Barbosa v Di Meglio

[1999] NSWCA 307

CITATION:	Barbosa v Di Meglio [1999] NSWCA 307
FILE NUMBER(S):	CA 40291/98
HEARING DATE(S):	26 February 1999
JUDGMENT DATE:	31 August 1999
PARTIES :	Antonio Barbosa by his next friend The Protective Commissioner v Paul Pasquale Di Meglio
JUDGMENT OF:	Mason P at 1; Priestley JA at 17; Meagher JA at 88

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	DC 6291/97
LOWER COURT JUDICIAL OFFICER:	Sinclair DCJ

COUNSEL:	A: AS Morrison SC; GJ Tabuteau R: BMJ Toomey QC; IJ McGillicuddy
SOLICITORS:	A: JS Pinto & Co, Petersham R: Dunhill Madden Butler, Sydney
CATCHWORDS:	BIAS - Application to disqualify for bias - Reasonable apprehension of pre-judgment and bias; EVIDENCE - Expert - Argumentative and conclusory material in report
CASES CITED:	Webb v The Queen; Hay v The Queen (1994) 181 CLR 41
DECISION:	Appeal dismissed with costs

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40291/98
DC 6291/97
CLD 20959/94
MASON P
PRIESTLEY JA
MEAGHER JA

Tuesday, 31 August 1999


Antonio BARBOSA v Paul Pasquale DI MEGLIO
HEADNOTE

Two trucks were driving toward the appellant when he attempted to run across the road. While the truck in lane two, driven by Mr Murphy, braked in order not to hit him, this blocked the view of the truck in lane three who could neither see him coming nor brake quickly enough to avoid him. The appellant’s counsel at trial attempted to show that although the appellant was obviously careless of his own safety in trying to cross Botany Road in the way and in the place that he did, nevertheless the respondent had negligently and materially contributed to the happening of the accident. It was submitted that the sudden slowing down of Mr Murphy’s truck should have alerted the respondent to the likelihood that something unexpected might happen.

The appellant’s brain damage meant that he was unable to give evidence of the accident. Appellant’s counsel relied on evidence of Mr Murphy and on opinion evidence contained in three reports prepared by Mr Wingrove, a Consultant Transport Engineer. The appellant based his argument for the admissibility of these reports upon s80 of the Evidence Act. Objection was taken to the view expressed by the trial judge early in the hearing of submissions as to admissibility that the reports were “nonsense” in an evidentiary sense because they contained findings relating to the ultimate issues.

Sinclair DCJ rejected an application that he disqualify himself. He later admitted the reports into evidence with only minor exceptions.

The appellant appealed on the ground that the trial judge should have disqualified himself.

HELD by Mason P, dismissing the appeal:

The Trial Judge did not err in rejecting the application that he disqualify himself for apprehended bias. Minds will inevitably differ as to how robust a judge may be before bias is apprehended. However on the material particular to this case, his Honour’s conduct was not enough to generate a reasonable apprehension of bias. The later conduct of the case and the reasons…