Day v Lerch

Case [2018] QCA 224

SUPREME COURT OF QUEENSLAND

CITATION:

Day v Lerch & Ors [2018] QCA 224

PARTIES:

In Appeal No 3799 of 2017:

OLGA DAY
(appellant)
v
WESLEY LERCH
(first respondent)
DAVID BRAY
(second respondent)
QUEENSLAND COMPENSATION LAWYERS PTY LTD
ACN 135 360 119
(third respondent)

In Appeal No 12360 of 2017:

OLGA DAY
(appellant)
v
PROFESSOR JOHN HUMPHREY
(first respondent/not a party to the appeal)
ASSOCIATE PROFESSOR TINA COCKBURN
(second respondent/not a party to the appeal)
QUEENSLAND UNIVERSITY OF TECHNOLOGY
(third respondent/not a party to the appeal)
WESLEY LERCH
(fourth respondent)
DAVID BRAY
(fifth respondent)
QUEENSLAND COMPENSATION LAWYERS PTY LTD
ACN 135 360 119
(sixth respondent)

FILE NO/S:

Appeal No 3799 of 2017
Appeal No 12360 of 2017
SC No 5774 of 2016

DIVISION:

Court of Appeal

PROCEEDINGS:

General Civil Appeals

ORIGINATING COURT:

Supreme Court at Brisbane – Appeal No 3799 of 2017: Unreported, 23 March 2017 (Daubney J); Appeal No 12360 of 2017: [2017] QSC 236

DELIVERED ON:

18 September 2018

DELIVERED AT:

Brisbane

HEARING DATE:

22 March 2018

JUDGES:

Morrison and Philippides JJA and Brown J

ORDERS:

In Appeal No 3799 of 2017:

1.   The appeal is dismissed.

2.   The appellant is to pay the respondents’ costs of and incidental to the appeal.

In Appeal No 12360 of 2017:

1.   The appeal is allowed.

2.   Orders 3 and 4 made on 26 October 2017 are set aside.

3.   The parties are to file any submissions on the appropriate costs order that should follow, limited to two pages, within 14 days of this order.

CATCHWORDS:

COURTS AND JUDGES – DISQUALIFICATION FOR INTEREST OR BIAS – REASONABLE APPREHENSION OF BIAS GENERALLY – where the appellant appealed against the decision of the learned primary judge to dismiss an application that his Honour recuse himself in the course of a protracted hearing of an application to strike out a claim and statement of claim on the basis of apprehended bias – where the appellant was self-represented – where there is no contention that the primary judge applied the wrong legal principles – where there were a number of complaints by the appellant about the conduct of the proceeding – where it is plain that the learned primary judge’s patience was sorely tested on a number of occasions leading to responses which, if taken out of context, might be seen by a fair-minded lay observer as displaying a degree of exasperation, and in other cases forcing the appellant to the point in issue – where, however, the fair-minded lay observer would also be aware of the conduct of the appellant as the counterpoint to what was driving the learned primary judge’s responses – where further, some of the matters which the appellant asserted during the course of the hearings were plainly wrong and, not surprisingly, resulted in a stern response from the learned primary judge – whether the learned primary judge was in error in not recusing himself from the hearing

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – ENDING PROCEEDINGS EARLY –…

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Details
AGLC
Day v Lerch [2018] QCA 224
Case
[2018] QCA 224
Decision Date

CaseChat Overview and Summary

The appeal in Day v Lerch involved the appellant, Day, challenging the decision of the primary judge, Lerch, to dismiss an application that his Honour recuse himself from proceedings. The appeal was self-represented, with the primary issues being whether the primary judge should have recused himself due to bias and whether the summary judgment granted to the respondents was appropriate. Day argued that the primary judge displayed signs of bias and that the summary judgment should not have been granted due to factual disputes.

The court considered whether the primary judge’s conduct demonstrated bias and whether there were factual disputes sufficient to preclude summary judgment. The court found that although the primary judge's patience was tested, the fair-minded lay observer would understand the context of Day's conduct. Regarding the summary judgment, the court determined that the factual dispute over the employment termination date could only be resolved at trial and was thus inappropriate for summary judgment. The court also dismissed Day's application to adduce further evidence and her contentions regarding the publication of the judgment and the costs assessors.

The court concluded that the appeal against the dismissal of the application for recusal should be dismissed, while the appeal against the summary judgment should be allowed, and orders 3 and 4 made on 26 October 2017 were set aside. The parties were directed to file any submissions on the appropriate costs order, limited to two pages, within 14 days of the court's order.

Orders

Orders of the court

In Appeal No 3799 of 2017:

1. The appeal is dismissed.

2. The appellant is to pay the respondents’ costs of and incidental to the appeal.

In Appeal No 12360 of 2017:

1. The appeal is allowed.

2. Orders 3 and 4 made on 26 October 2017 are set aside.

3. The parties are to file any submissions on the appropriate costs order that should follow, limited to two pages, within 14 days of this order.

Background

Background to the litigation

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Evidence

Evidence Before The Court

The contention that the learned primary judge erred in law by failing to publish the judgment online, together with the reasons for awarding costs, should be rejected as without merit. Even if those reasons were not published online, that was something which occurred in the context of the application to disqualify, not in the hearing of the application to strike out. In any event, Ms Day received the reasons. There is no possibility that a fair-minded lay observer would think it showed lack of impartiality.Other grounds and the application to adduce further evidence There is no need to deal with the remaining grounds in the notice of appeal. They are either encompassed within the reasons above, or are such that they are even more meretricious than some dealt with above. Ms Day applied to adduce further evidence. The topic was dealt with in her amended outline under the heading “Allegations of Collusion and Corrupt Conduct”. That which was sought to be tendered was said to be “documents and correspondence re: the allegations of the involvement of the court and judicial officers in collusion and corrupt conduct”. The amended outline then named two solicitors (the fourth and fifth defendants) and the learned primary judge as those involved.[70] The material consisted of emails from the fourth defendant to Ms Day on 29 May 2017: (i) predicting that costs would be ordered against her; (ii) saying what the total of those costs might be, and that such orders would be enforced; and (iii) requesting that she pay the costs.[70]Appellant’s amended outline, paragraph 2.1. Ms Day contended that some of the costs had not been assessed by an assessor with a practising certificate, but by an accountant in a firm (QCIS) which provided cost consulting services to the fourth defendant, that accountant being someone who regularly assessed costs for the sixth defendant, QCL. It was said that the fourth defendant’s statement “was made in conformity with [the learned primary judge’s] threats made to [Ms Day] at the court hearing on 23 March 2017 that she will be paying the costs of the respondents”.[71][71]Appellant’s amended outline, paragraphs 2.2, 47. There is nothing in the point sought to be made. The “threat” on 23 March 2017 was no such thing. In the course of submissions by Ms Day, seeking an adjournment of the hearing, the learned primary judge put to the QCL parties[72] that the only prejudice they might suffer by reason of the adjournment would sound in costs.[73] Then his Honour said to Ms Day:[74]“HIS HONOUR: Well, Ms Day, what do you say about – you see, you can’t have it always, Ms Day. Sooner or later things start to come back on you, in a practical sense. You are now asking for a further indulgence. The other side, if I grant that indulgence, will be put to extra costs. Why shouldn’t you have to pay for that?”[72]Who opposed the adjournment.[73]AB 3799, 118 lines 25-37.[74]AB 3799, 118 lines 43-46. Plainly his Honour was simply asking whether or not Ms Day could provide a reason (or had a submission) as to why she should not have to pay the costs incurred by the QCL parties due to the adjournment. What was said then has, in any event, no connection with the emails sent on 29 May 2017. Regardless of other issues, the further evidence was irrelevant. That application should be dismissed.Conclusion on CA No. 3799 of 2017

Decision

Reasons for decision

Similarly, the complaint about the report by the Parliamentary Crime and Misconduct Commission lacks merit. As the learned primary judge pointed out in the course of argument, the report was consequent upon a complaint that the learned primary judge made, that the then Crime and Misconduct Commission was impermissibly conducting an investigation into him.[67] In my view, the fair-minded lay observer would consider the fact of the complaint to be completely irrelevant to whether the learned primary judge would bring an impartial mind to the issues on the strikeout.[67]Transcript 23 March 2017, T1-43.Orders on 23 March 2017, and publishing the judgment Ms Day’s contentions on these points lack merit. Though I pointed out in the reasons for refusing a stay that the contentions proceeded on a misapprehension as to the proper construction of the orders, they were maintained on appeal. Order 3 was that by a particular date the QCL parties “shall file and serve any application by [them] to strike out the amended statement of claim filed 22 February 2017”. Ms Day contended that order displayed bias because it was the learned primary judge directing the QCL parties to file a new application, or giving guidance to them to do so. It was no such thing. It was simply an order that if the QCL parties intended to bring an application in respect of the amended statement of claim, that application had to be filed by a certain time. Ms Day’s contention, that being forced to make oral submissions on costs rather than being allowed to do so in writing later reveals apprehended bias, should be rejected. The transcript reveals that Ms Day was given an opportunity to say what she wanted to say about costs. It is the case that she asked for time to put in a written submission about costs and that the learned primary judge insisted that she make her submissions on costs during that hearing. That does not constitute an error of law on the part of the learned primary judge, given that the apprehended bias hearing was the consequence of Ms Day’s application filed on 9 February, and the hearing was 23 March. Nor would, in my view, a fair-minded lay observer conclude that that shows an inability to bring an impartial mind to the issues. Ms Day contended that the learned primary judge did not permit her to make submissions about the lack of impartiality on the part of the costs assessors proposed by the QCL parties when they sought costs of the failed application to disqualify.[68] That contention cannot be sustained. Ms Day asserted before the learned primary judge that she would “like to enquire … whether or not they are independent”, and said that she knew from her employment by the QCL parties that the assessors were “in commercial relationships” with the QCL parties. As the argument progressed, it became clear that the only relationship was that the QCL parties used that firm of cost assessors to undertake assessments on other files.[69][68]Appellant’s amended outline, paragraphs 52-58.[69]Transcript 23 March 2017, T1-4 to T1-5.

Ratio Decidendi

Legal Principle Established

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