OLGA DAY (applicant) v PROFESSOR JOHN HUMPHREY (first defendant/first respondent) ASSOCIATE PROFESSOR TINA COCKBURN (second defendant/second respondent) QUEENSLAND UNIVERSITY OF TECHNOLOGY (third defendant/third respondent) WESLEY LERCH, DIRECTOR OF QUEENSLAND COMPENSATION LAWYERS PTY LTD ACN 135 360 119 (fourth defendant/fourth respondent) DAVID BRAY, DIRECTOR OF QUEENSLAND COMPENSATION LAWYERS PTY LTD ACN 135 360 119 (fifth defendant/fifth respondent) QUEENSLAND COMPENSATION LAWYERS PTY LTD ACN 135 360 119 (sixth defendant/sixth respondent)
FILE NO/S:
Appeal No 3799 of 2017 SC No 5774 of 2016
DIVISION:
Court of Appeal
PROCEEDING:
Miscellaneous Application – Civil
ORIGINATING COURT:
Supreme Court at Brisbane – Unreported, 23 March 2017
DELIVERED ON:
Orders delivered ex tempore 15 May 2017 Reasons delivered 26 May 2017
DELIVERED AT:
Brisbane
HEARING DATE:
15 May 2017
JUDGE:
Morrison JA
ORDERS:
Delivered ex tempore on 15 May 2017:
1. The application is dismissed.
2. The applicant is to pay the respondent’s costs of the application to be assessed on the standard basis.
CATCHWORDS:
APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – STAY OF PROCEEDINGS – GENERAL PRINCIPLES AS TO GRANT OR REFUSAL – where orders were made in the Supreme Court Trial Division on 23 March 2017 relating to an application by the fourth, fifth and sixth respondents to strike out the applicant’s claim – where a cross-application by the applicant sought to have the learned primary judge disqualify himself from hearing the application on the ground of apprehended bias – where the orders on 23 March refused the cross-application and made directions for the application – where the current application seeks to stay the proceedings below pending an appeal of the learned primary judge’s refusal to disqualify himself – where the proceedings in the trial division have been subject to delay – where the delay is due to a number of adjournments requested by the applicant – where the applicant contends that she is at a special disadvantage due to being of a non-English speaking background, having a disability and being a woman – where the applicant submits that the learned primary judge was unfair to the point that she was denied procedural fairness – where the application for stay requires an assessment of the prospects of success of the appeal – whether the learned primary judge showed apprehended bias – whether the applicant was denied procedural fairness – whether there are prospects of a successful appeal – whether case is an appropriate one for a stay
No appearance for the applicant D Schneidewin for the first, second, and third respondents M J Drysdale for the fourth, fifth, and sixth respondents
SOLICITORS:
The applicant appeared on her own behalf Barry Nilsson for the first,…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Day v Humphrey [2017] QCA 104
Case
[2017] QCA 104
Decision Date
CaseChat Overview and Summary
In the matter of Day v Humphrey, the applicant, Ms Day, sought to have the proceedings stayed pending an appeal against the refusal of the primary judge to disqualify himself from hearing the application. Ms Day argued that the primary judge had shown apprehended bias and that she had been denied procedural fairness. The application was dismissed by the court. Ms Day also contended that the learned primary judge erred by deleting part of the transcript from the transcript of the judgment containing the judge’s reasons for awarding the costs against her. This was a reference to the fact that the transcript in respect of the argument on costs was separate from that which recorded the reasons for judgment. The court found that there was nothing in this point.
The legal issues before the court were whether the learned primary judge showed apprehended bias, whether Ms Day was denied procedural fairness, whether there were prospects of a successful appeal, and whether the case was an appropriate one for a stay. The court found that the appeal had very poor prospects of success and that there was no disadvantage if a stay was not granted. The court also found that the QUT respondents were not involved in the appeal and that the proceedings should not continue piecemeal while the appeal was heard. The court concluded that there was no issue warranting a stay to be granted against the QUT respondents.
The court found that the appeal had very poor prospects of success, and that there was no disadvantage if a stay was not granted. The court also found that the QUT respondents were not involved in the appeal and that the proceedings should not continue piecemeal while the appeal was heard. The court concluded that there was no issue warranting a stay to be granted against the QUT respondents.
ORDERS:
1. The application is dismissed.
2. The applicant is to pay the respondents’ costs of the application to be assessed on the standard basis.
Orders
Orders of the court
Delivered ex tempore on 15 May 2017:
1. The application is dismissed.
2. The applicant is to pay the respondent’s costs of the application to be assessed on the standard basis.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Ms Day also contended that the learned primary judge erred “by deleting a part of the transcript from the transcript of the judgment containing the judge’s reasons for awarding the costs against the appellant”. This was a reference to the fact that as Auscript transcribed the hearing on 23 March 2017, the transcript in respect of the argument on costs was separate from that which recorded the reasons for judgment. There is nothing in this point.Conclusion – prospects of success For the reasons set out above, it is my view that the appeal has very poor prospects of success.Disadvantage if a stay is not granted Apart from the fact that the learned primary judge will be the judge deciding the application for strike-out, there is no disadvantage if a stay is not granted. The hearing is part-heard. Directions were given on 23 March to bring the matter on for 17 May. Each party complied with the steps necessary to do so. Ms Day still has a full opportunity to resist the strike-out of the pleading.Disadvantage to the QCL respondents If the stay is granted, there will inevitably be a period of delay until the appeal is resolved. One alternative is for the application to strike out to begin again with a new judge hearing it. That is an unpalatable prospect, and not one readily sanctioned under the Uniform Civil Procedure Rules. The current hearing is part-heard. It should continue unless stayed.Disadvantage to the QUT respondents The QUT respondents were heard before me because paragraph 2 of the application brought by Ms Day seeks an order staying the entire proceedings pending the appeal. Of course, the QUT respondents are not involved in the appeal. In that respect, there is a clear prospect of disadvantage to them because it means that proceedings will stop for a time. The proceedings should not continue piecemeal while the appeal is heard, however, that is a reason for refusing a stay, rather than granting one. There is no issue warranting a stay to be granted against the QUT respondents. They should not be disadvantaged by an issue that concerns only Ms Day and the QCL respondents. The foregoing reasons were those which caused me to dismiss the application for a stay on 15 May 2017. On the question of costs, each of the QCL and QUT respondents sought their costs. Mrs Day’s response was to suggest that they be made part of those parties’ costs in the proceedings. I do not consider that that is an appropriate outcome, given that this is a discrete application, which has failed. The applicant is to pay the respondents’ costs of the application, to be assessed on the standard basis.