Ivory v Telstra Corporation Ltd & Anor [2002] QCA 457
[2002] QCA 457
Court of Appeal (Qld)|2002-11-01|Before: Davies and Jerrard JJA and Wilson JSeparate reasons, for judgment of each member of the Court, each concurring as to the order, made
Davies and Jerrard JJA and Wilson JSeparate reasons, for judgment of each member of the Court, each concurring as to the order, made
Catchwords
PROCEDURE – COURTS AND JUDGES GENERALLY – JUDGES – POWER
TO CONTROL PROCEEDINGS – PRESENTATION OF ORDER AND
DECENCY – where
appellant contends that he was unable to present his case adequately due to the
Source
Original judgment source is linked above.
Catchwords
PROCEDURE – COURTS AND JUDGES GENERALLY – JUDGES – POWERTO CONTROL PROCEEDINGS – PRESENTATION OF ORDER ANDDECENCY – whereappellant contends that he was unable to present his case adequately due to thetrial date being “forcedon” – where appellant’sapplication to have the hearing date adjourned was dismissed – whetherappellantdemonstrated on appeal that he would have been better prepared fortrial had the adjournment been grantedPROCEDURE – COURTS AND JUDGES GENERALLY – JUDGES –DISQUALIFICATION FOR INTEREST OR BIAS – IN GENERAL –ORDINARY RULE– where learned trial judge set down the trial date when the appellantcontends he was unready – wherelearned trial judge referred to theappellant as a “humbug” – where learned trial judge laterexplained the useof this expression in more favourable terms – wherelearned trial judge assisted the appellant in the presentation of his case
by
forcing him to focus on proving essential, relevant matters and restraining him
from examining irrelevant issues – whether
actions and statements of
learned trial judge evidenced a predetermination of the appellant and his
case
PROCEDURE – COURTS AND JUDGES GENERALLY – JUDGES –
DISQUALIFICATION FOR INTEREST OF BIAS – PARTICULAR RELATIONSHIPS
OR
CIRCUMSTANCES – OTHER MATTERS – where learned trial judge knew the
respondent’s solicitor from past professional
dealings – where
appellant contends that the learned trial judge misused his past loyalties in
the course of the trial –
where learned trial judge assured the appellant
that his professional relationship with the solicitor would not influence his
judgment
- where apprehended bias test applied – whether a fair minded lay
observer might reasonably apprehend that the learned trial
judge did not bring
an impartial and unprejudiced mind to the resolution of the trial
APPEAL AND NEW TRIAL – APPEAL PRACTICE AND PROCEDURE –
QUEENSLAND – WHEN APPEAL LIES – BY LEAVE OF COURT
– COSTS
ORDERS – where appellant brought an appeal without leave against an order
made against him for indemnity costs
– where presentation of
appellant’s case involved him making vehement, unrestrained and
unjustifiable criticisms of the
witnesses, lawyers and judge – whether
appeal incompetent
Peace and Good Behaviour Act 1982 (Qld), s 4, s 6 Supreme
Court Act 1995 (Qld), s 253
Aussie Airlines Pty Ltd v Australian Airlines Pty Ltd & Ors
SC No 4786 of 1998, 18 September 1998, consideredClenae Pty Ltd v
Australia and New Zealand Banking Group Ltd [1999] VSCA 35
[1999] 2 VR 573,
consideredCommonwealth Life Assurance Society Ltd v Smith [1938] HCA 2
(1937-38)
59 CLR 527, consideredEbner v Official Trustee in Bankruptcy [1999] FCA 110
(1999)
161 ALR 557, consideredEbner v Official Trustee in Bankruptcy [2000] HCA 63
(2000)
205 CLR 337, appliedGlinski v McIver [1962] AC 726, considered
Hedges v Grundmann [1985] 2 Qd R 263, consideredHope v Evered
(1886) 17 QBD 338, appliedJohnson v Johnson [2000] HCA 48
(2000) 174 ALR 655,
appliedLey v R De W Kennedy (Finance) Pty Ltd (unreported, 21
May 1975, New South Wales Court of Appeal), applied Locobail (UK) Ltd v
Bayfield Properties [1999] EWCA Civ 3004
[2000] 1 All ER 65Raybos Australia Pty Ltd &
Anor v Scitec (unreported, NSWCA
CA No 146 of 1986, 16 June 1986),
citedRaybos Australia Pty Ltd v Tectran Corp Pty Ltd (1986) 6 NSWLR
272, considered
Raybos Australia Pty Ltd and Anor v Scitec (unreported, 16 June
1986, NSWCA, CA 146/86, BC 860 1330), consideredRe JRL
Ex parte CJL
[1986] HCA 39
(1986) 161 CLR 342, consideredRosenberg v Percival [2001] HCA 18
(2001) 75 ALJR
734, followed
Judgment (17 paragraphs)
[1]
PROCEDURE - COURTS AND JUDGES GENERALLY - JUDGES - POWER TO CONTROL PROCEEDINGS - PRESENTATION OF ORDER AND DECENCY - where appellant contends that he was unable to present his case adequately due to the trial date being "forced on" - where appellant's application to have the hearing date adjourned was dismissed - whether appellant demonstrated on appeal that he would have been better prepared for trial had the adjournment been granted PROCEDURE - COURTS AND JUDGES GENERALLY - JUDGES - DISQUALIFICATION FOR INTEREST OR BIAS - IN GENERAL - ORDINARY RULE - where learned trial judge set down the trial date when the appellant contends he was unready - where learned trial judge referred to the appellant as a "humbug" - where learned trial judge later explained the use of this expression in more favourable terms - where learned trial judge assisted the appellant in the presentation of his case by forcing him to focus on proving essential, relevant matters and restraining him from examining irrelevant issues - whether actions and statements of learned trial judge evidenced a predetermination of the appellant and his case PROCEDURE - COURTS AND JUDGES GENERALLY - JUDGES - DISQUALIFICATION FOR INTEREST OF BIAS - PARTICULAR RELATIONSHIPS OR CIRCUMSTANCES - OTHER MATTERS - where learned trial judge knew the respondent's solicitor from past professional dealings - where appellant contends that the learned trial judge misused his past loyalties in the course of the trial - where learned trial judge assured the appellant that his professional relationship with the solicitor would not influence his judgment - where apprehended bias test applied - whether a fair minded lay observer might reasonably apprehend that the learned trial judge did not bring an impartial and unprejudiced mind to the resolution of the trial APPEAL AND NEW TRIAL - APPEAL PRACTICE AND PROCEDURE - QUEENSLAND - WHEN APPEAL LIES - BY LEAVE OF COURT - COSTS ORDERS - where appellant brought an appeal without leave against an order made against him for indemnity costs - where presentation of appellant's case involved him making vehement, unrestrained and unjustifiable criticisms of the witnesses, lawyers and judge - whether appeal incompetent Peace and Good Behaviour Act1982 (Qld), s 4, s 6
[2]
Supreme Court Act 1995 (Qld), s 253 Aussie Airlines Pty Ltd v Australian Airlines Pty Ltd & Ors[1996] FCA 1308; (1996) 135 ALR 753, applied
[3]
Bayliss v Cassidy & Ors[1998] QSC 186; SC No 4786 of 1998, 18 September 1998, considered
Raybos Australia Pty Ltd & Anor v Scitec (unreported, NSWCA; CA No 146 of 1986, 16 June 1986), cited
[15]
Raybos Australia Pty Ltd v Tectran Corp Pty Ltd(1986) 6 NSWLR 272, considered Raybos Australia Pty Ltd and Anor v Scitec (unreported, 16 June 1986, NSWCA, CA 146/86, BC 860 1330), considered