MCADAM v ROBERTSON No. SCGRG-97-1458 Judgment No. S169 [1999] SASC 169

MCADAM v ROBERTSON No. SCGRG-97-1458 Judgment No. S169 [1999] SASC 169 - SASC 1999 case summary — Zoe

Applicant/Plaintiff:

# MCADAM

Respondent/Defendant:

ROBERTSON No. SCGRG-97-1458 Judgment No. S169 \[1999\] SASC 169

Supreme Court Act 1935(SA)

The third group of errors comprises errors of principle. The earlier Full Court is said to have applied erroneously the last opportunity rule when considering a commonsense approach to causation. It is said to have misapplied or to have failed to apply principles stated in Chappell v Hart (1998) 72 ALJR 1344. In that context, it was submitted that the earlier Full Court failed to consider the significance of the truck not having sidelights required by regulation. It is also said to have failed to carry out its task of review in accordance with the principle stated in State Rail Authority of New South Wales v Earthline Constructions Pty Limited (In liq) [1999] HCA 3 (1999) 73 ALJR 306. That case was decided after the earlier Full Court had published its reasons. It was submitted that it established some new principles governing the review by the Full Court of decisions on matters of fact.

In Smith v New South Wales Bar Association [1992] HCA 36; (1992) 176 CLR 256 the Bar Association had instituted disciplinary proceedings in the Court of Appeal against a barrister. The Court of Appeal made a finding, on evidence given before it, that the barrister had lied to it and to a Magistrate. That finding rested in turn and in part on a finding that the barrister had not, in evidence given elsewhere, mentioned a certain conversation upon which he relied in his evidence before the Court of Appeal. Having made that finding, the Court of Appeal found the barrister guilty of professional misconduct.

The next decision is Autodesk Inc & Anor v Dyason & Ors [1993] HCA 6; (1993) 176 CLR 300. There an appeal was argued before the High Court, and judgment had been delivered but the order of the Court had not been drawn up. The unsuccessful respondent then applied to the court to vacate the judgment, and for an order that the Court review or rehear three identified issues, on the grounds that through no fault of the respondent it had not been heard on those three issues. By a majority (3-2) the application was dismissed.

Another example of the ability of a Full Court, differently constituted, to undertake consideration of a matter considered by the Full Court at an earlier stage, is provided by the decision of the House of Lords in R v Bowstreet Metropolitan Stipendiary Magistrate ex parte Pinochet [1999] UKHL 1; [1999] 2 WLR 272. In Pinochet the House of Lords heard and decided an appeal by a majority. Subsequently, the unsuccessful party made application to the House of Lords to set aside the earlier decision on the grounds that one of the majority had links to an intervener in the case that gave rise to an appearance of bias against the unsuccessful party. The application was heard and disposed of by a committee of the House of Lords that did not comprise any of their Lordships who made the decision under attack.

Mr Gray QC then submits that, in the particular circumstances of the case, a fair-minded observer would entertain a reasonable apprehension that the earlier Full Court might not bring an impartial and unprejudiced mind to the application and to the submission that it had erred, and to the further submission that it should reverse its original conclusion. That is how the law of Australia relating to bias was stated by the High Court in Livesey v New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288. In the present case the submission is that the fair-minded observer would apprehend prejudgment on the part of the earlier Full Court, meaning that the members of the earlier Full Court would not bring to the disposition of the application an impartial and unprejudiced mind: see Re JRL ex parte CJL (1986) 161 CLR 343 at 352 Mason J. In that context it is important to bear in mind that a mind disposed to decide a case in a certain manner is not a closed mind, nor is it a mind that is not impartial. A reasonable apprehension of bias in the form of prejudgment is to be firmly established, and this means that there must be some reason for the fair-minded observer to apprehend that the issue will not be approached in a fair and even-handed manner. As Mason J said, in the judgment just referred to (at 352):

(1992) 176 CLR 256

(1998) 72 ALJR 1344

(1999) 73 ALJR 306

(1993) 176 CLR 300

(1974) 8 SASR 458

(1983) 151 CLR 288

(1986) 161 CLR 343

At a glance