Daniel Rory de Groot (an infant by his tutor Arlena Van Oosten) v The Nominal Defendant

LOWER COURT District Court JURISDICTION : LOWER COURT DC 2012/01 FILE NUMBER(S) : LOWER COURT Gibb DCJ JUDICIAL OFFICER :

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40998 of 2002

26 MARCH 2004 DANIEL RORY DE GROOT (AN INFANT BY HIS TUTOR ARLENA VAN OOSTEN) v THE NOMINAL DEFENDANT CATCHWORDS APPEAL - competency - appealable amount - plaintiff claiming increased damages of appealable amount - appeal competent

APPEAL - practice - prolix notice of appeal - struck out

APPEAL - practice - notice of appeal alleging actual bias of trial judge - grounds expressed in scandalous terms - filed without express instructions of appellant - struck out

APPEAL - practice - security for costs of appeal - personal injury case - appellant impecunious - no order for security for costs of appeal

COURTS and JUDGES - actual bias - not to be alleged without express instructions FACTS

The appellant brought proceedings by his tutor in the District Court to recover damages for personal injuries sustained in a motor vehicle accident alleging that he had suffered brain damage. The trial judge rejected this claim and awarded damages of $18,344.45. The plaintiff appealed as a right to the Court of Appeal. The defendant respondent applied to have the appeal struck out as incompetent, to have the notice of appeal struck out as scandalous and prolix, and for an order for security for costs of the appeal. HELD: (1) The appellant's claim in the appeal was for more than $100,000 and the appeal lay as of right under the District Court Act s 127(2)(c) unless it was frivolous or vexatious. The appeal was therefore competent: Cole v The Commonwealth (1961) 106 CLR 653 applied. (2) Substantial parts of the notice of appeal, which was 19 pages in length, did not comply with Pt 51 r 11(1)(c) which required grounds of appeal to be brief but specific and they should be struck out under that rule. (3) The notice of appeal, which alleged actual bias on the part of the trial judge in scandalous terms had been filed in that form without the specific instructions of the tutor and as such it should be struck out under Pt 65 r 5 with leave to file a further notice of appeal. (4) An order for security for costs should not be made: Porter v Gordian Runoff Ltd & Anor [2004] NSWCA 69 followed. ORDERS

1. Claims 1, 2, 3 and 4 in the notice of motion of 16 July 2003 dismissed.

2. Notice of appeal with appointment filed on 27 March 2003 struck out.

3. Leave to file and serve a further notice of appeal within 28 days.

6. Notice of motion stood over to 16 April 2004 at 9.30 am to enable directions to be given for the further hearing of these proceedings on the issues raised under SCR Pt 52A rr 43 and 43A.

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40998 of 2002

26 MARCH 2004 DANIEL RORY DE GROOT (AN INFANT BY HIS TUTOR ARLENA VAN OOSTEN) v THE NOMINAL DEFENDANT Judgment 1 HANDLEY JA: On 30 September 2002 Gibb DCJ gave judgment in this action, which arose out of a freakish motor vehicle accident, finding a verdict for the plaintiff for $18,344.45. She rejected the bulk of the plaintiff's case based on the claim that he had suffered significant brain damage in the accident. 2 The trial occupied many weeks between 3 December 2001 and 11 July 2002 and her Honour's judgment on liability and damages was 250 pages in length. She gave a second judgment on costs on 29 November 2002 which was 35 pages in length. 3 The tutor appealed by a notice of appeal with appointment on 27 March 2003. It contained 53 grounds and with an appendix filled 19 pages in the red appeal book. 4 The respondent filed a notice of motion on 16 July 2003 seeking to have the appeal dismissed as incompetent, in the alternative an order that the appellant provide security for costs of the appeal and in the alternative that the notice of appeal or parts thereof be struck out. The motion was heard on 27 October. I gave an extempore judgment holding that the appeal was competent and reserved my judgment on the other matters.

Form of the notice of appeal 5 Many of the grounds of appeal allege actual bias on the part of the judge. These are serious and unnecessary charges against the judge since ostensible bias, if established, would serve the appellant's purposes equally well. However an appellant's legal advisors are entitled, with the specific instructions of their client, to make such charges if in their considered opinion there is a proper basis for doing so. Such allegations should not be made otherwise. 6 Mr A Shand QC and Mr P McGuiness appeared for the opponent in the motion, the appellant in the appeal. When Mr Shand arose to address on the strike out application I asked him whether he had instructions to argue a case of actual bias on the part of the trial judge. He said that he would like to take instructions on that. I then said that the notice of appeal should not have been filed in this form without express instructions to allege actual bias since this was akin to a charge of fraud so far as the ethical rules of the Bar were concerned (T 20-1). I had in mind Clyne v NSW Bar Association (1960) 104 CLR 186. Mr Shand again said that he would take instructions about that and it may be that the appellant's advisors would restrict themselves to the lesser form. I then said that "if this notice of appeal was filed in this form without express instructions from the next friend all the allegations of bias against the judge I think should be struck out with leave to file again if you get those express instructions or if you don't then you can raise grounds of ostensible bias" (T 21). 7 The grounds of appeal which allege actual bias are largely based on findings in the final judgment. None of the grounds are based in terms on matters which pre-date the trial. Only grounds 3 and 18 in part, and ground 2 perhaps, raise matters which occurred during the trial. Otherwise the grounds of appeal rely on passages in her Honour's reasons for judgment where she rejected parts of the plaintiff's case or the evidence led in support of it. There is no ground of appeal which alleges that her Honour was asked to disqualify herself and wrongly refused to do so. 8 Adverse findings in a final judgment expressed in temperate language cannot ordinarily establish pre-judgment. The accepted test for bias, actual or ostensible, is that the judicial officer will or might not "bring an impartial and unprejudiced mind to the resolution of the question" involved in the case: Vakauta v Kelly (1989) 167 CLR 568, 575. The disqualifying fact where disqualification by interest or prior enmity are not alleged is the existence of pre-judgment: Re Shaw Ex parte Shaw (1981) 55 ALJR 12; Re J R L Ex parte C J L (1986) 161 CLR 342, 352. 9 On the other hand a judge who constitutes the tribunal of fact is expected and indeed required to make a judgment on the case and to express it in his or her reasons for judgment. 10 Although evidence of bias in a judgment can reinforce, or revive evidence of bias or pre-judgment which existed before the hearing commenced or was made manifest during its course (Vakauta v Kelly (1989) 167 CLR 568), I am not aware of any case where findings, even strong findings, in a final judgment expressed in temperate language have been held to constitute evidence of actual or ostensible bias. 11 A number of the grounds of appeal alleging actual bias contain allegations of dishonest fact finding by the judge made for the purpose of finding against the plaintiff. If the finding in question was erroneous it can be set aside. If there was any evidence outside the reasons for judgment to support a case of actual or ostensible bias a finding that was seriously flawed could strengthen that case. However some of these grounds of appeal do not attack the findings as such but only the judge's motivation in making them. Such grounds are irrelevant and scandalous and should be struck out under SCR Pt 65 r 5. 12 The grounds of appeal which contain, for one reason or another scandalous and irrelevant material include: 9 ("enable the judge to avoid the exercise of her judicial duty"), 10 ("indulging in a frolic of her own"), 15 ("a thoroughly irresponsible finding", "were wholly lacking in merit and varied from the paltry to the artificial"), 16 ("insubstantial, unworthy of respect"), 17 ("no more than lip service"), 18 ("the judge's obeisance to Dr Werry was unlimited"), 19, 21 ("lip service"), 27 ("exhibited bias in [semble] [rejecting] the … mother's evidence because to do so would detract from the plaintiff's case"), 30 ("misinterpreted … in order to support her opinion"), 33 ("the judge 'found' a reason"), 34 ("has been at pains to look … for the express purpose of rejection of the whole report"), 37 ("ridiculous … insignificant … overwhelming"), 41 ("her determination to reject the plaintiff's case … regardless of the evidence", "device … so as to be able wrongfully and falsely to denigrate … pathological hatred"). 13 There are other objections to particular grounds. Ground 2 alleges that the judge manifested an excessively disparaging etc attitude to the plaintiff's mother. It is not clear whether this was said to be manifested during the trial or only in the reasons for judgment. However unfortunate such conduct by a judicial officer may be it is irrelevant unless it is relied on as evidence of actual or ostensible bias but that is not alleged in this ground. Ground 3 alleges bias in the conduct of the trial and in the judgment and particulars are given in Schedule A. However those particulars are limited to the judgment. Grounds 5 and 6 allege error in making or deferring rulings on evidence during the trial. These grounds while brief are not specific and do not comply with SCR Pt 51 r 11(1)(c). 14 Ground 35 alleges error by the judge in rejecting the description "charlatan" in relation to one witness and the description "prostitute" in relation to another. This ground should be struck out as scandalous. Ground 42 which takes up more than two pages is specific but manifestly not brief and the same must be said about ground 43 which takes up over four pages. Both should be struck out under r 11(1)(c). Much of the detail in these grounds, if pressed, should appear in due course in the appellant's written submissions but it is not part of the function of grounds of appeal to provide detailed particulars of this kind. 15 When I reserved my judgment I directed further written submissions on the application for security for costs. I received the submissions for the appellant under cover of a letter from her solicitors dated 10 November 2003. I had raised during argument the question whether the solicitors for the appellant had express instructions to allege actual bias and Mr Shand said he would take instructions. On 21 November I received a fax from junior counsel for the appellant seeking a further two weeks "to obtain the necessary instructions". I heard nothing further. I infer from this silence and the remarks of Mr Shand during the hearing that the allegations of actual bias were made by the appellant's advisers without the express instructions of the appellant. 16 For that and the other reasons referred to I will order that the notice of appeal be struck out and that the appellant have leave to file a further notice of appeal within 28 days. 17 The affidavit of the appellant's solicitor sworn 24 September, directed essentially to the security for costs question, stated that the junior counsel had charged "in excess of $57,000" for preparing the notice of appeal. It will be apparent that his efforts were misdirected and the costs incurred have been substantially thrown away. 18 There could be no expectation that a charge of this size would ever be allowed on an assessment of costs as between party and party. The expectation must have been that the bulk of the charge would be recovered from the infant's damages, if the case ultimately succeeded, on an assessment of costs as between solicitor and client, formal or otherwise. The affidavit states that the work included perusal of 3000 pages of transcript, a judgment of 250 pages and numerous exhibits. Junior counsel had appeared at the trial. In these circumstances the court is bound to consider making orders under SCR Pt 52A rr 43 and 43A to disallow the costs incurred in preparing, filing and attempting to defend this notice of appeal. An unfortunate aspect is that much of the work will have to be done again when preparing the appellant's written submissions. Under rr 43 and 43A the Court is required to give the solicitor and barrister concerned a reasonable opportunity to be heard. 19 Accordingly I will list the matter for mention at an appropriate date when the Court can, if necessary, give directions for the further hearing in relation to the issues under rr 43 and 43A.

Security for costs 20 The remaining claim in the notice of motion is that the tutor be ordered to provide security for the respondent's costs of the appeal. The respondent incurred substantial costs in defending the action which are said in the affidavit of Eva Elbourne of 16 July 2003 to be in excess of $1 million (para 29). She also said (para 30) that the respondent will incur further costs in excess of $250,000 in resisting this appeal. There is no need for me to form any view on the reliability of the latter estimate because it is obvious that the respondent's costs of the appeal will be substantial. 21 There is unchallenged evidence that the infant and the tutor are substantially without means and could neither pay the costs ordered against them for the trial, or the costs of the appeal should it fail. They are in no position to provide security for costs. Mr Shand relies on these facts as reasons why an order for security for costs should not be made. 22 Mr Poulos QC for the respondent submitted that the appeal was without merit and the appellant would fail because the Abalos principle would protect the trial judge's findings of fact from appellate interference. He said that the appeal was being maintained by the appellant's lawyers in an attempt to recover their unpaid fees from the trial and if security were ordered they would provide it if they thought that the appeal had real prospects of success. If they were not prepared to provide the security themselves the clear inference would be that they did not believe that the appeal had such prospects. 23 Mr Shand argued that a potentially meritorious appeal by a plaintiff in a personal injuries action, especially a plaintiff who was an infant, should not be stifled by an order for security and that in practice security was not ordered in such cases. 24 The appellant faces obvious difficulties in the appeal, principally because the judge's findings on the credibility of witnesses will be shielded from appellate interference by the Abalos principle with its strictly limited exceptions. However appellants do succeed, from time to time, in bringing their cases within the exceptions and having the trial judge's findings of fact reversed. Fox v Percy (2003) 77 ALJR 989 is a recent example. 25 The Court is not in any position, at this stage, to form a view on the appellant's prospects of success. There is really no reliable short cut in a case such as this, and with the wisdom of experience the Court actively discourages satellite litigation as expensive, time wasting and unproductive. There is no point in hearing or half hearing the appeal in order to determine whether security for costs of the appeal should be ordered. 26 In these circumstances I invited counsel to address on the possible relevance of the amendments to the Legal Profession Act dealing with costs in civil actions for damages brought without reasonable prospects of success. These amendments, introduced by the Civil Liability Act 2002, commenced on 20 March of that year. Neither counsel could assist at that stage and I reserved my judgment and directed written submissions. 27 The provisions in question are contained in Div 5C of Pt 11 of the Legal Profession Act. In terms they do not apply to the institution of appeals by disappointed plaintiffs and Mr Poulos did not submit that they did. The only reference to appeals is in s 198N(2) which does not apply to appeals instituted without reasonable prospects of success. 28 Section 198L(2) provides that an originating process or defence on a claim for damages cannot be filed unless the solicitor or barrister certifies that there are reasonable grounds for believing that the claim or defence, as appropriate, has reasonable prospects of success. Sub-section (3) enables rules of Court to be made providing for the form of certification, but such rules have not been made with respect to notices of appeal. The new legislation does not apply of its own force and there is no basis for its application by analogy. 29 SCR Pt 51 r 16(1) provides that the Court can order security for the costs of an appeal in special circumstances. The relevant case law was carefully reviewed by Hodgson JA in Porter v Gordian Runoff Ltd & Anor [2004] NSWCA 69 (16 March 2004, unreported). His Honour ordered security for costs of an appeal in an insurance case which had been tried in the Commercial List of the Supreme Court. He said [para 24] "in practice orders are not normally made simply because an appellant is impecunious, because to do so would frustrate many genuine appeals". See also para 44. The practice referred to has certainly applied, in my experience, in personal injury cases and it is practically unheard of for a plaintiff appellant to be ordered to provide security in such a case. I can only recall one instance where security was ordered and that was where a tutor with assets who had appealed an unfavourable decision was replaced almost immediately by a tutor without assets. 30 There is nothing in the present case that could support an order for security other than the common situation of an impecunious plaintiff (and tutor), what appears to be a difficult appeal on the facts, and a long trial that has already cost the defendant a lot of money. However if I were to order security for costs in this case it seems to me that security for costs would have to be ordered in most appeals by plaintiffs in personal injury cases. This would be contrary to the long established practice of the Court. The respondent's application for security for costs will therefore be refused. 31 The respondent claimant has succeeded on its application to have the notice of appeal struck out but failed to have the appeal struck out as incompetent or obtain an order for security for costs. In the circumstances there should be no order as to the costs of the motion. 32 The motion should be stood over to a suitable date to enable junior counsel and the solicitor for the appellant opponent to show cause why orders should not be made under SCR Pt 52A rr 43 and 43A, disallowing their costs of preparing, filing and attempting to defend the notice of appeal. 33 The following orders are made:

1. Claims 1, 2, 3 and 4 in the notice of motion of 16 July 2003 dismissed.

2. Notice of appeal with appointment filed on 27 March 2003 struck out.

3. Leave to file and serve a further notice of appeal within 28 days.

6. Notice of motion stood over to 16 April 2004 at 9.30 am to enable directions to be given for the further hearing of these proceedings on the issues raised under SCR Pt 52A rr 43 and 43A. **********

Last Modified: 03/30/2004 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.