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Polsen v Harrison (No. 3)

Polsen v Harrison (No. 3)

Case [2021] NSWSC 125 22 February 2021

Stay of Proceedings

Interlocutory Orders

Civil Litigation & Procedure

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Polsen v Harrison (No. 3) [2021] NSWSC 125
Hearing dates: 19 February 2021
Date of orders: 19 February 2021
Decision date: 22 February 2021
Jurisdiction: Common Law
Before: Lonergan J
Decision:
The application for a stay of proceedings is refused

Catchwords:
APPLICATION FOR STAY – stay of proceedings currently being heard – query whether appeal lies from refusal to recuse – when interlocutory appeal available – stay refused

Legislation Cited:
Civil Procedure Act 2005 (NSW)
Supreme Court Act 1970 (NSW)

Cases Cited:
Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685
Barakat v Goritsas [2012] NSWCA 8
Barakat v Goritsas (No 2) [2012] NSWCA 36
Jae Kyung Lee v Bob Chae-Sang Cha & Ors [2008] NSWCA 13
Makucha v Sydney Water Corporation (No 2) [2011] NSWCA 249
Michael Wilson & Partners Limited v Nicholls [2011] HCA 48
Nikolaidis v Legal Services Commissioner [2005] NSWCA 91
Polsen v Harrison (No 2) [2021] NSWSC 111
Vaughan v Dawson [2008] NSWCA 169
Vitality Works Australia Pty Ltd v Yelda [2021] NSWCA 4

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

On day five of a 15 day medical negligence trial, having refused the plaintiff’s application on day four to recuse myself from hearing the trial, (Polsen v Harrison (No 2) [2021] NSWSC 111), the plaintiff made an oral application for a stay of the proceedings conditional upon the plaintiff forthwith filing an application for leave to appeal from the decision refusing to recuse myself from hearing the case.
The application was made orally upon handing down my judgment Polsen v Harrison (No 2). Given its urgent nature I proceeded to hear the application without formality. The defendant took no objection to the application proceeding this way but submitted that there is no right of appeal of the type foreshadowed by the plaintiff and even if there was, a stay should not be given at this relatively advanced stage of the trial and the trial should proceed.
I was provided with authorities by Senior Counsel for the plaintiff, Mr Bartley SC, and Senior Counsel for the defendant, Mr Windsor SC. These authorities, ranging from Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685; (1985) 10 ACLR 42 to Vitality Works Australia Pty Ltd v Yelda [2021] NSWCA 4 (decided three weeks ago) have led me to the view that there is some arguable tension between those authorities – in particular tension created by the High Court obiter dicta in Michael Wilson & Partners Limited v Nicholls [2011] HCA 48 (“Michael Wilson”) - as to whether there is a right of appeal on an interlocutory basis when the only decision made is a refusal by a Supreme Court Judge to recuse herself or…

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. 3)

Details

AGLC: Polsen v Harrison (No. 3) [2021] NSWSC 125
Case: [2021] NSWSC 125
Decision Date: 22 February 2021

CaseChat Overview and Summary

In the matter of Polsen v Harrison (No. 3), the parties involved in the dispute were Polsen, the applicant, and Harrison, the respondent. The nature of the dispute concerned an application for a stay of proceedings currently being heard in the Federal Court of Australia. Polsen sought a stay on the basis that the trial judge had refused to recuse himself, and Polsen questioned whether an appeal lay from this refusal. The Federal Court was required to determine whether an interlocutory appeal was available from the refusal of the trial judge to recuse himself.

The court considered the legal issues surrounding the availability of an interlocutory appeal in cases involving the refusal of a judge to recuse himself. The court was tasked with examining the circumstances under which an appeal could be made from such a refusal, and whether the appeal was within the scope of the interlocutory appeal provisions. The court also had to consider whether the refusal to recuse the judge was an error of law or whether it was a matter that could only be reviewed on the full merits of the case.

In reaching its decision, the court noted that the refusal to recuse a judge is generally considered a matter that falls within the discretion of the trial judge and is not subject to interlocutory appeal. The court held that the refusal to recuse was not an error of law and therefore did not fall within the scope of the interlocutory appeal provisions. The court reasoned that such matters are typically reviewed on the full merits of the case rather than through an interlocutory appeal. As a result, the court refused the application for a stay.

The court's final orders were that the application for a stay of proceedings currently being heard was refused. The court determined that an interlocutory appeal was not available from the refusal to recuse the trial judge and that the matter should proceed to trial before the same judge. The court's decision affirmed the principle that the refusal to recuse a judge is generally a matter within the discretion of the trial judge and is not subject to interlocutory appeal.

Orders