguable basis for supposing that the Commonwealth has been dissolved: still less that this Court, which does not owe its existence to the Federation, no longer exists. 6 See UCPR 389. It is unnecessary to express a concluded view on this question. -- 9 of 10 -- 10 [28] The mere fact that Mr Beames asserts that his Claim or issues arising on this application involve “a matter arising under the Constitution or involving its interpretation” does not make it so. [29] The proposition that the Court is invalid because the Commonwealth has been dissolved is preposterous. So s 78B is not engaged.7 Disposition On the first defendant’s application, the Court orders that: 1. The plaintiff’s proceeding (“the proceeding”) commenced by Claim and Statement of Claim filed on 16 February 2010 is, so far as it relates to the first defendant, dismissed. 2. The plaintiff pay the first defendant’s costs of and incidental to the proceeding, including those of the amended application filed by leave on 11 November 2010, to be assessed. On the second defendant’s application, the Court orders that: 1. The plaintiff’s proceeding (“the proceeding”) commenced by Claim and Statement of Claim filed on 16 February 2010 is, so far as it relates to the second defendant, dismissed. 2. The plaintiff pay the second defendant’s costs of and incidental to the proceeding, including those of the application filed on 26 October 2010, to be assessed. 7 See Daniels v Deputy Commissioner of Taxation [2007] SASC 431, [17]-[19]. -- 10 of 10 --