Markan v Bar Association of Queensland

[2013] QCA 188

[2013] QCA 188

COURT OF APPEAL

HOLMES JA

Appeal No 3595 of 2013
Appeal No 5272 of 2013
SC No 928 of 2013

PETER MARKAN  Applicant

v

BAR ASSOCIATION OF QUEENSLAND  Respondent

BRISBANE

THURSDAY, 18 JULY 2013

JUDGMENT

HER HONOUR:  The applicant has brought appeals from two separate decisions of Atkinson J made in a proceeding against the respondent Bar Association, in which he claimed that the latter had breached contractual and statutory obligations to investigate complaints brought by him against barristers who had represented him in criminal proceedings.  The respondent applied for orders that the claim and statement of claim be struck out.  In her first judgment in the proceeding, Atkinson J refused an application that she disqualify herself from hearing the application.  The applicant says he applied to the Court, not Atkinson J, but Atkinson J was, of course, the Court.  In the second judgment, her Honour set aside the applicant’s claim and struck out the proceedings as an abuse of process.

Both judgments are the subject of appeal by the applicant.  He now applies to have the appeals heard on separate dates, the registrar having indicated his intention to list the two appeals on the same day.  In an affidavit, the applicant expresses concerns about having the appeals heard on the same date.  He says that there are differences between them and that they require individual attention; that the decisions were made on different matters almost two months apart; that they require different arguments and references; and that he needs time to prepare and present the oral arguments properly.  The concerns about the differences between the matters may be the result of a misapprehension that the appeals were to be heard as one rather than consecutively.

The applicant mounted an argument that the respondents were not the same in both appeal;  the judge was, in fact, the respondent in the first.  That is plainly wrong.  Her Honour is in no sense a party.  The Bar Association of Queensland, as the notice of appeal is drawn and in fact, is the respondent to both appeals.

There is no doubt that there are different issues involved in the appeals and that they will properly be heard and considered separately.  If the reasoning in Concrete Proprietary Limited v Parramatta Design and Developments Proprietary Limited (2006) 229 CLR 577 were applied, the appeal concerning the allegation of apprehended bias would be resolved first, and, if decided in the applicant’s favour, would necessarily result in a rehearing by a different judge of the respondent’s striking out application. There would not then be any determination of the substantive appeal for the reasons explained in Parramatta Design and Developments, but that would not preclude argument being heard on the same day in respect of the two appeals.

The applicant has ample time to prepare his arguments, because the appeal has not yet been listed.  What it comes down to is that he says he would find it onerous to argue one case after the other.  I can accept that that is so, but compared with the advantages in terms of costs and convenience in having the second matter proceed after the first before the same coram, on the same day while the parties are already in attendance,  I am unconvinced that there is sufficient reason to accede to the application to have separate dates allocated.  The application is refused.

The applicant should pay the respondent’s costs of the application.