Knight v Johnston

[2013] QDC 259

DISTRICT COURT OF QUEENSLAND

CITATION:

Knight v Johnston & Anor [2013] QDC 259

PARTIES:

LUKE KNIGHT

(appellant)

v

GRACE JOHNSTON

(first respondent)

and

RACQ INSURANCE LIMITED

(second respondent)

FILE NO/S:

1071/2013

DIVISION:

Civil

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court, Cleveland

DELIVERED ON:

16 October 2013

DELIVERED AT:

Brisbane

HEARING DATE:

19 September 2013

JUDGE:

Reid DCJ

ORDER:

Appeal Allowed. The decision of the Magistrate be set aside and the matter remitted to the Magistrates Court for re-hearing by another Magistrate.

CATCHWORDS:

Appeal — Appearance of bias — Appropriate test

COUNSEL:

Self represented Appellant

K Howe for the Respondent

SOLICITORS:

Cooper Grace Ward for the Respondent

CASES REFERRED TO

du Boulay v Worrell & Ors [2009] QCA 063

Waddington v Magistrates’ Court of Victoria & Kha (No. 2) [2013] VSC 340

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337

Elsafty Enterprises Pty Ltd & Anor v Gold Coast City Council [2011] QCA 84

Hills v Chalk & Ors (as executors of the estate of Chalk

(deceased)) [2008] QCA 159

Antoun v R [2006] HCA 2

Introduction

1. In this matter the appellant appeals from a decision of the Magistrates Court, Cleveland made on 27 February 2013. His damages were assessed in the sum of $4,986.  As a consequence of offers which had been made, he was ordered to pay the respondent’s costs, fixed in the sum of $9,545.

1. The action arose out of injuries the appellant received in a motor vehicle accident on 20 May 2011.  Liability was admitted. The only matter for determination by the Magistrate was the quantum for the appellant’s damages.

1. The appellant was self represented at the trial, and on the appeal.

1. The grounds of the appeal before me were as follows:

“1.         The orders were unreasonable due to the impact of injury suffered by the appellant arising from the accident;

2.          Whether the second respondent’s expert witness was unreasonably appointed;

3.          Whether the second respondent’s expert witness practiced in the relevant field in order to give evidence; and

4.          The appellant is exercising his right for the proceeding which is subject to appeal, be heard de novo by the District Court of Queensland.”

1. At the commencement of the appeal, following a suggestion by me, and after discussion with the appellant and counsel for the respondents, I ordered that the Notice of Appeal be amended by adding a further ground of appeal as follows:

“The appellant was given inadequate opportunity to conduct his case and the trial Magistrate displayed a perceived bias in his conduct of the trial.”

1. Ultimately that amendment to the Notice of Appeal was not opposed by counsel for the respondents but he did contend the ground was not made out. In view of the amendment, I gave the parties leave to deliver further written submissions. Counsel for the respondent did provide such further submissions but none were received from the appellant.

The Trial

1. In order to consider the appeal and to understand the reason for my suggesting that amendment to the notice…