Coffey v State of Queensland & Ors [2008] QSC 287

1 [2008] QSC 287 SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION JONES J Application No 493 of 2007 JOHN LAWRENCE COFFEY Applicant and THE STATE OF QUEENSLAND & OTHERS Respondents CAIRNS ..DATE 14/11/2008 JUDGMENT -- 1 of 7 -- 14112008 D T(2)9/ADS(CNS) M/T CAIR01 (Jones J) 2 JUDGMENT 1 10 20 30 40 50 60 HIS HONOUR: By this application the applicant (plaintiff) seeks the following orders: 1) the fixing of a trial date; 2) costs; 3) that I disqualify myself on the grounds of apprehended bias against him. Obviously, it is necessary for me to deal with the latter of those matters immediately. Whilst the dispute between the applicant and the respondent has a long history, it has only come before me on the hearing of applications on three prior occasions, being the 16th of May, 17th of July and 15th of August 2008. The applicant has also appeared before Justice Cullinane on the 6th of June 2008. On each occasion the applicant has appeared unrepresented. His present claim was commenced by notice of claim on 31 October 2007. By it, the applicant seeks damages for breach of statutory provisions of The Police Powers and Responsibilities Act, damages for assault and battery, damages for malicious prosecution in respect of his treatment by police officers when taking from his person, samples to be used for analysis of his DNA. The applicant resisted these procedures. The relevant incidents occurred on the 1st, 2nd and 5th of March 2001. The applicant's initial response was to make a complaint to the Crime & Misconduct Commission on 6 March 2001. The approach did not result in any action being taken satisfactory to the applicant. -- 2 of 7 -- 14112008 D T(2)9/ADS(CNS) M/T CAIR01 (Jones J) 3 JUDGMENT 1 10 20 30 40 50 60 On 23 October 2004 the applicant served notice, pursuant to the Personal Injuries Proceedings Act (PIPA), of an intention to claim damages for personal injury. On 3 December 2004 he filed in the Supreme Court of Cairns a notice of claim claiming damages for assault, (Number S9596 of 2004). After many conflicts concerning the pre-Court procedures for the PIPA claim, the Crown Law Office, acting for the respondents, agreed to this claims proceeding (Number S249 of 2007), but sought to have the claim struck out. An order to this effect was made by Justice Moynihan on 29 July 2005. My first involvement in the case was on the 16th of May 2008 when the applicant applied to have a date fixed for the hearing of the action. This was opposed by the defendants, arguing that the applicant should not have on foot, two separate actions arising from the same incident. The application was adjourned to the 16th of June 2008 when it came before Justice Cullinane and was again adjourned with costs reserved. The next time the matter came before me was on the 7th of July 2008. In the meantime, in early July, 2008, a without prejudice settlement conference was held which had failed to resolve the dispute, but the defendant's offer was still open. The respondents indicated before me their intention to make an application to have one or other of the two separate actions commenced by the applicant dismissed as an abuse of process. -- 3 of 7 -- 14112008 D T(2)9/ADS(CNS) M/T CAIR01 (Jones J) 4 JUDGMENT 1 10 20 30 40 50 60 To facilitate the earlier resolution of this issue I directed the respondents to make their application by 1 August 2008. The only other occasion on which the matter came before me was the 15th of August 2008. On that day, the primary application was to strike out this claim, or in the alternative, the claim made under the PIPA regime. On this occasion I was informed by the applicant from the Bar table that he would consent to the withdrawal of the personal injury claim. This was consistent with the terms of correspondence exhibited to the affidavit of Angelica Fyffe, which was filed that day. The result was that the respondents would sign a request for trial date once the PIPA claim had been withdrawn. The application was thereupon adjourned to the registry to allow this process to be completed. Thus, it is seen that I have not been called upon to make any conscious ruling in respect of the two applications that have come before me. I therefore reject any suggestion as made by the applicant of lending more weight to one side or the other. I reject also that I assisted the respondent in delaying tactics. The record shows to the contrary. I have ensured that the respondent's written submissions have been made available to Mr Coffey before I considered them. Unfortunately, they often arrive only on the morning of hearing, but then the applicant does not have any address for service which allows facsimile or e-mail transmission. But my action could not be construed by any reasonable person to be "pushing papers on behalf of the respondents". I gave -- 4 of 7 -- 14112008 D T(2)9/ADS(CNS) M/T CAIR01 (Jones J) 5 JUDGMENT 1 10 20 30 40 50 60 directions concerning the signing and the return of the documents intended to record the parties' consent in order to facilitate the progress of the action. I was not informed by either party of the number of the documents required, or their terms. The test for non-pecuniary bias is whether in the circumstances a fair minded observer and the public, including the parties, might entertain a reasonable apprehension of bias in the sense that a decision maker is incapable of bringing an impartial and unprejudiced mind to the resolution of the issue. Having regard to that test, I can find no basis for any suggestion of apprehended bias on my part. I therefore refuse to disqualify myself on those grounds. Having said that, it is a fact that Chief Justice De Jersey will be in Cairns in the week commencing the 17th of November 2008. I propose to adjourn the further consideration of the applications that have been made and any further applications that might be made, to Friday, the 21st of November 2008 at 10 a.m. I'll reserve the question of costs. The matter is adjourned, Mr Coffey. MS FYFFE: Thank you, your Honour. So----- APPLICANT: Excuse me----- HIS HONOUR: Just a moment, Ms Fyffe. Yes? APPLICANT: Excuse me, your Honour, what was that date? -- 5 of 7 -- 14112008 D T(2)9/ADS(CNS) M/T CAIR01 (Jones J) 6 JUDGMENT 1 10 20 30 40 50 60 HIS HONOUR: Next Friday. APPLICANT: Next Friday? Okay. HIS HONOUR: The - the 21st of November. APPLICANT: Now, would it be possible for me to get a copy of their submissions? HIS HONOUR: Yes. APPLICANT: And - and the other----- HIS HONOUR: Ms Fyffe - just a moment. Ms Fyffe, your submissions are quite - that you intended to put before the Court are quite voluminous. I propose to give the copy----- MS FYFFE: The submissions are - are four pages, your Honour----- HIS HONOUR: Ah yes, it's the affidavit. MS FYFFE: Yes, I was going to seek leave to file the affidavit. HIS HONOUR: Have you served a copy of your affidavit on Mr----- MS FYFFE: I haven't yet, your Honour, no. HIS HONOUR: When can that be done? MS FYFFE: I'll be forwarding it to him today. It's - it's unfortunate he doesn’t have a fax that we can serve----- HIS HONOUR: Right. MS FYFFE: -----the material on him. HIS HONOUR: Very well. Well, I'll give the copy of your submissions that you've faxed to the Court to Mr Coffey now; you can fax a further copy to the Court. MS FYFFE: Okay, thank you. HIS HONOUR: Thank you. And would you also arrange to have Mr Coffey served with your affidavit. MS FYFFE: I certainly will, thank you, your Honour. HIS HONOUR: What is your address for service, Mr Coffey? APPLICANT: 17 Chaplain Avenue, Cairns, your Honour. HIS HONOUR: Did you hear that? MS FYFFE: Yes, I have the address for service, it's just unfortunate that I'm unable to send it by fax. -- 6 of 7 -- 14112008 D T(2)9/ADS(CNS) M/T CAIR01 (Jones J) 7 JUDGMENT 1 10 20 30 40 50 60 HIS HONOUR: Yes, but you - you should send it by express post if you will. MS FYFFE: Yes, yes, it'll be sent today. HIS HONOUR: Okay. MS FYFFE: It was only sent today, your Honour. HIS HONOUR: Yes, thank you. All right. APPLICANT: There's just one further matter, your Honour----- HIS HONOUR: Just a moment. Yes? Yes, what's the further matter? APPLICANT: Oh, just one further matter, your Honour, I haven't got the submission of, I think it was the 16th of June for Justice Cullinane and I understand that it's filed, but it's not filed publicly and I wondered if you would allow the registry to give that to me? HIS HONOUR: Can you give Mr Coffey a copy also of the submissions that you made before Justice Cullinane? MS FYFFE: Oh, yes, I'll send those off tomorrow. HIS HONOUR: They'll be sent to you. APPLICANT: All right. HIS HONOUR: Yes, thank you. ----- -- 7 of 7 --