Ashton v Dorante[2012] QCA 175

SUPREME COURT OF QUEENSLAND

[1] MARGARET McMURDO P: I agree with White JA's reasons for refusing the applications to adduce evidence; for refusing the application for contempt; and for dismissing the appeal with costs.

[2] WHITE JA: The appellant and second named plaintiff[1] sought summary judgment of their proceedings in the Trial Division in Cairns by an application filed 21 September 2011.  By an application filed 7 November 2011 the respondents, who are the defendants in the proceedings, applied for orders striking out the amended statement of claim and for removing the State of Queensland as a party.  Both applications were heard on 16 November 2011 before Henry J. 

[3] On 13 May 2011 in the Supreme Court at Cairns, Jones J had heard an application for summary judgment, alternatively an application for an order striking out the amended statement of claim[2], filed by the respondents and an application for summary judgment and other relief filed by the appellant and second named plaintiff.  On 9 September 2011 his Honour dismissed their applications and the respondents’ application for summary judgment.  He gave leave to file a further amended statement of claim within 28 days and ordered the plaintiffs to pay 50 per cent of the respondents’ costs.  There was no appeal from those orders.

[4] The appellant, Geoffrey John Ashton, filed an amended statement of claim on 21 September 2011 naming only himself and not including Cynthia Ashton as co-plaintiff.  Neither did he include the second defendant, State of Queensland, in the title.  However, in an application for summary judgment filed that day, Mr Ashton named Mrs Ashton and the State of Queensland in the titles to the documents.

[5] On 21 October 2011 Henry J made certain orders and adjourned the application for summary judgment to 16 November 2011 to enable the defendants to file an amended defence.

[6] His Honour dismissed the application for summary judgment and struck out the amended statement of claim with leave to file a further amended statement of claim by 27 January 2012.  Failure to do so or to comply with the rules of pleading would result in the defendants having liberty to apply to strike out the whole proceeding.  His Honour ordered that the second named plaintiff and the State of Queensland be added to the amended statement of claim.  He ordered that the plaintiffs pay the defendants’ costs.

[7] Since filing his notice of appeal on 3 January 2012 Mr Ashton has:

● Filed an application for punishment for contempt by the first and second defendants;

● Filed two applications to adduce evidence on the appeal; and

● At the appeal hearing made an oral application to adduce further evidence.

[8] Despite being encouraged by Henry J to seek legal representation Mr Ashton appears undesirous of doing so.

[9] Before turning to Henry J’s reasons for making the orders and considering the numerous grounds of appeal which are said to arise from those reasons, some background and elaboration of the facts may make the issues more intelligible.  Affidavits were filed below by Mr Ashton, Mr Dorante, the first defendant, and Mr Frank Conomo, an employee of the Cassowary Coast Regional Council, whose employment includes managing the daily operation of the Johnstone River Boat Harbour.  The recitation of these matters should not be read as expressing any acceptance or rejection of them as there are many issues of fact in contention.

Background

[10] The first defendant, Mr Dorante, is a Marine Safety Officer and a Shipping Inspector authorised under the Transport Operations (Marine Safety) Act 1994 (“the Act”).  As part of his duties Mr Dorante monitors and audits business operators under Pt 5 of the Act and assists harbour masters to exercise their powers under Pt 7 by delegation to him.  By virtue of s 161(1) a shipping inspector is not civilly liable for an act or omission done honestly and without negligence.  If civil liability does not attach to a shipping inspector because of that provision, liability, if any, attaches to the State.

[11] Prior to the commencement of the commercial fishing season in 2007, in the course of his work, Mr Dorante noticed a fishing trawler berthed in the Johnstone River.  That vessel did not appear to bear any identifying marks.  Mr Dorante subsequently identified it as FV Baarrook, a 17.5 metre trawler under 3B registration.  The database used by Maritime Safety Queensland recorded that the vessel was registered in the name of Weldis Pty Ltd care of a post office box number at Innisfail.  Mr Dorante sent a monitor letter to that address on 2 September 2008.  Subsequently he received a telephone call from Mr Ashton asserting his ownership of the Baarrook.  Mr Dorante informed Mr Ashton that he wished to conduct an inspection on board the Baarrook and would arrange a monitoring date in October.

[12] On 21 October 2008 Maritime Safety Queensland in Cairns received an anonymous letter allegedly written on behalf of certain fishermen in Innisfail about the seaworthiness and safety of the Baarrook.

[13] Mr Dorante arranged a monitoring inspection of the vessel and, according to Mr Dorante, there was agreement with Mr Ashton that Maritime Safety Queensland could board and inspect the vessel on 28 October 2008.

[14] Mr Dorante noted from the file that the Baarrook had been involved in a marine incident on 18 August 2006 and sank in the Johnstone River.  It remained there until it was refloated about a month later.  A report about this incident had been made dated 24 August 2006 by Mr Jamie Byrne (Weldis Pty Ltd), the previous owner.  The last certificate of survey for the Baarrook in the files of Marine Safety Queensland, according to Mr Dorante, is dated 21 September 2003 in the name of Weldis Pty Ltd.  The certificate, on its face, expired on 21 September 2004.

[15] On 28 October 2008 Mr Dorante and a colleague boarded the Baarrook tied up at a wharf in the Johnstone River at Innisfail and conducted an inspection.  Mr Dorante observed Mr Ashton and three other male persons on board the vessel.  Mr Dorante maintains he was granted permission to come aboard and carried out the monitor inspection of the vessel.  Mr Ashton denies that permission was given or that a proper inspection was carried out.  Mr Dorante noted that the vessel appeared operational and was undergoing maintenance and repairs.  He observed that there was a lack of safety equipment on board and identified, in his affidavit, numerous deficits about the vessel.  He conducted an inspection below decks although was hampered by poor light.  One of the photographs which he took appeared to show extensive water ingress into the steering compartment.  There were no records for the vessel which Mr Ashton allegedly indicated to him had been lost when the vessel sank.

[16] Mr Dorante formed the belief that the Baarrook could not be operated safely and concluded that the whole of the ship was to be surveyed by an accredited marine surveyor before the opening of the next fishing season in March 2009.  He completed a shipping inspector’s written direction pursuant to s 172(2) of the Act directing that the Baarrook could not be operated safely and that the vessel was required to be surveyed by an accredited marine surveyor before the close of business 1 March 2009.  Mr Dorante deposed that he explained the effect of those documents to Mr Ashton and requested that he sign them as the ship’s master.  He refused to do so.

[17] Although the direction identified that Mr Ashton could seek a review he did not, apparently, do so.  Neither did he renew the registration of the vessel although he maintained that it was seaworthy and compliant.

[18] Mr Ashton alleged in his affidavit filed 21 September 2011 that:

● the Baarrook was tied up at his private mooring which had been allocated to him by the Minister for Natural Resources “for the foreseeable future”;

● he refused entry to the Baarrook to Mr Dorante and his colleague when they requested to come aboard;

● Mr Dorante refused to record the safety equipment fitted to the Baarrook which Mr Ashton pointed out to him;

● the photographs taken on board by Mr Dorante and his colleague were fakes;

● the Baarrook was not involved in a marine incident;

● the Baarrook was in survey because the vessel had been “grandfathered” in perpetuity as a consequence of certain provisions of the Act and subsequent amending legislation;

● the directive signed by Mr Dorante prevented him from moving the Baarrook to hardstand to complete repairs which he estimated would then have taken 18 months.

[19] In other material and in his oral submissions on appeal, and ventilated below, Mr Ashton maintained that he is the victim of a conspiracy to destroy his business interests and, indeed, his life, dating from an incident in 1959 which has come to involve police, politicians, regulators and many individuals.

[20] Mr Frank Conomo, whose affidavit was read below, deposed that there are no private rights of ownership or occupation over the wharf where the Baarrook has been tied up for the past several years.

The pleadings

[21] The amended claim claimed $1.5 million for the loss of the Baarrook and “years of income from fishing”.  The amended statement of claim dated 21 September 2011 makes the following allegations:

1. The plaintiff is a fisher and boat builder with 55 unblemished years in the industry.

2. Reference to son.

2. (Second paragraph 2).  Mention of the ship’s monitoring notice in September 2008.

3. The Baarrook was to be monitored in September.

4. The monitoring notice “contained a threat” - failure to respond may incur a boarding of the vessel.

4. (Second paragraph 4).  The plaintiff telephoned Mr Dorante on three occasions in October.

5. The plaintiff refused Mr Dorante consent to enter on his “private mooring” allocated by the Queensland Minister for Natural Resources.

6. Sets out part of s 162 of the Transport Operations (Marine Safety) Act 1994 relating to the powers of shipping inspectors.

7. Reference to UCPR r 149(1)(e)(2) pleading a conclusion of law that Mr Dorante’s entry was invalid and the direction invalid.

8. Provenance of Baarrook.

9. Baarrook “accepted” into the transitional provisions of the Transport Operations (Marine Safety) Regulation 2004, s 227.

10. Consistent record of registration until deregistered in October 2009.

11.Baarrook “was grandfathered” under s 191(5)(b)(ii) of the Transport Operations (Marine Safety) Regulation 1995 “and issued for an unlimited term”; s 70(4)(a) ensures the compliance is in “perpetuity”.

12.Sets out parts of s 70.

13.Sets out s 191 of the Transport Operations (Marine Safety) Regulation 1995.

14.Paragraphs 9-14 (presumably of the pleading) concern provisions under the legislation, are a conclusion of law “to the material fact that on 28 October 2008 Baarrook had a Queensland Certificate of Registration and was fully compliant with Certificate of compliance and survey in perpetuity”, citing r 149 of the UCPR.

15.On 28 October 2008 at about 9.00 am Mr Dorante and another boarded Baarrook pursuant to a monitoring notice; the plaintiff was on fishing ship Norsca.

16.Baarrook was at its private mooring, afloat not operational, being repaired and the plaintiff had refused entry to Mr Dorante; s 162 of the Act is mentioned and an allegation that Mr Dorante was guilty of trespass and his direction invalid.

17.In his affidavit Mr Dorante agreed that the plaintiff refused consent to enter the plaintiff’s place; the provisions of s 180 of the Act set out; following a conclusion that Mr Dorante was illegally on Baarrook and accordingly the order for survey was invalid.

18.Section 181 of the Act partially set out; Mr Dorante did not have consent to enter on 28 October 2008.

19.Mr Dorante inspected Baarrook for about 20 minutes; he had a small camera, was offered lighting which he refused, briefly inspected below decks and made entries into two documents.

20.Mr Dorante was shown safety equipment, fire fighting equipment, navigational equipment, radio equipment, a registration certificate, charts, medical supplies, some new documents and an electrical certificate – “he refused to record it”.

21.Mr Dorante failed to fill out the direction and ship inspection record in full and allegedly committed a criminal offence pursuant to s 92 and s 94 of the Criminal Code Act 1899 (Queensland).

22.Further reference to those provisions.

23.Mr Dorante and his colleague departed after 20 minutes.

24.The equipment which Mr Dorante refused to record was immediately photographed and four witnesses have signed affidavits verifying the equipment was on Baarrook.

25.On 28 October 2008 Mr Dorante gave a written direction “Ship cannot be operated safely” which “effectively tied The Plaintiff’s fishing ship Baarrook to its mooring. … [I]t has been there almost 3 years”.

26.The penalty for moving Baarrook “while the direction is on it if a worker is injured is $5,000,000.00 or 2 years jail”.

25.(Second paragraph 25).  The plaintiff immediately contacted Maritime Safety Queensland requesting to have the direction removed on numerous occasions.

26.(Second paragraph 26).  The direction prevented Baarrook being moved to hardstand to complete repairs and survey.

27.Affidavit of Mr Dorante “is evidence that he acted with intent to cause the Plaintiff damage and loss. … [H]e acted dishonestly and with negligence”.

28.Section 161 of the Act set out concerning the protection from liability of a shipping inspector.

The plaintiff claims:  “payment for value of Baarrook $1,500,000.00”.

The primary judge’s reasons

[22] Henry J disposed of a number of preliminary and constitutional issues raised by Mr Ashton some of which I will discuss when considering the grounds of appeal.  His Honour then turned to Mr Ashton’s application for summary judgment.  His Honour said:

“It is common ground that this case involves not only contests about the proper interpretation to be given to statutory provisions but also a significant contest of credibility in respect of the events at the heart of the litigation.  Such contests of credibility need to be resolved by a trial and cannot be resolved in an application of this kind.”[3]

For that reason, his Honour concluded that Mr Ashton could not satisfy the requirements of r 292 of the Uniform Civil Procedure Rules (UCPR). 

[23] Additionally, his Honour concluded that the amended statement of claim failed to disclose any reasonable cause of action.  His Honour said:

“It is impossible to assess whether the materials filed in this summary judgment application prove the applicant even has a case to be defended because the applicant is yet to properly identify through the pleadings what the case is.”[4]

[24] His Honour then considered the defendants’ application for strike out pursuant to r 171.  That rule provides, relevantly:

“… if a pleading … discloses no reasonable cause of action … [t]he court … may strike out all or part of the pleading …”.

[25] After setting out the defendants’ bases for striking out the pleading his Honour said:

“The Amended Claim states the plaintiff claims [$1,500,000] “for the loss of his Fishing Ship Baarrook and years of income from fishing”.  The Amended Statement of Claim alleges in effect that the first defendant, Mr Dorante, a shipping inspector, unlawfully inspected Mr Ashton’s vessel on 28 October 2008 and then, pleads:

“25.On the 28 October 2008 the Defendant gave a written direction “Ship cannot be operated safely” the Direction effectively tied the Plaintiff’s fishing ship Baarrook to its mooring it has been there almost three years.”

There follow [sic] an allegation in effect that the direction, which is said in paragraph 17 to be invalid, meant Mr Ashton could not move the vessel and could not move it to complete repairs.  A proper foundation for that allegation is not clearly identified.  However much more problematically it does not follow any pleading of a loss suffered, let alone how the loss is said to be suffered, in consequence of the allegedly unlawful entry and or invalid direction.  The pleading concludes, “The plaintiff claims the following relief:  payment for value of Baarrook $1,500,000.00”.  There is simply no causative link pleaded between that “relief” and any of the matters pleaded.”[5]

[26] His Honour concluded that the amended statement of claim disclosed no reasonable cause of action; the defendants were entitled to have a case properly pleaded; and the “plaintiffs’ problem should not become the defendants’ problem”.[6]  His Honour observed, correctly, with respect, that if the cause of action was not identified with some precision at the threshold it would result in an inability to have a proper trial.

Grounds of appeal

[27] The appellant has set out 23 grounds of appeal in his notice of appeal.  Many are assertions of fact or comment – numbers 3, 4, 6, 7, 8, 10, 13, 14 and 19.  Grounds 9 and 11 concern complaints about Jones J’s conduct of the proceedings in May 2011 and his “refusal” to make himself available to hear the subject application which are irrelevant to this appeal.  Ground 12 concerns the fact that Henry J heard the application instead of Jones J.  Ground 15 is a comment but an aspect of the complaint in ground 12. 

[28] Ground 16 refers to Henry J’s refusal to revisit Jones J’s costs order of September 2011 and may be articulated as an erroneous refusal to exercise jurisdiction. 

[29] Grounds 16, 17, 20 and 21 may be described as an application to have the orders below set aside because of Henry J’s actual and apprehended bias.

[30] The second ground 20 which reads “The Appellant’s motion for mistrial was refused by Judge Henry J” might be an assertion that the order striking out the amended statement of claim was not justified because the judge ought not to have entertained the strike out application.  Either his Honour should have proceeded to hear and determine the proceeding finally on 16 November 2011 or to have set the matter down for trial on the existing state of the pleadings.

[31] The second ground 21 complains about the re-instatement of the second named plaintiff.

Discussion

Applications about evidence

(i)Oral application to adduce evidence at hearing of appeal

[32] At the appeal hearing Mr Ashton sought to tender further evidence as proof of the conspiracy against him and his property.  It includes photographs of Mr Ashton showing bleeding wounds to his left arm and the transcript of committal proceedings in the Magistrates Court at Innisfail on 2 February 2007 considering a Commonwealth charge against Mr Ashton for using a telephone between 21 and 26 March 2006 for harassment contrary to s 474.17(1) of the Criminal Code (Cth).  Although the transcript (84pp) reveals that the Magistrate committed Mr Ashton to stand trial in the District Court at Innisfail, a letter dated 30 May 2007 from the Commonwealth DPP indicates that the Commonwealth DPP had decided not to present an indictment against him.

[33] The court provisionally received this material at the hearing, reserving its decision as to whether it should be received for consideration on the appeal.  Counsel for the respondent opposed receipt on the ground that it was irrelevant to the appeal.

[34] If, which I doubt, Mr Ashton’s allegations of conspiracy are relevant to any issues on the appeal, he has articulated them below, they are in the transcript of his submissions before Henry J on 21 October 2011 and constituted the major part of his oral submissions on this appeal.  The material is not relevant to the grounds of appeal arising out of the orders and reasons made by Henry J and ought not to be received as evidence on this appeal.

[35] I would refuse that application

(ii)Application to adduce evidence filed 27 April 2012

[36] This application concerns a refutation of the matters contained in Mr Conomo’s affidavit filed below on the day of the hearing before Henry J concerning the status of the wharf where the Baarrook was tied up.  As well as including the letter from the Senior Policy Advisor to the then Minister dated 26 March 2008 about the status of the wharf, Mr Ashton makes fresh allegations under the heading of “Nature of the Evidence to be Adduced” that the respondents and their solicitors conspired with the regional council mayor, the CEO and Mr Conomo to falsify Mr Conomo’s affidavit and did so with the intent to pervert the course of justice.  In the application Mr Ashton seeks an order that the defence of the respondents be dismissed because it is tainted and an award of $1.5 million damages for the market value of the Baarrook.

[37] Clearly this is not relevant evidence for the issues under appeal and, at best, concerns matters which may be ventilated at a trial of the proceedings.

[38] This application should be refused.

(iii)Application to adduce evidence filed 14 May 2012

[39] This application concerns Mr Ashton’s “authorities” to support his assertion that the Baarrook at all relevant times had a current Queensland certificate of registration and that the Baarrook was compliant such that a certificate of survey could have issued.  Some of that material has already been placed before the court.  The further affidavit contains more allegations of conspiracy against Mr Ashton’s life and allegations of attempts by the respondents to pervert the course of justice by denying that the Baarrook was in survey or entitled to a current certificate of survey.

[40] Although some time was devoted at the oral hearing by Mr Ashton and the court in going through the legislative provisions it is unnecessary to do so here since these are matters which may be pleaded appropriately.  Mr Ashton has made reference to most of these provisions in his amended statement of claim that the Baarrook was not in want of a current certificate of survey (having been “grandfathered”) and that Mr Dorante’s conduct was negligent and dishonest.

[41] This material, to the extent that it is not already before the court, is not relevant to the appeal.

[42] The application should be refused.

Grounds of appeal

Ground 1 – failure to give equitable relief

[43] It seems that by referring to s 244 of the Supreme Court Act 1995 Mr Ashton complains that Henry J did not hear and determine Mr Ashton’s application or, conversely, the respondents’ application to strike out, according to law.  Neither Mr Ashton’s written outline of argument nor his reply to the respondents’ outline of argument address this issue.  He does not identify any error in the primary judge’s process of reasoning that this was an inappropriate case for summary judgment even had the cause of action been appropriately articulated in the amended statement of claim.  Nor does Mr Ashton address any argument to his Honour’s conclusion that the pleadings do not adequately identify the case which he wishes to bring. 

[44] This ground must fail.

Ground 2 – accepted respondents’ false and misleading evidence

[45] Henry J was clear that an application for summary judgment was inappropriate because there were numerous contested issues of fact.  Mr Ashton himself readily agreed that that was the case.  It was not appropriate to embark upon a construction of the legislation without some foundation of findings of fact.  The test for an application for summary judgment, expressed in r 292(2)(a), is that the court must be satisfied that a defendant has no real prospect of successfully defending all or part of the plaintiff’s claim and that there is no need for a trial of the claim or part of the claim.  There was no error in his Honour finding that this was not a suitable case for summary judgment if only because of the starkly different accounts of 28 October 2008 by Mr Ashton and his witnesses and Mr Dorante.

[46] This ground must be rejected.

Grounds 10, 11, 12, 13, 14 and 15 – Jones J’s position

[47] There is some contradiction in these grounds.  On the one hand Mr Ashton complains that Jones J ought to have excused himself because of perceived bias and on the other he complains that his Honour ought to have heard the present application for summary judgment as he had embarked upon the hearing.

[48] Section 23 of the Supreme Court of Queensland Act 1991 provides:

“(1)A judge must retire on reaching 70 years of age.

(2) Despite subsection (1), a judge who, before retiring, whether or not because of subsection (1), starts the hearing of a proceeding remains a judge for the purpose of finishing the proceeding.”

It was Mr Ashton’s contention below that as a consequence of s 23(2) Jones J, having heard the earlier applications in the current proceedings, was required to hear all proceedings to completion.

[49] Henry J correctly concluded that Mr Ashton’s construction of s 23(2) was misconceived.  That provision is an enabling provision which empowers a judge to complete a hearing once it has been embarked upon even though the judge retires before completion - in the usual case before the delivery of judgment but after completing the hearing.  His Honour correctly concluded that the expression “finishing the proceeding” in its ordinary meaning refers only to the proceeding which the judge had started prior to retirement, either at age 70 or for any other reason. 

[50] As Henry J noted, Sch 2 of the Supreme Court of Queensland Act 1991 defines “proceeding” to mean:

“… a proceeding in a court (whether or not between parties), and includes –

(a)an incidental proceeding in the course of, or in connection with, a proceeding; and

(b)an appeal or stated case.”

As Henry J concluded, that reference in the definition  to “incidental proceeding” means that:

“in the present context the application heard and finished by Justice Jones was a ‘proceeding’. … [I]t is not a reference to the totality of all proceedings that may occur in the life of a matter.”

That construction was plainly correct.

[51] These grounds must be rejected.

Ground 16 – failure to exercise jurisdiction

[52] The first paragraph of Mr Ashton’s application was considered by Henry J at the hearing on 21 October 2011.  His Honour was asked by Mr Ashton to strike out the order made by Jones J in relation to costs.  Henry J concluded that he did not have the power to do so and that the appropriate court was the Court of Appeal.  Section 69 of the Supreme Court of Queensland Act 1991 provides that an appeal lies to the Court of Appeal from any judgment or order of the court in the Trial Division.  A notice of appeal, unless the Court of Appeal orders otherwise, must be filed within 28 days after the date of the decision appealed from.[7]

[53] By s 253 of the Supreme Court Act 1995 no order by a Trial Division judge relating to costs only, which are in the discretion of the judge, may be appealed without the leave of the judge making that costs order.  Mr Ashton did not appeal the orders made by Jones J nor did he seek the leave of Jones J to appeal only the costs order.  Not only was Henry J correct to decline to consider that aspect of the application but there is no competent appeal before this court relating to Jones J’s costs orders.

[54] That ground must be refused.

Grounds 17 and 18 – Actual and apprehended bias

[55] In grounds 17 and 18 Mr Ashton alleges that Henry J accused him of being insane and “gibberish”.  This would appear to constitute Mr Ashton’s contention that Henry J demonstrated actual bias.  The relevant exchange occurred on the 21 October 2011 hearing after Mr Ashton had delivered himself of what was transcribed as almost six pages of single spacing transcript about the various conspiracies against him commencing on 3 October 1959 when “an Irish union leader walked into the side of my car and was killed”.[8]  His statement continued until Mr Ashton reached the point of addressing the issue of the destruction of fishing grounds by virtue of Australia’s participation in the UNESCO World Heritage listing of the Great Barrier Reef.  His Honour then interrupted Mr Ashton to ask him some questions about the nature of the application.  His Honour asked Mr Ashton had he ever been accused of being paranoid, to which Mr Ashton responded that “they accused me of being mad”.[9]  In response to his Honour’s question whether he had ever received any sort of psychiatric treatment Mr Ashton responded that he did not need any.  His Honour expressed satisfaction that there were no psychiatric difficulties.  His Honour did not say that Mr Ashton was mad.

[56] A number of pages later in the transcript his Honour was dealing with the application proper and the need for a trial.  His Honour said:

“… if you can get your pleadings in the proper state we will have a trial.  If you can’t, you won’t. … It’s that simple. … You can’t have a trial of gibberish.  It’s got to be clear.  If we can make it clear what it is we’re arguing about we’ll have a trial …”

to which Mr Ashton responded:

“Well, we’ll make it clear, your Honour.”[10]

His Honour was referring to the state of the pleadings, not to Mr Ashton, and Mr Ashton understood that to be the case.

[57] Paragraphs 20 and 21 directly raise conflict and apprehended bias.  The conflict arises from the “employment” of Henry J by “the Queensland Government”.  It is trite to note that judges in Queensland are appointed by the Governor in Council by commission and before entering on the duties of a judge must take the oath or affirmation of office in the presence of the Governor or person authorised by the Governor (usually the Chief Justice) to administer the oath or affirmation.[11]  A judge’s salary is provided for in s 62 of the Constitution of Queensland which is paid from the consolidated fund appropriated for the purpose.  The amount of the salary may not be decreased.[12]

[58] This is not the occasion for an exegesis on the separation of powers but it is plain that Henry J, in common with all Queensland judges, having taken the oath of office to judge matters impartially, is not in a position of conflict with these respondents. 

[59] The argument that there is an apprehension of bias in the manner in which Henry J exercised jurisdiction when hearing and determining this application is not burdened with any particulars.  It seems that Mr Ashton contends that merely because he was unsuccessful the judge appeared to have been biased.  Every litigant is entitled to have his legal proceedings heard and determined by an independent and impartial tribunal.  In Ebner v Official Trustee in Bankruptcy[13] the plurality observed:

“The apprehension of bias principle … requires two steps.  First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits.  The second step is no less important.  There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits.  The bare assertion that a judge (or juror) has an “interest” in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated.  Only then can the reasonableness of the asserted apprehension of bias be assessed.”[14]

[60] Apart from raising the issue of conflict, with which I have dealt, Mr Ashton does not identify, apart from his suggested complaint that the judge accused him of insanity and of gibberish, any other basis upon which the appearance of impartiality was compromised.

[61] Gaudron J in the same case remarked that:

“Impartiality and the appearance of impartiality are necessary for the maintenance of public confidence in the judicial system.  Because State courts are part of the Australian judicial system created by Ch III of the Constitution and may be invested with the judicial power of the Commonwealth, the Constitution also requires, in accordance with Kable v Director of Public Prosecutions (NSW), that, for the maintenance of public confidence, they be constituted by persons who are impartial and who appear to be impartial even when exercising non-federal jurisdiction.”[15]

“The test … 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 [he or she] is required to decide’.”[16]

[62] It is plain on a perusal of the transcript, both of the October hearing before Henry J and the 16 November hearing, that at no time did his Honour express any concluded view about the credibility of Mr Ashton and his witnesses or of Mr Dorante and his witnesses and clearly expressed to Mr Ashton that a trial would be needed to resolve those contested issues.  This was a matter with which Mr Ashton agreed as recorded on the transcript.  These were triable issues fully recognised by his Honour and it would be unreasonable to read the transcript in any different way. 

[63] Mr Ashton has not demonstrated any basis for his complaint about actual or apprehended bias in the primary judge.

[64] These grounds are unfounded and must be rejected.

Ground 21 – adding the second named plaintiff

[65] Whether deliberately or by oversight Mr Ashton unilaterally removed Mrs Ashton and the State of Queensland from the heading of the amended statement of claim without leave.  The respondents urged the primary judge formally to remove Mrs Ashton and the State of Queensland as parties to the proceedings.  Of this submission the primary judge said:

“In view of the failure of the author of the Amended Statement of Claim to properly plead the case, there is considerable uncertainty as to whether a properly informed decision has been made by the plaintiffs as to whether or not they would seek the removal of the female plaintiff and the second defendant as parties to the proceeding.  In the circumstances, and particularly bearing in mind that the filing of the Further Amended Statement of Claim may better enlighten the Court as to the need for the inclusion of [the] female plaintiff and the second defendant, I refrain from ordering their removal as parties to the proceeding at this stage.”[17]

[66] It cannot be demonstrated that his Honour erred in that conclusion.  It is a matter for the parties formally to seek to have their removal as parties who are not necessary to the proceedings.

[67] That ground must be refused.

The Pleadings

[68] Although not specifically addressed as a separate ground of appeal and not addressed in his oral submissions, it seems clear that Mr Ashton is aggrieved of the order that he re-plead his case so that there be some clarity in the nature of the cause which he brings against the respondents prior to the matter being set down for trial.  Rule 149 of the UCPR requires:

“(1)Each pleading must –

(a)be as brief as the nature of the case permits; and

(b)contain a statement of all the material facts on which the party relies but not the evidence by which the facts are to be proved; and

(c)state specifically any matter that if not stated specifically may take another party by surprise; and

(d)subject to rule 156[18], state specifically any relief the party claims; and

(e)if a claim or defence under an Act is relied on – identify the specific provision under the Act.

(2)In a pleading, a party may plead a conclusion of law or raise a point of law if the party also pleads the material facts in support of the conclusion or point.”

It was this failure to adhere to the obligations under r 149 which brought about the respondents’ application for strike out pursuant to r 171.

[69] “[M]aterial facts” in the context of r 149 have been described as facts:

“…necessary for the purpose of formulating a complete cause of action.”[19]

Even if one material fact necessary to sustain the particular cause of action in law sought to be made out is omitted, then that part of the claim is liable to be struck out.  A pleading may be struck out if it is:

“… unintelligible, ambiguous, vague or too general, so as to embarrass the opposite party who does not know what is alleged against him.”[20]

[70] Generally, the purpose of pleadings is to inform the opposite party of the case it has to meet and to permit, in a responsive pleading, the issues to be narrowed.  A defendant cannot be expected to intuit what the plaintiff intends to convey in his pleadings by his own understanding of the facts and circumstances giving rise to the litigation or what he assumes the plaintiff meant to convey but did not.  That would certainly guarantee that any trial would “go off the rails”.

[71] What is essential is that the material facts required to formulate a complete cause of action known to law must be pleaded.  It may be gleaned from the present pleadings that Mr Ashton alleges that Mr Dorante unlawfully inspected his vessel on 28 October 2008 and gave a written direction that the vessel could not be operated safely and was required to be certified as safe before being sailed.  The amended statement of claim asserts that the vessel was safe, was in survey and, as a consequence of the directive, the owners of the vessel were unable to move it to carry out repairs so that it has been unable to be used as a commercial fishing vessel and the owners have thereby lost income.  The link between the directive and the loss has not been made; neither has any (or any sufficient) allegation of negligence and dishonesty by Mr Dorante been made to dispose of the immunity from civil liability in s 161 of the Act.  There are, furthermore, justified criticisms of the pleading as containing comment, opinion, construction of provisions in legislation and failure to provide any particulars of the damage claimed as required by the UCPR.

[72] It follows that Henry J was correct to strike out the whole of the amended statement of claim giving leave to re-plead.

Application for contempt

[73] On 27 March 2012 Mr Ashton filed an application in this court for orders that the respondents be punished for contempt “committed in the face of the court”.  The complaint relates to the contention that the respondents misled the court about “the authorities” which he maintains he holds to use the wharf on the Johnstone River; the state of the survey of the Baarrook; and other documents relating to the state of safety of the Baarrook. 

[74] The matters of which Mr Ashton complains do not constitute contempt, either in the face of the court or otherwise.  Contempt proceedings provide for the enforcement of the processes and orders of the court and for the punishment of acts which impede the due administration of justice.[21]  What Mr Ashton raises are matters in dispute which are apt for resolution at a trial.

[75] This application should be dismissed.

Orders

[76] The orders I would make are:

1. Refuse the applications to adduce evidence.

2. Refuse the application for punishment for contempt.

3. Dismiss the appeal.

4. The applicant/appellant to pay the respondents’ costs of the applications and the appeal to be assessed on the standard basis.

[77] NORTH J: I have read the reasons for judgment of White JA and agree with her Honour’s reasons and the orders which she proposes.