Bezer v Bassan

[2017] NSWCA 333

Court of Appeal

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Bezer v Bassan [2017] NSWCA 333
Hearing dates:	1 December 2017
Date of orders:	01 December 2017
Decision date:	19 December 2017
Before:	Gleeson JA, Payne JA, Sackville AJA
Decision:	1.   Grant leave to appeal. 2.   Appeal dismissed. 3.   Applicant to pay the costs of the appeal. 4.   Note that the stay order by McCallum J on 25 August 2017 has expired.
Catchwords:	ADMINISTRATIVE LAW – bias – apprehended bias – applicant sought order that primary judge disqualify herself on the basis of apprehended bias – applicant submitted witness was bullied by primary judge and that witness feared he had committed perjury as a result – whether primary judge erred in declining to disqualify herself – no ground for concluding that a fair-minded lay observer might reasonably apprehend that primary judge might not bring an impartial mind to the resolution of the issues in the case – primary judge’s interventions designed to clarify whether witness was a factual or expert witness – no complaint made by counsel at the time conduct occurred   APPEAL – whether applicant required leave to appeal – whether primary judge’s refusal to disqualify herself constituted a judgment or order – whether failure to seek leave to appeal against disqualification decision precluded the issue being pressed on appeal against final judgment
Legislation Cited:	District Court Act 1973 (NSW), s 127 Supreme Court Act 1970 (NSW), s 69
Cases Cited:	Barakat v Goritsas [2012] NSWCA 8 Bezer v Bassan (District Court, 28 August 2017, unrep) Bezer v Bassan [2017] NSWCA 214 British American Tobacco Australia Services Ltd v Laurie (2011) 242 CLR 283; [2011] HCA 2 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 Federated Engine-Drivers’ and Firemen’s Association of Australasia v Broken Hill Proprietary Co Ltd (1911) 12 CLR 398 Gas & Fuel Corporation Superannuation Fund v Saunders (1994) 52 FCR 48 Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48 Lee v Cha [2008] NSWCA 13 Livesey v New South Wales Bar Association (1983) 151 CLR 288; [1983] HCA 17 Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427; [2011] HCA 48 Re Nash (No 2) [2017] HCA 52 Stone v Moore (2015) 122 SASR 54; [2015] SASC 46
Category:	Principal judgment
Parties:	Christopher Bezer (Applicant) Troy Bassan (Respondent)
Representation:	Counsel: Mr D Campbell SC / Mr D Del Monte (Applicant) Mr W Fitzsimmons / Mr M Nesbeth (Respondent)   Solicitors: WD Hunt & Associates (Applicant) Hall & Wilcox Lawyers (Respondent)
File Number(s):	2017/281232
Decision under appeal	Court or tribunal: District Court of New South Wales Jurisdiction: Civil Date of Decision: 28 August 2017 Before: Gibb DCJ File Number(s): 2015/7036

Judgment

1. THE COURT: The applicant is the plaintiff in part heard proceedings in the District Court. In those proceedings he seeks damages against the respondent (the defendant in the District Court proceedings) for serious injuries sustained by him in a motor vehicle accident which occurred on 6 September 2012. Both liability and quantum are in dispute. One issue is whether the applicant was driving the vehicle when the accident occurred. Another is whether the applicant was wearing a seat belt.

2. The applicant sought leave to appeal from interlocutory orders made by the primary Judge (Gibb DCJ) in the District Court proceedings. Her Honour dismissed a notice of motion filed by the applicant, seeking an order that:

“Her Honour Gibb DCJ disqualify herself from hearing the proceedings on the basis of an apprehension of bias and/or actual bias” (Disqualification Motion).

3. The applicant filed the Disqualification Motion in the District Court on 10 August 2017. At that stage the District Court proceedings had been adjourned part heard on 21 July 2017, the tenth day of the trial.

4. The primary Judge heard argument on the Disqualification Motion on 24 August 2017 and delivered judgment on 28 August 2017. [1] Her Honour made the following orders:

“1.   I decline to disqualify myself.

2.   I dismiss the plaintiff’s application.

3.   I order that the plaintiff pay the defendant’s costs of this application in accordance with the Uniform Civil Procedure Rules.”

1.    Bezer v Bassan (District Court, 28 August 2017, unrep) (Disqualification Judgment).

5. On 25 August 2017, the day after the primary Judge reserved her decision on the Disqualification Motion, the applicant made an urgent application for a stay of the District Court proceedings pending determination of the application for leave to appeal. On the same day, McCallum J, acting as an additional judge of appeal, made orders that:

“Proceedings in the District Court in the matter of Bezer v Bassan stayed pending the determination of the application for leave to appeal or the delivery of the trial judge’s reserved judgment on an application to disqualify herself; costs of the application to be costs in the appeal.”

McCallum J delivered reasons for judgment on 28 August 2017. [2] Later the same day, the primary Judge delivered the Disqualification Judgment in which she declined to disqualify herself.

2. Bezer v Bassan [2017] NSWCA 214 (Stay Judgment).

6. The application for leave to appeal against the Disqualification Judgment was heard by this Court on 1 December 2017. At the conclusion of argument the Court made the following orders:

“1.   Grant leave to appeal.

2.   Appeal dismissed.

3.   Applicant to pay the costs of the appeal.

4.   Reasons reserved.

5.   Note that the stay order by McCallum J on 25 August 2017 has expired.”

7. These are the Court’s reasons for dismissing the appeal against the orders made by the primary Judge.

Draft Notice of Appeal

8. The applicant’s original draft notice of appeal identified the following grounds:

“1.   The trial judge erred, and/or misdirected herself, as to the nature of the power, or discretion being exercised by her in respect of the determination of the Appellant’s notice of motion, filed on 10 August 2017.

2.   The trial judge erred in refusing the relief claimed in the notice of motion, filed on 10 August 2017.”

9. Mr Campbell SC, who appeared with Mr Del Monte in this Court on behalf of the applicant, was granted leave in the course of argument to file an amended draft notice of appeal which added a third ground, as follows:

“The Appellant has not been accorded procedural fairness in the hearing before Gibb DCJ. In the premises the further hearing of the proceedings pending before her ought be restrained.”

10. Mr Campbell also sought and was granted leave to file an amended summons seeking leave to appeal. The amended summons sought orders setting aside the orders made by Gibb DCJ. In lieu thereof the amended summons sought an order that her Honour be disqualified from hearing the proceedings. In the alternative, the amended summons sought:

“a declaration or other order that the applicant has not been accorded procedural fairness such as that the trial before Gibb DCJ has thereby been rendered unfair and its continuation ought thereby be restrained.”

Jurisdiction

11. As the High Court has very recently reaffirmed, the first duty of a court is to be satisfied that it has jurisdiction to determine the proceedings before it. [3] Neither party raised any question as to whether the applicant was entitled to seek leave to appeal against the decision of the primary Judge to dismiss the Disqualification Motion. If, however, the applicant had no such entitlement, this Court would not have jurisdiction to grant leave to appeal from the primary Judge’s decision.

    3. Re Nash (No 2) [2017] HCA 52 at [16] (Kiefel CJ, Bell, Gageler, Keane and Edelman JJ), citing Federated Engine-Drivers’ and Firemen’s Association of Australasia v Broken Hill Proprietary Co Ltd (1911) 12 CLR 398; [1911] HCA 31 at 415 (Griffith CJ).

12. Whether the applicant is entitled to seek leave to appeal from the primary Judge’s decision depends on the construction of s 127 of the District Court Act 1973 (NSW) (District Court Act) which relevantly provides as follows:

“(1)   A party who is dissatisfied with a Judge’s or a Judicial Registrar’s judgment or order in an action may appeal to the Supreme Court.

(2)   The following appeals lie only by leave of the Supreme Court:

(a) an appeal from an interlocutory judgment or order,

(b) an appeal from a judgment or order as to costs only,

…”

Section 4(1) of the District Court Act defines “judgment”, in relation to an action, to mean “judgment given or entered up in the action” but does not define “order”.

13. Prior to the decision of the High Court in Michael Wilson & Partners Ltd v Nicholls (Michael Wilson)[4] , the “overwhelming weight of authority” suggested that a trial judge’s refusal to disqualify himself or herself, without more, did not constitute a judgment or order and thus could not be the subject of an application for leave to appeal. [5] On one view, observations in the plurality judgment in Michael Wilson cast doubt on the correctness of that principle, notwithstanding that it had generally been accepted and applied by the Australian courts. [6]

    4. (2011) 244 CLR 427; [2011] HCA 48.

    5. Lee v Cha [2008] NSWCA 13 at [13] (Basten JA, Hodgson and Bell JJA agreeing).

    6.    See Michael Wilson at [80]-[86].

14. In Barakat v Goritsas,[7] Basten JA expressed the view that the relevant passages in Michael Wilson, properly understood, do not sanction the proposition that a decision by a trial judge to refuse a disqualification application can be the subject of an application for leave to appeal. Basten JA’s view has been followed by Nicholson J in South Australia in a judgment which closely examined the relevant authorities, including the reasoning of the High Court in Michael Wilson. [8]

    7. [2012] NSWCA 8 at [15]-[16].

    8. Stone v Moore (2015) 122 SASR 54; [2015] SASC 46 at [32]-[33].

15. The authorities prior to Michael Wilson recognise that a party can effectively challenge a trial judge’s refusal to disqualify himself or herself for apprehended bias by seeking leave to appeal from an interlocutory order subsequently made by the judge. [9] In that situation, leave to appeal can be sought on the ground that the interlocutory order should not have been made as the trial judge should not have continued to hear the case. The authorities also appear to accept that the aggrieved party can seek leave to appeal when the trial judge dismisses a formal motion seeking his or her disqualification and, in addition, orders the unsuccessful applicant to pay the costs of the motion. [10]

    9. Gas & Fuel Corporation Superannuation Fund v Saunders (1994) 52 FCR 48 at 64 (Gummow and Heerey JJ), approved in Michael Wilson at [81].

    10.    Lee v Cha at [3] (Hodgson JA), at [19] (Basten JA, Bell JA agreeing).

16. In the present case, the primary Judge dismissed the Disqualification Motion and ordered the applicant to pay the respondent’s costs. [11] In the absence of any argument to the contrary, it is appropriate to proceed on the basis that the applicant is entitled to seek leave to appeal against the primary Judge’s costs order on the ground that her Honour erred in refusing to disqualify herself and thus should not have made the costs order.

    11. See at [4] above.

17. It should be noted that the applicant did not seek an order in the nature of prohibition pursuant to s 69 of the Supreme Court Act 1970 (NSW). There is no doubt that the Court has power to make such an order, although the grant of relief is discretionary. [12]

    12.    See Lee v Cha at [28] (Basten JA, Hodgson and Bell JJA agreeing).

Leave to appeal

18. The applicant submitted that a grant of leave to appeal was warranted because the primary Judge erred in law in declining to disqualify herself and because it would be unjust to allow the trial to proceed before her. The applicant also relied on what was said to be the principle that a party who does not challenge a trial judge’s refusal to disqualify himself or herself on the ground of apprehended bias by seeking leave to appeal from the decision at the earliest opportunity (as distinct from appealing as of right from final orders in the proceedings) may be held to have given up the complaint of apprehended bias.

19. In support of the second contention the applicant cited the following observations of the plurality in Michael Wilson: [13]

“In most cases, a judge's refusal of an application that the judge not try, or continue to try, a case on account of reasonable apprehension of bias will constitute a final determination by the judge that the facts and circumstances relied on by the applicant do not establish the relevant apprehension. In such a case, it may be that an applicant who does not seek to challenge the refusal by seeking leave to appeal should be held to have given up the point.”

13.    Michael Wilson at [79] (Gummow ACJ, Hayne, Crennan and Bell JJ).

20. The applicant’s contention overlooked that in Michael Wilson the disqualification application was made to the trial judge well before the trial commenced and that the application was based on the ground that the trial judge’s approach to certain pre-trial applications created a reasonable apprehension of bias. The plurality in Michael Wilson pointed out that if the party asserting that there was a reasonable apprehension that the trial judge was biased was right, “the whole of the trial with its attendant expense and use of court time would be wasted”. [14]

    14. Michael Wilson at [80].

21. The applicant’s submissions also overlooked a passage in Michael Wilson making it clear that a failure to seek leave to appeal against the refusal of a disqualification application does not necessarily mean that a claim of apprehended bias cannot be pressed in an appeal against a final judgment in the proceedings. The plurality said this:[15]

“Whether failure to seek leave to appeal against refusal of an application that a judge not try the case on account of a reasonable apprehension of bias precluded maintenance of the complaint in an appeal against the final judgment would require consideration of whether the failure to seek that leave was reasonable. That would require examination of all relevant circumstances. Ordinarily those would include the stage the proceedings had reached when the disqualification application was made and refused and the consequences that would follow from leaving appellate determination of the issue of disqualification until after trial. In this case, trial was fixed to begin within a very short time after the refusal. How much time and money would be spent if the question were to be left over to an appeal against final judgment? The trial of this matter was expected to be very long. A lot of time and money would have been wasted if the judge who tried the proceedings should not have done so.” (Emphasis added.)

15. Michael Wilson at [84].

22. The facts of the present case are very different from those in Michael Wilson. As has been noted, the applicant made the disqualification application to the primary Judge nearly three weeks after the trial had been adjourned part heard on the tenth day. By this time, the lay evidence on liability and quantum had concluded. The parties informed the primary Judge that evidence from expert witnesses' oral submissions might take another eight hearing days or so (taking into account the limited availability of the various expert witnesses). Even so, it is far from apparent that in these circumstances a failure by the applicant to seek leave to appeal from the primary Judge’s refusal to disqualify herself would have precluded the applicant from challenging the refusal in any appeal from final orders made in the District Court proceedings. [16]

    16.    Compare Lee v Cha at [91]-[94] (Basten JA, Hodgson and Bell JJ agreeing)    (where a disqualification application was made and refused by the trial judge in the seventh week of the trial).

23. The respondent’s written submissions contended that the Court should refuse leave to appeal principally on the ground that the applicant had failed to articulate any “logical connection” between the conduct of the primary Judge and the issues requiring determination in the proceedings. In his oral submissions, Mr Fitzsimmons, who appeared with Mr Nesbeth for the respondent, maintained that the applicant’s appeal was bound to fail. However, Mr Fitzsimmons sensibly accepted that since the trial had been adjourned and the parties were before the Court, there would be merit in this Court determining the substance of the applicant’s challenge to the primary Judge’s decision to reject the disqualification application. Accordingly, Mr Fitzsimmons did not resist a grant of leave to appeal.

24. Having regard to the respondent’s position on the application for leave to appeal and the desirability of resolving the question of apprehended bias to prevent further uncertainty, delay and expense in the resolution of the case, the Court considered it appropriate to grant leave to appeal.

Background

25. The hearing in the District Court commenced before the primary Judge on 10 July 2017. The applicant was represented by Mr Wheelahan QC and Mr Del Monte, while the respondent was represented by Mr Fitzsimmons and Mr Nesbeth. Mr Wheelahan was not available for the second week of the trial. Accordingly Mr Del Monte alone represented the applicant from the sixth to the tenth days of the trial.

26. On the sixth day of the trial, 17 July 2017, Mr Del Monte informed the primary Judge that it was proposed to call Dr Harrison, a medical practitioner who had treated the applicant on his admission to Westmead Hospital after he had been injured in the accident. Dr Harrison had been employed by Westmead Hospital for 26 years. For the previous five years had been a trauma consultant at the Hospital.

27. The primary Judge pointed out to Mr Del Monte that the applicant had not filed an expert report from Dr Harrison in advance of the hearing as required by the rules. Mr Del Monte replied as follows:

“Your Honour, we don’t need a report. Dr Harrison is simply one of the medical officers that was a treating doctor who made an entry. We’re only seeking to (a), decipher what he said in the clinical entry, and (b), have him confirm the history which he has noted in that clinical history.”

28. Her Honour asked Mr Fitzsimmons whether Dr Harrison was required for cross-examination. The following exchange took place:

“FITZSIMMONS: Your Honour, perhaps I should clarify the position. The position is this: Dr Harrison in a clinical note has expressed an opinion about whether the plaintiff was wearing a seatbelt or not. I indicated to the plaintiff’s camp that whilst these documents were part of our tender bundle, we did not concede – or it was not going in – as to his opinion simply expressed in a clinical note.

HER HONOUR: But they can tender it as to his opinion.

FITZSIMMONS: Absolutely, I think the position is, the plaintiff seeks to tender it as to his opinion, and if that’s the case, your Honour, certainly he will be required. That’s our position.”

After some discussion as to whether it was feasible for Dr Harrison to give evidence that day by telephone, the parties agreed that he would give oral evidence at a later date.

29. In the event Dr Harrison gave evidence on the seventh day of the hearing, 19 July 2017. His examination in chief, conducted by Mr Del Monte, occupies five pages of transcript. Mr Fitzsimmons’ cross-examination is recorded in a further five pages of transcript. There was also a brief re-examination.

30. The hearing was adjourned on 21 July 2017 until 24 July 2017 when further hearing dates were to be allocated. As previously noted, by this stage the lay evidence as to liability and damages was complete.

31. On 21 July 2017, Dr Harrison made a complaint in writing to the Judicial Commission of New South Wales about the way in which he said the primary Judge had treated him when he gave evidence in the proceedings. Dr Harrison stated the substance of his complaint as follows:

“I was bullied by [the primary Judge] and that bullying was such that I might have ended up perjuring myself as I just wanted to get out of the witness box”.

32. Upon receipt of the complaint, the Judicial Commission wrote to the primary Judge advising her of the fact of the complaint and providing a copy. The letter advised that no step adverse to her Honour would be taken without the Judicial Commission giving her the opportunity to respond.

33. At the hearing on 24 July 2017, directions were made for the hearing to resume on 21 August 2017. The parties estimated that a further eight days were required to take the expert evidence while another two days would be needed for submissions.

34. On 26 July 2017, the primary Judge relisted the matter for 28 July 2017. On that day, her Honour informed the parties of Dr Harrison’s complaint to the Judicial Commission. She also informed the parties that she would forward to the Judicial Commission a transcript of Dr Harrison’s evidence. Her Honour did not ask the parties to take any particular course in relation to the complaint, but observed that it created an “interesting problem”.

35. The applicant filed the Disqualification Motion on 10 August 2017. The applicant filed an affidavit in support of the Disqualification Motion sworn by the applicant’s solicitor. The affidavit annexed copies of correspondence between the primary Judge and the Judicial Commission and the transcript of the first and sixth to tenth days of the hearing. The affidavit stated that the audio recordings for each day of the hearing were “required in order to reflect the tones, which were adopted with various witnesses and Counsel and which is [sic] not reflected within the type written transcript”.

36. The Disqualification Motion came before the primary Judge on 21 August 2017. At the outset of the hearing her Honour expressed the tentative view that since Dr Harrison had made a complaint to the Judicial Commission and the applicant had sought her disqualification, she had little choice but to cease hearing the matter. Mr Fitzsimmons asked for and was given the opportunity to argue against that course.

37. In the course of the hearing, Mr Wheelahan, who was then appearing with Mr Del Monte for the applicant, sought access to the audio recordings of the trial. He said that the tapes were needed in order to identify with particularity the nature of the applicant’s complaint about the primary Judge’s conduct of the hearing. Her Honour granted the parties access to the tapes. The Disqualification Motion was then adjourned to 23 August 2017 in the expectation that the tapes would be made available before that date.

38. The audio tapes were not in fact made available to the parties until 23 August 2017. The hearing on the Disqualification Motion accordingly resumed on 24 August 2017.

39. Both parties prepared and presumably filed written submissions on the Disqualification Motion in advance of the adjourned hearing. The applicant’s written submissions contended that the primary Judge had demonstrated an “obstructive and inequitable approach” from the first day of the hearing. It was submitted that this approach continued during Dr Harrison’s evidence and that the tone the primary Judge adopted towards Dr Harrison, although not reflected in the transcript, was “condescending and at times heightened”. It was also submitted that:

“Dr Harrison’s compliant [sic], he being an independent member of the community and an objective observer of the proceedings and the trial judge’s conduct, is a fair and bipartisan reflection of how the proceedings have been adjudicated, at least in part. His interpretation of the trial judge’s conduct ought to be received in support of this application, and ought to be the primary foundation for the satisfaction of the test of apprehended bias.”

40. Despite the emphasis in the applicant’s written submissions on the tone of the primary Judge’s interventions, her Honour was informed at the outset of the resumed hearing that Mr Wheelahan did not propose to tender the audio tapes. No explanation was given for this apparent change of heart.

41. In his oral submissions Mr Wheelahan developed the argument that Dr Harrison was the “quintessential detached observer” whose perception of the atmosphere in court was highly relevant to whether the primary Judge’s conduct gave rise to a reasonable apprehension of bias. During the argument the primary Judge expressed puzzlement about how she could have leaned towards the witness in an intimidating fashion, given the configuration of the courtroom. Her Honour also pointed out that no objection had been taken at the trial that Dr Harrison had been wrongly cut off or denied the opportunity to give relevant evidence.

42. The primary Judge specifically asked Mr Wheelahan if he wished to play the audio tape of Dr Harrison’s evidence to support the claims of bullying but the invitation was not taken up. Mr Wheelahan’s response in substance was to assert that the critical matter was Dr Harrison’s perception of the circumstances in which he gave evidence rather than anyone else’s perception.

43. At the conclusion of argument her Honour indicated that she would reserve her decision on the Disqualification Motion. She also directed that the trial should resume on 28 August 2017.

44. On 25 August 2017 the applicant filed a summons seeking leave to appeal from what was said to be the primary Judge’s refusal to determine the Disqualification Motion. On the same day, McCallum J made the orders referred to earlier. [17]

    17. See at [5] above.

45. McCallum J published the Stay Judgment on the morning of 25 August 2017. The primary Judge delivered the Disqualification Judgment at 3.00 pm that day. As has been seen, her Honour dismissed the Disqualification Motion and ordered the applicant to pay the respondent’s costs.

46. On 15 September 2017, the applicant filed a summons seeking leave to appeal from the decision of the primary Judge.

Disqualification Judgment

47. The primary Judge gave detailed reasons for dismissing the Disqualification Motion. The Disqualification Judgment extends over 14 pages in single spaced small font, with quotations set out in even smaller font. Since the Disqualification Judgment does not include numbered paragraphs, only page references can be given.

48. The primary Judge stated that Dr Harrison was called solely as a “factual witness”, albeit one whose observations were shaped by extensive medical expertise (p 1). Her Honour noted, correctly, that Dr Harrison did not share that view. However, it was “unfortunate” that Dr Harrison did not appreciate that references to the evidence of an “expert” created a need to rule on the admissibility of any opinions expressed by the witness. The primary Judge explained that (p 2):

“In the course of Dr Harrison’s relatively short evidence I made a number of evidentiary directions that stopped Dr Harrison from guessing or speculating about matters of which he had no recollection and tried to confine his evidence to the questions asked. To that extent, Dr Harrison is right about his answers having been confined and his non-responsive answers having been interrupted. He was directed to answer questions on several occasions, including on minor points where specific answers were needed in order to understand his evidence.”

49. Her Honour expressed the view that Dr Harrison did not appreciate that evidentiary rulings are ordinarily made without input from witnesses (p 3) and that his perception of events reflected some confusion about his role. Her Honour stated that although Dr Harrison saw himself as an expert, he was not called in that capacity despite his undoubted expertise.

50. The primary Judge rejected Dr Harrison’s complaint that he had been “yelled at” (p 4). Her Honour pointed out that the applicant had not sought to replay the audio tapes on the hearing of the Disqualification Motion. She also pointed out, in fairness to Dr Harrison, that voice levels fluctuate in a courtroom depending on such variables as the speaker’s proximity to a microphone.

51. The primary Judge said that Dr Harrison was “entirely wrong” in asserting that anyone leant forward at him (p 5). That was not possible given the layout of the courtroom. Moreover, while Dr Harrison may have believed that he might have committed perjury, that was simply not a realistic fear. His evidence related to a contemporaneous file note he had made and there was no suggestion of fabrication (p 5).

52. The primary Judge then addressed the “complexity” of hearing a matter while there was a live complaint before the Judicial Commission. Although her Honour’s initial view was that she should withdraw from the proceedings immediately on learning of the complaint, the authorities demonstrated that this was not the correct approach and that her duty was not to recuse herself in the absence of adequate cause. The authorities also indicated that the making of a complaint about judicial conduct does not of itself provide an adequate basis for disqualification (pp 6-7).

53. The primary Judge addressed and rejected particular complaints made by the applicant about her conduct of the proceedings. In particular her Honour considered that insofar as she had interrupted counsel, she had good reasons for taking that course. She had interrupted, for example, where counsel’s questions were based on a misapprehension or misstatement of the evidence (p 10).

54. The primary Judge rejected the applicant’s submission that the test for apprehended bias was satisfied because Dr Harrison’s perspective on the conduct of the proceedings reflected that of an objective observer. The test required reference to the position of a hypothetical objective and fair-minded observer, not that of a witness in the proceedings (p 12). In her Honour’s view (p 13):

“the fictitious bystander/fair-minded lay observer viewing the exchanges as a whole might conclude that I was making evidentiary rulings and would not apprehend that I might not bring an impartial mind to the resolution of the issues in this matter”.

Reasoning

Principles

55. There was no dispute as to the principles that apply where a party to proceedings applies to the judge to disqualify himself or herself from hearing or continuing to hear a matter on the ground of apprehended bias. Nor did the applicant suggest that the primary Judge had incorrectly stated the relevant principles. The principles can therefore be stated briefly.

56. The test for determining whether a judge is disqualified by reason of the appearance of bias is that formulated in Ebner v Official Trustee in Bankruptcy: [18]

“Where, in the absence of any suggestion of actual bias, a question arises as to the independence or impartiality of a judge (or other judicial officer or juror) … the governing principle is that, subject to qualifications relating to waiver … or necessity … a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide. That principle gives effect to the requirement that justice should both be done and be seen to be done, a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial.” (Citations omitted.)

18. (2000) 205 CLR 337; [2000] HCA 63 at [6] (Gleeson CJ, McHugh, Gummow and Hayne JJ). See Michael Wilson at [31].

57. The joint judgment in Ebner v Official Trustee pointed out that judges have a duty to exercise their judicial functions when their jurisdiction is regularly invoked. [19] Accordingly, judges are not at liberty to decline to hear cases without good cause. An objection to a judge sitting or continuing to sit on a case is not to prevail unless it is based on a substantial ground for contending that the judge is disqualified.

    19. Ebner v Official Trustee at [19].

58. Having regard to the argument rather surprisingly put to the primary Judge on behalf of the applicant, it is important to appreciate that the reference in Ebner v Official Trustee to the hypothetical fair-minded observer is intended to emphasise that the test is objective. [20] As three members of the High Court observed in British American Tobacco Australia Services Ltd v Laurie:[21]

“Because the rule is concerned with the appearance of bias, and not the actuality, it is the perception of the hypothetical observer that provides the yardstick. It is the public’s perception of neutrality with which the rule is concerned.”

20. Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48 at [12] (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ); Michael Wilson at [32]-[33].

21. (2011) 242 CLR 283; [2011] HCA 3 at [139] (Heydon, Kiefel and Bell JJ).

59. The fictional observer is not assumed to have detailed knowledge of the law or the character or ability of a particular judge, but the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice. [22] The reasonable observer is also presumed to approach the matter on the basis that ordinarily a judge will act so as to ensure both the appearance and substance of fairness and impartiality, although the possibility of pre-judgment or bias cannot simply be dismissed. [23]

    22. Johnson v Johnson at [13].

    23. Livesey v New South Wales Bar Association (1983) 151 CLR 288; [1983] HCA 17 at [16] per curiam.

60. The application of the apprehension of bias principle requires two steps. [24] The first is to identify what it is said might lead the judge to decide a case otherwise than on its legal and factual merits. The second is to articulate the logical connection between the circumstances identified and the apprehension that the case might not be decided on its merits. Thus a bare assertion that a judge appeared to be biased is of no assistance unless the nature of the conduct relied on is identified and the connection between that conduct and the possibility of departure from impartial decision-making is articulated.

    24. Michael Wilson at [63], citing Ebner v Official Trustee at [8].

Dr Harrison’s evidence

61. Mr Campbell did not rely in this Court on the principal argument put by the applicant to the primary Judge, namely that Dr Harrison should be regarded as the quintessential detached observer whose perceptions justified a reasonable apprehension that the primary Judge might not bring an unbiased mind to the resolution of the case. Mr Campbell was correct to take this course. As the authorities referred to earlier make clear, the test to be applied is objective. Dr Harrison’s subjective responses to his experience in the witness box are of no assistance in determining whether a fair-minded lay observer would apprehend that the primary Judge might not bring an impartial mind to bear on the issues she was required to decide.

62. In any event, the gravamen of Dr Harrison’s complaint to the Judicial Commission was not that the primary Judge’s conduct created an apprehension that her Honour might be unwilling or unable to address the issues in the case impartially. Indeed Dr Harrison said that he was “not even sure what the proceedings were about”. His complaint related to what he perceived as aggressive behaviour by the primary Judge amounting (as Dr Harrison claimed) to bullying. Whatever the merits or otherwise of his complaint, Dr Harrison’s perceptions do not advance the applicant’s case on apprehended bias.

63. Although Mr Campbell did not submit that Dr Harrison’s perceptions were conclusive on the question of apprehended bias, his oral submissions placed particular reliance on what was said to be her Honour’s aggressive approach to Dr Harrison. Mr Campbell also relied on what he submitted were repeated interjections by the primary Judge that prevented Dr Harrison from giving evidence on the matters he wished to address.

64. In assessing these submissions it is significant that counsel appearing for the applicant at the trial made no protest to the primary Judge about her conduct towards Dr Harrison. Nor did counsel suggest to her Honour that her interventions prevented counsel from asking admissible questions or that Dr Harrison was being prevented from giving evidence material to the applicant’s case on liability or damages. Nothing was put to her Honour to indicate that her conduct, if it continued, might be said to give rise to an apprehension of bias. Indeed it was not until the Disqualification Motion was filed nineteen days after the proceedings were adjourned part heard that any suggestion was made on behalf of the applicant that the primary Judge’s interventions created an apprehension of bias.

65. The respondent did not submit that if there were grounds for an apprehension of bias, the applicant waived any entitlement to take the point. But the absence of any complaint at the time that the impugned conduct occurred militates against a conclusion that a reasonable bystander might apprehend that the primary Judge might not bring an impartial mind to bear on the issues requiring resolution.

66. A further difficulty facing the applicant is that the claim of apprehended bias rested to some extent on what was said to be the primary Judge’s tone of voice and aggressive manner. As has been noted, the hearing of the Disqualification Motion was adjourned in order to allow the applicant’s representatives access to the audio tapes. Yet the tapes, which would have provided the best evidence of the primary Judge’s “tone”, were not tendered at the hearing on the Disqualification Motion. In this state of the evidence, it is not surprising that her Honour rejected Dr Harrison’s claims that he had been “yelled at” immediately after he was asked about his experience in treating motor accident victims.

67. There is, however, an even more fundamental problem confronting the applicant’s reliance on the primary Judge’s interventions as demonstrating a reasonable apprehension of bias. A reading of the transcript as a whole, including the exchanges on the sixth day of the trial,[25] makes it quite clear that her Honour formed the view that the applicant was not calling Dr Harrison to give evidence as an expert, but as a lay witness. Her Honour sought and received confirmation of her understanding during Dr Harrison’s examination in chief:

“HER HONOUR: Can we stop for a moment please. As I understand, this witness is here as a factual witness, not as an expert. Is that correct?

WITNESS: I would say I’m an expert.

HER HONOUR: Please be quiet. Is that correct?

DEL MONTE: Yes, your Honour.

HER HONOUR: Could we now have a factual witness?

DEL MONTE: Yes, your Honour.”

25. See at [28] above.

68. Thereafter her Honour intervened on a number of occasions. Several of the interventions were the product of her Honour’s view that Dr Harrison was not directly answering the question put to him, but rather seeking to respond by reference to his clinical experience as a trauma consultant. The primary Judge’s concerns plainly reflected her understanding that Dr Harrison was a “factual witness”. An example is this exchange:

“Q.   But in terms of the bruising, how is it that you are able to say, having examined the plaintiff and having made the notations you did, that the bruising is consistent with a lap belt being worn at the time of the car crash[?]

A.   I’ve got 30 years of trauma experience. I have seen lots and lots of –

HER HONOUR

Q.   Doctor, please will you just describe what you saw.

A.   I saw marks there, and in my clinical experience that is consistent.”

69. Other interventions appear to have been prompted by the primary Judge’s assessment that Dr Harrison’s answer was straying beyond a direct response to the question asked, as in the following passage:

“Q.   Well, perhaps I'll put it a different way. In terms of what examination you did on 11 September, that is your direct recollection of it; do you understand, as opposed to reconstruction, your direct recollection you are relying entirely upon this clinical note, correct?   

A.   Sorry, I don't understand.

Q.    Your evidence as to what-      

A.    What I've written there; yes.

Q.   Yes. Is all you can rely upon because you have no independent recollection of the event, correct?

A.    No, I disagree with that.

HER HONOUR

Q.   What is your independent recollection?

A.    I have no other independent recollection-

Q.    Well, you might stop there; that was actually what you were being asked.

A.    Okay. I have no other independent recollection, but l—

Q.    Well, in that case, please stop there.”

70. Some of the primary Judge’s interventions were more abrupt than they needed to be. It is also quite obvious from the transcript that Dr Harrison’s understanding of why he had been called as a witness was quite different from her Honour’s. The primary Judge could have avoided much of the difficulty had she taken a moment to explain to Dr Harrison that, for technical reasons, he was regarded as a “factual witness” and thus, notwithstanding his qualifications, he could not be allowed to give opinion evidence based on his expertise. Such an explanation would have made it clear that the rulings did not reflect on Dr Harrison or on his evidence. A brief explanation would also have been likely to counter the impression Dr Harrison not unreasonably formed that “the judge twice spoke about me, not to me”. While it is not an uncommon phenomenon in a courtroom for a judge and counsel to talk about a witness’ evidence in the presence of the witness, it may be sensible for the judge to explain to the witness what is happening and why.

71. However, none of this provides grounds for concluding that a fair minded observer could reasonably apprehend that the primary Judge might not bring an impartial mind to the resolution of the issues in the case. Whatever criticisms might be made of her Honour’s interventions during Dr Harrison’s evidence, they were designed to give effect to her understanding that Dr Harrison was a “factual witness” and that his medical expertise was not material to the issue addressed by his evidence. At no stage did counsel for the applicant put to the primary Judge that her understanding was incorrect; on the contrary counsel confirmed her understanding.

72. The primary Judge’s view that Dr Harrison was giving evidence not as an expert, but as a lay witness, may have been in error, at least once Mr Fitzsimmons began to cross-examine Dr Harrison as to the basis for the opinion expressed in his clinical notes. But counsel for the applicant made no submission to that effect. In any event, a judge who commits an error of law does not thereby create a reasonable apprehension that he or she is unable or unwilling to deal impartially with the issues in the case. If the error is material to the outcome of the case it can be addressed on an appeal from the final decision.

73. Mr Campbell was asked in the course of argument how the conduct of the primary Judge could justify a reasonable apprehension that the case might not be decided on the merits. His response, in substance, was that Dr Harrison was prevented from answering questions as fully as he wished and that he feared that he may have perjured himself. He added that it was not known what issue the suggested perjury may have related to. But as has been pointed out, it was never suggested to the primary Judge, either at the trial or on the hearing of the Disqualification Motion, that the applicant wished to adduce further evidence from Dr Harrison. At no stage was any application made or foreshadowed to recall Dr Harrison. While Dr Harrison may have genuinely been concerned about perjuring himself the primary Judge held, correctly, that there was plainly no reasonable foundation for any such fear.

Primary Judge’s interventions

74. Mr Campbell submitted that the primary Judge’s interventions in the proceedings generally created a reasonable apprehension of bias and also constituted a denial of procedural fairness. In support of this submission, Mr Campbell referred to a debate that took place on the first day of the trial concerning the admissibility of a report by a medical expert, Dr Shores. [26] The applicant’s counsel objected to the tender on the ground that the respondent had not complied with the rules governing the service of reports in advance of a hearing.

    26.    The name of the author of the report may have been Dr Shaw. The spelling of the name varies.

75. The primary Judge applied what she described as the “goose-and-gander rule”. Her Honour pointed out to the applicant’s counsel that he had tendered an expert medical report notwithstanding a failure to comply with a different rule. Her Honour’s solution was to say that either both reports should be admitted or neither should be admitted.

76. Once again, her Honour’s approach can be described as abrupt or, at times, even somewhat flippant. In essence, however, her Honour was simply ruling on an objection to the tender of a report. She may or may not have been right to equate the seriousness of each failure to comply with the rules. But her attempt to deal expeditiously with an objection to the tender of evidence is hardly suggestive of an inability or unwillingness to deal impartially with the substantive issues in the case. In this regard, it is significant that Mr Campbell accepted that nothing else occurred during the first five days of the trial, in the course of which both the applicant and the respondent gave evidence, that could reasonably give rise to an apprehension of bias.

77. The applicant’s written submissions in this Court incorporated by reference other examples of what were asserted to be regular and unnecessary interruptions by the primary Judge in the taking of evidence. The complaints were not, however, developed in the oral argument.

78. One of the examples given was the evidence of Detective Senior Constable Armour, a witness called in the respondent’s case. A reading of the transcript of Detective Armour’s evidence shows that there was considerable discussion about a number of matters. These included whether all relevant records had been produced by the police in response to subpoenas and whether the respondent’s counsel should be permitted to cross-examine Detective Armour, a witness called in the applicant’s case. None of this supports an apprehension of bias or a denial of procedural fairness.

79. The primary Judge did intervene from time to time to draw the attention of the applicant’s counsel to the need to put certain propositions directly to Detective Armour. She also intervened to point out that questions put by counsel relied on false assumptions or misapprehensions as to the evidence. Her Honour’s recollection as to the state of the evidence may not always have been right, but the interchange fell a long way short of establishing a reasonable apprehension of bias or a denial of procedural fairness.

Orders

80. It is for these reasons that the Court made the orders set out above. [27]

    27. See at [6] above.

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Endnotes

Amendments

21 December 2017 - [22] - apostrophe added after "witnesses".

Decision last updated: 21 December 2017