[2022] QCA 123

COURT OF APPEAL

MULLINS P
MORRISON JA
BOND JA

Appeal No 6674 of 2022
SC No 13645 of 2021

MASHIACHIMMANUEL MIKHAEL
ERETZYISRAELDOVID	Appellant

v

QUEEN ELIZABETH II	First Respondent

STATE OF QUEENSLAND	Second Respondent

BRISBANE

TUESDAY, 12 JULY 2022

JUDGMENT

MORRISON JA:  On 12th November 2021, Mr Eretzyisraeldovid attempted to file an originating application, together with supporting materials, in the Supreme Court.  The putative respondent was named as Queen Elizabeth II.  The Registrar referred the matter to an applications judge.  On 15 November 2021, the applications judge directed the Registrar to refuse to accept the documents without the leave of the Court.  Mr Eretzyisraeldovid then sought leave to file the proceedings.  The matter came before the learned primary judge on 13 May 2022.  His Honour refused the application for leave to issue the proceedings.  Mr Eretzyisraeldovid appeals from that decision.
For reasons which will become clear, he was required to show cause why the appeal should not be struck out as an abuse of process.  The matter before the Court today is the show cause process.  The appellant’s contentions centre around these propositions:
a.	Directions were given by King George III to Captain James Cook in 1768.
b.	Those directions instructed Captain Cook as follows, “You are also, with the consent of the natives, to take possession of convenient situations in the country in the name of King George of Great Britain, or if the country is a country uninhabited, take possession for His Majesty by setting out proper marks and inscriptions as first discoverers and possessors.”;
c.	The instructions of King George III were, “You are also, with the consent of the natives, to take possession of convenient situations in the country in the name of the King of Great Britain, or if the country is a country uninhabited, take possession for His Majesty by setting out proper marks and inscriptions as first discoverers and possessors.”;
d.	Captain Cook would have followed those instructions and sought consent of the indigenous people before taking possession of their lands; and
e.	The instructions to Captain Cook and his acting on them constituted a contract between the Crown and the 500 indigenous groups then represented in mainland Australia.
The learned primary Judge looked at the nature of the claim if leave were granted to institute the proceedings.  His Honour articulated a number of reasons why leave to commence the proceedings should not be granted, including the following:
a.	The proceedings have not been served on Queen Elizabeth II.  That was complicated by the fact that the applicant did not seek relief against the Queen;
b.	The instructions from King George III to Captain Cook cannot constitute a contract between the Crown and the various indigenous tribes.  It was merely an instruction to Captain Cook.  There was no acceptance of those instructions as might be the case in a typical offer and acceptance situation;
c.	If there was such a contract, the applicant was never a party to it and had no authority to act for the various indigenous tribes that made up the 500 indigenous groups.  There was no evidence of the indigenous groups; there is no evidence of the indigenous groups listening and agreeing;
d.	Such terms as referred to were applicable to convey an interest in land to the applicant, but the contract to achieve that result was not signed; and
e.	The applicant seeks that land in Queensland be set aside for use in caring for disabled veterans or indigenous persons wrongly incarcerated.
The appellant advanced the same propositions before this Court as were advanced below.  He did this by way of written submissions which were highlighted in three ways to make clear the points being made and supported by oral submissions to address the written submissions.  Significantly, no attempt was made to demonstrate any error in the approach of the learned primary Judge to the exercise of his Honour’s discretion.  In my view, the appeal cannot succeed for a number of reasons.
First, no admissible evidence was advanced, either at first instance or before this Court, to substantiate the factual basis for the claim.  Secondly, even if there had been admissible evidence adduced, that evidence did not go so far as to establish that the instructions to Captain Cook gave rise to the alleged contract between the Crown and the various indigenous groups of people in Australia.  They were simply instructions to Captain Cook as to how he should conduct himself.  There is no suggested evidence of agreement to the acts carried out by Captain Cook by any indigenous group.  In fact, the applicant’s argument proceeds on the basis that consent was not sought or obtained prior to Captain Cook taking possession of indigenous lands in the name of the Crown.  Thus there is no evidence to establish an offer or acceptance, nor consideration, all requirements for a contract to be formed.
Thirdly, even if there could be said to be such a contract, it is not one enforceable by the appellant.  He was not a party to any such contract, and whatever acts might be said to have constituted a breach of it happened so long ago that they are well beyond any statute of limitations.  Nor is there any evidence that the appellant has authority to act on behalf of the purported beneficiaries of the intended proceedings.  Fourthly, the relief sought goes well beyond anything that the suggested contract might have permitted.  What is sought is an allocation of freehold land in the State of Queensland or an allocation of a national park in the State of Queensland, an entity which did not exist at the time of the suggested contract.  Nothing in the formulation of the suggested contract would lead to the conclusion that breach of it might result in the compulsory vesting of freehold title in a person (or entity) not a party to the contract.
Fourthly, the appellant has no standing, in the legal sense of that word, to bring such proceedings.  His interest in securing some beneficial outcome for indigenous people, however laudable, is no greater than that of any other member of the general public.  A requirement for standing demands a connection between the appellant’s interests and the relief sought.  There must be a personal connection with the dispute.  As was said by the High Court in Australian Conservation Foundation Inc v The Commonwealth (1980) 146 CLR 493 at 530 to 531:
“I would not deny that a person might have a special interest in the preservation of a particular environment.  However, an interest, for present purposes, does not mean a mere intellectual or emotional concern.  A person is not interested, within the meaning of the rule, unless he is likely to gain some advantage, other than the satisfaction of righting a wrong, upholding a principle or winning a contest, if his action succeeds or to suffer some disadvantage, other than a sense of grievance or a debt for costs, if his action fails.  A belief, however strongly felt, that the law generally, or a particular law, should be observed, or that conduct of a particular kind should be prevented, does not suffice to give its possessor locus standi.  If that were so, the rule requiring special interest would be meaningless.  Any plaintiff who felt strongly enough to bring an action could maintain it.”
The appellant does not fit in any of the categories recognised by those principles.
These obstacles, in my view, make it clear that the proceedings are an abuse of process, and the learned primary Judge was, respectfully, correct to refuse permission to proceed.  For the same reason, the appeal is an abuse of process.  For the reasons expressed, the appellant has not shown cause why his appeal should not be struck out as an abuse of process.  I propose the following order:  the appeal be struck out.
MULLINS P:  I agree.
BOND JA:  I agree.
MULLINS P:  The order of the Court is the appeal is struck out.  So I encourage you to pursue other avenues for achieving your commendable aims.
APPELLANT:  Am I able to – my – the solicitor that I spoke to, he said that – that he – he – he thought this would happen and – because of my lack of legal experience and – and unable to meet your requirements because of lack of information of the legal judiciary process.  But he said he would like to start the case from beginning – start again, so ‑ ‑ ‑
MULLINS P:  Well – well, you – you take whatever legal advice you can obtain.
APPELLANT:  Yes.
MULLINS P:  It is not for us to endorse any advice that you are given.  So we will adjourn the Court.  Thank you.
APPELLANT:  Can we – can I get a copy of the transcript judgment?
MULLINS P:  You can, by applying to the – the place in the Court that deals with orders for transcripts.
APPELLANT:  Okay.
MULLINS P:  All right.
APPELLANT:  Okay.  Thank you.