Briscoe-Hough v A.V.S Australian Venue Security Services Pty Ltd

CATCHWORDS: Courts and judges - Disqualification for bias - Reasons for decision

Supreme Court Act 1970 s75A(7), (8) Anti-Discrimination Act 1977 s22A LEGISLATION CITED: Legal Practitioners Act 1987 Civil Liability Act 2002 ss3,13(1),16(1) Suitors' Fund Act 1951

Dovade Pty Ltd v Westpac Banking Group (1999) 46 NSWLR 168 CASES CITED: Ebner v Official Trustee in Bankruptcy [2001] 205CLR 337 Penrith City Council v Parks [2004] NSWCA 201

CLAIMANT Peter Dominic Briscoe-Hough PARTIES: OPPONENT A.V.S Australian Venue Security Services Pty Ltd

Mr G B Hall SC with Mr R Driver for Claimant COUNSEL: Mr R W Seton SC with Mr S Torrington for Opponent

CLAIMANT Velleley & Associates SOLICITORS: OPPONENT Wotton & Kearney

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL 40185/04

SHELLER JA SANTOW JA BROWNIE AJA

Friday 11 March 2005 PETER DOMINIC BRISCOE-HOUGH v A.V.S AUSTRALIAN VENUE SECURITY SERVICES PTY LTD Judgment

1 SHELLER JA: I have had the benefit of reading in draft the judgment prepared by Brownie AJA. His Honour has stated the relevant facts. 2 In my opinion, the claim that the trial Judge should have disqualified herself for apprehended bias can best be approached by assuming that the fair-minded lay observer was aware of the facts as, before this Court, they turned out to be, namely improper behaviour as Brownie AJA has described it, in the Court room in a matter listed before her Honour Judge English by the barrister for the plaintiff and the claimant in this case, on a separate occasion on 17 April 2002, a letter by the trial Judge to the Bar Association about the matter, the initiation by the Bar Council of a formal complaint which led to a response being called for, the terms of the response, the barrister's consent to being reprimanded and the conditions attached to his practising certificate. The barrister apologised unreservedly to all concerned and acknowledged that his behaviour had been unforgivable. 3 Sadly, no doubt from time to time judges are required to reprimand barristers for their behaviour in Court, though rarely, I would hope, for behaviour of the sort described here. If such a reprimand is given appropriately and appropriate action is taken, the barrister concerned cannot for that reason insist that, as a result of what occurred, the judge in question should thereafter disqualify him or herself from sitting in cases where the barrister is briefed on grounds of apprehended bias. The lay observer aware of those facts could not reasonably have apprehended that the judge might not bring an impartial mind to the resolution of the question in the particular case in which the barrister was to appear and which the judge was required to decide. Otherwise, by behaving badly to the point of being properly reprimanded by the trial judge, a barrister could compel the judge to disqualify him or herself while the barrister remains. In Dovade Pty Ltd v Westpac Banking Group (1999) 46 NSWLR 168 at 188-9 this Court said: "93 A claim of apprehended bias should be considered in the context of the judicial function and the public perception of it. There is a presumption that public officers have acted with honesty and discretion: Broom's Legal Maxims, 10th ed at 642. In the case of a judicial officer, this is no empty form. It is reinforced by the accountability necessarily inherent in the public processes of litigation and the disappointed litigant's right of appeal. Every judge swears to 'do right to all manner of people according to law without fear or favour, affection or ill-will'. This public oath is not a talisman against error, but it forms the constant back-drop to the way in which each judge functions on and off the bench. The history and reach of the oath were discussed by Sir Gerard Brennan on his swearing in as Chief Justice of the High Court of Australia: see 183 CLR at ix-x. The level of public confidence in the judiciary is based upon experience and a general perception of the rule of law."

It makes no difference that the reprimand came after a letter from the trial Judge to the Bar Association. 4 Further, in my opinion, although the circumstances in this case were unusual, the grounds upon which disqualification is sought should be stated squarely in open court supported by admissions or evidence as the case may require. It is, I think, undesirable that the judge rules upon matters apparently known only to the judge, the barrister making the application and, perhaps, opposing counsel. 5 Otherwise I agree with the reasons for judgment of Brownie AJA and the orders he proposes. 6 SANTOW JA: I have had the benefit of reading the judgment of Brownie AJA in draft and the additional observations of Sheller JA concerning disqualification. I agree with both judgments and would only add this observation. As was said in Ebner v Official Trustee [2001] 205 CLR 337 by Gleeson CJ, McHugh, Gummow and Hayne JJ: "… if the mere making of an insubstantial objection were sufficient to lead a judge to decline to hear or decide a case, the system would soon reach a stage where, for practical purposes, individual parties could influence the composition of the bench. That would be intolerable." 7 The objection here was most certainly insubstantial and should not have been made. 8 BROWNIE AJA: The claimant was bitten by a dog owned by the opponent. He sued the opponent for damages for personal injuries and recovered a judgment for $5,522.90. He now seeks leave to appeal, generally on the basis that the damages awarded were inadequate in various respects. In addition, he says that the trial judge should have disqualified herself, for apprehended bias. Although initially he sought either an order for a new trial limited to the question of damages, or that damages be reassessed by this Court, he now accepts that if there is to be a finding that the trial judge should have disqualified herself, there must be a new trial generally.

Disqualification 9 The case was called on for trial on 10 February 2004 before English DCJ. Mr Driver of Counsel appeared for the claimant/plaintiff, and Mr Torrington of Counsel appeared for the opponent/defendant. The transcript records the following exchange at the commencement of the hearing: "HER HONOUR: Is this matter ready? DRIVER: It is, your Honour. Your Honour, if I might make an application that your Honour disqualifies herself from hearing the case for reasons known to yourself and my learned friend. HER HONOUR: Do you wish to be heard, Mr Torrington? TORRINGTON: No, I don't. HER HONOUR: I decline to disqualify myself, Mr Driver. DRIVER: If your Honour pleases. HER HONOUR: The incident you refer to happened well over two years ago. It has nothing to do with your competency, or the way in which the matter was dealt with. I see no reason to disqualify myself in the circumstances." 10 The hearing then proceeded without anything further being said or done about the subject of her Honour disqualifying herself. In particular, nothing further was said as to why it was suggested that her Honour should have disqualified herself, or what it was that was known either to her Honour or to Mr Torrington, and there was no evidence or other material put forward at the time that might have led to the view that her Honour should have disqualified herself. 11 On the application for leave to appeal the claimant/plaintiff sought to tender evidence about this. That led to a debate focussed upon the provisions of s75A (7) and (8) of the Supreme Court Act 1970, relating to the right of parties to lead evidence on appeal that had not been led at trial, and to the provisions of Part 51 r19, dealing with the manner in which and the time by which that evidence should be presented. An affidavit by the solicitor for the claimant was then filed. Objections were taken and parts of that affidavit were rejected, and the Court reserved its decision as to the admissibility of a group of documents referred to in the affidavit, being a copy of part of the file of The New South Wales Bar Association. 12 I consider that these documents should be admitted into evidence, since it is not possible to come to an informed view about the facts, and to give adequate reasons for judgment, without referring to the facts disclosed to the Court only through these documents. The Court was informed, without objection, that the case had been referred to English DCJ at short notice, so that it is understandable that the claimant was then caught by surprise, at least to some extent, and so that the failure of the claimant to tender these documents (which were not then available) or to advance other material to the same general effect is explicable. Within the meaning of s75A (8) of the Supreme Court Act, sufficient "special grounds" have been made out to justify the receipt of this evidence, for the limited purpose of considering whether a miscarriage of justice occurred at trial. 13 The documents establish, sufficiently for the purpose of considering the application for leave to appeal, and the appeal on the subject of disqualification, what the objective facts were. Mr Driver had been briefed as junior counsel in a case that was listed for hearing on 17 April 2002 at Gosford, before her Honour. On the preceding day he, his leader and his instructing solicitor worked on the case throughout the day. Negotiations between the parties to that case led to the making of an agreement, at about 6pm, for the compromise of the case. Mr Driver's leader then returned to Sydney, leaving Mr Driver to advise the court of the settlement the next day. 14 He suffered from a spinal condition that required him to walk with the aid of a cane and to take significant quantities of narcotic analgesics during the course of the day, on 16 April. Later, that evening, he imbibed a significant quantity of alcohol. On 17 April he attended at court, whilst still affected by the alcohol and/or analgesics. He did not know it at the time, but his opponent had already advised the court of the settlement. He appeared in the courtroom unrobed, appeared to be dishevelled, his breath was said to smell of alcohol, he seemed unsteady on his feet, and he fell from a chair. He made a statement to the court monitor, that perhaps only the court monitor heard, that she quite reasonably regarded as sexual harassment (compare the definition of this expression in s22A of the Anti-Discrimination Act 1977), and later he attempted to follow her from the courtroom to an adjacent corridor. 15 Neither her Honour nor the court monitor nor anyone else wished to make a formal complaint under the provisions of the Legal Practitioners Act 1987, but on 18 April her Honour wrote to the Bar Association about the matter. That letter is not ion evidence. The Bar Council itself initiated a formal complaint, and one of its Professional Conduct Committees wrote to Mr Driver calling for a response to that complaint. He replied, acknowledging the facts that I have summarised, and apologised unreservedly to all concerned, acknowledging that his behaviour towards the court monitor had been unforgivable. He said that he was appalled, ashamed and utterly bewildered by the behaviour described, assured the Council that this was completely out of character, and generally expressed his contrition. Later, he consented to being reprimanded, and to there being conditions attached to his practising certificate, calculated to ensure that under continuing supervision he undergo appropriate treatment and counselling for his alcohol abuse problem. 16 However, the evidence does not establish that all of these facts were known to her Honour, or to Mr Torrington, counsel for the opponent. As it happened, Mr Torrington was a member of the Bar Council, so that it can probably be safely inferred that he knew at least in general terms what had happened before the Council. However, I do not think it would be proper to infer that, on short notice, he had a complete and accurate recollection of all of the facts, and presumably her Honour's knowledge was likely to be limited to what had happened in the courthouse. Her Honour's recollection was astray to the extent that she thought that the events had happened more than two years before, when in fact they had happened only 22 months before, but it has not been suggested that this was in any way significant. 17 If the matter had to be judged by reference to some hypothetical bystander, who knew only what was said in Court on 10 February 2004, that bystander would have been nonplussed: what was said was so cryptic as to leave observers wholly ignorant of the reason why anyone might have thought her Honour had an obligation to disqualify herself. Presumably it was for this reason that the present case is based, not on the view of some hypothetical observer or bystander, but on the view of the claimant himself. However, this case suffers from the difficulty that there is no evidence as to what the claimant knew or believed. The affidavit of his solicitor spoke indirectly about this, and whilst admitting this passage in the affidavit on a limited basis, the Court made it plain that this part of the affidavit did not establish the plaintiff's state of mind or belief. The claimant was said to be present in court, but no attempt was made to lead evidence from him. 18 Whether the case is judged by reference to the objective facts, now established, or merely by reference to what was established at trial, I do not think that a fair-minded lay observer, or the claimant, might reasonably have apprehended that her Honour might not have brought an impartial mind to the resolution of the case before her: Ebner v The Official Trustee in Bankruptcy (2000) 205 CLR 337 at 6. 19 What her Honour did in April 2002 was to write to the Bar Association. This cannot be regarded as a ground for disqualification: many people would reasonably think that she should not have done less, in the circumstances. Additionally, whatever might be thought as to her response to the events of 17 April 2002, this matter went to Mr Driver, personally, and not to the claimant, and they constituted no more than a measured response to Mr Driver's conduct. It is one thing to think that a judge has disapproved, or even strongly disapproved of the conduct of a counsel in one case, but it is another thing altogether to think that the judge might therefore not bring an impartial mind to the conduct of another case in which the same counsel appears later on. The apprehension of the bystander or party to be considered is a reasonable apprehension.

The Reasons for the Decision 20 Her Honour's stated reasons for not disqualifying herself, as set out above, are certainly very brief, but then the application made that she disqualify herself was so brief, and so cryptic, as to invite a brief response. Presumably Mr Driver was embarrassed, or worse, but the limited terms of the application that he made constituted an invitation that her Honour might well have been content to accept, to say little in response; and given the circumstances, I consider that what was said was sufficient. If one contemplates what her Honour might have been expected to say otherwise, there are difficulties: for example, if she had been the first to explicitly raise the circumstance that it was Mr Driver's personal conduct that had been the origin of the application, that might have led to some further application that her Honour disqualify herself. At least, some people might think so, and others might think that this thinking was reasonable. 21 Remembering all of the benefits that hindsight brings, perhaps it would have been better if there had been an application for a short adjournment, so as to have been able to put the matter more adequately, before the application for disqualification was made.

Damages for Non-Economic Loss 22 Her Honour found that, when the plaintiff was attacked by the defendant's dog, he injured his back when trying to escape from the dog. That back injury manifested itself in a disc protrusion at the L4/5 level, with compression of the nerve root, and the need for surgery to excise the disc. The plaintiff made an excellent recovery from that surgery, to the extent that he said that he was symptom free at trial, and had been symptom free since shortly after the surgery. 23 In summary the position concerning his non-economic loss (as that expression is used in the Civil Liability Act 2002) was that he suffered a "nasty" dog bite, he lost some four months from work, he endured the consequences of his disc injury for some eight months before going on to surgery, and he had some not very significant residual scarring. Dr Searle, retained by the plaintiff's solicitors, considered that there was a 30 percent possibility that there would be some disc degeneration later in life, and that if this occurred there would be a need for further treatment, for example anti-inflammatory medication. There was no evidence of the likely cost of this, and no real indication when this trouble might develop. Dr Searle considered that there was a 15 percent permanent impairment of the plaintiff's back. Dr Scarf, retained by the defendant's solicitors, opined that accelerated degenerative change "will" occur, but that the percentage impairment of the plaintiff's back was only 10 percent of a most extreme case. Both doctors said that the plaintiff should avoid heavy work that might aggravate his spinal condition. 24 Section 16(1) of the Civil Liability Act provides: "No damages may be awarded for non-economic loss unless the severity of the non-economic loss is at least 15% of a most extreme case." 25 The expression "non-economic loss" is defined in s3 as meaning any one or more of the following:

(d) disfigurement. 26 Her Honour assessed the plaintiff's non-economic loss as being 13.5 percent of a most extreme case. On appeal, the plaintiff contends that the finding should have been in the range of 21 percent to 27 percent. I do not think that it can be said that her Honour's assessment reveals any appealable error. One has only to think of the horror of the evidence given as to the disadvantages to be endured, for example by quadriplegics, to see that the finding was within the range of possible assessments.

Damages for Future Economic Loss 27 The plaintiff makes two separate complaints here: one concerning the impairment of his future earning capacity, and the other concerning future out-of-pocket expenses. Her Honour awarded no damages in respect of either matter. 28 Section 13(1) of the Civil Liability Act provides:

"Future economic loss - claimant's prospects and adjustments (1) A court cannot make an award of damages for future economic loss unless the claimant first satisfies the court that the assumptions about future earning capacity or other events on which the award is to be based accord with the claimant's most likely future circumstances but for the injury."

29 Her Honour found at one point that there was only a slight possibility that accelerated degenerative changes would take place at the operation site in the future, and at another point that there was only the slightest possibility of this. With respect, this was in error, for Dr Searle thought that there was a 30 percent chance that this would occur, and Dr Scarf said that these changes "will" occur. Neither doctor was called to give oral evidence, and this Court is in as good a position as her Honour was to make findings as to this. There should be a finding that there was at least a 30 percent possibility. 30 The great difficulty in the case is that the evidence is quite imprecise as to the likely effects of these changes. The plaintiff's employment history was not in evidence, and whilst there were limitations to his work capacity, those limitations had not resulted in any loss of income, after his period of recuperation after surgery, and up until the time of trial. As already mentioned, he disclaimed suffering from any symptoms during this period. In cross-examination he explicitly denied a series of suggested symptoms, and said that he was then working. Asked whether he was enjoying his present work, he said "no, not really", but was continuing with the work as it was "money in the bag". 31 Doctors Searle and Scarf spoke of likely future degeneration, but Dr Searle then spoke only of the likely need for medication and Dr Scarf of the need for maintaining core stability in the back with a muscle exercise programme. Neither expressed any view as to when this might occur, or what costs might then be incurred. 32 It is common ground that the plaintiff needed to avoid certain kinds of work. Dr Searle described them as repetitive bending or heavy lifting or twisting movements as far as possible, whilst Dr Scarf described as them as repetitive bending and heavy lifting, at least for two years (from January 2004) and perhaps thereafter, depending upon events, but generally the plaintiff should avoid work of a heavy nature. That is, there is some real limitation upon the kinds of work that he will be fit to perform in the future. 33 In Penrith City Council v Parks [2004] NSWCA 201 at 58 McClellan AJA said that, whilst s13 of the Civil Liability Act needed to be complied with, a modest award of compensation for the chance of future disadvantage is not precluded by the section; and Giles JA and Cripps AJA generally agreed. 34 The plaintiff was 32 years old at trial. All that was established about his work was that he was employed doing maintenance work on telecommunications tunnels. This is not much of a foundation for the finding required by s13 (1) about future earning incapacity, but the medical evidence, substantially uncontested as it was, does seem to me to justify some modest award of compensation by way of "buffer" for future difficulties. 35 I propose to allow the appeal, to the extent that there be added to the existing award of damages the sum of $15,000, to cover both impairment of future earning capacity, and future out-of-pocket expenses.

Interest on Past Economic Loss 36 At trial, all concerned were uncertain about the legislative position here. Her Honour made no award in respect of interest, but granted leave to the plaintiff to apply, if so advised, within seven days. He did not take advantage of this leave, instead seeking leave to appeal. It is now common ground that interest was payable, and that the amount of that interest was $472.55. The only ground for resistance is that the plaintiff could and should have applied to the District Court to have the existing judgment varied. 37 If the appeal had been successful, only as to this item, I would have proposed allowing the appeal, so as to cure this injustice, but would have ordered the appellant to pay the costs of the appeal. As it is, there seems to be no harm to either party in allowing the appeal, and varying the assessment of damages by adding the agreed amount for interest.

Orders 38 There was filed an application for leave to cross appeal, but this was not pressed. I propose the following orders: 1. Grant leave to appeal, and refuse leave to cross appeal.

2. Allow appeal in part, by substituting for the existing judgment of $5,522.90 a judgment for $20,995.45. Otherwise, appeal dismissed.

3. Order the opponent/respondent/defendant to pay the costs of the claimant/appellant/plaintiff of the applications for leave to appeal and to cross appeal, and of the appeal.

4. If otherwise qualified, the respondent is to have a certificate under the Suitors' Fund Act 1951. **********

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