McLean v Nicholson [2002] VSC 446

Supreme Court of Victoria|2002-10-18|Before: Bongiorno J

Practice and procedure - group proceeding - small number of known possible plaintiffs - suitability of group proceeding - senior executive of Court interested in proceeding - perception of bias - principle of necessity - alternative forum available - Part 4A Supreme Court Act 1986; s 5 Jurisdiction of Courts (Cross-vesting) Act 1987.

The endorsements on the writ required by s.33H of Part 4A of the Act allege that on 8 January 2001 the defendant gave Spanish Mackerel to the plaintiff's father at the Hervey Bay marina. The fish was allegedly consumed by the plaintiff, her father, her mother and seven other persons whose names are set out in a schedule to the endorsement on the writ under the heading "Persons who have contacted Slater and Gordon regarding ciguatera poisoning". As might be expected the plaintiff's claim is in negligence and breach of statutory duty.

The plaintiff's father is the Chief Executive Officer of this Court.

Two issues arise for determination at this very early interlocutory stage of the proceeding. The first arises from a summons filed by the defendant seeking an order pursuant to s.33N of the Act that the proceeding not continue under Part 4A of the Act; the second from the fact that the Chief Executive Officer of this Court, although not a party to the proceeding in the ordinary sense, is a group member on whose behalf the proceeding is brought. He is, accordingly, a person interested in the outcome of the group proceeding to the same extent, as a matter of practical reality, as if he were a plaintiff. This issue was not raised by the defendant. It was raised by the Court.

The purpose of Part 4A of the Supreme Court Act 1986 is to provide a vehicle whereby substantial common issues of law or fact which may affect a number of people are able to be determined in a proceeding such that persons who are not parties to that proceeding may have their claims litigated, if necessary, from a commencing point which accepts the Court's findings on those issues of law and fact in the group proceeding, so that no further litigation on those issues is required.

There is no doubt that in this case the necessary criteria for the commencement of a group proceeding, as required by s.33C of the Supreme Court Act 1986, were met at the time the proceeding was commenced; at least the endorsement on the writ alleged the existence of those criteria as required by s 33H(2). Thus the proceeding was regularly commenced and, absent an application by the defendant of the type now made pursuant to s.33N, could have proceeded to completion in that form[1], provided that at no stage it was made to appear to the Court that there were fewer than seven group members.

The plaintiff's claim (and that of the other group members) is a relatively simple personal injuries claim in negligence and/or breach of statutory duty. There appear to be no unusual features of the claim which make it peculiarly suitable or appropriate to be conducted as a group proceeding. In particular all of those persons who would be eligible to claim damages should the plaintiff be successful in establishing liability are identified by name and address in the schedule to the endorsement on the writ. It was not suggested by counsel for the plaintiff in the course of the hearing before this Court that any other person or persons may have been injured by the acts of negligence or breach of statutory duty alleged against the defendant who supplied the Spanish Mackerel which the plaintiff and the other group members consumed.

The High Court in Wong v Silkfield Pty Ltd[2] quoted the Federal Attorney-General's second reading speech on the bill introducing the group proceedings provisions into the Federal Court of Australia Act 1976. The Attorney put forward two principal purposes for enabling group proceedings to be commenced in the Federal Court. The first was to provide a real remedy where, although many people are affected and the total amount at issue is significant each person's loss is small and it is not economically viable to recover such loss by an individual action. The second purpose of group proceedings is to deal efficiently with large numbers of claims which although each might be significant, the litigation could be more cheaply and efficiently disposed of in one proceeding than by the institution of individual actions. The same purposes lie behind Part 4A of the Supreme Court Act 1986[3].

In seeking an order pursuant to s.33N of the Act counsel for the defendant referred to a number of cases in which the group proceedings provisions of the Federal Court of Australia Act 1976 have been considered. They mainly concern questions as to whether there were, in the litigation under discussion, substantial common issues of law or fact so as to qualify the proceedings for litigation under Part IVA.[4] None of them concerned an action in which there were as few potential group members as there are in this case.

Group proceedings procedures were designed to facilitate the resolution of claims by a large number of claimants who would usually not be in contact with each other and whose only common interest would often be in having suffered damage as a result of a particular event or course of conduct engaged in by a particular defendant against whom each of them might have had a (possibly small) claim. Common examples are, of course, product liability claims or claims where a large number of people allege injury as a result of an arguably tortious act (eg. a building collapse, fire or other disaster). This case does not fit any of the situations contemplated by Parliament when it enacted Part 4A of the Supreme Court Act 1986.

The defendant argues that s.33N of the Act should be invoked by the Court at this stage of the proceeding so that the proceeding no longer continues under Part 4A. He says that the pre-conditions for such an order found in s.33N(1) (b), (c) and (d) all exist and that the Court's discretion should be exercised in favour of an order being made. Counsel for the plaintiff, on the other hand, says that there are still more than the requisite number of group members interested in the proceeding so that no occasion arises, at least yet, for an order under s.33N. He says that the application is also premature as the issues between the parties are not yet determined by the pleadings. No defence has yet been filed by the defendant so the areas of dispute are still to be defined. He relies upon comments of the High Court in the cases to which I have already referred. He submits that it would be a rare case that warranted the exercise of a discretion under s.33N before pleadings were closed and the utility of the Part 4A procedure was exhausted by resolution of such common issues as existed.

The simple answer to the plaintiff's submissions is that whatever other circumstances may obtain, the situation contemplated by s.33N(1)(b) of the Act clearly exists in this case. All the relief sought by all of the group members can be obtained by means of a proceeding other than a group proceeding. They could all join as plaintiffs in the one proceeding, thus enabling any common issues going to the question of liability to be determined in that proceeding together with any other issues peculiar to each of the plaintiffs. There are not so many plaintiffs as to make such a procedure unwieldy. It provides all of the benefits of a group proceeding to a small number of plaintiffs without any of the procedural encumbrances which necessarily attend the litigation of a group proceeding having many, perhaps thousands or tens of thousands of potential group members.

Rule 9.02 of the Rules of the Supreme Court permits the joinder of two or more persons as plaintiffs in a proceeding where, if separate proceedings were brought by them, some common question of law or fact would arise in each of those separate proceedings and all rights to relief claimed in the proceeding are in respect of or arise out of the same transaction or series of transactions. Having regard to the endorsements on the writ in this case as required by Part 4A of the Act all of the group members in this case could join as co-plaintiffs in the one proceeding, or if they wished, pursue their own claims individually.

It is unnecessary, in the circumstances, to consider whether the defendant makes out his contention that the circumstances set out in s 33N(1)(a), (c) and (d) of the Supreme Court Act 1986 exist, although it is clearly inappropriate that the claims of the plaintiff and the group members nominated in this proceeding be pursued by means of a group proceeding for the reason already advanced, so that s.33N(1)(d) is also clearly satisfied.

The Court is satisfied that it is in the interests of justice that this proceeding no longer continue under Part 4A of the Supreme Court Act 1986 and will order accordingly. For the reasons stated below it is appropriate that the order directing that the proceeding no longer continue as a group proceeding and certain ancillary orders be made before any order transferring it to another jurisdiction.

As I have already noted the plaintiff's father is, with his wife (the plaintiff's litigation guardian), a group member in this action as it is presently constituted. It is a reasonable inference from the endorsement on the writ that he will also be a material witness in the plaintiff's claim, probably on the issues of both liability and quantum. He is interested in the outcome of this litigation.

As the Chief Executive Officer of this Court the plaintiff's father is the person principally responsible for the day to day operation of the Court in its non-judicial activities. He is responsible, through his staff, for the accommodation of the judges and for the provision of all of their requirements ranging from information technology to stationery. He is responsible for the security, cleaning, heating and maintenance of the Court's buildings, including every judge's chambers, the courts in which the judges sit and the library. He arranges the supply of the judges' cars. He performs many other functions necessary to the comfort of the judges and the smooth operation of the Court.

No party has raised the question of whether this Court should continue to deal with this case having regard to the facts set out above. The question was raised by the Court itself. It is not only the parties to litigation who have an interest in ensuring that cases are determined according to law; in this case free of the possibility of any perception of bias. The community has the same interest as has the Court itself. Any apprehension of bias in an individual judge, or in a court as an institution, strikes at the very foundation of the independence and impartiality of the system of justice. The Court has a vital interest in the maintenance of its independence and impartiality.

In Ebner v Offical Trustee in Bankruptcy[5] the majority of the High Court (Gleeson CJ, McHugh, Gummow and Hayne JJ) discussed the relevant principle as follows:

" The apprehension of bias principle may be thought to find its justification in the importance of the basic principle, that the tribunal be independent and impartial. So important is the principle that even the appearance of departure from it is prohibited lest the integrity of the judicial system be undermined. There are, however, some other aspects of the apprehension of bias principle which should be recognised. Deciding whether a judicial officer (or juror) might not bring an impartial mind to the resolution of a question that has not been determined requires no prediction about how the judge or juror will in fact approach the matter. The question is one of possibility (real and not remote), not probability. Similarly, if the matter has already been decided, the test is one which requires no conclusion about what factors actually influenced the outcome. No attempt need be made to inquire into the actual thought processes of the judge or juror. The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty. Its application requires two steps. First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a judge (or juror) has an "interest" in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed." [6]

Later in their judgment their Honours examined criteria for the disqualification of a judge for apprehended bias by reference to four overlapping categories identified by Deane J in Webb v R[7]. They were: interest, conduct, association and extraneous information. Although the Court recognised that the utility of these categories may depend upon the context in which they were employed in any given case, it accepted that they provided a useful frame of reference.

In the instant case every judge of this Court has, to a greater or lesser degree, an association with the Court's Chief Executive Officer even if, as may well be the case, some judges do not know him personally. That association necessarily involves, as a matter of practical reality, some degree of reliance and dependence. Whilst the judge may retain the ultimate power of direction, in the day to day work which a judge undertakes his or her relationship with the Chief Executive Officer and his staff is an important one. It is this relationship or association between the judge and the person interested in the outcome of proceedings in the Court that provides the logical connection between the matter and the feared deviation from the course of deciding the case on its merits to which the High Court was referring in the passage quoted. A fair minded lay observer might reasonably apprehend that a judge of this Court might not bring an impartial mind to the resolution of the question he or she was required to decide in this litigation having regard to the association described.

Mr Quinn of counsel for the plaintiff submitted that the test for apprehended bias in this case is not met. Alternatively, he submitted that it was for each individual judge before whom the matter came for trial to apply the appropriate test in relation to himself or herself to determine whether he or she should take the extreme step of self disqualification.

Of this submission two things should be said. First it is not only at trial that the principle applies. Significant interlocutory hearings may well be required before this case gets to trial. They are equally affected by the apprehended bias principle. Secondly, it could not rationally be expected that the case would be passed from one judge to another within the Court in the hope that, at some point, one who held a different view as to the questions raised might be found. Such a course would be clearly inappropriate, particularly having regard to the ready remedy now available to have this matter dealt with in another appropriate Court.

A further submission by the plaintiff involved the principle of necessity. This principle, referred to and discussed by the High Court in Laws v Australian Broadcasting Tribunal[8] permits a member of a court who might otherwise be disqualified on the ground of perceived bias nevertheless to determine a case when no judge who is not also disqualified is available to sit. It is inapplicable in this case because of the jurisdiction of this Court to cross-vest proceedings before it to another State Supreme Court where the interests of justice require.[9] It is difficult to envisage a case where the doctrine of necessity would ever need to be invoked in respect of proceedings before a State Supreme Court where those proceedings could be conveniently and appropriately dealt with under the Cross-vesting scheme. There is certainly no occasion for the invocation of the principle in this case beyond the point at which the defendant's application under s.33N of the Supreme Court Act 1986 is decided.

The Jurisdiction of Courts (Cross-vesting) Act 1987 permits this Court to transfer a proceeding to the Supreme Court of another State or Territory when it is in the interests of justice to do so. The cross vesting Act confers on the Supreme Court of Queensland all the jurisdiction of this Court[10]. Thus it would have jurisdiction to determine the defendant's application that this proceeding no longer continue under Part 4A of the Supreme Court Act 1986. However the power of this Court to cross-vest a case depends upon the interests of justice requiring such transfer. Having regard to the unique nature of Part 4A (there is no Queensland equivalent) and the fact that an order under s.33N does not affect any party's substantive rights, the interests of justice do not require that this Court refrain from deciding the s.33N application notwithstanding the conclusion reached that the merits of the case should be ultimately determined in the Supreme Court of Queensland.

It might be further observed that, even absent the association problem discussed above, a Queensland court may well have been a more appropriate forum for the determination of this litigation. All of the acts of the defendant which are said to give rise to the plaintiff's causes of action were allegedly committed in Queensland. The defendant resides in Queensland and six of the ten persons named in the schedule to the endorsement on the writ as being potential group members in the proceeding reside in Queensland. Medical treatment as a result of the illness alleged to have been contracted was first administered in Queensland. Finally, even if the matter were tried in Victoria it would be tried according to the law of Queensland[11].

This proceeding will be cross-vested to the Supreme Court of Queensland. In reaching this decision the Court should not be taken to be reflecting adversely on the actions of the plaintiff, her parents or their advisers. As residents of this State they were perfectly entitled and wholly within their rights to issue this proceeding in this Court. However, justice demands that it be heard elsewhere, regardless of the views of the parties.

Section 33P of the Supreme Court Act 1986 provides that if the Court makes an order that the proceeding no longer continue under Part 4A of the Act the proceeding may be continued as a proceeding by the plaintiff on the plaintiff's own behalf against the defendant. The section further provides that on the application of a person who was a group member the Court may order that the person be joined as a plaintiff in the proceedings. In the circumstances, to enable the effective disposition of this case and having regard to the small number of group members involved, it is appropriate that there be orders facilitating those persons' joinder in this proceeding as plaintiffs if they wish to do so. As, in the course of argument, I was informed that the third person named in the schedule referred to, Ms Mona Fisher of Alberta, Canada has already instituted proceedings in the District Court of Queensland I shall except her from the order which I make.

The Court will make orders facilitating the informing of all potential plaintiffs of their rights to join in the proceeding. For this purpose Slater and Gordon will be ordered to serve a copy of the Court's orders together with an explanatory letter on those persons immediately. Should Slater and Gordon have any objection to such order they are at liberty to apply in respect of it. For obvious practical reasons the joinder of any group member as a plaintiff in this proceeding is permitted only to those who are prepared to retain Slater and Gordon as their solicitors. Any other group member who wishes to take proceedings against the defendant, by any other solicitor or otherwise, will retain the right to do so by issuing a separate proceeding in an appropriate court. Having regard to the reason for this matter being cross-vested to Queensland it is inappropriate that this Court determine the ancillary question of costs of the defendant's interlocutory application and the hearing of it and the apprehended bias questions. Accordingly, I shall reserve to the judge who ultimately hears the matter in that jurisdiction all outstanding questions of costs. He or she will have jurisdiction to determine those questions by virtue of s.9 Jurisdiction of Courts (Cross-vesting) Act 1987 (Qld) or s.9 of the Victorian Act.

(1). That pursuant to s.33N of the Supreme Court Act 1986 this proceeding no longer continue under Part 4A of that Act. (2) That Barry Atkins, Susan Kay Atkins, Willem Heinrichs, Bruce McLean, Glenda McLean, Brian Searle, Gail Searle and Karen Walker each have leave to join as a plaintiff in this proceeding, provided that on or before 8 November 2002:-

(a) he or she consents in writing to being so joined; and

(b) he or she agrees to retain Messrs Slater and Gordon as his or her solicitor in the proceeding.

(3) That by 5.00 pm on 23 October 2002, Slater and Gordon serve a copy of this order on each of the persons referred to in paragraph (2) under cover of a letter explaining, in readily understood terms, the effect of this order and the steps any such person should take if he or she wishes to be joined as a plaintiff in this proceeding, by posting, by ordinary pre-paid post, such copy, order and letter to each of such person at his or her last address as known to Slater and Gordon. (4) That the plaintiff together with such persons who have consented to be joined with her as plaintiffs in this proceeding in accordance with paragraph (2) have leave to amend the title of this proceeding appropriately and file and serve an amended statement of claim in the proceeding on or before 22 November 2002, but not otherwise without an order of the Supreme Court of Queensland. (5) That on 25 November 2002 this proceeding be transferred to the Supreme Court of Queensland pursuant to s 5(2)(b)(iii) of the Jurisdiction of Courts (Cross-vesting) Act 1987 to be further heard and determined according to law. (6) That the costs of both parties to date be reserved to the Supreme Court of Queensland. (7) That liberty to apply be granted to the plaintiff, the defendant, Slater and Gordon and the persons referred to in paragraph (2) hereof in respect of these orders until 22 November 2002 and not thereafter. (8) That this order be drawn up by the solicitors for the plaintiff and signed by a Judge pursuant to Rule 60.04 of the Rules of the Supreme Court.

[1] Cf. S.33N Federal Court of Australia Act 1976 where, in group proceedings issued in the Federal Court the Court may, of its own motion, order that proceedings no longer continue as group proceedings under Part IVA of the Act

[3] Victoria, Parliamentary Debates (Hansard), Legislative Assembly, 31 October 2000, p 1252.

[4] Johnson Tiles Pty Ltd v Esso Australia Ltd [1999] FCA 56 (5 February 1999); Murphy v Overton Investments Pty Ltd [1999] FCA 1123 (17 August 1999); Bright v Femcare Limited [2002] FCA FC 243 (20 August 2002).

[11] John Pfeiffer Pty Ltd v Rogerson [2000] HCA 36; (2000) 203 CLR 503