Day v Woolworths Limited

Case [2019] QSC 40

SUPREME COURT OF QUEENSLAND

CITATION:

Day v Woolworths Limited & Ors [2019] QSC 40

PARTIES:

OLGA DAY

(plaintiff)

v
WOOLWORTHS LIMITED
ACN 000 014 675

(first defendant)

CPM AUSTRALIA PTY LTD
ACN 063 244 824

(second defendant)

RETAIL ACTIVATION PTY LTD
ACN 111 852 129

(third defendant)

FILE NO:

No 6016 of 2016

DIVISION:

Trial Division

PROCEEDING:

Application

DELIVERED ON:

1 March 2019

Order made on 8 January 2019

DELIVERED AT:

Brisbane

HEARING DATE:

17 December 2018; 8 January 2019

JUDGE:

Davis J

ORDER:

Paragraph 1 of the application filed 13 November 2018 is dismissed.

CATCHWORDS:

COURTS AND JUDGES – JUDGES – DISQUALIFICATION FOR INTEREST OR BIAS – PARTICULAR GROUNDS – where the applicant brought an application for the presiding judge to be recused from any further involvement in the proceedings on numerous grounds, including but not limited to perception of bias, prejudgment of the case and professional and personal relationships – whether there were any grounds that would require the judge to recuse himself from the matter – where the application was refused

Supreme Court of Queensland Act 1991 (Qld), s 8

Uniform Civil Procedure Rules 1999 (Qld), r 367

Australian National Industries Ltd v Spedley Securities Ltd (in liq) (1992) 26 NSWLR 411, cited
British American Tobacco Australia Services Ltd v Laurie (2011) 242 CLR 283, followed
Carruthers v Connolly [1998] 1 Qd R 339, cited
Day v Woolworths Limited & Ors [2018] QSC 266, related
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, followed
Isbester v Knox City Council (2015) 255 CLR 135, followed
Keating v Morris [2005] QSC 243, cited
Koowarta v Bjelke-Petersen (1982) 153 CLR 168, cited
Livesey v New South Wales Bar Association (1983) 151 CLR 288, cited
Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273, cited
Parbery & Ors v QNI Metals Pty Ltd [2018] QSC 213, followed
R v Lars (1994) 73 A Crim R 91, cited
R v Masters (1992) 26 NSWLR 450, cited
R v Watson; Ex parte Armstrong (1976) 136 CLR 248, cited

Re JRL; Ex parte CJL (1986) 161 CLR 342, cited

COUNSEL:

The plaintiff appeared in person
G W Diehm QC and G O’Driscoll for the first defendant and for themselves

R Morton for the second and third defendants

SOLICITORS:

The plaintiff for herself
Ashurst Australia for the first defendant and for Mr Diehm QC and Mr O’Driscoll
Mills Oakley for the second and third defendants

  1. The plaintiff, Mrs Day, by application filed 13 November 2018, applied for the following orders:

    “1. Pursuant to Rule 367 of the Uniform Civil Procedure Rules 1999 (Qld), and/or the inherent jurisdiction of the Court, Davis J be recused from any further involvement in the above proceedings.[1]

    2.Pursuant to the inherent jurisdiction of the Court:

    1)        Mr Geoffrey Diehm, the Queen’s Counsel of Jeddart Chambers, to be restrained from acting for Woolworths Limited (self-insured) in the interests of protecting the integrity of…

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AGLC
Day v Woolworths Limited [2019] QSC 40
Case
[2019] QSC 40
Decision Date

CaseChat Overview and Summary

The case of Day v Woolworths Limited involves an application by the applicant, Mrs Day, for the presiding judge to be recused from any further involvement in the proceedings. The grounds for this application included perception of bias, prejudgment of the case, and professional and personal relationships. The judge considered various factors, including professional and personal connections with a particular party, comments made by the judge as the President of the Bar Association of Queensland, and the fact that the judge was a director of the Bar Association of Queensland and so had been involved with the other parties. The judge ultimately concluded that none of these factors gave rise to an apprehension of bias and dismissed the application.

The legal issues before the court were whether there were any grounds that would require the judge to recuse himself from the matter. The court had to consider whether the failure to determine the allegations of apprehended bias before delivering judgment constituted a ground for recusal. Additionally, the court needed to determine if any of the factors raised by the applicant gave rise to a reasonable apprehension of bias.

In its reasoning, the court found that there was no logical correlation between the failure to determine the allegations of apprehended bias before delivering judgment and any risk that the judge would decide the current applications against the other parties other than on the merits. The court held that no fair-minded lay observer might reasonably apprehend that the judge would not bring an impartial mind to the resolution of the matters raised against the other parties. The court also concluded that none of the factors raised by the applicant gave rise to an apprehension of bias. Therefore, the application was dismissed.

The final orders of the court were that paragraph 1 of the application filed on 13 November 2018 was dismissed. This meant that the presiding judge was not required to recuse himself from the proceedings and could continue to preside over the case.

Orders

Orders of the court

Paragraph 1 of the application filed 13 November 2018 is dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

I adopt and follow his Honour’s analysis. I will now deal with the individual complaints. I failed to consider the present application before delivering judgment The issue is whether the failure to determine the allegations of apprehended bias before delivering judgment on 16 November 2018 is, in itself, a ground for recusing myself from the present applications as raising an apprehension of bias. As a matter of fact the application which was filed on 13 November 2018 did not come to my attention until after I had delivered judgment on 16 November 2018. The application was brought to my attention by Mr O’Driscoll on the day the judgment was delivered but after judgment had been delivered. Even then he only mentioned the relief sought against himself and Mr Diehm QC, not the fact that the application also sought that I recuse myself from hearing any matter relating to the present proceedings. However, Mrs Day submitted during the hearing that I had at least constructive knowledge of the application, because court registry staff knew of the application.[16] [16] Transcript of the hearing at 1-25. There is no logical correlation between the fact that I delivered judgment in one application before determining another application (about which I knew nothing), and any risk that I would decide the current applications against Mr Diehm QC and Mr O’Driscoll other than on the merits. No fair minded lay observer might reasonably apprehend that I would not bring an impartial mind to the resolution of the matters raised against Mr Diehm QC and Mr O’Driscoll as a result of delivering judgment on 16 November 2018 before firstly determining the present application that I recuse myself. Even if I was unaware of the application as at 16 November 2018, I was aware of the factors that gave rise to a perception of bias and I should have disclosed and considered those As I understand Mrs Day’s argument, the factors I ought to have disclosed are:(i)any professional and personal connections with Sofronoff P;(ii)comments I made when I was the President of the Bar Association of Queensland;(iii)the fact that I was a director of the Bar Association of Queensland and so had been Mr Diehm QC and Mr O’Driscoll. I have concluded for the reasons which follow that none of these factors give rise to an apprehension of bias. It follows then that no fair minded lay observer might reasonably apprehend, on the basis that I did not make the disclosures, that I might decide the present applications against Mr Diehm QC and Mr O’Driscoll other than on the merits.I heard the application on 8 November 2018 instead of Martin J On the law list on 8 November 2018, I was shown as sitting with Martin J in the applications list and the law list showed that a number of matters had been specifically listed before me. The other matters were all listed before Martin J, who, between us, is the senior judge. That is the practice of the Court and Martin J sent Mrs Day’s matter to me once I became available.

Ratio Decidendi

Legal Principle Established

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