Syddall v The National Mutual Life Association of Australasia Ltd
[2009] QCA 273
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- Syddall v The National Mutual Life Association of Australasia Ltd[2009] QCA 273
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Syddall v The National Mutual Life Association of Australasia Ltd[2009] QCA 273
Syddall v The National Mutual Life Association of Australasia Ltd[2009] QCA 273
SUPREME COURT OF QUEENSLAND
CITATION: | Syddall v The National Mutual Life Association of Australasia Ltd [2009] QCA 273 |
PARTIES: | ERIC ALBERT SYDDALL |
FILE NO/S: | Appeal No 5388 of 2009 |
DIVISION: | Court of Appeal |
PROCEEDING: | Application for Extension of Time |
ORIGINATING COURT: | Supreme Court at Brisbane |
DELIVERED ON: | 11 September 2009 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 31 August 2009 |
JUDGES: | Muir and Fraser JJA and White J |
ORDERS: |
|
CATCHWORDS: | APPEAL AND NEW TRIAL – APPEAL - GENERAL PRINCIPLES – RIGHT OF APPEAL – FROM INTERLOCUTORY DECISIONS – LEAVE TO APPEAL – where primary judge allowed respondent’s application for trial to be by judge sitting alone – where appellant filed five applications for leave to appeal from interlocutory orders of judges of the trial division including that order – where all appeals out of time – where appellant alleged improper case management, bad faith and bias – where appellant sought removal of the case manager – whether extension of time within which to appeal should be allowed Supreme Court Act 1995 (Qld), s 253 Uniform Civil Procedure Rules 1999 (Qld), r 474, r 748 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63, applied |
COUNSEL: | The appellant appeared on his own behalf |
SOLICITORS: | The appellant appeared on his own behalf |
- MUIR JA: On 22 May 2009 the appellant filed five applications for leave to appeal from interlocutory orders of judges of the trial division. The appellant also filed notices of appeal in 5388/09 and 5404/09. That was done on 12 June 2009. No appeal has been filed within time, although the appeal in 5402/09 would have been in time had a notice of appeal been filed instead of an application for leave to appeal. As the appellant wishes to appeal against orders of judges of the trial division of the Supreme Court, no leave to appeal was required. I will proceed by overlooking the appellant's procedural error and treat each application for leave to appeal filed outside the 28 day appeal period prescribed by r 748 of the Uniform Civil Procedure Rules 1999 (Qld) as an application for extension of time within which to appeal.
- The dates of the orders appealed against in each of the appeals are as follows:
Application/ Appeal No. | Date of Order | Orders against the appeal as made |
| 5388/09 | 19.6.07 | That the appellant be examined by an orthopaedic surgeon (1); that the respondents deliver an amended defence by 10 July 2007 (4); the appellant deliver an amended reply by 31 July 2007 (5); the appellant pay the respondent's costs of the applications filed 5 June 2007 and 6 June 2007 (7). |
| 5401/09 | 15.4.09 | The proposed application by the appellant for the joinder of further defendants be filed and served by 30 April 2009 and listed for hearing in the Supervised Case List on 5 June 2009 (1) and the matter be otherwise reviewed on 5 June 2009 (2). |
| 5402/09 | 23.5.09 | Pursuant to r 474 the trial of the proceeding be without a jury (1); and the costs be reserved (2). |
| 5403/09 | 3.9.07 | The respondent's costs of the appellant's application filed 5 June 2007 be fixed in the sum of $7,531.20 (1); and the respondent's costs of its application filed 6 June 2007 be fixed in the sum of $6,047.60. |
| 5404/09 | 27.4.09 | The appellant's application be refused (1); the appellant pay the respondent's costs of the application (2); the appellant's application filed 27 April 2009 be adjourned for hearing in the Supervised Case List on 5 June 2009 (3). |
In 5404/09 an order is also sought that "the case manager has no further involvement in the matter."
- The nature of the litigation was explained by Daubney J in reasons given by him in the subject proceeding on 23 May 2008:[1]
"[1] Mr Syddall, who is self-represented in this proceeding, has sued the defendant insurer seeking liquidated damages in excess of $3.1 million and further compensation for losses which he claims have been suffered by him and his family.
[2] The liquidated damages are for sums which Mr Syddall claims are due to him under a disability insurance policy issued by Australian Casualty and Life ('AC & L') (the obligations of which insurer were assumed by the defendant under a scheme of arrangement approved by the Federal Court in November 2002). Mr Syddall first took out a disability policy with AC & L in 1993. That policy was varied, or replaced, in 1995. Mr Syddall contends that a new policy issued in 1995. Mr Syddall asserts that he suffered a total disability for the purposes of the policy on 27 November 2000. In January 2001 he made claim under the policy. AC & L paid benefits under the policy for several months until May 2001 when, after receiving certain medical advice, it declined the claim. Mr Syddall contends that he has been completely disabled since that time. In September 2006, the defendant insurer purported to cancel the disability policy, and the validity of that cancellation is contested by Mr Syddall. By a letter dated 25 July 2007, the defendant insurer purported to avoid the policy, pursuant to s 29 of the Insurance Contracts Act 1984 (Cth), on the grounds of fraudulent misrepresentations and non-disclosures. These allegations, and the insurer's purported avoidance of the policy, are strongly contested by Mr Syddall."
- Three of the "appeals", 5388/09, 5403/09 and 5402/09, were many months out of time, and the delay has not been satisfactorily explained. The explanations, such as they are, are not supported by any sworn evidence. In those circumstances, there is no good reason why they should be addressed by this Court. That is particularly so in relation to 5388/09 as the subject matter of the orders has long been overtaken by events. Appeal 5403/09 suffers from the added, and fatal, deficiency that it is an appeal from "an order as to costs only" without the leave of the judge making the order. That leave is a pre-requisite for a valid appeal from such an order.[2] However, as some of the grounds of these appeals overlap with the grounds in the remaining two appeals, it is convenient to address them.
Bad faith and bias
- I will first consider the allegations of bad faith and bias. The only matter in which bias is not raised as a ground of appeal is 5404/09, but allegations of bias are made in respect of that appeal in the appellant's outline of argument.
- The outline of argument makes the following relevant allegations:
"(o)The case manager has shown a bias against the plaintiff and/or towards the defendant and additionally holds a direct and/or further familial relationship with the defendant via himself and/or a number (sic) family members holding shares in the defendant (AXA trading as…) and in combination with and which adds to the perceived business mentality but not at the matter outset.
…
(q)… As to the purported application to recuse, the plaintiff denies was made, the case manager could have responded in kind by email with a directions order made without the necessity of appearance and costs for both parties [UCPR r. 576(2)] but the refusal, delaying and frustrating of the plaintiff is part of the bias against and perceived by plaintiff.
(i)Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337 … especially if holdings are said to be insignificant to the judicial officer - the interest should be disposed of … [162] and at [163]."
- Referring to more specific allegations, it is contended that:
"(s)On the aforesaid premises the case manager:
- Failed to take relevant consideration of the situation into account and made an exercise of discretionary power in bad faith … and/or bias.
- Took irrelevant considerations into account and made an exercise of a personal discretionary power at the direction or behest of the defendant without regard to the merits …"
- Similar allegations to those in paragraphs [6] and [7] are to be found in the outline in respect of Appeals 5401/09, 5402/09, 5388/09 and 5403/09.
- In NAAG of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs,[3] Allsop J, said[4] in words which are pertinent to the appellant's allegations:
"It is not appropriate to attempt a comprehensive definition of the phrase 'bona fide'. Dixon J in R v Murray; Ex parte Proctor, above at 400, made it clear that the phrase involves an 'honest' attempt to deal with the subject matter conferred to the executive. Bad faith is not just a matter of poor execution or poor decision-making involving error. It is a lack of an honest or genuine attempt to undertake the task in a way meriting personal criticism of the tribunal or officer in question. Finn J in Daihatsu Australia v FCT (2001) 184 ALR 576 at [36] referred, by way of exemplification, to the exercise of a power knowingly for an improper purpose or where no attempt is made, knowingly, to act conformably with duty. Heerey J in SBAP v Refugee Review Tribunal [2002] FCA 590; BC200202281 at [47] said that the phrase 'bona fide' involved a serious question involving personal fault on the part of the decision-maker going beyond error of fact or law. It must be clearly identified and proved. I agree."
- In this case, the orders giving rise to the appellant's complaint are all orders which another judge, acting reasonably, could have made on the same facts. There is nothing about the orders under appeal, considered separately or together, which is suggestive of a failure by the judge making them to determine the matters before him honestly or genuinely or for a proper purpose. No considerations are identified by the appellant which offer any sensible support for his allegations. There is no substance in them.
- Although it is not perfectly clear, it seems that the appellant is alleging both actual and apprehended bias. The basis for the apprehended bias allegation and also, I think, for at least some allegations of actual bias, is the primary judge's decision not to recuse himself, on the appellant's application, in that regard. The application was based on the primary judge's much earlier disclosure that the primary judge and his wife between them held "a few hundred shares" in AXA Asia Pacific Holdings Limited which was the holding company of the respondent, The National Mutual Life Association of Australasia.
- As was pointed out in paragraph [19] of the joint reasons in Ebner v Official Trustee in Bankruptcy:[5]
"Judges have a duty to exercise their judicial functions when their jurisdiction is regularly invoked and they are assigned to cases in accordance with the practice which prevails in the court to which they belong. They do not select the cases they will hear, and they are not at liberty to decline to hear cases without good cause. Judges do not choose their cases; and litigants do not choose their judges. If one party to a case objects to a particular judge sitting, or continuing to sit, then that objection should not prevail unless it is based upon a substantial ground for contending that the judge is disqualified from hearing and deciding the case."
- The following test was propounded in the joint reasons for the circumstances in which a judicial officer is disqualified from hearing a matter on the grounds of apprehended bias:[6]
"Where, in the absence of any suggestion of actual bias, a question arises as to the independence or impartiality of a judge (or other judicial officer or juror), as here, the governing principle is that, subject to qualifications relating to waiver (which is not presently relevant) or necessity (which may be relevant to the second appeal), a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide. That principle gives effect to the requirement that justice should both be done and be seen to be done, a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial. It is convenient to refer to it as the apprehension of bias principle." (footnotes deleted)
- AXA had no direct interest in the outcome of the litigation. Although the value of the subject shares does not appear to have been stated in the course of argument at first instance, as AXA is a public listed company the market value of its share can be ascertained readily. It is inconceivable that the outcome of the proceeding or matters which might emerge in the course of it could have a material bearing on the market value of the subject shares. To adapt the language of the test propounded in Ebner, "A fair-minded lay observer would not reasonably apprehend that the judge in question might not bring an impartial mind to the resolution of the question he would be required to decide." Also, as was pointed out in the joint reasons,[7] "There is a difference between having an interest in the outcome of a case, and having an interest in a party to the case." Here, the judge did not even have an interest in a party to the case. There is no substance in this complaint.
- Nor is there any substance in any allegation of actual bias. Those allegations appear to have been made merely because decisions were made which did not find favour with the appellant.
- Burchett J observed in Sun Zhan Qui v Minister for Immigration and Ethnic Affairs:[8]
"… a finding of bias is a grave matter, different in kind from a finding of mere error, or even wrong-headedness, whether in law, logic, or approach. It would be a sad reflection on administrative tribunals, and certainly on courts which exist in the name of justice, if it were to be seen as other than exceptional."
- There is not the faintest evidence to support the conclusion that either of the judges against whom the allegations are levelled in any way pre-judged matters determined by him, or approached "the issues in (the) case otherwise than with an impartial and unprejudiced mind"[9] or showed a disposition not to decide issues fairly, impartially and within an open mind free of prejudice.
The orders of 23 May 2008 in 5402/2009 – trial before a judge rather than by jury
- The appellant did not seek to challenge the merits of Daubney J's order under r 474 of the Uniform Civil Procedure Rules that the trial of the proceeding be without a jury. His complaints were "improper case management", "bad faith", and/or "bias". Other complaints were that "the hearing of separate questions should have been dealt with before the jury matter" and that the appellant "has been refused the ability to apply to the trial division and the matter of separate questions has been deferred now for about 12 + months." In his outline of submissions, the appellant stated:
"By May 2008 the plaintiff identified issues that would drastically reduce trial time and overall cost to both parties and the burden on the court contrary to the defendant's expectation of up to a 15 day trial and are topics that should have been decided in excess of a year earlier. The court should have deliberated these points before considering trial complexity and whether it was appropriate to order a trial without jury. These matters are:
- Contract of insurance – contractual limitations.
- Occupation of plaintiff at time of injury.
- Need for insurer to show involuntary unemployment in three month increments.
- Family Trust income post 27.11.2000.
- Evidence form; r 367 3(d)."
An explanation of each of these matters is then advanced.
- Whether or not the appellant seeks a separate trial of any of these matters, it was appropriate for the question of whether there should be a trial by jury to be considered and disposed of. An application in that regard was brought and the primary judge was obliged to consider it. There was ample justification for the order dispensing with trial by jury. On the hearing of that application, senior counsel for the respondent made submissions which included the following:
"The pleadings are long and complex. They raise many issues. A number of the issues will involve prolonged examination of documents. Those issues are:
- Did [the appellant] misrepresent his net income in his January 1993 application for insurance?
- Did [the appellant] fail to disclose and/or misrepresent his medical history in his January 1993 application for insurance?
- Did [the appellant] misrepresent his net income in his June 1995 application?
- Did [the appellant] misrepresent his occupation in his June 1995 application?
- Did [the appellant] fail to disclose and/or misrepresent his medical history in his June 1995 application?
- Was [the appellant] unemployed for more than 12 months between mid-1995 (when the policy commenced) and November 2000 (such as to bring the policy to an end pursuant to cl. 29)?
- What was [the appellant's] occupations at the time of the alleged disablement on 27 November 2000?
- Was the alleged injury on 27 November 2000 such as to cause [the appellant] to be unable to perform at least one of the duties of each of his occupations?
- Has [the appellant] engaged in any occupation since the time of his alleged disability in November 2000 (which under cl. 2 would end total disablement)?"
- It was submitted also that "the trial will involve medical and accounting issues that cannot be conveniently considered and resolved by a jury." There is considerable reason for doubting the ability of the appellant to state his case and give his evidence precisely and logically with regard to relevant legal principles. That may be gleaned from the transcripts of proceedings below which were in the Record and from the submissions made by the appellant on the appeals. Putting aside the risk of miscarriage of a jury trial, it appears to me that the arguments in favour of the trial being before a judge rather than a jury greatly outweighed the arguments to the contrary. The degree of interlocutory skirmishing that has taken place and the appellant's resistance to orders designed to progress the litigation do not suggest that the conduct of the trial is likely to proceed smoothly. The complaints in respect of this matter lack substance.
The improper case management grounds
- Insofar as the grounds of appeal seek to challenge decisions on questions of practice and procedure, and that is what the appeals are concerned with, the following observations of Jordan CJ in In re the Will of FB Gilbert (dec'd)[10] are apposite:
" … it is only in the most exceptional circumstances that a Court of Appeal could regard itself as justified in interfering with the exercise of a discretion by a judge of first instance - only where he has misapplied the law, or his order is likely to lead to a miscarriage of justice: Evans v Bartlam. In this connection, however, I am of opinion that, as was pointed out by this Court in In re Ryan, there is a material difference between an exercise of discretion on a point of practice or procedure and an exercise of discretion which determines substantive rights. In the former class of case, if a tight rein were not kept upon interference with the orders of Judges of first instance, the result would be disastrous to the proper administration of justice. The disposal of cases could be delayed interminably, and costs heaped up indefinitely, if a litigant with a long purse or a litigious disposition could, at will, in effect transfer all exercises of discretion in interlocutory applications from a Judge in Chambers to a Court of Appeal. But an appeal from an exercise of a so-called discretion which is determinative of legal rights stands in a some-what different position. In this class of case, too, a Court of Appeal submits itself to self-imposed restraints, but restraints which, though strict, are some-what less stringent than those adopted in matters of practice or procedure.' (footnotes deleted)"
- The orders appealed against all concern exercises of discretions by primary judges in relation to questions of practice or procedure. None of the discretions exercised determined substantive rights. It has not been shown that any primary judge, in making any of the orders, acted on a wrong principle of law or mistaken material fact, or that he took into account something irrelevant, or failed to take into account something relevant. In short, no appellable error has been demonstrated.
Conclusion
- Senior counsel for the respondent informed the Court in an interlocutory hearing that the trial of the proceeding might take in excess of 10 days. I would not quarrel with that as a reasonable estimate of the length of the trial in the absence of careful consideration by the lawyers involved in the trial and the judge case managing the proceeding of ways in which issues can be clarified, relevant evidence identified and presented, and the trial shortened. Only the simplest of trials should take place without the implementation of measures such as these.
- One obstacle to shortening the trial was said to be a foreshadowed attack on the credit of the appellant on a range of issues. But challenges to credibility should not necessitate the cross-examiner's exploration with the witness of every piece of evidence, however slight, which it is thought might assist the process of impugning the witness's credit. Such forensic exercises are more effective if the attack on credibility is not conducted like a commission of inquiry, where there is a tendency to explore and sift minutae, but is confined to questioning which elicits damaging admissions, exposes inconsistencies in the witness's evidence incapable of innocent explanation and which otherwise makes obviously telling points. On the material before this Court, which includes the detailed outline of submissions referred to earlier, I am unable to accept the cross-examination of the appellant should, or should be permitted, to take more than two days.
- Another possibility which should be explored is whether there are issues on liability which would take no more than two days to try, the resolution of which would either resolve the proceeding or greatly shorten it.
- For the above reasons, each application for leave to appeal, or appeal, as the case may be, must be dismissed with costs.
- I would order that the applications for leave to appeal in 5401/09, 5402/09, 5403/09, and that the applications and the appeals in 5388/09 and 5404/09 be dismissed with costs.
- FRASER JA: I agree with the orders proposed by Muir JA and with his Honour’s reasons for those orders.
- WHITE J: I have read the reasons for judgment of Muir JA and agree with his Honour that each application for leave to appeal or appeal should be dismissed with costs.
Footnotes
[1] Syddall v National Mutual Life Association of Australasia Limited [2008] QSC 101.
[2] Supreme Court Act 1995 (Qld), s 253.
[3] (2002) 195 ALR 207.
[4] (2002) 195 ALR 207 at 215.
[5] (2000) 205 CLR 337 at 348.
[6] Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at 344.
[7] Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at 357.
[8] (1997) 151 ALR 505 at 555.
[9] Re JRL; Ex Parte CJL (1986) 161 CLR 342.
[10] (1946) 46 SR (NSW) 318 at 322 – 323.