Bidner v State of Queensland [2000] QCA 368

SUPREME COURT OF QUEENSLAND CITATION: Bidner v State of Queensland [2000] QCA 368 PARTIES: SHANE LEE BIDNER (plaintiff/respondent) v STATE OF QUEENSLAND (defendant/appellant) FILE NO/S: Appeal No 7061 of 2000 DC No 1896 of 1999 DIVISION: Court of Appeal PROCEEDING: Application for leave s 118 DCA (Civil) ORIGINATING COURT: District Court at Brisbane DELIVERED ON: 12 September 2000 DELIVERED AT: Brisbane HEARING DATE: 7 September 2000 JUDGES: McPherson and Thomas JJA, Jones J Judgment of the Court ORDER: Application granted. Appeal allowed. Order below set aside. Action to proceed to trial and determination before a Judge of the District Court other than the Judge from whom the application was brought. Liberty granted to enter up all necessary adjournments and make such orders as may be appropriate. Costs of the hearing below are costs in the cause. The respondent is granted an indemnity certificate in respect of his costs of this appeal. CATCHWORDS: PROCEDURE - COURTS AND JUDGES GENERALLY – JUDGES – DISQUALIFICATION FOR INTEREST OR BIAS – PARTICULAR RELATIONSHIPS OR CIRCUMSTANCES – OTHER MATTERS – Judge appointed as case manager and as trial judge in a negligence action – where Judge at management hearing gave advice to plaintiff on how the case should be pleaded at trial – whether Judge “entered the arena” of the litigation – whether there was a reasonable apprehension of bias PROCEDURE – INFERIOR COURTS – QUEENSLAND – DISTRICT COURTS – CIVIL JURISDICTION – PRACTICE – PROCEDURE BEFORE TRIAL – OTHER MATTERS -- 1 of 5 -- 2 Brooks v The Upjohn Company (1998) 156 ALR 622, applied Carruthers v Connolly [1998] 1 Qd R 333, applied Queensland v JL Holdings (1997) 189 CLR 146, mentioned COUNSEL: J A Griffin QC, with K Philipson for the applicant D J Kelly for the respondent SOLICITORS: Crown Solicitor for the applicant Quinn & Scattini for the respondent [1] THE COURT: The plaintiff, who was serving a prison sentence, was one of a group of prisoners who were working in rural Queensland. For recreational purposes, they were taken to a river gorge for a swim. Several of the other prisoners jumped from the edge or cliff of the gorge into the water. The plaintiff claims he asked one of the guards if it was safe to do so. Receiving an affirmative answer, he too jumped into the water, and in doing so injured his tail bone. For this and consequential impairment to his physical capacity, he brought an action in the District Court for damages against the State of Queensland alleging that his injuries were caused by negligence for which the defendant was responsible. [2] The District Court in Brisbane has introduced a system of case management of actions awaiting trial in that Court, and on 6 July 2000 the plaintiff's action came before a District Court Judge to whom it had been assigned by the Chief Judge for management and ultimately trial. Before that management hearing his Honour had given close attention to some of the problems that he considered arose in the action, or would arise when it came to trial. At the hearing on 6 July, he proceeded to give various directions or recommendations to the solicitor who was appearing for the plaintiff on how the plaintiff's case could be better prepared for trial. [3] Among the matters that his Honour recommended were that the plaintiff obtain particulars of an allegation in the defence that the plaintiff had aggravated his injury by playing or participating in indoor cricket after the incident at the gorge; and that, contrary to medical advice, he had failed to mitigate his loss. His Honour said he would order some particulars of that matter. [4] The management hearing was resumed by telephone on 12 July 2000, on which occasion the learned judge commented on the differences of approach adopted by the two specialists in the reports of their examination and diagnosis of the plaintiff's injury. The defendant had by then provided some further and better particulars, which were perused by his Honour. Having considered them, he told the plaintiff's solicitor that there were various matters in those particulars about which the plaintiff needed more information, of which he gave detailed illustrations. His Honour then commented on the damages claimed by the plaintiff, and on what was needed to prove economic loss in the action. He suggested that the solicitor make a note of what he suggested should be adopted by way of pleading negligence as "an allegation in relation to which causation doesn't play so great a part". -- 2 of 5 -- 3 [5] At this stage counsel for the defendant, who had previously been silent, evidently became somewhat concerned. He said "Excuse me", and inquired whether it was the function of a case management judge to advise how a plaintiff should plead his case. Some reference was made, although not by name or citation, to the decision of the High Court in Queensland v J L Holdings Pty Ltd (1997) 189 CLR 146, 154. The judge thanked counsel for the warning, but said he was going to tell the plaintiff about these matters anyway. He then proceeded to re-draw or re-design the critical allegation in the plaint. The plaintiff's solicitor thanked the judge, who recommended that the solicitor consider that form of pleading, and also whether the plaintiff might not wish to interrogate about some specified matters. To counsel for the defendant he said: "I've anticipated something like what Mr Martin has said. It's a very difficult position for a trial judge to be in. You see that the case is not ready, you're asked to manage the case, there are a number of things to do and then you're accused of descending into the arena, as Mr Martin has just done. So, Mr Martin, tell me what the case is, and at a later time state what your objections are, and if necessary I will remove myself from the case." He went on to ask that, if counsel was suggesting that he, the judge, was descending into the arena, he would, by the end of the week, please give him notice of what the defendant proposed to do; to which counsel responded by saying "No point in my doing so, because you have". In answer to a question from the judge, he said he did not object to his Honour's being the trial judge. The judge repeated his request that, if bias was going to be raised, he would like notice of it by 4 pm on the following Friday. [6] The suggested re-formulation of the allegation in the plaint has since been adopted by the plaintiff's legal advisers. When the matter came on for mention again on 17 July 2000, counsel for the defendant submitted that there was a reasonable apprehension of bias and that the judge should not sit as the trial judge; but his Honour declined to recuse himself. This application for leave to appeal is the result. [7] There may be a question whether his Honour's action in declining to accede to the defendant's request not to sit at trial constitutes an order capable of being appealed against, rather than a mere administrative direction. However, on 17 July 2000, his Honour made an order formally dismissing the defendant's application that he not sit as the trial judge, and further ordered that the defendant pay the plaintiff's costs of and incidental to that action. Before us, the plaintiff neither supported nor opposed the defendant's application for leave to appeal but elected to abide the order of the Court. [8] We consider that in the circumstances we should follow the decision of the Full Court of the Federal Court in Brooks v The Upjohn Company (1998) 156 ALR 622, 630, and hold that we have jurisdiction to determine the application and appeal. The principles for determining whether a reasonable apprehension of bias exists have recently been restated in Carruthers v Connolly [1998] 1 Qd R 333, 371, where Thomas J said: "The relevant test for bias, compendiously stated, is whether the circumstances are such as would give rise, in the mind of a party or in the mind of a fair-minded and informed member of the public, to a -- 3 of 5 -- 4 reasonable apprehension of prejudiced mind or a lack of impartiality on the part of the decision-maker. This objective is applicable not only in the proceedings of courts but also in various quasi judicial tribunals, administrative tribunals, and commissions of inquiry." After distinguishing for this purpose the status of commissions of inquiry, his Honour went on: "But the expectation that the person exercising the power will bring an impartial and unprejudiced mind to the resolution of the question entrusted to that person is not to be diluted. Condemnation by a biased tribunal is an unacceptable abuse, just as exoneration by a biased tribunal may be considered worthless." [9] Applying these consideration to the present matter, we are persuaded that this is one in which it would be preferable that the learned judge who conducted the case management hearing should not now sit as the trial judge. There will on occasions be some difficulties in reconciling the functions of a judge acting in his or her traditional role in the adversarial system with the more recent evolution of a role as a judicial case manager. It is not possible, or perhaps appropriate, here to try to determine the proper limits of that function. Some matters, by reason of the very nature of the issues involved or the condition in which they are found to be, attract the use of strong measures and a firm hand; others do not. It is impracticable to attempt to define the proper limits of judicial activism in the abstract or to do so in advance in a way that might in the end prove to be either too stultifying or unduly liberating in the development of the case management function in future. [10] In the present case, we are not prepared to say that the primary judge overstepped the proper limits of case management, and, indeed, the defendant does not challenge what was done in that regard. There are, however, likely to be further difficulties and possible appeals if his Honour sits as the trial judge to hear and determine the plaintiff's action. Having to some extent participated in reformulating the plaintiff's claim against the defendant, as well as requests for particulars from the defendant, it is not desirable that the integrity of the trial process or its outcome should be placed at risk of costly challenge in the future. At least that is so in circumstances like these where, as we were informed, there are other judges of the District Court before whom the action can conveniently be brought to a hearing on 18 September, which is the date fixed for it to begin. At the same time, we would caution against a too ready assumption that a judge who has participated in the management of a particular case is, in consequence, disqualified from presiding at the trial of the action; or, conversely, that a party to the action is always justified in objecting to his or her doing so. [11] The application is granted and the appeal allowed. The order below is set aside. It is ordered that the action proceed to trial and determination before a judge of the District Court other than the judge from whom this application was brought, with liberty to enter up all necessary adjournments and make such orders as may be appropriate. As regards costs, the plaintiff appeared before us by counsel only because he was served and because the defendant's application sought an order for costs against him both in respect of the application and the appeal. It is not anything the plaintiff did that occasioned the appeal. The costs below are an incident of the process of case management. In these circumstances we consider that the costs of -- 4 of 5 -- 5 both parties of the hearing below should be costs in the cause. The respondent should have an indemnity certificate in respect of his costs of this appeal. -- 5 of 5 --