Drury Management v Walters

[2005] QSC 70

SUPREME COURT OF QUEENSLAND

CITATION:

Drury Management and Ors v Walters and Ors [2005] QSC 070

PARTIES:

DRURY MANAGEMENT PTY LTD ACN 089 253 958 (in liquidation)
(first plaintiff)
RANSOM HOUSE PTY LTD ACN 072 391 407 (in liquidation)
(second plaintiff)
IAN DAVID JESSUP
(third plaintiff)
v
PIET CORNELIUS WALTERS
(first defendant)
MARK SAMUEL EVANS
(second defendant)
VIRGINIA LEE RANSOM-WALTERS
(third defendant)
WILLIAM JM ROYDS
(fourth defendant/applicant)
STANLEY JAMES PLACE
(fifth defendant)
VALMAI JOY PLACE
(sixth defendant)

FILE NO/S:

S7016 of 2004

DIVISION:

Trial

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

31 March 2005

DELIVERED AT:

Brisbane

HEARING DATE:

29 March 2005

JUDGE:

McMurdo J

ORDER:

Application dismissed

CATCHWORDS:

PROCEDURE – COURTS AND JUDGES GENERALLY – DISQUALIFICATION FOR INTEREST OR BIAS – IN GENERAL – REASONABLE SUSPICION OF BIAS – applicant is the fourth defendant in present case – application for removal of any Queensland judge, including the supervising judge, from hearing any matter involving applicant– where applicant has brought separate proceedings against the Bar Association of Queensland and members of the Bar council – where applicant alleges affiliation of all Queensland judges with these members – where applicant sued in this action for breach of trust – where credibility may be in issue – whether actual or reasonable apprehension of bias

The Queen v Watson ex parte Armstrong (1976) 136 CLR 248, referred to
Livesey v The New South Wales Bar Association (1983) 151 CLR 288, referred to
Royds v Sumner-Potts [2005] QSC 015, referred to

COUNSEL:

MD Martin for the plaintiffs
The first defendant appeared on his own behalf
The second defendant appeared on his own behalf
The third defendant appeared on her own behalf
The fourth defendant/applicant appeared on his own behalf
M Gynther for the fifth and sixth defendants

SOLICITORS:

MacDonnells Solicitors for the plaintiffs
The first defendant appeared on his own behalf
The second defendant appeared on his own behalf
The third defendant appeared on her own behalf
The fourth defendant/applicant appeared on his own behalf
Robert Caselegno Solicitors for the fifth and sixth defendants

1. McMURDO J:  Mr Royds, who is a defendant in this case, has made an oral application to the effect that no Judge of this Court should determine any question between the plaintiffs and him, including any interlocutory issue.  He appears to argue that any Judge would be biased against him, although a Judge is disqualified also if he or she may reasonably be suspected of bias: The Queen v Watson ex parte Armstrong (1976) 136 CLR 248; Livesey v The New South Wales Bar Association (1983) 151 CLR 288. He is the plaintiff in other proceedings in this Court numbered 271 of 2004 in which the defendants are a barrister, Mr Sumner-Potts, the Bar Association of Queensland, and 17 barristers who were members of the Bar Council at a relevant time. None of those defendants is a party or is otherwise relevant to the present proceedings. Nor are the events in that case at all connected with the present case.

1. Mr Royds has claimed that because of likely friendships and professional associations between the Bar Council and Judges of this Court, no Judge of the Court should hear his case against the Bar Association and others. That objection was noted by Mackenzie J when making interlocutory orders in that case on 10 February 2005 (see [2005] QSC 015), but thus far it has been unnecessary for the merit of his objection in relation to the Bar Association case to be considered. However, he argues that from the fact that he is suing the Bar Association and its Council, coupled with the perceived connection between those parties and Judges of this Court, there is an actual or perhaps a reasonable apprehension of bias against him in relation to any other case, including the present matter.

1. In this case the plaintiffs, who are companies in liquidation, claim against him that approximately $122,000 which passed through his trust account belonged to one or other of them. An amount of approximately $80,000 of those moneys has been paid into Court by Mr Royds, who claims no entitlement to it.  The remaining $42,000 was paid out, at least as the plaintiffs allege, by Mr Royds to himself or to others.  The plaintiffs' case is that he did so with notice of their claim and in breach of trust.  There is an issue of fact as to whether he received what the plaintiffs say was a written notification of their claim to the moneys before he paid them from his trust account.  In that respect, at least, there is the likelihood that Mr Royds' credibility will have to be assessed.

1. The consolidated proceedings of which the claim against Mr Royds forms part, are being managed by me on the supervised list.  I am a member of the Bar Association and I have personal friendships with many of the defendants in Mr Royds' action, but at present I see no basis for a reasonable apprehension of bias in my supervision of the progress of this case towards its trial.  I am told that when Mr Royds made a recent application to Mr Justice Muir for an order for particulars, at the same time he made a similar objection, which his Honour rejected.

1. The effect of Mr Royds' application is that I should order that no Judge of the Court be involved with this claim against him.  It is a matter for another Judge as to whether he or she is disqualified from determining the relevant issue, whether it be an interlocutory question, or the issue or issues at the trial.  I will continue to supervise the progress of this case unless and until there appear to be circumstances which warrant my ceasing to do so.