Vakauta v Kelly

[1989] HCA 44

HIGH COURT OF AUSTRALIA

Brennan, Deane, Dawson, Toohey and Gaudron JJ.

VAKAUTA v. KELLY

(1989) 167 CLR 568

5 October 1989

Courts and Judges

Courts and Judges—Bias—Prejudgment of credibility of witness—Personal injuries trial—Statements critical of evidence of defendant's medical witnesses in previous cases—Waiver—Further critical statements in reserved judgment—Reasonable apprehension of bias.

Decisions

BRENNAN, DEANE AND GAUDRON JJ. We agree with the orders proposed by Toohey J. Subject to the following comments in relation to the question whether the circumstances of the case were such as to give rise to an appearance of bias, we are in general agreement with his Honour's reasons for those orders.

2. It is inevitable that a judge who sits regularly to hear claims for damages for personal injury will form views about the reliability and impartiality of some medical experts who are frequent witnesses in his or her court. In some cases and notwithstanding the professional detachment of an experienced judge, it will be all but impossible to put such preconceived views entirely to one side in weighing the evidence of a particular medical expert. That does not, however, mean that the judge is disqualified from hearing the particular action or any other action involving that medical expert as a witness. The requirement of the reality and the appearance of impartial justice in the administration of the law by the courts is one which must be observed in the real world of actual litigation. That requirement will not be infringed merely because a judge carries with him or her the knowledge that some medical witnesses, who are regularly called to give evidence on behalf of particular classes of plaintiffs (e.g. members of a particular trade union), are likely to be less sceptical of a plaintiff's claims and less optimistic in their prognosis of the extent of future recovery than are other medical witnesses who are regularly called to give evidence on behalf of particular classes of defendants (e.g. those whose liability is covered by a particular insurer). If it were so infringed, the administration of justice in personal injuries cases would be all but impossible. In that regard, both necessity and common sense require that a distinction be drawn between the case where a judge has some preconceived views about the expertise or reliability of the professional opinions of an expert medical witness and the case where a judge has preconceived views about the credit or trustworthiness of a non-expert witness "whose evidence is of significance on ... a question of fact" which "constitutes a live and significant issue" in the case (see Livesey v. New South Wales Bar Association (1983) 151 CLR 288, at p 300).

3. Nor will that requirement of the reality and appearance of impartial justice be infringed if a judge with preconceived views about the general reliability of the evidence of a particular medical witness discloses the existence of such views in the course of the dialogue between Bench and Bar which is so helpful in the identification of…