- Unreported Judgment
- Appeal Determined - Special Leave Refused (HCA)
SUPREME COURT OF QUEENSLAND
Day v Woolworths Limited & Ors  QSC 266
WOOLWORTHS LIMITED ACN 000 014 675
CPM AUSTRALIA PTY LTD ACN 063 244 824
RETAIL ACTIVATION PTY LTD ACN 111 852 129
No 6016 of 2016
16 November 2018
8 November 2018
PROCEDURE – STATE AND TERRITORY COURTS: JURISDICTION, POWERS AND GENERALLY – INHERENT AND GENERAL STATUTORY POWERS – TO STAY OR DISMISS ORDERS OR PROCEEDINGS GENERALLY – where the defendants apply for the dismissal of proceedings – where it was previously ordered that the plaintiff’s claim for damages for personal injury was stayed until the plaintiff underwent medical examinations – where the plaintiff challenged those orders on appeal but was unsuccessful – where the plaintiff has not undergone medical examinations as required by those orders for proceedings to continue – whether the plaintiff’s claim should be dismissed – whether a self-executing stay order is more appropriate
PROFESSIONS AND TRADES – LAWYERS – DUTIES AND LIABILITIES – DUTIES TO COURT – GENERALLY – where the plaintiff applies for particular legal practitioners who have acted for the defendants to be restrained from acting to protect the administration of justice – where the plaintiff alleges that the practitioners in question have misled the Court, or otherwise acted unethically – whether the allegations of misconduct are legitimate – whether the practitioners should be restrained from acting
Personal Injuries Proceedings Act 2002 (Qld) s 25
Uniform Civil Procedure Rules 1999 (Qld) r 5
Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256, cited
Day v Lerch & Ors  QCA 224, cited
Day v Humphrey  QCA 104, cited
Day v Humphrey  QSC 236, cited
Day v Woolworths Ltd & Ors  QCA 321, cited
Day v Woolworths Ltd & Ors  HCASL 253, cited
Day v Woolworths Group Ltd & Ors  QCA 105, cited
Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51, cited
Koowarta v Bjelke-Petersen (1982) 153 CLR 168, cited
Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273, cited
Re Macks; Ex parte Saint (2000) 204 CLR 158, cited
The plaintiff appeared in person
G W Diehm QC for the first defendant and for Ms Gabrielle Forbes
J Sewell for the second and third defendants and for Mr Simon Carter
E M Turnbull (solicitor) for Mr Richard Morton of counsel
Ashurst Australia for the first defendant and for Ms Gabrielle Forbes
Mills Oakley for the second and third defendants and for Mr Simon Carter
Carter Newell for Mr Richard Morton of counsel
These are three applications which came before me on the general applications list when I was sitting with Martin J on 8 November 2018. The applications arise from proceedings brought by the plaintiff (Mrs Day) for damages for personal injuries allegedly suffered by her when she fell on 18 December 2014 in a Woolworths supermarket at Springfield. She sued Woolworths Limited (Woolworths), CPM Australia Pty Ltd (CPM) and Retail Activation Pty Ltd (Retail).
An application has been brought by Woolworths to dismiss Mrs Day’s claim. An application seeking similar relief has been brought jointly by CPM and Retail. Mrs Day has cross-applied seeking the dismissal of those two applications “as an abuse of process”. She has also sought orders against three named lawyers seeking to restrain them from continuing to act for defendants in the proceedings.
I will deal firstly with the applications brought by Woolworths, CPM and Retail.
Mrs Day’s cause of action falls within the provisions of the Personal Injuries Proceedings Act 2002 (Qld) (PIPA).
It is not necessary, for reasons which will become evident, to descend to detail the fairly tortious path that the proceedings have taken. Suffice to say that there have been various disputes between the parties and interlocutory applications. For present purposes, the important event was the making of orders by Douglas J on 27 November 2017. Relevantly, his Honour ordered:
“2. On the undertaking given by the Defendants to meet the fees of the experts involved and of the Plaintiff’s reasonable costs incurred in attending, the proceeding be stayed until the Plaintiff undergoes independent medico-legal examination by one expert to be selected by the Plaintiff from each of the following groups:
An orthopaedic specialist, one of Dr Peter Steadman, Dr David Morgan, or Dr Prue Fitzpatrick;
A neurosurgeon, one of Dr Terry Coyne, Dr Michael Weidmann, or Dr Gregory Ohlrich;
A consultant psychiatrist, one of Dr Jill Reddan, Dr John Steinberg, or Professor Harvey Whiteford; and
An occupational therapist, one of Xavier Zietek, David Morris or Cameron Fraser.”
Mrs Day sought special leave to appeal to the High Court of Australia from the dismissal of her appeal by the Court of Appeal. That application was dismissed without oral hearing on 12 September 2018.
After the High Court dismissed the application for special leave, the solicitors for Woolworths and the solicitors for CPM and Retail each wrote to Mrs Day requiring her to nominate doctors and a therapist pursuant to the order of Douglas J. On 22 October 2018, the plaintiff responded. It is unnecessary to set out in any great deal the contents of that letter. It was very long and most of it consisted of arguments challenging the correctness of his Honour’s order. In addition, Mrs Day asserted that she had legal advice that there had been violations of the International Covenant on Civil and Political Rights (ICCPR) and that the proceedings should remain stayed until her complaint to the United Nations Human Rights Committee had been determined. In the meantime, she did not intend to nominate doctors and a therapist.
The defendants bring applications seeking dismissal of the proceedings on the basis that Mrs Day refuses to prosecute her case by nominating doctors and a therapist.
The submissions made on behalf of the defendants can be summarised as follows:
the order of Douglas J has survived appeals;
there is no further right of appeal from his Honour’s orders;
consequently, Mrs Day cannot progress her claim unless she nominates doctors and a therapist pursuant to his Honour’s orders;
she refuses to do so;
the Court has an inherent jurisdiction to dismiss the proceedings; and
that should occur.
Mrs Day submits firstly that the order of Douglas J does not oblige her to do anything. She is right about that. The order stays her claim until she does something, namely, nominate the doctors and therapist pursuant to the order. She submits then that the status quo ought to be maintained and the proceedings remain on foot but remain stayed while she pursues whatever complaint she might make to the United Nations.
Mrs Day made it clear during her oral submissions that she has not yet made a complaint to the United Nations. I asked whether she was prepared to disclose the legal advice that she said she had received. She claimed legal professional privilege over that advice. The defendants did not allege that she had waived privilege notwithstanding that, at least to a point, she had disclosed what that advice was.
In any event, Mrs Day did not disclose the advice and therefore cannot rely upon its contents to support her arguments. In her written and oral submissions, Mrs Day made a series of claims in addition to that about the United Nations. These included:
that she had complied with PIPA and the defendants had the medical reports that she had provided to them;
the defendants had acted in breach of provisions of PIPA;
the defendants had acted improperly in various ways in their defence of her claim;
she should not have to submit to further examinations;
the doctors are biased against her;
she is disadvantaged in the litigation as she is pitted against well-resourced corporations;
judges of this Court, including judges sitting in the Court of Appeal, have not treated her fairly and there are allegations of at least apprehended bias; and
the decisions of the Court of Appeal and High Court of Australia are affected by jurisdictional error because she was not afforded an oral hearing.
The complaint to the United Nations is irrelevant
As observed, Mrs Day sought the preservation of the status quo so that she might pursue a complaint to the United Nations in pursuit of rights guaranteed by the ICCPR.
The ICCPR does not, on its own, form part of the Australian domestic law. The judicial power of the Commonwealth and of the States is vested in an integrated system of courts recognised by the Commonwealth Constitution. No decision of the United Nations can affect an exercise of judicial power within the Commonwealth of Australia.
Exercises of judicial power such as the making of orders by Douglas J may be challenged on appeal. Those appeal rights have been exhausted. Mrs Day is bound by the orders made by Douglas J.
Mrs Day’s submissions related to PIPA and the defendant’s conduct of this litigation
Mrs Day’s submissions concerning the effect of PIPA are misconceived. Whatever arguments she may have as to her compliance with PIPA, or the defendants’ non-compliance with PIPA, are of historical interest only. Her claim has been stayed until she undertakes medical examinations. That stay is not effected by the provisions of PIPA, but by force of an order of this Court.
Mrs Day’s complaint that the medical practitioners mentioned in the order of Douglas J are biased against her should be dismissed. This issue was raised on appeal and rejected by Sofronoff P as a reason to challenge the order of Douglas J.
The claim that she is disadvantaged because she is facing well-resourced defendants is irrelevant to the present application. Douglas J, by staying the proceedings on the terms his Honour did was doing no more than recognising the desirability of Mrs Day being independently examined. That is a routine procedure in cases such as this.
Mrs Day’s submission that she has been treated unfairly
While Mrs Day asserts this Court has not treated her fairly, I can see no evidence to support such assertion. Other similar complaints made by Mrs Day have not been resolved in her favour.
Mrs Day’s submissions concerning jurisdictional error
Mrs Day’s submissions concerning jurisdictional error are completely misconceived. The Supreme Court of Queensland is a superior court. If an inferior court makes an order beyond jurisdiction, the order may have no effect, but an order of a superior court, even if affected by jurisdictional error, is valid and enforceable until set aside on appeal. The orders made by Douglas J and by the Court of Appeal are valid, binding orders, and they have survived appeal to the High Court. Mrs Day’s submission that somehow those orders are defective is simply wrong.
Mrs Day’s complaint that the decisions of the Court of Appeal and the High Court are defective because she did not have an opportunity to make oral submissions is also misconceived. She applied for an adjournment of the appeal. There was clearly a discretion to deny that adjournment and proceed in her absence and that is what the Court of Appeal did. The High Court refused special leave to appeal from the Court of Appeal’s dismissal of her appeal.
It is difficult to understand what remedy could be given by this Court to redress what Mrs Day says is a denial of procedural fairness in a proceeding in the High Court. Since the Australia Act 1986, the High Court has been the final court of appeal in this country. This Court is bound by the decisions of the High Court.
In any event, Mrs Day’s criticism of the way the special leave application was dealt with is baseless. The High Court Rules 2004 provide detailed procedures governing applications for special leave. These include the summary disposal of applications without oral hearing. The High Court considered Mrs Day’s application and disposed of it without oral hearing as is contemplated by the Rules.
Mrs Day’s real position
It is obvious that Mrs Day simply does not accept the orders made by Douglas J, and, it seems, she does not intend to nominate the doctors and therapist pursuant to those orders.
In the course of her oral submissions, the following exchanges occurred:
“HIS HONOUR: You can’t vex these defendants with these proceedings forever. Unless you submit to an independent medico-legal examination these proceedings just remain on foot and stayed. That won’t be happening. You’re either going to have to prosecute these proceedings, or they will be ended. So, the question becomes do you intend to submit to an independent medico-legal examination?
PLAINTIFF: I think it’s their – defendant’s application to dismiss the proceedings. It’s a way of pressure on me to submit to their medical examinations, which are – which are made by Woolworths and Zurich Insurance solicitors because I do not believe that they are independent – true independent, and I do not believe that I have an obligation, at this stage, when the defendant failed to comply with their obligation at the pre-litigation stage.”
“HIS HONOUR: All right. So your position is, as I understand it, that until your complaint to the United Nations is considered by the United Nations and - - -
PLAINTIFF: As in - - -
HIS HONOUR: - - - there’s some ruling on it - - -
PLAINTIFF: Human Rights Committee.
HIS HONOUR: - - - you don’t intend to submit to a medico-legal examination; is that right?
PLAINTIFF: Yes, your Honour.”
“HIS HONOUR: You’ve challenged – just listen to me. Just listen to me. You’ve challenged the validity of that order and you have lost. You’ve lost in the Court of Appeal. You’ve lost in the High Court. What binds you at the moment is what binds the other parties to these proceedings, which is the order of a judge of this court, being Justice Douglas, made on the 27th of November 2017.
PLAINTIFF: I have no obligation to submit to their medico-legal examinations. In my outline of submissions, I have made my detailed submission why I believe that I have no obligation because I complied with all my obligations. And this order was affected by jurisdictional error because of a conflict of interest and the apprehension of bias on the part of Justice Douglas.”
“HIS HONOUR: All right. So it’s the case that you’re ready to go to trial and you would like to go to trial without undergoing a further medical examination. Is that the idea?
PLAINTIFF: Because I don’t need it. Because all the evidence is prepared. I don’t know, it’s not equal treatment because even from the other side is a large public companies, with unlimited large funds. So they just feeding their solicitors.”
“HIS HONOUR: You’re just failing to come to grips with the fact, notwithstanding that I’ve pointed it out to you on numerous occasions. Your problem is the order of the 27th of November 2017.
PLAINTIFF: Which was made – which was made - - -
HIS HONOUR: Right.
PLAINTIFF: - - - under influence of the misleading information provided by Mr Richard Morton, who misled the court with the inconsistences in my medical evidence. As I put into my affidavit which filed on 5th of November 2018, the transcript of proceedings states that justice – counsel – Mr Morton, he mis – he made a misleading statement to the court. I would like to refer to the transcript which he was making this statement. So when I - - -
HIS HONOUR: But, Mrs Day, why does it matter? Because you’ve got the order of the 27th of November 2017. You’ve appealed that, and you’ve lost. You appealed again, and you’ve lost.
PLAINTIFF: Not yet.
HIS HONOUR: Yes, you have.
PLAINTIFF: In this – in Australia, yes, I’ve lost that.
HIS HONOUR: In the court system, you’ve lost.
PLAINTIFF: That’s right, yes. But - - -
HIS HONOUR: Right.
PLAINTIFF: - - - I still have avenue to the European United Nations - - -
HIS HONOUR: I see.
PLAINTIFF: - - - Commission of Human Rights, because if you would see from the documents how I was treated in the Supreme Court of Queensland and the - - -
HIS HONOUR: Now, this is - - -
PLAINTIFF: - - - Queensland Court of Appeal - - -
HIS HONOUR: All right.”
Consideration of the defendants’ applications
Mrs Day resisted the application which was ultimately determined by Douglas J on 27 November 2017. She then challenged the orders in the Court of Appeal and sought to challenge the orders in the High Court. She challenged the correctness of the orders in both written and oral submissions before me. There have now been four hearings on the issue of whether Mrs Day should subject herself to independent medical examination. The defendants were put to the expense of all these hearings.
The present position is intolerable. Mrs Day simply does not accept the rulings which have been made in favour of the defendants and has clearly manifested before me an intention not to nominate the doctors and therapist from those named in the order of Douglas J. Mrs Day cannot advance her claim because of the stay until she does something which she simply refuses to do. The defendants are left in a position where the only way they can bring the case to trial is to forego the independent examination of Mrs Day. They should not have to do that.
Mrs Day must make a choice to either:
submit to the examinations; or
not, but with the inevitable result that her claim will at some point be dismissed.
Mrs Day, as already observed, is not in breach of the orders made by Douglas J. As already observed, those orders did not actually oblige her to do anything. It is difficult to see a clear pathway under the Uniform Civil Procedure Rules 1999 (Qld) (UCPR) whereby the Court could dismiss Mrs Day’s proceedings.
However, rule 5 of the UCPR provides as follows:
“5 Philosophy—overriding obligations of parties and court
The purpose of these rules is to facilitate the just and expeditious resolution of the real issues in civil proceedings at a minimum of expense.
Accordingly, these rules are to be applied by the courts with the objective of avoiding undue delay, expense and technicality and facilitating the purpose of these rules.
In a proceeding in a court, a party impliedly undertakes to the court and to the other parties to proceed in an expeditious way.
The court may impose appropriate sanctions if a party does not comply with these rules or an order of the court.”
Mrs Day is clearly in breach of the implied undertaking. She has within her control the power to nominate the doctors and therapist, submit to the examinations and prosecute her claim. She chooses not to.
I also find that the maintenance of the proceedings without taking the necessary steps to lift the stay and prosecute the claim constitutes an abuse of process. Even though the proceedings are stayed, the defendants remains at risk. As time goes on, their ability to defend the proceedings may diminish.
The usual remedy against an abuse of process is to permanently stay the proceedings.
During the hearing before me, I raised the possibility of a guillotine order.
The defendants opposed the making of a guillotine order and pressed for the dismissal of the claim. As already explained, a more appropriate remedy is a permanent stay. In any event, the defendants submit that it is difficult to fashion a guillotine order so as to resolve the current impasse. They submit that a guillotine order could be fashioned so that an order finalising the claim comes into effect if Mrs Day does not nominate the doctors and therapist from the list contained in the order of Douglas J. However, the defendants fear that if Mrs Day avoided the falling of the guillotine by nominating doctors and a therapist she may then further frustrate the defendants by not attending the examinations. Given Mrs Day’s conduct of the proceedings to date, that is a real concern.
However, it is an extreme step to bring the proceedings to an end. Mrs Day should, through a guillotine order, be given one last chance to come to grips with the fact that her case will not proceed until she nominates the doctors and therapist. She should understand, though, that if she made the nominations but then further frustrated the defendants’ efforts to have her independently examined, her claim may be permanently stayed without her being given further opportunities.
On the defendants’ applications, I make the following orders:
- If the plaintiff does not advise the solicitors for the defendants, in writing, of the selection of one of the persons from each of the groups specified in paragraph 2 of the order of Douglas J of 27 November 2017, by 4 pm on 21 November 2018, the claim is permanently stayed.
Mrs Day’s application
Mrs Day’s application, seeks the following:
“1. Mr Richard Morton, the counsel to be restrained from acting for CPM Australia Pty Ltd and Retail Aviation Pty Ltd (insured by Zurich Insurance) in the interests of protecting the integrity of the judicial process and the due administration of justice.
- Mr Simon Carter, the solicitor for Mills Oakley Lawyers to be restrained from acting for CPM Australia Pty Ltd and Retail Activation Pty Ltd (insured by Zurich Insurance) in the interests of protecting the integrity of the judicial process and the due administration of justice.
- Ms Gabrielle Forbes, the solicitor of Ashurst Australia to be restrained from acting for Woolworths Limited in the interests of protecting the integrity of the judicial process and the due administration of justice.
- the applications filed by Ms Forbes on behalf of Woolworths Limited on 25 October 2018 and the application filed by Mr Carter on behalf of CPM Australia Pty Ltd and Retail Activation Pty Ltd (insured by Zurich Insurance) on 24 October 2018 to be dismissed as an abuse of process.”
I have effectively dealt with the application made by paragraph 4. The applications referred to are the applications which have resulted in the making of the guillotine order. They were brought for a proper purpose in the face of Mrs Day frustrating the processes of the Court. Those applications were not brought in abuse of the Court’s process.
Paragraphs 1, 2 and 3 of the applications all concerns complaints made by Mrs Day against individual lawyers.
Ms Day’s application for an adjournment
At the hearing of the three applications, Mrs Day made lengthy oral submissions about the defendants’ applications. I invited Mrs Day to make oral submissions on her application. The following exchange occurred:
“HIS HONOUR: I’ve asked you to supplement your written submissions with oral submissions. I’ve told you, though, that there’s no point in simply orally repeating what you’ve written.
PLAINTIFF: Your Honour, I can’t concentrate because I’m not well. I’m in the court again from 10 o’clock till late afternoon. I was not supposed – my health is not allowing me to supplement my submission orally because I’m not well, because I’m not well person, as you can see.
HIS HONOUR: Right. So are you going to make oral submissions? Or are you applying for an adjournment? What are you doing?
PLAINTIFF: For adjournment.
HIS HONOUR: You want an adjournment of this application?
That application for an adjournment was opposed by Mr Diehm QC, who appeared for Woolworths and by Mr Sewell who appeared for CPM and Retail.
I gave Mrs Day an opportunity to identify the subject matters of the submissions she wished to make orally before I ruled on her application for an adjournment:
“HIS HONOUR: No. No? Mrs Day, just before I make a decision about this, go to page 6. And I’ve invited you to sit on numerous occasions, and if you want to sit, you can. If you’re going to stand, that’s a matter for you. If you look at page 6 and through to page 8, there’s detailed submissions about restraining the solicitors for Woolworths and Zurich Insurance. Right?
HIS HONOUR: Now, you just list for me the subject matters of your oral submissions, what further oral submissions you intend to make. You don’t have to set them all out. Just give me the subject matters.
PLAINTIFF: I can’t.
HIS HONOUR: Can’t? Go to what is said at page 8. This is the submissions against Mr Richard Morton. There’s pages of this. There’s four pages of that. Identify the subject matters of your further oral submissions.
PLAINTIFF: I can’t.
HIS HONOUR: Page 11, there’s – is the complaint about Mr Carter, and that goes for two pages. So identify any subject matter of oral submissions for me, please.
HIS HONOUR: Please identify the subject matter of any further oral submissions you want to make about Mr Carter.
PLAINTIFF: I just wanted to emphasise the main point of my submission orally in the court.
HIS HONOUR: Which is what?
PLAINTIFF: What? I wanted to refer you to the documents, but now, unfortunately, my heart is just racing.
HIS HONOUR: You’ve referred to all the documents in the outline – in the written submissions, haven’t you? You’ve referred to documents.
HIS HONOUR: You’ve cross-referenced your affidavit.
PLAINTIFF: Maybe - - -
HIS HONOUR: Look at the bottom - - -
PLAINTIFF: Not all documents.
HIS HONOUR: - - - of page 10. Look at the bottom of page 10. You’ve referred to all the documents.
PLAINTIFF: If you are happy with my written submission, just let finish.
HIS HONOUR: I beg your pardon?
PLAINTIFF: If you are happy with my written submissions, could you please finish the court hearing for today?
HIS HONOUR: What, as in adjourn it?
HIS HONOUR: All right. Go to page 13. Identify the subject matters of further oral submissions in relation to Ms Forbes.
PLAINTIFF: What? Sorry, your Honour. Sorry, your Honour, I not feeling well. I – honestly, I’m not feeling well. Sorry about that. Sorry about my pitiful condition.
HIS HONOUR: All right. So you can’t identify any further submissions?
PLAINTIFF: I’m not able - - -
HIS HONOUR: Pardon?
PLAINTIFF: I’m not able now.
HIS HONOUR: All right. Take a seat.”
I delivered ex tempore reasons on Mrs Day’s application for an adjournment and dismissed the application. Those reasons were as follows:
“HIS HONOUR: The application came before me at about 12 o’clock. Mr Diehm QC, who appears for Woolworths Ltd and other parties made what can be described as a short explanation of the case. He did so at my invitation. Mrs Day was then invited by me to make submissions in relation to the defendant’s applications against her which are that the proceedings be dismissed because she has not and seems to continue to refuse to undergo independent medico-legal examination as was contemplated by the order of Justice Douglas of 27 November 2017.
Mrs Day then made extensive oral submissions to about 3.20 in the afternoon. Of course, I adjourned at about five to 1 and returned at 2.30. It seemed that she finished her submissions on the applications brought against her. I invited her to make oral submissions in relation to the claims in her application. She tells me that she is unwell. She has made written submissions which total 44 pages. The complaints about the various legal practitioners commence at page 6, although that’s more to do with the general conduct of the defendants. There is then submissions and complaints about Mr Richard Morton from page 8 through to the top page of 11. Detailed criticisms of Mr Carter, a solicitor at Mills Oakley Lawyers: they go for two pages. Complaints about Ms Gabrielle Forbes, a solicitor Ashurst Australia Lawyers: that goes for two and a-half pages.
When Mrs Day then asked for an adjournment I asked her to identify the subject matters of oral submissions she would like to make to supplement her written submissions. She was unable to do so. The submissions that were made on the application of the defendants by Mrs Day have been long, repetitive and singularly unhelpful in relation to the central issue in the applications brought against her which is why she has not and continues, apparently, to refuse to undergo independent medico-legal examination. In her submissions she continually attempts to attack the order of Justice Douglas made on 27 November 2017, notwithstanding that she failed in her challenge to that order in the Court of Appeal and notwithstanding that she failed in her challenge to the Court of Appeal decision in that special leave was refused.
It seems to me that no injustice is being inflicted upon Mrs Day by refusing the adjournment. The outline of submissions contains very detailed submissions about her application. She’s unable to identify any further useful areas upon which she would make oral submissions.
Mr Diehm cautiously has submitted that the compromise position is that Mrs Day be able to make further written submissions. I will contemplate that once I’ve heard from the other parties. The application for the adjournment is refused.”
I proceeded to deal with Mrs Day’s application. No party sought leave to deliver further written submissions.
Mr Richard Morton
Mr Morton is a barrister, practising at the Bar in Brisbane. He is the counsel retained by CPM and Retail. Mrs Day seeks to restrain him from acting for CPM and Retail on two bases:
he has allegedly misled the court; and
he has previously accepted briefs on behalf of Woolworths. The submission seems to be that as Woolworths is another defendant in the action some conflict of interest arises.
The first submission concerns a submission made by Mr Morton about the evidence of an orthopaedic surgeon, Dr Hayes. Mr Morton said, “The report of Dr Hayes, an orthopaedic surgeon, simply says she suffered a knee injury. It should be strapped and it’s probably going to be okay. So it really didn’t go anywhere.”
Mrs Day points to the report of Dr Hayes and says, in effect, that Mr Morton understated the seriousness of the injury as described by the doctor. Upon that basis, she makes the serious allegation that a barrister has misled the Court.
Mr Morton’s submission was a broad one and it seems to me to be a fair one. Mrs Day was entitled to draw the judge’s attention to the details of Dr Hayes’ report. Mr Morton was not obliged to do so.
The second alleged misleading of the Court by Mr Morton concerns submissions by him about the report of a psychologist, Dr Stuart, and a psychiatrist, Dr Jelesic-Bojrcic. Mr Morton submitted, “The report of a psychologist, Catherine Stuart, was in relation to her involvement at QUT, and didn’t really take matters anywhere, and the report of Jessica Jelesic-Bojrcic, the treating psychiatrist, didn’t deal in any substantive way with relevant psychiatric matters.” Mrs Day submits that this submission understated the opinions contained in the reports of Dr Stuart and Dr Jelesic-Bojrcic. Again, the submission of Mr Morton was a broad one. Mr Morton was not obliged to descend into the particulars of the report and his submission was a fair one.
Whether the fact that Mr Morton acted for Woolworths in totally unrelated proceedings puts him a position whereby he should not act for CPM and Retail in the current proceedings is a matter for:
his instructing solicitors; and
CPM and Retail.
When the matter was raised by Mrs Day with Mr Morton’s instructing solicitors the response was, “Our clients are happy to proceed with Mr Morton as counsel. That is a matter solely between ourselves, our clients and Mr Morton.” Mr Morton’s instructing solicitors have accurately stated the position.
Mr Simon Carter
Mr Carter is a solicitor of Mills Oakley Lawyers instructed by the insurers of CPM and Retail. He is Mr Morton’s instructing solicitor. There seem to be two complaints against Mr Carter:
he has filed irrelevant material in the Court; and
he signed a certificate of readiness which was false and misleading.
It is unnecessary to determine whether any documents prepared and/or filed by Mr Carter were more voluminous than necessary. I would not restrain Mr Carter from acting in the proceeding on the basis that he filed some unnecessarily voluminous documents.
The issue concerning the certificate of readiness was raised by Mrs Day during the application before Douglas J. The point was raised again by Mrs Day on the appeal. Of these arguments, Sofronoff P said:
“The appellant’s application for declarations about the certificates of readiness, it must be said, were misconceived for the reasons that I give below, but that is explicable by the controversy and heat that surrounded early negotiations between the parties.”
And then later:
“Ground 4 challenges the correctness of his Honour’s refusal to make declarations that certain certificates of readiness signed by the defendants’ solicitors were “false and misleading”. Section 37 of the Personal Injuries Proceedings Act 2002 makes provision for each party to attend a compulsory conference in an effort to settle a claim for personal injuries. The section imposes obligations with which the parties must comply by way of mutual disclosure of relevant material. A certificate of readiness to hold the conference must then be signed by the parties or their solicitors certifying that those steps have been taken. Section 37(3) provides that a legal practitioner who, without a reasonable excuse, signs such a certificate knowing that it is false or misleading in a material particular commits professional misconduct.
The appellant applied for declarations that certain certificates signed by the defendants’ solicitors in this case were in fact false and misleading. Douglas J rightly refused to make such a declaration. It would be made in a proceeding that is not an apt one in which to determine any issue of fact or law presented by s 37(3). It would also lack utility. It could serve no purpose in this proceeding or at all. I will not trouble to refer to the factual bases for the appellant’s contention that the certificates were either false or misleading for there was no possible basis upon which that question could have arisen for decision in this proceeding.”
Mrs Day now attempts to resurrect the issue in order to base an attack upon Mr Carter.
The relevant certificate of readiness is in these terms:
“We hereby certify that, on the basis of the documents in the respondent’s possession, and in the absence of formal pleadings:-
- The respondents are in all respects ready for the conference; and
- All investigative material required by the respondents for the conference has been obtained, (including witness statements from persons other than expert witnesses that the party intends to call as witnesses at the conference); and
- Medical or other expert reports have been obtained from all persons the respondent proposes to call as expert witnesses at the conference; and
- The respondents have fully complied with their obligations to give the other parties material required to be given to the parties under the Personal Injuries Proceedings Act 2002; and
- A costs statement has been given to the respondents in accordance with section 37(4).” (emphasis added)
The complaint is that the certificate of readiness ought to have certified that expert reports have been obtained from persons who the parties propose to call as expert witnesses at the trial. The certificate of readiness refers to persons “the respondent proposes to call as expert witnesses at the conference.” There is no doubt that Mr Carter had obtained all reports etc. “for the conference”.
I do not intend to embark upon an examination of whether the certificate of readiness was a valid certificate. The fact is, that nowhere in the document signed by Mr Carter does he make any misrepresentation. There is no basis upon which Mr Carter ought to be restrained.
Ms Gabrielle Forbes
Ms Forbes is a solicitor at Ashurst Australia. Ashurst Australia acts for Woolworths in the proceeding. Ms Forbes accepts that she made an error in an affidavit as to the date of service of a document. When the error was pointed out to her, she corrected it.
After the stay was ordered by Douglas J, Ms Forbes caused notices of non-party disclosure to be filed, although those notices were not served. When the error of taking that step was pointed out to her, she undertook to refrain from serving the notices. Mrs Day in her application asserts that Ms Forbes ought to be restrained “in the interest of protecting the integrity of the judicial process and the due administration of justice.” I find that the errors were ones honestly made. They were immediately corrected. It cannot be said that restraining Ms Forbes is necessary “in the interests of protecting the integrity of the judicial process and the due administration of justice.”
I dismiss Mrs Day’s application against each of Mr Morton, Mr Carter and Ms Forbes.
I will hear the parties on costs.
THE ORDERS OF THE COURT ARE:
- The plaintiff’s application is dismissed.
 Day v Woolworths Group Ltd & Ors  QCA 105.
 At –, .
 Day v Woolworths Ltd & Ors  HCASL 253.
 Transcript of the hearing at 1-18.
 Koowarta v Bjelke-Petersen (1982) 153 CLR 168 at 224–225; Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 at 287.
 Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51.
 Day v Woolworths Group Ltd & Ors  QCA 105 at .
 Day v Woolworths Ltd & Ors  QCA 321; Day v Woolworths Group Ltd & Ors  QCA 105; and in other proceedings, Day v Humphrey  QCA 104; Day v Humphrey  QSC 236; Day v Lerch & Ors  QCA 224.
 Constitution of Queensland 2001 s 58.
 Re Macks; Ex parte Saint (2000) 204 CLR 158 at –, –, , –, discussed by Mason P in Continental Venture Capital Ltd v Amann Aviation Pty Ltd (in liq) (2001) 53 NSWLR 687.
 Australia Act 1986 (Cth) s 11.
 High Court Rules 2004 (Cth) r 41.08.1.
 Transcript of the hearing at 1-13.
 At 1-15.
 The order of Douglas J, 27 November 2017.
 At 1-20.
 At 1-23.
 At 1-26.
 Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256 at –.
 Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 551.
 Ridgeway v The Queen (1995) 184 CLR 19; Batistatos at  and following.
 Apart from costs.
 Transcript of the hearing at 1-37.
 At 1-38 to 1-40.
 Day v Woolworths Group Ltd & Ors  QCA 105 at .
 At –.
 Generally see Kallinicos & Anor v Hunt  NSWSC 181.
- Published Case Name:
Day v Woolworths Limited & Ors
- Shortened Case Name:
Day v Woolworths Ltd
 QSC 266
16 Nov 2018
|Event||Citation or File||Date||Notes|
|Primary Judgment||SC5774/16; SC6016/16 (No Citation)||27 Nov 2017||Appellant's application to consolidate proceedings dismissed; parts of statement of claim struck out; proceedings stayed until appellant submits to medical examination: Douglas J.|
|Primary Judgment|| QSC 266||16 Nov 2018||Upon the defendants' applications: If the plaintiff does not advise the selection of a medical professionals in accordance with the order of Douglas J of 27 November 2017, the claim is permanently stayed; plaintiff's application for an adjournment and to restrain the defendants' solicitors and Counsel from acting dismissed: Davis J.|
|Primary Judgment|| QSC 40||01 Mar 2019||Application that Davis J recuse himself refused: Davis J.|
|Primary Judgment|| QSC 93||09 Apr 2019||Plaintiff's application to restrain Counsel from acting for the first defendant dismissed and other ancillary orders: Davis J.|
|Notice of Appeal Filed||File Number: Appeal 158/18||08 Jan 2018||Appeal from judgment of Douglas J on 27 November 2017.|
|Notice of Appeal Filed||File Number: Appeal 5777/19||31 May 2019||Application for an extension of time within which to appeal from  QSC 93.|
|Appeal Determined (QCA)|| QCA 105||01 Jun 2018||Appeal from judgment of Douglas J on 27 November 2017 dismissed: Sofronoff P and Morrison JA and Atkinson J.|
|Special Leave Refused|| HCASL 253||12 Sep 2018||Special leave from  QCA 105 refused: Bell and Gageler JJ.|