Day v Humphrey

Case [2019] QSC 38

SUPREME COURT OF QUEENSLAND

CITATION:

Day v Humphrey & Ors [2019] QSC 38

PARTIES:

OLGA DAY
(plaintiff)
v
PROFESSOR JOHN HUMPHREY
(first defendant)
ASSOCIATE PROFESSOR TINA COCKBURN
(second defendant)
QUEENSLAND UNIVERSITY OF TECHNOLOGY
(third defendant)
WESLEY LERCH, Director of Queensland Compensation Lawyers Pty Ltd
(fourth defendant)
DAVID BRAY, Director of Queensland Compensation Lawyers Pty Ltd
(fifth defendant)
QUEENSLAND COMPENSATION LAWYERS PTY LTD (ACN 135 360 119)
(sixth defendant)     

FILE NO:

BS5774 of 2016

DIVISION:

Trial Division

PROCEEDING:

Recusal application

DELIVERED ON:

1 March 2019

DELIVERED AT:

Brisbane

HEARING DATE:

8 February 2019

JUDGE:

Mullins J

ORDER:

1.     Application for recusal of Mullins J refused.

2.     Direct that the parties apply to the Senior Judge Administrator to nominate a judge in lieu of Mullins J to be the supervising judge pursuant to Practice Direction No 10 of 2014 of this proceeding.

3.     Direct the parties file their written submissions on costs on or before 11 March 2019.

4.     Adjourn the question of the costs of the recusal application to be decided on the papers.

CATCHWORDS:

COURTS AND JUDGES – JUDGES – DISQUALIFICATION FOR INTEREST OR BIAS – REASONABLE APPREHENSION OF BIAS GENERALLY – where the plaintiff is a self-represented litigant in a proceeding managed by a judge on the Supervised Case List for cases involving self-represented litigants –– where the plaintiff applies for recusal of the supervising judge on the grounds of reasonable apprehension of bias – whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the supervision of the proceeding – where the supervising judge in the interests of justice for all the parties declines to continue as supervising judge 

Uniform Civil Procedure Rules 1999 (Qld), r 5

Day v Lerch [2018] QCA 224, related
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63, followed
Limbo v Little (1989) 65 NTR 19; [1989] NTCA 5, considered
Makucha  v Sydney Water Corporation [2011] NSWCA 234, considered
Mandie v Memart Nominees Pty Ltd [2017] VSCA 177, considered
Markan v Bar Association of Queensland [2014] 2 Qd R 273; [2014] QCA 34, considered  
Parbery v QNI Metals Pty Ltd [2018] QSC 213, considered
Rouvinetis v Knoll [2013] NSWCA 24, considered

COUNSEL:

O Day (in person) for the plaintiff

D J Schneidewin for the first, second and third defendants
K F Holyoak for the fourth, fifth and sixth defendants

SOLICITORS:

Barry Nilsson Lawyers for the first, second and third defendants
Queensland Compensation Lawyers for the fourth, fifth and sixth defendants

  1. Mrs Day is a self-represented plaintiff who was informed on 3 October 2018 that I directed this proceeding be entered on the Supervised Case List for cases involving self-represented litigants (SRL Supervised Case List) pursuant to paragraph 1.2 of the Supervised Case List Involving Self Represented Parties:  Civil Jurisdiction Brisbane (Practice Direction No 10 of 2014).

  2. This proceeding was commenced by claim and statement of claim filed on 13 June 2016 and…

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Details
AGLC
Day v Humphrey [2019] QSC 38
Case
[2019] QSC 38
Decision Date

CaseChat Overview and Summary

In the case of Day v Humphrey, the plaintiff, Mrs Day, sought the recusal of Mullins J, the supervising judge in the proceeding, on the grounds of a reasonable apprehension of bias. The matter was before the Queensland Civil and Administrative Tribunal. The court was tasked with determining whether a fair-minded lay observer might reasonably apprehend that Mullins J might not bring an impartial mind to the supervision of the proceeding. This was particularly pertinent given that Mrs Day was a self-represented litigant in a case managed under the Supervised Case List for self-represented litigants.

The primary legal issue before the court was whether Mullins J should recuse himself due to the assertions made by Mrs Day about his impartiality. The court considered Mrs Day's extensive submissions, which included numerous allegations about Mullins J's conduct and other matters that she believed compromised his impartiality. The court also examined whether Mullins J had failed to disclose relevant information that could have given rise to a reasonable apprehension of bias. Ultimately, Mullins J concluded that despite the numerous allegations, a fair-minded observer would not reasonably apprehend that he might not bring an impartial mind to the supervision of the case. The court found that the nature of the litigation itself, particularly when a party is self-represented, could lead to inappropriate comments that do not necessarily indicate a lack of impartiality.

Mullins J dismissed the application for his recusal, noting that the numerous allegations and complaints made by Mrs Day, while acknowledged, did not support a reasonable apprehension of bias. The court directed the parties to apply to the Senior Judge Administrator to nominate a judge in lieu of Mullins J to be the supervising judge. Additionally, the court ordered that written submissions on costs be filed by a specific date and that the costs of the recusal application be decided on the papers.

Orders

Orders of the court

1. Application for recusal of Mullins J refused.

2. Direct that the parties apply to the Senior Judge Administrator to nominate a judge in lieu of Mullins J to be the supervising judge pursuant to Practice Direction No 10 of 2014 of this proceeding.

3. Direct the parties file their written submissions on costs on or before 11 March 2019.

4. Adjourn the question of the costs of the recusal application to be decided on the papers.

Background

Background to the litigation

There is no conduct before or during the hearing on 8 February 2019 from which a fair-minded lay observer might reasonably apprehend that I might not bring an impartial mind to the supervision of the proceeding.Failing to disclose all relevant facts which could give rise to my disqualification It is apparent that Mrs Day’s view as to the nature of the information that should be disclosed by a judge that might be relevant to the test to be applied for reasonable apprehension of bias is not limited to information that is relevant to that question or information that might give rise to an issue of whether there is a reasonable apprehension of bias. In accordance with authority, I have declined to answer her questions seeking information from me that she considers is relevant to the recusal application. I have disclosed information about my associations with QUT, even though I did not consider the matters required disclosure. Mrs Day uses two examples of other judges of this Court who recused themselves and, in the case of one of the judges, who responded to a request for information on matters relevant to the grounds for recusal. How a judge should respond to a request for information may vary according to the nature of the interest or association or disqualifying matter that is relevant in the circumstances and the type of case or application. The examples that Mrs Day relies on are not determinative of what course I should have taken in response to her request for information and whether I should recuse myself. There is no failure on my part to disclose relevant information to Mrs Day for the recusal application. Effect on my impartiality of the assertions in Mrs Day’s submissions Mrs Day’s written submissions are 204 paragraphs in length and contain many assertions about my impartiality which I have addressed I these reasons. In the course of reflecting on Mrs Day’s submissions and her affidavit filed in support of the recusal application, it occurred to me that I should consider whether a fair-minded observer might conclude that the making of the numerous allegations about my conduct, and other matters which Mrs Day asserts compromise my capacity for impartiality might result in a reasonable apprehension that I lack the necessary impartiality to continue as the supervising judge in this proceeding. The starting point for the fair-minded observer is that a judge will adhere to his or her obligations in accordance with the judicial oath. As I have already observed, judges must be thick-skinned about parties’ comments made about them in the course of proceedings. This is particularly so in the case of a self-represented litigant where the litigant may be under pressure, as a result of the requirements of litigation. That is not to excuse a self-represented litigant in making inappropriate comments or assertions about a judge, but to recognise the effect of the litigation on the self-represented litigant. A fair-minded observer must expect a judge to be thick-skinned in considering allegations made by a party that could be characterised as suggesting the judge’s conduct falls short of the standard expected of the judge in accordance with the judicial oath or affirmation. It was patent to me from Mrs Day’s supporting affidavit that many of the matters raised by Mrs Day on the recusal application were likely to be irrelevant. Despite the litany of complaints that were traversed by Mrs Day on this application, but having regard to the robustness that a judge must inevitably bring to his or her role, I do not consider a fair-minded lay observer might reasonably apprehend that I might not bring an impartial mind to the supervision of Mrs Day’s matter. Reasonable apprehension of bias

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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