Mathews v Rev Canon Professor Dr John Morgan
[2006] QCA 143
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- Unreported Judgment
- Mathews v Rev Canon Professor Dr John Morgan[2006] QCA 143
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Mathews v Rev Canon Professor Dr John Morgan[2006] QCA 143
Mathews v Rev Canon Professor Dr John Morgan[2006] QCA 143
SUPREME COURT OF QUEENSLAND
PARTIES: | |
FILE NO/S: | |
Court of Appeal | |
PROCEEDING: | General Civil Appeal |
ORIGINATING COURT: | |
DELIVERED ON: | 5 May 2006 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 7 April 2006 |
JUDGES: | McMurdo P, Jerrard JA, Chesterman J |
ORDER: | 1. Appeal dismissed. |
CATCHWORDS: | APPEAL AND NEW TRIAL – APPEAL – PRACTICE AND PROCEDURE – QUEENSLAND – TIME FOR APPEAL – EXTENSION OF TIME – WHEN REFUSED – where trial judge dismissed application by appellant for an extension of time in which to re-plead the statement of claim – where trial judge dismissed appellant’s proceedings for want of prosecution with costs – where appellant claimed that he needed an extension of time because he was disabled - whether trial judge erred in dismissing application for an extension of time and in striking out appellant’s proceedings for want of prosecution PROCEDURE – COURTS AND JUDGES GENERALLY – JUDGES – DISQUALIFICATION FOR INTEREST OR BIAS – IN GENERAL – REASONABLE SUSPICION OF BIAS – where applicant complained trial judge was affected by apprehended bias because of an incident that occurred 15 years ago which did not personally involve the trial judge in any way – whether a fair-minded lay person might reasonably apprehend that the trial judge might not bring an impartial mind to the case or was affected by apprehended bias APPEAL AND NEW TRIAL – APPEAL – PRACTICE AND PROCEDURE – QUEENSLAND – WHEN APPEAL LIES – BY LEAVE OF COURT – INTERLOCUTORY ORDERS AND JUDGMENTS – whether trial judge erred in refusing application for an extension of time to re-plead statement of claim and striking out applicant’s claim for want of prosecution – where appellant was unable to provide any realistic proposal for a period of time within which he could file an amended pleading – where appellate courts are required to exercise particular caution in allowing appeals from interlocutory orders to prevent interminable delays Antoun v The Queen (2006) 224 ALR 51; [2006] HCA 2; S299 of 2005 and S300 of 2005, 8 February 2006, followed |
COUNSEL: | No appearance for the appellant, the appellant’s submissions were heard on the papers |
SOLICITORS: | The appellant appeared on his own behalf |
[1] McMURDO P: The appeal should be dismissed with costs for the reasons given by Jerrard JA.
[2] JERRARD JA: On 12 August 2005 White J made orders striking out a statement of claim filed by the appellant Russell Mathews on 27 May 2005. Her Honour gave leave to Mr Mathews to plead a fresh statement of claim against the first, third, and fourth respondents in Appeal Number 9951 of 2005, they being respectively the first, third, and fourth defendants in the claim, also filed on 27 May 2005 in the Supreme Court. Her Honour did not grant leave to plead a fresh statement of claim against the second defendant, the Brisbane City Council (not a respondent to Appeal Number 9951 of 2005); Her Honour ordered that it be removed as a defendant in the proceedings begun by that claim filed on 27 May 2005. White J ordered that the fresh statement of claim be filed and served within eight weeks of 12 August 2005, unless by earlier agreement or order of the court that time was extended.
Subsequent orders
[3] This appeal is from an order by Douglas J on 1 November 2005 dismissing an application by Mr Mathews for an extension of time in which to re-plead the statement of claim. Mr Mathews had not filed and served any fresh statement of claim by 1 November 2005, nor had he applied for an extension within the eight week period allowed by White J. There had been no agreement allowing any extension beyond that eight weeks. The reasons for judgment of Douglas J record that Mr Mathews could not realistically predict when he might be able to produce an effective document, if at all, and that it was accordingly appropriate to dismiss the application; His Honour did so, with costs. He subsequently entertained oral applications on behalf of the defendants that he dismiss the proceedings for want of prosecution, having refused Mr Mathews’ application for the extension of time, and Douglas J then acceded to those, making orders dismissing the proceedings for want of prosecution, with costs. The appeal by Mr Mathews asks that the order dismissing the claim be quashed, and likewise the costs orders on the claim.
The appeal
[4] The notice of appeal as originally drafted appealed both the orders made by White J on 12 August 2005 and those made by Douglas J on 1 November 2005, but Mr Mathews ruled through the references to the judgment of White J in his notice of appeal, and changed most of the references in the grounds of appeal from “Their Honours” to “His Honour”. Nevertheless one of the grounds of appeal included the complaint that White J was “inappropriately affected by an apprehension of bias” (ground 6); and one of the orders that he sought (order 3) was that the order of White J striking out the statement of claim be quashed. Despite ground 6 and the application for order 3, the remainder of the notice of appeal is consistent only with it being limited to an appeal against the order of Douglas J dismissing the claim, and that is how it should be considered. That is, Mr Mathews left in ground 6 and order 3 by oversight.
[5] The ambiguity in the notice of appeal has resulted in the second defendant Brisbane City Council filing a written outline of argument on 23 December 2005, asking that this Court dismiss any appeal against an order to which it was a party. The orders made by Douglas J were after the Council had been removed as a defendant by the order of White J; and on 10 March 2006 the President made an order that in so far as Mr Mathews’ appeal filed on 23 November 2005 concerned the Brisbane City Council, it was struck out. The President further ordered that the index and record book be prepared by the registry, and noted that Mr Mathews would be well advised to carefully prepare his submissions in written form before the hearing.
Mr Mathews’ difficulties
[6] The reason for that suggestion is explained in the documents Mr Mathews has filed in this Court, and by his written submissions. Those describe how he suffered a brain stem injury from a fall from a horse just after completing his senior examination in 1976. He has since then experienced a major depressive illness and had at least two further accidents, from which he has suffered further injury to his brain, including frontal lobe damage and some cortical atrophy. Despite those considerable difficulties, he has completed courses at the University of Queensland, including a degree in law. Expert assessment of him upon which he relies in these proceedings describes his judgment, decision-making, and social competence as all being significantly impaired; a Dr Hazell a psychologist, described Mr Mathews, as at an interview on 29 September 2005, as experiencing pressured, over inclusive, tangential and irrelevant thinking, and exhibiting disorganised thought processes. That description is consistent with that of a Dr Moyle of the Queensland University Health Service, given on 23 February 2006, which remarked that when Mr Mathews felt unjustly attacked and forced to “jump through hoops”, he had greater subjective difficulty concentrating and his thoughts became derailed and difficult to follow.
[7] Dr Moyle has previously diagnosed the condition Mr Mathews suffers from as an organic psychosis; that doctor also referred to Mr Mathews’ ongoing unwillingness to take medication, which left Mr Mathews with the described tendency to “thought blocking and derailed thinking”, largely noticeable when under duress. Mr Mathews’ correspondence with this Court says about himself that he has deficiencies of concentration, and accordingly has special needs as a litigant.
The litigation
[8] The litigation in issue in this appeal is a claim by Mr Mathews against his sister Coral McVean, the fourth respondent, who is married to the third respondent Hugh McVean. It concerns a house at 254 Hawken Drive, St Lucia, owned by Mr McVean and in which Mr Mathews lives. Mr Mathews alleged in the struck-out statement of claim that he and Mr McVean entered into an oral agreement (perhaps in 1994 – it is not clear) whereby he was given an option to buy that house, in which he has been living as a tenant. I interpolate that the McVeans had commenced proceedings in the Small Claims Tribunal on 10 January 2004 for termination of the tenancy, and Mr Mathews began his proceedings in this Court in response, contending that Mr McVean was (effectively) repudiating the agreed option to buy the property. He pleaded in the struck-out statement of claim that Mr McVean’s motive is so that the property can be sold to St John’s College, of which the first defendant and first respondent, the Reverend Dr Morgan, is the warden. The college owns premises at 256 Hawken Drive, next door to 254. Mr Mathews alleged in his pleading that Dr Morgan has encouraged students living at 256 to make complaints about Mr Mathews to the Brisbane City Council.
[9] Mr Mathews has presented a written submission on the appeal, as suggested by the President, but did not appear in person; the President had not suggested that omission. Mr Mathews contended in the written submission that an appearance in person would simply give the illusion that the disadvantages he will suffer (by not appearing) had been removed. That written argument principally focuses upon his need for extra time to meet his special needs, and on a complaint of apparent bias which he makes against Douglas J. Those are the only relevant matters in the 13 page document: there is a reference to an estoppel preventing any defendant applying to strike-out the statement of claim or the claim, allegedly arising from an unconscionable exploitation of Mr Mathews’ disabilities, thereby preventing him from preparing his pleading. There is no evidence in the appeal record which even faintly suggests any such conduct, and Mr Mathews did not describe any in his written argument. His bare assertion of an estoppel in that document is not enough to show a reason for overturning the appealed orders.
Apprehended bias
[10] The apprehended bias is said to flow from the fact that a second cousin of Douglas J is married to a lawyer who once (in 1990) acted for a complainant in a matter in the Human Rights and Equal Opportunities Commission in which Mr Mathews was the respondent. Mr Mathews alleged that on or about 3 October 1990 that lawyer had telephoned him in respect of the complaint, representing herself as ringing on behalf of the Commission. When interviewed on 29 November 1990 the lawyer agreed that she had telephoned Mr Mathews on 3 October 1990 as described by Mr Mathews’, but denied impersonating a public officer; and stated that she had told Mr Mathews that she was ringing on the named complainant’s behalf, “in relation to Human Rights”. Her account was supported by the complainant’s, who told the police inquiring (in 1990) into Mr Mathews complaint of impersonation that the complainant had heard the telephone call that the complainant’s lawyer had made, and that that lawyer had not pretended to be anything other than the complainant’s legal representative. No charges were laid against anyone; that description should suffice to explain that Mr Mathews has no proper grounds for suggesting apprehended bias in Douglas J by reason solely of an incident occurring 15 years ago, not involving Douglas J personally in any way.
[11] The information Mr Mathews has relied on to raise an apprehension of bias does not suggest that Douglas J had even (or ever) known of the complaint Mr Mathews made in late 1990. Describing the coincidence of a rather distant relationship by marriage to a person about whom Mr Mathews had once complained to the police so long ago does not articulate any logical connection[1] between that relationship by marriage and the fear that Douglas J would not be impartial. The relevant test, repeated in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at 344, is whether a fair-minded lay observer might reasonably apprehend that Douglas J might not bring an impartial mind to the resolution of the question the judge was required to decide. There is no substantial ground for contending that Douglas J was disqualified from hearing and deciding that application, nor was it a case of real doubt in which it would have been prudent for Douglas J not to sit.[2] As also described in Ebner (at 348), Douglas J was assigned to hear the application by Mr Mathews for an extension of time in accordance with the practice prevailing in this Court, and did not select the case; and His Honour was not at liberty to decline to hear Mr Mathews’ application without good cause.
[12] I add that the now well-known test for what is called apprehended bias was recently re-approved in Antoun v The Queen [2006] HCA 2 at [1]. In that case Kirby J remarked at [34] that, in the oft repeated and oft applied words of Mason J in Re JRL; ex parte CJL (1986) 161 CLR 342, the High Court has “loudly and clearly” expressed a corrective against any view that a judge should too readily accept refusal[3] because a party has demanded it; and that in the administration of justice in Australia, parties do not normally have an entitlement to choose among the judicial officers who will conduct a hearing.
The appeal
[13] As to the merits of the appeal against the order by Douglas J dismissing the claim, it is noteworthy that the appellant has not sought to appeal the discretionary decision refusing his application for an extension of time to file a re-pleaded statement of claim. An appeal against that decision, just like an appeal against the decision of White J striking out the statement of claim, would face the difficulty that it would be an appeal from an interlocutory order on a matter of practice or procedure. Appellate courts are required to exercise particular caution to prevent interminable delays by encouraging appeals against orders of that nature by judges at first instance.[4] No error of principle has been shown in the reasons given by Douglas J when dismissing the leave application, and specifically the appellant has not challenged the remarks or findings by His Honour that Mr Mathews was unable to provide Douglas J with any realistic proposal for a period of time within which Mr Mathews could deliver an amended pleading.
[14] As to the merits of the order dismissing the claim, Mr Mathews had been refused an extension of time. Eleven weeks had passed since he was given leave to re-plead. Even now, when this appeal is heard, there is no suggestion that Mr Mathews has prepared a document which could be filed if his appeal were allowed, and if this Court granted an application it considered had impliedly been made for a further extension of time. Instead, Mr Mathews has filed only his largely irrelevant, written argument. He did not give either Douglas J or this Court any description of a time-table with which he might comply, or any suggestion of how to assist with his special needs. Instead, he complains of apprehended bias; and this Court was told on the appeal that Mr Mathews has simply filed a fresh claim, on 6 December 2005. That step makes this appeal pointless, and a waste of the respondents’ money.
[15] I add that Mr Mathews’ description of his special needs, the medical reports described, the discursive contents of the statement of claim, his failure to re-plead it in time, and the likewise discursive written argument, all suggest that he may be a person with impaired capacity as described in Schedule 2 to the Supreme Court of Queensland Act 1991 (Qld), namely one who is not capable of making the decisions required of a litigant for conducting proceedings. If that be a fair description of Mr Mathews, then rule 93 of the Uniform Civil Procedure Rules 1999 (Qld) would apply and result in his being unable to start or defend a proceeding except by a litigation guardian.[5] The appeal record does not disclose that anyone has suggested to date to Mr Mathews that he needs a litigation guardian; the reasons for judgment of White J[6] record that Her Honour was informed by counsel without objection that an electronic search (presumably as at 10 August 2005, the date of the hearing before Her Honour) revealed that Mr Mathews had commenced 16 matters in the Supreme and District Courts, and 30 in the Federal Court. That is a great deal of litigation for any one person to bring, let alone one who argues he cannot concentrate sufficiently to argue his case in person, who relies on opinion evidence that stress exacerbates his difficulties, and who told Douglas J that the trauma (of the proceedings) and anxiety was paralysing him.[7] He may not want to have a litigation guardian, but that is not the point.
[16] The appeal should be dismissed, with costs assessed on the standard basis.
[17] CHESTERMAN J: I agree with Jerrard JA.
Footnotes
[1] Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at 345.
[2] Ebner at 348.
[3] Refusal to submit to authority.
[4] Adam P Brown Male Fashions Proprietary Limited v Philip Morris Incorporated and Anor (1981-1982) 148 CLR 170 at 177; Ridolfi v Rigato Farms Pty Ltd [2001] 2 Qd R 455 at 460 per McPherson JA.
[5] But see Thomson v Smith [2005] QCA 446 at [7]; [42]-[43]; and [132]-[133].
[6] At AR 132.
[7] At page 11 of the Transcript of the proceedings on 1 November 2005.