SUPREME COURT OF QUEENSLAND

CITATION: Day & Anor v Woolworths Group Limited & Ors [2021] QCA 42

PARTIES: In Appeal No 5386 of 2018:

OLGA DAY(first appellant)STEVEN DAY(second appellant)vWOOLWORTHS GROUP LIMITEDACN 000 014 675(first respondent/not a party to the appeal)CPM AUSTRALIA PTY LTDACN 063 244 824(second respondent)RETAIL ACTIVATION PTY LTDACN 111 852 129(third respondent)ZURICH AUSTRALIAN INSURANCE LIMITEDACN 000 296 640(fourth respondent)ZURICH FINANCIAL SERVICES AUSTRALIA LIMITEDACN 008 423 372(fifth respondent)ZURICH AUSTRALIA LIMITEDACN 000 010 195(sixth respondent)ZURICH INSURANCE GROUP LIMITED(seventh respondent)

In Appeal No 13845 of 2018:

OLGA DAY(appellant)vWOOLWORTHS GROUP LIMITEDACN 000 014 675(first respondent)CPM AUSTRALIA PTY LTDACN 063 244 824(second respondent)RETAIL ACTIVATION PTY LTD ACN 111 852 129(third respondent)GABRIELLE ANN FORBES(fourth respondent)

2

SIMON CARTER(fifth respondent)RICHARD CAMERON MORTON(sixth respondent)

In Appeal No 1131 of 2019:

OLGA DAY(appellant)vWOOLWORTHS GROUP LIMITEDACN 000 014 675(first respondent)CPM AUSTRALIA PTY LTDACN 063 244 824(second respondent)RETAIL ACTIVATION PTY LTDACN 111 852 129(third respondent)

In Appeal No 5777 of 2019:

OLGA DAY(applicant)vWOOLWORTHS GROUP LIMITEDACN 000 014 675(first respondent)CPM AUSTRALIA PTY LTDACN 063 244 824(second respondent)RETAIL ACTIVATION PTY LTDACN 111 852 129(third respondent)GEOFFREY WARREN DIEHM(fourth respondent)GERARD COLIN O’DRISCOLL(fifth respondent)

FILE NO/S: Appeal No 5386 of 2018Appeal No 13845 of 2018Appeal No 1131 of 2019Appeal No 5777 of 2019SC No 6016 of 2016

DIVISION: Court of Appeal

PROCEEDING: General Civil AppealApplication for Extension of Time/General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane – [2018] 3 Qd R 593 (Douglas J)Supreme Court at Brisbane – [2018] QSC 266 (Davis J)Supreme Court at Brisbane – [2019] QSC 40 (Davis J)Supreme Court at Brisbane – [2019] QSC 93 (Davis J)

3

DELIVERED ON: 12 March 2021

DELIVERED AT: Brisbane

HEARING DATE: 17 November 2020

JUDGES: Mullins JA and Henry and Williams JJ

ORDERS: 1. In Appeal No 5386 of 2018:

(a) appeal dismissed with costs;

(b) application filed 10 November 2020 dismissed with costs;

(c) in the event there is no successful appeal of order (a) in Appeal No 13845 of 2018, the injunction ordered 24 April 2018 is by this order discharged on the date the possibility of a successful appeal ends.

2. In Appeal No 13845 of 2018:

(a) appeal dismissed with costs;

(b) application filed 10 November 2020 dismissed with costs.

3. In Appeal No 1131 of 2019:

(a) appeal dismissed with costs;

(b) application filed 10 November 2020 dismissed with costs.

4. In Appeal No 5777 of 2019:

(a) application for extension of time within which to appeal and for other relief dismissed with costs;

(b) application filed 10 November 2020 dismissed with costs.

CATCHWORDS: EQUITY – EQUITABLE REMEDIES – INJUNCTIONS – INJUNCTIONS FOR PARTICULAR PURPOSES – INJUNCTION TO RESTRAIN A PARTICULAR ACT – TO RESTRAIN UNAUTHORISED ACTS – where the appellant engaged in a pattern of communication with the second and third defendants’ insurer and its associated entities – where the primary judge concluded the communication was made in an attempt to influence the insurers in the conduct of the appellant’s personal injury case and that this affected the integrity of the court process – where the primary judge restrained the appellant from communicating or causing communication on her behalf in connection with the personal injury case with the second and third defendants’ insurer and its associated entities – whether the primary judge erred in failing to consider the proposed factual inference that the second

4

and third defendants deserved the criticism of them or that the communication was in the interest of the administration of justice

EQUITY – EQUITABLE REMEDIES – INJUNCTIONS – INJUNCTIONS FOR PARTICULAR PURPOSES – OPERATIVE LENGTH OF INJUNCTION – where the primary judge ordered an injunction “until the conclusion of these proceedings or further order” – where the proceeding was stayed until the appellant underwent medical examination by the defendants’ experts – where the appellant refused to do so – where the appellant’s case was then permanently stayed – whether the defendants’ application for a permanent stay should have proceeded despite the earlier stay of the proceeding – whether the proceedings should be discharged as the case could not proceed further

EQUITY – EQUITABLE REMEDIES – INJUNCTIONS – INJUNCTIONS FOR PARTICULAR PURPOSES – where the appellant sought to restrain various of the defendants; counsel and solicitors from acting – where the primary judge declined to order the restraint of counsel and the solicitors – whether the presiding judge should have made adverse findings about opposing counsel and solicitors – whether the primary judge should have restrained the opposing counsel and solicitors from acting

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – CASE MANAGEMENT – LISTS – GENERALLY – where the matter had been on the self-represented litigant supervised case list – where an application was listed before a specific judge on the Court’s application law list – where a different applications judge ultimately heard the matter – whether the hearing should have been before the judge initially listed – whether the application should have been heard by a judge presiding over the self-represented litigant supervised case list

COURTS AND JUDGES – JUDGES – DISQUALIFICATION FOR INTEREST OR BIAS – PARTICULAR GROUNDS – BIAS BY ASSOCIATION OR PRIOR RELATIONSHIP – where the primary judge handed down his decision at a time he was unaware of the existence of an application to recuse himself – where the appellant alleged the primary judge had a close association with legal representatives and other judges connected to the matter – where the appellant alleged the primary judge was biased against her – whether friendships between judges and barristers raise an apprehension of bias – whether the primary judge should have heard an application to recuse himself prior to giving judgment – whether the primary judge should have disclosed the association as a potential conflict of interest – whether the primary judge should subsequently have recused

5

himself because of an apprehension of bias

COURTS – JUDGES – POWERS AND DUTIES IN RESPECT OF UNREPRESENTED LITIGANTS – where the appellant was a self-represented litigant with an alleged disability from a non-English speaking background – where the appellant alleged the court did not fairly allow for those considerations – whether the presiding judge was unfair and acted in a way which would give rise to an apprehension of bias in a fair-minded lay observer – whether the appellant was unduly pressured to submit to further medical examination

PROCEDURE – MISCELLANEOUS PROCEDURAL MATTERS – OTHER MATTERS – where the appellant had submitted 44 pages of written submissions and made substantial oral submissions before asking for an adjournment – where the primary judge asked the appellant to identify the subject of further oral submissions – where the appellant could not do so – where the primary judge refused the adjournment – whether the primary judge should have granted the appellant’s application for an adjournment - whether reasons for the refusal of an adjournment application should have been published

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – GENERAL MATTERS – POWER TO AWARD GENERALLY – ACTION OR PROCEEDING BEFORE COURT – GENERALLY – where the appellant was not present at court when the primary judge handed down the reserved decision – where the primary judge was unaware the appellant had not received notification judgment was being handed down – where the primary judge after delivering judgment, proceeded to determine the question of costs in the absence of the appellant – whether the presiding judge should have proceeded to order costs in the absence of the appellant

Constitution of Queensland 2001 (Qld), Sch 1Human Rights Act 2019 (Qld)International Covenant on Civil and Political Rights 1966Personal Injuries Proceedings Act 2002 (Qld), s 26(2), s 37(2), s 37(3)Uniform Civil Procedure Rules 1999 (Qld), r 280, r 667, r 668, r 681(1), r 766

Aussie Airlines v Australian Airlines (1996) 65 FCR 215; (1996) 135 ALR 753; [1996] FCA 1308, citedAustralian Broadcasting Corporation v O’Neill (2006) 227 CLR 57; [2006] HCA 46, appliedBritish American Tobacco Australia Services Ltd v Laurie (2011) 242 CLR 283; [2011] HCA 2, appliedCopping v ANZ McCaughan Ltd (1997) 67 SASR 525;

6

[1997] SASC 5995, citedDietrich v The Queen (1992) 177 CLR 292; [1992] HCA 57, citedEbner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63, appliedEmanuele v Emanuel Investments Pty Ltd (in liq) (1997) 139 FLR 36; [1997] SASC 6177, appliedHouse v The King (1936) 55 CLR 499; [1936] HCA 40, appliedJohnson v Johnson (2000) 201 CLR 488; [2000] HCA 48, appliedLivesey v New South Wales Bar Association (1983) 151 CLR 288; [1983] HCA 17, appliedMacPherson v The Queen (1981) 147 CLR 512; [1981] HCA 46, citedMarkan v Bar Association of Queensland [2014] 2 Qd R 273; [2014] QCA 34, appliedMiller v Martin [2019] VSCA 86, citedPalmer v Parbery (2019) 136 ACSR 26; [2019] QCA 27, appliedPerera v GetSwift Ltd (2018) 263 FCR 92; (2018) 363 ALR 394; [2018] FCAFC 202, citedQNI Metals Pty Ltd & Anor v Vannin Capital Operations Ltd & Ors [2021] QCA 24, citedRaybos Australia Pty Ltd v Tectran Corporation Pty Ltd (1986) 6 NSWLR 272, citedRe JRL; Ex parte CJL (1986) 161 CLR 342; [1986] HCA 39, appliedY & Z v W (2007) 70 NSWLR 377; [2007] NSWCA 329, cited

COUNSEL: In Appeal No 5386 of 2018:The first appellant appeared on her own behalfThe second appellant on his own behalfS C Holt QC for the second to seventh respondentsR A Perry QC for the interested person Richard Cameron Morton

In Appeal No 13845 of 2018:The appellant appeared on her own behalfB F Charrington for the first and fourth respondentsS C Holt QC for the second, third, and fifth respondentsR A Perry QC for the sixth respondent

In Appeal No 1131 of 2019:The appellant appeared on her own behalfB F Charrington for the first respondent and for the interested person Gabrielle Ann ForbesS C Holt QC for the second and third respondentsR A Perry QC for the interested person Richard Cameron Morton

In Appeal No 5777 of 2019:The applicant appeared on her own behalfB F Charrington for the first, fourth, and fifth respondents and the interested persons Ashurst, Gabrielle Ann Forbes and Johnathan King-Christopher

7

S C Holt QC for the second and third respondentsR A Perry QC for the interested person Richard Cameron Morton

SOLICITORS: In Appeal No 5386 of 2018:The first appellant appeared on her own behalfThe second appellant on his own behalfMills Oakley for the second to seventh respondentsCarter Newell Lawyers for the interested person Richard Cameron MortonDWF Australia for the interested person Gabrielle Ann ForbesIn Appeal No 13845 of 2018:The appellant appeared on her own behalfAshurst Australia for the first respondentMills Oakley for the second, third, and fifth respondentsDWF Australia for the fourth respondentCarter Newell Lawyers for the sixth respondentIn Appeal No 1131 of 2019:The first appellant appeared on her own behalfAshurst Australia for the first respondentMills Oakley for the second and third respondentsDWF Australia for the interested person Gabrielle Ann ForbesCarter Newell Lawyers for the interested person Richard Cameron MortonIn Appeal No 5777 of 2019:The applicant appeared on her own behalfAshurst Australia for the first, fourth and fifth respondentsMills Oakley for the second and third respondentsDWF Australia for the interested persons Ashurst, Gabrielle Ann Forbes and Johnathan King-ChristopherCarter Newell Lawyers for the interested person Richard Cameron Morton

[1] MULLINS JA: I agree with Henry J.

[2] HENRY J: Olga Day alleges she slipped on a shallot when shopping at Woolworths, suffering soft tissue injuries and aggravation of her psychiatric conditions. Her ensuing pursuit of a personal injuries claim stalled because she failed to comply with the defendants’ reasonable request that she undergo examination by an orthopaedic specialist, a neuro surgeon, a psychiatrist and an occupational therapist, each to be nominated by her from the defendants’ panel of experts.

[3] Her non-compliance, in disobedience of s 25(2) Personal Injuries Proceedings Act 2002 (Qld), culminated in an order by Douglas J on 27 November 2017 staying the proceeding until she underwent the examinations. She appealed that order, alleging inter alia that Douglas J had not been impartial. The flimsy basis for that allegation was that his Honour had once given a paper explaining it was challenging to judge cases involving querulent self-represented litigants. Mrs Day is a self-represented litigant.

8

[4] The appeal was dismissed on 1 June 2018, a decision described as “plainly correct” in the High Court’s ensuing refusal of Mrs Day’s special leave application on 12 September 2018.

[5] Mrs Day’s non-compliance with s 25(2) continued. This resulted in an order by Davis J on 16 November 2018 permanently staying the proceeding. She now appeals that order, a subsequent decision of Davis J and an earlier decision of Douglas J. She also seeks leave for an extension of time within which to appeal another decision by Davis J.

[6] Her three appeals, application for an extension of time within which to appeal and various other applications were eventually heard together. The various other applications remaining (some were struck out during the hearing) should be dismissed. It is convenient to postpone giving reasons for that conclusion until these reasons otherwise deal with the three appeals and application for extension of time within which to appeal, all of which should also be dismissed. The reasons in respect of each matter inform the reasons in respect of all matters. As will become apparent, there is a moot quality to the miscellaneous mix of arguments to be considered. None of them is capable of removing the self-inflicted obstacle to Mrs Day’s pursuit of her personal injuries claim caused by her failure to comply with s 25(2).

CA 5386 of 2018 – Douglas J (Injunction against communications)

[7] Taking the appeals in chronological order, appeal 5386 of 2018 is the first in time, being filed 21 May 2018.1

[8] The appeal is against orders made by Douglas J on 24 April 2018 granting an injunction applied for by the second and third defendants in Mrs Day’s personal injuries case. His Honour restrained Mrs Day from communicating or causing communication on her behalf in connection with the proceeding with the second and third defendants’ insurer and its associated entities by ordering:

“[T]hat Mrs Day be restrained from:

(a) contacting or communicating with Zurich Australian Insurance Limited ACN 000 296 640, Zurich Financial Services Australia Limited ACN 008 423 372, Zurich Australia Ltd ACN 000 010 195 or Zurich Insurance Group Ltd (hereinafter jointly and severally referred to as ‘Zurich’) or any director, officer, employee or agent of Zurich, other than Mills Oakley Lawyers, Zurich’s solicitors, in relation to this proceeding, or any matter connected with this proceeding, by any means whatsoever; and/or

(b) allowing, causing, encouraging, permitting or suffering any person on her behalf to contact or communicate with Zurich or any director, officer, employee or agent of Zurich, other than Mills Oakley Lawyers, Zurich’s solicitors, in

1 For this appeal, and this appeal only, Mrs Day is joined by her husband, Mr Steven Day, as the second appellant. It is unnecessary to tarry over whether he is properly a party to the matter.

9

relation to this proceeding, or any matter connected with this proceeding, by any means whatsoever;

until the conclusion of these proceedings or further order.”

[9] The application and ensuing order were prompted by a pattern of communications which the second and third defendants complained were calculated at intimidating and harassing their insurer to influence it in relation to the conduct of Mrs Day’s personal injury case. While the purpose of the communications was disputed, their content was not in issue. The communications were summarised in his Honour’s reasons as follows:

“(a) The plaintiff’s husband, on her behalf, has threatened to report employees of Zurich to the Legal Services Commission in Queensland and the corresponding body in New South Wales, the Office of Fair Trading in Queensland and the corresponding body in New South Wales and has threatened the directors of the defendants with personal liability;

(b) The plaintiff communicated to Zurich, including its directors, allegations of unethical and improper conduct by the solicitors for the second and third defendants;

(c) The plaintiff’s husband, on her behalf, has accused the directors of Zurich of misusing shareholders’ funds by encouraging the solicitors for the second and third defendants to drag her claim through the courts. Those accusations were also communicated to Zurich’s auditors. The communication also included allegations of breach of the Corporations Act 2001 (Cth) by Zurich’s directors;

(d) The plaintiff and her husband have in correspondence to Zurich’s Australian General Counsel and Secretary, who happens to be a lawyer, also copied to Zurich’s Chief Executive Officer and directors, accused Zurich’s General Counsel “or your other officers” of using the court process for improper purposes, professional misconduct and breach of the Corporations Act. In that correspondence, the plaintiff and her husband also threatened to go to the media to disclose “your appalling practices”, accused two solicitors from the firm acting for the second and third defendants of corrupt conduct in breach of the Crime and Corruption Act 2011, threatened to report Zurich’s General Counsel to “the relevant authorities” and sought information, said to be potentially privileged, as to the name of the person employed by Zurich providing instructions to the second and third defendants’ solicitors, the identification of the person or persons authorising the funding of legal costs in the matter and the amount of money spent by Zurich in defending the matter;

(e) The plaintiff and her husband accused Zurich’s General Counsel of authorising or instructing criminal conduct in fraudulently forging and uttering a certificate of readiness by the second and third defendants’ solicitors. They also asked for

10

her confirmation that she engaged in such conduct and threatened to refer the matter to the Law Society of New South Wales and/or the Legal Services Commission in New South Wales in the event of an “unsatisfactory response;

(f) On 15 November 2017, after the plaintiff had been served with the application to restrain her from communicating with Zurich, the plaintiff’s husband, on her behalf, again wrote to Zurich’s General Counsel and Secretary and to Zurich’s directors complaining about the conduct of the solicitors, among other things, in acting to support Woolworths. He also asked for advice as to whether the second and third defendants had notified the incident complained of by the plaintiff at Woolworths on 18 December 2014 pursuant to the Work Health and Safety Act 2011, which the second and third defendants assert they were not obliged to do. She is also said to have again threatened that some form of personal responsibility would attach to the recipients of the correspondence.”2

[10] It is implicit in his Honour’s reasons that he considered such communications would continue in the absence of the restraining order which he granted.

[11] His Honour approached the application as an application for an interlocutory injunction. He applied the usual organising principles in such applications, considering whether the applicants had shown that there was a serious issue to be tried, whether they were likely to suffer injury for which damages were not an adequate remedy and whether the balance of convenience favoured the granting of the injunction.3

[12] His Honour reasoned the second and third defendants’ prospective cause of action was grounded in the law of contempt, citing the following useful analysis by Ipp JA in Y & Z v W:4

“35. First, the court has jurisdiction to grant an interlocutory injunction restraining a threatened contempt of court: see Attorney-General v Times Newspapers Ltd [1974] AC 273; Commercial Bank of Australia Ltd v Preston [1981] 2 NSWLR 554; Waterhouse v Australian Broadcasting Corporation (1986) 6 NSWLR 716; Yeshiva Properties No 1 Pty Ltd v Lubavitch Mazal Pty Ltd [2003] NSWSC 775.

36. Secondly, misusing the court’s processes, at least where other parties are thereby prejudiced, may amount to a contempt: R v Gregory (1843) 1 Cox CC 31; Nigel Lowe and Brenda Sufrin, Borrie & Lowe, The Law of Contempt, 3rd ed (1996) London, Butterworths at 459, 461.

37. Thirdly, it is a contempt of court to obstruct the due administration of justice by attempting to induce a settlement of an action by improper threats or intimidation. In Attorney-General v Times Newspapers Ltd, Lord Simon said the following on this point (at 318):

2 Day v Woolworths Limited & Ors [2018] QSC 82 [2].3 Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57, 68.4 (2007) 70 NSWLR 377, 384.

11

“It is a contempt even privately to threaten … a party (In re Mulock (1864) 3 Sw. & Tr. 599). The threat there, by someone who ‘had no interest whatever in the matter,’ was to ‘publish the full truth’ unless a petition were withdrawn. Sir James Wilde, Judge Ordinary, said, at p. 601: ‘… she [the petitioner] claims the right to approach this court, free from all restraint or intimidation. It is a right that belongs to all suitors.’”

Lord Cross said (at 326):

“To seek to dissuade a litigant from prosecuting or defending proceedings by threats of unlawful action, by abuse, by misrepresentation of the nature of the proceedings or the circumstances out of which they arose and such like, is no doubt a contempt of court …”

38. Fourthly, the bringing of improper pressure on a party to collateral proceedings amounts to a contempt of court (involving the obstruction of the due administration of justice) irrespective of whether or not the pressured party is, in fact, deterred from litigating. In Smith v Lakeman (1856) 26 LJ Ch 305, the plaintiff sent a letter to the defendant pending the suit. Stuart V-C said (at 306): “[The letter] was a threat for the purpose of intimidating [the defendant] as a suitor, and, therefore, whether it had had that effect or not, it was unquestionably a contempt of court”. See also Harkianakis v Skalkos (1997) 42 NSWLR 22 and Resolute Ltd v Warnes [2000] WASCA 359 at [13].

39. Fifthly, in a contempt involving obstruction of the administration of justice, the plaintiff must prove, according to the criminal standard of proof, that the material in question has, as a matter of practical reality, a tendency to interfere with the course of justice in a particular case: see John Fairfax & Sons Pty Ltd v McRae (1955) 93 CLR 351 at 372, per Dixon CJ, Kitto J, Fullagar J and Taylor J; Harkianakis v Skalkos (at 27) per Mason P; Resolute Ltd v Warnes (at [13]). The test was put succinctly by O’Loughlin J in Willshire-Smith v Votino Bros Pty Ltd (1993) 41 FCR 496 at 505, where his Honour said that the Court must determine “whether the conduct complained of amounted to improper pressure to induce a litigant to withdraw from proceedings or to settle them on terms that he regarded as inadequate”.

[13] In reasoning to the conclusion that there was a serious issue to be tried, his Honour observed that on an objective analysis of the evidence it was a “fairly available” conclusion that the communications were made in an attempt to influence the insurers in the conduct of Mrs Day’s case as the defendant’s insurers and that this affected the integrity of the court process.5 He found:

“[22] On the evidence obtained so far it is clear to me that there is a serious question to be tried as to the applicants’ right to obtain

5 Day v Woolworths Limited & Ors [2018] QSC 82 [9].

12

relief of the type sought. There is a real issue whether the communications complained of constitute an attempt to dissuade Zurich from supporting the second and third defendants in their defence of the proceedings by threats, by abuse, by misrepresentation of the nature of the proceedings or the circumstances out of which they arose …”6

[14] As to whether damages were an adequate remedy, his Honour continued:

“[23] Those defendants may suffer injury for which damages will not be an adequate remedy if they are impeded in defending the litigation by the need to deal with further communications of this type or if their insurers are, for example, persuaded to settle the action to the disadvantage of those defendants.”7

[15] As to the balance of convenience, his Honour found:

“[24] The balance of convenience goes all one way. Mrs Day has made the points she wishes to make in her correspondence already and can continue to communicate with the solicitors. I am not satisfied that she has demonstrated a clear public or private interest she may have in continuing to communicate with Zurich that is sufficient to override the second and third defendants’ rights to an unimpeded defence of this personal injuries damages claim. That the restraint sought by the second and third defendants is supported by the insurers is also a relevant issue in a case of this nature.”8

[16] The two grounds of appeal are, in short form:

“1. The primary judge erred in law by taking into account irrelevant facts and by not taking into account the relevant facts in relation to communication of the appellants to directors of Zurich Insurance as follows: …

2. The primary judge erred in law by failing to exercise the Court inherent jurisdiction, which retains an inherent supervisory jurisdiction over its officers, directed at preserving the proper administration of justice in disciplining Mr Carter, the solicitor and Mr Morton, the counsel for the respondents. …”

[17] Neither ground takes issue with the legal principles applied by the learned presiding judge in determining the application. More generally, neither ground engages with the requisite exercise, in an appeal against the granting of discretionary relief, of demonstrating error in the exercise of the discretion.9

[18] Ground 1 seeks to assert error generally, particularly by arguing the moral merits of the various parties’ conduct as litigants, without regard to the specific nature of the discretionary task below.

6 Day v Woolworths Limited & Ors [2018] QSC 82 [22], citations omitted.7 Day v Woolworths Limited & Ors [2018] QSC 82 [23].8 Day v Woolworths Limited & Ors [2018] QSC 82 [24].9 House v The King (1936) 55 CLR 499, 505.

13

[19] There are many sub-paragraphs listed in ground 1. In summary they allude to various factual inferences which the learned primary judge allegedly failed to consider, take into account, hold or be persuaded by. The factual inferences are collectively part of what I will refer to as the “altruistic inference” urged by Mrs Day. That inference is that the second and third defendants deserved the criticism of them in the communications, because they were using the insurers’ resources to engage in illicit litigation tactics against a financially and emotionally vulnerable plaintiff, and that bringing this to the attention of the insurer was not improper pressure and was motivated by the public importance of the insurer being better able to supervise its solicitors and better manage the funds of a public company.

[20] The altruistic inference was not the only potential inference arising from Mrs Day’s campaign of communications. There was an obvious competing inference - the inference of intended interference with the administration of justice. That inference was that Mrs Day was attempting to interfere with the due administration of justice by trying to dissuade the insurer from supporting the second and third defendants in their continued defence of the proceedings through threats, abuse and misrepresentation about the nature and conduct of the proceedings.

[21] Ground 1 is misconceived because it was no part of his Honour’s task to reach a final finding as to whether the altruistic inference, or the inferences of fact collectively relied upon as supporting it, were correct. Nor for that matter was it his task to reach a final finding as to whether the inference of intended interference with the administration of justice, or the inferences of fact relied upon as supporting it, were correct. His Honour’s reasoning reflects that he did not purport to make such final findings. He was correct to refrain from such final findings, for that was not his task.

[22] On a related point, a complaint in one of ground 1’s sub-paragraphs, that the second and third defendants deserved the criticism of them in the communications, may result from a misunderstanding of the following passage in the learned primary judge’s reasons:

“[14] Mrs Day’s concern was to bring to the attention of the directors and the General Counsel of Zurich information about the conduct of the solicitors acting for the parties insured by them. She has done that in a way that raises contentious issues about how to characterise their behaviour. So far I am not persuaded that what she says they have done deserves the criticism she levels at them but that is not a matter to resolve at this stage of the proceedings.”10 (emphasis added)

The final words of that passage demonstrate that the exercise in which his Honour was engaged did not require a determination of the truth or otherwise of the content of the communications.

[23] The upshot is that ground 1 fails to establish an error in the discretionary decision-making undertaken by his Honour. It was not submitted that ground 1 ought be viewed as advancing a complaint of appellable error of the kind identified in House v The King,11 namely that the making of the order was so unreasonable or plainly unjust that there must have been a failure to properly exercise the discretion below.

10 Day v Woolworths Limited & Ors [2018] QSC 82 [14].11 House v The King (1936) 55 CLR 499.

14

However, to avoid doubt and test the apparent reasonableness or otherwise of the decision, the decision to make the order may be assessed in light of the governing consideration, identified in Australian Broadcasting Corporation v O’Neill12 as:

“…the governing consideration that the requisite strength of the probability of ultimate success depends upon the nature of the rights asserted and the practical consequences likely to flow from the interlocutory order sought”.13

[24] Let it be assumed, favourably to Mrs Day’s position, that the practical consequences of the interlocutory order required the strength of the inference contended for by the second and third defendants to be that it was likely correct and that the altruistic inference sought by Mrs Day was likely incorrect. The altruistic motive to which Mrs Day lays claim in explaining her purported pursuit of a matter of public importance in her communications with Zurich presents as much less likely than her own self-interest, indeed it appears to be implausible. It is to be appreciated she is not said to be a shareholder in Zurich, whereas she is a litigant against opponents funded by Zurich. She potentially stood to gain a more acquiescent defence to her case, perhaps even a settlement, by upsetting her opponents’ and their lawyers’ relationship and standing with their insurer. The intimidatory quality of her campaign of correspondence is also at odds with a merely altruistic motive.

[25] The court’s processes include the right of litigants to elect to retain and instruct independent legal practitioners of their choosing to act on their behalf in litigation. It is inherent in such a right that the retainer should be free of third party interference or intimidation. Mrs Day’s campaign of intimidatory correspondence strongly suggests she was trying to undermine the defendant’s exercise of a right accorded by the court’s own processes. The inference of intended interference with the administration of justice was likely correct and the altruistic motive urged by Mrs Day was likely incorrect. The decision to make the restraining order was not unreasonable or plainly unjust.

[26] Ground 2 does not go to any error in the exercise of the discretion to grant the injunction either. It contains three sub-paragraphs. The first two complain of a failure to discipline Mr Morton, counsel for the second and third defendants, for making a submission when touching in passing on a medical report which describes the mechanism and nature of the alleged injury, that it did not take the matter anywhere. The first paragraph also complains of a failure to discipline Mr Carter, solicitor for the second and third respondents, regarding an alleged error in a certificate of readiness. The third sub-paragraph of ground 2 complains of a failure to take into account the alleged failings of solicitors for the second and third defendants in respect of disclosure, pressure, delay and filing excessive documents.

[27] These complaints arise for more detailed consideration below, in appeal 13845 of 2018, but none of them are to the point in this appeal. The decision under appeal was not a decision whether or not to discipline lawyers. Nor did the learned primary judge’s task require him to reach a concluded view as to the propriety of the conduct complained of in ground 2’s sub-paragraphs. It is also notable that complaints of the kind mentioned in ground 2 go to issues which could have been

12 (2006) 227 CLR 57, per Gummow and Hayne JJ at 84, with whom Gleeson CJ and Crennan J agreed at 68.13 Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57, per Gummow and Hayne JJ

at 84, with whom Gleeson CJ and Crennan J agreed at 68.

15

raised with the court, which further erodes the purported need to raise complaints of such a kind in the correspondence.

[28] There being no substance to either ground this appeal should be dismissed. Costs should follow the event.

[29] A loose end remains regarding the life of the injunction, which, it will be recalled, was “until the conclusion of these proceedings or further order”. The upshot of CA 13845 of 2018 below is that Mrs Day’s case is now permanently stayed. There does exist authority for permanent stays being lifted in limited types of cases14 but this does not present as such a case. The apparent legal reality is that the case cannot proceed further and the injunction no longer serves a continuing purpose unless there is a successful appeal. The injunction should therefore be ordered to be lifted on the date the possibility of a successful appeal in CA 13845 expires.

CA 13845 of 2018 – Davis J (Ordering permanent stay)

[30] Appeal 13845 of 2018 was filed on 14 December 2018.15 It appeals orders made by Davis J on 16 November 2018 granting a permanent stay of Mrs Day’s personal injury proceeding and dismissing a cross-application by Mrs Day.

[31] The defendants’ application had actually been for an order that Mrs Day’s claim be dismissed. The learned primary judge observed that Mrs Day’s ongoing intention not to nominate and undergo examination by one expert each from the defendants’ panels of experts gave rise to an intolerable position. He observed that the defendants should not have to forego such examinations of Mrs Day in the conduct of their case. Such an observation was unimpeachable in circumstances where the defendants’ right to have such examinations occur is conferred by Statute and where the decision to stay proceedings pending such examinations had been affirmed on appeal. His Honour concluded Mrs Day’s maintenance of the proceeding in circumstances where she would not take the steps necessary to lift the stay constituted an abuse of process.16

[32] The terms of the existing order - a stay as distinct from an order to take a step - were not a neat fit with the prerequisites for dismissal of r 280 Uniform Civil Procedure Rules 1999 (Qld) (UCPR). This doubtless explains why dismissal was sought pursuant to r 658, which empowers the court to make any order that the nature of the case requires. His Honour had reservations whether the appropriate order was to dismiss Mrs Day’s proceeding. Instead, he took the more cautious approach of ordering that if Mrs Day did not advise the solicitors for the defendants of her selections from the defendants’ panels of experts by 4 pm on 21 November 2018 “the claim is permanently stayed”.

[33] In the course of his reasons his Honour rejected Mrs Day’s argument that the application should itself be stayed to allow Mrs Day to pursue a complaint by her to United Nations Human Rights Committee about violations of the International Covenant on Civil and Political Rights (ICCPR). In so doing his Honour observed:

14 See for example Perera v GetSwift Ltd (2018) 363 ALR 394, 420.15 An amended notice was filed 19 June 2019.16 Day v Woolworths Limited & Ors [2018] QSC 266 [37].

16

“[15] The ICCPR does not, on its own, form part of the Australian domestic law. The judicial power of the Commonwealth and of the States is vested in an integrated system of courts recognised by the Commonwealth Constitution. No decision of the United Nations can affect an exercise of judicial power within the Commonwealth of Australia.

[16] Exercises of judicial power such as the making of order by Douglas J may be challenged on appeal. Those appeal rights have been exhausted. Mrs Day is bound by the orders made by Douglas J.”17

[34] Mrs Day’s application sought to restrain Mr Morton of counsel from acting for the second and third defendants, to restrain Mr Carter, solicitor of Mills Oakley Lawyers, from acting for the second and third defendants, and to restrain Ms Forbes, solicitor of Ashurst Australia, from acting for the first defendant. The application also applied for an order dismissing the defendants’ applications as an abuse of process.

[35] It is self-evident that the latter component of the application failed in light of the success of the defendants’ application. In any event, his Honour concluded the application was not brought in abuse of the court’s process but rather “brought for a proper purpose in the face of Mrs Day frustrating the processes of the Court”.18 His Honour rejected Mrs Day’s application as it related to Mr Morton, Mr Carter and Ms Forbes.

[36] The appeal now advanced is without merit and must fail. The amended notice of appeal lists 42 separate grounds, of which grounds 3, 4, 5 and 6 have been abandoned. This leaves 38 grounds, a still large number. Some overlap and others do not articulate error apt to appellate intervention. In explaining why the appeal must fail this court is not obliged to craft reasons in adherence to the structure and content of Mrs Day’s appeal grounds. Sufficient reasons may here be given by addressing what may be summarised as the 11 complaints to which the grounds collectively give rise. Those 11 complaints are enumerated and addressed hereunder.

Complaint 1: The decision to order the permanent stay was unreasonable or plainly unjust.

[37] The intended, if not specifically argued, effect of the grounds may be to contend the decision to order the permanent stay was unreasonable or plainly unjust. If so, such a contention is wrong. Mrs Day’s submissions unhelpfully continued with her past position that she had complied with her obligations as a litigant and that there was no unfairness to the respondent occasioned by her not submitting to examinations. Such a position ignores the legal reality that she in fact was obliged as a litigant to meet the defendants’ reasonable request to nominate and submit to examinations by the defendants’ experts. It also ignores that her refusal to do so was unfairly depriving the defendants of their statutory entitlement as litigants, who were being sued for a lot of money by Mrs Day on the strength of her alleged injuries, to have their own experts examine her. The existing stay was to last only until Mrs Day

17 Day v Woolworths Limited & Ors [2018] QSC 266 [15], [16] (citations omitted).18 Day v Woolworths Limited & Ors [2018] QSC 266 [44].

17

submitted to examination, but she remained determined not to submit to such examination. This stalemate had dragged on for a year. In those circumstances her continuation of her action, well knowing she was not prepared to take the critical step necessary to advance it, was an abuse of the court’s processes. It was well within the court’s power to control its own processes to order a permanent stay of the proceeding and the court did not err in so ordering.

Complaint 2: The ICCPR should have been applied in the hearing of the application (per grounds 1 and 2).

[38] Davis J’s view that the ICCPR had no application to the conduct of the hearing before him was correct, for the reasons given by his Honour, quoted above. Any complaints regarding his Honour’s conduct of the hearing do not fall to be considered by reference to the ICCPR.

[39] Mrs Day also appears to rely upon the Human Rights Act 2019 (Qld), particularly the right to a fair and public hearing provided for by s 31. That Act had not actually commenced at the time of the hearing. In any event though, the hearing was in the public forum of an open courtroom and, as is further canvassed below, it was fair.

Complaint 3: The defendants’ application should not have been permitted to proceed because the proceeding had been stayed by the order of Douglas J (per grounds 7, 8, 27 and 37).

[40] The proceeding had been stayed by the order of Douglas J until Mrs Day underwent examination by the defendants’ experts. It precluded Mrs Day’s proceeding being further advanced until she had done so. It did not preclude an application attempting to bring the proceeding to an end.

Complaint 4: The hearing should have been before Martin J who, according to the Court’s law list, was allocated to hear the matter (per grounds 9 and 10).

[41] Mrs Day’s amended outline of argument entirely misconceives the process by which applications are allocated to judges. It also conflates it with listing practices in the Court of Appeal and a quote from an appellate case explaining how the Court of Appeal’s listing practices prevents litigants “hand-picking” judges, a tactic also known as “judge shopping”. From this amalgam Mrs Day conjures the risible allegation that Davis J “hand-picked” her matter.

[42] It is not only inherently improbable that any Judge would have harboured a particular desire to hear the applications in Mrs Day’s case, it was also a matter beyond the control of Davis J.

[43] The longstanding administrative practice by which the hearing of applications before the Brisbane Supreme Court is managed is that the senior judge of the judges assigned to the hearing of listed applications on any given day shall direct which of the judges takes which of the applications and shall vary such directions as appropriate as the day progresses, to ensure judicial resources are deployed efficiently throughout the day and to promote timely dispositions. On the relevant day Martin J and Davis J were among the judges allocated to the applications list. As the most senior of those judges it was Martin J who co-ordinated and varied the allocation of judges to applications. That he so controlled the process or even that at first he was listed to hear this application does not mean there was any

18

requirement that in the end result he should have been the judge who heard the application.

[44] Mrs Day complains the above practice is at odds with the right to a fair and open hearing. It is not. It promotes the efficient allocation of judicial resources and timely disposition of applications. It also mitigates against litigants judge shopping.

[45] If a litigant has a basis to object to the judge ultimately allocated to hear the application presiding, the litigant can raise that objection in the transparent and open forum of the court at the outset of the hearing. Mrs Day raised no such objection then. When the hearing was well advanced, by which time it had to have been apparent to Mrs Day that her arguments were not faring well, she did mention in an unresponsive submission that she was puzzled why the matter was first listed before Martin J.19 However, it was only subsequent to the hearing and Davis J reserving his decision that Mrs Day sought to allege Davis J should not have presided.

Complaint 5: The presiding judge should not have given judgment without first hearing Mrs Day’s application to recuse himself (per grounds 12 and 14).

[46] The hearing occurred on 8 November 2018 and his Honour handed down his reserved decision on 16 November 2018. Unbeknown to his Honour, on 13 November 2018 Mrs Day had filed an application for Davis J to recuse himself and to restrain Mr Diehm QC and Mr O’Driscoll from acting for Woolworths Limited (Woolworths). The application was endorsed that it was to be heard on 17 December 2018. The existence of the application was not brought to the attention of Davis J prior to him handing down his reserved judgment. These circumstances were fully explained in reasons given in a subsequent judgment of his Honour.20 It is not apparent how his Honour could have erred in not first hearing an application which was not then before him and of which he was unaware.

Complaint 6: The primary judge should have recused himself because of undisclosed conflict of interest (per grounds 16, 17 and 18).

[47] It is obvious that, conscious her arguments had not fared well at the hearing, Mrs Day, and or others assisting her, researched Davis J in search of information about him to use to complain he should not remain in her case – much the same as she likely came up with Douglas J’s article about querulous self-represented litigants to complain on appeal about him. The information she pooled together appears to be logically irrelevant and mischievously calculated at implying some baseless unstated impropriety. It is sufficient to quote the grounds relevant to this complaint to demonstrate as much:

“16. The primary judge erred in law by failing to consider the appellant’s material raising the allegations of the involvement of the primary judge into a conflict of interest with Justice Sofronoff due to their close personal, professional and commercial relations through directorship in Bar Association Limited and Smiler Pty Ltd, by acting together in a number of legal matters during the time when Justice Sofronoff was a Solicitor-General of Queensland and their friendship in accordance with the material exhibited in the appellant’s affidavit filed on 5 November 2018, including the transcript of

19 AR Vol 5 p 1944 L24.20 Day v Woolworths Limited & Ors [2019] QSC 40.

19

the interview “Top Silk Slams Carmody Appointment as ‘Horrible Mistake’”, ABC News.

17. The primary judge erred in law by failing to disclose his Honour’s close personal, professional and commercial relationship with Justice Sofronoff, his Honour’s wife’s Ms M Hock and Mr Diehm despite that fact that in 2015 Mr Davis QC (as his Honour then was) requested from Justice Carmody, the then Chief Justice of the Supreme Court of Queensland to disclose Justice Carmody’s conflict of interest with Ms Johnston of Bravehearts Inc, a child protection group, in support of the application seeking Justice Carmody’s disqualification from sitting in R v Cowan.

18. The primary judge erred in law by failing to recuse himself due to the material deposited before the primary judge alleging that his Honour is an opponent of Justice Carmody, and whom the appellant supported in his purported reforms by making a complaint to the Attorney-General of Queensland and the Legislative Assembly of Queensland alleging a lack of transparency and accountability in the Supreme Court of Queensland and the Queensland Court of Appeal.”

[48] The complaint was no better explained by Mrs Day’s submissions. It remains obscure what relevant possible conflict arose from the connections between Davis J and Sofronoff P when they were at the bar or from their attitude to the appointment of Chief Justice Carmody. Sofronoff P was one of three judges who had dismissed Mrs Day’s earlier appeal of the stay ordered by Douglas J, but so what? The relevance and nature of any consistency in Mrs Day’s complaints to the other branches of government with the unstated purported reforms of the former Chief Justice is even more enigmatic. That any of the lawyers when in practice were directors of companies connected with professional practice is of no moment. The possibilities that Davis J would have known Mr Diehm QC at the bar or that Sofronoff P and his Honour’s spouse had some past association with Mr Diehm QC when Sofronoff P was at the bar is not to the point either.

[49] Approaching the complaint on the premise that the past associations allegedly raise an apprehension of bias, the objective test to be applied is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide.21 The application of the test involves two steps identified by the High Court in Ebner v Official Trustee in Bankruptcy,22 namely the identification of what it is said might lead the judge to decide the question otherwise than on its legal and factual merits and the articulation of the logical connection between that matter and the risk that the judge will decide the matter otherwise than on its legal and factual merits. The complaint does not meet that two step application of requisite principle. It is not enough to merely raise evidence of past association. There must be some articulation of a logical connection between the past association and the apprehension of departure from impartial decision-making.23

21 Johnson v Johnson (2000) 201 CLR 488, 492.22 (2000) 205 CLR 337, 345.23 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, 345.

20

[50] The mere fact that lawyers and judges are well known to each other does not provide that logical connection.24 The practice of law is a profession. It is inevitable that many professionals in the same field become well known to each other, both through the direct pursuit of their duties on behalf of clients and the collegial interaction which is central to professional learning and practice. The latter interaction may include sharing the same suite of offices or chambers and associating as members of professional bodies. As a result, many barristers know each other well and many judges know each other well. Further many judges and barristers know each other well because judges are often appointed from the ranks of the bar. As Priestley JA explained in Raybos Australia Pty Ltd v Tectran Corporation Pty Ltd:25

“That method of appointment means that built into the legal system is public knowledge and long acceptance of the fact that judges will often know to a greater or less degree the counsel and solicitors who appear before them.”

[51] Thus, just as it is not uncommon that barristers who are friends and who may even practice out of the same chambers will be opposed as adversaries to each other in court, it is also not unusual for them to appear in front of a judge who was once in chambers with one or more of them and remains known to them, albeit now more distanced from them. As Muir JA observed in Markan v Bar Association of Queensland:26

“Friendships with colleagues at the bar are not extinguished by appointment to the bench although diminution in social and workplace contact as well as constraints on intercourse between judges and barristers, where matters in which both are involved are being heard or remain undecided, impinge on such relationships.”

[52] The diminution in social and workplace contact referred to by Muir JA is an inevitable incident of the judge’s movement on appointment into a different job in a different workplace. It not however a requirement of appointment, for reasons well explained by Olsson J in Emanuele v Emanuel Investments Pty Ltd (in liq).27 His Honour observed:

“The days are long past when it was the expectation that, on appointment to judicial office, a judge was expected to withdraw from social relationships with his or her former professional friends and, for that matter, the community at large; and live the life of someone substantially removed from the general community. Indeed, in the contemporary scene, members of the judiciary tend, publicly, to be criticised if they seek to do so. It is, rightly, perceived that such a recourse would be a distinct disadvantage in discharging the judicial function, because of the cultural isolation from community norms and mores, which would result.”28

24 See for example, Aussie Airlines v Australian Airlines (1996) 65 FCR 215, 230-231.25 (1986) 6 NSWLR 272, 276.26 [2014] QCA 34, [17].27 (1997) 139 FLR 36.28 Emanuele v Emanuel Investments Pty Ltd (in liq) (1997) 139 FLR 36, 45.

21

[53] The inevitability of friendships between lawyers, including judges, is not of itself the reason why such friendships are not ordinarily cause for concern. The reason is the nature of lawyers’ training. Lay persons are sometimes surprised to discover that barristers who are spirited adversaries in court, set the contest to one side and behave as friends outside court. Yet it is obviously an attribute essential to the practice of law that lawyers have the capacity to work on cases objectively, with fearless independence, regardless of how well they know or like the other lawyers involved in litigating the case. That capacity, described by Williams J in Emanuele v Emanuel Investments Pty Ltd (in liq)29 as the “ability to put these personal associations aside whilst discharging public responsibilities”, is a product of professional training in the law.30 It is also a well-known pre-requisite of appointment to judicial office, reflected in the oath to “do equal justice to all persons” and discharge the duties and responsibilities of office “without fear, favour or affection”.31

[54] These basic, publicly known considerations fall comfortably within the category of considerations described by Kirby J in Johnson v Johnson32 as being the most basic considerations which a reasonable and fair-minded observer would ordinarily be taken to have sought to be informed about in order to found a fair understanding.33 Such an observer would appreciate friendships between lawyers and judges are a mundane incident of professional life of no bearing upon the discharge of their professional responsibilities. Hence, the fact that lawyers and judges participating in the same case happen to be well known to each other is unlikely to raise an apprehension of bias in a fair-minded informed observer. For that reason, non-disclosure thereof will of itself be logically incapable of evidencing grounds for apprehension of bias. There may of course be exceptions, such as where the friendship is an intimate one34 or involves potentially concerning forms of ex parte contact during the case,35 but they do not arise here.

[55] There has been no association between the learned presiding judge, the legal representatives in the present case or other persons identified by Mrs Day so as to have warranted disclosure or to have suggested any potential conflict of interest or apprehension of bias such that the presiding judge ought to have recused himself.

Complaint 7: The presiding judge was unfair and acted in a way which would give rise to an apprehension of bias in a fair-minded lay observer (per grounds 11, 15, 19, 20, 21, 22, 23, 38, 39, 40 and 42).

[56] Complaint 7 involves seven specific allegations as well as a bare generalised allegation of unfairness or bias (per ground 11). To the extent the generalised allegation became marginally clearer in Mrs Day’s submissions, it seems to be that as a self-represented litigant with a disability from a non-English speaking background she did not receive procedural fairness or the equal protection of the law.

29 (1997) 139 FLR 36, 51.30 Johnson v Johnson (2000) 201 CLR 488, 493.31 Constitution of Queensland 2001 Sch 1.32 (2000) 201 CLR 488.33 Johnson v Johnson (2000) 201 CLR 488, 508; endorsed by French CJ in British American Tobacco

Australia Services Ltd v Laurie (2011) 242 CLR 283, 306.34 See for example R v Szabo [2001] 2 Qd R 214.35 See for example Charisteas v Charisteas and Ors (2020) 60 Fam LR 483.

22

[57] Whether Mrs Day intends to imply she was not fairly treated by reason of being a self-represented litigant with a disability from a non-English speaking background or to imply that the court did not fairly allow for those considerations in its treatment of her, either implication is without foundation. Mrs Day received a fair opportunity to be heard and the learned presiding judge gave her considerably more latitude than he would have to a legal practitioner appearing before him.

[58] Whatever the extent of the disability referred to by Mrs Day, it did not prevent her engaging in a lengthy and robust pursuit of argument prior to her later unsuccessful application for an adjournment (the refusal of the adjournment is dealt with later in these reasons). As to her command of English, her written and oral submissions demonstrated adequate competence in the English language. Mrs Day was not a novice self-represented litigant either. She had represented herself in various earlier stages of the present matter as well as in other cases, advocating for herself in the District Court, the Supreme Court, the Court of Appeal and the High Court.

[59] Despite Mrs Day’s litigation experience, it may be accepted the fact she was self-represented carried the dual disadvantages, identified by Mason J and McHugh J in Dietrich v The Queen,36 that she did not have the legal knowledge and skill or the capacity for dispassionate assessment which a retained lawyer could have brought to her case. However, his Honour could not assist Mrs Day as a retained lawyer could. A presiding judge’s obligation to ensure proceedings are conducted fairly may oblige the judge to inform self-represented litigants about relevant legal rights or matters of legal process of which such litigants appear unaware, in order that they may determine how to conduct their case, but the presiding judge’s obligation of impartiality precludes the judge from advising such litigants how to conduct their case.37 The presiding judge complied with those obligations. The real dilemma here was that the aforementioned disadvantage in legal knowledge and skill and in capacity for dispassionate assessment, manifested in Mrs Day’s pursuit of an application which was misconceived and her resistance to an application which was destined to succeed because of her refusal to submit to examinations. Such determinative problems were not mere disadvantages which could be eased by the presiding judge’s manner of management of the hearing. A presiding judge should of course be civil, as his Honour was. But a presiding judge must decide cases without favour, regardless of whether a litigant lacking in insight, whether due to a psychiatric condition or not, might be upset by losing.

[60] Turning to the specific seven allegations associated with complaint 7, first, it is alleged the learned primary judge erred in failing to disclose an alleged conflict of interest with Mr Diehm QC and Sofronoff P (per ground 15). As already explained, there was no potential conflict and nothing to disclose.

[61] The second allegation is that in the course of the hearing the learned primary judge constantly interrupted Mrs Day and openly expressed pre-determined views (per grounds 21 and 23). Perusal of the transcript of the hearing does not support the allegation Mrs Day was constantly interrupted. His Honour and Mrs Day occasionally interrupted each other. When his Honour did so it was when Mrs Day was pursuing irrelevant submissions or not addressing his query. Moreover, when his Honour did

36 (1992) 177 CLR 292, 302.37 MacPherson v The Queen (1981) 147 CLR 512, 547.

23

speak in the course of Mrs Day’s submissions, he did not do so at a frequency materially different to that which occurred during the defendants’ counsels’ submissions.

[62] In the course of the hearing the learned primary Judge asked questions and made observations tending to identify weaknesses and irrelevancies in the arguments being advanced by Mrs Day. Such contributions from the bench in the course of argument are an unremarkable exercise of the judge’s role in trying to properly understand the true force of a party’s submissions and to encourage a party who wanders into irrelevant or evasive submissions to return to addressing the real issues for resolution. They promote the efficient identification and determination of the true issues in the case. Such efficiency is particularly important in managing the court’s many applications hearings expeditiously, so as to allow all listed applications to be heard. The importance of such expedition is also reflected in the court’s requirement that parties in contested applications provide short written outlines of argument usually not exceeding four pages, concisely summarising the argument to be advanced in point form.38

[63] The problem with Mrs Day’s submissions was she refused to acknowledge the legitimacy of the requirement that, to advance her case, she had to be examined by the defendant’s experts. His Honour patiently and repeatedly explained to Mrs Day that in view of her failure on appeal her denial of the legitimacy of Douglas J’s stay decision was no answer to the defendants’ application. Alas this exposition of legal reality did not prevent her submissions from continuing to divert futilely around the problem. In an obvious attempt to have Mrs Day focus on the risk that her action may end, his Honour eventually explained he was contemplating striking out or dismissing her claim because she was refusing to undergo the examination.39 It is well established the expression of a judge’s tentative views during argument is not taken to indicate prejudgment and that litigants are usually assisted by hearing such views in order to deal with them.40 His Honour’s comments did not suggest he was bringing a closed mind or pre-determined view to the task at hand, indeed he did not eventually order a strike out or dismissal. Rather they show he was trying to explain the dire potential consequence confronting Mrs Day in the obvious hope her submissions might finally deal squarely with the legal reality confronting her.

[64] The third allegation is that Mrs Day felt unduly pressured to submit to further medical examination despite having provided numerous medical reports in support of her claim (per ground 22). In the course of the hearing the learned presiding judge could not have made it clearer that he would not go behind the order of Douglas J, affirmed on appeal as it had been, and that Mrs Day could not expect to be permitted to keep her case on foot indefinitely, all the while refusing to do that which was necessary to allow the case to go forward, namely submit to the examinations. These entirely orthodox views could not sensibly be perceived as suggesting bias or unfairness. If Mrs Day felt pressure to undergo examinations, it was not his Honour’s doing. It was a product of her desire to continue her personal injury litigation while depriving those she was suing of their statutory entitlement to have their own experts assess the true state of her alleged injury.

[65] The fourth allegation is that the learned primary judge erred in failing to grant Mrs Day’s application for an adjournment (per ground 19). Mrs Day’s application

38 Practice Directions No 14 of 1999 and No 6 of 2004 (Supreme Court).39 AR Vol 5 p 1949 L20.40 Johnson v Johnson (2000) 201 CLR 488, 493.

24

for an adjournment was made at a point when the learned primary judge was pressing her to indicate whether she had any oral submissions to add to her lengthy written submissions in support of her application before the court.

[66] It is little wonder his Honour was by this point emphasising to Mrs Day that there was no point in repeating what was in her written submissions. Mrs Day had already enjoyed a very lengthy opportunity to make her oral submissions. The hearing commenced at midday. After appearances and reading of materials Mr Diehm QC, at his Honour’s request, gave a brief oral overview of the matters before his Honour for determination. That exercise involved some clarifying questions by his Honour and occupies slightly more than four pages of the transcript of the hearing.41 Mrs Day then proceeded to make her submissions. This phase occupies 14 pages of transcript up to when the court adjourned at 12.56 pm for the lunch break.42 Roughly halfway through this phase Mrs Day explained it was hard for her stand and asked for and was given consent to sit while she was making her submissions.43 On resumption at 2.30 pm Mrs Day continued with her submissions until 2.51 pm when she requested and was given a bathroom break. That phase after lunch occupies a further eight pages of transcript.44 Mrs Day continued her oral submissions on resumption at 3 pm and eventually, at a point after a little over five further pages of transcript,45 she asked for an adjournment.

[67] In seeking the adjournment Mrs Day submitted she could not concentrate, felt exhausted, had palpitations, needed to rest and needed to take medication.46 In the course of these submissions his Honour asked Mrs Day to identify the subject matter of the further oral submissions she wanted to address on but she could not identify the subject matter.47 His Honour’s request that she identify the subject matter she wanted to address on was reasonable in circumstances where Mrs Day’s written submissions were 44 pages long. Her written submissions were not the short four page written outline of argument contemplated by the applicable practice directions of the court but rather were an apparently complete version of Mrs Day’s submissions, reduced to writing. It is inherently unlikely she had more to add. Having given Mrs Day the indulgence of accepting her very lengthy written submissions, his Honour would have been rightly concerned to avoid a waste of court time by her merely repeating those submissions.

[68] The adjournment was refused and his Honour heard oral submissions from the other parties in a phase occupying about only nine pages of transcript,48 a stark contrast to the total of 27 pages attributable to Mrs Day’s oral submissions. At one point during the submissions of the other parties his Honour granted Mrs Day another break to go to the bathroom, the court adjourning from 3.39 pm to 3.48 pm.49 After the other parties’ submissions concluded, Mrs Day made some very brief submissions in reply and the court adjourned at 3.59 pm to allow the defendants’ counsel to finalise a draft of the orders sought by the defendants. The court later

41 AR Vol 5 p 1920 L45 – p 1925 L5.42 AR Vol 5 p 1925 L20 – p 1939 L20.43 AR Vol 5 p 1931 L30.44 AR Vol 5 p 1939 L25 – p 1947 L15.45 AR Vol 5 p 1947 L23 – p 1952 L30.46 AR Vol 5 p 1952 L30 – p 1954 L10.47 AR Vol 5 p 1953 L36 – p 1955 L10.48 AR Vol 5 p 1955 L23 – p 1964 L45.49 AR Vol 5 p 1960 L25.

25

resumed for about two minutes to receive the draft order and entertain any submissions about its form and his Honour then reserved his decision.

[69] The decision whether to grant an adjournment is discretionary and involves the weighing of competing considerations, including considerations which will not be apparent to an appellate court. His Honour had been seeing and hearing from Mrs Day for quite some time, including seeing and hearing her reactions as it must have gradually become clear to her that she could not persuade his Honour to go behind the legality of the order of Douglas J – a problem she in turn would have realised was going to deprive her application of much purpose. His Honour was well positioned in this context to weigh the significance of the timing of the application and any externally apparent progression of Mrs Day’s allegedly onsetting ailments, in light of other relevant considerations bearing upon the discretion whether to adjourn. Those considerations included that Mrs Day had already been making unhelpful oral submissions for a lengthy period, that she had already placed a very detailed set of written submissions before the court and that she could not identify the subjects which she wanted to further address orally. His Honour alluded to such considerations in giving reasons for refusing the adjournment and concluding no injustice was being inflicted upon Mrs Day by refusing the adjournment.50 Such a conclusion was well open and no error in the exercise of the discretion to refuse the adjournment has been identified.

[70] The fifth allegation is that the learned primary judge did not give Mrs Day adequate time for the preparation of her response to the other parties’ written outlines of submissions provided to her at court “not long before the hearing” (per ground 20). Mrs Day did not submit during the hearing that she had not had time to consider the content of the written outlines of submissions of the other parties. His Honour could scarcely have erred in circumstances where the issue was not raised before him. In any event, quite apart from the time Mrs Day had to peruse her opponents’ written outlines prior to the commencement of the hearing, it will be recalled that Mrs Day’s submissions started before and continued after a one and a-half hour lunch break, which would have provided her with ample time to further peruse her opponents’ written outlines of argument. Of the four written outlines of submissions of the other parties, three were only two pages long each and one was seven pages with an eight page chronology attached.51 While the latter outline exceeded the four pages contemplated by the practice direction it was not excessively long in the circumstances of such a case and would not have taken long to be read and understood by Mrs Day.

[71] The sixth allegation is that the learned primary judge failed to invite or properly notify the appellant about the delivery of the judgment to occur on 16 November 2018 (per ground 38). Mrs Day was not present at court when the learned primary judge handed down his reserved decision on 16 November 2018. When a court decides the date upon which it will hand down a reserved judgment it will request that the parties be notified of the relevant date and time. That occurred here. His Honour was unaware Mrs Day had not received the notification and assumed from her absence that she had chosen not to appear.52 It occasionally happens that one or more parties do not attend at the listed handing down of a judgment. In such

50 AR Vol 1 pp 40-41.51 AR Vol 1 pp 385-406.52 AR Vol 1 p 61 [55].

26

circumstances it is common for the court to nonetheless proceed to hand down the reserved judgment, making the orders identified in it. In the event that the court needs to hear further submissions on any issue, it will then grapple with the fact that a party the court understands has been notified of the listing is absent and thus not able to be heard. It is however in the very nature of the delivery of a reserved judgment that the parties have already been heard in respect of the legal issues determined by the reserved judgment. It follows the absence of a party at the time of handing down the judgment cannot logically suggest the judgment is infected with unfairness or bias.

[72] The seventh allegation is that the learned primary judge made harsh or erroneous observations about the appellant (per grounds 40 and 42). These complaints go to two remarks made subsequent to the handing down of the judgment the subject of the present appeal.53 Neither of the remarks complained of is such as to suggest to a properly informed, fair-minded observer that the judgment may have been infected by unfairness or bias.

[73] The first of the remarks complained of is the assertion that Mrs Day “belligerently refused to acknowledge the authority of last year’s court order to see the doctors” (per ground 40). It is obvious from his reasons that his Honour well understood the order of Douglas J did not in terms order Mrs Day to undergo examinations. The observation complained of was merely a shorthand reference to the fact that despite Mrs Day’s challenge to Douglas J’s order having failed, she was stubbornly refusing to acknowledge the legality of that order and take the steps that order made necessary if she were to further advance her claim.

[74] The second remark complained of is that the learned primary judge stated Mrs Day was engaged in legal studies and would one day seek admission as a legal practitioner (per ground 42). Mrs Day says she had ceased her legal studies in 2014 and would not be able to complete approved legal qualifications to be admitted. That was evidently not the understanding of his Honour who had been told by Mrs Day that she had worked as a lawyer in Russia, her country of origin, and that she was two subjects away from completing her law degree.54 He considered her misconceived and unjustified attacks upon legal practitioners in her application and her persistence in refusing to acknowledge the legality of the order of Douglas J raised serious concerns as to her fitness for admission as a legal practitioner. His Honour accordingly ordered his judgment and a transcript of the proceeding and his remarks be sent to the Legal Practitioners Admission Board.

[75] Mrs Day’s pursuit of the lawyers opposing her by applying to restrain them from acting is discussed later in these reasons. As will be seen, those applications were so lacking in merit as to suggest they were either misconceived or vexatious. Further, it is clear Mrs Day irrationally continued to argue inconsistently with the legal reality flowing from the order of Douglas J, despite having failed in her appeal against it. There was no insight into those serious flaws in Mrs Day’s conduct of her litigation exhibited in her submissions complaining about the effect of publicity adverse to her generated by the learned presiding judge’s remarks. It was open to his Honour to conclude that Mrs Day’s conduct would raise concerns as to her fitness for admission as a legal practitioner and that the Legal Practitioners

53 AR Vol 5 p 1969.54 AR Vol 5 p 1944 L10 and L17.

27

Admission Board ought be aware of it, if, as he understood it, she may in due course seek admission. Given that understanding, his conclusion was not biased or unfair. It merely reflected the regrettable reality of Mrs Day’s conduct as a litigant. As much would have been apparent to any fair-minded lay observer of the case. Accepting for present purposes that his Honour was wrong in his understanding Mrs Day would likely seek admission, then, at the highest for Mrs Day, it was a misunderstanding of that fact, not a misunderstanding of the flawed conduct in which she engaged as a litigant. It is incapable of raising a perception of unfairness or bias in connection with the judgment to which this appeal relates.

[76] Further to the above seven groups of allegations, another allegation of unfairness identified in Mrs Day’s written outline of argument was that the learned primary judge should not have entertained the applications because they should have been heard by a judge presiding over the self-represented litigant supervised case list. This complaint seems to be premised on the assertion Mrs Day’s case was being managed under that list back as at October 2017. In fact orders made by Flanagan J on 6 October 2017, vacated a listed review of the matter in the self-represented litigant supervised case list and ordered applications filed by the defendants and Mrs Day “be placed on the Civil List and be set down for hearing on Monday, 27 November 2017”.55 The hearing of 27 November 2017 was before Douglas J and resulted that day in him ordering the stay of the proceeding, striking out some parts of the statement of claim and making directions about the application for injunctive relief which culminated in his later orders the subject of appeal 5386 of 2018 discussed above.

[77] Flanagan J’s orders of 6 October 2017 included an order the matter be listed for further review on the giving of 14 days’ notice by any party and his associate later advised the parties that supervision of that list had been transferred to Justice Mullins, as her Honour then was, and explained how they could schedule a review.56 None of this altered Flanagan J’s order regarding the placement onto the Civil List and its consequence that the case did not remain within the exclusive or even active control of the self-represented litigant supervised case list. The self-represented litigant supervised case list practice direction did not preclude such an order. Further it is not suggested a direction had been made pursuant to UCPR r 368(2) that all applications in the proceeding be heard by a particular judge. There was no requirement that the applications be listed for hearing by any particular judge.

Complaint 8: Reasons for the refusal of an adjournment application should have been published (per ground 24).

[78] This complaint misapprehends the court’s practices. Reasons may be given orally or in writing. In this instance reasons for refusing the adjournment were given orally during the hearing. Such reasons are described as ex tempore reasons. The transcript of the hearing of the application contains the words “Take in judgment” at the point where his Honour gave reasons for the refusal of the adjournment application. That is not unusual. Ordinarily, ex tempore reasons given in the midst of a hearing are not included in the transcript of the submissions at the hearing and are instead included by the court’s transcription service provider (in this instance,

55 AR Vol 3 p 1101-1102.56 AR Vol 3 p 1103.

28

Auscript Australasia Pty Ltd) in a separate transcript of the reasons, available from the provider subsequent to a period allowed for revision by the judge. That is what occurred here.57 When, as here, reasons have already been given orally in open court there is no need for judges to publish such reasons to the parties on a later occasion. In any event, his Honour did include a verbatim quote of his ex tempore reasons for refusing the adjournment within his subsequently published judgment.58 If ex tempore reasons are likely to be of some interest to a broader legal audience than the parties, judges sometimes publish transcripts of such reasons as decisions on the Queensland Court’s website. It is scarcely surprising that did not occur here.

Complaint 9: The presiding judge failed to consider Mrs Day’s application to restrain Mr Diehm QC and Mr O’Driscoll of counsel from acting for Woolworths, the first defendant in Mrs Day’s personal injuries case (per ground 13).

[79] There was no such failure because the application to restrain Mr Diehm QC and Mr O’Driscoll was not then before his Honour. It was included with the recusal application which, as already explained, his Honour knew nothing of and was listed for a later date.

Complaint 10: The presiding judge should have made adverse findings about Mr Morton, Mr Carter and Ms Forbes (per grounds 25, 26, 28, 29, 30, 31, 32, 33, 34, 35 and 36).

[80] Mrs Day’s application as it related to Mr Morton, Mr Carter and Ms Forbes sought orders restraining them from acting for their respective clients. The exceptional power to make such orders in the interests of the proper administration of justice is to be exercised with caution, with due weight being given to the public interest in litigants not being deprived of their lawyers of choice without due cause.59 The learned primary judge’s findings did not support the adverse views of the lawyers’ conduct contended for by Mrs Day. However, even if they had, the conduct complained of was inherently unlikely to have justified the exceptional orders sought.

[81] Mr Carter was the solicitor for the second and third defendants to Mrs Day’s claim. The basis upon which Mrs Day wanted him restrained from acting was that he had allegedly filed excessively voluminous and thus irrelevant documents and signed a false and misleading certificate. The learned primary judge correctly considered it unnecessary to find whether Mr Carter had filed unnecessarily voluminous documents because that would not be a sufficient basis to restrain him from acting.

[82] As to the complaint regarding Mr Carter’s signing of the certificate, it was a certificate of readiness signed by Mr Carter on 13 April 2016 for the compulsory conference held as part of the pre-trial regime of the Personal Injuries Proceedings Act 2002 (Qld).60 Section 37(3) thereof provides it is professional misconduct to sign such a certificate knowing it is false or misleading. Douglas J had previously refused Mrs Day’s application for a declaration that the certificate was false and

57 AR Vol 5 p 1735.58 Day v Woolworths Limited & Ors [2018] QSC 266 [49].59 See Kallinicos v Hunt (2005) 64 NSWLR 561, 582 for a convenient analysis of relevant authority by

Brereton J.60 AR Vol 2 p 673.

29

misleading, a decision upheld on appeal.61 Mrs Day’s pursuit of a different type of order before Davis J did not alter the equation that the substance of her complaint sought to make more of the certificate’s content non-compliance than the facts supported. The references in 37(2)(b) and (c) to obtaining of investigative material and expert reports “for the trial” and “at the trial” were not followed in the actual certificate, which instead used the words “for the conference” and “at the conference”. The form of words in the certificate was thus prima facie non-compliant with s 37(2). The likely reason for that deviation was that a District Court Judge had set 22 April 2016 as the date for the compulsory conference.62 This presumably left little choice but to ensure the certificate’s terms did not import the entire form content of s 37(2) into the certificate, for to have done so would have given rise to a misrepresentation. There was no evidence that the words used were themselves false or misleading or that the deviation from the statutory form of words involved an intention to mislead. It was open to Davis J to conclude, as he did, that Mr Carter made no misrepresentation in the document.

[83] I record for completeness that appeal ground 34 complains the learned primary judge failed to consider that in the application before the aforementioned District Court Judge, Mr Carter acted in support of the applicant first defendant despite his clients being listed as respondents to the application. It is not apparent why a respondent cannot elect to support the relief sought by an applicant. It is scarcely surprising his Honour’s reasons did not touch upon a topic so incapable of assisting Mrs Day’s application.

[84] Mr Morton was counsel acting for the second and third defendants, instructed by Mr Carter. One of Mrs Day’s grounds in support of an order restraining Mr Morton from acting was that on 27 November 2017 in the course of oral submissions made by Mr Morton, his submissions misled the court by referring to a number of expert reports, using language such as “it really didn’t go anywhere” and “didn’t really take matters anywhere”.63 Those submissions were made in reference to an affidavit of Mr Carter in responding to the complaint by Mrs Day, then before Douglas J, regarding Mr Carter’s above discussed signing of the s 37 certificate. Mr Morton’s submissions were obviously calculated at explaining the medical documents available at the time of the signing of the certificate and urging the view that, of the only three such documents post-dating the date of the alleged incident, none meaningfully informed the issue of the extent of aggravation of pre-existing injury.64 The submissions were not misleading and did not misstate evidence. Either side in litigation is entitled to make submissions arguing for or against the relevance of evidence to the issue at hand. Mr Morton was quite entitled to have made the submissions he did, just as Mrs Day was entitled to make submissions to the contrary.

[85] The other equally baseless ground upon which Mrs Day sought to restrain Mr Morton from acting was that he had, in earlier unrelated proceedings, acted for the first defendant, Woolworths. No basis for any concern as to a conflict was identified. In any event, such duties as Mr Morton owed arising from his present

61 Day v Woolworths Group Limited & Ors [2018] QCA 105 [39]-[40].62 Woolworths Limited v Day [2016] QDC 81; AR Vol 5 p 2108 L2.63 AR Vol 5 p 2108 LL5-16.64 AR Vol 5 p 2108 LL4-21.

30

and past retainers were not duties owed to an external party such as Mrs Day, for whom it was not suggested Mr Morton has ever acted.65

[86] Ms Forbes is a solicitor acting for the first defendant to Mrs Day’s claim. She made two alleged errors attracting Mrs Day’s application. The first was that in an affidavit filed 17 November Ms Forbes asserted Mrs Day had not disclosed a report of Dr Hogan dated 20 September 2017 prior to Mrs Day annexing the report to her affidavit sworn 12 November 2017. In fact, it transpired Ms Forbes’ firm had been in receipt of the report since 3 October 2017. The error was drawn to Ms Forbes attention in correspondence from Mrs Day of 21 November 2017. By an affidavit sworn and filed the same day Ms Forbes corrected her error, apologising to the court and the parties for it.66 The learned primary judge found the error was honestly made.

[87] The second alleged error was that after Douglas J ordered the stay Ms Forbes filed a number of notices of non-party disclosure. Mrs Day discovered this when she perused the electronic file summary for her case and complained of it in correspondence with the Court Service personnel, copied to Ms Forbes, dated 5 February 2018.67 The following day, in an email to Court Service personnel, copied to Mrs Day, Ms Forbes advised she had that morning advised Mrs Day that none of the notices had been served and would not be, unless the stay was lifted.68 It is unnecessary to express a concluded view as whether the filing of unserved documents of that character was legally inconsistent with the existence of the stay of the proceeding because, if it was, then like the first error, it was an apparently honest error which had no adverse consequence. Honest error by a practitioner is not a proper basis to justify a practitioner being restrained from acting.69

[88] Mrs Day’s outline of submissions implies she was somehow denied the opportunity to cross-examine the three legal practitioners. There is no evidence to suggest she sought to do so or any credible argument now advanced as to what difference that could have made to the fate of her application.

[89] The appellant’s submissions to this court did not identify error in the learned primary judge’s reasons for deciding to refuse Mrs Day’s application to restrain the three legal practitioners. The application below was doomed to fail and was either misconceived or vexatious. His Honour’s decision to refuse the relief was clearly open, indeed it was inevitable.

Complaint 11: The presiding judge should not have proceeded to order costs in Mrs Day’s absence on 16 November 2018 (per ground 41).

[90] Mrs Day was not present in court on 16 November 2018 when his Honour pronounced his orders in open court, publishing his reasons.70 His Honour, who as earlier explained, understood Mrs Day had been notified of the listing, decided to proceed to deal with costs despite Mrs Day’s absence. He ordered Mrs Day to pay the defendants’ costs. His Honour said:

65 QNI Metals Pty Ltd & Anor v Vannin Capital Operations Ltd & Ors [2021] QCA 24.66 AR Vol 3 pp 904, 905, 1154.67 AR Vol 3 p 928.68 AR Vol 3 p 929.69 Miller v Martin [2019] VSCA 86.70 AR Vol 5 pp 1751, 1969.

31

“The defendants, who are applicants in the applications to dismiss the proceedings and the individual legal practitioners, the respondents in the plaintiff’s applications, make application for costs. Mr (sic – Mrs) Day has not appeared this morning. The usual rule, of course, is that costs follow the event. There is no reason why that should not be so here. So I order that the plaintiff pay the [defendants’] costs of the [defendants’] application and I order that the plaintiff pay the costs of Mr Morton, Mr Carter and Ms Forbes, of her application.”71

[91] His Honour’s reasons given with his orders at the outset of the hearing indicated he had intended to hear the parties as to costs. In light of that it can scarcely be thought there was some plan afoot to deprive Mrs Day of an opportunity to be heard.

[92] A court’s decision whether to adjourn or proceed to a determination of an issue when a party has not attended will inevitably depend upon the circumstances, including the nature of the issue to be determined. The substantive applications had been heard, Mrs Day had lost and it was inherently unlikely there existed any reason not to apply the general rule, pursuant to r 681(1) UCPR, that costs follow the event. The apparent inevitability of that conclusion meant it was undesirable, even from the perspective of the absent Mrs Day, for the court to add another layer of cost and delay by adjourning the determination of costs. If there was likely to be any issue at all it would not have been whether Mrs Day should pay costs but rather whether, on account of her conduct of the applications, she should have to pay costs on the indemnity rather standard basis. But that was an issue for the other parties to press if they wished and evidently they did not do so. Further, rr 667 and 668 each provide potential mechanisms by which parties who are absent when an order is made may subsequently seek to have the order set aside. The existence of such safeguards protected the interests of the absent Mrs Day, in the unlikely event she could have placed facts before the court to demonstrate why costs should not follow the event. Her appeal demonstrates that is not something she could have done, for it has not identified any credible reason why costs should not have followed the event.

[93] The learned primary judge’s decision to proceed to make a costs order forthwith involved no error.

Conclusion

[94] This appeal should be dismissed. Costs should also follow that event.

CA 1131 of 2019 – Davis J (Dismissing application for recusal)

[95] Appeal 1131 of 2019 was filed on 5 February 2019. It appeals an order made by Davis J on 8 January 2019 dismissing Mrs Day’s application for him to recuse himself.

[96] Mrs Day’s application had been filed on 13 November 2018 and allocated a hearing date of 17 December 2018. Davis J was unaware of the existence of the application in delivering his decision ordering the permanent stay on 16 November 2018 (which decision is the subject of the above discussed appeal 13845 of 2018). Paragraph 1 of Mrs Day’s application sought an order that “Davis J be recused from any further involvement in the above proceedings”, a reference to Mrs Day’s personal injuries

71 AR Vol 5 p 1969 LL12-18. It is not apparent what submissions were made in the interim. The transcript of reasons merely contains the customary ellipsis at that point.

32

claim. The second paragraph of Mrs Day’s application sought orders restraining Mr Diehm of Queen’s Counsel and Mr O’Driscoll of counsel from acting for the first defendant.

[97] Mrs Day did not appear on the application’s return date of 17 December 2018, her husband providing a medical certificate to the effect that she was not medically fit to proceed. The learned primary judge accordingly indicated he would adjourn the application. Before adjourning he exhibited the court’s copies of various correspondence and other relevant documents. He also exhibited for identification a document he had prepared, titled “Proposed list of issues”. The application was adjourned to 8 January 2019 for hearing.

[98] At the hearing on 8 January Mrs Day conceded, still not having nominated any expert from the defendants’ panels of experts, that subject to her appeal against Davis J’s order of 16 November, her claim was permanently stayed.72 It would have been open to his Honour to refuse to hear the application because of the permanent stay order and let Mrs Day seek redress in appeal 13845 of 2018, which she had by then filed. However, the parties each urged him to hear the application. His Honour’s subsequent reasons explain why he proceeded to hear the application:

“At the hearing Mrs Day sought to press the current application, notwithstanding the concession that the proceedings were permanently stayed. Mr Diehm QC, who appeared with Mr O’Driscoll for both themselves as respondents and also for the first defendant, submitted that I ought to hear the application because there is an appeal on foot and the orders sought by the application would, if made, restrain him and Mr O’Driscoll from acting for the first defendant in that appeal. Mr Diehm QC pressed me to decide the issue. One option was to refuse to hear the application and allow Mrs Day to make submissions to the Court of Appeal that Mr Diehm QC and Mr O’Driscoll be retrained from appearing for the first defendant in the appeal. I formed the view that a more orderly way of dealing with Mrs Day’s application was for me to hear and determine it, leaving her with her rights then to appeal from that judgment. I therefore gave Mrs Day leave to proceed with the current application despite the stay.”73

[99] While Mrs Day complains about the ensuing division in hearings of the application, she does not allege his Honour erred in proceeding, as urged by all parties, to hear and determine the application. During the hearing on 8 January 2019 his Honour heard argument relating to the recusal application on the basis that it ought be resolved before any hearing of that component of the application relating to Mr Diehm QC and Mr O’Driscoll. After hearing submissions, he on that date dismissed Mrs Day’s application that he recuse himself and reserved his reasons, which were later delivered on 1 March 2019.74 He moved to consider the rest of the application after dismissing the recusal application (see appeal 5777 of 2019 below).

[100] The present appeal is against his Honour’s decision to dismiss the application to recuse himself. Mrs Day has abandoned grounds 13, 14, 15 and 29 of her 37 appeal

72 Day v Woolworths Limited & Ors [2019] QSC 40 [4].73 Day v Woolworths Limited & Ors [2019] QSC 40 [4].74 Day v Woolworths Limited & Ors [2019] QSC 40.

33

grounds, leaving 33 grounds for consideration. Most of them raise complaints which have already been dealt with in these reasons. The grounds are evidently framed in order to rely on their purported cumulative effect to support Mrs Day’s over-arching complaint of actual or apprehended bias, reflected in the complaint in ground 2 of her appeal, that his Honour erred in failing to disqualify himself. It is therefore convenient to return to ground 2 after first considering the many other grounds, curated for convenience under the ten complaints to which they in summary give rise.

Complaint 1: Failure to comply with ICCPR (ground 1).

[101] Ground 1 complains the learned primary judge erred by failing to afford equality and a fair hearing by an impartial court as required by the ICCPR. As explained in reasons given at [33] and [38] above, for the reasons previously given by Davis J, the ICCPR did not apply. Further, as noted at [39] above, the hearing was in the public forum of an open courtroom.

[102] Ground 1’s otherwise generalised complaint of a failure to afford equality and a fair hearing by an impartial court apparently relies upon the more specific complaints raised by other grounds. As will be seen, there is no substance to those complaints.

Complaint 2: Conflict of interest arising from undisclosed associations (grounds 3, 4, 5, 20, 21 and 22).

[103] Reasons already given above at [48] – [55] adequately explain why there is no substance to this complaint and the grounds relied upon in connection with it and why they provide no support for the complaint of actual or apprehended bias.

Complaint 3: Listing and other process errors (grounds 6, 7, 8, 9, 10, 11, 12, 16, 17, 18, 19, 23, 24, 30, 33).

[104] Various listing and other process errors are complained of, presumably because they are thought to evidence some kind of apparent bias against Mrs Day. In fact they misapprehend matters of process and none of them relate to conduct which could support the complaint of actual or apprehended bias.

[105] Ground 6 complains the learned primary judge erred by not delivering reasons on 8 January 2019 when he gave ex tempore orders dismissing the recusal application. The obligation to give reasons was met when his Honour published his reasons, as he said he would, at a later date. It is permissible for a court to give its decision and publish the reasons for that decision later. It usually happens where a judge is certain of the decision and anticipates it would assist the parties to know the decision forthwith but the judge will not have time to adequately articulate reasons for the decision until a later date. That is what happened here. It ought be emphasised that the number of judges and judicial working hours is finite and that judges have to prioritise judgment writing tasks as between sometimes multiple reserved judgments and their other court commitments during the court year. Judgment writing can also be particularly time consuming where a melange of erroneously constructed arguments fall to be addressed. It is unsurprising that in this case there was an interregnum between his Honour’s ex tempore orders and the delivery of his reserved reasons.

34

[106] Grounds 7 and 8 repeat the baseless allegations of hand-picking of Mrs Day’s case. Reasons already given above at [41] – [45] adequately explain why there is no substance to these grounds.

[107] Grounds 9, 10 and partly grounds 30 and 33 are based on Mrs Day’s erroneous understanding of the significance of her case’s past oversight in the self represented litigant supervised case list. Reasons already given above at [76] – [77] adequately explain why there is no substance to grounds 9 and 10 and to those parts of grounds 30 and 33 relating to this issue.

[108] Grounds 11 and 23 complain the learned presiding judge should not have held multiple hearings and should have decided all issues, including in relation to the stay proceedings, the recusal application, the application seeking the restraint of Mr Diehm QC and Mr O’Driscoll, and the issues of costs, in one judgment so as to avoid a multiplicity of proceedings. These grounds ignore the sequence of events. The applications for recusal and to restrain Mr Diehm QC and Mr O’Driscoll were not before the learned primary judge at the time he decided the stay proceeding. It in turn became necessary to separate the determination of the recusal application and the application to restrain Mr Diehm QC and Mr O’Driscoll because, if the former application were decided in Mrs Day’s favour, it would have been inappropriate for his Honour to hear the application relating to the restraint of Mr Diehm QC and Mr O’Driscoll. The number of separate hearings was a direct consequence of the nature and timing of Mrs Day’s applications, which she chose to press, and was not the product of any error by the learned presiding judge.

[109] Grounds 12 and 19 repeat a complaint that the learned presiding judge should have considered the recusal application prior to handing down his judgment on 16 November 2018. Reasons already given above at [46] adequately explain why there is no substance to this ground.

[110] Grounds 16, 17 and partly grounds 30 and 33 repeat the complaint the application for a permanent stay should not have been permitted to proceed because the proceeding had been stayed by Douglas J. Reasons already given above at [40] adequately explain why there is no substance to grounds 16 and 17 and to those parts of grounds 30 and 33 relating to this issue.

[111] Ground 18 complains the learned presiding judge erred in failing to consider the application to restrain Mr Diehm QC and Mr O’Driscoll. As already explained his Honour reasoned it was preferable to stagger the hearings, first determining the recusal application, lest it thereby emerge he should not hear Mrs Day’s application to restrain the lawyers. It was well within his Honour’s discretion to take that course. His reason for doing so did not involve error and bespeaks fairness, not bias, towards Mrs Day.Complaint 4: Not enough time, interruptions, preferential treatment (grounds 24, 25).

[112] Ground 24 repeats the complaint Mrs Day was not given adequate time to prepare her response to the defendants’ written outlines of submissions provided to her at court “not long before the hearing”. Reasons already given above at [70] adequately explain why there is no substance to this ground.

[113] Ground 25 alleges the learned primary judge constantly interrupted her during submissions on both 8 November 2018 and 8 January 2019 and displayed preferential treatment on 17 December 2018 by formulating issues on behalf of the respondents.

35

[114] The complaint as to constant interruption at the hearing of 8 November 2018 was addressed earlier. Reasons given above at [61] and [62] adequately explain why there is no substance to this complaint.

[115] The allegation of constant interruption at the hearing of 8 January 2019, is presumably advanced as founding a basis for apprehension of bias additional to those which were under consideration in the application. There is no substance to it. As with the hearing of 8 November 2018 there was dialogue from time to time between Mrs Day and his Honour but only occasional interruptions in the course of such dialogue. His Honour’s interruptions invariably occurred in the unremarkable context of attempting to secure or clarify answers to his queries or to encourage Mrs Day to pursue submissions which were relevant. No fair-minded observer would have thought otherwise. Mrs Day was given ample opportunity to advance her arguments and more latitude in doing so than a legal practitioner would have been given.

[116] It appears ground 25’s reference to preferential treatment and the formulation of issues is to a document styled “Proposed list of issues”. Its content was:

“Proposed list of issues

17 December 2018

1. Recusal application.

2. Are the proceedings permanently stayed?

3. If the proceedings are permanently stayed, is there utility in the applications against Mr Diehm QC and Mr O’Driscoll?

4. If the proceedings are not permanently stayed, or there is utility in hearing the applications even if they are permanently stayed, what is the outcome?

5. Costs of the application today.

6. Costs of the proceedings if they are permanently stayed.”75

[117] As can be seen from its content, the proposed list of issues was a neutral document, evidently prepared to assist his Honour’s management of the hearing of the pending application. There is nothing about it or its production which suggests preferential treatment. The learned presiding judge had prepared the proposed list of issues in advance of the listed hearing of 17 December 2018. As it turned out Mrs Day was said to be absent due to illness on the 17th. Before adjourning the application, his Honour marked his proposed list of issues for identification and directed copies of it and other exhibited documents of the court be provided to Mrs Day. This was obviously done with the intention of facilitating the future hearing of the application.

[118] Ground 25’s complaint is without substance and provides no support for the complaint of actual or apprehended bias.

Complaint 5: Unduly pressured to submit to further medical examination (ground 26).

75 AR Vol 5 p 1720.

36

[119] Ground 26 repeats a complaint his Honour erred because Mrs Day felt unduly pressured to submit to further medical examination despite having provided reports in support of her claim. Reasons given above at [64] adequately explain why there is no substance to this complaint and why it does not support the complaint of actual or apprehended bias.

Complaint 6: Open expression of pre-determined views (ground 27).

[120] Ground 26 complains his Honour erred in law by expressing a pre-determined view to dismiss the proceeding on 8 November 2018. Reasons given above at [63] adequately explain why there is no substance to this complaint and why it does not support the complaint of actual or apprehended bias.

Complaint 7: Errors re application to restrain Mr Morton, Mr Carter and Ms Forbes from acting (grounds 28, 31, 32, 33).

[121] Grounds 28, 31, 32 and in part 33 complain of errors in his Honour’s consideration of issues in respect of Mrs Day’s application to restrain Mr Morton, Mr Carter and Ms Forbes from acting. The decision to refuse the application to restrain those lawyers from acting is not the decision now under appeal. In any event reasons already given above at [80] – [89] adequately explain why there is no substance to grounds 28, 31, 32 and ground 33 as it relates to this issue. Those reasons also demonstrate why the refusal of the application was so inevitable it could not support a complaint of actual or apprehended bias.

Complaint 8: No notice of hearing of 16 November 2018 and determining costs in Mrs Day’s absence (grounds 34, 36).

[122] Grounds 34 and 36 complain his Honour erred by proceeding to make a costs order without the appellant having been heard on 16 November 2018 or given proper notice to appear on that occasion.

[123] Reasons already given above at [71], [90] – [93] adequately explain why there is no substance to these grounds and why they do not support the complaint of actual or apprehended bias.

Complaint 9: Remarks about the appellant’s belligerence (ground 35).

[124] Ground 35 resurrects the previously discussed complaint regarding the remark of his Honour on 16 November 2018 that Mrs Day “belligerently refused to acknowledge the authority of last year’s court order to see the doctors”.

[125] Reasons given above at [73] and below in respect of ground 2 adequately explain why there is no substance to this ground and why it does not support the complaint of actual or apprehended bias.

Complaint 10: Referring transcript to Legal Practitioners Admission Board (ground 37).

[126] Ground 37 complains the learned primary judge erred in referring a transcript to the Legal Practitioners Admission Board and stating that she was engaged in legal studies and one day would seek admission as a legal practitioner.

[127] Reasons given above at [74] – [75] and below in respect of ground 2 adequately explain why there is no substance to this ground and why it does not support the complaint of actual or apprehended bias.

37

Ground 2: “The primary judge erred in law by failing to disqualify himself from conducting the proceedings … due to an apprehended bias on his Honour’s part”.

[128] Turning finally to the over-arching complaint in ground 2, that his Honour erred in not recusing himself, his Honour correctly identified the legal principles to apply in an application for recusal on the ground of apprehended bias.76 He noted that the application was also advanced on the basis his Honour ought recuse himself for actual bias and correctly considered it on that basis as well. His reasons involved no apparent error of approach or principle and reached factual conclusions which were well open.

[129] The many individual supporting grounds canvassed above were the source of most of the arguments advanced by Mrs Day in this appeal. As the above reasons demonstrate, they provide no support for the conclusion that his Honour erred in dismissing the application to recuse himself.

[130] There are two other arguments to consider. On one view of Mrs Day’s submissions, she argued that the recusal application should itself have been considered by a different judge. If that is what she meant to argue, it was wrong. The ordinary and correct practice is that an application for the recusal of a judge should be heard by the judge being asked to recuse him or herself.77

[131] The remaining argument to address was that his Honour erred by restricting his attention in considering the recusal application to reference to apprehensions about the fairness of mind he would bring to determination of the application to restrain Mr Diehm QC and Mr O’Driscoll when the application had sought his recusal from any involvement, including in all applications not decided at the date of the filing of the recusal application.78 The argument overlooks the sequence of events. As earlier explained, his Honour could not have upheld an application to recuse himself before handing down his reasons on 16 November 2018 because he was unaware of the filed application. Nor did there exist circumstances which should have caused his Honour to recuse himself of his own volition. It was open to Mrs Day to appeal the decision of 16 November 2018, relying on the argument his Honour ought to have recused himself prior to handing down that decision or that the decision was otherwise infected by bias or unfairness. That is what Mrs Day did, unsuccessfully, in Appeal 13845 of 2018, discussed above.

[132] His Honour’s only remaining potential role in the matter, other than the determination of the application for recusal, was in the application to restrain Mr Diehm QC and Mr O’Driscoll. As earlier discussed, all parties urged his Honour to proceed to consider Mrs Day’s application. In proceeding to determine the recusal application, his Honour would have erred had he purported to determine it as if it could have some kind of retrospective effect upon a decision earlier made by him and by then under appeal.79 While it was still relevant in that determination to have proper regard to events preceding his decision of 16 November 2018, his Honour was also obliged to and did consider the further accumulation of alleged events subsequent to the handing down of his reserved decision on 16 November 2018.

76 AR Vol 1 pp 50-53; quoting and adopting the analysis of principle by Bond J in Parbery & Ors v QNI Metals Pty Ltd & Ors [2018] QSC 213.

77 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, 361 [74].78 Amended appellant’s outline of argument p 2 [2].79 Such an approach would have violated the principle favouring finality in litigation – see, for example

Copping v ANZ McCaughan Ltd (1997) 67 SASR 525, 569.

38

[133] The only potentially arguable concerning feature of those additional events was, having pronounced his orders and handed down his reasons for them on 16 November 2018, his Honour made observations about Mrs Day’s conduct and its link with her fitness to be a legal practitioner, referring a transcript of the proceedings and his remarks to the Legal Practitioners Admission Board.

[134] The detail of those matters and why they could not sensibly raise a perception of bias in connection with the decision handed down that day has already been dealt with in reasons above at [72] – [75]. An additional issue is whether they may have raised a reasonable apprehension the learned presiding judge might not bring an impartial mind to his future determinations in the matter, viz, the application to restrain Mr Diehm QC and Mr O’Driscoll.

[135] Contrary to the position occasionally taken by some losing litigants, the fact a judge has found against them in one proceeding does not of itself raise a reasonable apprehension the judge might not bring an impartial and unprejudiced mind to the resolution of further proceedings in which they are a party. A mere expectation of an adverse ruling in a pending application, premised on the failure of the same types of inadequate arguments advanced in a previous application before the same judge, does not equate to an apprehension the judge will not decide the pending application impartially. Litigants repeatedly pursuing similarly hopeless arguments cannot expect to be able to judge shop their way through a court’s judges by complaining previously presiding judges rejected such arguments. The need for robustness in respect of such litigants was explained in the following way by Mason J Re JRL; Ex parte CJL:80

“It needs to be said loudly and clearly that the ground of disqualification is a reasonable apprehension that the judicial officer will not decide the case impartially or without prejudice, rather than that he will decide the case adversely to one party. There may be many situations in which previous decisions of a judicial officer on issues of fact and law may generate an expectation that he is likely to decide issues in a particular case adversely to one of the parties. But this does not mean either that he will approach the issues in that case otherwise than with an impartial and unprejudiced mind in the sense in which that expression is used in the authorities or that his previous decisions provide an acceptable basis for inferring that there is a reasonable apprehension that he will approach the issues in this way. In cases of this kind, disqualification is only made out by showing that there is a reasonable apprehension of bias by reason of prejudgment and this must be “firmly established”: Reg. v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group; Watson; Re Lusink; Ex parte Shaw. Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour.”

80 (1986) 161 CLR 342, 352 (citations omitted).

39

[136] Where, as here, a judge has expressed an adverse view of some aspect of a losing litigant’s conduct, it is necessary to consider, as his Honour properly did,81 whether there is a logical connection between the expression of that view and the risk that the judge will not decide the forthcoming proceeding on its legal and factual merits.82

[137] As explained above at [74] his Honour had formed the views that Mrs Day made misconceived and unjustified attacks upon three legal practitioners and persisted in refusing to acknowledge the legality of the order of Douglas J and that such conduct raised sufficiently serious concerns about her fitness for admission as a legal practitioner to refer the papers to the Board. If the forthcoming proceeding were a determination of an application by her to be admitted as a legal practitioner, the expression of such views might then have had some potentially logical connection with the risk his Honour would not determine Mrs Day’s application for admission on its legal and factual merits.

[138] The High Court concluded there was such a connection in Livesey v New South Wales Bar Association,83 where an application for striking off a barrister from the roll was presided over, despite objection by some members of the Court of Appeal who in an earlier case, in which the barrister had not been a witness, had expressed the view the barrister had knowingly participated in a corrupt scheme and had made credit findings about the barrister’s prospective witness. The High Court there observed:

“…[A] fair-minded observer might entertain a reasonable apprehension of bias by reason of prejudgment if a judge sits to hear a case at first instance after he has, in a previous case, expressed clear views either about a question of fact which constitutes a live and significant issue in the subsequent case or about the credit of a witness whose evidence is of significance on such a question of fact.”84

[139] That reasoning was applied by the High Court in British American Tobacco Australia Services Ltd v Laurie,85 where the judge due to hear a trial against a tobacco company had earlier found the company had apparently selectively destroyed documents prejudicial to its position in future litigation. The majority considered this would herald a perception of pre-judgement of the same issue of relevance in the forthcoming trial.86

[140] In the present case, unlike those two High Court examples, there did not exist a logical connection between the expressed adverse view and the issues informing determination of the forthcoming application. His Honour’s view as to the doubtful suitability of Mrs Day for admission as a legal practitioner, and his reasons for that view, were not live or relevant issues in the pending application for his Honour’s determination. Nor did they have a logical connection with the assessment of the merits of her pending application. Those merits turned not upon Mrs Day’s merits as a prospective lawyer but on the merits of the application she was advancing.

81 AR Vol 1 p [50].82 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, 345.83 (1983) 151 CLR 288.84 (1983) 151 CLR 288, 300.85 (2011) 242 CLR 283.86 (2011) 242 CLR 283, 331-333.

40

[141] The bare fact that the pending application sought a similar form of relief to that previously sought was also not to the point. Judges commonly deal with repeat applications by the same litigant seeking the same legal category of relief but involving different issues of fact. Judges’ training and experience readily equips them to appreciate that the fact some such applications are ill-considered and unsupportable, does not mean others will be. A fair-minded lay observer would appreciate the fact the learned presiding judge had regarded the previous application to restrain lawyers as misconceived and unjustified would not mean there was a risk his Honour would fail to bring an impartial mind to bear upon the merits of another application to restrain different lawyers in reliance upon different facts. His Honour did not err in refusing to recuse himself.

Conclusion

[142] This appeal should be dismissed. Costs should follow the event.

CA 5777 of 2019 – Davis J (Dismissal of application to restrain Mr Diehm QC and Mr O’Driscoll from acting for the first defendant)

[143] Matter 5777 of 2019 is an application filed on 31 May 2019 for an extension of time within which to appeal orders made by Davis J on 9 April 2019.

[144] On 8 January 2019 when Davis J dismissed the recusal application, reserving his reasons, and turned to the application to restrain Messrs Diehm QC and O’Driscoll, Mrs Day announced she was too ill to continue. His Honour directed the application and remaining costs issues were to be determined on written submissions, giving directions for the exchange of written submissions. Written submissions were submitted. Mrs Day also purported to file an “amended application” with her written submissions, seeking certain lawyers be punished for contempt.

[145] His Honour in due course delivered judgment, making orders and publishing reasons. The orders refused Mrs Day’s aforementioned application for an order restraining Mr Diehm QC and Mr O’Driscoll from acting for the first defendant and refused the purported attempt to amend the application. Costs orders were also made.

[146] The application for an extension of time within which to appeal is opposed on the basis that the admittedly short delay has not been adequately explained and that in any event the proposed appeal is doomed to fail on the merits. Where a delay in filing is not very significant this court is often favourably disposed to grant leave if the proposed appeal has some merit.

[147] The proposed grounds of the appeal which Mrs Day seeks an extension of time to pursue and her submissions in support of the application do not suggest there is any merit in the prospective appeal. In the main, they merely reiterate the same or similarly themed complaints already explained by these reasons as being without substance. The additional ingredients to Mrs Day’s complaints of error or oversight in the learned presiding judge’s reasons went to some clearly irrelevant complaints about a couple more judges than before and an additional complaint of conflict of interest between Mr Diehm QC and a solicitor acting for the second defendant on the misconceived basis the solicitor had once acted for Mr Diehm QC in an entirely

41

unrelated matter. Mrs Day’s submissions on the merits did not expose any credible sign of an apparent error of law or reasoning in the judgment she seeks to appeal.

[148] A brief exposition of the issues below reveals no potential for concern about the conclusions reached by the learned primary judge. The application to restrain Mr Diehm QC and Mr O’Driscoll (the Woolworths barristers) from acting for Woolworths relied upon four allegations.

[149] The first allegation was that the Woolworths barristers had dragged the case out by filing applications.87 Its premise was that the nominated applications were calculated at delaying the progress of Mrs Day’s case and that it was supposedly the Woolworths barristers who had caused the filing of the applications. There was of course no evidence of the latter, but in any event the former premise was also unsustainable. Each of the applications had a proper purpose, rendering unsustainable the purported inference they were calculated at the improper purpose of delaying the progress of litigation.

[150] The first two nominated applications gave rise to the order of a District Court Judge in 2016 setting the date for the compulsory conference, mentioned earlier in these reasons at [82]. The learned primary judge noted it was explained in the reasons of the District Court Judge that Woolworths had initially applied for an order to set a date for the compulsory conference and later amended the application to seek an order to dispense with it. In circumstances where Mrs Day was willing to participate in a compulsory conference and Woolworths “only faintly” maintained its application to dispense with the conference, the learned District Court Judge proceeded to set the date for the compulsory conference. Woolworths’ applications to either dispense with or set a date for the compulsory conference each indicated a desire to advance the case, not to drag it out.

[151] The other nominated applications were Woolworths’ successful applications before Douglas J which resulted in him striking out some parts of the statement of claim and ordering the stay of the proceedings and the application before Davis J to dismiss or stay the proceeding, which was also successful.88 Their success demonstrates their proper purpose. It was Mrs Day’s refusal to nominate and submit to examination by the defendants’ experts which dragged out her case, terminally. The learned presiding judge was correct to observe there was no basis to conclude that the Woolworths barristers had acted improperly in connection with the making of the applications.

[152] The second allegation was that the Woolworths barristers had failed to responsibly use court process and privilege.89 The alleged conduct relied upon in support of this allegation was again the bringing of the above discussed applications before the District Court Judge as well as a variety of conduct which was by solicitors, not by the Woolworths barristers, as the learned presiding judge correctly noted. The few of those allegations which did complain of actual conduct by the Woolworths barristers involved a complaint that their outline of written submissions was provided to Mrs Day “shortly before or during the Court hearing”, characterising that as being litigation “by ambush”. The characterisation is wrong. It is common in the applications jurisdiction for written outlines of argument to be exchanged

87 AR Vol 1 pp 296-297.88 The learned presiding judge noted there may have been one other application intended to be referred

to but it could not be identified – AR Vol 1 p 75 [33].89 AR Vol 1 pp 297-298.

42

between the parties shortly prior to or at the hearing. The other complaint was about an acknowledgment in submissions by one of the Woolworths barristers in relation to the s 37(2) certificate issue. That issue as it related to the certificate signed by Mr Carter for the second and third defendants was canvassed above at [82]. The Woolworths certificate was similar, although it did add a clause reserving the right to obtain medicolegal reports if the matter did not settle.90 Counsel’s acknowledgement was to the effect that perhaps the certificate did not comply with s 37(2). That was obviously not a concession that the certificate’s content was wrong or misleading.

[153] The third allegation complained of breaches of court orders and practice directions. This allegation involved Mrs Day’s complaints that her matter should not have been dealt with other than in the self-represented litigants supervised case list and that the filing of certain documents and applications occurred while the proceeding was the subject of that stay order by Douglas J. However, apart from there actually being no impropriety in connection with these matters, it is not apparent how they were in any event the responsibility of the Woolworths barristers as distinct from other lawyers involved in the case on behalf of the defendants. Conduct attributed more directly to the Woolworths barristers in connection with the third allegation did not involve misconduct. For example, it was alleged the Woolworths barristers failed to identify issues in the interests of the efficient conduct of litigation by allowing Davis J to place his Honour’s “proposed list of issues” before the court on 17 December 2018, in circumstances explained in these reasons above at [97], [116] - [117]. It is not apparent how not objecting to a Judge’s helpful attempt to identify issues is in any sense a failure. A further example is that the Woolworths barristers supposedly contradicted the desirability of efficient use of court resources by opposing Mrs Day’s attempt to consolidate her case against Woolworths with another case in which she is suing the Queensland University of Technology and others. As the learned primary judge observed, the consolidation application was dismissed, so the opposition was apparently justified.

[154] The fourth allegation alleges abuse of court process and involvement in professional misconduct.91 To the extent the conduct relied upon in support of this allegation involved the Woolworths barristers, there was again no substance to it. One complaint was that Mr Diehm QC failed to inform the Court of Appeal which upheld the stay order of Douglas J, of supposedly binding authority. This is actually a reference to non-binding observations by Jackson J in a previous Court of Appeal proceeding relating to this case, in which his Honour expressly declined to decide an issue. Another complaint was that Mr O’Driscoll failed to bring Mrs Day’s filing of her recusal application to the attention of Davis J on the occasion that he handed down his decision of 16 November 2018. In fact, it is apparent from what was said by Mr O’Driscoll on that occasion that he alluded to the existence of a forthcoming application and evidently did not descend into the detail of it because he was unaware of the learned presiding judge’s state of ignorance of it.92 There was also an attempt to attribute misconduct to the Woolworths barristers for the circumstance, which was not their fault, that on 16 November 2018 Mrs Day was not at court and that the learned presiding judge determined to award costs against her on that occasion.

90 AR Vol 2 p 671.91 AR Vol 1 pp 301-306.92 The exchange was conveniently discussed in earlier reasons - AR Vol 1 pp 61-63.

43

[155] Further, there was an attempt to allege a breach of the Barristers Conduct Rules on the premise that because Mr Diehm QC and Mr O’Driscoll were the subject of the application to restrain them from acting, they ought not have continued to appear for Woolworths against Mrs Day. In fact, they had sought and obtained the approval of the outgoing President of the Bar Association to continue to act. There was also no impropriety in them continuing to do so in circumstances where, as the learned presiding judge observed, the allegations against them were misconceived and there was no realistic possibility that they would be witnesses in the application against them.

[156] There was no substance to the application to restrain the Woolworths barristers. It was either misconceived or vexatious. The learned presiding judge was right to conclude it ought be dismissed.

[157] In her attempt to amend the application below Mrs Day sought orders punishing the Woolworths barristers, as well as Ms Forbes and Mr Carter, for contempt. The basis for this was the filing of certain documents and making application to dismiss the case while it was subject to a stay and not seeking a review before the self-represented litigant supervised case list judge. Reasons already given above at [40], [76] – [77], [87] and [149] – [155] adequately demonstrate why the bases advanced could never have supported a finding of contempt. The learned primary judge was correct to conclude there was no prospect of the application for relief in the proposed amendment succeeding. It is thus unnecessary to discuss his Honour’s observations about the other obstacles to the attempt to amend the application.

[158] The costs orders below, required Mrs Day to pay the first defendant’s costs of the proceedings and the application on the standard basis and the second and third defendants’ costs of the proceedings, including all reserved costs, on the standard basis except their costs of the application which were ordered to be paid on the indemnity basis.93 The orders were conventional, following the events below. The indemnity costs order was properly made because the second and third defendants had been unreasonably included in an application which clearly only related to the first defendant’s counsel.

[159] It is clear the proposed appeal is without merit. The application for an extension of time within which to appeal should therefore be dismissed. Costs should follow the event.

Other applications

[160] It was indicated at the outset of these reasons that the various other applications remaining before this court should be dismissed. The ensuing reasons for that conclusion are of course informed by the above exposition of the issues in the three appeals and application for extension of time within which to appeal.

[161] In CA 5386 of 2018 an application filed 10 November 2020 sought specific orders, that:

1. leave be given for Mrs Day to adduce further evidence;

2. certain lawyers pay costs personally;

3. Mrs and Mr Day be indemnified for loss suffered by reason of the conduct of certain lawyers and law practices;

93 Day v Woolworths Limited & Ors (No 2) [2019] QSC 93.

44

4. the lawyers in 2. attend court and give evidence in relation to allegations of their breach of duty to the court.

[162] A similar application was filed on the same date in: CA 13845 of 2018, save that it also sought as order 5, an order that a

subpoena issue requiring the former associate to Justice Davis to attend and give evidence regarding the handling of the litigation;

CA 1131 of 2019, save that it also sought the extra order 5;

CA 5777 of 2019, save that it sought as order 3 an additional order that certain lawyers and law practices pay wasted costs in relation to Mrs Day’s applications, with its proposed orders 4 and 5 being identical to orders 3 and 4 sought in the other appeals.

[163] Those parts of the applications which sought proposed orders 3, 4 and 5 above were struck out at the hearing, except for proposed order 5 in the application in CA 13845 of 2018 and proposed order 3 in the application in CA 5777 of 2019. The court’s intention was that proposed order 5 in the application in CA 13845 should be struck out because there was no foundation to potentially justify such an order but in any event the same reasons explain why the application must fail in respect of that aspect of it.

[164] The order 3 sought in the application in CA 5777 of 2019 relates to costs in applications filed 19 June 2019, 21 November 2019 and 27 July 2020. The first two of those applications were struck out with no order as to costs at the hearing. The proposed order’s reference to an application said to have been filed on 27 July 2020 apparently relates to an application dealt with by Morrison JA in making orders relating to arrangements for the hearing of all matters together.94 It did not remain a live application before this court and in the event a specific order was not made as to costs the costs associated with such a process would be costs in the cause.

[165] The proposed order 2 in all applications is academic because it only assumed potential relevance in the event of Mrs Day’s success in her Court of Appeal matters. This only leaves proposed order 1, seeking leave to adduce evidence, in each matter. That evidence is Mrs Day’s affidavit sworn on 9 November 2020, an affidavit consisting of 27 pages followed by 251 pages of 96 exhibits.

[166] While this court has the discretion to receive further evidence,95 it is a discretion which is rigidly controlled because, as McMurdo JA explained in Palmer v Parbery,96 “it is in the interests of justice that there be an end to litigation”. Most of Mrs Day’s affidavit is merely a repetition of or elaboration upon information, submissions and complaints of a kind repeatedly advanced below and which, as is apparent from the above reasons, have no prospect of demonstrating error. To the extent the affidavit contains any freshly emerged evidence it is the exhibited reports of one Alan Perlman PhD of New Hampshire, USA, who is said to be a forensic linguistic expert with expertise in forensic semantics and forensic stylistics. The exercise in which those reports each engage goes to whether some of the above considered submissions and documents by lawyers was false or misleading. The

94 Transcript 1-59 L35 – 1-60 L15.95 UCPR r 766.96 (2019) 136 ACSR 26, 61.

45

resolution of that question of fact, a quintessential question for the tribunal of fact, turned upon factual and legal context, not linguistics, as is apparent from the above reasons. In fairness to the expert, it is not apparent he was fully aware of the legal and factual context in play. In any event the opinion in the reports would not be admissible.

[167] In all four matters the applications filed 10 November 2020 should be dismissed. Costs should follow the event.

Orders

[168] I would order:

1. In Appeal No 5386 of 2018:

(a) appeal dismissed with costs;

(b) application filed 10 November 2020 dismissed with costs;

(c) in the event there is no successful appeal of order (a) in Appeal No 13845 of 2018, the injunction ordered 24 April 2018 is by this order discharged on the date the possibility of a successful appeal ends.

2. In Appeal No 13845 of 2018:

(a) appeal dismissed with costs;

(b) application filed 10 November 2020 dismissed with costs.

3. In Appeal No 1131 of 2019:

(a) appeal dismissed with costs;

(b) application filed 10 November 2020 dismissed with costs.

4. In Appeal No 5777 of 2019:

(a) application for extension of time within which to appeal and for other relief dismissed with costs;

(b) application filed 10 November 2020 dismissed with costs.

[169] WILLIAMS J: I have read the reasons of Henry J and agree with those reasons and the orders his Honour proposes.

Powered by TCPDF (www.tcpdf.org)