Mathews, Russell Gordon Haig v Anastasia Fardoulys Dental Pty Ltd

[1995] FCA 968

IN THE FEDERAL COURT OF AUSTRALIA )No. QG 150 of 1995
QUEENSLAND DISTRICT REGISTRY     )
GENERAL DIVISION                 )

BETWEEN:  RUSSELL GORDON HAIG MATHEWS

Applicant

AND:     ANASTASIA FARDOULYS DENTAL PTY. LTD.

(ACN 058 497)

First Respondent

AND:H. DRAKOS & COMPANY SOLICITORS

Second Respondent

MINUTES OF ORDERS

JUDGE MAKING ORDER:         Drummond J
DATE OF ORDER:              23 November, 1995
WHERE MADE:                 Brisbane

THE COURT ORDERS THAT:

1. The applicant's application against the second respondent is struck out.

1. The applicant's application against the first respondent, in so far as it relies on ss. 49, 51AB and 80 the Trade Practices Act 1974 (Cth), is struck out.

1. The applicant's application against the first respondent, in so far as it relies on ss. 53 and 82 the Trade Practices Act 1974 (Cth) and in so far as it relies on the claim for damages for personal injury, is transferred to the District Court at Brisbane.

1. The costs of and incidental to the first respondent's motion be costs in the proceedings.

NOTE:     Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA )    No. QG 150 of 1995
QUEENSLAND DISTRICT REGISTRY     )
GENERAL DIVISION                 )

BETWEEN:  RUSSELL GORDON HAIG MATHEWS

Applicant

AND:     ANASTASIA FARDOULYS DENTAL PTY. LTD.

(ACN 058 497)

First Respondent

AND:H. DRAKOS & COMPANY SOLICITORS

Second Respondent

Coram:    Drummond J
Date:     23 November, 1995
Place:    Brisbane

REASONS FOR JUDGMENT

IN THE COURSE OF THE HEARING, DRUMMOND J MADE THE FOLLOWING RULING:

I have before me a notice of motion by the first respondent in proceedings instituted by Mr. Mathews to strike out those proceedings.  At the outset of the hearing, Mr. Mathews objected to my dealing with the matter on the ground that a reasonable apprehension of bias arises because of my being a member of the Full Court that dismissed appeals by Mr. Mathews against a decision of Spender J.  The Full Court decision was given in November 1993.  The dismissal of the appeals by Mr. Mathews against Spender J's judgment, ordered by the Full Court of which I was a member, was on the ground of Mr. Mathews' failure to prosecute those appeals.

Spender J gave his judgment in 1993 in a sexual harassment case brought against Mr. Mathews.  Mr. Mathews has expressed, in considerable detail, his concerns about what he says are the manifest errors that infect the Human Rights and Equal Opportunity Commission decision in the sexual harassment case and the later decision in the same case of Spender J.  He also complained that he was ambushed by the District Registrar of the Court with respect to the preparation of his appeals against Spender J's decisions.

The nub of his complaint against my sitting to hear this application, however, is that, as I understand his submission, the decision of Spender J was so obviously flawed with error that the dismissal of his appeals against that judgment is itself an act which would give rise to a reasonable apprehension of bias, were I, as a member of the Full Court, to hear the present application.

The principles on which a judge should act when such an application is made are well-established.  I will refer only to a decision of the Full Court of the High Court in Livesey v The New South Wales Bar Association (1983) 151 C.L.R. 288. The Court said, at 294:

"...If a judge at first instance considers that there is any real possibility that his participation in a case might lead to a reasonable apprehension of pre-judgment or bias, he should, of course, refrain from sitting.  On the other hand, it would be an abdication of judicial function and an encouragement of procedural abuse for a judge to adopt the approach that he should automatically disqualify himself whenever he was requested by one party so to do on the grounds of a possible appearance of pre-judgment or bias, regardless of whether the other party desired that matter be dealt with by him as the judge to whom the hearing of the case had been entrusted by the ordinary procedures and practice of the particular court."

I refuse to disqualify myself from hearing this application for the following reasons:  firstly, the Full Court, of which I was a member, did not reach the stage of looking at the merits of Mr. Mathews' appeals against Spender J's decision, but dismissed those appeals solely on the basis of Mr. Mathews' perceived refusal to attend to the necessary work of preparing the appeals for hearing.  The judgment of the Full Court was given by Wilcox J who, in a detailed judgment, said:

"... Mr Mathews filed notices of appeal.  In the ordinary course of events, we would have heard both appeals today.  Unfortunately, this is not possible because appeal papers have not been filed.  The question that has been discussed today is what course ought to be taken.

I should say at the outset that the Court is conscious of the fact that the rule requirements for the filing of appeal papers can impose a burden on appellants, perhaps particularly appellants who appear in person; and even more particularly if those appellants lack means.  The Court is always anxious to ensure that cases are not denied a hearing in the Court, whether at first instance or on appeal, because of the indigence of litigants.  In appropriate cases, steps are taken to assist appellants, as may be necessary and within the resources available to the Court.  I would therefore be reluctant to take any step involving the disposal of these cases without a full hearing, if I was persuaded that the only reason why the matters cannot proceed to hearing was the lack of means of the appellant."

His Honour referred to the history of the case from the time of Mr. Mathews filing the notices of appeal to the time the matter came before the Full Court on 16 November, 1993, in the course of which his Honour referred to the offer by the District Registrar to assist Mr. Mathews in the work of preparing the appeal and to matters concerning evidence as to Mr. Mathews' financial position.  Towards the end of his judgment, his Honour said this:

"However, as it seems to me, the more important thing is to determine whether or not Mr Mathews genuinely intends to prosecute these appeals.  He has asserted such an intention on several occasions; but, for my part, I cannot accept those assertions.  I have set out the history of the matter at some length, because it seems to me that it is eloquent in indicating Mr Mathews' refusal to co-operate in the steps which he must understand are essential if an appeal is to be heard and disposed of in a satisfactory way.  It is sufficient simply to go through the problems of settling the appeal index, and then Mr Mathews' total refusal to do anything about the appeal papers.  If, as I say, he had a genuine problem about financing the cost, but had been otherwise co-operative, then I think that the Court would be anxious to assist him in some way, but I am left with a strong feeling that Mr Mathews' purpose is to frustrate and obstruct the processes of the Court rather than to assist the Court in the determination on their merits of the appeals which he has filed."

Myself and Cooper J expressed agreement with Wilcox J's reasons.  There is no basis at all in my opinion for Mr. Mathews' submission of an apprehension of bias since it is founded on the proposition that the Full Court failed to correct what it must have known were manifest errors in Spender J's judgment:  it did not get to the stage of considering the judgment due to Mr. Mathews' own refusal to get his appeals ready for hearing.

Secondly, I have, since participating in the Full Court decision which is the focus of Mr. Mathews' complaint today, heard and determined a number of applications in proceedings in which Mr. Mathews was a party.  In May last, I heard applications to strike out two different sets of proceedings brought by Mr. Mathews against a wide range of respondents.  On 18 May, 1995, I gave a reserved judgment, striking out most of the proceedings, generally on the ground of an abuse of process by Mr. Mathews.  Mr. Mathews did not object to my hearing those various applications.  A reasonable observer would, I think, have very great difficulty in accepting that, because of my participation in the Full Court proceedings, a reasonable apprehension of bias would arise if I hear the present application, given that Mr. Mathews was prepared to accept, without objection, my adjudicating on the matters in May last in which he was involved.

Finally, the first respondent wishes to have its motion dealt with today.

AT THE CONCLUSION OF THE HEARING, DRUMMOND J GAVE THE FOLLOWING JUDGMENT:

Proceedings were instituted on 19 September, 1995 in this Court by Mr. Mathews under ss. 49, 51AB and 53 the Trade Practices Act 1974 (Cth).  The proceedings have two elements.  The first element is a claim against the first respondent, a company providing dental services, that it engaged in misleading conduct by, in effect, holding out that the first consultation it provided to university students would be free when, in fact, it was only prepared to provide a free initial consultation to students if they were uninsured.  If they were insured, as it appears Mr. Mathews was, then, according to what Mr. Mathews says - and there is some support in the affidavit of a principal of the first respondent for this - the first respondent would expect to be paid an amount equal to the refund that the insured student would obtain in respect of the services provided at the initial consultation.

The major claim made by Mr. Mathews, however, is in respect of what he claims is the negligent professional treatment he received from those acting on behalf of the first respondent which caused him personal injury.  He says he wishes to claim $200,000 damages in respect of personal injuries.  There is no evidence before me to suggest that there is any reason to think that the damages he suffered, if any, may amount to anything like this sum.   The application also refers to s. 79 the Trade Practices Act and that is
explained because the solicitors on the record for the first respondent are also sued as second respondent.  It is, in my opinion, clear that there is no basis, even if the first respondent can be shown to have engaged in conduct in breach of the Trade Practices Act as Mr. Mathews alleges, that the second respondent was in any way involved in that particular conduct.  Its involvement only began much later than the first respondent's alleged contravention of that Act.

I will not strike the proceedings out as against the first respondent. To give such a summary remedy involves the respondent being able to demonstrate very clearly that the applicant's case is doomed to failure. All we have here is untested oath against untested oath concerning what the first respondent has to say about the provision of the initial consultation which it offers to students and, indeed, the first respondent's evidence does not even go so far as to explicitly contradict what Mr. Mathews says in this regard. It seems to me that Mr. Mathews' material, brief though it is, is, particularly in the face of what the first respondent has chosen to put before the Court, sufficient to show that he may be able to make out a case of conduct on behalf of the first respondent infringing s. 53(e) the Trade Practices Act and thus to have a right to damages under the Trade Practices Act. His claim for damages for personal injury of course is a separate matter and it can only stay in this Court if there is a claim in the present circumstances under the Trade Practices Act appropriate to be determined in this Court.
         I should say that it seems to me there is no basis at all upon which Mr. Mathews can make out a claim under s. 49, the price discrimination provisions of the Trade Practices Act. There is nothing in that section which appears to me to remotely touch upon the only complaint of alleged misconduct in trade which Mr. Mathews makes against the first respondent and there is, in my opinion, nothing to bring the matter within the unconscionable conduct provisions of s. 51AB which would involve, among other things, a misuse by a respondent of a known disadvantage to which the applicant was subject to. I will strike out the application in so far as it relies on those sections of the Act. However, as I have said, the material is sufficient to preclude the striking out of the claim in so far as it is based on s. 53 and seeks damages in respect of that particular breach.

Under s. 86A the Trade Practices Act, it is provided that where a civil proceeding by a person such as Mr. Mathews is pending in the Federal Court and a matter for determination in the proceeding arises under Division 1 or 1A of Part V, as I have held is the case in relation to the claim for breach of the Trade Practices Act, s. 53, the Federal Court may upon application of a party transfer to a court of a State the matter in question and may also transfer to that court any other matter for determination in the proceeding. The Court's power to transfer is subject to the restriction that it cannot transfer a matter to another court unless the other court has power to grant the remedy sought before the Federal Court in
the matter and it appears to the Federal Court that the matter arises out of, or is related to, a proceeding that is pending in the other court, or it is otherwise in the interests of justice that the matter be determined by the other court.  The application refers to s. 80, the provision of the Trade Practices Act empowering the Federal Court to grant injunctive relief, and to s. 82, the provision of the Trade Practices Act empowering the Court to grant a remedy by way of damages.  The application, however, claims only damages and no other form of relief and it is apparent from the material, as I have said, that it is damages that is Mr. Mathews' concern.  There is therefore no impediment, given that Mr. Mathews has confined his claim for relief to damages, to transferring the proceedings to a court of the State, either the Magistrates Court or the District Court.  There is an application before me on behalf of the first respondent to transfer the matter to such a State Court and it seems to me plainly in the interests of justice that the proceeding be transferred to an appropriate State Court, given that the major issue between Mr. Mathews and the first respondent arises in respect of his allegations of professional negligence causing personal injury.

Now, I am in the situation where prima facie it would appear that a transfer to the Magistrates Court is the appropriate forum, but Mr. Mathews says that he intends to claim as much as $200,000 damages.  I have already indicated that I find it difficult to accept, in the absence of some
medical material supporting his assertion, that any injuries he may have suffered could conceivably give rise to a claim in that amount, but I do not think I can confidently say, on the limited material before me, that his damages may not exceed $40,000.  The first respondent has indicated that it is prepared to seek a transfer to the District Court, if I am of the view that that is the appropriate State forum rather than the Magistrates Court.  In those circumstances, although I have serious reservations about whether the matter should not in fact go to the Magistrates Court rather than the District Court, I will make the following orders:

(1)I will strike out the proceedings by the applicant against the second respondent;

(2)I will strike out so much of the proceedings by the applicant against the first respondent as relies on ss. 49, 51AB and 80 the Trade Practices Act;

(3)and I will transfer the remaining proceedings, relying upon a breach of s. 53 the Trade Practices Act and the associated claim under s. 82 the Trade Practices Act for damages for breach of that section, and the proceeding in so far as it relates to the claim for damages

for personal injury to the District Court at Brisbane.

I certify that this and the preceding
ten pages are a true copy of the
ruling herein of the Honourable
Justice Drummond.

Associate:

Date:        23 November, 1995