Coffey v. State of Queensland

[2008] QSC 287

[2008] QSC 287

SUPREME COURT OF QUEENSLAND
CIVIL JURISDICTION

JONES J

Application No 493 of 2007

JOHN LAWRENCE COFFEY	Applicant
and
THE STATE OF QUEENSLAND & OTHERS	Respondents
CAIRNS
..DATE 14/11/2008

14112008 D T(2)9/ADS(CNS) M/T CAIR01 (Jones J)

HIS HONOUR: By this application the applicant (plaintiff)	1
seeks the following orders: 1) the fixing of a trial date; 2) costs; 3) that I disqualify myself on the grounds of apprehended bias against him. Obviously, it is necessary for me to deal with the latter of those matters immediately.

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Whilst the dispute between the applicant and the respondent has a long history, it has only come before me on the hearing of applications on three prior occasions, being the 16th of May, 17th of July and 15th of August 2008. The applicant has

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also appeared before Justice Cullinane on the 6th of June
2008. On each occasion the applicant has appeared

unrepresented.

His present claim was commenced by notice of claim on

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31 October 2007. By it, the applicant seeks damages for
breach of statutory provisions of The Police Powers and
Responsibilities Act, damages for assault and battery, damages
for malicious prosecution in respect of his treatment by

police officers when taking from his person, samples to be

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used for analysis of his DNA. The applicant resisted these
procedures. The relevant incidents occurred on the 1st, 2nd

and 5th of March 2001.

The applicant's initial response was to make a complaint to

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the Crime & Misconduct Commission on 6 March 2001. The
approach did not result in any action being taken satisfactory
to the applicant.
14112008 D T(2)9/ADS(CNS) M/T CAIR01 (Jones J)

On 23 October 2004 the applicant served notice, pursuant to	1
the Personal Injuries Proceedings Act (PIPA), of an intention to claim damages for personal injury. On 3 December 2004 he filed in the Supreme Court of Cairns a notice of claim claiming damages for assault, (Number S9596 of 2004).

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After many conflicts concerning the pre-Court procedures for the PIPA claim, the Crown Law Office, acting for the respondents, agreed to this claims proceeding (Number S249 of 2007), but sought to have the claim struck out. An order to

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this effect was made by Justice Moynihan on 29 July 2005.

My first involvement in the case was on the 16th of May 2008 when the applicant applied to have a date fixed for the hearing of the action. This was opposed by the defendants,

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arguing that the applicant should not have on foot, two
separate actions arising from the same incident. The
application was adjourned to the 16th of June 2008 when it
came before Justice Cullinane and was again adjourned with

costs reserved.

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The next time the matter came before me was on the 7th of July 2008. In the meantime, in early July, 2008, a without prejudice settlement conference was held which had failed to resolve the dispute, but the defendant's offer was still open.

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The respondents indicated before me their intention to make an
application to have one or other of the two separate actions
commenced by the applicant dismissed as an abuse of process.
14112008 D T(2)9/ADS(CNS) M/T CAIR01 (Jones J)

To facilitate the earlier resolution of this issue I directed	1
the respondents to make their application by 1 August 2008. The only other occasion on which the matter came before me was the 15th of August 2008. On that day, the primary application was to strike out this claim, or in the alternative, the claim

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made under the PIPA regime. On this occasion I was informed
by the applicant from the Bar table that he would consent to
the withdrawal of the personal injury claim. This was
consistent with the terms of correspondence exhibited to the

affidavit of Angelica Fyffe, which was filed that day. The

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result was that the respondents would sign a request for trial
date once the PIPA claim had been withdrawn. The application
was thereupon adjourned to the registry to allow this process

to be completed.

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Thus, it is seen that I have not been called upon to make any conscious ruling in respect of the two applications that have come before me. I therefore reject any suggestion as made by the applicant of lending more weight to one side or the other. I reject also that I assisted the respondent in delaying

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tactics. The record shows to the contrary.

I have ensured that the respondent's written submissions have
been made available to Mr Coffey before I considered them.

Unfortunately, they often arrive only on the morning of

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hearing, but then the applicant does not have any address for
service which allows facsimile or e-mail transmission. But my
action could not be construed by any reasonable person to be
"pushing papers on behalf of the respondents". I gave
14112008 D T(2)9/ADS(CNS) M/T CAIR01 (Jones J)

directions concerning the signing and the return of the	1
documents intended to record the parties' consent in order to facilitate the progress of the action. I was not informed by either party of the number of the documents required, or their terms.

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The test for non-pecuniary bias is whether in the circumstances a fair minded observer and the public, including the parties, might entertain a reasonable apprehension of bias in the sense that a decision maker is incapable of bringing an

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impartial and unprejudiced mind to the resolution of the
issue.

Having regard to that test, I can find no basis for any suggestion of apprehended bias on my part. I therefore refuse

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to disqualify myself on those grounds.

Having said that, it is a fact that Chief Justice De Jersey
will be in Cairns in the week commencing the 17th of November

2008. I propose to adjourn the further consideration of the

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applications that have been made and any further applications
that might be made, to Friday, the 21st of November 2008 at 10
a.m. I'll reserve the question of costs. The matter is

adjourned, Mr Coffey.

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MS FYFFE: Thank you, your Honour. So-----
APPLICANT: Excuse me-----
HIS HONOUR: Just a moment, Ms Fyffe. Yes?
APPLICANT: Excuse me, your Honour, what was that date?
14112008 D T(2)9/ADS(CNS) M/T CAIR01 (Jones J)

HIS HONOUR: Next Friday.	1
APPLICANT: Next Friday? Okay.
HIS HONOUR: The - the 21st of November.
APPLICANT: Now, would it be possible for me to get a copy of their submissions?
HIS HONOUR: Yes.	10
APPLICANT: And - and the other-----
HIS HONOUR: Ms Fyffe - just a moment. Ms Fyffe, your submissions are quite - that you intended to put before the Court are quite voluminous. I propose to give the copy-----
MS FYFFE: The submissions are - are four pages, your Honour-----
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HIS HONOUR: Ah yes, it's the affidavit.
MS FYFFE: Yes, I was going to seek leave to file the affidavit.
HIS HONOUR: Have you served a copy of your affidavit on Mr-----
MS FYFFE: I haven't yet, your Honour, no.
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HIS HONOUR: When can that be done?
MS FYFFE: I'll be forwarding it to him today. It's - it's unfortunate he doesn’t have a fax that we can serve-----
HIS HONOUR: Right.
MS FYFFE: -----the material on him.
HIS HONOUR: Very well. Well, I'll give the copy of your	40
submissions that you've faxed to the Court to Mr Coffey now; you can fax a further copy to the Court.
MS FYFFE: Okay, thank you.
HIS HONOUR: Thank you. And would you also arrange to have Mr Coffey served with your affidavit.
MS FYFFE: I certainly will, thank you, your Honour.
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HIS HONOUR: What is your address for service, Mr Coffey?
APPLICANT: 17 Chaplain Avenue, Cairns, your Honour.
HIS HONOUR: Did you hear that?
MS FYFFE: Yes, I have the address for service, it's just unfortunate that I'm unable to send it by fax. 14112008 D T(2)9/ADS(CNS) M/T CAIR01 (Jones J)

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HIS HONOUR: Yes, but you - you should send it by express post if you will.
MS FYFFE: Yes, yes, it'll be sent today.
HIS HONOUR: Okay.

MS FYFFE: It was only sent today, your Honour.

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HIS HONOUR: Yes, thank you. All right.
APPLICANT: There's just one further matter, your Honour-----
HIS HONOUR: Just a moment. Yes? Yes, what's the further matter?
APPLICANT: Oh, just one further matter, your Honour, I
haven't got the submission of, I think it was the 16th of June

for Justice Cullinane and I understand that it's filed, but	20
it's not filed publicly and I wondered if you would allow the registry to give that to me?
HIS HONOUR: Can you give Mr Coffey a copy also of the submissions that you made before Justice Cullinane?
MS FYFFE: Oh, yes, I'll send those off tomorrow. HIS HONOUR: They'll be sent to you.
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APPLICANT: All right. HIS HONOUR: Yes, thank you.

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