Harris v Bellemore (No 4) - [2012] NSWSC 878

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Harris v Bellemore (No 4) [2012] NSWSC 878
Hearing dates: 26 July 2012
Decision date: 03 August 2012
Before: McCallum J
Decision:
Plaintiff's application to have proceedings referred for hearing by another judge refused

Catchwords:
COURTS - jurisdiction - where proceedings remitted to trial judge to determine specified questions following appeal - whether task remitted by Court of Appeal required trial judge to rehear matters already determined by her - whether trial judge would be acting beyond power to determine questions remitted
COURTS - practice and procedure - application of apprehended bias principle -specific questions remitted to trial judge by Court of Appeal - whether issues already determined by trial judge - where decision to remit to same judge alleged to have been made by Court of Appeal per incuriam - whether matter should be referred for hearing by another judge
Legislation Cited: Supreme Court Act 1970
Cases Cited: British American Tobacco Australia Services Limited v Laurie [2011] HCA 2
British American Tobacco Australia Services Ltd v Laurie [2009] NSWCA 414
Harris v Bellemore [2010] NSWSC 176
Harris v Bellemore [2011] NSWCA 196
Category: Interlocutory applications
Parties: Paul Harris (plaintiff)
Michael Bellemore (defendant)
Representation: Counsel:
B Toomey QC / E Romaniuk (plaintiff)
S Donaldson / E Muston (defendant)
Solicitors:
TD Kelly & Co (plaintiff)
Blake Dawson (defendant)

File Number(s): 2010/92491 2001/20699
Publication restriction: None

Judgment

These are proceedings for medical negligence which were heard and determined at first instance by me. The principal judgment was given in March 2010: Harris v Bellemore [2010] NSWSC 176. Following further argument, final judgment for the plaintiff was entered on 24 June 2010 in the sum of $652,892.95.

An appeal against the principal judgment was allowed in part: Harris v Bellemore [2011] NSWCA 196. The point on which the appeal succeeded was that I was wrong to have declined to determine an aspect of the plaintiff's claim on the basis that it had not been pleaded. The orders of the Court of Appeal included an order remitting the proceedings to me to determine four questions (specified in the order) relating to that aspect of the claim.

Upon the re-listing of the proceedings before me, the plaintiff sought an order that I refer the matter for hearing by another judge of the Court. This judgment determines that application.

Circumstances in which the application is made

In the appeal, the plaintiff contended that the judgment entered in his favour was inadequate as a result of my having erred as follows (see appeal judgment at [14]):

(a) in concluding that the plaintiff had not pleaded a claim for damages relating to his procurvatum deformity, with the result that the plaintiff was not entitled to damages related to that deformity, and finding that in any event the plaintiff's procurvatum deformity did "not appear to have any functional significance for [the plaintiff]" (Judgment [267]);

(b) in rejecting the appellant's tender of a report dated 25 May 2009…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Harris v Bellemore (No 4)

Details

AGLC: Harris v Bellemore (No 4) [2012] NSWSC 878
Case: [2012] NSWSC 878
Decision Date: 03 August 2012

CaseChat Overview and Summary

The appeal heard by the High Court in Harris v Bellemore (No 4) involved the parties, Harris and Bellemore, with the dispute centering on the jurisdiction of the trial judge following a remittal by the Court of Appeal. The matter was brought before the High Court to determine whether the task assigned to the trial judge required her to rehear matters that had already been decided, and if so, whether she would be acting beyond her power in doing so. Additionally, the Court examined the application of the principle of apprehended bias in this context, where specific questions had been remitted to the trial judge by the Court of Appeal, and whether these issues had already been resolved by the trial judge. The decision to remit the matter to the same judge was alleged to have been made per incuriam by the Court of Appeal, raising the question of whether the matter should instead be referred for hearing by another judge.

The primary legal issues before the Court involved the scope and limits of the trial judge's jurisdiction upon the remittal of questions by the Court of Appeal, and the application of the principle of apprehended bias. Specifically, the Court needed to determine whether the remittal required the trial judge to re-evaluate matters that had already been decided, and if such a requirement would exceed the judge's powers. Furthermore, the Court had to consider whether the apprehension of bias, predicated on the alleged per incuriam decision by the Court of Appeal to remit the matter to the same trial judge, necessitated a referral to another judge to hear the case.

In resolving these issues, the Court found that the remittal by the Court of Appeal did not require the trial judge to rehear matters already determined. The Court emphasised that the remittal was intended to address specific questions without reopening the entire case. Additionally, the Court concluded that the apprehension of bias did not warrant a referral to another judge, as the alleged per incuriam decision did not undermine the fairness of the proceedings. The trial judge's jurisdiction was upheld within the parameters of the remittal, ensuring that the legal process remained both efficient and fair.

The final orders of the Court were to affirm the remittal process and the trial judge's jurisdiction as properly exercised within the confines of the remittal. The Court's decision underscored the importance of maintaining the integrity of the judicial process while allowing for the efficient resolution of specific issues on appeal. The Court also clarified the parameters within which the trial judge could operate upon the remittal of questions, ensuring that the trial judge's actions remained within the bounds of their jurisdiction.

Orders