Day v Woolworths Ltd - [2016] QCA 321

[2016] QCA 321

COURT OF APPEAL

MARGARET McMURDO P
PHILIPPIDES JA
JACKSON J

Appeal No 3950 of 2016
DC No 224 of 2016

OLGA DAY Appellant

WOOLWORTHS LIMITED
ACN 000 014 675

CPM AUSTRALIA PTY LTD
ACN 063 244 824

RETAIL ACTIVATION PTY LTD Respondents
ACN 111 852 129

BRISBANE

MONDAY, 28 NOVEMBER 2016

JUDGMENT

THE PRESIDENT: This Court heard this appeal on 11 October 2016, reserving its decision and ordering that the first respondent was to file any further submissions by 4.00 pm that day, limited to two pages, with the appellant to file any further submissions in response by 4.00 pm the following Wednesday, again limited to two pages. The Court also noted that a transcript was required. The appellant and the first respondent each filed further submissions in accordance with those orders.

On 12 October 2016 the registry, at the direction of the Court, emailed the parties informing them that the Court wished to bring the parties’ attention to the case of Cleary v Rinaudo (2013) 278 FLR 231 and that if they wished to make any further submissions on that case, they must do so by 4.00 pm on the following Friday, with submissions limited to one page. On 14 and 17 October 2016 the first respondent and the appellant, respectively, filed the further one page submissions. I note that, earlier, on 13 October, the appellant unsuccessfully asked this Court for leave to file a four page submission. The Court did, however, extend the time for the filing of her one page submission to 17 October. And on 16 October 2016 she filed an affidavit containing further submissions to this Court and annexing emails and letters.

On 4 November 2016 she wrote to the registry, with copies to the judges’ associates, stating:

“Please be advised that in 2002 the High Court of Australia granted pro-bono legal assistance to my husband for representation of the matter before the High Court of Australia. As a result, his Honour Philip McMurdo (then the Queen’s Counsel) was appointed to act in that matter.
However, due to failure to act upon our instructions, we declined such legal assistance and Mr Phillip McMurdo’s appearance before the High Court of Australia. As a result, my husband represented the matter himself with my assistance at the bar table during the Court hearing in February 2003. Thanks to God, on 8 May 2003 the Full Bench of the High Court of Australia granted an order absolute issuing writs of certiorari, prohibition and mandamus under section 75 of the Constitution of Australia.
In this regard, please advise whether her Honour Margaret McMurdo, wife of his Honour Philip McMurdo, was aware about her husband’s involvement in the said matter.”

She then filed another affidavit on 7 November 2016 headed “FURTHER EVIDENCE RE: PROCEDURAL FAIRNESS ISSUES”. She deposed that on 3 November she wrote to the Executive Director of Courts, copied to the associates of the judges who heard the appeal, inquiring about obtaining a transcript or…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Day v Woolworths Ltd

Details

AGLC: Day v Woolworths Ltd [2016] QCA 321
Case: [2016] QCA 321
Decision Date: 28 NOVEMBER 2016

CaseChat Overview and Summary

Olga Day appealed against a decision of the District Court, which had dismissed her claim for damages against Woolworths Limited and others. The appeal raised questions about the appellant's capacity to conduct her case and about whether the President of the Court of Appeal should recuse herself due to a potential conflict of interest. The President had previously acted pro bono for the appellant and her husband in a case before the High Court. The appellant argued that this past connection was a conflict of interest that required the President to recuse herself from the current appeal.

The central legal issue before the Court was whether the President should recuse herself on the grounds of apprehended bias due to her past representation of the appellant and her husband. The Court also needed to determine whether the appellant should be granted an extension of time to file her submissions in light of her medical conditions and the complexity of the case. The Court had to consider the principles of judicial impartiality and the rights of self-represented litigants in a fair and reasonable manner.

The Court held that the President should not recuse herself. It found that an objective observer would not apprehend any bias on her part given the length of time since her previous representation of the appellant and the different nature of the current case. The Court also rejected the appellant's claims of procedural unfairness in relation to the directions for post-hearing submissions. While acknowledging the appellant's medical conditions, the Court did not grant the extension of time she sought for filing her submissions on Cleary v Rinaudo. Instead, the Court ordered that the appellant could file a four-page submission by a specified deadline, with a corresponding response from the respondents. The Court reserved the issue of costs.

In summary, the Court of Appeal dismissed the appellant's application for the President to recuse herself and her claim for an extension of time to file submissions. The Court allowed the appellant a limited extension of time to file a four-page submission on Cleary v Rinaudo, with a corresponding response from the respondents.

Orders