SUPREME COURT OF QUEENSLAND

[1]  THE COURT:  On 2 September 2004, the appellant, who is the plaintiff in an action commenced against the respondent on 22 November 2002, applied for orders apparently intended to facilitate his obtaining judgment in default of defence.  Although it is not entirely clear from the appellant's amended statement of claim, the appellant seeks to sue the respondent for damages for "Costs, Stress and Physical injuries" sustained as a result of false arrest and assault on 23 November 1999.

[2] The learned primary judge dismissed the appellant's application and ordered that the appellant pay the respondent's costs thereof.

[3] The orders sought to be challenged on appeal are interlocutory orders.  Because they are not "a final judgment", leave to appeal is necessary by reason of s 118(3) of the District Court of Queensland Act 1967 (Qld).  Leave was not sought initially by the appellant; but at the hearing the appellant sought leave, and the Court reserved its decision on the grant of leave.

The proceedings below

[4] As the respondent conceded, no defence had been filed by the respondent.  The learned primary judge refused the relief sought by the appellant on the ground that, because the appellant's proceedings claimed "compensation in the sum of $119,600.00 … for costs, stress and physical injuries sustained and suffered as a result of the actions of the respondent on 23 November 1999 …", the provisions of the Personal Injuries Proceedings Act 2002 (Qld) ("the Act") applied to his claim; as the procedural requirements of the Act had not been observed by the appellant, his claim could not proceed.

[5] During the course of the hearing of the application, the appellant objected, on the grounds of bias, to the learned primary judge hearing the application.  The following exchange occurred:

"His Honour:  … Now, Mr Merrin, the effect of what's said here is that because of the Queensland Statute called the Personal Injuries Proceedings Act you have to comply with that before you can go any further.

APPLICANT:  Oh, it's illegal if you look at section 20 of the Act Interpretation Act - but before I go any further I've got 11 Judges here - 11 here Judges in this State - that are biased towards my cause, you know.  They're not only biased towards my cause.  They're not balanced.  Some of them are - which is biased - some of them are political appointees.  Some of them are members of political parties and I'm afraid you're one of them and I want you to dismiss yourself and on top of that this is that serious because of police and bureaucrats who are involved that there should be three Judges sitting this default, in all fairness to justice.  That's all I have to say."

[6] It can be seen that the appellant failed to identify, much less establish, some coherent ground of objection to the learned primary judge determining the application.  The appellant established no basis for a reasonable apprehension of bias, much less for a conclusion of actual bias.[1]  In terms of the test laid down in Johnson v Johnson,[2] no "fair minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question" which the learned primary judge was required to decide.

[7] A little later the following further exchange occurred between his Honour, the appellant and Mr McLeod of counsel who appeared for the respondent:

"HIS HONOUR:  Well, probably the kindest thing that the Court perhaps can do for Mr Merrin would be to treat this as an application, as it were, for directions and adjourn it on the basis that in due course it may be that the general power to achieve compliance and so on might be exercised and that the order could be made then.  You ask for it to be dismissed though, don't you?

MR MCLEOD:  Well its whole application, with respect, it's misconceived.

HIS HONOUR:  Yes.  All right.

MR MCLEOD:  But his application can be dismissed but there's nothing preventing your Honour from giving directions in respect to Mr Merrin complying with the pre-court procedures under the -----

HIS HONOUR:  It may be unfair to him because he's obviously unfamiliar with it and it may be that any directions would cast a burden on him or whatever - that he wouldn't welcome.

MR MCLEOD:  Well he's been alerted to this Act way back in April 2003.  I don't  know what steps he's taken to look at it and no steps - other than simply transferring the matter from the Cairns Registry to the Brisbane Registry - not related to this application and -----

HIS HONOUR:  Yes.  All right then.  All right, thank you.  Mr Merrin, I won't disqualify myself because there's just no reason to do so.

APPLICANT:  We gathered that but why did they ask for an amended claim and the Act they're talking about happens to be a politician's Act and it's not legal?  Section 20 of the Acts Interpretation Act makes it not legal because I'm not using it.

HIS HONOUR:  Okay.

APPLICANT:  This is why I want you to disqualify yourself - because it's not relevant at all to this action and on top of that you're not coming into this with a clear mind."

[8] Once again it can be seen that the appellant did not identify a coherent legal basis on which the learned primary judge should have recused himself.

The issues in this Court

[9] There can be no doubt that on the material before the learned primary judge, the appellant was not entitled to proceed with his action.  In this regard, the Act came into force on 18 June 2002.[3]  It applied, with limited and presently immaterial exceptions, to all proceedings for damages for personal injury commenced after that date.[4]  The appellant did not contest that he had not complied with the requirements of s 9 of the Act or that s 18 of the Act prevented him from further proceeding with his claim, insofar as it is a claim for damages based on liability for personal injury, as a result.  Rather, the appellant sought to assert that the Act was "illegal".  That contention was, and is, one that cannot seriously be entertained.  Section 20 of the Acts Interpretation Act 1954 (Qld) to which the appellant has referred does not purport to deny the power of the Parliament to make the Act, nor could it do so.

[10]  In his oral submissions the appellant also relied upon s 11 of the Acts Interpretation Act 1954 (Qld) and s 118 of the Constitution of the Commonwealth of Australia.  Neither of these provisions afford any basis for challenging the validity of the Act.

[11]  The appellant adverted, in his written submissions, to the circumstance that his claim includes a claim for economic loss said to have been suffered by his son which does not seem to be parasitic on the appellant's personal injuries.  That circumstance is not a passport through the requirements of the Act.  The Act clearly applies to the claims for compensation for loss allegedly suffered by the appellant himself.  That one aspect of the damages claimed by a plaintiff is not damages for personal injury does not mean, as the appellant seemed to contend, that the whole claim, including the claim for damages for personal injury, may proceed unimpeded by the provisions of the Act.  In any event, the claim advanced by the appellant for compensation for economic loss said to have been suffered by the appellant's son is a claim which has no legal basis.  If it was the only claim made in the appellant's action, it would be struck out as frivolous or vexatious.

[12]  Finally on this point, the appellant, in his oral submissions sought to contend that the Act applied only to self-inflicted injury.  A moment's reflection on the terms of the Act is sufficient to demonstrate that the Act is concerned to regulate claims for damages for personal injuries inflicted by others.

[13]  We turn then to the issue whether the learned primary judge should have recused himself for bias.  It has already been made clear that there was no basis for his Honour to do so in terms of what transpired before him on the date of the hearing of the application.[5]

[14]  In this Court, the appellant also sought to rely on what occurred on an earlier occasion on 30 August 2001.  On that occasion an appeal (by the appellant and his son under s 222 of the Justices Act 1886 (Qld)) was set down by the learned primary judge for hearing before Judge Botting at a later date.  Mr Merrin sought a stay of the probation order which had evidently been made in the proceedings the subject of appeal.  In this regard, the following exchange occurred between the appellant, his Honour and Mr Meredith of Counsel who appeared for the Crown:

"APPELLANT T MERRIN:  In the bundle of documents here we have an application for a stay of the decision.

HIS HONOUR:  I have looked at that.   That's the other thing that concerns you, isn't it?

APPELLANT T MERRIN: Yes, very much so. The application was put before Judge Forno. The only thing I can say about the last hearing was that if the complete transcript was read of Judge Forno's it would be found that there's approximately a page, or more than a page, missing from the transcript. The only thing we can assume or the most sensible thing is - the sensible way to go is that I think that whole last hearing can be put down as a non-event, the reason being‑---

HIS HONOUR:  Mr Merrin, don't trouble about the last hearing.  I am Judge today.  You tell me why you want a stay and how you can have it?  Why do you want a stay?

APPELLANT T MERRIN:  We want to stay it under----

HIS HONOUR:  Just tell me why do you want to stay it?

APPELLANT T MERRIN:  The reason we're aggrieved is because the decision of the Magistrate - it's going to appeal and if we go back to the old laws, which I think Judge Forno referred to, an appeal is an automatic stay, but it seems somewhere along the line in recent years----

HIS HONOUR:  I understand you haven't performed the probation order, either of you at all; is that right?

APPELLANT T MERRIN:  I wouldn't say all.  We went four times till the manager at Harvey Bay decided to have an argument and started screaming and I never went back.

HIS HONOUR:  I see there was also an order for the payment of, I think, $300, was it?  Was that the amount?

APPELLANT T MERRIN:  That's automatically stayed, anyway, in the law.  The other decision with the probation officer, we think that to abide by the new laws, which are illegal laws at this present moment, we need an order of the stay until after the Court hearing to see whether we're guilty or not.  Because we're aggrieved over all this, very much so.

HIS HONOUR:  This is the stay of a probation order?

APPELLANT T MERRIN:  That's right.

HIS HONOUR:  I see from the file it's nine months but the notice of appeal says 18 months.

APPELLANT T MERRIN:  By myself, and my son is nine months.

HIS HONOUR:  There are two different ones?

APPELLANT T MERRIN:  Yes.

HIS HONOUR:  That's the ground for the stay?

APPELLANT T MERRIN:  Yes.

HIS HONOUR:  What power have I got to order a stay?

APPELLANT T MERRIN:  The power you have got to order a stay under the new laws----

HIS HONOUR:  Any power?

APPELLANT T MERRIN:  ------ is written on the document you have there, and it is in the Practice Direction Rules, which is signed by Judge Wolf.  Mind you, she hasn't got the number there.  It was a lot of difficulty to find out the new number of these new laws.  Anyway, the Uniform Civil Procedure Rules, 99 part 3----

HIS HONOUR:  You needn't read it.  I have read your notice.

APPELLANT T MERRIN:  You would know it, yes.

HIS HONOUR:  Is that the ground on which you rely, the legal power?

APPELLANT T MERRIN:  I rely on the new laws and I rely on the old laws of the automatic stay, which is common law, which is commonsense.

HIS HONOUR:  It may be commonsense to you.  Can I tell you this: the Civil Procedure Rules don't apply to these proceedings, which are criminal.  As far at [sic] the criminal proceedings go, I, at least, have been unable to identify any power in the Court to stay a probation order.  Mr Meredith may tell me to the contrary.  As far as my researches go, there is no power, as Judge Forno said. I'm not aware of any power.

APPELLANT T MERRIN:  Judge Forno didn't agree, it is just that he left---

HIS HONOUR: I have read all the transcript.  He said he thought the Court had no power, and I think he was right.  Mr Meredith --------

APPELLANT T MERRIN:  He couldn't see why there couldn't be a stay if the Probation Board weren’t worried about it, and they weren't worried about it because they're not here in Court this time and they weren't in Court last time.

HIS HONOUR:  Just sit down.  Is there any power in the Court to order a stay?

MR MEREDITH:  It would seem Judge Forno is correct, that there isn't any.  It has some practical problems, of course, but if the Court has no power to make the order then it can't make the order.

HIS HONOUR:  I'm not aware of any power.

MR MEREDITH:  No.

HIS HONOUR:  In fact, there are some indications to the contrary.  The special provisions of entering into a recognisance are according to section 222.  They operate as a stay of an order of imprisonment.  That indicates a special power.  It doesn't extend to community based orders.  There is nothing I can find under the Criminal Practice Rules where there may be a stay, for example, of a fine but not of these orders.

MR MEREDITH:  Yes.

HIS HONOUR:  The Penalties and Sentences Act has special powers to amend or alter probation orders, which do not include orders of this kind.

MR MEREDITH:  Yes.

HIS HONOUR:  They're the considerations which come to mind.

MR MEREDITH:  Yes.

HIS HONOUR:  I can find no power."

[15]  The appellant then sought to pursue an application relating to disclosure of documents from a non-party.  The exchange which occurred was as follows:

"APPELLANT T MERRIN:  The other thing that is of great importance to us in all fairness and justice is document 11.  Is document 11 in your file?

HIS HONOUR:  I don't have a document.  What's document 11? What application are you making?  What do you want me to do?

APPELLANT T MERRIN:  I want to make a submission that the application that was put up before Judge Forno, where a page is missing in the transcript, which we've gone into deeply and the transcript department say that there's a section in their Act that says the Judge can, in [sic] he feels like it, change the transcript----

HIS HONOUR:  Why are you telling me about this?

APPELLANT T MERRIN:  I just have to get to this because this is very relevant to do with this.

HIS HONOUR:  To do with what?  What's it relevant to?

APPELLANT T MERRIN:  It is relevant to an application of the Court for an order to produce copies of certain documents held by a non-party.  Now, the non-party happens to be----

HIS HONOUR:  Is there an application to this effect?

APPELLANT T MERRIN:  Yes.

HIS HONOUR:  I haven't seen it.  Where is it?

APPELLANT T MERRIN:  On your file it is number 11.

HIS HONOUR:  Do you know about this, Mr Meredith?

MR MEREDITH:  Yes, I have seen this document.  It is an application to have certain Acts----

HIS HONOUR: Is this about the Police Powers Responsibilities Act?

MR MEREDITH:  Yes, it is that document.

HIS HONOUR:  I read that, Mr Merrin.  I don't propose to take the matter any further today.  You can take it up with Judge Botting.

APPELLANT T MERRIN:  No reason is given at all.

HIS HONOUR:  The reason is it is a waste of time.  That's the reason.

APPELLANT T MERRIN:  I hope it goes in the transcript.

HIS HONOUR: Anyway, the trial Judge can deal with it.  If there is nothing further, that will be the end of the matter this morning.

APPELLANT T MERRIN:  There is.  I have another matter that I want to make submissions about.  The original letter from the Police Commissioner, which is in your file, or signed by his legal advisor - just to clarify it, it would make it a lot easier for us to operate - I would like to know if the Police Commissioner is a Crown Law officer.

HIS HONOUR: You can address all these things to the Judge hearing the appeal.  He will look into the whole matter.  I am only getting your appeal set down today, and I should give you the reasons why there is no stay.  The transcript will record my remarks to the Prosecutor as to why the indications are that there is no power.

In my opinion Judge Forno appears very likely to be correct in saying there's no power to order a stay, however, if there were a power, there is no ground on which it might be exercised in your favour.  The ordinary course in criminal matters is that appeal proceedings do not operate as stays.  You have simply said there is an appeal and that----

APPELLANT T MERRIN:  Excuse me.

HIS HONOUR:  Sit down, Mr Merrin.  And an appeal being on foot alone is no sufficient ground to order a stay.  There being no other circumstances demonstrated, if there were a power I would not exercise in your favour.

I think we have concluded this matters and you will see Judge Botting in October.

APPELLANT T MERRIN:  Excuse me, could I just ask a question?

HIS HONOUR:  There is nothing further, Mr Meredith, is there?

APPELLANT T MERRIN: I ask you to point to the section or anything that says that a stay cannot be given by a Judge.  We know it is not in the Act, but if it is not it is not in the Act or it is not in any legislative powers it becomes a common law.  It becomes constitutional then.

HIS HONOUR:  No.

APPELLANT T MERRIN:  It does.

HIS HONOUR:  Mr Merrin, I have given my reasons to you.  Good morning to you and we will adjourn the Court."

[16]  To the extent that the appellant's allegation of bias is based on the circumstances that he had previously been unsuccessful in proceedings before his Honour, it is clear on the authorities that that circumstance would not be sufficient to warrant his Honour recusing himself.[6]

[17]  Apart from the learned primary judge's failure to accede to the appellant's application, the material to which we have referred does not suggest even the faintest basis for an apprehension of bias.  At the highest for the appellant, it shows that his Honour did not accept as persuasive the legal arguments advanced by the appellant in August 2001.  The appellant's argument proceeds on the unfair assumption that the learned judge's failure to accede to his arguments is explicable only by bias on the part of the judge rather than by a view, genuinely held, that there was no legal merit in the appellant's argument.  In any event, no "fair minded lay observer" could reasonably apprehend from these exchanges that his Honour might not bring an impartial and unprejudiced mind to his consideration of the application before him on 2 September 2004.

[18]  As was mentioned at the outset of these reasons, leave to appeal is required by s 118(3) of the District Court of Queensland Act 1967 (Qld).  The appellant's application for leave to appeal should not be granted because, for the reasons set out above, the substantive order sought to be challenged is plainly correct.  There is no utility in granting leave to bring an appeal which has no substance.

Conclusion

[19]  The appeal should be struck out and the appellant ordered to pay the respondent's costs to be assessed on the standard basis.