Vakauta v Kelly

[1988] HCATrans 331

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No Sl0l of 1988

B e t w e e n -

ROY ALEX VAKAUTA

Applicant

and

LYNETTE EILEEN KELLY

Respondent

Application for special leave

to appeal

MASON CJ

WILSON J TOOHEY J

Vakauta

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 9 DECEMBER 1988, AT 2.55 PM

Copyright in the High Court of Australia

SlT 12/1 /SDL 1 9/12/88

MR M.J. NEIL, QC:  May it please the Court, I appear with

my learned friend, MR A.S. MORRISON, for the

applicant. (instructed by G.E. Lazar)

MR B.T. SULLY, QC:  May it please the Court, I appear with

my learned friend, MR P.R. GARLING, for the respondent.

(instructediby Jones Staff & Co)

MASON CJ:	Yes, Mr Neil.
MR NEIL:	Might I, Your Honours, hand to the Court a short
outline of submissions which we would ask the Court to take into account supplementary to the
matters in our affidavit.
MASON CJ:	Yes.
MR NEIL:	Your Honours, both the learned judges in the
majority, in dealing with the matter, considered
that there would have been, except for some special
circumstances, at least apprehended bias in the
sense that a number of the things that the learned trial judge said ought not to have been said.
Ultimately, Their Honours applied a test which
imputed, we would respectfully submit, far too
much knowledge to the objective bystander and made him, in effect, an expert ··bystander.

The passages in LIVESEY, 151 CLR 288, which we

respectfully submit are clear - I would wish

to, briefly, take the Court to three passages:

one at the end of page 293 and the top of page 294.

Firstly, the well known passage:

That principle is that a judge should not
sit to hear a case if in all the circumstances

the parties or the public might entertain

a reasonable apprehension that he might

not bring an impartial and unprejudiced

mind to the resolution of the question

involved in it.

And, at page 299, a short passage at the top

of the page:

What is in issue in the present case is

the appearance and not the actuality of

bias by reason of prejudgment. The reasonable

observer is to be presumed to approach
the matter on the basis that ordinarily
a judge will so act as to ensure both

the appearance and the substance of fairness

and impartiality. But the reasonable observer

is not presumed to reject the possibility

of prejudgment or bias; nor is the reasonable
observer presumed to have any personal

knowledge of the character or ability of

the members of the relevant court.

Vakauta SIT12/2/SDL 2 9/12/88

We would add that it is implicit in that,

Your Honours, that the reasonable observer has only

the ordinary, reasonable knowledge of community

affairs of general public knowledge. He does

not have a knowledge of the workings of the system

of third party litigation in New South Wales

or of the nature and training of judges other

than his ordinary confidence in the administration

of justice. He does not know of the way in which

witnesses are determined and brought before courts

and the way in which they are chosen by the parties
and he does not know of the system - and it,

indeed, changes from time to time - of the conduct

of third party litigation in New South Wales. But those matters were imported as being

matters which the observer would have and the

test, including those matters, was applied rather

than the test in LIVESEY which, we would submit,

creates a new test.	At page 300 there is the
passage at the top:

It is, however, apparent that

setting aside cases such as special cases or

necessity -

a fair-minded observer might entertain

a reasonable apprehension of bias by reason

of prejudgment if a judge sits to hear

a case at first instance after he has,

in a previous case, expressed clear views

either about a question of fact which

constitutes a live and significant issue

in the subsequent case or about the credit

of a witness whose evidence is of significance

on such a question of fact. The consideration

that the relevant question of fact may

be conceded or that the relevant person

may not be called as a witness if the particular

judge sits would not, of course, avoid

the appearance of bias. To the contrary,

it would underline the need for the judge

to refrain from sitting.

Your Honours, in this case, we would submit,

there was the clearest possible case of prejudgment

in fact and by apprehension and yet the majority

of the Court of Appeal failed to apply the underlying

need to be more cautious. Rather, the court seemed

to, by introducing this component of an expert

observer, as we would submit, very considerably

vary from the standard in LIVESEY's case.

TOOHEY J: Mr Neil, where do we find this notion of the

expert bystander?

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MR NEIL: It is not found in the law, Your Honour, but if

I take Your Honour - you mean in the judgment,

Your Honour?

TOOHEY J:  No, I mean in the judgments sought to be appealed

from.

MR NEIL:  Of course. Your Honour, in the judgment of

Mr Justice McHugh in the appeal book, commencing

at page 61 of the appeal book, for the next two

or three pages the matter comes out. Perhaps

I have to read some of this, Your Honours.	At
page 61 of the appeal book, line 20:

If his Honour's remarks concerning the

three doctors had been made about witnesses

in the context of ordinary civil litigation,

a fairminded observer would have a reasonable

apprehension that Hunt J. had pre-judged

the issues.

His Honour described the three doctors as "that unholy trinity" and had said that they usually

did not give evidence that was helpful and usually

consciously or unconsciously assisted the Government

Insurance Office - and a number of other things.

In LIVESEY V NEW SOUTH WALES BAR ASSOCIATION

the High Court held that there was a reasonable

apprehension of pre-judgment where two
judges of this Court in earlier proceedings

had rejected the credit and evidence of a witness called on behalf of Livesey -

then there is a reference to LIVESEY and, at the

top of page 62:

What Hunt J said, however, has to be

read against the background of personal

injury litigation in this State, a large

part of which is conducted by the Government

Insurance Office. His Honour did not
say that he could not or would not accept

the evidence of Drs Lawson, Revai and Dyball.

What his Honour said was that he was "not

usually very impressed with the views"

of these doctors. His remarks were made

in a context of pointing to the "well known

phenomenon that the GIO does retain doctors

who are likely to express views which will
not assist the plaintiff's case". His

Honour went on to point out that this selective

attitude was not restricted to the Government

Insurance Office or to defendants generally.

Hunt J also correctly pointed out that there are doctors who are regularly called

to support the cases of plaintiffs as well
as those of the defendants.

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Then His Honour deals with the fact that·it is

only natural that solicitors should do the best
for their clients and refers to medicine not

being an exact science.

Moreover, because a small group of insurance

companies stand behind defendants in personal

injuries actions and the bulk of plaintiffs'

work is handled by a few firms of solicitors,

a doctor, who is found to give reports

favourable to the side invoking his services,

will inevitably be called on regularly

to give evidence in personal injuries

litigation. Judges with experience in

personal litigation cases are well aware

of this phenomenon.

We would submit that His Honour there is starting

to import His Honour's knowlege and starts to

confuse the matter because the test of the objective

bystander - - -

MASON CJ:  But everyone who has any connection with the

law is aware of all this. It is not news; you

do not have to be particularly well informed.

MR NEIL:	Your Honour, it is not news to those within the
profession who would deal with litigation. It
would, we would respectfully submit, be quite
foreign and unknown - other than perhaps in the
most general knowledge that there is a third
party system in the State - would be not matter that the ordinary member of the public would
be aware of. That, we would respectfully submit,
is the test: the ordinary, reasonable observer.
MASON CJ:	But why does he have to be an "uninformed" observer?

MR NEIL: Not uninformed, Your Honour; as informed,

Your Honour, as the ordinary reasonable individual

on the bus, but not specially informed about

the practices and procedures and systems of the

calling of witnesses; the obtaining of doctors
to give evidence; which solicitors do these;

the small coterie of plaintiffs' solicitors; the fact that the GIO has - many people may not know that it has a monopoly, in effect, or very

very much .. the:-najor litigant in this area.

His Honour then goes on, at line about 18:

it is inevitable that judges hearing personal

injuries litigation without juries will

form views as to the general reliability

of certain doctors as witnesses. In the
context of the institutional nature of

personal injuries litigation in this State,

the judges cannot be expected to hear cases

with no opinions concerning doctors who

regularly give evidence in this sort of

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litigation. If a judge was precluded from

hearing a personal injury action because

he has previously rejected the evidence
of a medico-legal expert, it would not
take long before many cases could not be

heard at all. All that can be expected

of a judge in personal injury litigation

in this State is that he will do his best

to evaluate honestly and fairly the evidence
of every doctor in the overall context

of the case.

It follows that what his Honour said

concerning the policy of the Government

Insurance Office to "retain doctors who are likely to express views which will

not assist the plaintiff's case" cannot

be regarded as giving rise to any apprhension

of bias against that organization.	To
suggest otherwise is quite unreal.

Your Honours, we would submit that might be so

if viewed from the test of a member of the profession

or a judge who knows these things but it can,

we submit, and would, and in this case did give

rise to bias and would have given rise to an

apprehension of bias in the mind of the ordinary

member of the public who did not know of all

the matters that we know or that His Honour

Mr Justice McHugh has knowledge of.

MASON CJ:  I imagine that people who practise - practitioners

who appear regularly before Mr Justice Hunt,

would be aware of some of these views that he

appears to have expressed in such a forthright

fashion on this occasion.

MR NEIL:	That is one of the matters which we complain
of because His Honour said this: His Honour, before reading the doctors' reports, which he
got overnight - before reading them he had expressed
very very trenchant views against the doctors.
The next day, in amplifying on those views, he
said, "I had previously in cases expressed my
views about these doctors." He said, "I would have thought someone at the GIO would have been astute enough to know my views" - suggesting,
perhaps, there should be a file of, "Know your judge and understand the Judge's predispositions",
which, we would submit, is not appropriate. And he said, "I express my views for the benefit
of the parties who had informed me that negotiations
were underway while the case was going on."
Now, what His Honour said was, "People know my views about some of these doctors; you should have gone to your files and found out my previous
judgments. That would have helped you in the
negotiations".  We would say, implicitly, "Would
have h~lped the GIO to realize my views and up your offers."

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That is one of the very things, Your Honours,

of which we can complain and I can take

Your Honours to the transcript and I think almost

in terms I have put what His Honour said. That

is, perhaps, a slightly separate point,

Your Honour, but the ordinary member of the public, we would submit, on having heard that, would hardly think that the GIO would be able to get a fair trial in the mind of His Honour

expecially if the ordinary member of the public

does not have knowledge of negotiations; of

how they are conducted or of how the system operates

or of the system of giving judgments and perhaps

having them collated and the like.

Then His Honour Mr Justice McHugh, at page 64,

line 18 - when what His Honour said is read as a

whole, His Honour seems to move up to another

point:

I do not think that it would persuade a

fairminded observer that there was a

reasonable apprehension that he would pre-

judge the matter. His Honour said that

he was "not usually very impressed with

the views~ of the three doctors. That

carries the inference that sometimes his

Honour is impressed with the views of these

doctors.

With respect, Your Honours, we would respectfully

submit that the ordinary man on the bus would

not take that~v±ew of it. He would think that

the learned judge was being polite.

MASON CJ:	Yes, you may have a point there, Mr Neil.
MR NEIL:	Then to say, Your Honours, that:

When what his Honour said is read as a

whole, I do not think that it would persuade

a fairminded observer -

we would submit that that carries the problem

that he is really meaning "the ordinary fairminded

observer who knows what I know about the system

would no longer be persuaded to the view he would

have had before". So His Honour has misapplied

LIVESEY and come to a totally wrong and, we would

submit with great respect to His Honour, unjust

result. His Honour goes further at line 25:

His Honour's remarks that Drs Lawson, Revai and Dyball were that "unholy trinity" was, however, unfortunate. It should not have

been made. If no more had appeared, a

reasonable apprehension of pre-judgment
would have arisen.

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So we are back to the prejudgment and apprehension

arising.

A reasonable bystander might think that

His Honour had such a poor opinion of these

doctors that nothing that they would say

in evidence could persuade him. But his

Honour's remarks on the second day dispelled

such a conclusion.

The problem there, Your Honours, is - I can take
Your Honours to the transcript - on the second

day His Honour the trial judge makes it perfectly

plain that his remarks are, with great respect

to him, a defence when Mr Kelleher, who was for

the defendant at the time, brought the matter

up. They were a defence that compounded the

problem and exposed the prejudgment and worsened

the problem and were then followed by His Honour's

judgment in which His Honour then returned what
we would respectfully submit to be an attack

on the doctors. I will take Your Honours to

that in just a moment.

TOOHEY J: Mr Neil, I may be wrong but I do not suppose

you are all that concerned about the sort of
observations made by Mr Justice McHugh in the

context of actual bias? In other words, these

sort of explanations that His Honours has offered

might well rebut any suggestion of actual bias?

I take it you are putting the argument at this

point in terms of "reasonable apprehension of

bias"?

MR NEIL:	On this point I am putting it in that way,
Your Honour, yes. We do maintain that there was bias and I may have other argumenm about
it but this argument goes to ostensible bias and to the Court of Appeal, in effect, creating
a new test.

If, Your Honour, I could perhaps digress

for just a moment to illustrate the problem that

another case in New South Wales has thrown up,

and that is S & M MOTOR REPAIRS V CALTEX,

(1988) 12 NSWLR 358, this judgment was delivered

about ten days or so before the instant case

VAKAUTA V KELLY was argued and was not referred

to in VAKAUTA V KELLY although Mr Justice Clarke

was on the bench.

MASON CJ:	What part of this case were you - - -
MR NEIL:	I just want to briefly draw Your Honours' attention
to this: that between pages 379 and 381 there
is a long passage that I am not going to read

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to Your Honours. It is a dissertation of

first and second citizen - - -

MASON CJ:  Yes, we read that in the special leave application

in this case, I think.

MR NEIL:	Your Honours will be certainly aware
Mr Jutice Kirby - - -
MASON CJ:	I do not know that that was the ground on which

they sought special leave. I think they sought

special leave on another issue in the case.

MR NEIL:	Yes, the case went off on another ground,
Your Honour. Quite so, but in this case the
court, we would respectfully submit, the majority fell into the same error of constructing citizens
who have more knowledge, namely about the oil
industry and about the method of briefing barristers
and so on.  Mr Justice Kirby, at the end of page 375,
was faced somewhat with ,the same problem as
Mr Justice Mahoney in the present case although
there is no indication that Mr Justice Mahoney
read the draft judgments of his brother judges.
At page 375G:

Since writing the above, I have read with

admiration the way in which Priestley and

Clarke JJA have explained the path by which they come, on the same facts, to the opposite

conclusion.

I would only observe that the second

citizen to whose fictional conversation

their Honours refer, has had imputed to
him (or her) a sophistication and knowledge

about the law and its ways which I believe

to be quite atypical of the general community.

The dialogue, with every respect, strikes

me as more reminiscent of the hushed tones

and cloistered atmosphere of a Bar common

room or judicial luncheon table than the

robust discussion between ordinary reasonable
citizens on the Emu Plains omnibus.

MASON CJ:  I must say, it certainly does not call to mind

any experiences I had of the bar common room

in my day.

MR NEIL: Well, His Honour then takes the point that the

ordinary observer would say:

"We just don't like it".

We would make the point that that is the correct

approach - the more robust approach - that the

ordinary observer, in hearing what Mr Justice Hunt

here said - "We just don't like it. And if

the major litigant in New South Wales cannot

get a fair trial; how can any other litigant?"

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The problem, Your Honours, is that magistrates,

judges, throughout the State - there are very

many judicial offices - may pick up this judgment
and apply the wrong test. His Honour

Mr Justice McHugh again, at page 66, emphasizes, at line 5:

When his Honour's remarks are read in
context and against the background of personal
injury litigation in this State, I do not

think that a fairminded observer would

conclude that His Honour had prejudged

the effect of the doctors' evidence.

His Honour then also goes on to deal with the

judgment.	Could I just digress very briefly
on this:	Mr Justice Mahoney, when dealing with

the question of waiver, said that a party alleging
ostensible bias in the mind of the public does
not waive if he, in an appropriate way, properly

brings the matter to the attention of the learned

judge. In this case, he said, Mr Kelleher brought

it up properly; raised the matter; made it

clear that it would be a ground perhaps of some

complaint in the hope, perhaps, that His Honour

might do something about it.

MASON CJ: That is not good enough. If there is a complaint

about bias or apparent bias then the party has to make up his mind whether he is going to ask the judge to discharge himself from the case.

He cannot stand by, allow the case to take its

course, and then, because the ultimate determination

is unfavourable to him, raise the bias point

later.

MR NEIL: Setting that aside for a moment, Your Honour,

and not seeking to avoid that point at all -

because we would submit that is a special leave
point - but what we would submit occurs is this: if, by a polite reasonable approach to the judge

and if, without asking for him to disqualify

himself, the case goes on and nothing more occurs

to evidence any further actual or ostensible

bias, what Your Honour puts may - I would have

to say "may well be the case" because we would

with to argue that it is not clear - this Court
has not finally held that.

But, if in the judgment one perceives further bias, the matter can revive or, alternatively,

for our submission here, even setting that whole

point aside, we submit that what happened here -

the judgment further evidences bias or ostensible

bias and Mr Justice McHugh recognized that problem,

dealt with it at page 66 but, we would submit,

did not overcome the problem.

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MASON CJ:	I can understand the force	of that submission

in relation to actual bias;	I do not understand
the force of the submission	in relation to apparent
bias.

MR NEIL:	Your Honour, I think all I can say is that in
a case of very clear express words in a judgment they would carry, we would submit, both actual
bias and would carry the ostensible bias in the
mind of the member of the public.  In the judgment
of Mr Justice Hunt, which commences at page 1
of the appeal book, there are three very brief
references to which I should take Your Honours. One is at page 5 of the appeal book, about the
second top line, when reviewing the evidence,
His Honour says:

Even Dr Lawson, who also saw the plaintiff

for the GIO, thought -

and so on; which is something of a denegration

of Dr Lawson. Further, at page 8, about line 26:

Even Dr Lawson thought that the plaintiff

would have to be sheltered from the demands

of the general public.

And then, at page 9, line 11:

Dr Lawson's suggestion that the plaintiff

could work in the casualty ward did not

impress me. Neither did the remainder

of his evidence, which was as negative

as it always seems to be - and based as
usual upon his non-acceptance of the genuireness

of any plaintiff's complaints of pain.

We would submit that evidence is biased and a

reasonable apprehension in the mind of the publicand it

is particularly important_ in the light of, in this case,

the doctor was not cross-examined to suggest

that he was a lackey_ of the GIO and lent himself

to giving the type of evidence that they would

want to proffer; he was not subject to any

criticism by the learned trial judge; he went

away from the case and then this judgment was

later delivered and is on the public record for

all to read. We would submit that that raises

in the matter of the administration of justice
a very important matter: that the judgment itself,
we would argue on appeal, evinces bias or, at

the very least, a reasonable apprehension of

bias and a manifest unfairness to the professional

witness who was never given any opportunity to

meet such matter and the case was determined

in those words.	Your Honours, Mr Justice Clarke,
in a short - - -

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MASON CJ:	Do we need to go through this in great detail?
MR NEIL:	No, Your Honour.

MASON CJ: It is a matter of ascertaining from you what

are your special leave points.

MR NEIL:	Yes, in brief, Your Honours, if I could just
perhaps, in addition to what I have put in the
short submissions, take Your Honours to page 100
of the appeal book because I can, in very short terms, simply ask Your Honours to note the reasons as we formulated them there in the affidavit.

Firstly, we would submit, there has in

fact, however one puts it, been introduced an

additional requirement of the observer of extra

knowledge or some expertise - - -

MASON CJ:  Yes, you have made that point clear.

MR NEIL: At page 101 I think I have made the point that

Mr Justice McHugh overlooked that Mr Justice Hunt's

statements on the second day were a defence,

not a clarification;

Nextly, at page 102, this question, as

we put in paragraph 2.7, a public importance

issue. The difference between:

a judge who, aware of prejudicial matter

is nonetheless confident of his own ability

to determine the case fairly and impartially.

He has, therefore, not prejudged and is

not biased.

But the second is this case, we would submit:

A judge who -

was biased -

Can he then absolve himself of bias by

application of special training or by

delivering reasons on the point of his

own bias. Can he dispel reasonable

apprehension -

in the minds of the public

by such means.

We would submit he cannot and that is an important

issue.

MASON CJ:  What is the meaning of the expression, "By

application of special training"?

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MR NEIL:	I think it means, Your Honour - it is not very well
expressed - by him saying, "I, as a judge" -
and this is what His Honour said - "am used as
judges are, being men of training"- - -

MASON CJ:  I see; summing up all the rigors of the judicial

discipline?

MR NEIL:  Yes, Your Honour. If it goes to the matter of the

observer, we would say the observer would not

necessarily know all that.

At page 103, allied to that point, I think,

at line 20, we would submit that His Honour:

exhibited bias and prejudice both before

and after his remarks about his ability

to judge the issue on its merits.

Despite His Honour's own clarification, His Honour

trenchantly determined to deal with the doctors

in the judgment and had not dispelled his own

bias. The rest of those submissions deal,

Your Honours, with the question of waiver and all I would wish to say on that is that if one

gets to that - it is an important point.

This Court has left the matter, at this stage,

at least, open. How this Court would determine

it is another question; the Court of Appeal

decided that and Mr Justice McHugh said that

"the High Court has said the matter is probably

still open. We will determine it" and, in those

circumstances, we would submit it should be dealt

with as emphasizing that this would be an appropriate
vehicle for special leave although we do mount
the special leave application on the principal

headings.

MASON CJ:  Where does Mr Justice McHugh deal with this

point?

MR NEIL:  At page 66 and following. In particular,

His Honou~ at page 72, having surveyed extensive

authority, referred to ALLEY EX PARTE THE AUSTRALIAN

BUILDING CONSTRUCTION EMPLOYEES AND BUILDERS

LABOURERS FEDERATION and sets out a passage from

the judgment and, in particular, at line 30:

The question whether it is possible to

waive a right of this kind raises interesting

questions which it is not necessary to

consider here.

Mr Justice McHugh, at page 73, says, at line 18:

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Although the passage in the judgment in

RE ALLEY, to which I have referred, indicates

that the matter is still probably open

in the High Court, I think that this Court should treat it as settled that, in a civil

case, failure to object to a person sitting

on a judicial or quasi-judicial tribunal

is waived when a party or his representative

knows of the objectionable circumstances

and his right to object but allows the

case to proceed to decision or for such

period as constitutes an election to waive

his right of objection.

We would submit, Your Honour, that the true

rationale of Mr Justice Mahoney and Mr Justice Kirby

in S & Mis that that is not the case and that the

waiver cannot be so applied against the person.

We would simply ask what would happen in New

South Wales if a similar case arose in - judicial

officers, we would submit, have very unsatisfactory

guidance; the only other way the matter might

be resolved, which again would be very unsatisfactory,

is if one got a bench in another case, say, of

Mr Justice Mahoney and Mr Justice Kirby and
Mr Justice McHugh or Mr Justice Clarke, and see

what happens - but that is not satisfactory and

this Court should settle these issues.	May it
please the Court.

MASON CJ:	Thank you, Mr Neil.	Yes, Mr Sully?
MR SULLY:	May it please the Court.	We too have a brief

outline, may we pass it up?

MASON CJ: Certainly.

(Continued on page 15)

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MR SULLY: If Your Honours please, there are two corrections

in paragraph 1.3. Of course it is inappropriate

to speak of failing to have the trial judge

disqualify himself, it should read, "in failing

to ask the trial judge to disqualify himself".

We have committed the solacism, we hope not

unpardonable, of calling the Court of Appeal the

Full Court.

MASON CJ:  You know we are not particularly sensitive about the reaction of judges of other courts.

MR SULLY: If Your Honours please, the gist of what we would

wish to put as the short points that militate against

the grant of special leave in the present case

are indeed the matters that are summarized in the

paragraph numbered 1.

MASON CJ:	What do you say to the point of general principle that Mr Neil says this application raises, namely,
the Court of Appeal have fixed the reasonable bystander with special knowledge and that that
is not permissible?
MR SULLY:	We say that on a fair view of what the majority, at least, said in the Court of Appeal and, indeed,
even in part His Honour Mr Justice Mahoney, that
is not a fair summary of the view they take. What
they say,  and Mr Justice Clarke points with
some clarity to authority that supports the view, is
simply this: that the test that my learned friend propounds whether a person otherwise uninformed
would sinply say in an inchoate kind of way, "Wel 1,
I just do not like it", is not enough bearing in
mind the gravity of the issue that is raised when
an allegation of bias, actual or ostensible, is
made against a judge. But what one has to do is
to have a sensible regard to all of the relevant
circumstances and they include making a rational allowance for the fact that judges are called upon every day of the week to deal with exactly the
kind of situation which confronted Mr Justice Hunt
in the present particular case , that is to say,
the situation of having to deal afresh in the
particular case with evidence from a witness whom
the judge has seen and heard and evaluated time
without number.
MASON CJ:	But are they all responding in this way?
MR SULLY:	I am sorry, Your Honour.
MASON CJ:	Are all the judges responding in this way? Is this a typical illustration of how they respond
to this situation that you say confronts them every
day?

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MR SULLY:	Your Honour, I, with great respect, admire the bold pleader but not even I would plead to that
particular matter, except to say this: it is one
thing to say, as with great respect one can probably
say, that it was unfortunate that His Honour used,
to speak colloquially, good throw-away lines in
the way that he did. Mr Justice McHugh says it
is unfortunate.  With great respect, one can understand
wh½ stepping back from the situation and trying
to be objective, one would say that.
But, it is one thing to say that a judge has used language a little more colourful, a little
unhappily chosen - it is one thing to say that,
and that it would have been really better if he
had not. It is entirely a different thing to take those few expressions and to seek to draw from
them what is after all a very serious proposition -
and that is that he was actually biased, a point
of view which is still urged even in this Court, or even the alternative, that a reasonable observer, allowing for the cut and thrust of what goes on
in real life in trial courts, would necessarily
assume that an experienced judge, who has not been
challenged specifically to discharge himself because
of the complaints now made against him, is incapable of doing what his oath binds him to do. That is
so serious a thing to say about the judge, not
only His Honour, but about any trial judge against
whom such an accusation is made, that it is rightly to be said, in our respectful submission, that
such an accusation should not carry the day simply because a particular debating approach to inaptly chosen words, lifted, perhaps, may one suggest, out of the whole context, might suggest that His Honour did not preserve that complete dispassion
which he ought to have done.

Now, Your Honours, if one approaches it that

way that really is all that the judges in the Court

are saying - that one has to judge the allegation	of Appeal are sayinR. It is, .with respect, a big and very important all" but that is what they	in' the BRIGINSHAW kind of sense of testing the probabilities, according to the gravity of what
it is that is being alleged and has to be established
for the attack to be made good. Now, if that is
right then that submission not only meets, we would respectfully contend, the point that my learned
friend puts on ostensible bias and that Your Honour
the Chief Justice has. put to me but that impacts,
also, upon those very important subsidiary questions,
if we may so refer to them, of which this question
of waiver is one of the most significant. And
may we hope, with respect, that before Your Honours
deal with the matter Your Honours will, at least,

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be reminded, as you can be by referring to page 22

of the appeal book, of just what the exchange was
that took place on the second morning when counsel
then appearing rose to take issue with His Honour
about the matters of which, as we would put in

a rather different way, complaint is now made. Your Honours will see at page 22, about

line 4 or 5, that counsel starts off by saying:

There was yesterday reference which was not

inlcuded in the transcript when I indicated

that the three doctors that the GIO intended

to call were Dr Revai, Dr Lawson and Dr Dyball.

Your Honour I think referred to the three doctors as 'that unholy trio'.

HIS HONOUR:	I might have said 'trinity'.
MR KELLEHER:	There is also the reference
with regard to Dr Dyball.	Your Honour indicated

there was one matter where he indicated he

would not comment on the matter unless he

had instructions from the GIO.

HIS HONOUR:  No, what I said was -

different. And he goes on to put it. And so the

exchange rolls on, and at the end of it, if

Your Honours please - and over on page 23, after

the whole exchange has run its course with regard
to raising with His Honour things of which the
only apparent complaint thus far is that they have

not been noted, counsel says on page 23, in response

to a question from his answer as to a particular

matter:

HIS HONOUR:	What is the purpose of that one? .....
MR KELLEHER:	No, it may with the rest indicate

a view as far as your Honour -

"it may with the rest" will Your Honours observe -

was concerned with regard to GIO matters as to

the extent of damages that should be awared

in a GIO matter, but it adds very little to

that line, but I am instructed to seek to

have it noted.

And the judge said:

It may be noted. Are those the matters?

MR KELLEHER:  Those are the matters.

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Now, Your Honours might think, with great

respec½ that that tells something useful for present

purposes about what really it was that was occurring

there in the actual court of trial. And when

His Honour the Chief Justice said to my learned friend that it was not good enough simply to lie

by, as it were, and not to ask for a discharge

if, speaking frankly, the view held was that bias

had either been shown, or reasonably apprehended,

to the point where such an application might properly

be made, well, the party who chooses, for whatever

perceived tactical advantage of that moment, not

to make such an application bears the consequences.

And bears them, in part at least, if Your Honours

please, because not to say frankly to a judge,

at such a stage in the trial, that with great respect
it is perceived that His Honour is biased and ought
to entertain an application that he disqualify
himself, is not only unfair in terms of the parties,

it is unfair so far as the judge is concerned.

May we offer what we suggest is an appropriate

analogy, not perhaps an exact one - but an appropriate

one. There is ample appellate authority for the

proposition that the Crown will not be able to

appeal against a sentence upon the basis that the

sentencing judge has committed some error of legal

principle if the Crown, having the opportunity

to assist the judge - is the way the leading cases

put it - to assist the court with submissions that
put frankly for the consideration of the court
what the Crown is saying on the point, stands silent
then the Crown cannot come back later and say,

"Well, the judge made an error".

TOOHEY J:  Mr Sully, there is a lot of force in that. One

difficulty though is, how important does it remain

if the judgment itself contains passages that might

be thought to raise a reasonable a~prehension of

bias?

MR SULLY:  One can only, with great respect, respond to

that by putting, as we respectfully do, that it

reinforces really the need to be clear and prompt

in taking the point that there is actual bias or

that there is a reasonable apprehension of bias

as soon as the point is reached where that can

be said. Now, what has been argued here, as we

have understood the case made against us, is not

that one could not say until the judgment came

out that that point had been reached but that one
can say the point had been reached at the stage

of the trial covered by the part of the transcript

to which we are referring. And one can by some

process of relation back then go to the judgment

and see whether or not that reinforces the reasoning

upon which one would otherwise rely.

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But that does not cure the vice that a failure

to ask for a disqualification in a case where the

real point being put is tha~ at the end of these

exchanges, either actual bias had been demonstrated

or things had been demonstrated apt to raise, in

the relevant sense, a reasonable apprehension of
bias. It does not meet the objection that not
then to say so frankly to the judge is unfair to

the judge against whom the accusation is later

made, in addition to any other unfairness that

it might have. And that aspect of the matter impacts,

as it were, across the whole spectrum of the
submissions put by the present applicant, not least
of all the general submissions as to perceptions

about fairness and the administration of justice

and so forth.

The other principal point that we would seek to put is the one that we have picked up on page 2

at 1. 4. May we just amplify that a 1 it t le to Your Honours.

It would be only fair to say that the notice of appeal in the form originally taken to the Court of Appeal, is not reproduced in the appeal book

and I must tell Your Honours that for my own part

I have not seen it. And what is said there about

the abandonment in the Full Court of grounds going

to quantum is said against the background of what

was remarked by Mr Justice Mahoney at page 18 of

the appeal book. Mr Garling, however, who

apparently for some reason which is wisely hidden

from me, did have a copy of the notice of appeal

in the Court of Appeal, has put it before me.

Will Your Honours be assured that the first two

grounds in the notice of appeal that went to the
Court of Appeal were that the award of general

damages in the sum found by His Honour - it says, "was exclusive" but it means "was excessive" and,

secondly, the award of future of economic loss

in the sum found by His Honour was excessive.

Now, of course, implicit in those grounds

1s an attack upon the view formed by His Honour

of the evidence before him, including the medical
evidence in so far as that went to the question
of employability and things of the kind, and one
of the orders sought - the first indeed, was a

reassessment by the Court of Appeal of the damages

awarded by His Honour and, in the alternative, that

a new trial be ordered limited to damages. And

it is only fair to say, so that Your Honours have

it completely, that the third of the four grounds

taken in the Court of Appeal was that His Honour

displayed ostensible bias, or prejudgmen~ against

the defendant - reference to pages 73 to 75 inclusive

of the transcript of the trial. And there was

a fourth ground which was not, if memory serves,

pressed in the Court of Appeal and is not relevant,

at least as we would see it to any of the grounds

that have been pressed here.

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Now, in the light of that, and bearing in mind

to go no further than the passage from ALLEY's case

at page 72 of the application book to which

Your Honours have already been taken, one can,

and we do, with respect, urge this proposition:

that if it was correct to say, as this Court thought

it was in ALLEY's case, that a party who lies by

while evidence is take~ for however many days it

was, as a matter of discretion will not get relief,
then by parity of reasoning the applicant here
should not get the relief that he seeks having

stood by while the whole trial ran its course without

taking an application of any kind appropriate to

the serious allegations which are now made and

then expressly abandoning those grounds of appeal

which had been taken in the Court of Appeal and

in which there was implicit an attack upon the

balance of the evidence struck by His Honour.

Subject to reading word for word what else appears

in the written outline, which we do not presume

to do, those are, in essence, the submissions that

we would put in opposition to the application.

May it please the Court.

MASON CJ:  Thank you, Mr Sully. Now, Mr Neil, why should

you retain ground 4 in the draft notice of appeal?

That is not the type of issue that we are

accustomed to dealing with and this affidavit was

rejected by the Court of Appeal.

MR NEIL:  Yes, Your Honours.

MASON CJ:  We discourage attempts to go behind the transcript.

MR NEIL: I would not, in light of what has fallen from

Your Honour, seek to maintain that ground.

MASON CJ:  Very well.

MR NEIL:  I think we have said anything we wanted to say

on it in the application - in the affidavit I think

I have addressed something to that and we would

not press the matter if the Court discourages it.

MASON CJ:  Very well. The Court will grant special leave

to appeal excluding ground 2(d) in the draft notice

of appeal.

MR NEIL:  Your Honours, could I ask for a - at page 92 we

ask for an enlargement of time - it is a very few

days only we were out of time?

MASON CJ:  Yes. You can have an enlargement of time.

AT 3.43 PM THE MATTER WAS ADJOURNED SINE DIE

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