Loading...
Queensland Judgments

beta

Authorised Reports & Unreported Judgments
Exit Distraction Free Reading Mode
  • Unreported Judgment
  • {solid} Appeal Determined - {hollow-slash} Special Leave Refused (HCA)

Day v Humphrey (No 2)

 

[2019] QSC 38

SUPREME COURT OF QUEENSLAND

CITATION:

Day v Humphrey & Ors [2019] QSC 38

PARTIES:

OLGA DAY
(plaintiff)
v
PROFESSOR JOHN HUMPHREY
(first defendant)
ASSOCIATE PROFESSOR TINA COCKBURN
(second defendant)
QUEENSLAND UNIVERSITY OF TECHNOLOGY
(third defendant)
WESLEY LERCH, Director of Queensland Compensation Lawyers Pty Ltd
(fourth defendant)
DAVID BRAY, Director of Queensland Compensation Lawyers Pty Ltd
(fifth defendant)
QUEENSLAND COMPENSATION LAWYERS PTY LTD (ACN 135 360 119)
(sixth defendant)    

FILE NO:

BS5774 of 2016

DIVISION:

Trial Division

PROCEEDING:

Recusal application

DELIVERED ON:

1 March 2019

DELIVERED AT:

Brisbane

HEARING DATE:

8 February 2019

JUDGE:

Mullins J

ORDER:

  1. Application for recusal of Mullins J refused.
  2. Direct that the parties apply to the Senior Judge Administrator to nominate a judge in lieu of Mullins J to be the supervising judge pursuant to Practice Direction No 10 of 2014 of this proceeding.
  3. Direct the parties file their written submissions on costs on or before 11 March 2019.
  4. Adjourn the question of the costs of the recusal application to be decided on the papers.

CATCHWORDS:

COURTS AND JUDGES – JUDGES – DISQUALIFICATION FOR INTEREST OR BIAS – REASONABLE APPREHENSION OF BIAS GENERALLY – where the plaintiff is a self-represented litigant in a proceeding managed by a judge on the Supervised Case List for cases involving self-represented litigants –– where the plaintiff applies for recusal of the supervising judge on the grounds of reasonable apprehension of bias – whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the supervision of the proceeding – where the supervising judge in the interests of justice for all the parties declines to continue as supervising judge 

Uniform Civil Procedure Rules 1999 (Qld), r 5

Day v Lerch [2018] QCA 224, related

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63, followed

Limbo v Little (1989) 65 NTR 19; [1989] NTCA 5, considered

Makucha  v Sydney Water Corporation [2011] NSWCA 234, considered

Mandie v Memart Nominees Pty Ltd [2017] VSCA 177, considered

Markan v Bar Association of Queensland [2014] 2 Qd R 273; [2014] QCA 34, considered

Parbery v QNI Metals Pty Ltd [2018] QSC 213, considered

Rouvinetis v Knoll [2013] NSWCA 24, considered

COUNSEL:

O Day (in person) for the plaintiff

D J Schneidewin for the first, second and third defendants

K F Holyoak for the fourth, fifth and sixth defendants

SOLICITORS:

Barry Nilsson Lawyers for the first, second and third defendants

Queensland Compensation Lawyers for the fourth, fifth and sixth defendants

  1. [1]
    Mrs Day is a self-represented plaintiff who was informed on 3 October 2018 that I directed this proceeding be entered on the Supervised Case List for cases involving self-represented litigants (SRL Supervised Case List) pursuant to paragraph 1.2 of the Supervised Case List Involving Self Represented Parties:  Civil Jurisdiction Brisbane (Practice Direction No 10 of 2014).
  2. [2]
    This proceeding was commenced by claim and statement of claim filed on 13 June 2016 and an amended statement of claim was filed on 22 February 2017. Mrs Day’s claims against the first, second and third defendants arise out of her enrolment at QUT as an external law student. It is convenient to refer to the first, second and third defendants as the QUT parties. Her claim against the QUT parties is, in general terms, for damages for personal injuries and financial losses caused by breach of contract and/or negligence and for misfeasance. Mrs Day was studying the subjects Trusts and Equity for which the second defendant was the course coordinator and alleges that she identified a number of distorted citations in the lecture material and, when she pursued the second defendant about these errors in the material for Trusts, she was directed by the first defendant to cease communication with the teaching staff in the subject and received emails from the first defendant “containing threats to commence legal actions in defamation against [her]”. The plaintiff also relies on errors in the examination paper in the subject Administrative Law. The plaintiff alleges to have experienced an acute reoccurrence of posttraumatic stress disorder which developed into major depression and anxiety disorders.
  3. [3]
    At one stage, Mrs Day was employed as a paralegal by the sixth defendant of which the fourth and fifth defendants who are solicitors are directors. It is convenient to refer to the fourth, fifth and sixth defendants as the QCL parties. She took sick leave, as a result of the reoccurrence of her posttraumatic stress disorder due to the dispute with the QUT parties. She alleges that on 4 November 2013 during her sick leave, she was advised that her employment contract was terminated which she alleges was in breach of her contract, the duty of care and statutory duty owed to her by the QCL parties and also as a result of fraudulent misrepresentation. She has brought a claim against the QCL parties for damages for personal injuries and financial losses alleged to be caused by breach of contract and/or negligence and/or breach of statutory duty.    
  4. [4]
    Mrs Day pleads that she has complied with all requirements of the Personal Injuries Proceedings Act 2002 (Qld) (PIPA) with all defendants.
  5. [5]
    I set the date and time for the first review as 9.15am on 20 November 2018. At 8.19am on that date my associate received an email from Mrs Day attaching a medical certificate dated 19 November 2018 that said she was unfit for usual activities from 19 to 21 November 2018. Mrs Day requested an adjournment of the review and provided a draft order which set out directions which she was seeking in relation to the filing of her application to transfer proceedings to the Supreme Court of New South Wales and for orders restraining certain lawyers associated with the respective defendants from continuing to act for their respective clients. As this late notice was received so close to the scheduled time for the review, I did not postpone the review hearing, but attended the court at the scheduled time and advised the counsel who appeared for the defendants that I was proposing to adjourn the application. I adjourned the review to a date to be fixed.
  6. [6]
    The parties included my associate in an email exchange in which the fourth defendant foreshadowed on 26 November 2018 the intention of the QCL parties of subpoenaing the next doctor who issued a medical certificate stating that Mrs Day is unable to attend a hearing/review by telephone.
  7. [7]
    Ultimately the review of the proceeding was listed for 20 December 2018. On 18 December 2018 Mrs Day’s husband (Mr Day) sent an email to my associate providing another medical certificate dated 14 December 2018 certifying Mrs Day’s unfitness to attend court for at least two weeks and requesting an adjournment of the review scheduled for 20 December 2018. My associate sent an email to the parties on 19 December 2018 advising that, in light of the email from Mr Lerch dated 26 November 2018, it was not possible for me to adjourn the review on the request made on behalf of Mrs Day, unless with the consent of all parties, and I would deal with any request for an adjournment of the review at the time for which it was listed on 20 December 2018. Mrs Day was given the telephone number of the courtroom and advised that she was welcome to appear by telephone. 
  8. [8]
    On 20 December 2018 at 8.38am, my associate received by email a letter dated 19 December 2018 from Mr Day advising that Mrs Day was raising the issue of apprehended bias on my part and foreshadowing the filing of an application attached to the email seeking my recusal from any involvement in the proceeding. In that letter, Mr Day conveyed a request on behalf of Mrs Day:

“In addition, in accordance with the Australian Guide to Judicial Conduct Mrs Day asks your Honour to disclose any conflict of interest with the parties to the above proceedings, their legal representatives and the judges, who were/are involved in the determination of the matters with Mrs Day’s involvement.”

  1. [9]
    At the time set for the review hearing on 20 December 2018, there was no appearance by Mrs Day, although Mr Day did telephone into the courtroom for part of the time and was able to be consulted about arrangements for the filing and setting down of this recusal application. The review was adjourned to 21 February 2019 at 9.15am with costs reserved.
  2. [10]
    On 4 February 2019, my associate received by email a letter addressed to me dated 3 February 2019 requesting disclosure from me of facts which might reasonably give rise to a perception of bias or conflict of interest. The letter was six pages in length and had 20 attachments. My associate’s reply to that email in respect of the request for disclosure was set out in a letter dated 5 February 2019 emailed to Mrs Day and the solicitors for the defendants and included the following:

“It is not appropriate for Justice Mullins to be questioned by parties in anticipation of a recusal application. Justice Mullins is mindful of her obligation to communicate to parties of circumstances that might not be known to them, but might require the Judge not to sit.

Justice Mullins is not aware of any circumstances that might not be known to the parties that might require her Honour to recuse herself from supervising, or hearing applications in, this proceeding.

As Ms Day is a self-represented party, Justice Mullins discloses the following matters which, subject to hearing submissions from the parties on the recusal application, Justice Mullins considers do not require her to cease supervising this proceeding or hearing applications in this proceeding:

  1. (a)
    In 2005 when QUT and the Bar Association of Queensland conducted the Bar Practice Course as a joint venture, Justice Mullins was nominated by QUT to be one of its nominees on the management committee on the Bar Practice Course and continued as the QUT nominee until QUT ceased involvement in the Bar Practice Course;
  2. (b)
    Justice Mullins knows Professor Humphrey and Professor Cockburn, but does not have a close personal or professional relationship with either of them;
  3. (c)
    Justice Mullins delivered the speech for the graduation ceremony of the Faculty of Law of QUT on 21 July 2010.
  4. (d)
    For a number of years, Justice Mullins was a member of an Advisory Board for the QUT Law Journal, but, as far as Justice Mullins is aware, that Board did not meet and that position did not involve any active contribution by Justice Mullins.

Justice Mullins gives notice to the parties that she is considering removing this proceeding from the SRL Supervised Case List pursuant to paragraph 9.1 of PD10 of 2014. The purpose of the PD is to facilitate the conduct of a proceeding where there is a self-represented party. It defeats the purpose of endeavouring to use a system of reviews to progress the proceeding, if the Judge designated to conduct the reviews is subject to a recusal application which distracts the parties from pursuing the proceeding itself. When this matter is next reviewed at 2:30pm on 8 February 2019, the parties will have the opportunity to make submissions on the proposal that the proceeding be removed from the SRL Supervised Case List.” 

  1. [11]
    The recusal application was heard by me on 8 February 2019 commencing at 10.20am. Mrs Day made oral submissions. The QCL parties were given leave to read and file a written submission. I stood the matter down at 11.25am to resume at or soon after 2.30pm. Before adjourning, Mr Schneidewin of counsel provided Mrs Day with the draft directions the defendants proposed be considered on the review. When the hearing resumed at 2.30pm, Mrs Day then informed me that she could not concentrate on her submissions and requested to make the rest of her submissions in writing which I permitted her to do.
  2. [12]
    One of the matters that arose before I heard the recusal application was the filing by the QUT parties of an application on 30 January 2019 for an order the plaintiff be examined by a psychiatrist from a panel. That application was listed for hearing on 12 February 2019. On 31 January 2019, Mrs Day had filed an application also returnable on 12 February 2019 applying to have this proceeding transferred to the Supreme Court of New South Wales and seeking orders that two solicitors who were acting for the QUT parties be restrained from so acting. By an email to my associate dated 31 January 2019, Mrs Day sought directions from me to adjourn the hearing of the QUT parties’ application until 21 February 2019 and a direction that a foreshadowed application by the QCL parties be filed and heard together with the other application. It was therefore arranged that the proceeding would be reviewed at 2.30pm on 8 February 2019, as a result of an email by my associate to Mrs Day and the defendants’ solicitors in the following terms:

“If the parties are unable to agree amongst themselves on adjournments to accommodate the matters raised by Ms Day, Justice Mullins will list this matter for review at 2.30pm on 8 February to enable Ms Day to seek the directions she foreshadows in the email below. If Justice Mullins considers it likely that she will recuse herself after hearing the recusal application earlier that day, the review will be heard by Justice Brown.”  

  1. [13]
    When it came time for the review hearing on 8 February 2019, Mrs Day’s oral submissions on the recusal application had not been completed, but the evidence on which she relied for the recusal application was before the court in the form of her affidavit filed on 4 February 2019. I indicated to the parties:

“At this stage, I think even without resolving the recusal application, I think I could still do the review that I set down at 2.30.”

  1. [14]
    After further exchanges about the content of the anticipated written submissions of Mrs Day on the recusal application, I observed:  “So at this stage, I feel confident about doing the review.”  Mrs Day did not demur from my proposal to proceed with the review hearing.
  2. [15]
    The draft order produced by Mr Schneidewin dealt with the matters that Mrs Day had raised about the timing of the hearing of all applications on a single day. The draft order proposed that the applications be listed for hearing on the civil list on a date to be fixed. I then had my associate ascertain from the civil list manager possible dates that would give Mrs Day an acceptable amount of time for preparation, but would also suit counsel for the defendants. The date of 28 March 2019 was not objected to by any of the parties and that was the date to which the QUT parties’ application filed on 30 January 2019 and Mrs Day’s application filed on 31 January 2019 were adjourned, and the date directed to be the hearing date for any application filed by the QCL parties by 12 February 2019. I then adjusted the timetable for the serving of affidavit material by reference to the fixed hearing date of 28 March 2019. The review of the proceeding listed for 21 February 2019 was adjourned until a date to be fixed to accommodate the hearing and disposal of the applications listed on 28 March 2019. The costs of the review hearing on 8 February 2019 were reserved.   
  3. [16]
    On 12 February 2019, my associate sent a letter by email to Mrs Day and the solicitors for the defendants in the following terms:

“In September last year Justice Mullins, as a judge who is experienced in sentencing for drug offences, indicated that she was prepared to be interviewed by an academic, Professor Melissa Bull, who was then at the School of Criminology and Criminal Justice at Griffith University for the purpose of a research project entitled “The Nature of Illicit Drug Supply/Suppliers and the Appropriateness of Current Australian Criminal Justice Responses:  ‘Social Supply’ and Sentencing”.

Professor Bull moved from Griffith University to QUT in November 2018 and is now the director of the Crime Justice and Social Democracy Research Centre at the School of Justice within the Faculty of Law at QUT.

Professor Bull proposes interviewing Justice Mullins for about 45 minutes in connection with her research on sentencing for drug supply offences.

This is a matter that Justice Mullins does not consider requires her recusal from this proceeding, but as it is not something that would be known to the parties, Justice Mullins has requested me to convey this information.”

  1. [17]
    Mrs Day sent an email to my associate on 13 February 2019 seeking further information from me for the purpose of the recusal application to which my associate responded that it was not appropriate for me to be questioned by Mrs Day for the purpose of the recusal application. Mrs Day provided her written submissions in respect of the recusal application on 20 February 2019.

Grounds for recusal

  1. [18]
    Mrs Day’s application filed on 20 December 2018 did not identify distinct and separate grounds for seeking my recusal for apprehended bias, but her affidavit filed in support of the application on 4 February 2019, her oral submissions made on 8 February 2019, and her written submissions dated 20 February 2019 (with attached exhibits) traversed many matters from which I distilled the following matters as those on which Mrs Day was relying for their cumulative effect in seeking my recusal:
  1. (1)
    my lack of supervision in Day v Woolworths Limited (BS No 6016 of 2016) when the supervision of the proceeding had been transferred from Flanagan J’s chambers to my chambers in November 2017;
  2. (2)
    failing to adjourn the review hearing on 20 November 2018;
  3. (3)
    failing to adjourn the review hearing on 20 December 2018;
  4. (4)
    failing to direct the defendants not to brief barristers to appear on the review hearings;
  5. (5)
    my involvement in University education and Griffith Law School would predispose me to favouring the QUT parties;
  6. (6)
    contact I have had with QUT over the years disclosed to the parties in my associate’s letters dated 5 and 12 February 2019 and referred to during the hearing of the application;
  7. (7)
    my husband Mr Patrick Mullins, a partner of Mullins Lawyers, sponsored a student poster competition at QUT in June 2013 that involved the first defendant and has involvement with QUT;
  8. (8)
    my husband and brother-in-law are partners in Mullins Lawyers who are on the panel for WorkCover Queensland;
  9. (9)
    Mr Mullins’ involvement with religious and educational institutions;
  10. (10)
    Mr Mullins and Daubney J are known to one another through their involvement in the Catholic Church;
  11. (11)
    the content of my paper on vexatious litigants delivered in 2015;
  12. (12)
    my conduct before and during the hearing on 8 February 2019;
  13. (13)
    failing to disclose all relevant facts which could give rise to my disqualification.
  1. [19]
    There are other matters relied on by Mrs Day referred to in her supporting affidavit or submissions that I have not listed. They are matters based on assertions by her as to facts, but they are not supported by any evidence adduced by her. As conveyed by my associate in the letter dated 5 February 2019, it was not appropriate for me to be questioned by the parties in anticipation of the recusal application. See Limbo v Little (1989) 65 NTR 19, 22 and Makucha v Sydney Water Corporation [2011] NSWCA 234 at [9]. The starting point is that I am a judge of the Supreme Court of Queensland who is cognisant of my obligations to communicate to the parties of circumstances that might not be known to them, but would require me not to sit. To correct the misinformation in the material relied on by Mrs Day would be tantamount to answering Mrs Day’s questions which is not the appropriate process. Some of the misstated facts are:
    1. (a)
      Mullins Group Pty Ltd is a Brisbane-based law firm that provides legal services “which is closely associated with Mullins Lawyers”;
    2. (b)
      that four persons with the surname Mullins who Mrs Day has identified as employed by, or contracted to, QUT are my “relatives”. 
  2. [20]
    Without exhibiting the email exchange with my associate in respect of her request for a copy of the transcript of the hearing on 20 November 2018, Mrs Day asserts, without any evidence, that I refused to provide her with a free copy of the transcript of the reviews held on 20 November and 20 December 2018. A judge has no authority to provide the Auscript transcript in civil matters direct to a litigant for free.
  3. [21]
    One matter that Mrs Day has not expressly relied on, but I consider is raised by her submissions and should be addressed on the recusal application, is the effect on the fair-minded observer’s perception of my impartiality of the assertions in Mrs Day’s submissions about my conduct.     

Test to be applied

  1. [22]
    The objective test to be applied is that set out in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at [6] that “a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide”. As explained further in [6] the principle of disqualification for reasonable apprehension of bias “gives effect to the requirement that justice should both be done and be seen to be done, a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial”.
  2. [23]
    The judgment of the plurality in Ebner explained the two-step process for assessing reasonable apprehension of bias at [8]:

“The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty. Its application requires two steps. First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a judge (or juror) has an "interest" in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed.”

  1. [24]
    It is also relevant to note that the test of whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question assumes a degree of acceptance by the fair-minded lay observer of the ability of judges to adhere to the obligations of the judicial oath or affirmation, as explained in Rouvinetis v Knoll [2013] NSWCA 24 at [24].
  2. [25]
    I have also had regard to the relevant principles with respect to an application for recusal for apprehended bias summarised by Bond J in Parbery v QNI Metals Pty Ltd [2018] QSC 213 at [29]-[33].

Duty of a judge to sit

  1. [26]
    Ebner not only explains the application of the test of reasonable apprehension of bias, but does so in the context of affirmation of the duty of a judge to sit. The judgment of the plurality refers to that duty at [19]-[20]:
  1. “[19]
    Judges have a duty to exercise their judicial functions when their jurisdiction is regularly invoked and they are assigned to cases in accordance with the practice which prevails in the court to which they belong. They do not select the cases they will hear, and they are not at liberty to decline to hear cases without good cause. Judges do not choose their cases; and litigants do not choose their judges. If one party to a case objects to a particular judge sitting, or continuing to sit, then that objection should not prevail unless it is based upon a substantial ground for contending that the judge is disqualified from hearing and deciding the case.
  1. [20]
    This is not to say that it is improper for a judge to decline to sit unless the judge has affirmatively concluded that he or she is disqualified. In a case of real doubt, it will often be prudent for a judge to decide not to sit in order to avoid the inconvenience that could result if an appellate court were to take a different view on the matter of disqualification. However, if the mere making of an insubstantial objection were sufficient to lead a judge to decline to hear or decide a case, the system would soon reach a stage where, for practical purposes, individual parties could influence the composition of the bench. That would be intolerable.”

Role of the supervising judge under PD10/2014

  1. [27]
    The role of the supervising judge of matters involving self-represented litigants that are placed on the SRL Supervised Case List can be gleaned from paragraph 3 of the Practice Direction which explains why the court has a Supervised Case List for self-represented litigants:

“3.1 The SRL Supervised Case List is designed to ensure that matters in the Supreme Court in which a party is self represented are dealt with efficiently by:

  1. (a)
    ensuring that a case is prepared for trial as effectively and efficiently as possible;
  2. (b)
    ensuring that the costs of litigation are reduced;
  3. (c)
    recognising the need to balance consistency and flexibility in dealing with cases on the SRL Supervised Case List;
  4. (d)
    using the benefits of more intensive supervision to ensure that cases involving a self represented party can be dealt with efficiently;
  5. (e)
    ensuring that the parties explore options to resolve their dispute without the need for trial;
  6. (f)
    ensuring that a trial is fully prepared when a trial date is set;
  7. (g)
    minimising the risk and costs of a trial being adjourned;
  8. (h)
    ensuring that at trial the parties focus on the real issues genuinely in dispute; and
  9. (i)
    ensuring that, consistently with the provisions of the UCPR and the need for the Court to remain impartial, self represented parties have a fair opportunity to present their case.”
  1. [28]
    The supervision of a case on the SRL Supervised Case List is exercised through review hearings where, pursuant to paragraph 5.2 of the Practice Direction, provision is made for the court to make orders to assist the parties to finalise the case consistently with the philosophy underlying the Uniform Civil Procedure Rules 1999 (Qld) set out in r 5. Pursuant to paragraph 5.3, the court is required to ensure that a self-represented party has a fair opportunity to present the party’s case and factors are listed to which the court should have regard. Paragraph 5.4 also provides that the court shall make orders as are appropriate and shall consider the matters set out in paragraph 5.4.
  2. [29]
    From time to time, the supervising judge on a review hearing may hear an application made by a party that can be dealt with as a short matter that it is convenient for all to dispose of at the review hearing, such as whether a pleading requires amendment, whether a party should be permitted to withdraw an admission made in a pleading, or whether specified categories of documents are within the ambit of disclosure. This is consistent with paragraph 7.8 of the Practice Direction which provides that review hearings will generally be limited to the determination of directions, involving only limited disputes. Paragraph 7.9 of the Practice Direction provides that applications for interlocutory relief and other substantial interlocutory disputes may be determined by the supervising judge on a day allocated in the Court calendar for matters on the list, by arrangement made at a review, or with the associate. My practice in most cases has been for substantial applications to be the subject of a timetable for directions to facilitate the hearing of the application by a judge sitting in the applications jurisdiction. When I am in the calendar to sit in the applications jurisdiction, I may suggest the parties list their applications in one of the weeks when I am sitting in that jurisdiction.
  3. [30]
    The Practice Direction is intended to operate for the benefit of all parties to a proceeding, where at least one party is a self-represented litigant. The Practice Direction contemplates that in making directions at review hearings the supervising judge will take account of the limitations that may apply to a self-represented litigant. That does not mean, however, that the supervising judge must accede to every request made by the self-represented litigant, whatever the timing of the request or without regard to the reasonableness of the request. Taking account of the limitations that apply to a self-represented litigant may result in the timetable for the steps to progress the action being more generous in time to the self-represented litigant than it would be for a represented party. The supervising judge cannot take account of the self-represented litigant’s limitations to such an extent that it impacts adversely and significantly on the fairness of the proceeding to the represented parties. It is sometimes a difficult balance to achieve.
  4. [31]
    Paragraph 7.6 of the Practice Direction refers to the practice that communications about the supervision of the proceeding are usually by email to the supervising judge’s associate. Email exchanges facilitate the setting down of reviews and, where the parties consent to the directions, the making of directions “on the papers” without requiring the attendance of the parties at the court for the review hearing. As a general rule, it is not appropriate for the supervising judge to make directions at the email request of one party only, in the absence of the concurrence of the other parties.
  5. [32]
    The directions made by the supervising judge at review hearings are usually for the purpose of assisting the proceeding to progress to a trial in such a way that the true issues in dispute are the subject of the trial and the parties are prepared for the trial. It is relevant to have regard to the types of decisions usually made by the supervising judge in respect of a proceeding on the SRL Supervised Case List in considering this recusal application. The decisions made by the supervising judge are judicial decisions and therefore a recusal application can be made in respect of reasonable apprehension of bias of the supervising judge.     

Day v Woolworths Limited

  1. [33]
    Mrs Day is the plaintiff in another proceeding for damages for personal injuries that was placed on the SRL Supervised Case List and was originally supervised by Flanagan J, but in respect of which the parties were notified on 17 November 2017 that I was now the supervising judge. I have never exercised any supervision over this proceeding. It is relevant to note that on 27 November 2017, Douglas J ordered in Day v Woolworths Limited

“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:

  1. (a)
    An orthopaedic specialist, one of Dr Peter Steadman, Dr David Morgan, or Dr Prue Fitzpatrick;
  1. (b)
    A neurosurgeon, one of Dr Terry Coyne, Dr Michael Weidmann, or Dr Gregory Ohlrich;
  1. (c)
    A consultant psychiatrist, one of Dr Jill Reddan, Dr John Steinberg, or Professor Harvey Whiteford; and
  1. (d)
    An occupational therapist, one of Xavier Zietek, David Morris or Cameron Fraser.”
  1. [34]
    That proceeding has been stayed since 27 November 2017 and it was therefore not appropriate for me to set a review hearing in that proceeding while it was stayed. Mrs Day complains that my lack of supervision resulted in the defendants in that proceeding bringing an application before Davis J that Mrs Day’s claim be dismissed on the basis that she refused to nominate doctors and a therapist pursuant to the orders of Douglas J made on 27 November 2017. In Day v Woolworths Limited [2018] QSC 266, Davis J made an order on these applications on 16 November 2018 as follows:

“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.”

These applications by the defendants in Day v Woolworths Limited arose out of Mrs Day’s failure to fulfil the condition which would have lifted the stay of that proceeding.    

  1. [35]
    In the circumstances, Mrs Day’s complaints about my failure to supervise a stayed proceeding is not a matter that is relevant for this recusal application. The first step in the test for reasonable apprehension of bias is not satisfied.

Failing to adjourn the review hearing on 20 November 2018

  1. [36]
    Having regard to the lateness of the notice by Mrs Day that she would not be attending on 20 November 2018, I attended the court at the time fixed for the review hearing, in order to deal with the adjournment. Each group of defendants was represented by counsel and solicitor. Minds might differ on whether I could have dealt with the late adjournment request differently, but I do not consider that a fair-minded lay observer might apprehend that decision to deal with the adjournment by attending the court hearing as scheduled might give rise to a reasonable apprehension of bias on my part against Mrs Day. The first step in the test is not satisfied.

Failing to adjourn the review hearing on 20 December 2018

  1. [37]
    Having regard to the relative lateness of the notice by Mrs Day that she would not be attending on 20 December 2018 after the QCL parties had foreshadowed their attitude to her reliance on another medical certificate, I attended the court at the time fixed for the review hearing, in order to deal with the adjournment and, as it turned out, the setting down of Mrs Day’s recusal application. Again, minds might differ on whether I could have dealt with the adjournment differently, but I do not consider that a fair-minded lay observer might apprehend that decision to deal with the adjournment by attending the scheduled court hearing, in the absence of prior concurrence of all parties to Mrs Day’s request for an adjournment, might give rise to a reasonable apprehension of bias on my part against Mrs Day. The first step in the test is not satisfied.

Failing to direct the defendants not to brief barristers to appear on the review hearing

  1. [38]
    On the basis that one of the purposes of the SRL Supervised Case List is to ensure the costs of litigation are reduced, Mrs Day submitted that it was unnecessary for the defendants to have barristers appear on the review hearings and that, as the supervising judge, I should have told the defendants to limit their representation to a solicitor who had knowledge of the matter. She asserts that I was displaying favouritism to the defendants and their legal representatives.  As I endeavoured to explain to Mrs Day during the hearing on 8 February 2019, the supervising judge cannot dictate to represented parties whether or not counsel is briefed. That is a matter for them, although if counsel are briefed for an appearance that does not warrant the briefing of counsel, any party and party costs assessment for that appearance should not include the costs of counsel.
  2. [39]
    Mrs Day asserts that I have a “professional relationship with the Bar Association of Queensland” and that it appears that I tolerate the frequent and often unnecessary appearance of the barristers. Like many members of the court, I was a barrister before I was appointed a judge. Whilst a barrister, I was a member and served on the council of the Bar Association. I remain a judicial member of the Bar Association which is not an active membership. The relationship between a judge and the Bar Association is a matter that has been raised in other cases by self-represented litigants. Muir JA in Markan v Bar Association of Queensland [2014] 2 Qd R 273 at [17] to [19] helpfully explained the traditional links between the judiciary and the Bar, noting at [20] that such links have never been considered as standing in the way of the impartial determination by judges. Muir JA observed at [21]:

“The high ethical traditions of the Bar and the judiciary are relevant also. Barristers and their association would not desire or contemplate that they or their association would receive any favours from a judge hearing a case in which the association was a party. Any judge seen to exhibit a lack of impartiality in such circumstances would incur condemnation rather than approbation. The links between a judge and a barrister’s association are thus singularly unlikely to cause a judge to fail to act impartially.”

  1. [40]
    There is no conduct on my part in relation to this complaint which satisfies the first step in the test.

My involvement in University education and Griffith Law School

  1. [41]
    Because of the nature and extent of my involvement with Griffith Law School, I usually recuse myself from hearing any matter to which Griffith University was a party.
  2. [42]
    Mrs Day relied on an article by solicitor Ms Carolyn Cohen on “Australian universities’ potential liability for courses that fail to deliver” (exhibit 2) to show the direction in which the law of negligence could develop in respect of a claim by a student for careless or incompetent teaching practices. Mrs Day’s submission was that, if she were to succeed in her claim against the QUT defendants for breach of contract or negligence in the standard of education delivered in their law degree, that would affect other universities, including Griffith University and the University of Queensland with which I have associations, and from which a reasonable and fair-minded lay observer might reasonably apprehend might predispose me to make orders that benefited the QUT parties.
  3. [43]
    I accept that my association with Griffith Law School, in particular, is an association with an institution of like type to QUT and that satisfies the first step in the test of identifying a matter that is relevant to whether or not I might make decisions in supervising the case against the QUT parties other than on its legal and factual merits. It is then a question of exploring whether there is a logical connection between my association with other universities and the possibility that I might not be impartial in supervising the proceeding against the QUT parties.
  4. [44]
    As Bond J noted at [31] of Parbery, “the fair-minded lay observer has attributed to him or her knowledge that the judge is a professional lawyer, whose training, tradition and oath or affirmation require him or her to discard the irrelevant, the immaterial and the prejudicial, with the result that a conclusion that there is a reasonable apprehension that the judge might be biased should not be drawn lightly”. To suggest that I would make decisions to protect other universities from liability in negligence in respect of a claim by a student for negligence in the standard of education delivered in the university course is to suggest that I would not make any decision involving Mrs Day’s claim against the QUT parties on the merits. I consider that it is a long bow to draw between my involvement in university education through Griffith Law School as a matter that might preclude my being impartial in dealing with the plaintiff’s claim against the QUT parties. I do not consider the fair-minded lay observer, having regard to my legal training and judicial oath, might reasonably apprehend that I might not bring an impartial mind to my supervision of Mrs Day’s proceeding against the QUT parties. The second step in the test is not satisfied in respect of this matter.

My contact with QUT

  1. [45]
    As expressed to Mrs Day in my associate’s letters of 5 and 12 February 2019 and during the hearing on 8 February 2019, the contact that I have had with QUT requires neither disclosure nor my recusal from supervising this proceeding.  Judges regularly receive requests to participate in various activities, programs or moots organised by law schools for the benefit of the law students. That type of involvement falls far short of being characterised as an association with, or interest in, the university that might give rise to a reasonable apprehension of bias in favour of the university on the part of the judge from the viewpoint of the fair-minded observer.
  2. [46]
    In preparing these reasons, I realised that I had overlooked another aspect of my contact with QUT that fits into the category of requiring neither disclosure nor my recusal from supervising this proceeding. As I have disclosed other matters in that category, I also disclose that for a few years, but not currently, I have undertaken short courses in the Mandarin language at the Confucius Institute that is based at QUT. QUT provides support in accommodating the Confucius Institute that is conducted on its campus. I was enrolled as a student of the Confucius Institute and not QUT. I do not need to receive submissions from Mrs Day on my Mandarin classes, as it is not a relevant matter on this recusal application.
  3. [47]
    I am an Honorary Fellow of St John’s College within The University of Queensland. That is an honour, rather than a practical appointment. Mrs Day has searched the website for St John’s College and notes that it provides:

“All our students are enrolled in the University of Queensland, the Queensland Conservatorium of Music or the Queensland University of Technology.”

  1. [48]
    The fact that some students of St John’s College of which am an Honorary Fellow attend QUT is not a relevant matter for the purpose of the recusal application.
  2. [49]
    The nature and extent of my involvement with QUT is not an association of the type from which a fair-minded lay observer might reasonably apprehend that I might not be impartial in respect of Mrs Day’s proceeding against the QUT parties. The first step of the test is not satisfied.

Mr Mullins’ contact with QUT

  1. [50]
    As Mr Mullins’ photo with the first defendant featured amongst the attachments to Mrs Day’s letter of 3 February 2019 to me, I asked him to provide me with a note about his relationship with the first defendant. During the hearing on 8 February 2019, I read from and summarised the note and advised as follows:

“And I also want to state in open court I asked my husband about the photograph with Mr Humphrey, and this is what my husband produced. I just asked him to give me a paragraph. Now, my husband is an alumnus of QUT. He has a Master of Laws from QUT.

In April 2011, he received an invitation from Michael Lavarch, who was then head of the QUT law school to consider sponsoring an inaugural event within the QUT faculty of law in a subject called Law, Society and Justice, and they were to create a poster in groups on the topic of access to justice. My husband was invited on behalf of Mullins Lawyers to provide sponsorship for the event by way of provision of four book vouchers for the winners.

He agreed to sponsor the event and provided four book vouchers of $100 each. He attended the judging and addressed the students. The event was repeated in May 2012 and Mullins Lawyers again sponsored the event, but this time with Caxton Legal Centre. He sponsored the event in 2013. QUT News published a photograph of him with Judith McNamara and Professor John Humphrey with the winning team members and my husband states:

I recall meeting with Professor Humphrey and some law school staff prior to that event in 2013. I have met Professor Humphrey on a number of further occasions, being either QUT events or law professor gatherings. This is the extent of my contact with him.

So, my husband does not have a close personal or professional relationship with Professor Humphrey, even though you found a photo with him, but I thought I would just clarify that.”

  1. [51]
    Although not subject of evidence at the time of the hearing of the recusal application, Mrs Day attached documents to her submissions that showed that Mullins Lawyers was involved with programs involving QUT called “LawLink” and “Legal Match”. One of the attachments appears to be a report of the Equalising Opportunities in the Law Committee of the Queensland Law Society for 2006/2007 which includes a report on the Indigenous Law Students Liaison Program (LawLink) as follows:

“The EOL Committee has organised three successful LawLink programs, with the first being conducted in 2003. The aims of the Indigenous Law Students Liaison Program (LawLink) are ‘to enable Aboriginal and Torres Strait Islander students to gain some familiarity with different arms of the legal profession, the various types of work solicitors do, and to strengthen the students’ networks with members of the legal profession’.

The 2006 program includes students from three Brisbane universities:  Queensland University of Technology, Griffith University and the University of Queensland. Students took part in sessions at Mullins Lawyers, Clayton Utz and Mr Dan O’Gorman’s chambers. Students were also hosted to a tour of the Magistrates Courts by the Chief Magistrate Marshall Irwin, the Deputy Magistrate Brian Hyne, and Magistrates Rick Sarre and Jacqui Payne.”

  1. [52]
    The second attachment to the submissions appears to be from the webpage for QUT Australian Centre for Entrepreneurship Research dated 15 August 2016 which states:

“Young entrepreneurs from QUT Starters joined forces with budding legal professionals at The Legal Forecast to host Queensland’s first legal innovation hackathon from August 5-7 at QUT.

According to coverage of the #DisruptingLaw event, hackathon participants demonstrated ‘collaborative excellence’ and ‘impressed members of the legal profession’ with the quality of ideas pitched.

The Australian Centre for Entrepreneurship (ACE) was proud to be one of the many supporters of the event and accompany and assist its organisers along the journey.

The 54 hour Disrupting Law hackathon attracted a sell-out audience to hear the final pitches delivered by twelve teams.

‘Legal Match’:  utilises technology to better match people in need of legal services with providers, including by building a client profile and finding a match with a suitable pro bono legal service provider. Team partner firm:  Mullins Lawyers.”

On the page that Mrs Day exhibits, there is a photograph of a plaque with the Mullins Lawyers logo, the reference to a team number, the logo of Legal Match and the words “Evaluate Delegate Connect”. I infer that Mullins Lawyers must have sponsored one of the teams that was involved in the “hackathon”.

  1. [53]
    Mr Mullins is an alumnus of QUT and may have been involved in activities to benefit students at QUT reflected in these two attachments, but even taking that into account with his other contributions to the poster competition, his associations with QUT as an alumnus do not amount to an association with, or interest in, QUT of sufficient degree that might raise a reasonable apprehension of bias on my part to favour of the QUT parties in this proceeding in the mind of a fair-minded lay observer. It is not any association of a spouse with a party that is relevant on a recusal application. The first step of the test is not satisfied.

Mullins Lawyers

  1. [54]
    As my husband is a partner at Mullins Lawyers, I do not hear any matters in which the firm Mullins Lawyers is acting for any of the parties. Mrs Day has exhibited material that shows that Mullins Lawyers is one of the firms of solicitors on the panel for doing legal work for WorkCover. It does not appear that WorkCover is presently indemnifying any of the defendants in this proceeding. The QCL parties’ written submission expressly states that the QCL parties do not have, and have not, enjoyed a grant of indemnity from WorkCover. There is no evidence that the QCL parties and their legal representatives act for WorkCover in this proceeding. Mrs Day has found cases in which the QCL parties’ counsel, Mr Holyoak, has acted for WorkCover. That does not support an inference that he is instructed by WorkCover in this proceeding.
  2. [55]
    Mrs Day has exhibited to her affidavit filed on 4 February 2019 an email dated 2 June 2014 from Mr Cameron Seymour, a partner at Mullins Lawyers, to the fourth defendant advising that WorkCover would not indemnify the QCL parties in respect of Mrs Day’s claim for damages initiated by a PIPA notice of claim, rather than a notice of claim pursuant to the Workers’ Compensation and Rehabilitation Act 2003 (Qld). Mrs Day relies on the fact that the questionnaire completed by the QCL parties when this proceeding was placed on the SRL Supervised Case List refers to a possible pre-trial step (that is subject to the amendment by the plaintiff of her statement of claim) for the joinder of the QCL parties’ workers’  compensation and/or public liability insurers as third parties to the claim. Mrs Day has not amended her statement of claim and there has not been an application by the QCL parties to join WorkCover as a third party. At the present time, WorkCover is therefore not a party and Mullins Lawyers is not acting for any party to the proceeding.  The fact that Mullins Lawyers may have acted for WorkCover in declining to indemnify the QCL parties prior to the commencement of the proceeding is not a relevant interest or association on which to seek my recusal.
  3. [56]
    Mrs Day asserts in paragraph 128 of her written submissions to the effect that if this proceeding were resolved in favour of the QCL parties against her that would save a lot of money for WorkCover and that I would benefit financially from joint family income through Mr Mullins. As I would not be supervising this proceeding if Mullins Lawyers were acting for WorkCover in respect of the proceeding, I apprehend the suggestion is that I would find in favour of the QCL parties, so that they do not have to apply to join WorkCover. That involves much speculation and does not make sense that Mullins Lawyers would be financially rewarded, if they do not have to act for WorkCover. That is not a relevant matter on which to seek my recusal. 

Mr Mullins’ involvement with religious and educational institutions

  1. [57]
    Mrs Day exhibits the Mullins Lawyers’ webpage as to the nature of Mr Mullins’ legal practice and relies on the fact that he is described as working “with many of Queensland’s religious and other leading independent schools and university colleges” and that the types of issues that he advises schools and colleges on include work, health and safety and duty of care issues. There is no suggestion that Mr Mullins acts for QUT. The fact that his area of legal practice overlaps with the areas of law that are relevant to Mrs Day’s claims in this proceeding is not a relevant matter on which to seek my recusal. To the extent that Mrs Day is suggesting that I would make decisions in favour of the QUT parties to protect the educational institutions for which Mr Mullins acts, I reach the same conclusion that I did in respect of my association with Griffith Law School. 

Mr Mullins and Daubney J know one another

  1. [58]
    Mrs Day refers to the fact that Mr Mullins and Daubney J both hold positions in the Roman Catholic Archdiocese of Brisbane and are therefore known to one another.
  2. [59]
    Mrs Day has formed a view about Daubney J’s attitude to her, as a result of the applications that Daubney J heard in this proceeding and information that Mrs Day relied on to seek Daubney J’s recusal. Mrs Day made two applications for Daubney J’s recusal, both of which were refused. The QCL parties were successful before Daubney J in obtaining summary judgment in this proceeding against Mrs Day. All three decisions were subject of appeals to the Court of Appeal in Day v Lerch [2018] QCA 224. Mrs Day was unsuccessful in her appeal against Daubney J’s decision to refuse to recuse himself, but was successful in the appeal against the summary judgment in favour of the QCL parties and the summary judgment order was set aside. Mrs Day asserts for reasons she sets out in her submissions that Daubney J would be “irritated” by the allegations brought by her in the recusal applications against him and the complaints that she made to others about his conduct. Mrs Day states in paragraph 185 of her written submissions:

“Therefore, a fair-minded observer might think that Justice Daubney would influence her Honour or her Honour’s husband through his judicial or religious affiliations resulting in her Honour’s inability to decide the plaintiff’s matter without any prejudice on its merits.”

  1. [60]
    First, Mrs Day appears to characterise Daubney J as her opponent. Because a judge is the subject of complaints made by a litigant or is the subject of a recusal application brought by the litigant does not make that judge equivalent to a party with respect to whom the current judge must consider the extent of their associations. Judges have to be thick-skinned about parties’ comments made about them in the course of proceedings. Second, it is absolute speculation on Mrs Day’s part that Daubney J would be interested in influencing Mr Mullins or me in the manner she suggests. Third, the fair-minded observer would not disregard my ability to adhere to my judicial oath. The first step in the test is not satisfied.  

My Anglican Church involvement

  1. [61]
    Mrs Day exhibits to her affidavit filed on 4 February 2019 an article published on 13 February 2018 by the ABC about my involvement in the Anglican Church of Australia that was the subject of criticism by a former colleague on this Court reported in the same article. The Anglican Church of Australia is not a party to this proceeding and, if it were, I would not be the supervising judge. Because I continue to be the Chancellor of the Diocese of Brisbane whilst a serving judge, despite the criticism of a former colleague about my undertaking both roles, Mrs Day asserts that a fair-minded observer might think that I might not decide her matter on its merits. Mrs Day appears to proceed on the basis that my former colleague’s reported criticism must be the correct or only view on the matter. Regardless of whether it is or not, the issue on this recusal application is about an interest or association or conduct on my part that might give rise to a reasonable apprehension of bias against Mrs Day in the mind of the fair-minded observer who accepts that I am true to my judicial oath in making decisions as the supervising judge of this proceeding. My Anglican Church involvement is not such an interest, association or conduct and therefore not relevant to the recusal application.

My paper on vexatious litigants

  1. [62]
    I delivered a paper in September 2015 on “Vexatious Litigation – Dealing with Vexatious Litigants” which is available on the court’s webpage. Under the heading “Who are vexatious litigants?”, I stated in paragraph 4:

“The term ‘vexatious litigant’ describes a person who brings or pursues a vexatious court or tribunal proceeding. Vexatious litigants usually act for themselves in litigation without the assistance of lawyers. Common characteristics of a vexatious litigant include an unwillingness to accept the orders or rulings of the court, an obstinate belief in the propriety of the litigant’s claim, and an aggressive and unreasonable manner in dealing with the court staff, the judge and other parties involved in the proceedings. Some vexatious litigants may suffer from mental illness or other psychological condition. For some vexatious litigants the focus is the court procedure rather than the substance of the claim:  Cooper v Mbuzi [2012] QSC 105 at [71] and [74]. Such a vexatious litigant is concerned about scoring procedural points on interlocutory hearings, irrespective of the merits of the claim.” (footnote omitted

  1. [63]
    Mrs Day in her submissions has quoted the second sentence only from paragraph 4 of my paper and concluded that what I said means that “the vexatious litigants are the self-represented litigants”. The term “self-represented litigant” that is used in the Practice Direction is used to describe a person who is not represented by a lawyer. A self-represented litigant may be found to be a vexatious litigant within the meaning of the Vexatious Proceedings Act 2005 (Qld), but it is apparent from my paper that I was not suggesting all self-represented litigants are vexatious litigants. The paper is a discussion of vexatious litigants in the context of the provisions of the Vexatious Proceedings Act 2005 and the procedures under that Act and paragraph 4 of the paper reflects the observations I have made about vexatious litigants.
  2. [64]
    Mrs Day seeks to draw a connection between steps she has taken in this proceeding, including lodging appeals to the Court of Appeal, some of which have been successful, and what I described in paragraph 4 of the paper as common characteristics of a vexatious litigant, and concluded that I have expressed adverse views against the self-represented litigants with the common characteristics described in paragraph 4. That is Mrs Day’s analysis and not reflective of the subject matter of my paper which focuses on vexatious litigants who are the subject of vexatious proceedings orders and the consequences that follow. I do not consider that a fair-minded observer might reasonably apprehend that, due to the paper I delivered on vexatious litigants, I might pre-judge Mrs Day’s claim and might be unable to supervise Mrs Day’s matter impartially on the merits. The first step in the test is not satisfied.

My conduct before and during the hearing on 8 February 2019

  1. [65]
    Mrs Day complains that on 5 February 2019, I gave notice that I was considering removing this proceeding from the SRL Supervised Case List and inviting the parties to make submissions on that proposal at the review set for 2.30pm on 8 February 2019. The reason for that proposal was set out in my associate’s letter of 5 February 2019 that it defeated the purpose of endeavouring to use a system of reviews to progress the proceeding, if the judge designated to conduct the reviews is subject to a recusal application which distracts the parties from pursuing the proceeding itself. From the time the proceeding was entered onto the SRL Supervised Case List on 3 October 2018 until 8 February 2019, the only hearing of any substance before me was the recusal application.
  2. [66]
    The transcript of the hearing on 8 February 2019 speaks for itself. Mrs Day was unable to continue with her oral submissions when the court resumed at 2.30pm and was going to complete her submissions in writing. The review had been listed at Mrs Day’s request for directions that were for her benefit. The defendants had responded to her request for the postponement of the hearing of the applications that were listed for 12 February 2019 by proposing a draft order that dealt with their adjournment which she had the opportunity to consider from the time it was given to her at 11.25am on that day. When I indicated that I felt confident about doing the review, no party, including Mrs Day, suggested that I should not do the review. Mrs Day participated in the process of settling the terms of the orders and, in fact, made a good suggestion about expressly vacating the hearings that were listed for 12 February 2019. I did not deal on this review with the proposal that was referred to in my associate’s letter of 5 February 2019 of removing the proceeding from the SRL Supervised Case List.
  3. [67]
    There is no conduct before or during the hearing on 8 February 2019 from which a fair-minded lay observer might reasonably apprehend that I might not bring an impartial mind to the supervision of the proceeding.

Failing to disclose all relevant facts which could give rise to my disqualification

  1. [68]
    It is apparent that Mrs Day’s view as to the nature of the information that should be disclosed by a judge that might be relevant to the test to be applied for reasonable apprehension of bias is not limited to information that is relevant to that question or information that might give rise to an issue of whether there is a reasonable apprehension of bias. In accordance with authority, I have declined to answer her questions seeking information from me that she considers is relevant to the recusal application. I have disclosed information about my associations with QUT, even though I did not consider the matters required disclosure.
  2. [69]
    Mrs Day uses two examples of other judges of this Court who recused themselves and, in the case of one of the judges, who responded to a request for information on matters relevant to the grounds for recusal. How a judge should respond to a request for information may vary according to the nature of the interest or association or disqualifying matter that is relevant in the circumstances and the type of case or application. The examples that Mrs Day relies on are not determinative of what course I should have taken in response to her request for information and whether I should recuse myself.
  3. [70]
    There is no failure on my part to disclose relevant information to Mrs Day for the recusal application.     

Effect on my impartiality of the assertions in Mrs Day’s submissions

  1. [71]
    Mrs Day’s written submissions are 204 paragraphs in length and contain many assertions about my impartiality which I have addressed I these reasons. In the course of reflecting on Mrs Day’s submissions and her affidavit filed in support of the recusal application, it occurred to me that I should consider whether a fair-minded observer might conclude that the making of the numerous allegations about my conduct, and other matters which Mrs Day asserts compromise my capacity for impartiality might result in a reasonable apprehension that I lack the necessary impartiality to continue as the supervising judge in this proceeding.
  2. [72]
    The starting point for the fair-minded observer is that a judge will adhere to his or her obligations in accordance with the judicial oath. As I have already observed, judges must be thick-skinned about parties’ comments made about them in the course of proceedings. This is particularly so in the case of a self-represented litigant where the litigant may be under pressure, as a result of the requirements of litigation. That is not to excuse a self-represented litigant in making inappropriate comments or assertions about a judge, but to recognise the effect of the litigation on the self-represented litigant. A fair-minded observer must expect a judge to be thick-skinned in considering allegations made by a party that could be characterised as suggesting the judge’s conduct falls short of the standard expected of the judge in accordance with the judicial oath or affirmation. It was patent to me from Mrs Day’s supporting affidavit that many of the matters raised by Mrs Day on the recusal application were likely to be irrelevant. Despite the litany of complaints that were traversed by Mrs Day on this application, but having regard to the robustness that a judge must inevitably bring to his or her role, I do not consider a fair-minded lay observer might reasonably apprehend that I might not bring an impartial mind to the supervision of Mrs Day’s matter.

Reasonable apprehension of bias

  1. [73]
    Mrs Day conceded during oral submissions that some of the matters on which she relied did not by themselves justify my recusal, but she relied on their cumulative effect. That argument, however, depends on a number of the complaints being relevant or well-founded. I have addressed them separately, but there are not relevant matters to accumulate in the manner that Mrs Day sought to do on her application.
  2. [74]
    I accept that even as a supervising judge of the proceeding, it is possible that directions could be given or decisions made that have consequences for the final resolution of Mrs Day’s claims. It is not irrelevant, though, that much of the supervision of proceedings that are on the SRL Supervised Case List results in directions that are determined by consulting the parties during the review in the manner which I did on 8 February 2019, when I made the directions in this proceeding on that occasion. In view of the conclusions that I reached in respect of the litany of matters relied on by Mrs Day, I have concluded that maintenance of the public confidence in the administration of justice does not require me to recuse myself from being the supervising judge of this proceeding. 

The interests of justice

  1. [75]
    Even though I have concluded that I should not recuse myself from being the supervising judge of this proceeding on the basis of reasonable apprehension of bias, I do not think the matter ends there. Apart from the issue of recusal for reasonable apprehension of bias, it is still open for me to consider whether to continue in the role of the supervising judge of this proceeding. Although such a decision has been described in Mandie v Memart Nominees Pty Ltd [2017] VSCA 177 at [79]-[85] as one that should be made only in exceptional circumstances after rejecting a recusal application, it is a question of whether it is in the interests of justice that such a decision should be made in the circumstances.
  2. [76]
    As I endeavoured to convey through my associate’s letter dated 5 February 2019 to Mrs Day and the solicitors for the defendants by giving notice that I was considering removing the proceeding from the SRL Supervised Case List pursuant to paragraph 9.1 of the Practice Direction, the recusal application was distracting the parties from pursuing the proceeding itself. I am concerned that if I continue to supervise the proceeding, Mrs Day will analyse exhaustively any aspect of my supervision in the same way that she has done for the purpose of the recusal application. I am not concerned about scrutiny, but I am concerned that it is not in the interests of justice for all the parties to the proceeding that Mrs Day would be distracted from the proceeding itself by my supervision. My involvement is, after all, only as the supervising judge and not as the trial judge. Though very cognisant of my obligation to sit, there are also many other judges of the Trial Division who could perform the role of the supervision judge of this proceeding. I consider that it is in the interests of justice for all parties to the proceeding, that I not continue as the supervising judge. I have therefore informed the Senior Judge Administrator that I will not continue as the supervising judge of this proceeding. As the parties will be occupied with the preparation for the three applications that are listed for hearing on 28 March 2019, there is no urgency about supervision being transferred to another judge, but to facilitate that occurring, I will direct that the parties apply to the Senior Judge Administrator to nominate a judge to be the supervising judge pursuant to Practice Direction No 10 of 2014 of this proceeding.    

Orders

  1. [77]
    It follows that the orders which should be made are:
    1. Application for recusal of Mullins J refused.
    2. Direct that the parties apply to the Senior Judge Administrator to nominate a judge in lieu of Mullins J to be the supervising judge pursuant to Practice Direction No 10 of 2014 of this proceeding.
  2. [78]
    Although Mrs Day’s preference was to have made her submissions on costs in the same written submission she made after the recusal hearing, I explained at the recusal hearing that costs submissions were better made after the result of the recusal application was known. When the parties were notified that judgment was to be given, they agreed to file their written submissions on costs on or before 11 March 2019 and I will direct accordingly. I will adjourn the question of costs to be decided on the papers. As I have heard the recusal application, it is appropriate that, if costs are to be determined at this stage, I determine the question.
Close

Editorial Notes

  • Published Case Name:

    Day v Humphrey & Ors

  • Shortened Case Name:

    Day v Humphrey (No 2)

  • MNC:

    [2019] QSC 38

  • Court:

    QSC

  • Judge(s):

    Mullins J

  • Date:

    01 Mar 2019

Litigation History

Event Citation or File Date Notes
Primary Judgment SC5774/16 (No Citation) 23 Mar 2017 Plaintiff's application for Daubney J to recuse himself refused: Daubney J.
Primary Judgment [2017] QSC 236 26 Oct 2017 Plaintiff's second application that Daubney J recuse himself refused; fourth, fifth and sixth defendants' application for summary judgment granted: Daubney J
Primary Judgment [2019] QSC 38 01 Mar 2019 Plaintiff's application for recusal of Mullins J refused; parties directed to apply to Senior Judge Administrator to nominate a Judge in lieu of Mullins J to be supervising Judge: Mullins J.
Primary Judgment [2019] QSC 55 14 Mar 2019 Costs judgment from [2019] QSC 38: Mullins J.
QCA Interlocutory Judgment [2017] QCA 104 26 May 2017 Application to stay orders of Daubney J made 23 March 2017 pending appeal refused: Morrison JA.
Notice of Appeal Filed File Number: Appeal 12360/17 22 Nov 2017 Appeal from [2017] QSC 236.
Appeal Determined (QCA) [2018] QCA 224 18 Sep 2018 In CA3799/17 (appeal from 23 March 2017) appeal dismissed. In CA12360/17 (appeal from [2017] QSC 136) appeal allowed in part (appeal against recusal dismissed; appeal against summary judgment allowed and orders giving judgment for the fourth, fifth and sixth defendants set aside): Morrison and Philippides JJA and Brown J.
Appeal Determined (QCA) [2018] QCA 321 16 Nov 2018 Appeal costs order in CA12360/17 (appeal from [2017] QSC 236): Morrison and Philippides JJA and Brown J.
Application for Special Leave (HCA) File Number: B49/18; B50/18 16 Oct 2018 -
Special Leave Refused [2019] HCASL 1 06 Feb 2019 Special leave refused (B49/18): Keane and Edelman JJ.
Special Leave Refused [2019] HCASL 2 06 Feb 2019 Special leave refused (B50/18): Keane and Edelman JJ.

Appeal Status

{solid} Appeal Determined - {hollow-slash} Special Leave Refused (HCA)