Day v Woolworths Group Limited
[2021] QCA 42
•12 March 2021
SUPREME COURT OF QUEENSLAND
CITATION:
Day & Anor v Woolworths Group Limited & Ors [2021] QCA 42
PARTIES:
In Appeal No 5386 of 2018:
OLGA DAY
(first appellant)
STEVEN DAY
(second appellant)
v
WOOLWORTHS GROUP LIMITED
ACN 000 014 675
(first respondent/not a party to the appeal)
CPM AUSTRALIA PTY LTD
ACN 063 244 824
(second respondent)
RETAIL ACTIVATION PTY LTD
ACN 111 852 129
(third respondent)
ZURICH AUSTRALIAN INSURANCE LIMITED
ACN 000 296 640
(fourth respondent)
ZURICH FINANCIAL SERVICES AUSTRALIA LIMITED
ACN 008 423 372
(fifth respondent)
ZURICH AUSTRALIA LIMITED
ACN 000 010 195
(sixth respondent)
ZURICH INSURANCE GROUP LIMITED
(seventh respondent)In Appeal No 13845 of 2018:
OLGA DAY
(appellant)
v
WOOLWORTHS GROUP LIMITED
ACN 000 014 675
(first respondent)
CPM AUSTRALIA PTY LTD
ACN 063 244 824
(second respondent)
RETAIL ACTIVATION PTY LTD
ACN 111 852 129
(third respondent)
GABRIELLE ANN FORBES
(fourth respondent)
SIMON CARTER
(fifth respondent)
RICHARD CAMERON MORTON
(sixth respondent)In Appeal No 1131 of 2019:
OLGA DAY
(appellant)
v
WOOLWORTHS GROUP LIMITED
ACN 000 014 675
(first respondent)
CPM AUSTRALIA PTY LTD
ACN 063 244 824
(second respondent)
RETAIL ACTIVATION PTY LTD
ACN 111 852 129
(third respondent)In Appeal No 5777 of 2019:
OLGA DAY
(applicant)
v
WOOLWORTHS GROUP LIMITED
ACN 000 014 675
(first respondent)
CPM AUSTRALIA PTY LTD
ACN 063 244 824
(second respondent)
RETAIL ACTIVATION PTY LTD
ACN 111 852 129
(third respondent)
GEOFFREY WARREN DIEHM
(fourth respondent)
GERARD COLIN O’DRISCOLL
(fifth respondent)FILE NO/S:
Appeal No 5386 of 2018
Appeal No 13845 of 2018
Appeal No 1131 of 2019
Appeal No 5777 of 2019
SC No 6016 of 2016DIVISION:
Court of Appeal
PROCEEDING:
General Civil Appeal
Application for Extension of Time/General Civil AppealORIGINATING COURT:
Supreme Court at Brisbane – [2018] 3 Qd R 593 (Douglas J)
Supreme Court at Brisbane – [2018] QSC 266 (Davis J)
Supreme Court at Brisbane – [2019] QSC 40 (Davis J)
Supreme Court at Brisbane – [2019] QSC 93 (Davis J)DELIVERED ON:
12 March 2021
DELIVERED AT:
Brisbane
HEARING DATE:
17 November 2020
JUDGES:
Mullins JA and Henry and Williams JJ
ORDERS:
1. In Appeal No 5386 of 2018:
(a) appeal dismissed with costs;
(b) application filed 10 November 2020 dismissed with costs;
(c) in the event there is no successful appeal of order (a) in Appeal No 13845 of 2018, the injunction ordered 24 April 2018 is by this order discharged on the date the possibility of a successful appeal ends.
2. In Appeal No 13845 of 2018:
(a) appeal dismissed with costs;
(b) application filed 10 November 2020 dismissed with costs.
3. In Appeal No 1131 of 2019:
(a) appeal dismissed with costs;
(b) application filed 10 November 2020 dismissed with costs.
4. In Appeal No 5777 of 2019:
(a) application for extension of time within which to appeal and for other relief dismissed with costs;
(b) application filed 10 November 2020 dismissed with costs.
CATCHWORDS:
EQUITY – EQUITABLE REMEDIES – INJUNCTIONS – INJUNCTIONS FOR PARTICULAR PURPOSES – INJUNCTION TO RESTRAIN A PARTICULAR ACT – TO RESTRAIN UNAUTHORISED ACTS – where the appellant engaged in a pattern of communication with the second and third defendants’ insurer and its associated entities – where the primary judge concluded the communication was made in an attempt to influence the insurers in the conduct of the appellant’s personal injury case and that this affected the integrity of the court process – where the primary judge restrained the appellant from communicating or causing communication on her behalf in connection with the personal injury case with the second and third defendants’ insurer and its associated entities – whether the primary judge erred in failing to consider the proposed factual inference that the second and third defendants deserved the criticism of them or that the communication was in the interest of the administration of justice
EQUITY – EQUITABLE REMEDIES – INJUNCTIONS – INJUNCTIONS FOR PARTICULAR PURPOSES – OPERATIVE LENGTH OF INJUNCTION – where the primary judge ordered an injunction “until the conclusion of these proceedings or further order” – where the proceeding was stayed until the appellant underwent medical examination by the defendants’ experts – where the appellant refused to do so – where the appellant’s case was then permanently stayed – whether the defendants’ application for a permanent stay should have proceeded despite the earlier stay of the proceeding – whether the proceedings should be discharged as the case could not proceed further
EQUITY – EQUITABLE REMEDIES – INJUNCTIONS – INJUNCTIONS FOR PARTICULAR PURPOSES – where the appellant sought to restrain various of the defendants; counsel and solicitors from acting – where the primary judge declined to order the restraint of counsel and the solicitors – whether the presiding judge should have made adverse findings about opposing counsel and solicitors – whether the primary judge should have restrained the opposing counsel and solicitors from acting
PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – CASE MANAGEMENT – LISTS – GENERALLY – where the matter had been on the self-represented litigant supervised case list – where an application was listed before a specific judge on the Court’s application law list – where a different applications judge ultimately heard the matter – whether the hearing should have been before the judge initially listed – whether the application should have been heard by a judge presiding over the self-represented litigant supervised case list
COURTS AND JUDGES – JUDGES – DISQUALIFICATION FOR INTEREST OR BIAS – PARTICULAR GROUNDS – BIAS BY ASSOCIATION OR PRIOR RELATIONSHIP – where the primary judge handed down his decision at a time he was unaware of the existence of an application to recuse himself – where the appellant alleged the primary judge had a close association with legal representatives and other judges connected to the matter – where the appellant alleged the primary judge was biased against her – whether friendships between judges and barristers raise an apprehension of bias – whether the primary judge should have heard an application to recuse himself prior to giving judgment – whether the primary judge should have disclosed the association as a potential conflict of interest – whether the primary judge should subsequently have recused himself because of an apprehension of bias
COURTS – JUDGES – POWERS AND DUTIES IN RESPECT OF UNREPRESENTED LITIGANTS – where the appellant was a self-represented litigant with an alleged disability from a non-English speaking background – where the appellant alleged the court did not fairly allow for those considerations – whether the presiding judge was unfair and acted in a way which would give rise to an apprehension of bias in a fair-minded lay observer – whether the appellant was unduly pressured to submit to further medical examination
PROCEDURE – MISCELLANEOUS PROCEDURAL MATTERS – OTHER MATTERS – where the appellant had submitted 44 pages of written submissions and made substantial oral submissions before asking for an adjournment – where the primary judge asked the appellant to identify the subject of further oral submissions – where the appellant could not do so – where the primary judge refused the adjournment – whether the primary judge should have granted the appellant’s application for an adjournment - whether reasons for the refusal of an adjournment application should have been published
PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – GENERAL MATTERS – POWER TO AWARD GENERALLY – ACTION OR PROCEEDING BEFORE COURT – GENERALLY – where the appellant was not present at court when the primary judge handed down the reserved decision – where the primary judge was unaware the appellant had not received notification judgment was being handed down – where the primary judge after delivering judgment, proceeded to determine the question of costs in the absence of the appellant – whether the presiding judge should have proceeded to order costs in the absence of the appellant
Constitution of Queensland 2001 (Qld), Sch 1
Human Rights Act 2019 (Qld)
International Covenant on Civil and Political Rights 1966
Personal Injuries Proceedings Act 2002 (Qld), s 26(2), s 37(2), s 37(3)
Uniform Civil Procedure Rules 1999 (Qld), r 280, r 667, r 668, r 681(1), r 766Aussie Airlines v Australian Airlines (1996) 65 FCR 215; (1996) 135 ALR 753; [1996] FCA 1308, cited
Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57; [2006] HCA 46, applied
British American Tobacco Australia Services Ltd v Laurie (2011) 242 CLR 283; [2011] HCA 2, applied
Copping v ANZ McCaughan Ltd (1997) 67 SASR 525; [1997] SASC 5995, cited
Dietrich v The Queen (1992) 177 CLR 292; [1992] HCA 57, cited
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63, applied
Emanuele v Emanuel Investments Pty Ltd (in liq) (1997) 139 FLR 36; [1997] SASC 6177, applied
House v The King (1936) 55 CLR 499; [1936] HCA 40, applied
Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48, applied
Livesey v New South Wales Bar Association (1983) 151 CLR 288; [1983] HCA 17, applied
MacPherson v The Queen (1981) 147 CLR 512; [1981] HCA 46, cited
Markan v Bar Association of Queensland [2014] 2 Qd R 273; [2014] QCA 34, applied
Miller v Martin [2019] VSCA 86, cited
Palmer v Parbery (2019) 136 ACSR 26; [2019] QCA 27, applied
Perera v GetSwift Ltd (2018) 263 FCR 92; (2018) 363 ALR 394; [2018] FCAFC 202, cited
QNI Metals Pty Ltd & Anor v Vannin Capital Operations Ltd & Ors[2021] QCA 24, cited
Raybos Australia Pty Ltd v Tectran Corporation Pty Ltd (1986) 6 NSWLR 272, cited
Re JRL; Ex parte CJL (1986) 161 CLR 342; [1986] HCA 39, applied
Y & Z v W (2007) 70 NSWLR 377; [2007] NSWCA 329, citedCOUNSEL:
In Appeal No 5386 of 2018:
The first appellant appeared on her own behalf
The second appellant on his own behalf
S C Holt QC for the second to seventh respondents
R A Perry QC for the interested person Richard Cameron MortonIn Appeal No 13845 of 2018:
The appellant appeared on her own behalf
B F Charrington for the first and fourth respondents
S C Holt QC for the second, third, and fifth respondents
R A Perry QC for the sixth respondentIn Appeal No 1131 of 2019:
The appellant appeared on her own behalf
B F Charrington for the first respondent and for the interested person Gabrielle Ann Forbes
S C Holt QC for the second and third respondents
R A Perry QC for the interested person Richard Cameron MortonIn Appeal No 5777 of 2019:
The applicant appeared on her own behalf
B F Charrington for the first, fourth, and fifth respondents and the interested persons Ashurst, Gabrielle Ann Forbes and Johnathan King-Christopher
S C Holt QC for the second and third respondents
R A Perry QC for the interested person Richard Cameron MortonSOLICITORS:
In Appeal No 5386 of 2018:
The first appellant appeared on her own behalf
The second appellant on his own behalf
Mills Oakley for the second to seventh respondents
Carter Newell Lawyers for the interested person Richard Cameron Morton
DWF Australia for the interested person Gabrielle Ann ForbesIn Appeal No 13845 of 2018:
The appellant appeared on her own behalf
Ashurst Australia for the first respondent
Mills Oakley for the second, third, and fifth respondents
DWF Australia for the fourth respondent
Carter Newell Lawyers for the sixth respondentIn Appeal No 1131 of 2019:
The first appellant appeared on her own behalf
Ashurst Australia for the first respondent
Mills Oakley for the second and third respondents
DWF Australia for the interested person Gabrielle Ann Forbes
Carter Newell Lawyers for the interested person Richard Cameron MortonIn Appeal No 5777 of 2019:
The applicant appeared on her own behalf
Ashurst Australia for the first, fourth and fifth respondents
Mills Oakley for the second and third respondents
DWF Australia for the interested persons Ashurst, Gabrielle Ann Forbes and Johnathan King-Christopher
Carter Newell Lawyers for the interested person Richard Cameron Morton
MULLINS JA: I agree with Henry J.
HENRY J: Olga Day alleges she slipped on a shallot when shopping at Woolworths, suffering soft tissue injuries and aggravation of her psychiatric conditions. Her ensuing pursuit of a personal injuries claim stalled because she failed to comply with the defendants’ reasonable request that she undergo examination by an orthopaedic specialist, a neuro surgeon, a psychiatrist and an occupational therapist, each to be nominated by her from the defendants’ panel of experts.
Her non-compliance, in disobedience of s 25(2) Personal Injuries Proceedings Act 2002 (Qld), culminated in an order by Douglas J on 27 November 2017 staying the proceeding until she underwent the examinations. She appealed that order, alleging inter alia that Douglas J had not been impartial. The flimsy basis for that allegation was that his Honour had once given a paper explaining it was challenging to judge cases involving querulent self-represented litigants. Mrs Day is a self-represented litigant.
The appeal was dismissed on 1 June 2018, a decision described as “plainly correct” in the High Court’s ensuing refusal of Mrs Day’s special leave application on 12 September 2018.
Mrs Day’s non-compliance with s 25(2) continued. This resulted in an order by Davis J on 16 November 2018 permanently staying the proceeding. She now appeals that order, a subsequent decision of Davis J and an earlier decision of Douglas J. She also seeks leave for an extension of time within which to appeal another decision by Davis J.
Her three appeals, application for an extension of time within which to appeal and various other applications were eventually heard together. The various other applications remaining (some were struck out during the hearing) should be dismissed. It is convenient to postpone giving reasons for that conclusion until these reasons otherwise deal with the three appeals and application for extension of time within which to appeal, all of which should also be dismissed. The reasons in respect of each matter inform the reasons in respect of all matters. As will become apparent, there is a moot quality to the miscellaneous mix of arguments to be considered. None of them is capable of removing the self-inflicted obstacle to Mrs Day’s pursuit of her personal injuries claim caused by her failure to comply with s 25(2).
CA 5386 of 2018 – Douglas J (Injunction against communications)
Taking the appeals in chronological order, appeal 5386 of 2018 is the first in time, being filed 21 May 2018.[1]
[1]For this appeal, and this appeal only, Mrs Day is joined by her husband, Mr Steven Day, as the second appellant. It is unnecessary to tarry over whether he is properly a party to the matter.
The appeal is against orders made by Douglas J on 24 April 2018 granting an injunction applied for by the second and third defendants in Mrs Day’s personal injuries case. His Honour restrained Mrs Day from communicating or causing communication on her behalf in connection with the proceeding with the second and third defendants’ insurer and its associated entities by ordering:
“[T]hat Mrs Day be restrained from:
(a)contacting or communicating with Zurich Australian Insurance Limited ACN 000 296 640, Zurich Financial Services Australia Limited ACN 008 423 372, Zurich Australia Ltd ACN 000 010 195 or Zurich Insurance Group Ltd (hereinafter jointly and severally referred to as ‘Zurich’) or any director, officer, employee or agent of Zurich, other than Mills Oakley Lawyers, Zurich’s solicitors, in relation to this proceeding, or any matter connected with this proceeding, by any means whatsoever; and/or
(b)allowing, causing, encouraging, permitting or suffering any person on her behalf to contact or communicate with Zurich or any director, officer, employee or agent of Zurich, other than Mills Oakley Lawyers, Zurich’s solicitors, in relation to this proceeding, or any matter connected with this proceeding, by any means whatsoever;
until the conclusion of these proceedings or further order.”
The application and ensuing order were prompted by a pattern of communications which the second and third defendants complained were calculated at intimidating and harassing their insurer to influence it in relation to the conduct of Mrs Day’s personal injury case. While the purpose of the communications was disputed, their content was not in issue. The communications were summarised in his Honour’s reasons as follows:
“(a)The plaintiff’s husband, on her behalf, has threatened to report employees of Zurich to the Legal Services Commission in Queensland and the corresponding body in New South Wales, the Office of Fair Trading in Queensland and the corresponding body in New South Wales and has threatened the directors of the defendants with personal liability;
(b)The plaintiff communicated to Zurich, including its directors, allegations of unethical and improper conduct by the solicitors for the second and third defendants;
(c)The plaintiff’s husband, on her behalf, has accused the directors of Zurich of misusing shareholders’ funds by encouraging the solicitors for the second and third defendants to drag her claim through the courts. Those accusations were also communicated to Zurich’s auditors. The communication also included allegations of breach of the Corporations Act 2001 (Cth) by Zurich’s directors;
(d)The plaintiff and her husband have in correspondence to Zurich’s Australian General Counsel and Secretary, who happens to be a lawyer, also copied to Zurich’s Chief Executive Officer and directors, accused Zurich’s General Counsel “or your other officers” of using the court process for improper purposes, professional misconduct and breach of the Corporations Act. In that correspondence, the plaintiff and her husband also threatened to go to the media to disclose “your appalling practices”, accused two solicitors from the firm acting for the second and third defendants of corrupt conduct in breach of the Crime and Corruption Act 2011, threatened to report Zurich’s General Counsel to “the relevant authorities” and sought information, said to be potentially privileged, as to the name of the person employed by Zurich providing instructions to the second and third defendants’ solicitors, the identification of the person or persons authorising the funding of legal costs in the matter and the amount of money spent by Zurich in defending the matter;
(e)The plaintiff and her husband accused Zurich’s General Counsel of authorising or instructing criminal conduct in fraudulently forging and uttering a certificate of readiness by the second and third defendants’ solicitors. They also asked for her confirmation that she engaged in such conduct and threatened to refer the matter to the Law Society of New South Wales and/or the Legal Services Commission in New South Wales in the event of an “unsatisfactory response;
(f)On 15 November 2017, after the plaintiff had been served with the application to restrain her from communicating with Zurich, the plaintiff’s husband, on her behalf, again wrote to Zurich’s General Counsel and Secretary and to Zurich’s directors complaining about the conduct of the solicitors, among other things, in acting to support Woolworths. He also asked for advice as to whether the second and third defendants had notified the incident complained of by the plaintiff at Woolworths on 18 December 2014 pursuant to the Work Health and Safety Act 2011, which the second and third defendants assert they were not obliged to do. She is also said to have again threatened that some form of personal responsibility would attach to the recipients of the correspondence.”[2]
[2]Day v Woolworths Limited & Ors [2018] QSC 82 [2].
It is implicit in his Honour’s reasons that he considered such communications would continue in the absence of the restraining order which he granted.
His Honour approached the application as an application for an interlocutory injunction. He applied the usual organising principles in such applications, considering whether the applicants had shown that there was a serious issue to be tried, whether they were likely to suffer injury for which damages were not an adequate remedy and whether the balance of convenience favoured the granting of the injunction.[3]
[3]Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57, 68.
His Honour reasoned the second and third defendants’ prospective cause of action was grounded in the law of contempt, citing the following useful analysis by Ipp JA in Y & Z v W:[4]
[4](2007) 70 NSWLR 377, 384.
“35.First, the court has jurisdiction to grant an interlocutory injunction restraining a threatened contempt of court: see Attorney-General v Times Newspapers Ltd [1974] AC 273; Commercial Bank of Australia Ltd v Preston [1981] 2 NSWLR 554; Waterhouse v Australian Broadcasting Corporation (1986) 6 NSWLR 716; Yeshiva Properties No 1 Pty Ltd v Lubavitch Mazal Pty Ltd [2003] NSWSC 775.
36.Secondly, misusing the court’s processes, at least where other parties are thereby prejudiced, may amount to a contempt: R v Gregory (1843) 1 Cox CC 31; Nigel Lowe and Brenda Sufrin, Borrie & Lowe, The Law of Contempt, 3rd ed (1996) London, Butterworths at 459, 461.
37.Thirdly, it is a contempt of court to obstruct the due administration of justice by attempting to induce a settlement of an action by improper threats or intimidation. In Attorney-General v Times Newspapers Ltd, Lord Simon said the following on this point (at 318):
“It is a contempt even privately to threaten … a party (In re Mulock (1864) 3 Sw. & Tr. 599). The threat there, by someone who ‘had no interest whatever in the matter,’ was to ‘publish the full truth’ unless a petition were withdrawn. Sir James Wilde, Judge Ordinary, said, at p. 601: ‘… she [the petitioner] claims the right to approach this court, free from all restraint or intimidation. It is a right that belongs to all suitors.’”
Lord Cross said (at 326):
“To seek to dissuade a litigant from prosecuting or defending proceedings by threats of unlawful action, by abuse, by misrepresentation of the nature of the proceedings or the circumstances out of which they arose and such like, is no doubt a contempt of court …”
38.Fourthly, the bringing of improper pressure on a party to collateral proceedings amounts to a contempt of court (involving the obstruction of the due administration of justice) irrespective of whether or not the pressured party is, in fact, deterred from litigating. In Smith v Lakeman (1856) 26 LJ Ch 305, the plaintiff sent a letter to the defendant pending the suit. Stuart V-C said (at 306): “[The letter] was a threat for the purpose of intimidating [the defendant] as a suitor, and, therefore, whether it had had that effect or not, it was unquestionably a contempt of court”. See also Harkianakis v Skalkos (1997) 42 NSWLR 22 and Resolute Ltd v Warnes [2000] WASCA 359 at [13].
39.Fifthly, in a contempt involving obstruction of the administration of justice, the plaintiff must prove, according to the criminal standard of proof, that the material in question has, as a matter of practical reality, a tendency to interfere with the course of justice in a particular case: see John Fairfax & Sons Pty Ltd v McRae (1955) 93 CLR 351 at 372, per Dixon CJ, Kitto J, Fullagar J and Taylor J; Harkianakis v Skalkos (at 27) per Mason P; Resolute Ltd v Warnes (at [13]). The test was put succinctly by O’Loughlin J in Willshire-Smith v Votino Bros Pty Ltd (1993) 41 FCR 496 at 505, where his Honour said that the Court must determine “whether the conduct complained of amounted to improper pressure to induce a litigant to withdraw from proceedings or to settle them on terms that he regarded as inadequate”.
In reasoning to the conclusion that there was a serious issue to be tried, his Honour observed that on an objective analysis of the evidence it was a “fairly available” conclusion that the communications were made in an attempt to influence the insurers in the conduct of Mrs Day’s case as the defendant’s insurers and that this affected the integrity of the court process.[5] He found:
“[22] On the evidence obtained so far it is clear to me that there is a serious question to be tried as to the applicants’ right to obtain relief of the type sought. There is a real issue whether the communications complained of constitute an attempt to dissuade Zurich from supporting the second and third defendants in their defence of the proceedings by threats, by abuse, by misrepresentation of the nature of the proceedings or the circumstances out of which they arose …”[6]
[5]Day v Woolworths Limited & Ors [2018] QSC 82 [9].
[6]Day v Woolworths Limited & Ors [2018] QSC 82 [22], citations omitted.
As to whether damages were an adequate remedy, his Honour continued:
“[23]Those defendants may suffer injury for which damages will not be an adequate remedy if they are impeded in defending the litigation by the need to deal with further communications of this type or if their insurers are, for example, persuaded to settle the action to the disadvantage of those defendants.”[7]
[7]Day v Woolworths Limited & Ors [2018] QSC 82 [23].
As to the balance of convenience, his Honour found:
“[24] The balance of convenience goes all one way. Mrs Day has made the points she wishes to make in her correspondence already and can continue to communicate with the solicitors. I am not satisfied that she has demonstrated a clear public or private interest she may have in continuing to communicate with Zurich that is sufficient to override the second and third defendants’ rights to an unimpeded defence of this personal injuries damages claim. That the restraint sought by the second and third defendants is supported by the insurers is also a relevant issue in a case of this nature.”[8]
[8]Day v Woolworths Limited & Ors [2018] QSC 82 [24].
The two grounds of appeal are, in short form:
“1.The primary judge erred in law by taking into account irrelevant facts and by not taking into account the relevant facts in relation to communication of the appellants to directors of Zurich Insurance as follows: …
2.The primary judge erred in law by failing to exercise the Court inherent jurisdiction, which retains an inherent supervisory jurisdiction over its officers, directed at preserving the proper administration of justice in disciplining Mr Carter, the solicitor and Mr Morton, the counsel for the respondents. …”
Neither ground takes issue with the legal principles applied by the learned presiding judge in determining the application. More generally, neither ground engages with the requisite exercise, in an appeal against the granting of discretionary relief, of demonstrating error in the exercise of the discretion.[9]
[9]House v The King (1936) 55 CLR 499, 505.
Ground 1 seeks to assert error generally, particularly by arguing the moral merits of the various parties’ conduct as litigants, without regard to the specific nature of the discretionary task below.
There are many sub-paragraphs listed in ground 1. In summary they allude to various factual inferences which the learned primary judge allegedly failed to consider, take into account, hold or be persuaded by. The factual inferences are collectively part of what I will refer to as the “altruistic inference” urged by Mrs Day. That inference is that the second and third defendants deserved the criticism of them in the communications, because they were using the insurers’ resources to engage in illicit litigation tactics against a financially and emotionally vulnerable plaintiff, and that bringing this to the attention of the insurer was not improper pressure and was motivated by the public importance of the insurer being better able to supervise its solicitors and better manage the funds of a public company.
The altruistic inference was not the only potential inference arising from Mrs Day’s campaign of communications. There was an obvious competing inference - the inference of intended interference with the administration of justice. That inference was that Mrs Day was attempting to interfere with the due administration of justice by trying to dissuade the insurer from supporting the second and third defendants in their continued defence of the proceedings through threats, abuse and misrepresentation about the nature and conduct of the proceedings.
Ground 1 is misconceived because it was no part of his Honour’s task to reach a final finding as to whether the altruistic inference, or the inferences of fact collectively relied upon as supporting it, were correct. Nor for that matter was it his task to reach a final finding as to whether the inference of intended interference with the administration of justice, or the inferences of fact relied upon as supporting it, were correct. His Honour’s reasoning reflects that he did not purport to make such final findings. He was correct to refrain from such final findings, for that was not his task.
On a related point, a complaint in one of ground 1’s sub-paragraphs, that the second and third defendants deserved the criticism of them in the communications, may result from a misunderstanding of the following passage in the learned primary judge’s reasons:
“[14] Mrs Day’s concern was to bring to the attention of the directors and the General Counsel of Zurich information about the conduct of the solicitors acting for the parties insured by them. She has done that in a way that raises contentious issues about how to characterise their behaviour. So far I am not persuaded that what she says they have done deserves the criticism she levels at them but that is not a matter to resolve at this stage of the proceedings.”[10] (emphasis added)
The final words of that passage demonstrate that the exercise in which his Honour was engaged did not require a determination of the truth or otherwise of the content of the communications.
[10]Day v Woolworths Limited & Ors [2018] QSC 82 [14].
The upshot is that ground 1 fails to establish an error in the discretionary decision-making undertaken by his Honour. It was not submitted that ground 1 ought be viewed as advancing a complaint of appellable error of the kind identified in House v The King,[11] namely that the making of the order was so unreasonable or plainly unjust that there must have been a failure to properly exercise the discretion below. However, to avoid doubt and test the apparent reasonableness or otherwise of the decision, the decision to make the order may be assessed in light of the governing consideration, identified in Australian Broadcasting Corporation v O’Neill[12] as:
“…the governing consideration that the requisite strength of the probability of ultimate success depends upon the nature of the rights asserted and the practical consequences likely to flow from the interlocutory order sought”.[13]
[11]House v The King (1936) 55 CLR 499.
[12](2006) 227 CLR 57, per Gummow and Hayne JJ at 84, with whom Gleeson CJ and Crennan J agreed at 68.
[13]Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57, per Gummow and Hayne JJ at 84, with whom Gleeson CJ and Crennan J agreed at 68.
Let it be assumed, favourably to Mrs Day’s position, that the practical consequences of the interlocutory order required the strength of the inference contended for by the second and third defendants to be that it was likely correct and that the altruistic inference sought by Mrs Day was likely incorrect. The altruistic motive to which Mrs Day lays claim in explaining her purported pursuit of a matter of public importance in her communications with Zurich presents as much less likely than her own self-interest, indeed it appears to be implausible. It is to be appreciated she is not said to be a shareholder in Zurich, whereas she is a litigant against opponents funded by Zurich. She potentially stood to gain a more acquiescent defence to her case, perhaps even a settlement, by upsetting her opponents’ and their lawyers’ relationship and standing with their insurer. The intimidatory quality of her campaign of correspondence is also at odds with a merely altruistic motive.
The court’s processes include the right of litigants to elect to retain and instruct independent legal practitioners of their choosing to act on their behalf in litigation. It is inherent in such a right that the retainer should be free of third party interference or intimidation. Mrs Day’s campaign of intimidatory correspondence strongly suggests she was trying to undermine the defendant’s exercise of a right accorded by the court’s own processes. The inference of intended interference with the administration of justice was likely correct and the altruistic motive urged by Mrs Day was likely incorrect. The decision to make the restraining order was not unreasonable or plainly unjust.
Ground 2 does not go to any error in the exercise of the discretion to grant the injunction either. It contains three sub-paragraphs. The first two complain of a failure to discipline Mr Morton, counsel for the second and third defendants, for making a submission when touching in passing on a medical report which describes the mechanism and nature of the alleged injury, that it did not take the matter anywhere. The first paragraph also complains of a failure to discipline Mr Carter, solicitor for the second and third respondents, regarding an alleged error in a certificate of readiness. The third sub-paragraph of ground 2 complains of a failure to take into account the alleged failings of solicitors for the second and third defendants in respect of disclosure, pressure, delay and filing excessive documents.
These complaints arise for more detailed consideration below, in appeal 13845 of 2018, but none of them are to the point in this appeal. The decision under appeal was not a decision whether or not to discipline lawyers. Nor did the learned primary judge’s task require him to reach a concluded view as to the propriety of the conduct complained of in ground 2’s sub-paragraphs. It is also notable that complaints of the kind mentioned in ground 2 go to issues which could have been raised with the court, which further erodes the purported need to raise complaints of such a kind in the correspondence.
There being no substance to either ground this appeal should be dismissed. Costs should follow the event.
A loose end remains regarding the life of the injunction, which, it will be recalled, was “until the conclusion of these proceedings or further order”. The upshot of CA 13845 of 2018 below is that Mrs Day’s case is now permanently stayed. There does exist authority for permanent stays being lifted in limited types of cases[14] but this does not present as such a case. The apparent legal reality is that the case cannot proceed further and the injunction no longer serves a continuing purpose unless there is a successful appeal. The injunction should therefore be ordered to be lifted on the date the possibility of a successful appeal in CA 13845 expires.
[14]See for example Perera v GetSwift Ltd (2018) 363 ALR 394, 420.
CA 13845 of 2018 – Davis J (Ordering permanent stay)
Appeal 13845 of 2018 was filed on 14 December 2018.[15] It appeals orders made by Davis J on 16 November 2018 granting a permanent stay of Mrs Day’s personal injury proceeding and dismissing a cross-application by Mrs Day.
[15]An amended notice was filed 19 June 2019.
The defendants’ application had actually been for an order that Mrs Day’s claim be dismissed. The learned primary judge observed that Mrs Day’s ongoing intention not to nominate and undergo examination by one expert each from the defendants’ panels of experts gave rise to an intolerable position. He observed that the defendants should not have to forego such examinations of Mrs Day in the conduct of their case. Such an observation was unimpeachable in circumstances where the defendants’ right to have such examinations occur is conferred by Statute and where the decision to stay proceedings pending such examinations had been affirmed on appeal. His Honour concluded Mrs Day’s maintenance of the proceeding in circumstances where she would not take the steps necessary to lift the stay constituted an abuse of process.[16]
[16]Day v Woolworths Limited & Ors [2018] QSC 266 [37].
The terms of the existing order - a stay as distinct from an order to take a step - were not a neat fit with the prerequisites for dismissal of r 280 Uniform Civil Procedure Rules 1999 (Qld) (UCPR). This doubtless explains why dismissal was sought pursuant to r 658, which empowers the court to make any order that the nature of the case requires. His Honour had reservations whether the appropriate order was to dismiss Mrs Day’s proceeding. Instead, he took the more cautious approach of ordering that if Mrs Day did not advise the solicitors for the defendants of her selections from the defendants’ panels of experts by 4 pm on 21 November 2018 “the claim is permanently stayed”.
In the course of his reasons his Honour rejected Mrs Day’s argument that the application should itself be stayed to allow Mrs Day to pursue a complaint by her to United Nations Human Rights Committee about violations of the International Covenant on Civil and Political Rights (ICCPR). In so doing his Honour observed:
“[15] The ICCPR does not, on its own, form part of the Australian domestic law. The judicial power of the Commonwealth and of the States is vested in an integrated system of courts recognised by the Commonwealth Constitution. No decision of the United Nations can affect an exercise of judicial power within the Commonwealth of Australia.
[16]Exercises of judicial power such as the making of order by Douglas J may be challenged on appeal. Those appeal rights have been exhausted. Mrs Day is bound by the orders made by Douglas J.”[17]
[17]Day v Woolworths Limited & Ors [2018] QSC 266 [15], [16] (citations omitted).
Mrs Day’s application sought to restrain Mr Morton of counsel from acting for the second and third defendants, to restrain Mr Carter, solicitor of Mills Oakley Lawyers, from acting for the second and third defendants, and to restrain Ms Forbes, solicitor of Ashurst Australia, from acting for the first defendant. The application also applied for an order dismissing the defendants’ applications as an abuse of process.
It is self-evident that the latter component of the application failed in light of the success of the defendants’ application. In any event, his Honour concluded the application was not brought in abuse of the court’s process but rather “brought for a proper purpose in the face of Mrs Day frustrating the processes of the Court”.[18] His Honour rejected Mrs Day’s application as it related to Mr Morton, Mr Carter and Ms Forbes.
[18]Day v Woolworths Limited & Ors [2018] QSC 266 [44].
The appeal now advanced is without merit and must fail. The amended notice of appeal lists 42 separate grounds, of which grounds 3, 4, 5 and 6 have been abandoned. This leaves 38 grounds, a still large number. Some overlap and others do not articulate error apt to appellate intervention. In explaining why the appeal must fail this court is not obliged to craft reasons in adherence to the structure and content of Mrs Day’s appeal grounds. Sufficient reasons may here be given by addressing what may be summarised as the 11 complaints to which the grounds collectively give rise. Those 11 complaints are enumerated and addressed hereunder.
Complaint 1: The decision to order the permanent stay was unreasonable or plainly unjust.
The intended, if not specifically argued, effect of the grounds may be to contend the decision to order the permanent stay was unreasonable or plainly unjust. If so, such a contention is wrong. Mrs Day’s submissions unhelpfully continued with her past position that she had complied with her obligations as a litigant and that there was no unfairness to the respondent occasioned by her not submitting to examinations. Such a position ignores the legal reality that she in fact was obliged as a litigant to meet the defendants’ reasonable request to nominate and submit to examinations by the defendants’ experts. It also ignores that her refusal to do so was unfairly depriving the defendants of their statutory entitlement as litigants, who were being sued for a lot of money by Mrs Day on the strength of her alleged injuries, to have their own experts examine her. The existing stay was to last only until Mrs Day submitted to examination, but she remained determined not to submit to such examination. This stalemate had dragged on for a year. In those circumstances her continuation of her action, well knowing she was not prepared to take the critical step necessary to advance it, was an abuse of the court’s processes. It was well within the court’s power to control its own processes to order a permanent stay of the proceeding and the court did not err in so ordering.
Complaint 2: The ICCPR should have been applied in the hearing of the application (per grounds 1 and 2).
Davis J’s view that the ICCPR had no application to the conduct of the hearing before him was correct, for the reasons given by his Honour, quoted above. Any complaints regarding his Honour’s conduct of the hearing do not fall to be considered by reference to the ICCPR.
Mrs Day also appears to rely upon the Human Rights Act 2019 (Qld), particularly the right to a fair and public hearing provided for by s 31. That Act had not actually commenced at the time of the hearing. In any event though, the hearing was in the public forum of an open courtroom and, as is further canvassed below, it was fair.
Complaint 3: The defendants’ application should not have been permitted to proceed because the proceeding had been stayed by the order of Douglas J (per grounds 7, 8, 27 and 37).
The proceeding had been stayed by the order of Douglas J until Mrs Day underwent examination by the defendants’ experts. It precluded Mrs Day’s proceeding being further advanced until she had done so. It did not preclude an application attempting to bring the proceeding to an end.
Complaint 4: The hearing should have been before Martin J who, according to the Court’s law list, was allocated to hear the matter (per grounds 9 and 10).
Mrs Day’s amended outline of argument entirely misconceives the process by which applications are allocated to judges. It also conflates it with listing practices in the Court of Appeal and a quote from an appellate case explaining how the Court of Appeal’s listing practices prevents litigants “hand-picking” judges, a tactic also known as “judge shopping”. From this amalgam Mrs Day conjures the risible allegation that Davis J “hand-picked” her matter.
It is not only inherently improbable that any Judge would have harboured a particular desire to hear the applications in Mrs Day’s case, it was also a matter beyond the control of Davis J.
The longstanding administrative practice by which the hearing of applications before the Brisbane Supreme Court is managed is that the senior judge of the judges assigned to the hearing of listed applications on any given day shall direct which of the judges takes which of the applications and shall vary such directions as appropriate as the day progresses, to ensure judicial resources are deployed efficiently throughout the day and to promote timely dispositions. On the relevant day Martin J and Davis J were among the judges allocated to the applications list. As the most senior of those judges it was Martin J who co-ordinated and varied the allocation of judges to applications. That he so controlled the process or even that at first he was listed to hear this application does not mean there was any requirement that in the end result he should have been the judge who heard the application.
Mrs Day complains the above practice is at odds with the right to a fair and open hearing. It is not. It promotes the efficient allocation of judicial resources and timely disposition of applications. It also mitigates against litigants judge shopping.
If a litigant has a basis to object to the judge ultimately allocated to hear the application presiding, the litigant can raise that objection in the transparent and open forum of the court at the outset of the hearing. Mrs Day raised no such objection then. When the hearing was well advanced, by which time it had to have been apparent to Mrs Day that her arguments were not faring well, she did mention in an unresponsive submission that she was puzzled why the matter was first listed before Martin J.[19] However, it was only subsequent to the hearing and Davis J reserving his decision that Mrs Day sought to allege Davis J should not have presided.
Complaint 5: The presiding judge should not have given judgment without first hearing Mrs Day’s application to recuse himself (per grounds 12 and 14).
[19]AR Vol 5 p 1944 L24.
The hearing occurred on 8 November 2018 and his Honour handed down his reserved decision on 16 November 2018. Unbeknown to his Honour, on 13 November 2018 Mrs Day had filed an application for Davis J to recuse himself and to restrain Mr Diehm QC and Mr O’Driscoll from acting for Woolworths Limited (Woolworths). The application was endorsed that it was to be heard on 17 December 2018. The existence of the application was not brought to the attention of Davis J prior to him handing down his reserved judgment. These circumstances were fully explained in reasons given in a subsequent judgment of his Honour.[20] It is not apparent how his Honour could have erred in not first hearing an application which was not then before him and of which he was unaware.
Complaint 6: The primary judge should have recused himself because of undisclosed conflict of interest (per grounds 16, 17 and 18).
[20]Day v Woolworths Limited & Ors [2019] QSC 40.
It is obvious that, conscious her arguments had not fared well at the hearing, Mrs Day, and or others assisting her, researched Davis J in search of information about him to use to complain he should not remain in her case – much the same as she likely came up with Douglas J’s article about querulous self-represented litigants to complain on appeal about him. The information she pooled together appears to be logically irrelevant and mischievously calculated at implying some baseless unstated impropriety. It is sufficient to quote the grounds relevant to this complaint to demonstrate as much:
“16.The primary judge erred in law by failing to consider the appellant’s material raising the allegations of the involvement of the primary judge into a conflict of interest with Justice Sofronoff due to their close personal, professional and commercial relations through directorship in Bar Association Limited and Smiler Pty Ltd, by acting together in a number of legal matters during the time when Justice Sofronoff was a Solicitor-General of Queensland and their friendship in accordance with the material exhibited in the appellant’s affidavit filed on 5 November 2018, including the transcript of the interview “Top Silk Slams Carmody Appointment as ‘Horrible Mistake’”, ABC News.
17.The primary judge erred in law by failing to disclose his Honour’s close personal, professional and commercial relationship with Justice Sofronoff, his Honour’s wife’s Ms M Hock and Mr Diehm despite that fact that in 2015 Mr Davis QC (as his Honour then was) requested from Justice Carmody, the then Chief Justice of the Supreme Court of Queensland to disclose Justice Carmody’s conflict of interest with Ms Johnston of Bravehearts Inc, a child protection group, in support of the application seeking Justice Carmody’s disqualification from sitting in R v Cowan.
18.The primary judge erred in law by failing to recuse himself due to the material deposited before the primary judge alleging that his Honour is an opponent of Justice Carmody, and whom the appellant supported in his purported reforms by making a complaint to the Attorney-General of Queensland and the Legislative Assembly of Queensland alleging a lack of transparency and accountability in the Supreme Court of Queensland and the Queensland Court of Appeal.”
The complaint was no better explained by Mrs Day’s submissions. It remains obscure what relevant possible conflict arose from the connections between Davis J and Sofronoff P when they were at the bar or from their attitude to the appointment of Chief Justice Carmody. Sofronoff P was one of three judges who had dismissed Mrs Day’s earlier appeal of the stay ordered by Douglas J, but so what? The relevance and nature of any consistency in Mrs Day’s complaints to the other branches of government with the unstated purported reforms of the former Chief Justice is even more enigmatic. That any of the lawyers when in practice were directors of companies connected with professional practice is of no moment. The possibilities that Davis J would have known Mr Diehm QC at the bar or that Sofronoff P and his Honour’s spouse had some past association with Mr Diehm QC when Sofronoff P was at the bar is not to the point either.
Approaching the complaint on the premise that the past associations allegedly raise an apprehension of bias, the objective test to be applied is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide.[21] The application of the test involves two steps identified by the High Court in Ebner v Official Trustee in Bankruptcy,[22] namely the identification of what it is said might lead the judge to decide the question otherwise than on its legal and factual merits and the articulation of the logical connection between that matter and the risk that the judge will decide the matter otherwise than on its legal and factual merits. The complaint does not meet that two step application of requisite principle.It is not enough to merely raise evidence of past association. There must be some articulation of a logical connection between the past association and the apprehension of departure from impartial decision-making.[23]
[21]Johnson v Johnson (2000) 201 CLR 488, 492.
[22](2000) 205 CLR 337, 345.
[23]Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, 345.
The mere fact that lawyers and judges are well known to each other does not provide that logical connection.[24] The practice of law is a profession. It is inevitable that many professionals in the same field become well known to each other, both through the direct pursuit of their duties on behalf of clients and the collegial interaction which is central to professional learning and practice. The latter interaction may include sharing the same suite of offices or chambers and associating as members of professional bodies. As a result, many barristers know each other well and many judges know each other well. Further many judges and barristers know each other well because judges are often appointed from the ranks of the bar. As Priestley JA explained in Raybos Australia Pty Ltd v Tectran Corporation Pty Ltd:[25]
“That method of appointment means that built into the legal system is public knowledge and long acceptance of the fact that judges will often know to a greater or less degree the counsel and solicitors who appear before them.”
[24]See for example, Aussie Airlines v Australian Airlines (1996) 65 FCR 215, 230-231.
[25](1986) 6 NSWLR 272, 276.
Thus, just as it is not uncommon that barristers who are friends and who may even practice out of the same chambers will be opposed as adversaries to each other in court, it is also not unusual for them to appear in front of a judge who was once in chambers with one or more of them and remains known to them, albeit now more distanced from them. As Muir JA observed in Markan v Bar Association of Queensland:[26]
“Friendships with colleagues at the bar are not extinguished by appointment to the bench although diminution in social and workplace contact as well as constraints on intercourse between judges and barristers, where matters in which both are involved are being heard or remain undecided, impinge on such relationships.”
[26][2014] QCA 34, [17].
The diminution in social and workplace contact referred to by Muir JA is an inevitable incident of the judge’s movement on appointment into a different job in a different workplace. It not however a requirement of appointment, for reasons well explained by Olsson J in Emanuele v Emanuel Investments Pty Ltd (in liq).[27] His Honour observed:
“The days are long past when it was the expectation that, on appointment to judicial office, a judge was expected to withdraw from social relationships with his or her former professional friends and, for that matter, the community at large; and live the life of someone substantially removed from the general community. Indeed, in the contemporary scene, members of the judiciary tend, publicly, to be criticised if they seek to do so. It is, rightly, perceived that such a recourse would be a distinct disadvantage in discharging the judicial function, because of the cultural isolation from community norms and mores, which would result.”[28]
[27](1997) 139 FLR 36.
[28]Emanuele v Emanuel Investments Pty Ltd (in liq) (1997) 139 FLR 36, 45.
The inevitability of friendships between lawyers, including judges, is not of itself the reason why such friendships are not ordinarily cause for concern. The reason is the nature of lawyers’ training. Lay persons are sometimes surprised to discover that barristers who are spirited adversaries in court, set the contest to one side and behave as friends outside court. Yet it is obviously an attribute essential to the practice of law that lawyers have the capacity to work on cases objectively, with fearless independence, regardless of how well they know or like the other lawyers involved in litigating the case. That capacity, described by Williams J in Emanuele v Emanuel Investments Pty Ltd (in liq)[29] as the “ability to put these personal associations aside whilst discharging public responsibilities”, is a product of professional training in the law.[30] It is also a well-known pre-requisite of appointment to judicial office, reflected in the oath to “do equal justice to all persons” and discharge the duties and responsibilities of office “without fear, favour or affection”.[31]
[29](1997) 139 FLR 36, 51.
[30]Johnson v Johnson (2000) 201 CLR 488, 493.
[31]Constitution of Queensland 2001 Sch 1.
These basic, publicly known considerations fall comfortably within the category of considerations described by Kirby J in Johnson v Johnson[32] as being the most basic considerations which a reasonable and fair-minded observer would ordinarily be taken to have sought to be informed about in order to found a fair understanding.[33] Such an observer would appreciate friendships between lawyers and judges are a mundane incident of professional life of no bearing upon the discharge of their professional responsibilities. Hence, the fact that lawyers and judges participating in the same case happen to be well known to each other is unlikely to raise an apprehension of bias in a fair-minded informed observer. For that reason, non-disclosure thereof will of itself be logically incapable of evidencing grounds for apprehension of bias. There may of course be exceptions, such as where the friendship is an intimate one[34] or involves potentially concerning forms of ex parte contact during the case,[35] but they do not arise here.
[32](2000) 201 CLR 488.
[33]Johnson v Johnson (2000) 201 CLR 488, 508; endorsed by French CJ in British American Tobacco Australia Services Ltd v Laurie (2011) 242 CLR 283, 306.
[34]See for example R v Szabo [2001] 2 Qd R 214.
[35]See for example Charisteas v Charisteas and Ors (2020) 60 Fam LR 483.
There has been no association between the learned presiding judge, the legal representatives in the present case or other persons identified by Mrs Day so as to have warranted disclosure or to have suggested any potential conflict of interest or apprehension of bias such that the presiding judge ought to have recused himself.
Complaint 7: The presiding judge was unfair and acted in a way which would give rise to an apprehension of bias in a fair-minded lay observer (per grounds 11, 15, 19, 20, 21, 22, 23, 38, 39, 40 and 42).
Complaint 7 involves seven specific allegations as well as a bare generalised allegation of unfairness or bias (per ground 11). To the extent the generalised allegation became marginally clearer in Mrs Day’s submissions, it seems to be that as a self-represented litigant with a disability from a non-English speaking background she did not receive procedural fairness or the equal protection of the law.
Whether Mrs Day intends to imply she was not fairly treated by reason of being a self-represented litigant with a disability from a non-English speaking background or to imply that the court did not fairly allow for those considerations in its treatment of her, either implication is without foundation. Mrs Day received a fair opportunity to be heard and the learned presiding judge gave her considerably more latitude than he would have to a legal practitioner appearing before him.
Whatever the extent of the disability referred to by Mrs Day, it did not prevent her engaging in a lengthy and robust pursuit of argument prior to her later unsuccessful application for an adjournment (the refusal of the adjournment is dealt with later in these reasons). As to her command of English, her written and oral submissions demonstrated adequate competence in the English language. Mrs Day was not a novice self-represented litigant either. She had represented herself in various earlier stages of the present matter as well as in other cases, advocating for herself in the District Court, the Supreme Court, the Court of Appeal and the High Court.
Despite Mrs Day’s litigation experience, it may be accepted the fact she was self-represented carried the dual disadvantages, identified by Mason J and McHugh J in Dietrich v The Queen,[36] that she did not have the legal knowledge and skill or the capacity for dispassionate assessment which a retained lawyer could have brought to her case. However, his Honour could not assist Mrs Day as a retained lawyer could. A presiding judge’s obligation to ensure proceedings are conducted fairly may oblige the judge to inform self-represented litigants about relevant legal rights or matters of legal process of which such litigants appear unaware, in order that they may determine how to conduct their case, but the presiding judge’s obligation of impartiality precludes the judge from advising such litigants how to conduct their case.[37] The presiding judge complied with those obligations. The real dilemma here was that the aforementioned disadvantage in legal knowledge and skill and in capacity for dispassionate assessment, manifested in Mrs Day’s pursuit of an application which was misconceived and her resistance to an application which was destined to succeed because of her refusal to submit to examinations. Such determinative problems were not mere disadvantages which could be eased by the presiding judge’s manner of management of the hearing. A presiding judge should of course be civil, as his Honour was. But a presiding judge must decide cases without favour, regardless of whether a litigant lacking in insight, whether due to a psychiatric condition or not, might be upset by losing.
[36](1992) 177 CLR 292, 302.
[37]MacPherson v The Queen (1981) 147 CLR 512, 547.
Turning to the specific seven allegations associated with complaint 7, first, it is alleged the learned primary judge erred in failing to disclose an alleged conflict of interest with Mr Diehm QC and Sofronoff P (per ground 15). As already explained, there was no potential conflict and nothing to disclose.
The second allegation is that in the course of the hearing the learned primary judge constantly interrupted Mrs Day and openly expressed pre-determined views (per grounds 21 and 23). Perusal of the transcript of the hearing does not support the allegation Mrs Day was constantly interrupted. His Honour and Mrs Day occasionally interrupted each other. When his Honour did so it was when Mrs Day was pursuing irrelevant submissions or not addressing his query. Moreover, when his Honour did speak in the course of Mrs Day’s submissions, he did not do so at a frequency materially different to that which occurred during the defendants’ counsels’ submissions.
In the course of the hearing the learned primary Judge asked questions and made observations tending to identify weaknesses and irrelevancies in the arguments being advanced by Mrs Day. Such contributions from the bench in the course of argument are an unremarkable exercise of the judge’s role in trying to properly understand the true force of a party’s submissions and to encourage a party who wanders into irrelevant or evasive submissions to return to addressing the real issues for resolution. They promote the efficient identification and determination of the true issues in the case. Such efficiency is particularly important in managing the court’s many applications hearings expeditiously, so as to allow all listed applications to be heard. The importance of such expedition is also reflected in the court’s requirement that parties in contested applications provide short written outlines of argument usually not exceeding four pages, concisely summarising the argument to be advanced in point form.[38]
[38]Practice Directions No 14 of 1999 and No 6 of 2004 (Supreme Court).
The second allegation was that the Woolworths barristers had failed to responsibly use court process and privilege.[89] The alleged conduct relied upon in support of this allegation was again the bringing of the above discussed applications before the District Court Judge as well as a variety of conduct which was by solicitors, not by the Woolworths barristers, as the learned presiding judge correctly noted. The few of those allegations which did complain of actual conduct by the Woolworths barristers involved a complaint that their outline of written submissions was provided to Mrs Day “shortly before or during the Court hearing”, characterising that as being litigation “by ambush”. The characterisation is wrong. It is common in the applications jurisdiction for written outlines of argument to be exchanged between the parties shortly prior to or at the hearing. The other complaint was about an acknowledgment in submissions by one of the Woolworths barristers in relation to the s 37(2) certificate issue. That issue as it related to the certificate signed by Mr Carter for the second and third defendants was canvassed above at [82]. The Woolworths certificate was similar, although it did add a clause reserving the right to obtain medicolegal reports if the matter did not settle.[90] Counsel’s acknowledgement was to the effect that perhaps the certificate did not comply with s 37(2). That was obviously not a concession that the certificate’s content was wrong or misleading.
[89]AR Vol 1 pp 297-298.
[90]AR Vol 2 p 671.
The third allegation complained of breaches of court orders and practice directions. This allegation involved Mrs Day’s complaints that her matter should not have been dealt with other than in the self-represented litigants supervised case list and that the filing of certain documents and applications occurred while the proceeding was the subject of that stay order by Douglas J. However, apart from there actually being no impropriety in connection with these matters, it is not apparent how they were in any event the responsibility of the Woolworths barristers as distinct from other lawyers involved in the case on behalf of the defendants. Conduct attributed more directly to the Woolworths barristers in connection with the third allegation did not involve misconduct. For example, it was alleged the Woolworths barristers failed to identify issues in the interests of the efficient conduct of litigation by allowing Davis J to place his Honour’s “proposed list of issues” before the court on 17 December 2018, in circumstances explained in these reasons above at [97], [116] - [117]. It is not apparent how not objecting to a Judge’s helpful attempt to identify issues is in any sense a failure. A further example is that the Woolworths barristers supposedly contradicted the desirability of efficient use of court resources by opposing Mrs Day’s attempt to consolidate her case against Woolworths with another case in which she is suing the Queensland University of Technology and others. As the learned primary judge observed, the consolidation application was dismissed, so the opposition was apparently justified.
The fourth allegation alleges abuse of court process and involvement in professional misconduct.[91] To the extent the conduct relied upon in support of this allegation involved the Woolworths barristers, there was again no substance to it. One complaint was that Mr Diehm QC failed to inform the Court of Appeal which upheld the stay order of Douglas J, of supposedly binding authority. This is actually a reference to non-binding observations by Jackson J in a previous Court of Appeal proceeding relating to this case, in which his Honour expressly declined to decide an issue. Another complaint was that Mr O’Driscoll failed to bring Mrs Day’s filing of her recusal application to the attention of Davis J on the occasion that he handed down his decision of 16 November 2018. In fact, it is apparent from what was said by Mr O’Driscoll on that occasion that he alluded to the existence of a forthcoming application and evidently did not descend into the detail of it because he was unaware of the learned presiding judge’s state of ignorance of it.[92] There was also an attempt to attribute misconduct to the Woolworths barristers for the circumstance, which was not their fault, that on 16 November 2018 Mrs Day was not at court and that the learned presiding judge determined to award costs against her on that occasion.
[91]AR Vol 1 pp 301-306.
[92]The exchange was conveniently discussed in earlier reasons - AR Vol 1 pp 61-63.
Further, there was an attempt to allege a breach of the Barristers Conduct Rules on the premise that because Mr Diehm QC and Mr O’Driscoll were the subject of the application to restrain them from acting, they ought not have continued to appear for Woolworths against Mrs Day. In fact, they had sought and obtained the approval of the outgoing President of the Bar Association to continue to act. There was also no impropriety in them continuing to do so in circumstances where, as the learned presiding judge observed, the allegations against them were misconceived and there was no realistic possibility that they would be witnesses in the application against them.
There was no substance to the application to restrain the Woolworths barristers. It was either misconceived or vexatious. The learned presiding judge was right to conclude it ought be dismissed.
In her attempt to amend the application below Mrs Day sought orders punishing the Woolworths barristers, as well as Ms Forbes and Mr Carter, for contempt. The basis for this was the filing of certain documents and making application to dismiss the case while it was subject to a stay and not seeking a review before the self-represented litigant supervised case list judge. Reasons already given above at [40], [76] – [77], [87] and [149] – [155] adequately demonstrate why the bases advanced could never have supported a finding of contempt. The learned primary judge was correct to conclude there was no prospect of the application for relief in the proposed amendment succeeding. It is thus unnecessary to discuss his Honour’s observations about the other obstacles to the attempt to amend the application.
The costs orders below, required Mrs Day to pay the first defendant’s costs of the proceedings and the application on the standard basis and the second and third defendants’ costs of the proceedings, including all reserved costs, on the standard basis except their costs of the application which were ordered to be paid on the indemnity basis.[93] The orders were conventional, following the events below. The indemnity costs order was properly made because the second and third defendants had been unreasonably included in an application which clearly only related to the first defendant’s counsel.
[93]Day v Woolworths Limited & Ors (No 2) [2019] QSC 93.
It is clear the proposed appeal is without merit. The application for an extension of time within which to appeal should therefore be dismissed. Costs should follow the event.
Other applications
It was indicated at the outset of these reasons that the various other applications remaining before this court should be dismissed. The ensuing reasons for that conclusion are of course informed by the above exposition of the issues in the three appeals and application for extension of time within which to appeal.
In CA 5386 of 2018 an application filed 10 November 2020 sought specific orders, that:
1. leave be given for Mrs Day to adduce further evidence;
2. certain lawyers pay costs personally;
3. Mrs and Mr Day be indemnified for loss suffered by reason of the conduct of certain lawyers and law practices;
4. the lawyers in 2. attend court and give evidence in relation to allegations of their breach of duty to the court.
A similar application was filed on the same date in:
· CA 13845 of 2018, save that it also sought as order 5, an order that a subpoena issue requiring the former associate to Justice Davis to attend and give evidence regarding the handling of the litigation;
· CA 1131 of 2019, save that it also sought the extra order 5;
· CA 5777 of 2019, save that it sought as order 3 an additional order that certain lawyers and law practices pay wasted costs in relation to Mrs Day’s applications, with its proposed orders 4 and 5 being identical to orders 3 and 4 sought in the other appeals.
Those parts of the applications which sought proposed orders 3, 4 and 5 above were struck out at the hearing, except for proposed order 5 in the application in CA 13845 of 2018 and proposed order 3 in the application in CA 5777 of 2019. The court’s intention was that proposed order 5 in the application in CA 13845 should be struck out because there was no foundation to potentially justify such an order but in any event the same reasons explain why the application must fail in respect of that aspect of it.
The order 3 sought in the application in CA 5777 of 2019 relates to costs in applications filed 19 June 2019, 21 November 2019 and 27 July 2020. The first two of those applications were struck out with no order as to costs at the hearing. The proposed order’s reference to an application said to have been filed on 27 July 2020 apparently relates to an application dealt with by Morrison JA in making orders relating to arrangements for the hearing of all matters together.[94] It did not remain a live application before this court and in the event a specific order was not made as to costs the costs associated with such a process would be costs in the cause.
[94]Transcript 1-59 L35 – 1-60 L15.
The proposed order 2 in all applications is academic because it only assumed potential relevance in the event of Mrs Day’s success in her Court of Appeal matters. This only leaves proposed order 1, seeking leave to adduce evidence, in each matter. That evidence is Mrs Day’s affidavit sworn on 9 November 2020, an affidavit consisting of 27 pages followed by 251 pages of 96 exhibits.
While this court has the discretion to receive further evidence,[95] it is a discretion which is rigidly controlled because, as McMurdo JA explained in Palmer v Parbery,[96] “it is in the interests of justice that there be an end to litigation”. Most of Mrs Day’s affidavit is merely a repetition of or elaboration upon information, submissions and complaints of a kind repeatedly advanced below and which, as is apparent from the above reasons, have no prospect of demonstrating error. To the extent the affidavit contains any freshly emerged evidence it is the exhibited reports of one Alan Perlman PhD of New Hampshire, USA, who is said to be a forensic linguistic expert with expertise in forensic semantics and forensic stylistics. The exercise in which those reports each engage goes to whether some of the above considered submissions and documents by lawyers was false or misleading. The resolution of that question of fact, a quintessential question for the tribunal of fact, turned upon factual and legal context, not linguistics, as is apparent from the above reasons. In fairness to the expert, it is not apparent he was fully aware of the legal and factual context in play. In any event the opinion in the reports would not be admissible.
[95]UCPR r 766.
[96](2019) 136 ACSR 26, 61.
In all four matters the applications filed 10 November 2020 should be dismissed. Costs should follow the event.
Orders
I would order:
1.In Appeal No 5386 of 2018:
(a)appeal dismissed with costs;
(b)application filed 10 November 2020 dismissed with costs;
(c)in the event there is no successful appeal of order (a) in Appeal No 13845 of 2018, the injunction ordered 24 April 2018 is by this order discharged on the date the possibility of a successful appeal ends.
2.In Appeal No 13845 of 2018:
(a)appeal dismissed with costs;
(b)application filed 10 November 2020 dismissed with costs.
3.In Appeal No 1131 of 2019:
(a)appeal dismissed with costs;
(b)application filed 10 November 2020 dismissed with costs.
4.In Appeal No 5777 of 2019:
(a)application for extension of time within which to appeal and for other relief dismissed with costs;
(b)application filed 10 November 2020 dismissed with costs.
WILLIAMS J: I have read the reasons of Henry J and agree with those reasons and the orders his Honour proposes.
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