Fuller v Toms & Ors [2010] QCA 283

SUPREME COURT OF QUEENSLAND

CITATION: Fuller v Toms & Ors [2010] QCA 283

PARTIES: DONALD FULLER (defendant/appellant) v STEPHEN TOMS (plaintiff/respondent) PHILLIP TOYNE (plaintiff/ respondent) CHARLES BRIGHT (plaintiff/respondent) BRETT HEADING (plaintiff/respondent)

FILE NO/S: Appeal No 309 of 2010 / SC No 3234 of 2009

DIVISION: Court of Appeal

PROCEEDING: General Civil Appeal

ORIGINATING COURTS: Supreme Court at Brisbane

DELIVERED ON: 15 October 2010

DELIVERED AT: Brisbane

HEARING DATE: 30 July 2010

JUDGES: McMurdo P, Fraser and White JJA / Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS: 1. **Appeal dismissed with costs.**2. **Applications for leave to adduce fresh evidence refused.**3. Application to lodge further submissions and for leave to adduce fresh evidence refused.

CATCHWORDS: APPEAL AND NEW TRIAL – APPEAL - GENERAL PRINCIPLES – INTERFERENCE WITH DISCRETION OF COURT BELOW – IN GENERAL – GENERAL PRINCIPLES – FUNCTIONS OF AN APPELLATE COURT – SUBSTANTIVE RIGHT OR MATTER OF PROCEDURE – MATTERS OF PROCEDURE – GENERALLY – where the respondents filed a claim against the appellant for defamation and the appellant filed three pleadings in response – where the pleadings were stuck out by the primary judge due to substantial deficiencies and the appellant was granted leave to file a further amended defence and counterclaim – where the further pleading was struck out and the appellant was ordered to obtain leave before filing any further pleadings – where the respondents filed a notice of discontinuance and the appellant filed an application for leave to file an amended defence and counterclaim – where the primary judge refused the appellant’s application, granted the respondents leave to discontinue, and ordered the appellant to pay the respondents’ costs – where the appellant appealed against those orders – whether the primary judge erred in determining that the appellant’s pleadings were substantially deficient and inconsistent with the Uniform Civil Procedure Rules 1999 (Qld) – whether the primary judge erred in striking out the appellant’s pleadings and refusing his application for leave – whether the primary judge erred in granting the respondents leave to discontinue – whether the appellant suffered prejudice, injustice or was deprived of substantive rights due to the discontinuance – whether the grounds relied on by the appellant would justify interference with the orders of the primary judge / APPEAL AND NEW TRIAL – APPEAL - GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – FOR BIAS IN JUDICIAL PROCEEDINGS – where the appellant made an application that the primary judge disqualify himself due to apprehended bias – whether the primary judge erred in refusing the application – whether a fair minded observer might reasonably apprehend that the primary judge might not bring an impartial mind to the resolution of the question to be decided – whether in expressing preliminary views the primary judge gave rise to an apprehension of bias / APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – INTERFERENCE WITH DISCRETION OF COURT BELOW – PARTICULAR CASES – OTHER MATTERS – OTHER CASES – whether the primary judge erred in not making orders for the disclosure of documents / APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – INTERFERENCE WITH DISCRETION OF COURT BELOW – PARTICULAR CASES – OTHER MATTERS – COSTS – whether the costs orders made by the primary judge should be set aside / APPEAL AND NEW TRIAL – APPEAL - PRACTICE AND PROCEDURE – QUEENSLAND – POWERS OF COURT – FURTHER EVIDENCE – where the appellant applied for leave to adduce fresh evidence before and after the hearing of the appeal – whether the Court should grant the appellant’s applications for leave to adduce fresh evidence / Limitation of Actions Act 1974 (Qld), s 10AA / Supreme Court Act 1995 (Qld), s 253 / Uniform Civil Procedure Rules 1999 (Qld), r 5, r 149, r 304(2), r 311, r 668 / AGL Sales (Qld) P/L v Dawson Sales P/L & Ors [2009] QCA 262, cited / Antoun v The Queen (2006) 80 ALJR 497; [2006] HCA 2, discussed / Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55, cited / Covell Matthews & Partners v French Wools Ltd [1977] 1 WLR 876; [1977] 2 All ER 591, cited / Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63, applied / Hills v Chalk [2009] 1 Qd R 409; [2008] QCA 159, cited / In re the Will of F B Gilbert (dec’d) (1946) 46 SR (NSW) 318, cited / Packer v Meagher [1984] 3 NSWLR 486, cited / Ridolfi v Rigato Farms Pty Ltd [2001] 2 Qd R 455; [2000] QCA 292, cited / Toms & Ors v Fuller [2009] QSC 415, related / Vakauta v Kelly (1989) 167 CLR 568; [1989] HCA 44, cited

COUNSEL: The appellant appeared on his own behalf / K A Barlow for the respondents

SOLICITORS: The appellant appeared on his own behalf / Mallesons Stephen Jaques for the respondents

[1] McMURDO P: I agree with Fraser JA’s reasons for dismissing the appeal with costs. The appellant’s application “to lodge further brief submission and to adduce further fresh evidence” does not raise matters which would justify the extraordinary course of accepting such material after the hearing of the appeal. I agree with the orders proposed by Fraser JA.

[2] FRASER JA: The appellant has appealed from orders made by Peter Lyons J on 18 December 2009 granting the respondents leave to discontinue their claim against the appellant, refusing the appellant’s applications for leave to file an amended defence and counterclaim and other orders, and ordering the appellant to pay the respondents’ costs of and incidental to the appellant’s application to file the further amended defence and counterclaim assessed on an indemnity basis. The appellant has also challenged the primary judge’s decision on 25 September 2009 to refuse to disqualify himself for apprehended bias.

Background

[3] The appellant alleges that he was involved in negotiations relating to the Australian Agricultural Company Limited (“the Company”), between about June 2008 and February 2009 and in connection with the negotiations he was supplied with various documents which purported to describe the Company’s financial affairs. In early 2009 the appellant wrote letters to the Australian Securities and Investments Commission and various companies in which he questioned the accuracy of some statements in the documents concerning the number of cattle held by the Company. The respondents claimed that the appellant’s letters defamed them. On 27 March 2009 the respondents filed a claim against the appellant for damages for defamation.

[4] The appellant responded to the respondents’ claim by filing an “Initial Response to the Claim” on 30 March 2009, a “Conditional Notice of Intention to Defend and Challenges to Jurisdiction and Court Location and Counterclaim” on 15 April 2009, and an “Amended Conditional Notice of Intention to Defend and Changes to Jurisdiction and Court location and Counterclaim” on 5 May 2009. On 11 May 2009 the primary judge concluded that there were very substantial pleading deficiencies in those three documents, struck them out, and gave leave to the appellant to file an amended defence or an amended defence and counterclaim within forty-two days.

[5] On 6 July 2009 the appellant filed an amended defence and counterclaim. On 24 July 2009 the primary judge found that this document was also substantially deficient as a pleading, struck it out, and ordered that the appellant obtain the leave of the court before filing any further amended defence or further amended defence and counterclaim.

[6] On 4 September 2009 the respondents filed a notice of discontinuance of their claim. On 10 September 2009 the appellant filed an application for leave to file a further amended defence and counterclaim. The appellant also applied for an order striking out three subparagraphs in an affidavit of the respondents’ solicitor which explained why the respondents wished to discontinue their claim. At the first hearing of those matters, on 21 September 2009 the primary judge ruled that the respondents’ purported discontinuance of their claim was not effective. The respondents’ counsel then applied orally for leave to discontinue the respondents’ claim. After further argument the hearing was adjourned.

[7] At the resumed hearing on 25 September 2009 the appellant asked the primary judge to disqualify himself for apprehended bias arising from his Honour’s conduct of the proceedings on 21 September 2009. The primary judge refused that application. The primary judge also ruled against the appellant’s application to strike out part of the respondents’ affidavit evidence. On 18 December 2009 the primary judge published reasons and made orders refusing the appellant leave to file his proposed further amended defence and counterclaim and granting the respondent leave to discontinue their claim.

The appellant’s challenges to the orders

[8] Many grounds of the appellant’s appeal contend that the primary judge’s decisions were affected by apprehended bias. The appellant did not seek an order for a new hearing of the applications in the trial division. He instead sought orders refusing the respondents’ application for leave to discontinue and granting him leave to file his proposed pleading. It may be open to question whether the latter orders should be granted where an appeal succeeds on the ground of apprehended bias, but the respondents did not take such a point.¹ It is not necessary to consider the point further because I have concluded that there is no substance in the appellant’s contention that the primary judge’s decisions were affected by apprehended bias. I will discuss the appellant’s arguments on that topic in the course of explaining my reasons for that conclusion. Logically this ground of appeal should be dealt with first, but the appellant’s arguments on that topic may more readily be understood after I have discussed the appellant’s other challenges to the orders.

[9] The appellant, who has represented himself throughout, presented lengthy grounds of appeal and detailed written arguments which he adopted in his opening oral submissions, and he summarised his main points in his oral submissions in his reply. I will refer to the main themes of the appellant’s arguments under headings corresponding to the challenged orders.

Refusal of leave to file the proposed amended defence and counterclaim

[10] Many of the appellant’s arguments, including those in support of his applications for leave to adduce fresh evidence in this Court,² were directed to attempts to prove his allegations, particularly his allegation that the Company had overstated the number of its cattle. Much of the record was devoted to this topic and to related topics, such as his argument that the trial judge erred by not taking into account an alleged contravention of s 408C of the Criminal Code 1899 (Qld). The appellant has steadfastly maintained that the Company had substantially overstated the number of its cattle and that the respondents were responsible for the error. In this Court the appellant argued, for example, that the respondents were responsible for “the greatest cattle fraud in the history of the world.” He argued that an examination of this topic at a trial is in the public interest. He argued that he has convincing evidence to support his allegations.

[11] However those arguments, which were put with evident sincerity and with reference to many documents, are not relevant to the issues in this Court. The primary judge did not strike out the appellant’s earlier pleadings or refuse him leave to file his further amended defence and counterclaim on the ground that the appellant’s allegations about the Company’s cattle were incapable of being supported by evidence at the trial, were not arguable, or were otherwise frivolous or vexatious. The respondents did not challenge the appellant’s pleadings on any such basis. The primary judge instead refused leave because the appellant’s proposed defence and counterclaim very substantially departed from fundamental requirements of the procedural rules, rules which were designed to facilitate the just and efficient disposition of litigation.

[12] When on 11 May 2009 the primary judge struck out the first three documents filed by the appellant in March, April and May 2009 his Honour observed that the appellant did not have a clear understanding of matters which established a claim or a defence relevant to the litigation and that there had been little, if any, attention to the need to plead the material facts or the other rules of pleading set out in UCPR. His Honour gave examples of some obvious deficiencies in the appellant’s pleadings, acknowledged that the appellant had chosen to represent himself and to prepare his own pleadings, and observed that, “it is important that issues be properly identified and that all parties and the Court have a fair and proper chance to understand the true nature of the case and to deal with it in an orderly fashion.”

[13] The appellant’s 6 July 2009 amended defence and counterclaim did not cure the defects in the earlier documents. It was excessively and unnecessarily lengthy, comprising 93 pages and consisting of 315 paragraphs, some of which had substantial numbers of subparagraphs, together with additional paragraphs said to relate to the counterclaim. On no reasonable view was such extraordinary length required to meet this case. As the primary judge also pointed out, the first 15 pages headed “Brief outline of the case from the defendant’s viewpoint”, sought to identify evidence upon which the appellant proposed to rely on at the hearing rather than material facts. After referring to the substantial deficiencies in the appellant’s earlier documents struck out on 11 May 2009, the primary judge noted that the new pleading filed on 6 July 2009 again involved a “complete failure to attempt to distil material facts”, “a significant failure to provide a comprehensible response to the allegations in the statement of claim”, and a document which suffered from substantially the same defects as that which was struck out by the order of 11 May 2009. For those reasons the primary judge struck it out and ordered that the appellant obtain the leave of the court before filing any further amended defence or further amended defence and counterclaim.

[14] On 18 December 2009 the primary judge refused leave for the appellant to file his subsequent proposed amended defence and counterclaim for similar reasons. The primary judge referred to relevant rules of pleading and their requirements in the following passage of his Honour’s reasons:³

“[7] The following rules of pleading are relevant to Mr Fuller’s application:-

(a) A pleading must be as brief as the nature of the case permits [Rule 149(1)(a) Uniform Civil Procedure Rules 1999 (UCPR)];

(b) A pleading must contain a statement of the material facts on which the party relies, but not the evidence by which the facts are to be proved [See r 149(1)(b)].

[8] It follows from the requirement that pleadings be limited, with certain exceptions not relevant for present purposes, to material facts, that a pleading is not the place to set out a party’s arguments. Nor, as the rules expressly state, is it the place to set out the evidence which proves the material facts.

[9] The function of a pleading is to state, with sufficient clarity, the case that a party must meet [Banque Commerciale S.A., en Liquidation v Akhil Holdings Ltd (1990) 169 CLR 279, 286, citing Gould v Mount Oxide Mines Ltd. (in liq) (1916) 22 CLR 490, 517]. Pleadings serve a basic requirement of procedural fairness in litigation, by ensuring a party has the opportunity of meeting the case made against that party; and they also serve the important purpose of defining issues for decision [Banque Commerciale at 286]. While procedural fairness is a matter of great importance in litigation, the definition of the issues for decision is also important, as it identifies the matters which the Court must deal with in its decision.

[10] A person who wishes to draw a pleading claiming relief against other parties will therefore need to have a good understanding of each cause of action which that person wishes to rely on. The person will also need to be able to identify the material facts which are required to be established for each cause of action, and state them with clarity and succinctness in the pleading.”

[15] The primary judge concluded that the proposed defence and counterclaim represented a departure from the rules of pleading on an extensive scale. The primary judge observed that the document was about 88 pages in length, consisting of 184 paragraphs with numerous subparagraphs; the first 76 pages apparently constituted the defence; there followed four pages apparently intended to identify the relief the appellant sought by way of counterclaim, although much of that comprised of “findings” which the appellant sought. The appellant also sought an order that the “matter” be referred to ASIC under the Corporations Act 2001 (Cth), damages for defamation and fraudulent misrepresentation, interest and costs. The first paragraph of the counterclaim incorporated all of the allegations in the defence, many which could not arguably be relevant to any relief sought, and otherwise it comprised a mixture of “narrative, often flamboyantly expressed, argumentative material, and evidence”.⁴

[16] The appellant relied upon an affidavit in which he explained his proposed pleading, but it is the pleading itself which must be analysed. He argued that deficiencies in form were mere irregularities under r 371 of UCPR, but that does not deny the Court’s power to regulate its proceedings by insisting that pleadings comply with the procedural rules.

[17] The appellant also contended that the primary judge erred in deciding that the proposed pleading was inconsistent with r 149(1)(a) and (b). That contention cannot be accepted. The primary judge correctly characterised the document. One example is sufficient to make the point. Paragraph 16 of the respondents’ statement of claim alleged that the appellant’s letter described as “MH.03” conveyed specific meanings and paragraph 17 alleged that those meanings were defamatory of the respondents. The appellant’s proposed pleading responded as follows:

“16. I deny the allegation in paragraph 16 of the Statement of Claim concerning “MH.03” because:

a.It was merely the first in the developing series of correspondence now cited against me that, fairly and logically considered as a whole and in full and proper context, conveys an obviously very different meaning of the words.

b.Neither as a stand-alone document nor as part of the series, can it be reasonably misconstrued as defamatory nor as carrying the imputations alleged. The ordinary natural meaning of the words in “MH.03” is quite different from that alleged.

c.The ordinary natural meaning of the words in “MH.03” is also different from the ordinary natural meaning of the words in most of the publications that followed when the situation changed.

d. For a start, the practically identical heading on each of the two letters comprising “MH.03” - the “main letter” and the “brief covernote” - is quite different to the heading on most of those that followed. The essential nature of the main letter was quite different from most of those that followed in the series.

e. There are before-and-after dimensions to this whole situation. There is the situation before the Plaintiffs declined to correct the just-published FY2008 AACo accounts that are central to this matter and the subject of complaint in “MH.03”; and there is the situation after it became apparent by their conduct that the Plaintiffs would not correct the accounts.

f.The Plaintiffs eventually informed the market of a change of accounting treatment for Natural Increase that bears on the subject matter of “MH.03”, but by then a second major fault in the accounts came to light and is reflected in the series of my publications now cited against me; and that second fault has not at all been corrected.

g.As to belated disclosure of the change of accounting treatment of Natural Increase, that simply changed the nature of the complaint by that stage from fraudulent overstatement of cattle inventory to fraudulent nondisclosure of change of accounting practice. But none of that is in MH.03.

h. “MH.03” quite plainly belongs in the “before” situation; and the ordinary natural meaning of the words in it fits that “before” situation!

i. The Plaintiffs, whom were addressed with others, are the very people directly responsible for the published accounts in question; and for making corrections reasonably and properly sought, as in “MH.03”.

j. In any event a statement cannot be defamatory; alternatively, is defenceable as having been justifiably made as in this case, if it is true or substantially true and fair comment in the public interest.

…

17. The ordinary natural meaning of the words in the main letter and covernote of same (collectively, “MH.03”) represent little more, if anything more, than a polite but insistent and timely letter from one businessman to other businessmen already in negotiations with one another, about a deal the foundations for which were the just-published accounts of the cattle company; and in which a fault or faults are pointed out and corrections sought in a gentlemanly manner.

a. In patient, polite-but-firm manner spanning most of the three pages of the main letter, and by reference to the two reproduced supporting technical pages attached to the letter from one of the Plaintiffs’ own publications, I set out the major technical fault in the accounts.

b. I drew attention to a “glaring irreconcilability” of 80,000 to 100,000 head of cattle in the closing cattle inventory. That is surely enough to pale anything I otherwise said, or the manner of saying it, into insignificance!

c. Second para. p.1, speaks of an overstatement of 1ivestock numbers “requiring correction” Second-to-last para. p.3, says: “If we are more realistic ... the discrepancy is very likely much closer to 100,000 head…” It concludes: “This is not the end of the world, but there is a bit of straightening out to be undertaken!” The whole letter is about a correction or corrections sought!

d. If the correction had been promptly made at that time, or the explanation promptly given that was belatedly provided to the market 43 days later, the whole thing might have been somehow passed off as an error or oversight, and with honour preserved all round. That is what is implied in the ordinary natural meaning of the words in the letter.

e. If the Plaintiffs had promptly and conscientiously ensured that some such corrective action was taken, they would have been fulfilling their roles in a proper and businesslike manner. And that is how I addressed the directors of each company: As gentlemen who would do the right thing!

f. As to their purported basis for change of accounting treatment of Natural Increase, not even the belated explanation for it can be relied upon! In a prior publication they explain drought-mitigating sale of thousands of in-calf breeder cows due to calve mid-year. At best the belated “explanation” of near-end-of-year calving is only partly true; and is very largely and obviously untrue! This just made the situation worse!

g. And nothing in the explanation squarely addresses, nor at all, the essential issue of fraudulent non-disclosure of change of accounting practice in the first place.

h. But there is no mention of this compounding trouble in “MH.03”.

i. In two short paras, bottom p.1 and top p.2, main letter in “MH.03” there is a position declared “... in the interests of the company as a whole...” and a strong opinion expressed concerning a dispute between AACo and its 43% parent company – “... so that you are not at all caught by surprise!”

i.To my present knowledge none of that is in contention; and will be defended if it is, as an honestly held opinion and fair comment in the public interest.

ii. It will also be defended on basis of good business practice. It was no gratuitously expressed opinion; rather, a declaration of position within the full and proper context of negotiating my group’s buy-in-or-buy-out deal in which our much preferred and stated position was for Futuris to “stay-in”, ie, our preference was for the buy-in deal; and we would not have wanted to be litigating with a venture partner from the outset.

J. In full and proper context there is nothing in “MH.03” as a whole or in the ordinary natural meaning of the words that can be reasonably construed as defamatory; or reasonably construed as carrying the alleged imputations! I repeat my denial of the allegation in paragraph 16 of Statement of Claim.”

[18] As that typical example illustrates, the appellant’s pleading was far longer than the nature of the case required, it was repetitious, it was burdened with unnecessary adjectival and adverbial flourishes, and such facts as were alleged were often inextricably bound up with editorial comment, argument, and references to evidence. Those problems were not resolved, as the appellant argued, but instead were compounded by the fact that the counterclaim expressly incorporated all of the “facts alleged generally” in the defence, incorporating in the counterclaim every one of the numerous defects of the defence. The appellant’s affidavit evidence that he had laboured long and hard upon his pleading does not assist in the task of analysing it. Upon analysis it is substantially deficient and it is not practicable to separate alleged facts from argument and evidence.

[19] Those deficiencies would inevitably render it difficult, if not impractical, for the parties and the trial judge to identify the real issues in the proceeding, thereby introducing unnecessary inefficiencies and slowing the proceedings. Allowance must be made for the real disadvantage the appellant suffered as an unrepresented litigant, but that does not justify the wholesale disregard of the interest of his opponents, the court, and the community in the efficient and just disposition of this litigation. To permit such a pleading to stand would be to promote the risk of failure of the central purpose of the rules, which is “to facilitate the just and expeditious resolution of the real issues in civil proceedings at a minimum of expense”.⁵ It would contravene the manner in which the courts are directed to apply those rules, namely, “with the objective of avoiding undue delay, expense and technicality and facilitating the purpose of these rules”.⁶ The fundamental procedural requirements for succinct and comprehensible pleading of material facts may be applied flexibly, but they are not mere technicalities. They are designed to ensure procedural fairness and the efficient disposition of proceedings, in part by the early definition of the real issues in dispute. No reasonable liberality could excuse breaches of the procedural requirements on the large scale in the appellant’s proposed pleading.

[20] The primary judge was right to refuse the appellant’s application for leave to file his proposed amended defence and counterclaim.

Leave to discontinue

[21] The UCPR provides:

“304 Discontinuance by plaintiff or applicant

(1) A plaintiff or applicant may discontinue a proceeding or withdraw part of it before being served with—

(a) for a proceeding started by claim—the first defence of any defendant; or

(b) for a proceeding started by application—the first affidavit in reply from a respondent.

(2) However, after being served with the first defence or first affidavit in reply, a plaintiff or applicant may discontinue a proceeding or withdraw part of it only with the court’s leave or the consent of the other parties.

…

309 Notice of discontinuance or withdrawal

(1) A discontinuance or withdrawal for which the court’s leave is not required may be effected by filing a notice in the approved form and serving it as soon as practicable on the other parties who have an address for service.

(2) A discontinuance or withdrawal for which the court’s leave is required is effected by the order giving leave and a notice of discontinuance or withdrawal is not required.

310 Subsequent proceeding

(1) Subject to the conditions of a leave to discontinue or withdraw, a discontinuance or withdrawal under this part is not a defence to another proceeding on the same or substantially the same ground.

(2) A party who is served with another party’s notice of withdrawal may continue with the proceeding as if the other party’s notice of intention to defend had not been filed.”

[22] In the primary judge’s reasons of 18 December 2009 his Honour first dealt with the appellant’s application for leave to file his proposed amended defence and counterclaim and then said: ⁷

“It was convenient not to dispose of the plaintiffs’ application for leave to discontinue their claim, until a decision had been made whether Mr Fuller should be granted the leave which he sought. No other reason has been shown to refuse that application of the plaintiffs. Mr Fuller having been refused leave to file the FADC, there is no reason to refuse the plaintiffs’ application. I propose to grant it.”

[23] The appellant argued that the primary judge erred in refusing to strike out three subparagraphs in the affidavit of the respondents’ solicitor. In those subparagraphs the solicitor deposed that the respondents’ had informed him that each of them took the view that to continue the proceeding would involve considerable expense in respect of applications to repeatedly strike out documents filed by the appellant, that there was little prospect of the appellant delivering a defence which complied with the rules and which would therefore allow the matter to proceed in a timely and cost effective manner, and that they considered it unlikely that the proceeding would resolve in the near future. In refusing to strike out those paragraphs the primary judge rejected the appellant’s submission that they were offensive and imputed that he was “such a hopelessly incorrigible rouge that I won’t be controlled by the Court” or “such a hopelessly mental incompetent… I can’t be controlled by the Court.” The respondents’ solicitor had also deposed that he had been informed that the respondents wished to discontinue their proceeding and that they no longer held positions with the company. The appellant emphasised the second of those matters in his submissions on appeal.

[24] The appellant argued that the primary judge erred in failing to find that there was a lack of good faith in the respondents’ claim and their stated reasons for wishing to discontinue. He vigorously attacked the truth and credibility of that evidence. However, the history of the appellant’s irregular conduct of his defence and counterclaim provided objective support for the evidence in the solicitor’s affidavit. The appellant did not seek to cross examine the solicitor. The primary judge was entitled to accept the evidence. There was no error in the primary judge’s refusal to strike it out.

[25] The discretion to grant or refuse leave to discontinue is not fettered, but the court ordinarily grants leave if that will not cause injustice to the opponent, since it is ordinarily not desirable to compel a claimant to litigate.⁸ The appellant argued that he did suffer such prejudice because he wished to vindicate his reputation by successfully defeating the respondent’s defamation claim on its merits. I have no difficulty in accepting that leave to discontinue might properly be refused if a defamation claim were brought for an improper purpose and the claimant later wished to abandon the claim in order to prevent the respondent from repairing damage to his or her reputation arising from the commencement of the claim.⁹ But that is not the case on the evidence in this matter. The respondents’ reported reasons for wishing to withdraw their claim were supported by the objective history of the litigation, the evidence did not establish that the respondents had commenced the claim for any improper purpose, and the appellant remains free to pursue his stated aim of making the claims in his proposed counterclaim to seek to vindicate his position.

[26] The appellant also argued that no consideration was given to the preservation of advantages he had legitimately gained in the course of proceedings, but he had gained no significant advantage by his unsuccessful attempts to plead his proposed defence and counterclaim.

[27] The primary judge’s discretionary decisions (both refusing leave for the appellant’s proposed pleading and granting the respondents leave to discontinue) did not deprive the appellant of any substantive rights and they concerned only matters of practice and procedure. It is well established that appellate courts exercise particular caution in allowing appeals from decisions of that character.¹⁰ None of the grounds upon which the appellant relied would justify this Court interfering with those orders. In my opinion they were the correct orders in light of the evidence and arguments in the trial division.

[28] It is necessary, however, to mention a further point that was not raised by the appellant. It was relevant to the exercise of the discretion whether to grant leave to discontinue under the relevant rule, r 304(2), that the effect of discontinuance would be that the appellant could not subsequently file a counterclaim in the discontinued proceeding. That made relevant the submission on behalf of the respondents before the primary judge that because all of the purported causes of action in the appellant’s proposed counterclaim arose in 2008 the claims in the proposed counterclaim were well within time. The respondents’ counsel submitted to the primary judge that the causes of action intended to be pleaded in the appellant’s proposed counterclaim were for contraventions of the Trade Practices Act1974 (Cth) and for fraud. The applicable limitation period in each case was six years. At the hearing of the appeal the Court raised the question whether the appellant’s counterclaim arguably included a claim for damages for defamation in respect of which the relevant limitation period was only one year,¹¹ subject to any extension of time granted by a court.¹² If so, the relevant period might expire after the primary judge’s orders and before the appellant had a reasonable time within which to issue fresh proceedings. Counsel for the respondents acknowledged that it had been overlooked in the trial division that the proposed counterclaim arguably included a claim for damages for defamation which was subject to the shorter limitation period.

[29] With the leave of the Court, the respondents’ counsel lodged a supplementary note by which the respondents undertook that, if the appellant commences proceedings against the respondents or any of them, within six months of the date of judgment of this Court, for defamation arising out of the matters pleaded in the counterclaim as giving rise to a cause of action in defamation against them, the respondents would not, in such proceedings, plead or rely on any defence based on s 10AA of the Limitation of Actions Act 1974 (Qld). That undertaking gave further effect to the primary judge’s intention that granting the respondents leave to discontinue should not cause substantial prejudice to the appellant.

Disclosure of documents

[30] The appellant argued that the primary judge erred in not making orders for disclosure of documents which he submitted were relevant to his allegations about the company’s cattle inventory for various trading periods. As the primary judge pointed out to the appellant on 24 July 2009¹³ it was necessary for the appellant to get his pleadings in order before disclosure. Disclosure would ordinarily follow without any order.

Costs

[31] The appellant argued that the costs orders made by the primary judge should be set aside under r 668 UCPR on the ground that those orders were obtained “at least in part by fraud”. There is no evidence of fraud. Apart from the appellant’s arguments about the merits of the substantive orders, which I have rejected, the appellant did not point to any error in the exercise of the discretion to award costs. The challenge to the costs orders fails accordingly. (Rejection of the appellant’s appeals against the substantive orders would also render his appeal against the costs orders incompetent without the leave of the primary judge, which was not given).¹⁴

Apprehended bias

[32] In order to appreciate the appellant’s arguments in relation to apprehended bias it is necessary to summarise the course of proceedings before the primary judge on 21and 25 September 2009.

[33] On 4 September 2009 the respondents filed a Notice of Discontinuance of their claim. On 10 September 2009 the appellant filed an application for leave to file a further amended defence and counterclaim. The hearing of those applications commenced before the primary judge on 21 September 2009. Each side relied upon affidavits and a written outline of argument. The primary judge asked whether the first question was whether the respondents’ discontinuance was effective. The respondents’ counsel submitted that was probably the appropriate way to proceed. The primary judge then addressed the appellant, expressing a tentative view that he would first look at the question whether discontinuance was effective or not first, noting the appellant’s written submission referring to r 304(2). The appellant argued that the “priority matter” was his application for the striking out of three paragraphs in an affidavit relied upon by the respondents. The primary judge observed that he would come to that in a little while, if the appellant did not mind, but would like to look at the question of discontinuance first.

[34] After hearing oral argument from the respondents’ counsel, the primary judge ruled that the respondents’ purported discontinuance was not effective. His Honour ruled that leave to discontinue was required under r 304(2) because the appellant had filed a defence (albeit a defence which had been struck out for non-compliance with the rules). The respondents’ counsel then orally pursued an application for leave to discontinue their claim. The appellant acknowledged that this was consistent with the respondents’ outline of argument that he had received. The respondents’ counsel drew the primary judge’s attention to the appellant’s application for leave to file his proposed amended defence and counterclaim, submitting that the proposed counterclaim was not statute barred. When the appellant then asked the primary judge to look at a part of the proposed pleading, the primary judge made it clear that he had not read that document. Subsequently the primary judge remarked that he had not appreciated that the appellant had made that application. The appellant argued that it was “appalling” and a “disastrous turn of events” that the primary judge had not by this time read his application for leave to file the new pleading. The primary judge told the appellant that it was unusual for a judge in the applications jurisdiction to read anything before the hearing commenced, but that he had read the outlines.

[35] After the primary judge had been referred to aspects of the outlines of argument and heard some oral argument, he made various remarks during the course of argument, including that “at first glance” the appellant’s proposed pleading “doesn’t look attractive”,¹⁵ that “I am inclined to grant leave… to discontinue”,¹⁶ that (in the event that leave to discontinue was granted) “I would adjourn your application to the civil list…because I do not see it as realistic to go through your counterclaim and form a clear view about whether it is well pleaded in the time I have available today”,¹⁷ and that “Another way to handle this might simply be to rule that the notice of discontinuance is not effective, to adjourn the balance of the proceedings today to a date where they can be sensibly dealt with”.¹⁸ When the respondents’ counsel argued (in support of an immediate grant of leave to discontinue) that, regardless of any merits of the proposed counterclaim, the appellant could commence a fresh proceeding, the primary judge remarked that the problem with that was that if the appellant filed a fresh proceeding, it was likely to be in the same form and would not be subject to scrutiny prior to filing as was now required.

[36] In the course of hearing further submissions upon the question whether the respondents should have leave to discontinue and how the matter should proceed, the appellant asked the primary judge to adjourn the hearing. In the context of submissions from the respondents’ counsel about the likely length of the further hearing, the primary judge sought amplification of the respondents’ counsel’s submissions about the appellant’s proposed pleading and the respondents’ counsel undertook to provide such further submissions.¹⁹ His Honour decided that all of the matters should be adjourned until 25 September 2009. Subsequently the primary judge asked the respondents’ counsel whether the ruling upon the effect of the notice of discontinuance should also be put off.²⁰

[37] After the primary judge announced his intention to adjourn all the matters with costs reserved the appellant indicated that he was “very happy with all of that”. The primary judge indicated that the most useful thing would be if the respondents’ counsel could get to the associate and to the appellant a copy of the respondents’ outline by a certain time. The appellant observed that he was “very happy with that”. That was the appellant’s last statement at that hearing.

[38] At the resumed hearing on 25 September 2009 the appellant asked the primary judge to disqualify himself for apprehended bias. The appellant gave particulars of the apprehended bias for which he contended that; the primary judge had refused to deal with his application to strike out the relevant paragraphs in the solicitor’s affidavit as a “first priority”, had done so before reading the appellant’s pleading, had spoken to the appellant in “condescending tones”, and had asked the respondents’ counsel to provide further submissions on the resumed hearing to support the respondents’ application for leave to discontinue their claim. The appellant adopted as the applicable legal test the question whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide. That accurately expressed the test adopted by the High Court in Ebner v Official Trustee in Bankruptcy.²¹

[39] The primary judge concluded that the matters relied upon by the appellant were not sufficient to raise in a fair-minded lay observer a reasonable apprehension that his Honour might not bring an impartial mind to the resolution of the questions raised in the proceedings. In rejecting the appellant’s arguments the primary judge observed that he did not give priority to the application to strike out parts of the affidavit because at the hearing on 21 September 2009 he had limited time and other applications appeared more important. He doubted that he had spoken to the appellant impolitely. Rather than having asked the respondents’ counsel to provide further submissions at the resumed hearing in support of the application for leave to discontinue he had asked only for supplementary submissions dealing in more detail with the grounds of the respondents’ objections to the proposed defence and counterclaim, a point which had been dealt with only briefly in their original submissions. The appellant had expressed his agreement with that process.

[40] In this Court the appellant elaborated in detail upon the arguments he had put to the primary judge. In some respects, those arguments assumed that the primary judge’s decisions were so self-evidently wrong that they suggested apprehended bias. I have already explained my conclusion that there was no error in any of those decisions. In any event, one could not infer apprehended bias merely because the judge’s decisions were unfavourable to the appellant.

[41] As to the order of events, the primary judge’s conduct of the hearing demonstrates that his Honour had not expressed any fixed view adverse to the appellant before hearing full argument. The appellant argued that the primary judge displayed apprehended bias by overlooking the appellant’s application for leave to file his proposed pleading at the 21 September 2009 hearing in order to give preferential treatment to the respondents’ application for leave to discontinue. This argument may be attributable to a misunderstanding by the appellant about the (variable) practice in the applications jurisdiction. Although the “fair-minded lay observer” is not taken to have a detailed knowledge of the law or the character or ability of a particular judge, it is well established that the reasonableness of any alleged apprehension of bias must take into account the context of ordinary judicial practice and the exigencies of modern litigation.²² The appellant was not present in the court room but was heard by telephone. The transcript records the primary judge’s acknowledgments of the respondents’ counsel’s and the appellant’s statements identifying the applications, affidavits, and outlines of argument. In the appellant’s arguments in this Court he misconstrued those acknowledgments as evidence that the primary judge then looked at and “checked off” each application, affidavit, and outline, rather than merely making a note of the material upon which the parties relied. The primary judge chose to ascertain the nature of the various applications and an outline of the relevant evidence initially through dialogue with the respondents’ counsel and the appellant, deferring reference to the documents themselves. That is not an uncommon practice in the applications jurisdiction, where judges often have little time to read the material before the hearing, and where it may become unnecessary to read extensively when disputes are resolved or narrowed in the course of dialogue during the hearing.

[42] Contrary to the appellants’ further submissions, there was no inconsistency between the early part of the hearing on 21 September 2009 and the primary judge’s subsequent remarks at the hearing on 25 September 2009 (that his recollection was that on 21 September 2009 he had not had the opportunity to read the appellant’s application for leave to file his defence and counterclaim and that his initial understanding had been that the issue was whether the respondents’ notice of discontinuance was effective). The appellant correctly pointed out that early on 21 September 2009 the primary judge noted that he had read the outlines of argument and that the outlines had referred to the appellant’s pleading application. Even so, in the context of a busy day in the applications jurisdiction it is wholly unremarkable that the primary judge had overlooked the appellant’s application for leave to file his proposed pleading, as the primary judge acknowledged when that application was drawn to his Honour’s attention.

[43] As to the appellant’s contentions that the primary judge treated the appellant discourteously, the transcript contains no evidence of any impoliteness or condescension by the judge. Because the appellant emphatically argued that the primary judge “constantly” addressed the appellant in “condescending tones” on 21 September 2009, I have taken the exceptional course of listening to the tape of parts of that hearing in which the primary judge addressed the appellant. The tape reveals no indication of condescension or discourtesy by the primary judge. The apparent sincerity of the appellant’s contrary recollection might perhaps be attributable to his apparently sincere belief in the rightness of all of his arguments, some of which the primary judge rejected. On the other hand, the appellant’s complaint about the tone of the judge’s voice is not readily reconcilable with his failure to express that complaint on 21 September 2009, where he otherwise demonstrated no diffidence in complaining when he thought complaint was justified. This aspect of the appellant’s arguments is inconsistent with the transcript and otherwise lacking evidentiary support.

[44] The appellant argued that the primary judge erred when on 24 July 2009 his Honour ordered that the appellant not file a further pleading without leave though the respondents had submitted that the appellant ought to be given one more opportunity to file and serve a defence that complied with the rules. It was within the discretion of the primary judge to settle the appropriate form of order. His Honour explained why that condition was imposed in the reasons given on 24 July 2009, which I summarised earlier. The appellant did not appeal from the order. Its form was perfectly conventional and justified by the appellant’s repeated failures to comply with the rules. No inference of apprehended bias could possibly be drawn from it.

[45] The appellant argued that his claim of apprehended bias was supported by what he described as a “tainted offer” by the respondents’ counsel or a “sham contrivance with [the respondents] to defeat [r 311 UCPR]”.²³ An apprehension of bias in the judge could not conceivably arise merely from a submission made by one party. Strictly speaking it is not necessary to say anything else about this point, but I will explain the context. The maligned offer was the statement in the respondents’ outline of argument dated 25 September 2009, in which the respondents sought orders both giving them leave to discontinue their claims and dismissing the appellant’s counterclaim, that if those orders were made, “and the defendant were later to commence a fresh action, whether in this court or elsewhere, the plaintiffs would not contend that he was prevented from doing so by any doctrine of estoppel or res judicata arising from the dismissal of his counterclaim in this proceeding.” That undertaking was designed to ensure that the appellant’s substantive rights would not be affected by the orders sought by the respondents. There was nothing inappropriate about such an undertaking. It could not reasonably be characterised as a “contrivance”, much less a contrivance that was designed to defeat r 311. Under that rule the discontinuance of a proceeding does not prejudice a “counterclaim”. The appellant had filed a counterclaim but it had been struck out. In September 2010 the appellant could not file a further counterclaim except with leave of the court, which was correctly refused. The discontinuance of the respondents’ claim could not prejudice the appellant’s counterclaim because there was no such counterclaim.

[46] I have also been unable to find anything untoward in the primary judge’s remark on 25 September 2009 that “I suspect that there is nothing that really assists in the construction of rule 311”,²⁴ notwithstanding the appellant’s emphatic arguments upon the point. That remark related to the respondents’ application for an order dismissing the appellant’s (struck out) counterclaim. The concern expressed for the respondents was that, because the basis of the primary judge’s decision that the respondents’ purported discontinuance without leave was ineffective was that “defence” in UCPR r 304(2) included a defence that had been struck out, by analogy the appellant’s struck out “counterclaim” might have some continuing effect under r 311. The primary judge expressed the unsurprising view that r 311 had no operation with respect to a counterclaim that had been struck out, and the respondents then did not pursue the point.²⁵ This could not possibly suggest a reasonable apprehension of bias.

[47] The appellant also argued that an apprehension of bias arose from changes in the respondents’ positions concerning their application for leave to discontinue their claim: the initial application for leave in the respondents’ outline dated 21 September 2009 and the oral application once the primary judge concluded that the notice of discontinuance was ineffective; the application in the respondents’ outline dated 25 September 2009 for leave to discontinue if the appellant was not given leave to file a fresh counterclaim and was not granted further time within which to seek such leave; and the respondents’ subsequent reversion “to unconditional discontinuance” in this Court. As to that, an apprehension of bias in a judge could not arise merely from changes of position in submissions made by a party.

[48] The appellant argued that apprehended bias was evidenced by the primary judge’s invitation to the respondents’ counsel to support the judge’s premature decision on 21 September 2009 to give leave to discontinue by providing further submissions. The transcript of the hearing on 21 September 2009²⁶ makes it plain, however, that the primary judge sought a more detailed submission from the respondents’ counsel to amplify his criticism of the appellant’s pleading, rather than a further submission about the respondents’ application for leave to discontinue. The transcript thus undermined the appellant’s argument that the primary judge had apparently prejudged the respondents’ application for leave to discontinue. The appellant’s submissions went on to question the accuracy of the transcript,²⁷ but there is no ground for thinking that the transcript was materially inaccurate in this or any respect.

[49] The appellant also contended for apprehended bias in the primary judge’s decisions that were favourable to him. The primary judge ruled, favourably to the appellant, that the discontinuance had been ineffective. His Honour considered but, favourably to the appellant, rejected the idea that leave to discontinue should be granted on 21 September 2009 before a detailed consideration of the appellant’s proposed pleading. The primary judge then adjourned the further hearing of the matters on that day, consistently with the appellant’s application for such an adjournment. In the appellant’s written arguments he construed those decisions as pretexts for the later decisions adverse to him, but there is no basis for that cynical construction.

[50] Contrary to the appellant’s submission, there is no analogy between this case and Antoun v The Queen.²⁸ In Antoun, when counsel for an accused person indicated that he intended to join in an application for a directed verdict of acquittal at the close of the Crown case, the trial judge responded that “that application will be refused”. Subsequently, before the defence case had closed, the judge of his own motion raised the question whether bail should be revoked and, without receiving submissions, observed that he had “almost made up my mind of my own motion, to revoke bail.” Callinan J referred with approval to the test of apprehended bias stated in Ebner v Official Trustee in Bankruptcy and held that the trial judge’s conduct presented an unmistakable prejudgement.²⁹ In this matter the primary judge did not express any conclusions before the close of argument.

[51] The primary judge did express preliminary views, including those noted in paragraph 35 of these reasons, some of which were unfavourable to the appellant’s arguments. Antoun confirms that a judge may express preliminary views in the course of argument. Provided that those views are not fixed, that is not an indication of prejudgement.³⁰ In Antoun it was the “dogmatism and asperity of the trial judge’s expressions” with respect to the foreshadowed “no case” submission, further increased by the trial judge’s threatened revocation of bail in the absence of any application for bail or reference to the relevant considerations, which gave rise to an apprehension of bias.³¹ In this case the primary judge’s expression of preliminary views assisted the parties in addressing matters of apparent concern. Far from giving rise to a reasonable apprehension of bias, that was a desirable and appropriate process where, as here, the primary judge remained receptive to argument on those matters.³²

[52] As will be apparent, although the appellant’s notice of appeal and arguments complained of an apprehension of bias, some of the arguments seemed instead to contend for actual bias. Such a complaint was not within the notice of appeal, as I would construe it. I would add, however, that there was no arguable basis for any contention of actual bias.

[53] There is no merit in the appellant’s numerous arguments that the primary judge should have disqualified himself from hearing the applications.

Proposed orders

[54] I would refuse the appellant’s applications for leave to adduce fresh evidence and dismiss the appeal with costs.

[55] After the hearing of the appeal, on 13 August 2010 the appellant filed a document entitled “Application to Court of Appeal to lodge further brief submission and to adduce further fresh evidence” and a further affidavit. I would refuse leave for the appellant to make those further submissions and to adduce fresh evidence.

[56] WHITE JA: I have read the comprehensive reasons for judgment of Fraser JA and agree with the reasons and his Honour’s proposed orders.

Footnotes

1. See Hills v Chalk [2008] QCA 159 at [5]-[8]. ↩

2. See the affidavits of appellant filed 17 February 2010 and 31 May 2010. ↩

3. Toms & Ors v Fuller [2009] QSC 415 at [7]-[10]. ↩

4. Toms & Ors v Fuller [2009] QSC 415 at [14]-[15]. ↩

5. UCPR 5(1). ↩

6. UCPR 5(2). ↩

7. Toms & Ors v Fuller [2009] QSC 415 at [18]. ↩

8. See Covell Matthews & Partners v French Wools Ltd [1977] 1 WLR 876 at 879 per Graham J. ↩

9. Indeed an apparently regular notice of discontinuance filed in accordance with the rules might be set aside in such a case: see Packer v Meagher [1984] 3 NSWLR 486. ↩

10. In re the Will of F B Gilbert (dec’d) (1946) 46 SR (NSW) 318, at 322-323. See also Ridolfi v Rigato Farms Pty Ltd [2001] 2 Qd R 455, at [23]-[24], [28]. ↩

11. The counterclaim refers to damages for defamation but the unconventional form of the document throws doubt upon the precise nature of the counterclaim. ↩