Ivory v Telstra Corporation Ltd - [2002] QCA 457

SUPREME COURT OF QUEENSLAND

CITATION:

Ivory v Telstra Corporation Ltd & Anor [2002] QCA 457

PARTIES:

KENNETH CLYDE IVORY
(plaintiff/appellant)
v
TELSTRA CORPORATION LIMITED ACN 051 775 556
(first defendant/first respondent)
STEPHEN JOHN MEAD
(second defendant/second respondent)

FILE NO/S:

Appeal No 4059 of 2001
Appeal No 4423 of 2001
SC No 9084 of 1999

DIVISION:

Court of Appeal

PROCEEDINGS:

General Civil Appeals

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

1 November 2002

DELIVERED AT:

Brisbane

HEARING DATE:

17 July 2002

JUDGES:

Davies and Jerrard JJA and Wilson J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Appeals dismissed with costs

CATCHWORDS:

PROCEDURE – COURTS AND JUDGES GENERALLY – JUDGES – POWER TO CONTROL PROCEEDINGS – PRESENTATION OF ORDER AND DECENCY – where appellant contends that he was unable to present his case adequately due to the trial date being “forced on” – where appellant’s application to have the hearing date adjourned was dismissed – whether appellant demonstrated on appeal that he would have been better prepared for trial had the adjournment been granted

PROCEDURE – COURTS AND JUDGES GENERALLY – JUDGES – DISQUALIFICATION FOR INTEREST OR BIAS – IN GENERAL – ORDINARY RULE – where learned trial judge set down the trial date when the appellant contends he was unready – where learned trial judge referred to the appellant as a “humbug” – where learned trial judge later explained the use of this expression in more favourable terms – where learned trial judge assisted the appellant in the presentation of his case by forcing him to focus on proving essential, relevant matters and restraining him from examining irrelevant issues – whether actions and statements of learned trial judge evidenced a predetermination of the appellant and his case

PROCEDURE – COURTS AND JUDGES GENERALLY – JUDGES – DISQUALIFICATION FOR INTEREST OF BIAS – PARTICULAR RELATIONSHIPS OR CIRCUMSTANCES – OTHER MATTERS – where learned trial judge knew the respondent’s solicitor from past professional dealings – where appellant contends that the learned trial judge misused his past loyalties in the course of the trial – where learned trial judge assured the appellant that his professional relationship with the solicitor would not influence his judgment - where apprehended bias test applied – whether a fair minded lay observer might reasonably apprehend that the learned trial judge did not bring an impartial and unprejudiced mind to the resolution of the trial

APPEAL AND NEW TRIAL – APPEAL PRACTICE AND PROCEDURE – QUEENSLAND – WHEN APPEAL LIES – BY LEAVE OF COURT – COSTS ORDERS – where appellant brought an appeal without leave against an order made against him for indemnity costs – where presentation of appellant’s case involved him making vehement, unrestrained and unjustifiable criticisms of the witnesses, lawyers and judge – whether appeal incompetent

Peace and Good Behaviour Act 1982 (Qld), s 4, s 6
Supreme Court Act 1995 (Qld), s 253

Aussie Airlines Pty Ltd v Australian Airlines Pty Ltd & Ors

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.

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Details

Case: [2002] QCA 457
Decision Date: 1 November 2002

CaseChat Overview and Summary

The matter of Ivory v Telstra Corporation Ltd was heard in the court of appeal. The appellant, Ivory, appealed against the trial judge's decision to dismiss his application for an adjournment of the trial date and his disqualification from hearing the case. The appellant contended that the trial date was forced upon him, preventing him from adequately presenting his case. He also argued that the trial judge was biased due to past professional relationships and comments made during the trial. The appeal centred on whether the trial judge's actions and statements demonstrated a predetermination of the appellant's case and whether the judge's past relationship with the respondent's solicitor influenced his judgment.
The court considered the appellant's arguments regarding the trial judge's control over proceedings and potential bias. The court found that the trial judge's comments and actions were aimed at ensuring the appellant focused on relevant matters and did not indicate predetermination or bias. The court held that a fair-minded lay observer would not reasonably apprehend that the trial judge did not bring an impartial and unprejudiced mind to the resolution of the trial. The court also found that the appellant's appeal against the indemnity costs order was incompetent due to his conduct during the trial.
The appeal was dismissed with costs. The court upheld the trial judge's decision to dismiss the application for an adjournment and to disqualify the appellant from hearing the case. The court found that the trial judge's actions and statements did not evidence predetermination or bias, and the appellant's appeal against the indemnity costs order was deemed incompetent due to his conduct during the trial. The final orders were that the appeals were dismissed with costs.

Orders

Orders of the court

Appeals dismissed with costs

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Ivory v Telstra Corporation Ltd & Anor [2002] QCA 457
PARTIES:	KENNETH CLYDE IVORY (plaintiff/appellant) v TELSTRA CORPORATION LIMITED ACN 051 775 556 (first defendant/first respondent) STEPHEN JOHN MEAD (second defendant/second respondent)
FILE NO/S:	Appeal No 4059 of 2001 Appeal No 4423 of 2001 SC No 9084 of 1999
DIVISION:	Court of Appeal
PROCEEDINGS:	General Civil Appeals
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	1 November 2002
DELIVERED AT:	Brisbane
HEARING DATE:	17 July 2002
JUDGES:	Davies and Jerrard JJA and Wilson J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Appeals dismissed with costs
CATCHWORDS:	PROCEDURE – COURTS AND JUDGES GENERALLY – JUDGES – POWER TO CONTROL PROCEEDINGS – PRESENTATION OF ORDER AND DECENCY – where appellant contends that he was unable to present his case adequately due to the trial date being “forced on” – where appellant’s application to have the hearing date adjourned was dismissed – whether appellant demonstrated on appeal that he would have been better prepared for trial had the adjournment been granted PROCEDURE – COURTS AND JUDGES GENERALLY – JUDGES – DISQUALIFICATION FOR INTEREST OR BIAS – IN GENERAL – ORDINARY RULE – where learned trial judge set down the trial date when the appellant contends he was unready – where learned trial judge referred to the appellant as a “humbug” – where learned trial judge later explained the use of this expression in more favourable terms – where learned trial judge assisted the appellant in the presentation of his case by forcing him to focus on proving essential, relevant matters and restraining him from examining irrelevant issues – whether actions and statements of learned trial judge evidenced a predetermination of the appellant and his case PROCEDURE – COURTS AND JUDGES GENERALLY – JUDGES – DISQUALIFICATION FOR INTEREST OF BIAS – PARTICULAR RELATIONSHIPS OR CIRCUMSTANCES – OTHER MATTERS – where learned trial judge knew the respondent’s solicitor from past professional dealings – where appellant contends that the learned trial judge misused his past loyalties in the course of the trial – where learned trial judge assured the appellant that his professional relationship with the solicitor would not influence his judgment - where apprehended bias test applied – whether a fair minded lay observer might reasonably apprehend that the learned trial judge did not bring an impartial and unprejudiced mind to the resolution of the trial APPEAL AND NEW TRIAL – APPEAL PRACTICE AND PROCEDURE – QUEENSLAND – WHEN APPEAL LIES – BY LEAVE OF COURT – COSTS ORDERS – where appellant brought an appeal without leave against an order made against him for indemnity costs – where presentation of appellant’s case involved him making vehement, unrestrained and unjustifiable criticisms of the witnesses, lawyers and judge – whether appeal incompetent Peace and Good Behaviour Act 1982 (Qld), s 4, s 6 Supreme Court Act 1995 (Qld), s 253 Aussie Airlines Pty Ltd v Australian Airlines Pty Ltd & Ors