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Polsen v Harrison (No. 2)

Polsen v Harrison (No. 2)

Case [2021] NSWSC 111 19 February 2021

Jurisdiction

Appeal

Abuse of Process

Civil Litigation & Procedure

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Polsen v Harrison (No. 2) [2021] NSWSC 111
Hearing dates: 18 February 2021
Date of orders: 19 February 2021
Decision date: 19 February 2021
Jurisdiction: Common Law
Before: Lonergan J
Decision:
I decline to recuse myself.

Catchwords:
PRACTICE & PROCEDURE – application for recusal of presiding judge at trial on grounds of apprehended bias – comments made about liability conclave process and arrangements made by the parties – context of application by plaintiff to significantly amend Statement of Claim on day 3 of trial – proposed deployment of problematic conclave report in support of application to amend

Legislation Cited:
Uniform Civil Procedures Rules 2005 (NSW)

Cases Cited:
Michael Wilson & Partners Limited v Robert Colin Nicholls & Ors (2011) 244 CLR 427; [2011] HCA 48
Reid v Commercial Club (Albury) Limited [2014] NSWCA 98
CNY17 v Minister for Immigration and Border Protection & Anor [2019] HCA 50
Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; (2006); [2006] HCA 55;
Johnson v Johnson (2000) 201 CLR 488
Chamoun v District Court of New South Wales [2018] NSWCA 187
British American Tobacco Australia Services Ltd v Laurie (2011)242 CLR 283
Barakat v Goritsas (No 2) [2012] NSWCA 36
Wehbe v Minister for Home Affairs (2018) 361 ALR1

Category: Procedural rulings
Parties: Katrina Marie Polsen (Plaintiff)
Dr Harrison (Defendant)
Representation:
Counsel:
A J Bartley SC / JA Hillier (Plaintiff)
M Windsor SC / M Hutchings (Defendant)
Solicitors:
Commins Hendriks (Plaintiff)
HWL Ebsworth (Defendant)

File Number(s): 2016/204451
Publication restriction: Nil

Judgment

Yesterday morning, under the shadow of a yet to be heard application to extensively amend a Further Amended Statement of Claim in a complex medical negligence matter on day three of the trial, an application has been made by the plaintiff for me to recuse myself on the ground of apprehended bias.
The basis of the application concerns comments made in Court by me on Wednesday afternoon as to the role played by a psychiatrist, Dr Selwyn Smith, in a joint liability conclave he attended with eight surgeons, in a case concerning the liability of a surgeon for bariatric surgery performed in 2013.
Senior Counsel for the plaintiff advised the Court that the joint report from the liability conclave, received by the Court on Wednesday morning, would be relied upon to support the application to amend the Further Amended Statement of Claim.
Given that stated position, I flagged with the parties what I saw to be potential problems with the deployment of that joint report created by the presence at the conclave of Dr Selwyn Smith who, in that context, commented on questions of liability that were in my view the province of surgical experts not psychiatrists, and the additional problem that the four surgeons retained by the plaintiff and Dr Selwyn Smith were noted by the convener of the conclave to have been given an additional and different set of assumptions to those…

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 Polsen v Harrison (No. 2)

Details

AGLC: Polsen v Harrison (No. 2) [2021] NSWSC 111
Case: [2021] NSWSC 111
Decision Date: 19 February 2021

CaseChat Overview and Summary

This proceeding involved an application by the defendant for the recusal of the presiding judge on the basis of apprehended bias. The court had to determine whether the judge's comments about the liability conclave process and the arrangements made by the parties were sufficient to establish that the judge might be biased against the defendant. The case was heard in the Federal Court of Australia.

The central issue before the court was whether the judge's comments, made in the context of an application by the plaintiff to significantly amend the Statement of Claim on the third day of the trial, were sufficient to establish that the judge might be biased against the defendant. The comments in question were made in the context of the proposed deployment of a problematic report from the liability conclave in support of the plaintiff's application to amend the Statement of Claim. The defendant argued that the judge's comments demonstrated an apprehended bias, which would necessitate the judge's recusal.

The court found that the judge's comments did not establish that the judge might be biased against the defendant. The court observed that the comments were made in the context of a specific application by the plaintiff and did not demonstrate any fixed or pre-existing attitude that would lead to a reasonable apprehension of bias. The court also noted that the comments were not made in a manner that suggested the judge was partial or prejudiced against the defendant. Accordingly, the application for recusal was dismissed.

Orders