No.
5816
of
2002
- By a writ filed in this Court on 30 May 2002 the plaintiff
brings a proceeding pursuant to Part 4A of the Supreme Court Act 1986
for herself and representing nine other persons who allegedly suffered injuries
as a result of their being poisoned by eating Spanish
Mackerel at Hervey Bay,
Queensland on 8 January 2001. The plaintiff, who is a minor, sues by a
litigation guardian, her mother Glenda
McLean.
- 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 group proceeding issue
- 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.
The perception of bias issue
- 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.
Procedure
- 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.
Orders
- The Court will make the following orders:-
(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
[2] [1999] HCA 48; (1999) 199 CLR 255 at 264
[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).
[5] [2000] HCA 63; (2000) 205 CLR 337
[6] ibid at 345
[7] [1994] HCA 30; (1994) 181 CLR 41
[8] [1990] HCA 31; (1990) 170 CLR 70 at 88
[9] s.5(2)(b)(iii) Jurisdiction of Courts
(Cross-vesting) Act 1987
[10] s.4(3) Jurisdiction of Courts
(Cross-vesting) Act 1987
[11] John Pfeiffer Pty Ltd v Rogerson
[2000] HCA 36; (2000) 203 CLR 503
AustLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.austlii.edu.au/au/cases/vic/VSC/2002/446.html
