Actron Investments Queensland Pty Limited v D.D.S Project Management Pty Ltd & Ors [2019] QSC 104 [2019] 18 QLR

SUPREME COURT OF QUEENSLAND CITATION: Actron Investments Queensland Pty Limited v D.D.S Project Management Pty Ltd & Ors [2019] QSC 104 PARTIES: ACTRON INVESTMENTS QUEENSLAND PTY LIMITED ACN 124 426 455 (plaintiff) v D.D.S PROJECT MANAGEMENT PTY LTD ACN 074 814 725 (first defendant) DEQ CONSULTING PTY LTD ACN 065 711 248 (second defendant) MICHAEL HENRY (third defendant) A1 EXPRESS PLAN APPROVAL SERVICES PTY LIMITED ACN 082 452 499 (fourth defendant) STACY KENNEDY (fifth defendant) FILE NO/S: BS2188 of 2012 DIVISION: Trial Division PROCEEDING: Recusal application DELIVERED ON: 24 April 2019 DELIVERED AT: Brisbane HEARING DATE: 23 April 2019 JUDGE: Mullins J ORDER: Application for recusal of Mullins J refused. CATCHWORDS: COURTS AND JUDGES – JUDGES – DISQUALIFICATION FOR INTEREST OR BIAS – REASONABLE APPREHENSION OF BIAS GENERALLY – where an appeal by the plaintiff was allowed and the matter was remitted to the trial division for further consideration of the issues of contributory negligence, proportionate liability and assessment of damages – where the plaintiff applies for recusal of the trial judge on the ground the trial judge had pre- judged an issue relating to quantum in the original reasons for judgment – whether a fair-minded lay observer would read the reasons for judgment as pre-judging the issue relating to quantum – where the application fails at the first step of identifying a pre-judgment of an issue that is yet to be decided -- 1 of 4 -- 2 Actron Investments Queensland Pty Limited v D.D.S Project Management Pty Ltd [2016] QSC 306, related Actron Investments Queensland Pty Ltd v DEQ Consulting Pty Ltd [2018] QCA 147, related Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63, considered Parbery v QNI Metals Pty Ltd [2018] QSC 213, considered COUNSEL: A F Fernon for the plaintiff A M Musgrave for the second and third defendants SOLICITORS: Low Doherty & Stratford for the plaintiff HBM Lawyers for the second and third defendants [1] I had given judgment against the plaintiff in this proceeding: Actron Investments Queensland Pty Limited v D.D.S Project Management Pty Ltd [2016] QSC 306 (my reasons). The plaintiff successfully appealed in relation to my dismissal of the plaintiff’s claim based on misleading and deceptive conduct in respect of the Form 15 issued by the second defendant and against the third defendant on the basis he was a person involved in the contravention. The relevant orders made by the Court of Appeal in Actron Investments Queensland Pty Limited v DEQ Consulting Pty Ltd [2018] QCA 147 were: 1. Allow the appeal. 2. Set aside the order made in the trial division that the proceeding against the second and third defendants is dismissed. 3. Remit the matter to the trial division for further consideration. [2] The further consideration that is required in the proceeding is in respect of the issues of contributory negligence, proportionate liability and the quantum of damages. I heard all the evidence relative to these issues during the trial and now that liability for misleading and deceptive conduct has been determined on the appeal in the plaintiff’s favour, in the normal course I expected that I would determine the outstanding issues. [3] The plaintiff seeks that I recuse myself on the basis of reasonable apprehension of bias, as explained in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at [6]. The only basis relied on by the plaintiff for recusal is the statement I made in the first sentence of [172] of my reasons. The plaintiff submits that by expressing the view that the betterment argument had substance I have pre-judged an issue that will of necessity require a decision in the assessment of the damages. The second and third defendants oppose the application on the basis that the relevant statement should not be construed as an expression of the view that the defendants’ argument concerning “betterment” is an argument of “substance” in comparison to the plaintiff’s argument concerning quantification. -- 2 of 4 -- 3 [4] In my reasons, I had determined liability against the plaintiff. Paragraphs [168]-[172] of my reasons are set out under the heading “Quantum of damages”. I noted at [168] that it was not necessary to consider the issue of quantum. I then went on, however, in [169]- [172] to make observations about the parties’ respective positions on quantum. I set out in [169] that the plaintiff claimed damages in the sum of $1,067,203.50 as the cost of the rectification work to replace the floating slab and associated costs and referred to the plaintiff’s submission that it was not unreasonable for the plaintiff to replace the slab rather than undertake slab jacking and set out the plaintiff’s reasons for that submission. In [170], I set out that, if the second and third defendants were liable to the plaintiff, they disputed the quantum of damages on the basis that the plaintiff failed to mitigate its damages and also on the basis that the plaintiff’s method of rectification resulted in the plaintiff obtaining a benefit. I then recorded the defendant’s calculation of the benefit at $505,809. I then set out in [171] the alternative submission of the second and third defendants that the plaintiff should be limited to the rectification costs necessitated by reason of the negligence calculated on the basis of slab jacking which was calculated by the second defendant to be $505,809. The last paragraph under the section of my reasons dealing with the quantum of damages is [172]: “There is substance in the betterment argument. Either basis for calculating damages results in much the same figure. It is academic to decide the point.” [5] The plaintiff does not suggest that I made a final determination on the betterment argument in [172] of my reasons. The plaintiff argues that my reference to the betterment argument having substance means that the fair-minded lay observer might reasonably apprehend that I have made a preliminary determination that there is substance in the betterment argument as a valid defence to the plaintiff’s case on quantification thereby reducing the plaintiff’s damages and that I might not bring an impartial mind to bear on the assessment of quantum. The defendants argue that all the fair-minded lay observer would conclude was that, in context, by using the word “substance”, I have identified the betterment argument as having substance in the sense of being worthy of consideration, in reciting the submissions advanced by the defendants on quantum, rather than expressing any concluded view on the betterment argument. [6] The parties relied on the same authorities for the test for reasonable apprehension of bias and also to illustrate its application. The relevant law is summarised in Bond J’s decision in Parbery v QNI Metals Pty Ltd [2018] QSC 213 at [29]-[34]. [7] The focus of this application has been on the first step of the reasonable apprehension of bias test which is whether the fair-minded lay observer would read the first sentence of [172] as expressing a preliminary view that the plaintiff’s claimed rectification costs should be reduced, as a result of the defendants’ betterment argument. [8] Paragraph [172] would be read by the fair-minded lay observer in context. It is in a section of the judgment that expressly opens with the observation that it is not necessary to consider the issue of quantum. It is apparent that the following paragraphs summarise each of the parties’ positions on the quantum of damages. Paragraph [172] is brief. In context, a fair-minded lay observer would read it as a comment on the defendant’s two approaches to the calculation of damages and not a preliminary determination of the betterment argument in respect of its application to the plaintiff’s calculation of damages. -- 3 of 4 -- 4 There is nothing in [172] to support a conclusion by the fair-minded lay observer that I have embarked on a comparison of the plaintiff’s assessment of quantum and the defendant’s assessment of quantum. [9] I therefore consider that the application of the reasonable apprehension of bias test fails at the first step of identifying a pre-judgment of an issue on my part that is yet to be decided. [10] At the commencement of the hearing of the recusal application, I raised with Mr Fernon of counsel for the plaintiff my concern that it would be an unusual course for another judge to determine the outstanding issues, when as the trial judge I had heard all the evidence relevant to the issues and am available to determine the outstanding issues. Mr Fernon’s response was that was a matter of practicality that did not displace the consideration of whether, as a matter of principle, I should recuse myself for reasonable apprehension of bias. Mr Fernon then submitted that the impact of the practicality of my determining the outstanding issues was lessened as a result of about three years elapsing since the original trial. I therefore accepted that the question of the practicality of my completing the determination of the outstanding issues was an issue to be determined, if necessary, after determining whether the ground for reasonable apprehension of bias was made out. As it turns out, it is not necessary to consider whether the matter of practicality would have any relevance, as I have concluded that the recusal application should be refused. -- 4 of 4 --