GOVERNMENT INSURANCE OFFICE OF NSW v GOLBY

(1) Judgment of Lloyd-Jones DCJ set aside except as to costs and the case be remitted to the District Court for a new trial limited to damages.

(2) Respondent to pay the appellant's costs of the appeal and to have a certificate under the Suitor's Fund Act in respect of those costs.

Clarke, Handley and Sheller JJA The respondent was injured in a motor vehicle accident which occurred on 10 May 1985 and brought proceedings against the appellant to recover damages in respect of his injuries, disabilities and other losses. Liability was admitted by the appellant and the trial proceeded as an assessment of damages. It was a lengthy trial extending over six days of hearing at the conclusion of which the trial judge, Lloyd-Jones DCJ, reserved his judgment. On 7 August 1990 he published his reasons for judgment and ordered that there be judgment for the respondent for $455,000 plus agreed out of pocket expenses.

The appellant then filed a notice of appeal in which there were 18 separate grounds of appeal some of which were divided into sub-grounds. Grounds 1-3 asserted that the trial miscarried because of the excessive and undue intervention by his Honour in the examination and cross-examination of a number of the witnesses who were called. Grounds 4 and 5 asserted that his Honour's conduct during the course of the trial gave rise to a reasonable apprehension of bias on the part of the parties and the public and that his Honour erred in failing to disqualify himself and order that the trial proceed before another judge. The remainder of the grounds raised various assertions of error in the assessment of the damages,

that his Honour wrongfully rejected admissible evidence and that his Honour failed properly to evaluate the evidence and adequately to consider the submissions of the appellant.

The written submissions of the appellant were directed, however, almost entirely to those grounds which asserted that a miscarriage of justice had occurred and that his Honour erred in failing to disqualify himself. Although specific reference was made in those submissions to the wrongful rejection of evidence they did not deal specifically with the 11 grounds which asserted error in the assessment of damages but adopted the written submissions on the issue of damages which were presented to the learned trial judge. Senior counsel for the appellant did not make any oral submissions in support of those latter grounds contending that the case was one in which he had clearly made out his first two substantive grounds of complaint and that it was otiose for the court to proceed further and consider the detail of the assessment of damages. Those matters relating to the assessment of damages to which he directed the attention of the court were, in his submission, relevant to the first two substantive grounds. In these circumstances it is convenient for the court initially to direct attention to those grounds upon which oral submissions were made.

The respondent suffered a number of injuries in the accident and complained at the trial of two particular disabilities. The first was permanent brain damage which he contended had affected his memory and intellectual capacity and brought about a personality change. The second was a serious injury to the left knee which was permanent and which interfered with his capacity to do heavy physical work. The appellant disputed both these claims. It denied that the respondent had suffered brain damage but in the alternative asserted, with more force, that if the respondent had sustained brain damage it had not caused any personality change and had had very limited effect on his memory and intellectual capacity.

The position with regard to the left knee injury was slightly more complicated. The appellant acknowledged that at the time of trial the respondent was suffering from a disability in his left knee and leg but denied that that disability resulted from the accident on 10 May 1985. According to the appellant's case at the trial the knee and leg disability present at the time of trial resulted from another accident in which the respondent had been involved while riding a push bike on 5 April 1986. On that occasion he suffered a fracture of the upper portion of the left tibia in the medial aspect and his leg was placed in a long leg plaster in the Liverpool Hospital Fracture Clinic. It was, according to the appellant, only after this accident that the respondent started complaining about his left knee and it is fair to say that there was a serious issue, which involved the respondent's credit, as to whether the knee disability resulted from the first or the second of the two accidents.

The respondent's claims of intellectual impairment and personality change were, as we have observed, hotly disputed. In this respect counsel for the appellant at the trial endeavoured to establish that the respondent's behaviour and intellectual performance after the accident were not markedly changed. In order to do this he had sought, not surprisingly, to subpoena the respondent's school records and reports from the Department of Education and it would appear from the transcript of the proceedings that those records were produced to the court in answer to the subpoena. They were, however, incomplete. Notwithstanding there were indications in those reports that the respondent had a low IQ, lacked concentration and had trouble keeping his mind on his work.

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The appellant's legal representatives had also sought to procure a record of the respondent's criminal convictions. There were a number of these despite the fact that the respondent was 18 at the date of the accident and 23 at the date of judgment. They were set out in a psychologist's report and there was never any dispute about them. As Senior Counsel for the appellant informed the court during the appeal the respondent was convicted, or at least found guilty, of attempting to steal in 1980; of one charge of breaking and entering and one charge of illegal use of a motor vehicle in 1982 and assault occasioning actual bodily harm in 1984. Following the accident he was convicted in 1986 of being an unlicensed driver; in 1987 of receiving/possessing cannabis; in 1988 of malicious damage and in 1989 of assault occasioning actual bodily harm.

It would be apparent from this short statement of the major issues that the case was not without its complexities and required very careful analysis particularly insofar as the respondent's complaints of a personality change and impaired intellectual capacity were concerned.

In its written submissions to this Court the appellant put its case on miscarriage resulting from excessive judicial intervention in these terms:

".. his Honour unduly participated in and interfered with matters which were within the role of counsel; his Honour asked almost one-sixth of the total number of questions asked during the lengthy trial; his Honour frequently intervened, including at least one occasion after opposing counsel specifically refrained from objection, in the subject matter of examination and cross-examination of witnesses; his Honour interposed his own questions in the course of the examination, and particularly the defendant's cross-examination, of witnesses in such a manner as to destroy the flow and effect of counsel's questions. In particular it is respectfully submitted that his Honour intervened frequently in the examination of three lay witnesses, namely the plaintiff and his parents. In doing so his Honour deprived himself of the opportunity of fairly and objectively assessing the demeanour of those witnesses."

These are serious claims which necessitate a careful examination of the course of the trial with particular regard to the interventions of the trial judge.

The trial commenced at Parramatta on 6 November 1988 when there was discussion between counsel as to various aspects of the case and a number of documents were tendered by the respondent's counsel. There had, however, been late service of one, at least, of the documents and no oral evidence was taken on that day and the case was duly adjourned for further hearing.

The hearing resumed on 19 February 1990 at Sydney and on this occasion the appellant was represented by a different counsel. The first witness called was the respondent whose examination in chief proceeded uneventfully. His Honour did ask a number of questions but these were perfectly proper questions and there was nothing unexceptional about the course of the examination in chief.

Initially, the cross-examination also proceeded in a regular fashion but it was when the cross-examiner sought to ask the respondent questions about his criminal convictions before the 1985 accident that the trouble which was to plague the trial first appeared.

The transcript records that counsel for the respondent indicated there would be no dispute about the various convictions and Mr Kennedy, who appeared for the appellant, proceeded to direct his questioning to the respondent's claim that prior to the accident he was an even tempered, pleasant, outgoing person who got on with everyone and was not antisocial. Mr Kennedy then asked:

"Q. You know that you had been in difficulty with the authorities before the accident hadn't you, other than for assault?"

The transcript then records the following interchange:

"MR KENNEDY: This is relevant on the basis of the whole question of whether or not this person would have held down a job or would have been in employment over periods.

HIS HONOUR: I will have it noted, if this is no more than rubbishing of the plaintiff because he has had difficulties with the law it won't assist you with the case. You will need to link it up in some way with economic loss or credit or something. I don't know what being in trouble with the law is, as put to me the way you put it.

MR KENNEDY: It was leading into an area of cross examination. HIS HONOUR: Go ahead, bearing in mind what I have said unless it can be tied up in some way to assist the defendant.

MR KENNEDY: Q. You had trouble in relation to stealing didn't you?

HIS HONOUR: Are you able to link that up in any way with his losing his job?

MR KENNEDY: It was at a time before when he was in employment.

HIS HONOUR: Are you able to link it in any way with his losing his job?

HIS HONOUR: I disallow it. I am not allowing him to be rubbished unless the rubbishing can have some bearing on the ambit of damages.

MR KENNEDY: Q. Were you arrested on 23 January, 1980?

HIS HONOUR: That has no bearing of any kind on anything. You can limit the material you put to where there are convictions provided you can show that they have any bearing. Confine yourself to areas that may have some bearing. I might say that I have had it noted for the record that you are not being prohibited from putting forward any matters which may have some bearing on the quantum of damages. I am not going to reduce a verdict merely because a man may have convictions, that would be contrary to the principles."

The cross-examination then continued relatively quietly for a short period although his Honour did ask a number of questions. Mr Kennedy then sought to question the respondent on the circumstances of his dismissal from employment shortly prior to the 1985 accident. There was evidence that the respondent had been dismissed for two reasons. He had been rude to a customer and he had taken some oil belonging to his employer and placed it in his own car. When this subject matter was raised his Honour gave the respondent a warning to the effect that he was entitled to refuse to answer questions on that subject matter on the grounds that they might incriminate him. Once the warning had been given the respondent declined to answer the relevant question. The transcript proceeds:

"HIS HONOUR: I gather it was not the subject of any charge?

HIS HONOUR: Judges do rely on counsel in matters of this kind. There had been a series of questions in respect of charges of stealing on which I have commented and then I have said if there are any charges in effect, where the person has been guilty of an offence which could have some bearing, I would allow that. Then these questions were put. I now find that there - they were never the subject of any charge at all so I will be more aware from now on to have your

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assurance that any allegations that you put have been dealt with. In all the circumstances I have assumed that what you were putting has been the subject of some charge or other and I find out that it is not so. I don't think you have the faintest comprehension of what I'm talking about. Get on with the next question and if you put a question of any illegality to him, I will not allow him to answer, unless they have been subjected to conviction or unless they have some bearing on the quantum of damages. Ask the next question.

MR KENNEDY: Your Honour gives me no chance to defend myself.

MR KENNEDY: I disagree with the assertion - that the assertion is noted on the transcript."

The cross-examination of the respondent then continued and concluded without serious discord although the appellant has complained of a number of interruptions which his Honour made during the latter part of that cross-examination. Once the respondent had stepped down from the witness box there was discussion as to the admissibility of the record of convictions.

During this discussion his Honour accused Mr Kennedy of "waffling all over the place" and seeking to tender documents merely to throw in prejudicial material against the respondent. During the course of this interchange there is nothing apparent on the transcript, except, perhaps, for one interruption which could be said to indicate any discourtesy on the part of counsel. He had submitted to the trial judge that there were five reasons why the evidence which he sought to tender was admissible and he adhered to the course of trying to develop those five reasons despite constant interruption from the judge. The transcript then records the following exchange: "HIS HONOUR: Keep your mouth closed or I will deal with you. The next matter is the 1982 matter when I think he would be aged fifteen, in the Children's Court, and again in the same year when he would be fifteen and presumably still at school. You already have evidence in relation to an assault in 1985, in the Local Court. We then come to the matter of unlicensed driver in 1986; it is unlicensed, not drive while disqualified. Then there is a matter in 1987 of receiving where there was a fine of $300; and $100, possess cannabis; and malicious damage of property brought a fine of $150 in 1988; and the assault occasioning charge which has not been dealt with.

I want you to show me how each of those is relevant. I might say that I personally have all the time in the world but I draw attention of counsel to their responsibility to get matters done as quickly as they can. I have already provided counsel in this case with every leniency as to time, and I have accepted they have been doing their best, but I certainly do not expect to see a situation emerge where we are going to have virtually a rehearing of each of those matters to find out the in-depth reality of each of them in any way which would help the defendant. I do not know if there is any point saying this to counsel: I would need to know the full circumstances of each of the offences to see whether or not I could place any reliance upon them in any event. It may be that we will still be here Friday afternoon. Let me say this to you now, Mr Kennedy, I went out of my way in chambers, and I will have this noted, to be courteous to you. There has been a degree of tension between you and me in several cases now. It is a matter which has given me concern because I get on well with counsel, you are one of the very few exceptions. I said certain things in chambers in the hope that we might perhaps proceed in this case with a degree of harmony. I hope that will

continue to be the case. Merely because I say something that you do not like does not give you the right to raise your voice and try to shout over the top of me when Iam trying to get a message through to you which is designed to get on with the case. I do not want to hear from you now. You will probably accuse me of not giving you an opportunity to defend yourself -

HIS HONOUR: What I have just said is the fact of the matter. I raise it now and have it noted in the hope that you will think about things over the lunch-hour and endeavour to show that level of courtesy to the Court to which the Court, not myself, is entitled.

KENNEDY: Would your Honour give me an opportunity -

HIS HONOUR: I will adjourn now. Having said that, I do not intend to waste this Court's time any further with submissions from you with regard to it -

HIS HONOUR: I am not charging you with contempt. If I were to do so you would have an opportunity to address the Court but I am not going to waste the Court's time with submissions from you on what I have just said -

KENNEDY: Your Honour is not giving me an opportunity to put my position...

(further remarks not recorded as Court had adjourned)."

Upon the resumption Mr Kennedy sought to respond to his Honour's comments before lunch and to develop the five submissions.

His Honour indicated that Mr Kennedy could respond in writing, which he could hand up on the next day, and said he was not prepared, at that stage, to allow further discussion on the admissibility of the record.

A doctor was then interposed and his evidence was completed before the subject of the criminal record was raised again, this time by counsel for the respondent. There followed a lengthy discussion during which his Honour made it quite plain that he regarded the police record as of little or no assistance to him and in which his Honour disparaged counsel's submissions in, we regret to say, a manner which had offensive overtones. Amongst other things he accused counsel of making "silly submissions" and of entering into the realm of "Alice in Wonderland".

This particular exchange did not involve the interruption of the examination or cross-examination of a particular witness but does have some significance insofar as it reveals that the judge had formed the view, without having heard him sufficiently, that counsel for the appellant was putting stupid submissions concerning evidence which he, the trial judge, thought could only be led to embarrass the respondent.

On the following day Mr Kennedy handed to his Honour his written response and asked his Honour to make the document part of the official court record. His Honour did not rule upon that application but, after criticising the document and raising a question about it, said: "I will keep it and see what I will do about it at a later time, perhaps in another place." Mr Kennedy sought to say something but was prevented by his Honour who went on to say: "As far as I am concerned that matter is closed. I am not going to spend my time barneying with you. It seems, regrettably, that whenever you appear in my Court a great deal of time is wasted on petty, silly little arguments and I am concerned to get on with the hearing. I am not prepared to hear you further on anything at all unless it relates directly to the case."

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There was then a further exchange involving his Honour and counsel for the respondent which concluded with his Honour saying that they all had too much work to do without having to waste time over "petty ill-conceived submissions". It is quite apparent that by now there was considerable tension in the court.

Following this exchange the respondent's step father, who had given his evidence-in-chief without incident on the previous afternoon, was recalled to the witness box and Mr Kennedy commenced to cross-examine him on the respondent's pre-accident behaviour and intelligence. Mr Kennedy's third question was:

"Q. He has told us in the Court and in his evidence that he was, he described it in the same way, a slow learner and he has told us that he had difficulty in learning things at school. Is that from your observations of him and your understanding ---."

An objection stopped him from completing the question and the following exchange took place:

"HIS HONOUR: If you are prepared to listen - I will have all of this noted, what I say in Court - stand up when I am addressing you, Mr Carmody. You are starting to cross-examine a lay witness in an area where he has not been shown to have expertise and I do not think in those circumstances that questions which ought properly to be put to an expert witness who may have had an opportunity fully to test the plaintiff may, and I stress 'may' be asked. I do not know, in fact, it seems obvious to me that this gentleman by his calling is not a trained person in the areas upon which you seek to embark. So you might as well save the Court's time by not pressing that area because it is not going to assist me.

KENNEDY: Would your Honour hear me in relation to that? HIS HONOUR: No. I will not hear you. I have ruled on it.

I am not going to have this case extended any more than is necessary when your commonsense should show you what is relevant and what is not. Go ahead with your next question."

A few more questions were asked and then the witness gave an affirmative answer to a suggestion by Mr Kennedy that he had read the school reports and they "seemed poor" to him and his Honour immediately interrupted and another exchange took place as follows:

"HIS HONOUR: I am not going to allow you to bring evidence in through the back door. If you have the reports there you may tender them. I am not going to have this man's interpretation of what he was told by a teacher, or what he understood a report to read.

KENNEDY: I will be, in due course, seeking to tender the entirety of his school records.

HIS HONOUR: Come to it straight away, come to matters which can be proved without further waste of time.

KENNEDY: Is it convenient for me to seek to tender those reports at this time?

HIS HONOUR: Whatever you like. I will rule on them. I am merely asking you not to waste time on putting questions where you should realise, in your seniority at the Bar, that the answers are coming from a non-expert witness.

KENNEDY: The records, it seems to me in some respects, are incomplete, the documents that have been produced to the Court by the Education Department. They have not, as I understand it, been assembled in a logical way that would allow your Honour to readily put them into chronological sequence. There appear to be some gaps in the middle. Your Honour, I will seek to tender those which I am in possession of.

HIS HONOUR: What you are saying is you do not have all the reports?

KENNEDY: I do not believe all of the reports are here.

HIS HONOUR: I will reject the tender. If you had all the reports I would consider it but for you to have selected areas of reports -

HIS HONOUR: If you have incomplete records of his reports and the witnesses are not available to be examined in relation to them, I do not see how you can slip them in that way.

KENNEDY: Firstly, what I said was the documents that had been produced from the Education did not appear to be totally complete. They are the only documents that we have and, your Honour, insofar as whilst they are not here in their entirety, are relevant and I would seek to tender them or have them marked for identification."

The exchange continued and his Honour indicated that he proposed to reject the reports as they could create a false impression. Mr Kennedy then sought to continue the cross-examination but was placed by his Honour's continuous interruptions under considerable difficulty. When he returned to the subject of the respondent's anti-social behaviour prior to the accident his Honour, without objection from counsel for the respondent, raised his own objection. At the end of a lengthy and somewhat unpleasant exchange his Honour rejected the question. Mr Kennedy then asked another question which his Honour again rejected without any objection from counsel for the respondent.

Mr Kennedy then managed to ask three questions before his Honour once again interrupted. The cross-examiner then directed the attention of the witness to an occasion in July 1982 when the respondent was dealt with at Minda Children's Court. The transcript then proceeds:

"HIS HONOUR: (To Mr Clarke) You do not object to any of this? You are quite happy that all of this is relevant, or goes to credit, are you, Mr Clarke? You see, I am a bit concerned. It does appear there might be an appeal and every little point is taken and every attempt is being made to glean anything against the plaintiff on past performance.

I cannot see at this stage the relevance of the attempt to steal, that a person aged thirteen in the Children's Court stands alone. I know nothing of what is alleged to have been taken. I know nothing of the circumstances. I do not know whether he was in a group, I just do not know. It is obvious what is going to happen here and we are going to spend a lot of time on this, on past acts. I am a little concerned as to the relevance here as to what a thirteen-year-old boy may have done and if it is to have any bearing I would need to know a great deal about it and we would have to go right through the history of each of these episodes which your friend appears to contemplate that is relevant.

Ican say that the fact that a thirteen-year-old boy was charged with attempt to steal and he was admonished and discharged, with the evidence going no further than that, it is of very little assistance to me. I do not know if he was alone or with a group. Whether there were things sitting up there half-way on the street as a temptation to the boy, I do not know but your opponent is going to grind away at this type of material.

CLARKE: Perhaps I should have said I object to it unless my learned friend states to your Honour how he will make it relevant.

HIS HONOUR: There is no point in you and I having a discussion. I have given you the matters on which I have cause for concern. You do not appear to object?

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CLARKE: No, I won't tell your Honour why but perhaps I can tell my learned friend if the questioning continues along that line I will object unless it becomes relevant to economic loss or injury."

A short adjournment was then taken and upon resumption his Honour apologised to Mr Kennedy for any discourteous comment he had made to him on the previous day. It was suggested in this Court, and the suggestion is perfectly acceptable, that this was a reference to a statement by his Honour which was recorded on the transcript as "close your mouth". Mr Kennedy then resumed his cross-examination. His third question which read: "Well, attempting to steal. Would you agree that attempting to steal shows disrespect or selfishness?" was objected to.

The objection led to another lengthy exchange between his Honour and Mr Kennedy which did not, so far as we can see, involve counsel for the respondent at all. Once again his Honour criticised Mr Kennedy for seeking to waste time on matters which his Honour regarded as irrelevant. On this occasion Mr Kennedy responded by objecting to his Honour's continuous interruptions during cross-examination. His Honour responded that he was concerned that the court's time not be wasted. The transcript of the discussion reads:

"KENNEDY: Might I say one thing, your Honour, that it is my view that your Honour, since I commenced to cross-examine Mr Golby, has continuously interrupted my flow of cross-examination almost in relation to every question I have sought to ask.

HIS HONOUR: And that will appear with reasons therefore on the transcript.

KENNEDY: I wish to inform your Honour, in my view there was -

HIS HONOUR: What you are doing is going back to a past history and unless each of those aspects is covered in full detail the weight that I can give the circumstances is obviously uncertain.

You see, there could be a group of young children who pinched some crackers or something like that, you simply do not know at the age of thirteen.

A break enter and steal which you referred to is the next matter. I do not know what that is. I do not know what was involved. I do not know if he was talked into it by friends. There is a limit to how far you can go. I expect counsel to use common sense and to limit cross-examination to matters which have some bearing.

What we are concerned about is a running down case and how his earning capacity may be affected now that he is an adult. It surely must be obvious how far you can make use of Children's Court proceedings of an entirely different nature.

KENNEDY: In my view your Honour has, since I commenced cross-examination, inhibited my cross-examination of the witness and the proper conduct of the case -

HIS HONOUR: I am concerned that the Court's time not be wasted on unnecessary cross-examination in areas that occurred years ago and which may have very little bearing upon the circumstances of the accident for which you have admitted liability and the effect that is likely to have on his future economic loss and his loss since the accident.

There is a limit to how far you can go and a little bit of commonsense should prevail. If you want this case to run a month, technically you can call evidence which is technical but I think counsel should apply commonsense especially in dealing with previous performance as a child. The plaintiff was deprived of a father in the first year and then he said in the next year of his life he spent on year

in an institution and then he goes back into the bosom of the family and behaves like a normal child and then commits some offences. A lot of people end up responsible and sensible citizens with a history of minor misdemeanours in their earlier lives.

KENNEDY: I wish to call evidence that he was normal prior to this accident and, in my respectful submission to do that, your Honour, since I have commenced to cross-examine Mr Golby, has effectively prevented me from properly cross-examining him.

HIS HONOUR: I do not believe that is so. I have tried to imbibe some commonsense, limiting the area which concerns me.

What was the date of the offence at Yasmar Children's Court when he was dealt with on 22 February 1980?"

After a short further discussion the cross-examination recommenced but the first question was objected to and rejected and when the second question was objected to there was another discussion between the trial judge and counsel for the appellant. At this stage there had been very little progress in the cross-examination of the respondent's step father but in the next nine pages of transcript some progress was achieved albeit with constant interruptions from his Honour which reached a high point in the following exchange:

"Q. May it have been that he had some problems that he complained about with his left knee after the accident in June 1986...

HIS HONOUR: Come on now, we are not in the area of witchcraft and speculation.

HIS HONOUR: I know it is a simple question but the answer will not mean anything. If you have something you wish to put, put it.

KENNEDY: Q. Did he make any complaint to you by way of any difficulty he had by way of pain or disability in his left knee after the accident in which he was driving your car...

HIS HONOUR: Just a moment, that does not necessarily mean anything. That was the accident somebody rang up and told you about, Mr Golby?

Thereafter Mr Kennedy managed to ask a few more questions before concluding the cross-examination.

The next relevant exchange occurred when his Honour interrupted Mr Kennedy's cross-examination of Dr Ganora, a specialist in rehabilitation, at what seemed to the cross-examiner to be a critical time. Once again Mr Kennedy objected to his Honour interfering with the flow of his cross-examination which led his Honour to say:

"HIS HONOUR: You have a propensity to be offensive. It seems to be something you cannot avoid. I have been endeavouring to clear up the point which I would have thought that competent counsel could have cleared up in half an hour. This doctor has been in the witness box for longer than this. It is twenty past four. Out of consideration to the doctor drew attention to certain matters that came to my attention from what is already an exhibit. If you chose to be offensive, that is a matter for you, because frankly, I don't really take great umbrage at anything that you say. You seem to have difficulty in being polite at times, with respect to you."

Following Dr Ganora a psychologist, Dr Shores, was called and the appellant complains that his Honour substantially took over the examination-in-chief of Dr Shores. In the context of this trial it would seem to us that, although his Honour

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did ask the psychologist a large number of questions in chief, that aspect of the appellant's case is of relative insignificance. When Mr Kennedy sought to cross-examine Mr Shores on the respondent's school reports his Honour again intervened and there was another lengthy exchange before counsel was able to resume cross-examination.

At a stage during the proceedings which is not identified in the transcript his Honour authorised the parties to have photocopies made of the documents produced by the Department of Education. When these documents were returned to the court they were in fact stapled in such a fashion that at least one page was difficult to read. While Mr Kennedy was cross-examining Dr Shores he apparently had these documents in his hands. His Honour then asked to see the documents and observed that a passage he had been reading in his copy of the documents appeared in that section which had been stapled. His Honour then said that he was noting, without comment, that a page, which he obviously regarded as important, was stapled in such a fashion that the doctor would not have been able to see it unless it was unstapled. Mr Kennedy, who by this stage of the trial was undoubtedly sensitive about any statement made by his Honour, sought to give an explanation of what had occurred and his Honour cut him short saying he was not accepting evidence from the Bar table. At the end of Dr Shores' evidence and immediately before the luncheon adjournment his Honour made a statement concerning the documents. He said:

"Exhibit 3 (the documents produced from the Department of Education) was handed to the doctor and stapled in such a fashion that before the doctor could read it all he had to unstaple it. If it had not been for me drawing attention to that fact we may not have had the material contained in it, which in the light of the approach to cross-examination, no doubt would be part of the defence address. All I say, at this stage it gives me concern. It says a bit about the boy in favourable pre-injury terms which would support the contention that he may have become a skilled worker or at least supports it. Why it would be stapled up in the way when the remainder of the material which forms exhibit 2 is not stapled up so as to cover up the pages all adds somewhat to the mystery. It is obviously, potentially it is a serious matter. I draw attention to it."

Although his Honour does not specifically indicate why he regarded the matter as serious it would seem reasonably clear to us that his Honour suspected that the relevant page had been stapled over by the appellant's legal representatives so that the witness would not see it. In any event Mr Kennedy was sufficiently concerned about the matter to seek clarification of the nature of his Honour's concerns and he did this after lunch. His Honour refused to clarify his statement saying:

"T think it is pretty obvious. I do not propose to say anything further at this stage. If the matter needs to be investigated it will not be investigated by me. I do not propose to say any more. What do you propose to do at this stage, call a witness?"

Mr Kennedy's immediate response was to make an application and then followed the following exchange:

KENNEDY: I am instructed to ask your Honour to disqualify yourself from further hearing this case.

KENNEDY: For the reason of a reasonably apprehended bias.

KENNEDY: No. I am putting it on instructions. I resent it being insulting and being accused of being insulting when I am not being insulting, merely putting my instructions.

HIS HONOUR: What is the basis of the apprehended bias?

KENNEDY: Firstly, the bias to Dr Shores' evidence as to the criminal history.

HIS HONOUR: I think it would be fairly obvious to anybody that a judge has to make up his mind as to the degree of seriousness of a criminal history as such and I indicated to the Doctor what my view of the degree of seriousness was and that is no basis for disqualifying myself.

KENNEDY: Your Honour had expressed that view without all the evidence was in and your Honour had repeatedly indicated in relation to those matters -

HIS HONOUR: You are determined to try to talk over the top of me as you usually do whenever I am endeavouring to make anything clear. Now is there any other allegation of bias.

KENNEDY: On my instructions the repeated interruption of the cross-examination of defence counsel.

HIS HONOUR: I see. Now, whenever it occurred that there was an interruption it was necessary in my view that the witness be informed of certain matters so that the question would be seen in its proper perspective within the evidence so that the answer would assist me. Any suggestion of bias here is totally ill-founded.

Let me say I am in no way, now I say categorically, biased against the defendant. To suggest bias against the defendant is in the circumstances quite absurd.

HIS HONOUR: What I am doing or for anybody to form a reasonable apprehension that I may be biased is quite absurd. I am entitled to look at the evidence, to comment on the evidence, weigh the evidence. I am the judge of the facts and from time to time I might say you have been quite tedious in your cross-examination to a point where I wonder why you are taking as much time as you do. Yes. Is there any other area of apprehended bias?

KENNEDY: Yes, your Honour. The cross-examination by your Honour of Mr Gravisi, the employer.

KENNEDY: Well, your Honour, your Honour cross-examined him in relation to or asked questions of him in relation to the employment position. Then when he sought to give a particular answer your Honour stopped him.

HIS HONOUR: Well, look, really. You are just being, as you regrettably often are, just plain rude. And the suggestion that there is any bias is also just being rude. Any reasonable apprehension of bias is just being rude. Let me say now that I do not care very much about this pettiness that is being displayed and I am in no way going to be influenced. You have cross-examined all over the shop, in peripheral areas which have little or no bearing on the matter and sometimes had I not interrupted the state of the evidence would not accurately reflect the true position. I have no intention of disqualifying myself.

HIS HONOUR: Yes, well, I suppose I have to sit here and listen to you. What is your other area of apprehended bias?

KENNEDY: Well, your Honour put, as it were, evidence in the mouth of the plaintiff as to the effect that he had been offered an apprenticeship when that was not the plaintiffs evidence.

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HIS HONOUR: What a load of garbage. The fact of the matter is that the employer came along and said that he had not been and that has established the true position as I see it and to suggest that I should disqualify myself for that reason is once again one of these little moments of pettiness and nastiness that regrettably has intruded into cases of this kind. I approach these matters step by step. I apply the principles which properly govern the quantifying of verdicts to be given to plaintiffs from time to time. There have been two exceptions. There seem to be within the ranks over there a feeling that perhaps other judges would give lower verdicts and it seems to me, as is probably the fact, that I do not give in the lower category of verdicts is behind this application and the application is an abuse of process and may even go so far as to be an attempt to pervert the course of justice.

KENNEDY: That your Honour has raised a suggestion of your Honour having serious concern in relation to the Education Department documents in relation to their being stapled. I have requested your Honour to specify to the defendant what the nature of your Honour's concerns are, what the nature of the seriousness is. Your Honour failed to give us an opportunity to meet whatever your Honour's concerns are.

HIS HONOUR: It is already clear certain documents were shown to a witness who was asked to comment on them. They were stapled to other documents in such a way that it was necessary for the witness to remove the staples in order to see what was in the area covered up because of the staple and I extracted that and made that a certain Exhibit.

It gave me concern that certain material was covered in that way and that is as far as the matter goes, in my mind, at this stage and that is all I am prepared to say about it.

KENNEDY: As I indicated prior to the luncheon adjournment, the documents were at your Honour's leave taken to be photocopied. I was not aware that they had been stapled when they were returned and your Honour -

KENNEDY: They had been with your Honour on your Honour's bench for some considerable time.

HIS HONOUR: You are not suggesting that I stapled them?

KENNEDY: No. Is your Honour suggesting I am acting improperly?

HIS HONOUR: I make no suggestion of any kind. I state certain facts. That is all I say. If I feel it is a matter to be referred to the Bar Council I will do so. If I feel it is a matter to be referred to the Law Society I will do so. If I feel that it is right to do so. That is all I will say about it. Let us continue with the case.

KENNEDY: We would ask your Honour to indicate prior to the conclusion of this case what course your Honour seeks to take and what is the suggestion your Honour is making, if your Honour is making any suggestion.

HIS HONOUR: I have raised to counsel an area which obviously gives concern, would give anybody I think concern. There are certain implications which could, repeat could, arise from it and that is all I am prepared to say about it. Now get on with the case. What position have we reached."

It will be necessary to say something about this particular exchange later in the judgment but it would seem appropriate at this stage to observe that there is not the slightest evidence that the application made by Mr Kennedy was designed to achieve the object of removing his Honour from the case because he does not

"give in the lower category of verdicts". Indeed as we will later explain the application was a reasonable response to the conduct of the judge during the course of the trial and in these circumstances his Honour should never have sought to describe the application as an abuse of process. More importantly, it was wrong of him to suggest that counsel and the solicitors who instructed him may have been guilty of the crime of attempting to pervert the course of justice. There can be little doubt but that his Honour's constant interjections and his disparagement of counsel had put Mr Kennedy under enormous pressure. To respond to an application which counsel was bound to make on his client's instructions in the manner in which his Honour did was totally unjustified.

Immediately following this exchange the appellant called Dr Revai, a psychiatrist, who had examined the respondent. Mr Kennedy sought to lead evidence from him designed to establish that the accident in 1985 did not cause the plaintiff the behavioural and intellectual problems of which he complained. The examination-in-chief of Dr Revai was carried out under some difficulty, there being constant objections and some interruptions from his Honour. What is more the objections were often made before the conclusion of the question as is exemplified in the following exchange which commenced with a question by counsel for the appellant:

"KENNEDY: Q. Bearing in mind the school reports, you have seen them, and seen Dr Shores' reports, leaving aside as to estimates of IQ before the accident, and I think there is some reference to IQ tests done at school, leaving aside the accident, what do you think of the likelihood being of the plaintiffs pattern of behaviour, assuming the accident never occurred -

HIS HONOUR: Q. Do you think you can answer that, doctor? A. I do, your Honour. It is something I actually feel strongly about. Mr Kennedy was not aware of that. I think slow learners or children who are dyslectic and it is not recognised all end up in trouble in later life the more I see of it -

Q. What kind of trouble? A. For example, criminal behaviour. I am sure if one goes through the gaols you will find many slow learners or dyslectic people.

Q. Is it part of your expertise? A. Well, I am a psychiatrist and I'm not a child psychiatrist but I have been interested in the treatment of hyperactive children.

Q. Have you carried out follow up cases on persons who have as well as slow learning problems, or got into trouble in the Children's Court and never had trouble thereafter, have you followed up any cases of that kind? A. I don't have a great case load to quote on, it is only my thoughts about the matter -

Q. I tell you this, doctor, as Judges we do not sit in vacuums, we sit in the criminal spheres as well as the civil sphere and I myself have been concerned with the criminal law for some 30 years or more and I have seen as many histories, people involved in crime, as most people in this State and I can assure you, doctor, that it does not follow at all because person who run into trouble in the Children's Court, their problems continue with the law in future life. Do you have any figures or studies which rebut what I have just said -

WITNESS: I am sure they exist but I don't have them, I can't quote them.

KENNEDY: Q. Do you feel as a result of your expertise and experience as a psychiatrist that you are qualified to answer my question? A. I feel happy with your question. I have had an interest in it but I don't have a wide case load to quote on. This is from observation, from reading and talking to others.

KENNEDY: I ask your Honour to ask the doctor to answer the question.

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HIS HONOUR: The doctor says he is interested in this field and has seen cases where, as I understand his answer, there have been people in trouble in the Children's Court who have been in trouble with the law later in their lives but he does not have a field of study of case history to come to a firm conclusion one way or the other -

HIS HONOUR: You go ahead and tell us what you want to tell us.

KENNEDY: Q. What do you think would be the likely consequence in terms of a plaintiffs behaviour pattern after, if the accident had not occurred -

It should not be thought that because we have only quoted this extract from the transcript that thereafter counsel for the appellant was able to continue the examination in chief without interruption from his Honour. In fact this passage is a fair illustration of what continued to occur during the examination in chief of Dr Revai. Later when the cross-examination started his Honour asked a considerable number of questions clearly designed to neutralise the effect of the doctor's evidence.

Later when Dr Greenberg was called by the respondent and Mr Kennedy sought to cross-examine him there were further interruptions by his Honour which indicated a disposition favourable to the respondent's case and would, in any event, have had the effect of interrupting the flow of counsel's cross-examination. One particular example is worth recording:

"KENNEDY: Q. And assume, doctor, that his mother had observed that he would allege his step-sister and step-brother would pick on him and she could not see any justification for that, was unaware of any justification for it that if she would ask him to do something from time to time he would sometimes not do it and he would go to his room and sulk and bearing in mind the school reports what would that indicate about his personality?

HIS HONOUR: Q. That is far from the full picture, doctor. Apparently in the totality of the evidence he settled down in a normal life. It was a family where they would sit around, discuss things around the table if there were any problems. There were fights as children from time to time, squabbles. There was some suggestion about the age of 12, I thought it was when he found out his father was not his natural father but after that nothing to suggest anything that would shock the objective observer. In other words, apart from the usual problems in the home on the totality of the evidence was a perfectly happy family relationship. A. Yes."

Finally reference should be made to an exchange which occurred when Mr Kennedy was seeking to lead evidence from Dr Francis-Jones, a psychologist. The doctor, having stated that given the respondent's family background and his learning difficulties at school it was not surprising that he manifested the behaviour in his adolescence which had been adverted to in the evidence, then agreed with the proposition that this was, in effect, likely to have occurred without the accident. After the question had been answered there was an objection. The transcript then proceeds:

"HIS HONOUR: I do not consider that because he says the child had some brushes with the law in his earlier life he is a criminal.

KENNEDY: He is not saying that. That together with the criminal record, putting all that together.

Q. I gather the witness is saying the criminal behaviour is a manifestation of the underlying principles; is that correct? A. That is correct.

HIS HONOUR: Before I take any notice of that, I would have to have a person more qualified who had stated the effects of small minor misdemeanours and brushes with the law later in life with disadvantaged backgrounds. I point out to you I have been associated with the criminal law for 30 years and heard many many histories. What you are seeking to give out is the history of this boy had he not had an accident. I am not satisfied you have shown this witness has the necessary expertise and I reject it.

KENNEDY: Q. Doctor, had you had any experience with people in a similar situation to the plaintiff? A. I have not worked directly with delinquent children. But I have studied developmental psychiatry and I have studied the literature on the sorts of factors that can contribute to criminal behaviour and delinquent behaviour through my training.

HIS HONOUR: I will tell you now I am not going to allow you to go any further with this. Even if this witness did have sufficient expertise, we do not have sufficient history for the witness to come to any conclusion. I reject it, the whole area.

KENNEDY: Does your Honour mean rejecting cross-examining (sic) in this area?

HIS HONOUR: Yes, I do. I have made it clear, I thought, that we simply do not have enough information before this court for anybody to come to any conclusion. The history is all far too vague. We do not know the details.

KENNEDY: It may be a question of weight, your Honour.

HIS HONOUR: No, it could only be speculative and there is no evidentiary weight or value so far as I am concerned. Get on with your next area."

Mr Kennedy then asked more questions and this time was interrupted by the plaintiff whereupon a discussion took place between the plaintiff and his Honour which culminated in his Honour making another statement which led to a further exchange. The statement and exchange were as follows:

"HIS HONOUR: Yes. I will make this further comment. That it seems clear to me that this witness is not fully or sufficiently fully informed on the background of the plaintiff to come to the conclusions he is coming to. He obviously is aware of the fact and I accept it to be the fact that up to the time of the accident the plaintiff had a very stable and happy home life and you have left that area out of your questioning and obtained the answers in circumstances where the true factual situation has not been stated.

KENNEDY: Your Honour, that indicates, with respect to your Honour, that you have pre-judged the issue.

HIS HONOUR: I heard the father's evidence. I heard the mother's evidence and I heard the plaintiff's evidence and I am aware from the totality of that what the circumstances were in the home up to the time of him suffering this accident in 1985. The other area of evidence is concluded and indeed you did not attack the pro position that it was a stable and happy background except in a few peripheral alarms and excursions, as it were, and it is on that basis that I say that you have misinformed or not fully informed this witness of the true state of affairs and their totality as has been divulged to this court.

KENNEDY: I do not agree with that association, your Honour.

HIS HONOUR: I do not care whether you agree or not.

\GROVERNMENT INSURANCE OFFICE OF NSW v GOLBY (Clarke, Handley and Shelliét JJA)

KENNEDY: Q. Bearing in mind the boy's background and the school reports, is it likely that his employment in any event may have been erratic?

HIS HONOUR: I cannot allow that question because you simply do not know enough about the boy's background. I have raised this and I have it noted several times in the evidence you are seeking to obtain conclusions from experts or people you purport as experts and you broad-brush these questions and you get an answer and the inference may well be if it is read in another place that the witness was fully informed as to the background precisely what had occurred in each of the episodes, the relationship within the family and so on.

It is obvious to me that this witness is simply not informed as to the details of areas of brushes with the law as to what in fact happened. Nor has he been properly informed as to the background family situation of the plaintiff and now you are seeking to get answers from him when I am not satisfied that you have presented him fully with the background and I say that partly because this court is not fully informed as to his background.

In any event, in the evidence which I have before me is very sparse indeed and that is why I have rejected that area. So please do not persist with trying to get answers in that area when I have indicated to you my reasons for rejecting them.

KENNEDY: Q. Doctor, bearing in mind what he has told you and the school reports, do you think you are in a position to express a view about whether his employment in the future, leaving aside the accident, was likely to be erratic?"

There were, of course, many more interruptions by the judge and debates between the judge and the appellant's counsel than we have referred to. What we have endeavoured to do is set out those occasions which create the greatest cause for concern. Obviously it would be totally impracticable to refer to all of the judicial interruptions in this judgment.

We have already pointed out that the appellant in its written submissions observed that his Honour asked almost one-sixth of the total number of questions asked during what was a lengthy trial. The appellant's advisers also prepared statistical tables setting out the number of interruptions of counsel by the judge, the number of questions asked by the respondent's counsel, appellant's counsel and the judge and the number of debates which took place between the judge and appellant's counsel. Those tables reveal that the judge interrupted appellant's counsel on 184 occasions, respondent's counsel on 59 occasions; that the appellant's counsel asked 1273 questions; the respondent's counsel asked 929 questions and the judge asked 379 questions.

These statistics were not disputed and they demonstrate significant intervention by the court. But a mere statistical count will, as a general rule, furnish no sound ground upon which to base a criticism of undue intrusion on the part of a trial judge. In this particular case the statistics provide no reliable basis for determining whether a miscarriage occurred. They do no more than provide a broad context against which the real question which arises in this case should be considered. That question is whether the nature and extent of his Honour's interruptions of the examinations and cross-examinations of the appellant's counsel, considered together with his Honour's criticisms of, and implied threats to, counsel, had the effect of denying the appellant a fair trial (see Hsing v R (1984) 12 A Crim R 196, 198-9).

The system of administration of justice in this State is an adversarial one. The case of each party is presented by its counsel who examines and re-examines the witnesses which that party desires to call and who cross-examines the witnesses called by other parties. It is counsel who determines who shall be called as witnesses and in what order those persons will be called. It is counsel who determines what issues should be raised and what arguments should be advanced in support of each of those issues. It is counsel who decides what questions should be asked in examination and in cross-examination, what topics should be covered in an opening and closing address and what points of law should be raised. In all these respects counsel exercises an independent judgment.

There is nothing controversial about any of these statements. They are well established and were recently re-stated by Mason CJ, in another context, in Giannarelli and Ors v Wraith and Ors (1988) 165 CLR 543, 556.

The judge sits to hear and decide the case. It is no part of the function of a judge, as a general rule, to present the case of any party nor should a judge ever seek to destroy the case of a particular party either by seeking to elicit particular evidence from a witness or witnesses who are called or by seeking to destroy other witnesses by cross-examination. Although it may be that where a party appears in person a judge may ask questions in order to assist the party to present his or her case the circumstances in which this might occur would be limited and there could be no occasion on which a judge should seek to destroy the case of any party appearing before him or her.

This does not mean-that a judge is required to remain silent during the hearing of a case. Matters may arise which require clarification and it would be idle to suggest that a judge should not seek to clarify those matters. Again counsel may have failed to deal with a particular issue, obviously as a result of oversight, and there is no reason why a judge should not remind counsel of the matter which has been overlooked. These are but examples of occasions on which a judge may feel that it is desirable to intervene and it is clear that a judge's intervention may be required on numerous other occasions.

There was at one time a view that a judge should ask as few questions as possible and should leave the whole of the conduct of the litigation to counsel. According to this view the role of a judge is simply to hear the evidence, rule upon objections to admissibility and decide the case. That view has been modified by the pressures placed upon courts efficiently and expeditiously to dispose of litigation. It is a notorious fact that the courts in this State are under tremendous pressure with increasing case lists and large backlogs. One result has been that the hearing of cases in many instances is much delayed. This problem has been a major concern to the judges of the courts who have responded in a number of ways to the challenge of achieving greater expedition in the disposition of cases.

One response has been a greater concentration on case management. In this context we hear today of the managerial judge. Case management is not solely concerned with pre-trial procedures but also covers the period of the trial itself. In this respect judges have been seeking to develop appropriate procedures to shorten the length of trials. One aspect of these procedures is the identification and elimination of those features of a trial which lead to a needless waste of time. A relevant example is furnished by a lengthy repetitive cross-examination which appears not to touch on the issues in the case. When confronted with an event of this nature many judges tend to intervene to avoid what they perceive is likely to be an unnecessary waste of time.

\GROVERNMENT INSURANCE OFFICE OF NSW v GOLBY (Clarke, Handley and Shellt JJA)

There are, of course, many other instances in which a trial judge will perceive that time is being wasted and will intervene in an attempt to ensure that the trial is disposed of both efficiently and expeditiously. However, it is of primary importance that judges proceed cautiously when interrupting counsel or cutting short a cross-examination or an address. An enthusiasm for efficiency must never be carried to the extent that the parties, or one of them, are denied a fair trial. Nor may it justify impeding counsel in the proper presentation of his or her case.

Nonetheless it must be recognised that it is the judge who is in the best position to determine what procedures should be followed in the interests of the efficient administration of the case. Accordingly, this Court will not lightly uphold a challenge to a judgment based on the ground that a trial has miscarried because of undue intervention by the trial judge. The heavy burden imposed on a party such as the present appellant is a recognition of the fact that the need for, and extent of, intervention is a matter peculiarly within the discretion of a trial judge who is placed in a singularly advantaged position in the exercise of that discretion.

Two other observations should be made concerning judicial intervention during a trial. The first concerns the need for a judge to resist the temptation to prejudge the issues before the evidence is complete and the addresses are concluded. Although judges will undoubtedly form tentative views at various stages during the trial it is imperative that they keep an open mind until the conclusion of the trial. For instance, it would be wrong for a judge to decide at the end of the evidence of a witness that that evidence should be accepted. That is because other evidence may emerge which undermines, or raises questions concerning, the evidence given by the witness.

Of course, pre judgment can be conscious or sub-conscious. Where a judge intervenes to a considerable extent during the examination or cross-examination of a witness there is a danger that the judge's objectivity will be sub-consciously impaired (Yuill v Yuill 1945 P 15 at 20). The need to avoid that risk is a compelling reason for limiting intervention during the examination and cross-examination of a witness.

The second observation concerns the use by a trial judge of strong language towards counsel. This may be necessary on occasion if counsel is, or appears to be, abusing his or her position by, for instance, using insulting language to a witness, other counsel or the judge. But the power to control the trial should never be permitted to become a vehicle for persuading counsel to withdraw, or not to pursue, a submission that he or she is instructed to press. Counsel are expected to have broad shoulders but that is no reason to denigrate them or their submissions in the apparent hope that they will withdraw a submission which the judge finds unpalatable.

In the present case a rather unpleasant situation arose when Mr Kennedy made an application that the trial judge disqualify himself on the grounds of "apprehended bias'. This was a perfectly proper submission made on instructions and in the circumstances of this trial was, as will appear later, completely justified. His Honour responded by describing the submissions as insulting and rude and one which resulted from pettiness and nastiness. These comments were completely unjustified in our opinion. Counsel made the submissions on instructions and his Honour should have attended to the submission and weighed the various points advanced in a detached and unemotional way. A similar situation arose in Government Insurance Office of New South Wales v Glasscock (NSW Court of Appeal, 19 February 1991, unreported) and there Handley JA

pointed out, in terms with which we agree: "Such an application calls for that blend of courage and courtesy spoken of by the Full Court in Ex parte Bellanto re Prior (1962) 63 SR 190 at 204, and it should be heard by the judge with courtesy and patience. Courts must do more than pay lip service to the duty of a counsel to represent his or her client with courage."

In this case the difficulties with the trial were gravely exacerbated when the judge described the application as an abuse of process and suggested that the appellant's legal advisers were possibly guilty of attempting to pervert the course of justice, which is a criminal offence. There was no basis for these assertions and no counsel in the position of Mr Kennedy should have been confronted with them.

The immediate importance of this exchange is that it demonstrates that his Honour had formed an extremely adverse view of the appellant's legal advisers and probably the appellant itself. Whatever may have been the merits of the application before his Honour responded to them the manner of the response raised an important new factor for consideration.

In the light of these observations we turn to the first substantive complaint which was, in essence, that the conduct of the judge caused to trial to miscarry. In Galea v Galea 19 NSWLR 263 Kirby P expressed the relevant test in these terms:

"Whether the excessive judicial questioning or pejorative comments have created a real danger that the trial was unfair. If so, the judgment must be set aside (see E H Cochrane Ltd v Ministry of Transport (1987) 1 NZLR 146 at 153)."

We respectfully adopt that test. In the same case his Honour laid down a number of guide-lines to be applied in determining whether a judgment should be set aside on grounds of excessive questioning or inappropriate comment and emphasised the need of the court to consider whether the interventions indicated that the judge had closed his or her mind to further persuasion. That is an important consideration but excessive intervention by a judge during a trial may have created a real risk that the trial was unfair for other reasons, for instance, by preventing counsel from properly presenting his or her case. Accordingly, the guide-lines laid down by Kirby P should not be regarded as providing exhaustive tests for determining whether a judgment should be set aside upon the grounds with which we are dealing.

In the present case the trial judge said on a number of occasions that he was only intervening to clarify matters. On some occasions he said that the matter was generally unclear, on others he accused counsel for the appellant of putting a misleading picture to a witness during cross-examination. The accusation which his Honour made seems to us to have proceeded upon a misconceived basis. Counsel is entitled, as a general rule, to put a number of assumptions to an expert witness and then to ask that witness whether in the light of those assumptions his opinion would, for instance, be X or Y. This is commonplace where expert witnesses are called and the assumptions which counsel are entitled to put are not limited to those matters of fact which are common ground or uncontradicted. Counsel is entitled to put that version of the facts which is consistent with the case being presented by that party and which counsel, no doubt, hopes the trial judge will accept.

Further the assumptions which are put to a witness may be based upon facts which have not at that stage been led in evidence in the trial but which counsel expects to lead into evidence at a subsequent point of time. The point is that, subject to the obvious limits of relevance, counsel is entitled to ask an expert

\GROVERNMENT INSURANCE OFFICE OF NSW v GOLBY (Clarke, Handley and Shelf JJA)

witness to express his opinion upon 8 number of assumptions which are put to the witness by counsel. It is by no means unimportant that this may also be a means of testing the credit of the witness. There is no obligation upon counsel to put the whole picture (whatever that might mean) to the witness. On the contrary counsel may put assumptions based on the acceptance of part, and the rejection of another part, of the evidence of a witness. That is because the trial judge may eventually accept only that part of the evidence of the witness.

What occurred here was that the trial judge prevented counsel from putting to the doctors the particular assumptions upon which he wished an expression of opinion by the relevant doctor. His Honour did so because he was of the view that counsel was not putting the whole picture to the witness. Such an intrusion into the cross examination was not justified, the more so because there was no objection to the question being put by counsel for the respondent. What is more statements made by his Honour at that time indicated that he had formed a concluded, or at least a very strong, opinion on the acceptability of the evidence of the respondent and his lay witnesses.

Those interventions raise a serious question for this court but his Honour's intrusion into the trial was not limited to preventing counsel putting to the expert witnesses those assumptions upon which counsel sought that witness's opinion. The judicial interventions commenced at a far earlier point in time and seem to have occurred on each occasion on which counsel sought to examine or cross-examine a witness on the conduct or intellectual capacity of the respondent prior to the accident which was the subject of the trial. Whenever counsel sought to examine on those subjects he was, almost universally, interrupted by the trial judge and engaged in a lengthy debate which usually involved his being subjected to perjorative comments.

The matters upon which counsel wished to examine and cross-examine were central to the issues before the court and his Honour should not, with respect, have rejected questions on the grounds of relevance at the very early stage of the trial at which he first intervened. Even if those interventions could not alone have been regarded as creating a risk of an unfair trial the nature and extent of the following interventions, some of which we have set out in this judgment, and the disparagement of counsel leave no doubt in our mind that the appellant has satisfied the test of demonstrating a real danger that the trial was unfair. That danger arose from the fact that the trial judge effectively denied the appellant the right freely to put its case by his constant interruptions, rulings on relevance and disparagement of the appellant's counsel. The appellant was, in essence, deprived of both the substance and appearance of a fair trial according to law. Accordingly, the judgment under appeal cannot stand.

In these circumstances it is unnecessary to dwell at length upon the second ground of complaint. In view, however, of the debate which took place in this Court it is appropriate that we express our conclusion on this ground of complaint and the reasons which led us to that conclusion shortly.

In Australian National Industries Ltd v Spedley Securities Ltd (In Liquidation)s and Ors (NSW Court of Appeal, 19 March 1992, unreported) it was accepted that the relevant principle was that expressed in Livesey v New South Wales Bar Association (1983) 151 CLR 288 at 293-4 in these terms:

"The 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."

In Spedley Meagher JA pointed out that this principle bore a significant difference from the previous expression of the relevant principle by Dixon CJ in R v Australian Stevedoring Industry Board; ex parte Melbourne Stevedoring Co Pty Ltd (1953) 88 CLR 100 at 116. As Meagher JA put it:

"The most significant difference is that the former (the Stevedoring Industry case) required at least a probability, and perhaps a high probability, of distrust to arise in the mind of a reasonable observer, whereas the latter (Livesey) requires nothing more than a mere possibility."

This Court is, of course, bound to apply the test in Livesey but it would not seem to us to matter which test was applied to the circumstances of this case. Prior to the application by the appellant's counsel that his Honour disqualify himself the nature and extent of the interruptions to the examination and cross-examination by the appellant's counsel significantly affected the flow of those examinations and cross-examinations. Counsel was quite correct in objecting to his Honour's interruptions upon that ground. What is more the timing, number and nature of the interruptions would tend to create an apprehension of bias. In addition his Honour made statements in many of his numerous interventions indicating that his Honour had formed, at an early stage, a strong view of the acceptability of the respondent's evidence and case and considered that counsel for the appellant was not seeking to meet that case by legitimate forensic tactics. Having regard to those matters it seems clear to us that even before the appellant's counsel sought to have his Honour disqualify himself a real question arose whether the objective observer may not have entertained a real apprehension that the judge was not bringing an impartial mind to the issues in the case.

Once, however, his Honour had responded to the application that he be disqualified the case of apprehended bias became absolutely compelling.

Further, it is permissible to examine the judgment under appeal on the issue of apprehended bias (see Vakauta v Kelly 167 CLR 568). In this case there are at least two features of the judgment which, in the light of the earlier course of the hearing, give rise to concern as to the unbiased nature of the judgment. The first was the attribution to counsel of improper conduct. While what his Honour said in the judgment had, in effect, been said during the hearing its reiteration emphasised the fact that from an early stage in the trial his Honour had concluded, wrongly in our view, that counsel for the appellant had illegitimate motives for adopting lines of questioning and had set out to ensure that those lines could not be developed. What his Honour said in the judgment was:

"The defendant sought to embark on a widespread fishing expedition through his counsel but I suspect that really the purpose was to denigrate the plaintiff in the eyes of the court rather than to establish some bona fide basis for adducing economic loss."

We would wish to emphasise that there was no justification for those remarks by his Honour which stand as strong confirmation of the fact that from the time of his first intervention his Honour conducted the case upon the basis that much of the examination and cross-examination conducted by counsel for the appellant was carried out to divert his attention from the issues in the trial.

The second matter is the repetition in the judgment of an error which appeared in the written submissions of the respondent. In those submissions counsel set out the periods of unemployment from 10 May 1985 to the trial in support of the claim for economic loss. Two of those periods were 27/2/86 to 3/8/86 and 5/4/86 to 5/8/87. There was a clear overlap which was specifically referred to in the

\ROVERNMENT INSURANCE OFFICE OF NSW v GOLBY (Clarke, Handley and Shel JJA)

written submissions of the appellant. Notwithstanding his Honour proceeded upon the basis that the schedule presented by the respondent's counsel was correct despite the fact that it was obviously defective. This fact alone is sufficient to raise a suspicion that his Honour did not consider the appellant's written submissions in any depth, a suspicion which is enhanced by another aspect of the allowance for past economic loss. The second period mentioned commenced on 5 April 1986. This was the day on which the respondent was involved in another motor vehicle accident and suffered very serious injuries to his left leg and knee. On any view he was unfit for work as a consequence of the injuries received on that date for a significant period of time. The respondent's schedules made no allowance for this nor did his Honour despite the fact that a specific submission had been made by the appellant that nothing should be allowed for a reasonable period after the second accident.

It can be seen that there were in fact two simple errors in his Honour's judgment which would not have been made if his Honour had read, even superficially, the appellant's submissions. The conclusion to be drawn from these facts, when considered in the light of the course of the trial, is that his Honour had closed his mind and was not prepared even to consider the appellant's submissions. This conclusion is strengthened by the fact that in his judgment his Honour has accepted all the respondent's submissions and rejected those of the appellant. While it is, of course, open to a judge to accept totally the case of one side that fact that his Honour accepted all the respondent's submissions in this case reflects a line of thinking, indications of which appeared at any early stage of the trial and which at some later stage before the consideration of the written submissions had become a concluded opinion.

The consequence of our acceptance of both substantive complaints made by the appellant is that the judgment should be set aside and in these circumstances it is unnecessary to consider whether the damages which were awarded were excessive.

(1) Judgment of Lloyd-Jones DCJ set aside except as to costs and the case be remitted to the District Court for a new trial limited to damages.

(2) Respondent to pay the appellant's costs of the appeal and to have a certificate under the Suitors Fund Act in respect of those costs.

(1) Judgment of Lloyd-Jones DCJ set aside except as to costs and the case be remitted to the District Court for a new trial limited to damages.

(2) Respondent to pay the appellant's costs of the appeal and to have a certificate under the Suitor's Fund Act in respect of those costs.

Counsel for the appellant: MJ Neil QC and KP Rewell Solicitors for the appellant: GM Meadows Counsel for the respondent: JS Commbs QC and TJ Clarke

Solicitors for the respondent: Williams Palmer Noss