Day v Woolworths Limited

Case [2018] QSC 266

SUPREME COURT OF QUEENSLAND

CITATION:

Day v Woolworths Limited & Ors [2018] QSC 266

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:

16 November 2018

DELIVERED AT:

Brisbane

HEARING DATE:

8 November 2018

JUDGE:

Davis J

ORDER:

1.   If the plaintiff does not advise the solicitors for the defendants, in writing, of the selection of one of the persons from each of the groups specified in paragraph 2 of the order of Douglas J of 27 November 2017, by 4 pm on 21 November 2018, the claim is permanently stayed.

2.   The plaintiff’s application is dismissed.

CATCHWORDS:

PROCEDURE – STATE AND TERRITORY COURTS: JURISDICTION, POWERS AND GENERALLY – INHERENT AND GENERAL STATUTORY POWERS – TO STAY OR DISMISS ORDERS OR PROCEEDINGS GENERALLY – where the defendants apply for the dismissal of proceedings – where it was previously ordered that the plaintiff’s claim for damages for personal injury was stayed until the plaintiff underwent medical examinations – where the plaintiff challenged those orders on appeal but was unsuccessful – where the plaintiff has not undergone medical examinations as required by those orders for proceedings to continue – whether the plaintiff’s claim should be dismissed – whether a self-executing stay order is more appropriate

PROFESSIONS AND TRADES – LAWYERS – DUTIES AND LIABILITIES – DUTIES TO COURT – GENERALLY – where the plaintiff applies for particular legal practitioners who have acted for the defendants to be restrained from acting to protect the administration of justice – where the plaintiff alleges that the practitioners in question have misled the Court, or otherwise acted unethically – whether the allegations of misconduct are legitimate – whether the practitioners should be restrained from acting

Personal Injuries Proceedings Act 2002 (Qld) s 25

Uniform Civil Procedure Rules 1999 (Qld) r 5

Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256, cited
Day v Lerch & Ors [2018] QCA 224, cited
Day v Humphrey [2017] QCA 104, cited
Day v Humphrey [2017] QSC 236, cited
Day v Woolworths Ltd & Ors [2016] QCA 321, cited
Day v Woolworths Ltd & Ors [2018] HCASL 253, cited
Day v Woolworths Group Ltd& Ors [2018] QCA 105, cited
Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51, cited
Koowarta v Bjelke-Petersen (1982) 153 CLR 168, cited
Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273, cited

Re Macks; Ex parte Saint (2000) 204 CLR 158, cited

COUNSEL:

The plaintiff appeared in person
G W Diehm QC for the first defendant and for Ms Gabrielle Forbes
J Sewell for the second and third defendants and for Mr Simon Carter

E M Turnbull (solicitor) for Mr Richard Morton of counsel

SOLICITORS:

Ashurst Australia…

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AGLC
Day v Woolworths Limited [2018] QSC 266
Case
[2018] QSC 266
Decision Date

CaseChat Overview and Summary

In the matter of Day v Woolworths Limited, the plaintiff, Mrs Day, had initiated proceedings against Woolworths and other defendants, seeking damages for personal injury sustained under the Personal Injuries Proceedings Act 2002 (Qld). The defendants, including Woolworths, CPM, and Retail, sought to have the proceedings dismissed on the grounds that Mrs Day refused to nominate doctors and a therapist as required by the orders made by Douglas J on 27 November 2017, which mandated that the proceedings be stayed until Mrs Day underwent independent medical examinations. Mrs Day had unsuccessfully appealed against these orders to the Court of Appeal and the High Court, yet she had not complied with the requirement to nominate medical professionals. The court had to decide whether to dismiss the proceedings or to impose a self-executing stay order.

The primary legal issue before the court was whether the proceedings should be dismissed for non-compliance with the earlier orders, or if a self-executing stay order would be more appropriate. The court had to consider the inherent jurisdiction it possesses to manage its own processes and ensure the proper administration of justice. Additionally, the court had to evaluate whether the allegations of misconduct by certain legal practitioners acting on behalf of the defendants were legitimate and warranted any restraints being imposed on them. Given Mrs Day's persistent refusal to nominate medical professionals and her history of challenging the court's orders, the court had to balance the defendants' right to a fair trial against Mrs Day's right to litigate.

The court found that while Mrs Day had not breached any order, her refusal to comply with the requirements set forth by the court created an untenable situation. The court emphasised that Mrs Day had multiple opportunities to challenge the orders and had lost those challenges. The court also dismissed Mrs Day's application to restrain certain legal practitioners from acting, finding that the allegations of misconduct did not substantiate such a restraint. Consequently, the court decided that the claim would be permanently stayed if Mrs Day did not nominate the required medical professionals by a specified date. Mrs Day's application to restrain the defendants' legal practitioners was also dismissed.

The court made an order that if Mrs Day did not select medical professionals as required by the earlier order, the proceedings would be permanently stayed. Additionally, Mrs Day's application to restrain the defendants' legal practitioners was dismissed. The court's decision was based on the need to ensure that the defendants could proceed with the trial and on Mrs Day's persistent refusal to comply with the court's orders.

Orders

Orders of the court

1. If the plaintiff does not advise the solicitors for the defendants, in writing, of the selection of one of the persons from each of the groups specified in paragraph 2 of the order of Douglas J of 27 November 2017, by 4 pm on 21 November 2018, the claim is permanently stayed.

2. The plaintiff’s application is dismissed.

Background

Background to the litigation

I will deal firstly with the applications brought by Woolworths, CPM and Retail.Factual background Mrs Day’s cause of action falls within the provisions of the Personal Injuries Proceedings Act 2002 (Qld) (PIPA). It is not necessary, for reasons which will become evident, to descend to detail the fairly tortious path that the proceedings have taken. Suffice to say that there have been various disputes between the parties and interlocutory applications. For present purposes, the important event was the making of orders by Douglas J on 27 November 2017. Relevantly, his Honour ordered:“2. On the undertaking given by the Defendants to meet the fees of the experts involved and of the Plaintiff’s reasonable costs incurred in attending, the proceeding be stayed until the Plaintiff undergoes independent medico-legal examination by one expert to be selected by the Plaintiff from each of the following groups:(a)An orthopaedic specialist, one of Dr Peter Steadman, Dr David Morgan, or Dr Prue Fitzpatrick;(b)A neurosurgeon, one of Dr Terry Coyne, Dr Michael Weidmann, or Dr Gregory Ohlrich;(c)A consultant psychiatrist, one of Dr Jill Reddan, Dr John Steinberg, or Professor Harvey Whiteford; and(d)An occupational therapist, one of Xavier Zietek, David Morris or Cameron Fraser.” Mrs Day appealed that order.[1] The appeal was listed for hearing on 25 May 2018. Mrs Day emailed the registry of the Court seeking an adjournment. The Court did not adjourn the appeal and proceeded to ultimately dismiss it.[2] [1] Day v Woolworths Group Ltd& Ors [2018] QCA 105.[2] At [7]–[10], [48]. Mrs Day sought special leave to appeal to the High Court of Australia from the dismissal of her appeal by the Court of Appeal. That application was dismissed without oral hearing on 12 September 2018.[3][3] Day v Woolworths Ltd & Ors [2018] HCASL 253. After the High Court dismissed the application for special leave, the solicitors for Woolworths and the solicitors for CPM and Retail each wrote to Mrs Day requiring her to nominate doctors and a therapist pursuant to the order of Douglas J. On 22 October 2018, the plaintiff responded. It is unnecessary to set out in any great deal the contents of that letter. It was very long and most of it consisted of arguments challenging the correctness of his Honour’s order. In addition, Mrs Day asserted that she had legal advice that there had been violations of the International Covenant on Civil and Political Rights (ICCPR) and that the proceedings should remain stayed until her complaint to the United Nations Human Rights Committee had been determined. In the meantime, she did not intend to nominate doctors and a therapist. The defendants bring applications seeking dismissal of the proceedings on the basis that Mrs Day refuses to prosecute her case by nominating doctors and a therapist.The arguments The submissions made on behalf of the defendants can be summarised as follows:(i)the order of Douglas J has survived appeals;(ii)there is no further right of appeal from his Honour’s orders;(iii)consequently, Mrs Day cannot progress her claim unless she nominates doctors and a therapist pursuant to his Honour’s orders;(iv)she refuses to do so;(v)the Court has an inherent jurisdiction to dismiss the proceedings; and(vi)that should occur.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

And later:“HIS HONOUR: You’re just failing to come to grips with the fact, notwithstanding that I’ve pointed it out to you on numerous occasions. Your problem is the order of the 27th of November 2017.PLAINTIFF: Which was made – which was made - - - HIS HONOUR: Right.PLAINTIFF: - - - under influence of the misleading information provided by Mr Richard Morton, who misled the court with the inconsistences in my medical evidence. As I put into my affidavit which filed on 5th of November 2018, the transcript of proceedings states that justice – counsel – Mr Morton, he mis – he made a misleading statement to the court. I would like to refer to the transcript which he was making this statement. So when I - - - HIS HONOUR: But, Mrs Day, why does it matter? Because you’ve got the order of the 27th of November 2017. You’ve appealed that, and you’ve lost. You appealed again, and you’ve lost.PLAINTIFF: Not yet.HIS HONOUR: Yes, you have.PLAINTIFF: In this – in Australia, yes, I’ve lost that.HIS HONOUR: In the court system, you’ve lost.PLAINTIFF: That’s right, yes. But - - - HIS HONOUR: Right.PLAINTIFF: - - - I still have avenue to the European United Nations - - - HIS HONOUR: I see.PLAINTIFF: - - - Commission of Human Rights, because if you would see from the documents how I was treated in the Supreme Court of Queensland and the - - - HIS HONOUR: Now, this is - - - PLAINTIFF: - - - Queensland Court of Appeal - - - HIS HONOUR: All right.”[18][18] At 1-26.Consideration of the defendants’ applications Mrs Day resisted the application which was ultimately determined by Douglas J on 27 November 2017. She then challenged the orders in the Court of Appeal and sought to challenge the orders in the High Court. She challenged the correctness of the orders in both written and oral submissions before me. There have now been four hearings on the issue of whether Mrs Day should subject herself to independent medical examination. The defendants were put to the expense of all these hearings. The present position is intolerable. Mrs Day simply does not accept the rulings which have been made in favour of the defendants and has clearly manifested before me an intention not to nominate the doctors and therapist from those named in the order of Douglas J. Mrs Day cannot advance her claim because of the stay until she does something which she simply refuses to do. The defendants are left in a position where the only way they can bring the case to trial is to forego the independent examination of Mrs Day. They should not have to do that. Mrs Day must make a choice to either:(i)submit to the examinations; or(ii)not, but with the inevitable result that her claim will at some point be dismissed. Mrs Day, as already observed, is not in breach of the orders made by Douglas J. As already observed, those orders did not actually oblige her to do anything. It is difficult to see a clear pathway under the Uniform Civil Procedure Rules 1999 (Qld) (UCPR) whereby the Court could dismiss Mrs Day’s proceedings.