Duong v Tran

The appeal concerned a dispute between Duong and Tran. The appellant, Duong, alleged personal injury, including brain damage, arising from negligence. The primary issues on appeal related to whether the trial judge had denied Duong procedural fairness, specifically concerning apprehended bias and the refusal of an adjournment.

The court was required to determine whether the trial judge’s conduct demonstrated apprehended bias. This involved examining an observation made by the judge during a ruling on pleadings, where the judge expressed "surprise" at a submission that counsel was "surprised" by the opponent's contention. Furthermore, the court had to consider whether the refusal of an adjournment, sought to allow for further testing of the appellant's alleged brain damage until the age of 11, constituted a denial of procedural fairness. This required assessing whether the judge had misapprehended evidence, given inappropriate weight to evidence, acted on a wrong legal principle, or made a decision so unreasonable as to indicate error.

The court found no apprehended bias. It reasoned that the judge's observation about surprise, while perhaps indicating a degree of candour, did not demonstrate a closed mind or a predisposition against the appellant's case. Regarding the refusal of the adjournment, the court held that the judge had not misapprehended the evidence or acted on incorrect legal principles. The judge had considered the relevant factors, including the appellant's age and the nature of the alleged injury, and had made a decision that was not so unreasonable as to constitute an error. The court also found no denial of procedural fairness in relation to an observation made by the judge that was relied upon in the judgment, as this issue had been raised in the addresses.

The appeal was dismissed, and the appellant was ordered to pay the costs of the appeal.