Kennedy v Qantas Ground Services Pty Ltd (No 5)

[2025] ACTSC 102

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Kennedy v Qantas Ground Services Pty Ltd (No 5)

Citation: 

[2025] ACTSC 102

Hearing Date: 

20 March 2025

Decision Date: 

21 March 2025

Before:

Mossop J

Decision: 

See [1]

Catchwords: 

PRACTICE AND PROCEDURE – DIRECTIONS – Directions made in relation to the serving of expert evidence and attendance at mediations – 90-step timetable proposed by plaintiff – more limited timetable proposed by defendants focusing on expert evidence and mediations – the latter course more appropriate in interests of advancing the proceedings towards a resolution

PRACTICE AND PROCEDURE – COURTS AND JUDGES GENERALLY – Oral application by plaintiff for judge to recuse himself – application of the fair-minded lay observer test – application refused

Legislation Cited:

Court Procedures Act 2004 (ACT), s 5A

Cases Cited: 

Kennedy v Qantas Ground Services Pty Ltd [2023] ACTSC 404

Kennedy v Qantas Ground Services Pty Ltd (No 2) [2024] ACTSC 232

Kennedy v Qantas Ground Services Pty Ltd (No 3) [2024] ACTSC 271

Kennedy v Qantas Ground Services Pty Ltd (No 4) [2025] ACTSC 66

Parties: 

Ross Kennedy ( Plaintiff)

Qantas Ground Services Pty Ltd ( First Defendant)

Qantas Airways Limited (Fifth Defendant)

Representation: 

Counsel

Self-represented ( Plaintiff)

D Crowe ( First and Fifth Defendants)

Solicitors

Self-represented ( Plaintiff)

Sparke Helmore ( First and Fifth Defendants)

File Number:

SC 253 of 2019

MOSSOP J:  

Introduction

1․Yesterday, I made the following orders:

(1)The plaintiff is to serve expert evidence by 20 May 2025.

(2)The defendants are to serve expert evidence by 23 June 2025.

(3)The parties are to participate in a court annexed mediation in the first available Civil Mediation Block after 23 June 2025.

(4)The parties have liberty to apply for the matter to be relisted on three days notice by email to Mossop J’s associate.

2․As I was to immediately resume a trial, I reserved my reasons for those orders. These are my reasons for making those orders.

3․These proceedings have an extensive history. They were commenced in 2019, but were only first before the court in 2020. They have been the subject of a number of judgments:

(a)Kennedy v Qantas Ground Services Pty Ltd [2023] ACTSC 404 (grant of leave to file further amended statement of claim);

(b)Kennedy v Qantas Ground Services Pty Ltd (No 2) [2024] ACTSC 232 (grant of leave to file third further amended statement of claim);

(c)Kennedy v Qantas Ground Services Pty Ltd (No 3) [2024] ACTSC 271 (non‑compliance with orders concerning filing amended pleading);

(d)Kennedy v Qantas Ground Services Pty Ltd (No 4) [2025] ACTSC 66 (directions following withdrawal of a solicitor).

4․The plaintiff has been represented by a number of different firms of solicitors at different times. The file records that notices of solicitor acting or notices of acting in person have been filed indicating that the plaintiff was legally represented or self-represented as follows:

(a)Stacks Southern Lawyers from 20 May 2020;

(b)Adams & Co Lawyers from 27 August 2020;

(c)Self-represented from 4 December 2020;

(d)Leeder Law from 26 March 2021;

(e)Self-represented from 27 April 2021;

(f)Prominent Lawyers from 6 June 2022;

(g)Self-represented from 3 August 2022;

(h)Capital Lawyers from 5 August 2022 and again from 21 February 2024;

(i)Self-represented from 9 April 2024;

(j)Alexander Rashidi Lawyers from 28 August 2024.

5․He is presently self-represented.

6․Directions were made last December, at a time when the plaintiff was legally represented, requiring the plaintiff to serve expert evidence. No such evidence was served. The plaintiff parted company with his solicitors in circumstances referred to in Kennedy (No 4).

The proposed directions

7․On the last occasion when the matter was before me, at the request of the plaintiff I adjourned the proceedings for three weeks in order that he could address the fact that his solicitors had ceased to act for him. At that stage, the defendants had proposed some orders which I indicated I would consider on the next occasion. I gave the opportunity to the plaintiff to provide any directions that he proposed to my chambers by email. The plaintiff took that opportunity. The directions that he proposed contained 90 proposed directions. A copy of those directions will be incorporated as an appendix to these reasons.

8․The directions proposed by the defendants were focused on getting the matter into a state in which it might be able to be subject of a mediation. They were slightly reworded from those proposed at the earlier directions hearing. They involved the plaintiff having another opportunity to serve any expert evidence and the defendants an opportunity to respond to any such evidence. It then involved listing the matter for a mediation in the court annexed mediation blocks.

9․The directions proposed by the plaintiff were extensive and included most possible procedural steps that could be taken up to the point of a trial. In the short term, they involved a process of the parties agreeing on an expert witness to medically examine the plaintiff. They also involved a process of two rounds of requests and answers to particulars of the defence before the plaintiff would be permitted, notwithstanding that the time for such filing has long expired, to file a reply to the defendants’ defence. They then involved directions relating to a settlement conference, followed by a mediation.

10․The plaintiff explained that he would have great difficulty in obtaining expert evidence whilst unrepresented. He explained that he wished to, but was presently not able to, retain solicitors who themselves would bear the costs of obtaining expert evidence as an interim measure. He tendered a letter from the solicitors for the defendants which raised as a possibility that, if he was unable to obtain independent expert evidence, he might be able to obtain some evidence from his treating medical practitioners. He indicated that his proposal for a joint expert to be appointed to report on him was his suggestion in order to get around the difficulties that he faced. He submitted that the defendants should be willing to engage in such a process. He emphasised the resources available to the named defendants when compared with the resources that he had available to him.

11․Counsel for the defendants indicated that the defendants opposed such an order, having regard to their history of dealings with the plaintiff and that, ultimately, it was the plaintiff’s case to prove.

Consideration

12․This case needs to be advanced towards a resolution. It has been around for a very long time. I accept that the plaintiff has difficulty advancing his case because he is unrepresented and, for reasons not established by any evidence, he has been unable to retain the services of solicitors for long enough to permit his case to be prepared for a hearing and, in particular, expert medical evidence to be obtained.

13․The fact remains that in an adversarial system, the plaintiff is required to prove his case. The defendants are not required to prove his case for him. Nor is it appropriate to compel the defendants to agree to, or bear the costs of, a single expert in relation to the plaintiff’s medical conditions. If the plaintiff is unable to prove his case because of an inability to obtain evidence or comply with the requirements of the court to advance his case to hearing, then that will make it difficult for the plaintiff to succeed. It does not have the effect of imposing a burden on the other party to prove his case for him. Section 5A of the Court Procedures Act 2004 (ACT) does not detract from that fact as the section is enacted against a background, and upon a legislative assumption, of the adversarial system of dispute resolution.

14․The most significant step, in my view, in order to progress the matter in a manner that would make a rational compromise possible is the preparation of expert evidence. The directions proposed by both parties appear to recognise that fact. It is, in my view, appropriate to provide the plaintiff with a further opportunity to obtain such evidence. If any such evidence is served, then the defendants require an opportunity to respond to that evidence. It is then appropriate for there to be a court-facilitated mediation. That provides a relatively inexpensive but formal process for the exploration of the potential for settlement.

15․In the event that the matter does not settle as a result of the mediation, then it will be necessary to consider what other steps are required to be carried out in order to prepare the matter for hearing. Those steps may well include the grant of leave to the plaintiff to file a reply. Whether or not a reply is appropriate depends upon whether it is necessary for the plaintiff to do more than simply put in issue the contents of the defence by raising additional factual matters. I accept that it is possible that a reply may be necessary in relation to contributory negligence, failure to mitigate and the limitation defence. However, it also appeared to me to be counterproductive to make a direction requiring particulars and the filing of a reply at this stage, when that is likely to generate a further round of interlocutory disputation and would not materially affect the capacity to mediate the case if appropriate expert evidence was prepared and served. That is particularly so in light of the approach that the defendants indicated in their letter of 19 March 2025 that they would take to the question of liability for the purposes of any settlement negotiations.

16․So far as the variety of other steps contemplated in the plaintiff’s list of proposed directions are concerned, whether or to what extent any of these are appropriate can be assessed at a later stage. Having regard to the procedural history of the matter, care will need to be taken to avoid the matter being diverted from a path towards final hearing by interlocutory disputes.

17․I considered that two months was an appropriate additional period to enable the plaintiff to obtain any expert evidence. I set that period having regard to the length of time since the commencement of proceedings that has been available to the plaintiff to obtain expert medical evidence and the desirability of not giving a lengthy period in circumstances where the plaintiff himself considered his prospects of doing so to be low. The two-month period achieves a reasonable balance between giving him a further opportunity to serve material on the one hand and, on the other, not devoting a substantial period to a process which may not be availed of by the plaintiff. It appeared to me that a period of five weeks would be appropriate for the defendants to provide any medical evidence in reply. That was shorter than the six weeks sought by the defendants but was appropriate in order to leave open the possibility that the matter be the subject of a mediation in the mediation block commencing 30 June 2025.

18․Towards the end of the directions hearing, I indicated that I would not hear any further submissions from the plaintiff as to the merits of his 90-step timetable. I did that because there was only limited time available and I considered that, in the circumstances, for the reasons I have given, a short timetable inconsistent with his proposal would be appropriate and that consideration of further steps such as those proposed in his suggested timetable would appropriately occur at a stage after he had had a further opportunity to serve any expert evidence and the matter had been the subject of a mediation.

19․Mr Kennedy also appeared to seek that I disqualify myself from further dealing with his matter. I decline to disqualify myself as, in the circumstances, I do not consider that a fair-minded lay observer might reasonably apprehend that I might not bring an impartial and unprejudiced mind to the resolution of the questions that I am required to decide. I accept that I have had to firmly control the conduct of the directions hearing, including muting the plaintiff when he interrupted me whilst I was pronouncing my orders. However, that has been necessary in order to be able to make procedural directions for the proper conduct of the matter in circumstances where those directions were not consistent with those proposed by the plaintiff.

Appendix – Plaintiff’s Amended Proposed Directions dated 19 March 2025

Plaintiff’s Proposed Directions

(as amended 19 March 2025)

No.	Order	Date	Expected Timeframe
1.	Defendants are to fix link to PDF file containing 1,832 pages admitted into evidence by J Mossop, by	10 Apr	within 3 weeks from 20 Mar
2.	Defendants are to provide Plaintiff with copy of expert medical report of Dr Kipling Walker dated 17 March 2017, by	10 Apr	within 3 weeks from 20 Mar
3.	Parties are to consult and agree on name of health practitioner to complete expert medical examination and report on Plaintiff, including agreement on examination date, by	10 Apr	within 3 weeks from 20 Mar
4.	Defendants are to, by; a.   make appointment for health practitioner to complete expert medical examination and report on Plaintiff; and b.   confirm appointment details with Plaintiff. Note: Defendants are to provide copy of engagement letter and background materials to Plaintiff 7 days prior to examination	10 Apr	within 3 weeks from 20 Mar
5.	Plaintiff is to present himself for expert medical examination, on	To be advised
6.	Defendants are to file and serve copy of expert medical report, by	To be advised
7.	Plaintiff is to make 1st request for further and better particulars on Defendants’ 18 October 2024 defence, by	17 Apr	within 4 weeks from 20 Mar
8.	Defendants are to answer Plaintiff’s 1st further and better particulars defence request, by	1 May	within 14 days from receiving Plaintiff’s 1st further and better particulars request
9.	Plaintiff is to make 2nd request for further and better particulars on the following, by a.   Defendants’ 18 October 2024 defence; and b.   Defendants’ answer to Plaintiff’s 1st further and better particulars request	8 May	within 7 days of Plaintiff receiving Defendants’ answer to 1st further and better particulars request
10.	Defendants are to answer Plaintiff’s 2nd request for further and better particulars defence request, by	22 May	within 14 days from receiving the Plaintiff’s 2nd further and better particulars request

11.	Plaintiff is to file and serve reply to defence, by Note: Plaintiff’s reply to defence may include an application to the Court to resolve interlocutory dispute between parties relating to Limitations Act 1985 (ACT) as found at paragraph [47] of Defendants’ defence	`5 Jun	within 14 days of receiving Defendants’ answer to Plaintiff’s 2nd further and better particulars request
12.	Parties are to have attended Settlement Conference as relisted, by Note: As agreed by Sparke Helmore on 17 March 2025, Mr Ron Cameron of Ron Cameron and Associates may attend as a McKenzie friend on behalf of Plaintiff albeit Mr Cameron is a registered solicitor; and Refer attached letter from Mr Cameron dated 19 March 2025	19 Jun	within 8 weeks from 20 Mar
13.	Parties are to advise the Court if matter was resolved at Settlement Conference, by	26 Jun	within 7 days after Settlement Conference is held
14.	Parties are to file and serve Court documents with Court registry necessary to give effect to settlement in the event that matter is resolved at Settlement Conference, by	26 Jun	within 7 days after offer of settlement is agreed
15.	If matter is not resolved at Settlement Conference, parties are to prepare and file Positions paper for, by a.   1st Private mediation as relisted; or b.   1st Court-ordered mediation	7 Jul
16.	If matter is not resolved at Settlement Conference, parties are to have attended the following, by a.    1st Private mediation as relisted; or b.    1st Court-ordered mediation Note: as agreed by Sparke Helmore on 17 March 2025, Mr Cameron may attend on behalf of Plaintiff Note: Costs of 1st Court-ordered mediation are to be paid by the Defendants	10 Jul	within 10 weeks from 20 Mar
17.	Parties are to advise Court if matter was resolved at a. or b. as above, by	17 Jul	within 7 days after 1st Private mediation is held
18.	Parties are to file and serve Court documents with Court registry necessary to give effect to settlement in the event that matter is resolved at a. or b, by	17 Jul	within 7 days after offer of settlement is agreed
19.	If matter is not resolved at 1st Private mediation, parties are to have attended the following, by a.   2nd Private mediation; or b.   2nd Court-ordered mediation.	24 Jul	within 10 weeks from 20 Mar

Note: as agreed by Sparke Helmore on 17 March 2025, Mr Cameron may attend on behalf of Plaintiff Note: Costs of 2nd Court-ordered mediation are to be paid by the Defendants
20.	Parties are to advise the Court if matter was resolved at a. or b. as above, by	31 Jul	within 7 days after 2nd Private mediation is held
21.	Parties are to file and serve Court documents with Court registry necessary to give effect to settlement in event that matter is resolved at a. or b., by	31 Jul	within 7 days after offer of settlement is agreed
22.	Parties are to attend Pre-discovery conference, by	To be advised
23.	Plaintiff is to file and serve Defendants with notice to disclose discoverable documents pursuant to r 607(1), by	To be advised
24.	Defendants are to file and serve the following documents pursuant to r 607(3), by a.   its list of documents; b.   an affidavit verifying list; and c.   if party is represented by a solicitor—solicitor’s certificate of advice in relation to list.	To be advised
25.	Plaintiff is to give Defendants notice pursuant to r 620(1), by	To be advised
26.	Defendants are to produce for inspection the requested documents, other than those documents specified in r 620(3), by	To be advised
27.	Defendants may serve and file any third-party notices (r 308), by	To be advised
28.	Plaintiff is to make an application for amendments to 3FASOC, by	To be advised
29.	Defendants are to answer Plaintiff’s application for 3FASOC amendments, by	To be advised
30.	Plaintiff is to file and serve 4FASOC, by	To be advised
31.	Defendants are to file and serve any defence to 4FASOC amendments, by	To be advised
32.	Plaintiff is to request further and better particulars on Defendants’ defence on 4FASOC amendments, by	To be advised
33.	Defendants are to answer Plaintiff’s request for further and better particulars on Defendants’ defence on 4FASOC amendments, by	To be advised
34.	Plaintiff is to file and serve Defendants with set of interrogatories, by	To be advised

35.	Defendants in response to Plaintiff’s set of interrogatories request, are to file and serve the following documents pursuant to r 630(6), by a.   an affidavit setting out and verifying (except to the extent that the party objects under r 631 to answering) the parties’ answers to the interrogatories; and b.   serve a stamped copy of the affidavit on the party serving the interrogatories.	To be advised
36.	Plaintiff is to file and serve on Defendants a notice to admit facts and/or documents under r 491(1), by	To be advised
37.	Defendants in receipt of Plaintiff’s notice to admit facts and/or documents, may take steps under r 491(2), by	To be advised
38.	Plaintiff is to file and serve any document as evidence produced from Plaintiff’s ‘Application in Arbitration - by worker’ made under r 3905 of the Rules as part-heard in ACT Magistrates Court over 2017 and 2018, by	To be advised
39.	Plaintiff is to file and serve as evidence J McWilliam’s points of claim including schedules, by	To be advised
40.	Plaintiff is to file and serve any expert medical evidence on which he intends to rely, by	To be advised
41.	Plaintiff is to file and serve any expert liability evidence on which he intends to rely, by	To be advised
42.	Plaintiff is to file and serve any quantum (schedule of damages) evidence on which he intends to rely, by	To be advised
43.	Plaintiff is to file and serve as evidence any affidavit on which he intends to rely, by	To be advised
44.	Plaintiff is to file and serve as evidence any chronology on which he intends to rely, by	To be advised
45.	Plaintiff is to file and serve any other evidence on which he intends to rely, by	To be advised
46.	Defendants are to file and serve any objections to Plaintiff’s ‘Application in Arbitration-by worker’ documents, By	To be advised
47.	Defendants are to file and serve any objections to J McWilliam’s points of claim including schedules, by	To be advised
48.	Defendants are to file and serve any objections to Plaintiff’s expert medical evidence, by	To be advised
49.	Defendants are to file and serve any objections to Plaintiff’s expert liability evidence, by	To be advised
50.	Defendants are to file and serve any objections to Plaintiff’s quantum evidence, by	To be advised

51.	Defendants are to file and serve any objections to Plaintiff’s affidavit evidence, by	To be advised
52.	Defendants are to file and serve any objections to Plaintiff’s chronology, by	To be advised
53.	Defendants are to file and serve any objections to any other evidence filed and served by Plaintiff, by	To be advised
54.	Defendants are to file and serve any further expert liability evidence, by	To be advised
55.	Defendants are to file and serve any quantum evidence on which they intend to rely, by	To be advised
56.	Defendants are to file and serve any affidavit evidence on which they intend to rely, by	To be advised
57.	Defendants are to file and serve as evidence any chronology on which they intend to rely, by	To be advised
58.	Defendants are to file and serve any other evidence on which they intend to rely, by	To be advised
59.	Plaintiff is to file and serve any objections to Defendants’ expert evidence including evidence filed and served on 28 January 2025, by	To be advised
60.	Plaintiff is to file and serve any objections to Defendants’ expert liability evidence, by	To be advised
61.	Plaintiff is to file and serve any objections to Defendants’ quantum evidence, by	To be advised
62.	Plaintiff is to file and serve any objections to Defendants’ affidavit evidence, by	To be advised
63.	Plaintiff is to file and serve any objections to Defendants’ chronology, by	To be advised
64.	Plaintiff is to file and serve any objections to any other evidence filed by Defendants, by	To be advised
65.	Plaintiff is to file and file and serve statement of particulars (r 1304), by	To be advised
66.	Parties’ medical expert witnesses are to produce for the Court’s use a document identifying, by a.   matters on which they agree; b.   matters on which they disagree; and c.   reasons for any failure to reach agreement on any medical matter.	To be advised
67.	Parties’ liability witnesses are to produce for the Court’s use a document identifying, by a.   matters on which they agree; b.   matters on which they disagree; and	To be advised

c.    reasons for any failure to reach agreement on any liability matter.
68.	Parties are to produce for the Court’s use a document identifying, by a.   matters on which they agree on quantum; and b.   matters on which they disagree on quantum; and c.   reasons for any failure to reach agreement on any quantum matter.	To be advised
69.	Parties are to produce for the Court’s use a document identifying, by a.   matters on which they agree on affidavit evidence; and b.   matters on which they disagree on affidavit evidence; and c.   reasons for any failure to reach agreement on any affidavit matter.	To be advised
70.	Parties are to produce for the Court’s use a document identifying, by a.   matters on which they agree on each chronology filed; b.   matters on which they disagree on each chronology filed; and c.   reasons for any failure to reach agreement on any matter relating to the chronologies.	To be advised
71.	Plaintiff is to be file and serve a document, by a.   no. of experts to give evidence in person (in ACT and elsewhere); b.   no. of experts to give evidence by telephone (in ACT and elsewhere); c.   no. of lay-witnesses to give evidence in person (in ACT and elsewhere); and d.   number of lay-witnesses to give evidence by telephone (in ACT and elsewhere).	To be advised
72.	Defendants are to file and serve any objections to Plaintiff’s document on expert and lay witnesses, by	To be advised
73.	Defendants are to file and serve a document, by a.   no. of experts to give evidence in person (in ACT and elsewhere); b.   no. of experts to give evidence by telephone (in ACT and elsewhere); c.   no. of lay-witnesses to give evidence in person (in ACT and elsewhere); and d.   number of lay-witnesses to give evidence by telephone (in ACT and elsewhere).	To be advised
74.	Plaintiff is to file and serve any objections to Defendants’ document on expert and lay-witnesses, by	To be advised

75.	Parties are to file and serve any notice under Evidence Act 2011 (ACT), by	To be advised
76.	Parties are to file and serve a joint statement of agreed facts, by	To be advised
77.	Parties are to file and serve a document, by a.   outlining what each party considers the real issues are to be determined at the Hearing; b.   outlining any further directions considered necessary for purposes of the Hearing; c.   making an evaluation of prospects of matter settling prior to commencement of the Hearing; d.   outlining other matters that the party considers are relevant to setting of a Hearing date; and e.   estimating number of days required for the Hearing.	To be advised
78.	Plaintiff is to file and serve, by a.   bundle of medical records; b.   bundle of past/out-of-pocket expenses; and c.   bundle of tax invoices.	To be advised
79.	Parties are to have attended a Settlement Conference, by	To be advised
80.	Parties are to advise the Court if matter was resolved at the Settlement Conference, by	To be advised
81.	Parties are to file and serve Court documents with registry necessary to give effect to settlement in the event the matter is resolved at Settlement Conference, by	To be advised
82.	Parties are to have attended Private mediation, by	To be advised
83.	Parties are to advise the Court if matter was resolved at Private mediation, by	To be advised
84.	Parties are to file and serve Court documents with registry necessary to give effect to settlement in the event the matter is resolved at Private mediation, by	To be advised
85.	Plaintiff is to file and serve completed Schedule 3, Listing Hearing Questionnaire, by	To be advised
86.	Defendants are to file and serve completed Schedule 3, Listing Hearing Questionnaire, by	To be advised
87.	Parties are to attend a Listing Hearing to be held on	To be advised
88.	Matter is listed for a Listing hearing callover, at [  ]	To be advised
89.	Matter is referred for Court-referred mediation. I make the usual orders with respect to Court-referred mediation and direct the Registry to provide a copy to the parties	To be advised
90.	Parties are to advise the Court if matter was resolved at Court-referred mediation, by	To be advised
91.	Parties are to file and serve Court documents with registry within 7 days necessary to give effect to settlement in the event the matter is resolved at Court-referred mediation, By	To be advised
92.	If matter was not resolved at Court-referred mediation, matter is listed for Directions, on	To be advised
93.	Parties have liberty to apply for matter to be listed on 3 days notice by email to J Mossop Associate	To be advised

I certify that the preceding nineteen [19] numbered paragraphs and appendix are a true copy of the Reasons for Judgment of his Honour Justice Mossop.

Associate:

Date: 1 April 2025