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Ivory v Telstra Corporation Ltd

 

[2002] QCA 457

SUPREME COURT OF QUEENSLAND

PARTIES:

FILE NO/S:

Appeal No 4423 of 2001 SC No 9084 of 1999

Court of Appeal

PROCEEDINGS:

General Civil Appeals

ORIGINATING COURT:

DELIVERED ON:

1 November 2002

DELIVERED AT:

Brisbane

HEARING DATE:

17 July 2002

JUDGES:

Davies and Jerrard JJA and Wilson J

Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Appeals dismissed with costs

CATCHWORDS:

PROCEDURE – COURTS AND JUDGES GENERALLY – JUDGES – POWER TO CONTROL PROCEEDINGS – PRESENTATION OF ORDER AND DECENCY – where appellant contends that he was unable to present his case adequately due to the trial date being “forced on” – where appellant’s application to have the hearing date adjourned was dismissed – whether appellant demonstrated on appeal that he would have been better prepared for trial had the adjournment been granted

PROCEDURE – COURTS AND JUDGES GENERALLY – JUDGES – DISQUALIFICATION FOR INTEREST OR BIAS – IN GENERAL – ORDINARY RULE – where learned trial judge set down the trial date when the appellant contends he was unready – where learned trial judge referred to the appellant as a “humbug” – where learned trial judge later explained the use of this expression in more favourable terms – where learned trial judge assisted the appellant in the presentation of his case by forcing him to focus on proving essential, relevant matters and restraining him from examining irrelevant issues – whether actions and statements of learned trial judge evidenced a predetermination of the appellant and his case

PROCEDURE – COURTS AND JUDGES GENERALLY – JUDGES – DISQUALIFICATION FOR INTEREST OF BIAS – PARTICULAR RELATIONSHIPS OR CIRCUMSTANCES – OTHER MATTERS – where learned trial judge knew the respondent’s solicitor from past professional dealings – where appellant contends that the learned trial judge misused his past loyalties in the course of the trial – where learned trial judge assured the appellant that his professional relationship with the solicitor would not influence his judgment - where apprehended bias test applied – whether a fair minded lay observer might reasonably apprehend that the learned trial judge did not bring an impartial and unprejudiced mind to the resolution of the trial

APPEAL AND NEW TRIAL – APPEAL PRACTICE AND PROCEDURE – QUEENSLAND – WHEN APPEAL LIES – BY LEAVE OF COURT – COSTS ORDERS – where appellant brought an appeal without leave against an order made against him for indemnity costs – where presentation of appellant’s case involved him making vehement, unrestrained and unjustifiable criticisms of the witnesses, lawyers and judge – whether appeal incompetent

Peace and Good Behaviour Act 1982 (Qld), s 4, s 6

Supreme Court Act 1995 (Qld), s 253

Aussie Airlines Pty Ltd v Australian Airlines Pty Ltd & Ors (1996) 135 ALR 753, applied

Bayliss v Cassidy & Ors [1998] QSC 186; SC No 4786 of 1998, 18 September 1998, considered

Clenae Pty Ltd v Australia and New Zealand Banking Group Ltd [1999] 2 VR 573, considered

Commonwealth Life Assurance Society Ltd v Smith (1937-38) 59 CLR 527, considered

Ebner v Official Trustee in Bankruptcy (1999) 161 ALR 557, considered

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

Glinski v McIver [1962] AC 726, considered

Hedges v Grundmann [1985] 2 Qd R 263, considered

Hope v Evered (1886) 17 QBD 338, applied

Johnson v Johnson (2000) 174 ALR 655, applied

Ley v R De W Kennedy (Finance) Pty Ltd (unreported, 21 May 1975, New South Wales Court of Appeal), applied

Locobail (UK) Ltd v Bayfield Properties [2000] 1 All ER 65

Raybos Australia Pty Ltd & Anor v Scitec (unreported, NSWCA; CA No 146 of 1986, 16 June 1986), cited

Raybos Australia Pty Ltd v Tectran Corp Pty Ltd (1986) 6 NSWLR 272, considered

Raybos Australia Pty Ltd and Anor v Scitec (unreported, 16 June 1986, NSWCA, CA 146/86, BC 860 1330), considered

Re JRL; Ex parte CJL (1986) 161 CLR 342, considered

Rosenberg v Percival (2001) 75 ALJR 734, followed

COUNSEL:

The appellant appeared on his own behalf

P A Keane QC, with L F Kelly, for the respondents

SOLICITORS:

The appellant appeared on his own behalf

Thynne & Macartney for the respondents

[1]  DAVIES JA:  I agree with the reasons for judgment of Jerrard JA and with the order he proposes.

[2]  JERRARD JA: On 23 December 1996 the appellant Kenneth Ivory was arrested on a warrant issued pursuant to a complaint made under the Peace and Good Behaviour Act 1982 (Qld) (“the Act”).   He was taken into custody and released on bail that same day.  On 27 February 1997, after a hearing in which evidence in support of that complaint was called, a Stipendiary Magistrate made orders expressed to be in dismissal of the complaint or of the warrant, and effectively dismissing applications for orders based on that complaint. Mr Ivory brought an action in this Court against the defendant/respondents, of whom the second respondent was the named complainant in that complaint and who described himself in it as complaining on behalf of the first respondent. On 11 April 2001 that action was by order dismissed, and on 4 May 2001 the appellant was ordered to pay the defendants’ costs of and incidental to the action, to be assessed on an indemnity basis.  The appellant appeals both orders, although he has not obtained leave to appeal the order for costs.

[3] The appellant’s amended grounds of appeal raise a number of matters which may be treated as discrete groups.  The first group centres upon complaints that the trial was “forced on” by the learned trial judge at a time when the appellant, who was representing himself, was not ready for trial, and when the defendants had not made proper disclosure of documents.  The particular complaints are that the judge erred in orders made on 13 October 2000 setting the matter down for trial on 29 January 2001, and erred on 12 January 2001 and 31 January 2001 in not making orders vacating and adjourning the trial date respectively.  The appellant also complains that the judge erred in orders and findings made on 12 January 2001 and 31 January 2001, to the effect that the appellant’s first and second “Notice to Admit Facts” should be struck out and placed in a sealed envelope; whereas the appellant contends the judge ought to have ordered the facts asserted be either admitted or denied. 

[4] There is a discrete complaint asserting the learned judge erred in failing to disqualify himself on the various occasions on which the judge was asked by the appellant so to do.  The appellant’s argument on appeal makes it clear that he asserts grounds exist both for finding a reasonable apprehension of bias, and that the judge was biased in fact.

[5] The appellant’s next group of grounds complain that the learned judge reached the wrong result on the facts.  He also complains the judge erred in law in finding that the appellant had not established a want of reasonable and probable cause on the respondents’ behalf when they attempted to bring those proceedings against him in the Magistrates Court.  The appellant further says the judge erred in holding the appellant failed to establish the improper and collateral purposes which he claimed in his pleadings were the reason the respondents had brought the complaint and prosecution against him.  The appellant additionally complains of error in the findings made by the judge that the appellant’s case was a fundamentally dishonest one. 

[6] The final discrete complaint raised is error in ordering that the appellant pay indemnity costs.  The respondents, while contending that that appeal is incompetent, have responded to it with submissions on the merits.[1]

General Background

[7] It is appropriate to consider the merits of the appellant’s case made before the learned trial judge, before considering those grounds of appeal based on the interlocutory orders and the general conduct of the proceedings by the judge.  The extensive appeal record shows that the appellant has been involved in one way or another in actual or apprehended litigation with the respondent Telstra Corporation Limited since about 1994.  That has included both personal involvement, and the appellant’s interest in litigation conducted by a company or companies with which he is associated.  For its part Telstra has made demands for payment of debts it claims to be owed by the appellant, or by a company or companies associated with him.  On his part, he has brought or caused action to be brought in which it is claimed that Telstra’s conduct has caused substantial economic loss to the appellant and at least one company with which he is closely associated.  Summarised, he alleges that when Telstra replaced 008 calls with 1800 calls, he suffered significant financial loss, either personally or through a company or companies he conducted, by reason of calls not received.  His argument on the appeal, his own evidence in the trial, his pleadings, his exhibits, his questions to witness in the trial, and his submission to the learned judge below made in both the interlocutory and final proceedings, all argue that he is simply one example of a larger group of persons upon whom Telstra has at first negligently, and then intentionally, inflicted significant economic loss and consequent psychological injury.

[8] The respondent’s case at trial was that it had at all times been acting to protect its staff members and senior management from an unacceptable level of risk posed to their safety by dealings between those people and the appellant.  There had been a good deal of communication between the plaintiff and various Telstra employees from about 1994 onwards, and it was not disputed that that had included some overt expressions of hostility by the appellant to Telstra and specific employees by late 1996.  Telstra relied upon some of those communications in its attempts to have orders made binding the appellant pursuant to s 6 of the Act.

[9] The Act relevantly provides in s 4 thereof that upon complaint in writing on oath made before a Justice of the Peace that a person has threatened:

 

“(a) to assault or to do any bodily injury to the complainant; or to any person under the care or charge of the complainant or;…

(c)to destroy or damage any property of the complainant;…

and that the complainant is in fear of person complained against (the “defendant”), the justice, if the matter of the complaint is substantiated to the justice’s satisfaction and the justice is satisfied that it is reasonable in the circumstances for the complainant to be in fear of the defendant, may issue:

(i)A summons directed to the defendants requiring the defendant to appear at a certain time and place before a Magistrates Court; or

(ii)A warrant to apprehend the defendant and to cause the defendant to be brought before a Magistrates Court to answer the complaint and to be further dealt with according to law.”

The Magistrates Court is given the power to hear and determine the matter of any such complaint, and upon consideration of the evidence to make an order that the defendant shall keep the peace and be of good behaviour for such a time specified in the order as the Court thinks fit.  It is specifically provided that the order may contain such other stipulations or conditions as thought fit. 

[10]  At the trial the appellant tendered a bundle of documents exhibit 18, which largely consisted of documents discovered by Telstra, and some discovered by the appellant himself.  The exhibit included his comments on Telstra’s documents.  That extensive exhibit occupies volumes 5-11 inclusive of the Appeal Record.  It contains internal staff memoranda of Telstra employees, and communications between Telstra and its solicitors, and those solicitors and other persons.  The contents of the exhibits provide an apparently contemporaneous record of the appellant’s conduct as described to Telstra by Telstra employees, and as demonstrated by the plaintiff’s own communications to Telstra; and the information then exchanged by Telstra and its solicitors about the appellant’s conduct.  The contents of the exhibit also evidence Telstra’s responses, both actual and as considered by it at the actual time, to that conduct described by its employees and also exhibited in writing by the appellant.

What Telstra Relied On

[11]  One incident of apparent significance to the respondents was that deposed by a Fiona Hills, who in December 1994 was the Manager of the Customer Response Unit in Telstra’s office at 242 Exhibition Street in Melbourne.  Her responsibilities included reviewing and resolving complaints in matters in dispute between Telstra and its clientele, and she was aware that the appellant had made complaints.  On 6 December 1994 she alleged the appellant attended in person at 242 Exhibition Street, and complained that his telephone lines had been disconnected. She asserted that in a conversation with her his demeanour appeared to be that of a very angry man, and that during that conversation he had lifted up and pushed a chair approximately half a metre into the air and let it go.  When she asked him to calm down, and showed him her shaking hands, he apologised; but the incident led to Telstra changing its office security system so that conferences with complainants were held in glassed conference rooms and others could see what was happening.  Security were always alerted beforehand.  Additionally, Ms Hills required thereafter that a second staff member be present at meetings with customers.[2] 

[12]  Approximately one month later, on Telstra’s case made in its application for a restraining order and its defence in the action for malicious prosecution, its store manager (a Mr Howard) at its Archerfield Branch in Brisbane was visited on Saturday 7 January 1995 by the appellant, who complained to Mr Howard of Telstra having “negligently, knowingly and maliciously” sabotaged the appellant’s business.  During an ensuing conversation, in which the appellant made reference to “your Mr Mead” (the second respondent) the appellant pushed Mr Howard in the chest.[3]  Mr Howard described the appellant using foul language on a number of occasions during that conversation, and making critical reference to the fact that Mr Howard had his “bloody kids” present in the office that day.  It was a Saturday, and Mr Howard was there with his children when on a day off.

[13]  Exhibit 18 records that those alleged incidents involving Mr Howard and Ms Hills were reported to other and more senior Telstra staff, and those incidents and other matters involving the appellant were the basis of advice that Telstra sought from its solicitors Mallesons Stephen Jaques in a letter dated 14 February 1995.  The advice sought included how the appellant was “best managed”, and the following description:

 

“Mr Ivory’s behaviour is becoming more and more extreme.  He is frequently excessively abusive, and rude to Telstra staff (including me).  He refuses to use Fiona Hills/Grant Campbell or me as his entry point to the corporation.  He uses profane language (he phoned me on Friday 20 January and called me “little cunt”), and some of our staff find this very intimidating and upsetting.  This can give rise to them to having an apprehension of violence.  He has also acted in a physically intimidating way towards both Fiona Hills (by swinging a chair at her), and to Tim Howard (by pushing him).  Just before Christmas he went to Telstra’s head office at 242 Exhibition Street, in Brisbane (sic).  He was abusive in the foyer to front desk staff, and refused to leave until he could see our CEO Frank Blount.”

[14]  The author was the second respondent.  The solicitors replied suggesting that Telstra staff be told to refer all approaches by or on behalf of Mr Ivory (or a nominated associated company) to specific nominated staff members, and that applying for a restraining order and an injunction did not appear advisable, “given the likelihood of such steps deepening Ivory’s apparent sense of persecution”. 

[15]  No application for any such order was made at or around that time.  Telstra and the appellant continued to have dealings.  However, in December 1996, on Telstra’s case for the restraining order and in this action, events occurred which Telstra argued justified a greater degree of apprehension for its employees’ safety from assault by the appellant.  In an affidavit the complainants relied on in support of the complaint, sworn by Carmel Parisi on 19 December 1996, Ms Parisi deposed that she was the personal assistant to the CEO of Telstra (Mr Blount), and asserted that on 27 November 1996 in a telephone conversation between the appellant and herself the appellant:

 Told her to tell Mr Blount to “get off his fucking arse and ring me”.

 Said Telstra was to blame for his stress, that he was taking medication, could not support his family, and had been caused at least a US $12 million loss in his business.

 Was angry and screaming at Ms Parisi, and had said “……..I won’t be responsible for another Tasmanian, you know, Bryant incident happened (sic) at 242, I’m gonna come looking for you and William Blount I’m gonna get you”.

[16]  This incident was reported to other Telstra personnel.  Advice was sought from Telstra’s solicitors, and on 2 December 1996 those solicitors advised that a restraining order “may not be futile as a breach of it may provide a firm basis for an arrest, should that be thought desirable”.  A senior solicitor within Telstra sought advice from a consulting psychologist as to whether the appellant might carry out “his threats of violence” against Telstra staff, and also sought advice from the second respondent, who was then the group general counsel for Telstra, as to whether it would be appropriate to take a restraining order against the appellant, or any of other varieties of actions suggested by that senior solicitor.  That included possibly asking police officers to “warn off” the appellant, or advising the appellant in writing that Telstra would not put up with threatening and abusive behaviour.

[17]  Internal memoranda at that particular time, all part of exhibit 18, show that Mr Blount wanted the appellant told that:

 

“….. . he will be pursued to the full extent of the law if he persists in harassing Telstra staff.”

Mr Blount also advised that Telstra should “stop please treating this as though the victim is the problem”.

[18]  As it happened, on or around 7 December 1996, the day after the CEO had given that advice, Mr Blount received a facsimile from the appellant which read in part:

 

“But I would get a great deal of personal satisfaction if you were to vomit up your Christmas dinner in front of your family, as a result of your own personal pompous inability to resolve these matters amicably long ago….”

 

….. perhaps your New Year’s resolution should be to resolve this accumulating reprisals that we herein refer to and are attempting to have any compassion or integrity left at all.  If you do then we herein beg of you to order full compensation too be paid immediately to this company and its licensee and their franchisees and the like forthwith before New Year’s Eve and before you sit down and try and enjoy your Christmas dinner with your family” (sic).

[19]  Telstra was provided with more grounds for apparent concern when on 10 December 1996 the Telstra case officer nominated to deal with the appellant (Justin Wastell, whose affidavit sworn 19 December 1996 was also relied on by Telstra by its application and this action), was allegedly told by the appellant in a phone call:

 “You are a fucking corrupt person Justin”.

 “Get your little arse up here so I can grab you by the throat you little ….”.

 “I will fuck your life up for good”.

 “Yes, I want revenge, it is beyond a business matter”.

The Legal Steps Taken

[20]  On 13 December 1996 Telstra’s solicitors advised of the availability of a possible order under the Act as a means of “binding over” the appellant.  The solicitor’s advice referred to similar provisions in the Victorian Magistrates Court Act, to provisions in the Crimes Act 1914 (Cth) regarding the improper use of a telecommunications service to menace or harass another person, and described in some detail the solicitor’s understanding of the appropriate procedure in Queensland when seeking an order under the Act.  The advice described an intent to rely upon affidavit material from Mr Howard, Ms Hills, Mr Wastell, Ms Parisi and the second respondent.  The solicitors recommended seeking the restraining order.

[21]  The respondent decided to make the application for a restraining order and that the second respondent would be the named complainant.  By 17 December 1996 its solicitors had briefed a barrister practising in Brisbane, whose considerable competence and experience in the criminal jurisdiction was not a matter in issue in these proceedings.  On 18 December 1996 Telstra’s solicitors provided drafts of the affidavit of Mead and Parisi and of the Complaint and Summons under the Act, to that counsel.  The solicitors advised that they had made arrangements to have the matter heard at 9.00a.m. on 20 December 1996. 

[22]  What then occurred was that that counsel and an instructing solicitor appeared before the magistrate, apparently in his chambers, with the complaint, the affidavits already described upon which Telstra was relying, and the summons to Mr Ivory which the complainant presumably expected might issue.  Instead, the magistrate suggested that the matter be put in the hands of the police, and asked that Mr Mead swear a complaint before the magistrate upon which complaint the magistrate would then issue a warrant for Mr Ivory’s arrest by police.  Terms would then be set as to the conditions upon which Mr Ivory might be released on bail.  The copious correspondence within exhibit 18 makes quite clear that at all stages up to that appearance before the magistrate, the respondents had prepared only a summons for service upon the appellant, and it appeared to be unchallenged in this action that the suggestion that a warrant issue for the arrest of the appellant, rather than a summons be served which required him to appear before a court at a later date, came from the magistrate.  The discovered documents exhibited by the appellant demonstrate that only thereafter did the respondent have its solicitors prepare a draft warrant and suggested bail terms, and copies of those were delivered to their counsel on 23 December 1996.  On that same day Telstra’s solicitors delivered the warrant and a copy of the complaint to the Moorooka Police Station at about 12.45p.m. The appellant was arrested on that warrant and brought before the Magistrates Court at 2.30p.m. that day.  He was then released on bail on the terms proposed by the respondent, which included conditions restraining his contact with their staff and premises.  His appearance in court at 2.30p.m. had been arranged by the respondent, and this resulted in his spending the least possible time in actual custody.

[23]  The actual application for final restraining orders came on for hearing on 27 February 1997 before a different magistrate.  The sworn complaint upon which the warrant had been issued two months earlier was not before that second magistrate, but the warrant and a document described as a bench charge sheet were.  Those documents both described Mr Mead as the complainant, and recited the satisfaction of the magistrate who had issued the warrant that the appellant had threatened to assault or do bodily injury “to staff members of Telstra”.  So worded, the bench charge sheet and warrant did not reflect the provisions of s 4 of the Act, which required that the complainant or persons under the care or charge of the complainant be so threatened.  The actual complaint - not physically in the Court – did allege that the appellant had threatened to assault “the complainant….or any person under the care or charge of the complainant.”

[24]  All the deponents, (Mr Mead, Ms Hills, Mr Howard, Ms Parisi and Mr Wastell) were examined and cross examined before the magistrate.  The appellant was not called upon, since the magistrate invited and heard submissions at the end of the respondent’s case, and then ruled that the terms of the warrant did not comply with the provisions of s 4.  Mr Mead had not complained of any threat to assault him, and neither the warrant nor the bench charge sheet in terms alleged that Telstra’s employees were persons under the care or charge of the complainants.  The magistrate expressed the view that non compliance in the warrant with the provisions of s 4 was fatal to the prosecution[4], and that Mr Ivory had been wrongfully arrested on a warrant wrongly issued.  He dismissed the complaint and the warrant.  The accuracy of that ruling was  not put in issue on the appeal by the respondents.

[25]  Other difficulties in the respondent’s case had also emerged in the evidence.  At least the deponents Parisi, Howard and Hills had said in cross examination that they did not themselves at that time fear any assault by the appellant.  Despite those difficulties, the respondents sought advice from their experienced counsel as to their prospects of success on appeal; and that counsel recommended Telstra do appeal the magistrate’s orders.

[26]  Telstra’s internal documents show that Mr Wastell was concerned at that time that the appellant “will now feel he achieved a personal victory following the outcome of Thursday’s court case”, that Mr Wastell believed that the appellant “would have picked up on the word ‘illegal’,” and the documents record the following observations from Mr Wastell:

 

“This is the second time Telstra has taken court action against Mr Ivory and lost on a “technicality”.  The first case involved outstanding monies owed by Mr Ivory on his personal Telstra account totalling $2,000.00.  The outcome of that first case would appear to have spurred Mr Ivory to dodging a further $28,000.00 through associated companies and partnerships.  The outcome of this latest case may well bolster his confidence.

 

Telstra is currently looking towards resuming credit action against the companies and partnerships which owe the abovementioned $28,000.00.  This action may be the catalyst which sparks Mr Ivory back into his very unique form of oral and written communication, and quite possibly a recurrence of threatening behaviour.”

[27]  The appeal proceeded and was dismissed, principally because the learned judge of District Courts who heard it was satisfied that the duty of care Telstra owed its employees pursuant to common law, their employment contracts, and legislation such as the Workplace Health and Safety Act 1995 (Qld), did not make those employees persons who were under the “care or charge of” Telstra or Mr Mead,  within the meaning of the Act.  The accuracy of those rulings was also not put in issue on this appeal. Subsequent to that appeal being dismissed, the appellant brought his action for malicious prosecution.

The Action for Malicious Prosecution

[28]  To succeed in that action the appellant had to prove (apart from damage) that:

 He had been prosecuted by the respondents.

 That those proceedings brought against him had terminated in his favour.

 That the prosecution was instituted without reasonable and probable cause.

 That it was instituted or continued maliciously[5].

He clearly proved the first two matters.  The learned trial judge held that he had failed to prove either of the latter two.

[29]  To establish the absence of reasonable and probable cause for the proceedings brought against him the appellant had to prove the absence of any honest belief in the complainants that there was a proper case against him on which to bring him before the court, or else to establish the absence of sufficient grounds for that belief to be reasonable on the facts available to the complainants after sufficient inquiry by them.[6]  The requirement that the initiation of the prosecution be based on grounds which would justify a person of ordinary prudence in believing that the person charged was probably guilty (Glinski v McIver (supra) per Lord Radcliffe at 754, citing from Herniman v Smith [1938] AC 305 at 316) protects citizens against prosecution by well meaning but obsessed accusers.

[30]  In as much as the complainant relied upon the information given to their employer Telstra by the deponents, then provided a reasonable extent of inquiry made those facts appear reliable, the complainants were entitled to rely upon them.[7]  Likewise, as the learned trial judge held, the circumstance that the proceedings failed because of apparent error of law on the part of the prosecutor or its advisors does not establish a want of reasonable and probable cause where the respondents acted upon legal advice from competent lawyers honestly given and honestly obtained.[8] 

[31]  To prove the existence of malice in this context the appellant was required to establish that the complaint against the appellant came from “a motive or desire other than to do what the moving party bona fide believed to be right in the interest of justice”, or “an indirect or improper motive and not in furtherance of justice”.[9]  The learned judge, from whose judgment those citations are taken, so held.

[32]  The appellant’s pleadings and submissions below, and argument on appeal, showed an intelligent awareness of what he needed to prove.  He pleaded that the allegations of fact upon which the complaint, prosecution, and warrant were based were false and were known to be false by the respondents, and that the complaint and prosecution had been brought for the improper collateral purposes of:

 Bringing pressure to bear on the plaintiff to cause him and third parties to withdraw demands for civil compensation from the first respondent.

 Bringing pressure to bear on the plaintiff to pay disputed accounts owing by third parties to the first respondent.

 Wasting the plaintiff’s resources in the knowledge that there was, little if any, prospect of success in the respondent’s complaint and prosecution.

 Damaging the plaintiff’s business.

[33]  In the trial the appellant/plaintiff himself gave evidence, and he called Ms Hills and Mr Mead in his case.  The respondents called Mr Wastell, Mr Howard and Ms Parisi.  The appellant’s questioning of the witnesses Hills and Mead was very much in the nature of cross examination, and he put directly to the witnesses Hills and Wastell that Mr Mead had procured them to swear falsely in their affidavits and in the trial.  There was no suggestion of inadequate scrutiny by Telstra of what those deponents had said, but rather the positive proposition of deliberate lying procured by the respondents.  He put to the witnesses Parisi and Howard that they were lying; and his extensive questioning of Mr Mead imputed improper motives in him.

The Judgment

[34]  The learned trial judge accepted the accuracy of the descriptions of the appellant’s conduct given by the witnesses Hills, Wastell, Howard and Parisi in their affidavits, and in their oral evidence.  A reading of those affidavits and the transcripts of their evidence before the magistrate and in the trial shows that the those witnesses gave consistent accounts over time; and the notes and correspondence in which each had recorded a description of the asserted events when they were said to have happened were in evidence as part of exhibit 18, and in accordance with their affidavit and oral evidence.

[35]  The evidence of the appellant contradicted those witnesses, but the learned judge accepted theirs and rejected his.  He found that each of the incidents those witnesses had deposed to had occurred as described, and as summarised in the particulars of the defence of the defendant, and as then described in the evidence before the judge.  The judge was very critical of the appellant’s evidence, and described the appellant as a constantly evasive witness. Reading the appeal record has satisfied me that those findings and descriptions were ones that were open to the learned trial judge to make.

[36]  The appellant chose to conduct his case on the basis that the conduct attributed to him by the critical witnesses simply had not occurred.  His evidence in cross examination included the important concession that if what Ms Parisi and Mr Wastell had described was accurate, then his own conduct in so behaving should be stopped.  It was appropriate in the circumstances for the respondents to take that same view, and the learned judge’s findings included that the appellant’s threats were being taken seriously by the respondents, and that the first respondent obtained and acted upon external legal advice in instituting and continuing those proceedings.  That advice included advice that that Act provided an appropriate way of proceeding; and the notion of issuing a warrant for the appellant’s arrest originated from the magistrate to whom the complaint was taken.  The learned judge properly ruled that a person, who fairly and honestly laid facts on which that person relied before a magistrate who then issued a warrant, was not liable for the exercise of the magistrate’s own and independent discretion.[10]

[37]  That means the appellant must fail in his complaint that the learned trial judge ought to have found an absence of reasonable and probable cause.  On the evidence led, the findings of fact open to the learned trial judge and made by him were unavoidable, and accordingly the conclusion that the plaintiff failed to establish an absence of reasonable and probable cause was inevitable.  There is no basis for disturbing those findings on this appeal[11].  They were very much dependent upon findings of credibility, made after the judge had seen and heard the witnesses; and they were findings consistent with the contents of exhibit 18.

[38]  The appellant’s complaints about the findings on reasonable and probable cause were actually somewhat limited.  He complained the respondents had failed to seek advice from experienced counsel prior to laying the complaint, and only after the complaint and warrant had been dismissed.  That complaint is simply wrong[12].  He further complained that the second respondent lacked the necessary authority to bring a complaint on the first respondent’s behalf, but that complaint overlooks the evidence given by the second respondent before the magistrate that he was authorised by Telstra to act as a complainant in the proceedings.  Allied to these complaints is a further one that the respondents’ internal advice memos on 12 December 1995 record that “we have spoken to the court registry and are considering their advice”, which the appellant argues demonstrates that the respondents had not sought proper legal advice before starting the proceedings.  The complaint is also based on the factual error that counsel’s advice was not sought until after the proceedings were dismissed by the magistrate.

[39]  The appellant argues that Telstra did not establish that its employees were “under the care or charge” of Telstra, although advised of the need to establish that matter.  That point has merit, but reliance on advice from competent counsel with which a judge later disagrees does not even begin to establish absence of reasonable and probable cause.

[40]  With respect to malice, the appellant contended that the malice lay in continuing the proceedings by the appeal, and that this is established by the memo from Justin Wastell quoted earlier.  In that memorandum Mr Wastell had expressed the view that the appellant’s success before the magistrate on a “technicality” might bolster the appellant’s confidence, with the result that action by Telstra to recover $28,000.00 allegedly owing to it could be met with a recurrence of what Mr Wastell described as the appellant’s “threatening behaviour”.

[41]  I consider that submission really inverts the logic of Mr Wastell’s submission to other Telstra personnel.  A concern that the appellant would abuse Telstra employees, if Telstra brought legal action for debts owed, and an attempt to obtain an order restraining threatening conduct in those circumstances, is entirely different from the description the appellant gave that conduct in his pleadings.  It is also difficult to understand why success on appeal, and an order restraining the appellant from threatening Telstra’s staff, would (as pleaded) place pressure on him to pay disputed accounts owing by third parties, or would cause either the appellant or third parties to withdraw demands for civil compensation from Telstra.  Evidence the appellant put in established that Telstra was independently advised to bring the proceedings and to appeal their dismissal, and the learned trial judge was correct in finding that the plaintiff had failed to make out either the pleaded improper motives or to establish an absence of reasonable and probable cause.

The Proceedings

[42]  Turning to the appellant’s complaint that the trial was forced on in circumstances in which he was rendered unable to present his own case adequately, the appellant’s claim was filed on 7 October 1999 and the defence to it on 4 November 1999.  On 26 May 2000 the defendants claimed before Moynihan SJA that their disclosure of relevant documents was complete, but this claim was contested by the appellant.  On a further hearing before Moynihan SJA on 25 August 2000, the defendants said that queries had been raised by the appellant in relation to their disclosure, and the learned judge advised that he would order that an officer of Telstra swear that the first respondent had complied with the relevant disclosure requirement.

[43]  On 15 September 2000 the matter came before the judge who later presided at the trial, and that learned judge ordered that the time by which Telstra must comply with the direction that an affidavit as to compliance be sworn be extended to 22 September 2000.  On that date it transpired in further proceedings before that learned judge that the first respondent was still in default of that order made on 25 August 2000, and that there had not yet been any inspection of documents by the appellant.  He was understandably waiting for full disclosure by the first respondent.  He himself delivered a supplementary list of documents that same day.

[44]  The matter came back on 13 October 2000 before that same judge, when the appellant complained then that discovery by the second respondent was not complete, and was sceptical of the value of the affidavit sworn on behalf of the first respondent that its disclosure was.  This was because of a paragraph in that affidavit advising that further materials might come into the first respondent’s possession, which would necessitate a further disclosure of documents. 

[45]  The appellant’s dissatisfaction, with an affidavit which was not categorical as to complete disclosure having already occurred, led to exchanges between the appellant and the presiding judge, in which the judge described the appellant’s complaints as “gobbledygook” and “pettifogging”, and then inquired whether the appellant wanted a trial date or not, and if the appellant wanted the action struck out.  The judge set the trial down for hearing on 29 January 2001. 

[46]  The language of the learned judge displayed less patience than would be admirable, but on that hearing the judge did succeed in having attention focused on the critical issues.  The extensive record demonstrates that in argument, and in both his questions in cross examination and in his own evidence, the appellant is prone to focus his attention more widely.  In any event on 22 December 2000, and as the appellant had predicted, the first respondent did make disclosure of 302 further documents delivered to the appellant at 7.30p.m. that night.  These were documents over which it now waived a claim to legal professional privilege.  Earlier that same day the appellant himself had taken a contentious step, that of serving a notice to admit containing 639 paragraphs covering 126 pages. 

[47]  The matter came back on again on 12 January 2001, on which date the appellant complained to that same judge of that late disclosure, and the respondents complained of the contents of the notice to admit.  The appellant applied for an adjournment or vacation of the forthcoming trial date, arguing that he was not ready for trial.  He asserted that further non party disclosure was needed.  The respondents opposed that application to vacate the trial date, and the learned judge dismissed it.  He also struck out the notice to admit, holding that its contents were scandalous.

[48]  On 23 January 2001 the appellant applied before a different judge for an order vacating the trial date, and the next day applied again before that other judge for orders for non party disclosure.  He complained that he had been given even more documents by way of further disclosure from the respondents on 23 January 2001, and both of his applications were adjourned to 29 January 2001 to the trial judge.

[49]  On 29 January 2001 the learned trial judge dismissed the application for non party disclosure, holding that there was no evidence that any of the documents sought in fact existed, and further that the appellant plainly wanted to cross examine the third party on that application as a fishing expedition.   The third party from whom the disclosure was sought was a relative of the appellant.  The grounds for the dismissal of that particular application appear amply supported by the material placed before the learned judge.

[50]  The proceedings on that date involved a dispute between the learned judge and the appellant on an entirely irrelevant matter, about which the appellant was right and the learned judge was wrong.  This was as to whether or not the judge had told Mr Ivory on 13 October 2000 that he would not be the judge who heard the trial.  The transcript (R F8) records the judge so saying on that date, but on 29 January 2001 (R 33), the learned judge denied having said that and recalled that what he had said was “I didn’t know who would be hearing the matter”.  The appellants seized on that inaccurate recollection by the judge to inform the judge on 29 January 2001 that:

 

“Your Honour, you have repeatedly misled me I believe in these proceedings”,

 

 which complaint the appellant used then and thereafter in further support of his repeatedly made application, first made on 12 January 2001, that the learned judge disqualify himself. 

[51]  The only matter of actual importance to the fairness of the proceedings in which the appellant was involved was the nature and contents of the lately disclosed documents, and whether the appellant needed more time to understand them.  On 24 January 2001 the respondents had described those documents produced on 23 January 2001 as being a number of one page emails relating to many other discovered documents (see R H31).  However, on 31 January 2001 (at R 132) the learned judge described the bulk of the late discovered documents as being internal documents created by Telstra, which in the main dealt with how Telstra considered it should deal with what it described the “Ivory problem”.  Accepting as correct the description of the learned trial judge, what is significant is that over that and the next two days it became clear that the appellant had subjected those recently disclosed documents to an apparently careful analysis.  The learned judge made that observation (at R 145). 

[52]  What had occurred is that commencing on 29 January 2001, the learned judge heard over two and a half days the appellant’s application for an adjournment of the trial.  The appellant gave evidence in support of his application.  The principal ground put forward was that the appellant hoped to obtain legal representation.  This seems to have been the first time that option was raised.  He was unable to establish that there were any solicitors aware of the action who had indicated a willingness to represent him, and the trial judge held on 31 January 2001 that in reality the appellant would never be ready for trial “in the way that he is going about it”.  The judge observed that:

“I cannot be satisfied further that he will get legal representation which may assist him in the preparation and argument of this case”,

     and further that:

“His affidavit filed this morning by leave……reveals that fact that he has at considerable length digested (the discovered documents) to the extent that he is able, he says, to point to the existence of other documents which were revealed by their contents.”

The judge refused the application for an adjournment of the trial, but did in fact adjourn it to 5 February 2001.  The appellant was given that extra time in which to prepare.  There has been nothing demonstrated in argument in this appeal or in the appeal record which suggests that the appellant would ever have been better prepared or readier for trial than he actually was on 5 February 2001.  The grounds of appeal based on the complaint of being forced on when unready lack any merit and should be dismissed.

Bias

[53]  When considering the validity of the complaints of bias, and apprehended bias in the learned trial judge, it is relevant to consider some features of the proceedings as they continued on and after 5 February 2001.  The learned judge repeatedly advised the appellant on both 5 and 6 February of the need for the appellant to establish by evidence the facts and circumstance which gave rise to the issue of the warrant (R 188, 199, 220, 235, 265-267, 273, 274, 276 and 277-280).  The latter references demonstrate that eventually the learned judge effectively took Mr Ivory through his evidence in chief, establishing thereby the apparent facts upon which the warrant was issued (the affidavits described in paragraph 23 herein), and the appellant’s denial that their contents were accurate.  This is recorded occurring at R 281-283, and the process included the appellant advising the judge that “the penny just dropped, your Honour” (as to how to prove the claim he brought); and Mr Ivory apologising for the “delay” which had occurred in his doing so. 

[54]  That happened on 6 February 2001.  What had occurred up to then was that the appellant had focused in his evidence not on proof of the specific allegations in his statements of claim, but rather on proof of a long history of what he considered to be devious, dishonest, or questionable dealings with him by Telstra.  What the learned judge did achieve was to have the appellant finally and actually present with assistance the essence of his case.  Without that assistance the entire proceedings would really have provided nothing more than an opportunity for the appellant to criticise Telstra and everybody involved in any way in the proceedings, including the learned judge; and the judge would have been obliged to non suit the appellant at the close of his case. 

[55]  With some assistance from that judge (R 283-4) the appellant exhibited an affidavit he had originally sworn on 14 February 1997 for the proceedings brought under the Act, and he swore in the trial that its contents were correct.  Obviously enough, those contents challenged the affidavits relied on by the respondents.  More significantly, the appellant himself then tendered the substantial bundle of discovered documents which became exhibit 18 saying:

 

“Well I’d like to submit the entirety of these documents your Honour that have been discovered.  There is a copy there for the other side”…

     and he added:

 

“Basically they’re their own documents your Honour”.

This all occurred at R 286.  Significantly, at R 361 it was established that that bundle of discovered documents exhibited by the appellant included hand written commentary by him on the respondent’s documents, and a number of his own documents.  At R 361 he explained to the learned judge that when he had said “basically they’re their own documents”, he had in fact meant “basically”, and not “all”.

[56]  I think those latter events surrounding the tendering of Exhibit 18 demonstrate:

 The acuity of the appellant in fact as a litigant.

 The fact that he had studied those disclosed documents with considerable care, just as the judge had found on 31 January 2001.

[57]  There were three features of the proceedings before the learned judge, both when interlocutory and at trial, which are evident from the appeal record.  One is that the appellant’s evidence showed a marked tendency to give both long and discursive answers to questions.  Experience has shown that this is not at all uncommon with self represented litigants, who can be overly anxious to explain in each answer what appear to them the salient features of their case.  Likewise, the appellant demonstrated a continuing tendency to ask questions which contained within them both assumptions and hostile accusations, with neither established by other evidence nor already accepted by that witness.

[58]  The second clear feature of the proceedings was that the judge intervened on a number of occasions to suggest that shorter answers by the appellant were more appropriate, and that questions asked should seek to elicit facts rather than assert a contentious series of them.  Combined, these two features led to a number of interchanges between the appellant and the judge.  The third feature evident in the record is that the learned judge demonstrated a tendency to both frank and blunt speaking, not necessarily appropriate with self represented litigants.  For all that, the appellant did not appear overawed by the learned judge.  An example of His Honour’s attempts to produce shorter answers, and in Mr Ivory’s response to His Honour’s authority appears at R 353:

By His Honour:

 

Q.“Mr Ivory I just wish you’d listen to some people occasionally.  If you are asked a direct question it deserves a direct answer.  If you’re incapable of doing it, well and good, but it doesn’t assist me to determine issues?

 

A.Your Honour, all my life I’ve been long winded in anything I write or say, and its pretty difficult for me to change for a court, your Honour, I’m doing my best.

 

Q.Look, Mr Ivory, that falls on pretty deaf ears on me.

 

A.I would imagine anything would, your Honour, quite frankly, with due respect.  That’s been demonstrated.”

[59]  Mr Ivory’s response included his often made complaint of pre judgment.  Before returning to that complaint, it should be said that one of the appellant’s responses to the frequent enough attempts by the learned judge to restrain the appellant’s critical comments in cross examination had included (at R 508) Mr Ivory’s remark that:

 

“I think I’m getting the picture your Honour.  To elaborate on that further, that is where submissions come, is it?  I don’t elaborate to you my thoughts on that now.”

The record demonstrates on that same page the appellant continued to put what was effectively a submission when cross examining; and there were further exchanges between the judge and Mr Ivory about that during his further cross examination (of Mr Mead).  This led to a time limit being imposed on Mr Ivory in respect of that cross examination imposed on 8 February 2001, after Mr Mead had been in the witness box (notionally in evidence in chief) for a day.

[60]  The appellant first asked the learned judge to disqualify himself on 12 January 2001, the day the learned judge ordered that the appellant’s Notices to Admit be sealed in the court file, and not opened without an order of the court.  The judge had agreed with a submission that those notices could not properly be described as genuine Notices to Admit, holding that the documents were really a vehicle for making scandalous comments about the defendants, their employees, the witnesses they were likely to call, and the legal advisors.   The judge described the documents as rambling, and replete with assertions that had no relevance to the proceedings; and containing denunciations of a non party (the Telecommunications Ombudsman Ltd), and irrelevant references to Senator Alston, and to the Mental Health Act.  The judge considered the Notices to Admit to be an impediment to the just and expeditious resolution of the real issue of the proceedings, and an abuse of process.  I have examined the documents for the purposes of this appeal, and they appear to answer those descriptions.  They have been resealed and returned to the Court file.  Even more importantly, nothing in the appeal record or in the submissions made on appeal demonstrates that the appellant was actually handicapped at all in the presentation of his case by His Honour’s treatment of those Notices to Admit.

[61]  The learned judge was invited that day to disqualify himself because he had set the trial date down when the appellant said he was unready, and because the judge had not “dressed down” the first respondent for its failure to comply with the orders for disclosure.  As to the first point, the matters already described show that the appellant was ready for the trial that actually began on 5 February 2001.  As to the second, the appellant had been called a “pettifogger” and “nit picker” but had been proven correct in fearing that there was more disclosure yet to come.  An apology to him or a rebuke of the respondents would have been appropriate, but absence of either of these does not show bias.

[62]  In as much as the appellant complains about actual bias, the judge actually assisted him in presenting his case.  The judge did force him to focus on proving essential, relevant matters, and repeatedly restrained the appellant from an examination of what appeared to have been matters irrelevant to the issues raised in the pleadings.  There is no sense in which appropriate control of proceedings demonstrates bias, even when done with firmness.  Nothing that the learned judge said or did in guiding the appellant to relevant matters went beyond appropriately controlling the proceedings.

[63]  Two matters did occur during these lengthy proceedings, which might understandably lead a litigant such as the appellant, who appears to have a deep sense of being wronged, into a view that the judge had predetermined the case.  The first incident occurred on 29 January 2001, and in the argument which was occurring before the appellant began his extensive evidence in support of his application for an adjournment.  The appellant had complained that the respondents had paid the setting down fee for the matter, and he then made the complaint already described that the learned judge had “repeatedly misled me”, and that the judge had set the matter down before it was ready.  The learned judge responded with the remark that:

 

“Of course, it might be said that your opponents paid the setting down fee because they were concerned about what they perceived to be your humbug.”

His Honour explained that he was suggesting:

 

“Your opponents might have thought the best way to get this matter on, without any further delay, was to pay the fee themselves”.

It would have been much better if the explanation had been given, rather than the reference to the appellant as a humbug.  Anyone would resent that description of themselves, and even a person without a strong perception of themselves as a victim (as the appellant appears to be) would fear pre judgment upon hearing that term.  The fact that the learned judge gave the appellant the assistance thereafter which I have described, and which assistance the appellant himself acknowledged, is sufficient answer to the complaint of actual pre judgment.

[64]  The same applies to the second matter. This occurred on 31 January 2001, and during the submissions after evidence on the application to adjourn the proceedings.   The appellant complained about the submissions of Mr Keane QC, accusing Mr Keane of defaming him in those submissions.  The appellant’s complaint appears to have been about submissions made on the basis of the (apparently recently) discovered documents, which included Telstra’s internal documents which had discussed Telstra’s potential responses to the appellant’s conduct involving Ms Parisi, Mr Howard, and Mr Blount.  The learned judge when dealing with the criticism of Mr Keane QC, who in turn had been referring to documents describing the appellant’s behaviour, was met with the response from the appellant that the contents of those contemplated responses by Telstra were:

 

“based on injurious falsehoods stated about me”.

[65]  The learned judge then responded in a manner both appropriate and inappropriate.  The appropriate manner was to observe that the documents could be alternatively described as recording apparent “threats made by you”; but the judge then went on to add that:

 

“two of which are pleaded in the defence, and are, if made out, foul in the extreme”.

The judge added in response to the appellant’s questions that by that expression he meant, “filthy, dirty”; and he then made specific reference to the threat “to be another Bryant from Tasmania” (sic), to “wanting to vomit on your Christmas dinner in front of your family” (sic), and to “I will stuff up your life for good.  I want revenge”.

[66]  The appellant responded that the learned judge was quoting matters “out of total context your Honour”, and whether or not that was true, the learned judge did not need to express those views at all when explaining why either those internal memoranda might be relevant to issues, or why Mr Keane QC was entitled to refer to them in his submissions.  However, the judge did subsequently provide the assistance described, and the evidence led overwhelmingly supported the actual findings the judge subsequently made.

Apprehended Bias and Mr Spence

[67]  I turn to the appellant’s complaints of apprehended bias.  Principally these rested upon the fact that the learned trial judge had known the respondent’s senior solicitor, a Mr Spence (a partner in its solicitors Thynne & Macartney) in their respective professional lives for many years (R G20).  The judge observed (on 12.1.01):

 

“The fact that I’ve known him for a long time is not going to influence my judgment in this case, does that satisfy you?”

 

          and the appellant replied that:

 

“I would accept that if your Honour feels comfortable about that”.

[68]  The difficulty is that the appellant has thereafter complained about the fact of that professional relationship.  His views are well summarised in the complaint he made to another judge on 24 January 2001 that:

 

“These people are trying to force us to go before Mr Spence’s mate”.

          As that judge then advised the appellant:

 

“All judges and all practitioners in Brisbane would know of Mr Spence, if they don’t know him personally”.

As Mr Spence has practised in Brisbane for many years, briefing many Barristers over time, that statement is undoubtedly accurate.

[69]  Although the appellant’s amended Notice of Appeal filed 8 July 2002 does not specifically refer to either actual or apprehended bias, his written submissions certainly and explicitly do.  For example those of 8 February 2002 refer to:

“a premeditated wrongful conflict of interest of judgment to assist the judge’s past loyalty mates and or their clients. (sic)” (Para 2, page 20)

Those of 15 July 2002 refer to the judge’s predetermined bias, and assert that the judge “misused his past loyalties to his colleagues at Thynne & Macartney, whether called on by his colleagues, or just given is irrelevant to me” (par 3 and 57 of an affidavit of the appellants filed 15 July 2002).

[70]  The High Court has relatively recently repeated[13] that in Australia the test for determining whether a judge is disqualified from continuing to sit by reason of the appearance of bias is whether a fair minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide.  That fair minded observer is assumed to be reasonable[14].  I considered a fair minded observer would accept that a senior barrister appointed a judge in Queensland would be likely to know the senior solicitors from a number of firms, and that is all that was established in the instant case.  Establishing just that degree of “association” between the trial judge and one party is insufficient to establish enough to cause a fair minded lay observer a potential reasonable apprehension that the judge might not be impartial.  A moment’s reflection would remind that, of course, the judge would also have appeared in cases in which the particular solicitor had instructed the opposing party.

[71]  The circumstance of association in the past between the presiding judge and a solicitor, or other barristers, has received some judicial consideration.  The general principle relevant to establishment of a disqualifying association, whatever the cause, was discussed in the judgment of Gleeson CJ, McHugh, Gummow and Hayne JJ (with whom Callinan J agreed), in Ebner v Official Trustee in Bankruptcy[15] where their Honours wrote:

“It is not only association with a party to litigation that may be incompatible with the appearance of impartiality.  There may be a disqualifying association with the party’s lawyers, or a witness or some other person connected with the case.  In each case however, the question must be how it is said that the existence of the “association” or “interest” might be thought (by the reasonable observer) possibly to divert the judge from deciding the case on its merits.   As has been pointed out earlier unless that connection is articulated it cannot be seen whether the apprehension of bias principle applies.  Similarly the bare identification of an “association” will not suffice to answer the relevant question.”

[72]  In Locabail (UK) Ltd v Bayfield Properties Ltd [2000] 1 All ER 65 the UK Court of Appeal sat in judgment on five applications for permission to appeal in matters involving common questions concerning disqualification of judges on the grounds of bias.  The judgment of that court expressed a finding of great persuasive force in three extracts from Australian authority.  Those were:

 The following passage from Re JRL; Ex parte CJL (1986) 161 CLR 242 at 352 where Mason J wrote:

“Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit, and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking a disqualification of  a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour.”

 The second was the judgment of the Federal Court in re: Ebner v Official Trustee in Bankruptcy (1999) 161 ALR 557 at 568, where that court asked:

“Why is it to be assumed that the confidence of fair minded people in the administration of justice would be shaken by the existence of a direct pecuniary interest of no tangible value, but not by the waste of resources and the delays brought about by setting aside a judgment on the ground that the judge is disqualified for having such an interest[16]?”

[73]  The third citation was from Callaway JA in Clenae Pty Ltd v Australia and New Zealand Banking Group Ltd [1999] 2 VR 573 at par 89(e) where the learned judge wrote:

“As a general rule it is the duty of a judicial officer to hear and determine the cases allocated to him or her by his or her head of jurisdiction.  Subject to certain limited exceptions, a judge or magistrate should not accede to an unfounded disqualification application.”

[74]  All of those quoted remarks are relevant here.  The learned judge did become very frank and very blunt as described, but the fact that he made reasoned and proper rulings which were against the appellant did not disqualify the judge from continuing to preside, and it was his duty to do so.  Nor did his past professional association with the solicitor for one party disqualify him.  After all, had Mr Ivory in fact found a solicitor to act for him, the learned judge’s extensive experience may well have resulted in his having a past professional relationship with that solicitor too.

[75]  In Locabail v Bayfield (supra) the Court of Appeal ruled (in par 25):

“It would be dangerous and futile to attempt to define or list the factors which may or may not give rise to a real danger of bias…..nor at any rate ordinarily could an objection be soundly based on the judge’s social or educational or service or employment background or history……or previous receipt of instructions to act for or against any party, solicitor or advocate engaged in the case before him……”

[76]  Those last observations were quoted with approval by the New Zealand Court of Appeal in Man O-War Station Ltd v Auckland City Council [2001] 1 NZLR 552 at 556.  At 560 the court added:

“…….senior legal practitioners with busy commercial and conveyancing practices must come into contact in established businesses associations with a considerable proportion of the professional practitioners in related fields such as surveying and civil engineering.  The proposition that because of such an association they should be regarded as in danger of failure to carry out judicial functions impartially eight years after retiring from practice is unreal”.  (The learned judge whose apparent impartiality was being considered had been appointed for eight years).

[77]  In Raybos Australia Pty Ltd v Tectran Corp Pty Ltd (1986) 6 NSWLR 272 Priestley JA (with whom Hope JA and Glass AJA agreed) said at 276:

“That method of appointment means that built into the legal system is public knowledge and long acceptance of the fact that judges will often know to a greater or lesser degree the counsel and solicitors who appear before them.  Also when, as not infrequently happens, members of the legal profession are parties to litigation, it is inevitable that their cases will be decided by other members of the legal profession.  It has long been accepted that a judge should not sit on a case involving a person with whom he has a connection which might in fact or in appearance affect his impartiality; when the judge’s connection is less then that there is no reason why he should not sit.”

It seems clear on authority that the extent of association established in this case is not sufficient either in fact or appearance to affect the judge’s impartiality.  To the above citations could be added the remarks of Merkel J in Aussie Airlines Pty Ltd v Australian Airlines Pty Ltd and Ors (1996) 135 ALR 753 at 761:

“However, there have been cases where the disqualifying relationship has involved the judicial officer or tribunal and a legal representative (Fingleton v Christian Ivanoff Pty Ltd (1976) 14 SASR 530 Kennedy v Cahill (1995) FLC 92-505).  Although both of those cases are exceptional it is obvious that the resolution of the issue now arising is likely to arise again.  For so long as judicial appointment in Australia is made primarily from the senior ranks of the legal profession the circumstances of an appearance before the judicial appointee of a fellow member of, for example the Bar, who is a long standing friend, possibly from the same chambers, sharing in some common long term investments, with continuing financial obligations in respect of those investments, will be far from unusual.”

That connection was held insufficient to disqualify the learned judge in that case and is far more than what is established in this one.

[78]  For completion, it should be recorded that a matter that particularly excised the appellant’s mind was the relationship between Mr Mead, Telstra’s general counsel, and its previous solicitors, Mallesons Stephens Jacques.  Mr Mead was a partner with that firm before his secondment to Telstra, and after it ceased.  He was considerably examined and cross examined about that relationship by the appellant, who has long alleged it was improper.  Mr Mead’s evidence was that he was employed by Telstra under an arrangement whereby he was on leave of absence from Mallesons, not drawing a profit as a partner, and being paid only by Telstra.  He did not exercise voting rights as a partner, and attended only the annual partners conference.  Despite the imputations made by Mr Ivory, I thought Mr Mead’s correspondence and answers in evidence demonstrated that it was Telstra’s interests that guided Mr Mead, and not Mallesons’.  Mr Mead did agree with the fairly obvious point that had their legal action against the appellant not been taken, the overall income received by Mallesons in that financial year may have been less (R 538).

[79]  The appellant’s disapproval of that association between Mr Mead and Mallesons appears repeatedly throughout his written submissions and arguments.  It appears to increase his distrust of lawyers involved in the proceedings, including the learned trial judge.  This does not mean that his criticisms of the lawyers or the learned judge have any substance.  I am satisfied that no reasonable apprehension of bias has been established, let alone actual bias; but rather that level of more active case management and intervention in the conduct of cases by modern judges which is now expected, and which was remarked upon in the judgment of the High Court in Johnson v Johnson (supra) in paragraph 13 of that judgment.

Costs

[80]  Turning to the merits of the appellant’s incompetent appeal brought without leave against the order for indemnity costs, the proceedings involved extensive disclosure, and were much lengthened by the appellant’s insistence on referring to matters outside those relevant to the pleading.  His presentation of the case involved his making vehement, unrestrained, and usually entirely unjustifiable criticisms of the witnesses and lawyers involved, and the judge.  Stripped to its essence, his case involved his false denial of things he had actually done and said.  Imposition of indemnity costs should be a salutary reminder that participation in litigation is not a licence to insult and abuse other people, or to waste their time and money.  That appeal must be dismissed as incompetent, but treating the complaint about indemnity costs on its merits, it should still be refused.

[81] I would order that the appeals be dismissed with costs.

[82]  WILSON J: Subject to what I say in the following paragraphs, I agree with the reasons for judgment of Jerrard JA and with the order he proposes.

[83]  Litigation is an adversarial process. It is the responsibility of a trial judge not only to be impartial and to be seen to be so, but also to maintain control over a trial and the conduct of the parties in the course of the trial.

[84]  It is generally accepted that where one of the parties is unrepresented, the judge should afford that party some assistance to ensure that the critical issues are laid before the Court for its determination. As Jerrard JA has demonstrated, in the present case the learned trial judge did just that. I am unwilling to endorse criticism of His Honour for sometimes becoming impatient with the appellant or for engaging in straight talking.

[85]  I respectfully agree with the observation of Mahoney JA in Ley v R De W Kennedy (Finance) Pty Ltd [17] as cited in the later decision of Raybos Australia Pty Ltd & Anor. v Scitec [18] that the right of a litigant to present his case -

 

“ must not be seen as giving ..... an absolute right to conduct a case, or to conduct a case in the manner and for the time that such a person chooses, whatever that choice may be. That right must be balanced against the rights of other parties who are involved in the litigation, including the right...... not to be involved in pointless litigation and to have the litigation conducted properly and with reasonable promptitude; and it must be balanced against the right of the public generally not to have the court’s time wasted.

 

...

 

What steps will be appropriate, in a particular case, to prevent injustice being done to parties who find themselves involved in litigation conducted in this way, must, of course, be determined in the light of the facts of that a case; but it should be clear that it is proper that steps be taken to that end.”

[86]  With the ever increasing numbers of unrepresented parties appearing before our Courts, striking and maintaining that balance presents arguably the greatest challenge for the modern judiciary. In my view the learned trial judge fulfilled his obligation in a manner that does not deserve criticism.

Footnotes

[1] Section 253 of the Supreme Court Act 1995 (Qld) prohibits an appeal against an order for costs except by leave of the judge making the orders.

[2] The facts asserted in this paragraph were sworn to on 12 February 1997 by Ms Hills in an affidavit relied on by Telstra in its application for orders under the Act.

[3] This is the account sworn to by Mr Howard on 19 December 1996 in an affidavit also relied on by Telstra in its application for a restraining order.

[4] See Hedges v Grundmann [1985] 2 Qd R 263 (not overruled on that point by George v Rockett (1990) 170 CLR 104)

[5] Glinski v McIver [1962] AC 726 at 742; Commonwealth Life Assurance Society Ltd v Smith (1937-38) 59 CLR 527 at 536; Little v Law Institute of Victoria [1990] VR 257 at 262.

[6] See the discussion in Bayliss v Cassidy & Ors [1998] QSC 186 per Muir J, Glinski v McIver (supra), Mitchell v John Heine and Son Ltd (1938) 38 SR (NSW) 466 at 469 per Jordan CJ and Abrath v North Eastern Railway Co (1882-83) 11 QBD 440 at 450, 454.

[7] See Glinski v McIver (supra) at pages 745 and 768, and Abrath (supra).

[8] Glinski v McIver (supra) at 745 and 759, Bayliss v Cassidy & Ors (supra), and Abrath (supra) at 455.

[9] See Bayliss v Cassidy (supra), Gibbs v Rea [1998] 3 WLR 72 at 80, Rapley v Rapley (1930) 30 SR (NSW) 94 at 99, and Glinski v McIver (supra) at 765, 766.

[10] Hope v Evered (1886) 17 QBD 338 at 340; Commonwealth Life Assurance Society Ltd v Brain (1934-35) 53 CLR 343 at 379 per Dixon J.

[11] Rosenberg v Percival (2001) 75 ALJR 734 at 739, 741, 764.

[12] See [20] and [21] herein.

[13] Johnson v Johnson (2000) 174 ALR 655 at 658

[14] Note 13 at para 12

[15] (2000) 205 CLR 337 at 350

[16] The appeal from this judgment was one of those dismissed by the High Court in Ebner v Official Trustee in Bankruptcy (supra).

[17] Unreported, 21 May 1975, New South Wales Court of Appeal

[18] Unreported, 16 June 1986, NSWCA, CA 146/86, BC 8601339

Close

Editorial Notes

  • Published Case Name:

    Ivory v Telstra Corporation Ltd & Anor

  • Shortened Case Name:

    Ivory v Telstra Corporation Ltd

  • MNC:

    [2002] QCA 457

  • Court:

    QCA

  • Judge(s):

    Davies JA, Jerrard JA, Wilson J

  • Date:

    01 Nov 2002

  • White Star Case:

    Yes

Litigation History

Event Citation or File Date Notes
Primary Judgment [2001] QSC 102 11 Apr 2001 Action dismissed: Douglas J
QCA Interlocutory Judgment [2001] QCA 437 11 Oct 2001 Directions made for progressing appeals: McMurdo P
QCA Interlocutory Judgment [2001] QCA 490 07 Nov 2001 Appellant ordered to provide security for costs in default of which the appeal stand dismissed without further order: McMurdo P, McPherson JA, Chesterman J
Appeal Determined (QCA) [2002] QCA 457 01 Nov 2002 Appeal dismissed: Davies JA, Jerrard JA, Wilson J
Special Leave Refused [2004] HCATrans 57 12 Mar 2004 Special leave refused: Kirby J, Hayne J

Appeal Status

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