Mathews v State of Queensland

REASONS FOR JUDGMENT 1 In an interlocutory application filed 10 November 2015 the applicant sought the following order: That Collier J disqualify herself from hearing this matter for possessing apprehended bias. 2 The applicant's primary proceedings concern an application under the Australian Human Rights Commission Act 1986 (Cth) (the AHRC Act). In short, the basis of the applicant's claims is the alleged refusal by the Princess Alexandra Hospital in Brisbane to allow him entry into the hospital with his two assistance dogs. The applicant had made a claim through the Australian Human Rights Commission, however that claim was terminated on 27 October 2015, under s 46PH(1)(i) of the AHRC Act, because the Commission was satisfied that there was no reasonable prospect of the matter being settled by conciliation. 3 The applicant filed an originating application on 6 November 2015 against the respondents claiming in summary:

1. An order that the State of Queensland permit him to enter hospital buildings with his assistance dogs.
2. An apology from the respondents.
3. Damages of $100,000 for pain and suffering.
4. Damages of $100,000 for permanent loss of facility.
5. Damages of $100,000 for humiliation.
6. Damages of $100,000 for emotional shock of being violently assaulted by three Translink employees; and
7. Punitive damages of $1,000,000. 4 The substantive matter is allocated to my docket. 5 It is unclear to me whether either of the respondents have been served with any material in these proceedings. Certainly no Notice of Appearance has been entered by either of them, and there was no appearance by them in Court this morning. That the interlocutory application is headed "Interlocutory application, ex parte & On the Papers" suggests that the applicant has chosen not to serve the respondents. 6 Unfortunately no light can be cast upon the question whether the respondents are aware of these proceedings (either the interlocutory application or the originating application) because there was also no appearance by the applicant at the hearing of the interlocutory application this morning. I note from the Court file that the Registry has communicated with the applicant at his nominated email address on multiple occasions to alert him to the fact that the interlocutory application was listed today. When there was no appearance by the applicant the matter was called outside Court, and the Court Officer endeavoured to contact the applicant by telephone, without success. Again, the fact that the applicant has purported to file an application purporting to be "ex parte and on the papers" indicates that at no time has he had any intention to appear at the hearing of this interlocutory application. 7 The non-appearance of an applicant provides a clear reason for dismissal of an application for want of prosecution: r 5.22(c) Federal Court Rules 2011. Indeed, in circumstances where no parties appear when the matter is called on for trial, the Court may order the proceeding be dismissed: r 30.22 Federal Court Rules 2011. 8 In this case however, the basis of the applicant's claim that I am subject to apprehended bias is that I have previously, in a different matter prosecuted by him (QUD 532/2014), ordered him to attend Court either in person or by telephone. The applicant also refers to an order by me of 20 November 2014 in that matter, when as the Judge conducting the Administrative Law List in the Brisbane Registry, I ordered that those proceedings be listed before the then docket Judge in that matter, Justice Rangiah. 9 It is perhaps not entirely surprising that there was no appearance by the applicant in Court this morning. 10 In summary, the applicant submits: He is disabled with acquired brain injury, and cannot appear in real time either in person or by telephone. He would be greatly disadvantaged to be made to appear in real time, and that the best construction that can be placed upon the requirement for him to appear in real time is that the Judge is deliberately requiring him to be disadvantaged because he is disabled. The Federal Circuit Court Judge the subject of the applicant's complaint in QUD 532/2014 was intransigent in requiring the applicant to appear, as was I in also requiring him to appear in person or by telephone. My direction in QUD 532/2014 breached the rules of natural justice. He has conducted an internet search of me, and is not confident that I am competent to hear his case. 11 Recently in Picos v Servcorp Limited [2015] FCA 344 at [15] Perry J summarised principles relating to claims of apprehended bias and circumstances in which a Judge ought recuse himself or herself from a hearing. Her Honour observed as follows: (a) The question of whether a judge cannot sit by reason of an apprehension of bias turns on "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": Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; (2011) 244 CLR 427 (Wilson) at [31] (Gummow A-CJ, Hayne, Crennan and Bell JJ). Thus, it is the perception of the hypothetical observer that provides the yardstick for determining whether there is an appearance of bias: (British American Tobacco v Laurie [2011] HCA 2; (2011) 242 CLR 283 (BAT v Laurie) at [139] (Heydon, Kiefel and Bell JJ). However, the hypothetical "fair-minded lay observer" is not taken to be uninformed or uninstructed about the law or ordinary judicial practice: Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 at 493 [13] (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ). (b) In applying this test, it is necessary, first, to identify what it is said might lead a judge to decide a case other than on its legal and factual merits. Secondly, there must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits: Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 at [8] (Gleeson CJ, McHugh, Gummow and Hayne JJ). (c) Allegations of apprehended bias must be firmly established: Re Minister for Immigration and Multicultural Affairs; ex parte Epeabaka [2001] HCA 23; (2001) 206 CLR 128 at 135-136 [20] (approving R v Commonwealth Conciliation and Arbitration Commission; ex parte Angliss Group (1969) 122 CLR 546 at 553-554). As Mason J emphasised in Re J.R.L.; ex parte C.J.L. [1986] HCA 29; (1986) 161 CLR 342 at 352, it is the duty of the judge to sit where proper grounds for disqualification do not exist: see also Bienstein v Bienstein [2003] HCA 7; (2003) 195 ALR 225 (Bienstein) at [35]-[36] (McHugh, Kirby and Callinan JJ). 12 No application has been brought by the applicant for the proceedings to be conducted on the papers or otherwise in his absence. Such an application would require not only proper service on the respondents and the provision of an opportunity to them to decide their own position and to make their own submissions, but proper consideration by the Court. Simply amending the notice of interlocutory application by the applicant to insert the words "ex parte & On the Papers" does not entitle the applicant to a hearing on the papers. At the end of the day, in all litigation, it is a decision for the Court whether a matter should be decided on the papers. 13 I am satisfied that I am not disqualified from sitting in respect of these proceedings by reason of apprehended bias. I note that in QUD 532/2014 I ordered the applicant to appear in circumstances where he had made no application for leave to do otherwise than appear in person (see transcript in QUD 532/2014 on 20 November 2014 p 2 ll 29-42). The fact that in that separate matter I directed the applicant to attend Court to prosecute his application would not, in my view, cause a fair-minded lay observer to reasonably apprehend that I might not bring an impartial and unprejudiced mind to the resolution of the applicant's substantive claims in this case. As Mason J observed in Re J.R.L.; ex parte C.J.L. (1986) 161 CLR 342, it is the duty of the Judge to sit unless proper grounds for disqualification exist. Here, they do not. 14 The proper order is to dismiss the interlocutory application. I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier.