Polsen v Harrison

Background to application

1. On 15 February 2021, the trial judge commenced the hearing of a claim for damages for professional negligence brought by Katrina Marie Polsen against a Dr Harrison in the Common Law Division of this Court. The proceedings were set down for hearing some 18 months beforehand and were set to run for three weeks.
2. The plaintiff's case was opened on 15 February 2021 by Mr A J Bartley SC. In the course of his opening, the trial judge expressed her concern as to the adequacy of the pleading in light of the way in which the case was being opened. Two particular concerns were raised which related to the pleading of the scope of the duty of care alleged and the proper delineation of the risk of harm. Her Honour's concerns were echoed in his opening by Mr Windsor SC who appeared for Dr Harrison.
3. Much or all of the second day of the scheduled hearing was spent out of court, giving the plaintiff's legal representatives an opportunity to address the pleading points and matters of concern that had been raised by the trial judge on the first day of the hearing.
4. When the matter resumed on Wednesday 17 February 2021, debate ensued about an amended form of pleading which had been circulated to the defendant at 4.22pm the previous afternoon. In short the defendant's position was that the amendments presented in the fresh iteration of the pleading went well beyond the two matters about which the trial judge had expressed concern, sought to introduce new causes of action and/or new particulars of negligence which were said to be prejudicial and represented an unacceptable attempt to bring a new case after the commencement of the trial which, as noted above, had been set down some 18 months earlier and been confirmed as ready for hearing.
5. In the course of his submissions in relation to the new iteration of the Statement of Claim, Mr Windsor made reference to the fact that a joint conclave of experts had taken place and had produced a report (the joint report). Although the parties had received a copy of the joint report on the Monday that the hearing had commenced, it emerged that the trial judge had not, as at 17 February 2021, been provided with a copy of that report.
6. In the course of the debate about the proposed new iteration of the pleading, the trial judge, addressing Mr Bartley, said: "I thought at the end of Monday it was crystal clear what I directed to happen. That was to fix those two identified significant problems via a redrafting of a very limited part of the pleading; not a whole scale redraft. I didn't make a formal order and direction because I relied on the counsel at the bar table to take on board, given their seniority, what I had said on the record without reducing to a schoolmarm order. I see I should have done that because here I am dealing with an entirely new pleading".
7. Following that exchange with Mr Bartley, her Honour said: "It seems to me the choice is you either abandon the rewritten, redrafted expanded document that arrived last night and proceed and go back and fix, in accordance with the matters I raised on Monday and what I have just articulated, the December 2020 document, Amended Statement of Claim; or you press for the new document and the proceeding will be adjourned and the hearing date will be late next year …. Nobody wants that …"
8. After some further debate, Mr Bartley indicated that he would seek leave to amend and sought and was given time to prepare a formal application with supporting affidavit. The trial judge adjourned the matter until later in the day to allow these formalities to be attended to but, before she adjourned, was supplied with a working copy of joint report which both parties confirmed she should read during the course of the adjournment.
9. When the matter resumed, later in the afternoon on 17 February 2021, Mr Bartley provided the Court with written submissions in support of his application to amend. He pointed out to the trial judge that, in those submissions, he had referred to the joint report. That reference was the genesis of the following exchange between Mr Bartley and the trial judge which was the foundation for an application that was made on the following day that the trial judge recuse herself from continuing to hear the matter on the ground of apprehended bias. It is necessary to reproduce that exchange in full: "BARTLEY: In the submissions I have referred to the joint experts' report on liability. HER HONOUR: That document is a massive problem in my view. What on earth was Dr Selwyn Smith doing at that conclave? I consider that to be a car crash. I thought that the mention of Dr Selwyn Smith in the index to the court book was a typographical error. To the extent that I crossed it out, thinking it was just a duplication of Dr Smith, but what is a psychiatrist doing at a conclave which is talking about proper standards of care for decision making in respect of surgery? I have so many problems with his presence there. I just don't understand how that occurred. And as the judge hearing the matter, I consider that I've got a role in assisting the parties with a report that, to my mind, has gone completely off the rails by his presence. He dominated in a way that I think is entirely outside his area of expertise and I just don't understand why he was there. BARTLEY: Your Honour, it's a perennial problem with joint conferences as they are currently operating, because there tends to be an attitude during the - in advance of the joint conferences there tends to be an attitude that everybody that might have something to say is present at the joint conference. HER HONOUR: But why is it ever relevant for a psychiatrist to be there laying down the law about what he thinks should have been the activities of a surgeon? I'm asking that of the whole bar table, not just of you, Mr Bartley. What on earth was he doing there? BARTLEY: Just excuse me for a moment? HILLIER: So Dr Selwyn Smith only answered questions 1 to 4 and Dr Garett Smith-- HER HONOUR: I don't care which numbered questions he answered, he shouldn't have been there. BARTLEY: Yes, I know, your Honour, I understand that. HER HONOUR: I think that whole exercise has been a waste of time and costs and the whole thing has been bastardised by his presence. Anyway, I've got a strong view about it, but perhaps with the assistance of those at the bar table, that view might be modified. Was that a matter of agreement that he went? HILLIER: Yes, it was. HER HONOUR: I've never heard of anything so preposterous as a psychiatrist running the show for the first four questions of that conclave, which are matters for surgical experts to consider and provide the standard of care and the views articulated are advocacy in the extreme. Anyway, I wanted to flag that because I was so concerned. BARTLEY: Yes. May I just say that in general terms your Honour has flagged concern which I know as a matter of the Common Law Committee of the Bar Association, members have been raising issues relating to how closely supervised and directed joint conferences should be. And they seem to have acquired a life unto themselves. Different judges take different views as to them, but if I may say so, with respect, they are often - I mean, one sees joint conferences where you have physiotherapists and orthopaedic surgeons. I've seen one where there was a-- HER HONOUR: But that's fine and a matter for agreement between the parties in cases where on an issue by issue basis I assume there's careful discussion about who should be at what conclave, but I fail to see any possible propriety or relevance of having a psychiatrist for the plaintiff attending and apparently dominating the first four questions that are matters for surgical expertise, not psychiatric expertise. I'm flabbergasted about his attendance. Anyway, perhaps you can all help me with that but I wanted to flag that I have a significant concern. I mean, that doesn't rule out, I suppose - well, it might when I give it a bit more mature reflection, but deployment of anything in that joint report might have to be carefully thought about, because at the moment I'm seriously considering what, if anything, I can and ought to do in respect of it. I know it's not evidence in the proceeding, but I've got a real reservation about whether I'd accept it on any issue in these proceedings to be put before me as something upon which I should base any decisions in the proceeding".
10. After this passage, her Honour referred to some other aspects of the joint report which she considered problematic including the fact that different experts appeared to have been provided with different assumptions on which to base their expert opinions.
11. The balance of submissions on the afternoon of 17 February 2021 returned to the amendment application, the identification of authorities such as Aon Risk Services Australia Limited v Australian National University [1] which related to that application, and directions for Mr Windsor to address Mr Bartley's written submissions in support of the amendment application that had been provided in the course of the afternoon.
12. When the matter resumed on the morning of Thursday 18 February 2021, rather than proceeding to address on the amendment application, Mr Bartley made an oral application for the trial judge to disqualify herself from the further hearing of the matter on the basis of apprehended bias. The application was tied to the trial judge's comments the previous afternoon in relation to Dr Selwyn Smith and his role in the conclave that had led to the joint report. It was submitted that a fair minded lay observer might reasonably apprehend that in relation to the opinions expressed by Dr Selwyn Smith supportive of the plaintiff's case, the trial judge might not bring an impartial unprejudiced mind to his evidence.
13. Mr Bartley developed his submissions in support of this application at some length, emphasising the following references in the passage which has been set out at [11] above and which were also relied upon on appeal: (a) "What on earth was Dr Selwyn Smith doing at the conclave?" (T 83.35) (b) "I consider that to be a car crash". (T 83.36) (c) "I have so many problems with his presence there". (T 83.43) (d) That the conclave "has gone completely off the rails by his presence". (T 83.46) (e) "He dominated in way that I think is entirely highly outside his area of expertise". (T 83.46) (f) That he was "laying down the law about what he thinks should have been the activities of a surgeon". (T 84. 6) 2 (g) "I don't care which numbered questions he answered, he shouldn't have been there." (T 84.15) (h) "the whole thing has been bastardized by his presence". (T 84. 21) (i) "a psychiatrist running the show" (T 84.28) (j) "the views articulated are advocacy in the extreme". (T 84.31) (k) "I'm flabbergasted about his attendance". (T 84.48) (I) "I know its not evidence in the proceeding but I have got a real reservation about whether I'd accept it on any issue in these proceedings to be put before me as something upon which I should base any decisions in the proceeding". (T 85.5)
14. Mr Windsor, who had had no meaningful notice of the disqualification application, made extremely brief oral submissions, essentially taking the position that the question of disqualification was one for the court. [2]
15. The trial judge adjourned the matter at 10.54am on 18 February 2021 until Friday 19 February 2021 when she published her reasons for declining to recuse herself. [3] Her Honour concluded her judgment at [20] as follows: "I do not accept that taken individually or cumulatively the comments about the difficulties created by the parties requiring Dr Selwyn Smith's presence at the expert surgeons['] liability conclave meet the test for apprehended bias. The application to recuse myself is rejected."
16. Following the delivery of those reasons, Mr Bartley applied for a stay of the proceedings, initially to seek instructions as to whether or not the plaintiff would seek leave to appeal from the recusal refusal and then, after such instructions had been obtained, for a stay pending the hearing of an application for leave to appeal.
17. Much of the balance of Friday 19 February was occupied hearing submissions in relation to the stay application. At the conclusion of those submissions, her Honour indicated that she declined to stay the proceedings and would provide written reasons on the following Monday morning, namely 22 February 2021. The reasons declining a stay were provided on the afternoon of 22 February 2021. [4]
18. A summons seeking leave to appeal to this Court from the decision refusing the recusal application was filed in the course of Monday 22 February 2021, together with a notice of motion seeking a stay of the proceedings in the Common Law Division pending determination of the appeal proceedings.
19. Following consultation with the President, the Registrar informed the parties that, rather than listing the notice of motion for hearing, the summons for leave to appeal would be listed as a matter of urgency the following morning and directions were made for the filing of submissions. The parties were informed on the Monday afternoon that a bench of three judges would be assembled with a view to hearing the application for leave to appeal and the appeal concurrently (if leave were to be granted) given the urgency of the matter and the fact that the trial would otherwise proceed (albeit that the trial judge had indicated that she would not hear the matter whilst the application for leave to appeal was being heard).
20. The application and appeal were heard concurrently on the morning of Tuesday 23 February.

The primary judgment

1. In the course of her reasons in relation to the recusal application, the trial judge identified the relevant principles by reference to authority in this Court and the High Court. In particular, her Honour referred to the decision of Gleeson JA (with whom Emmett JA and Tobias AJA agreed) in Reid v Commercial Club (Albury) Limited [5] (with the emphasis below by underlining having been supplied by the trial judge): "[75] A judge should not sit to determine a case if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question to be determined: Michael Wilson & Partners Limited v Nicholls & Others at [31]. [76] The test of apprehension of bias is objective. It does not require an assessment of the state of mind of the judge, as is necessary on an inquiry about actual bias: Michael Wilson & Partners Limited v Nicholls & Others at [33]. Accordingly, this Court is not required or permitted to form a view as to whether the primary judge could be relied upon to determine the case impartially and on the evidence before her: Rouvinetis v Knoll [2013] NSWCA 24 at [24] per Basten JA (Ward and Barrett JJA agreeing). [77] An allegation of apprehended bias requires an objective assessment of the connection between the facts and circumstances said to give rise to the apprehension and the asserted conclusion that the judge might not bring an impartial mind to bear upon the issues that are to be decided. The question is not whether the judge had in fact prejudged an issue: Michael Wilson & Partners Limited v Nicholls & Others at 446 [67]. [78] It is necessary to keep in mind that claims of apprehension of bias are to be considered in the context of ordinary judicial practice. Active case management, as part of modern litigation, often requires that trial judges intervene in the conduct of cases. Judges are not expected to wait until the end of the case before they start thinking about the issues, or to sit mute while evidence is advanced and arguments are presented. Accordingly, the expression of tentative views, which reflect a certain tendency of mind of the judge, are not on that account alone to be taken to indicate prejudgment. Moreover, counsel are usually assisted by hearing the judges' tentative opinions on matters in issue and being given an opportunity to deal with them: Johnson v Johnson [2008] HCA 48; 201 CLR 488 at [13] (a case of alleged apprehension of bias) which referred to earlier comments in Vakauta v Kelly [1989] HCA 44; 167 CLR 568 at 571 (a case where actual bias was alleged)."

Appellate jurisdiction

1. An important preliminary issue is whether or not an appeal lies from the trial judge's refusal to recuse herself on the ground of apprehended bias.
2. The appellate jurisdiction of this Court is conferred by statute. Relevantly with respect to proceedings in a Division of the Court, it is conferred by s 101 of the Supreme Court Act 1970 (NSW), in the following terms: 101 Appeal in proceedings before the Court (1) Subject to this and any other Act and subject to the rules, an appeal shall lie to the Court of Appeal from - (a) any judgment or order of the Court in a Division, and (b) without limiting the generality of paragraph (a) - (i) any opinion, decision, direction or determination of the Court in a Division on a stated case, (ii) any exercise of a power to which section 24 applies, and (iii) any determination of the Court in a Division in proceedings remitted under subsection (4) of section 51.
3. The Act presently contains no definition of the phrase "judgment or order", or its constituent parts. In its original form, s 19 provided an expansive definition, but, in Barton v Walker, [7] Samuels JA (with the agreement of Reynolds and Glass JJA) concluded that the definition did not assist in determining whether refusal of a recusal application constituted a "judgment". [8] Samuels JA continued: "The order, which the appellants contend was made, was not entered …. However, the only formal disposal of the proceeding which could have occurred was his Honour's decision to reject the appellants' request; and, if that request were an application in the strict sense, then that decision would certainly have constituted an order …. The matter is best approached, therefore, by considering whether the appellants' request … amounted to a justiciable application. If the appellants were seeking to make an interlocutory application 'in or for the purposes of or in relation to' the proceedings commenced by their statement of claim, they should have made it by motion … of which, in the ordinary case, notice should have been given. No notice of motion was filed. But it is not uncommon for the Court to entertain a motion for certain orders without notice …."
4. After considering aspects of principle and practice with respect to the making of requests for recusal, Samuels JA concluded: [9] "What emerges from these authorities is that, even where an interlocutory procedure has been established for disqualification on the ground of actual bias, the public interest in the expeditious administration of justice is seen to militate against interlocutory appeals (or their equivalent) where all questions at issue may be determined upon an appeal after final judgment. But in the end this first question is determined by what was said by the majority in Watson's Case: [10] 'It was submitted on behalf of the husband that the wife's proper remedy was to appeal to the Full Court of the Family Court. As to that submission no more need be said than that an appeal lies only from a "decree" …, which means a "decree, judgment or order" …, and a judge who simply continues to sit after it has been submitted that he is disqualified does not thereby make a "decree".' Nor does he make an order, I would think, if he announces that he will sit, or gives reasons for deciding to do so. I do not consider that any order was made in the present case from which an appeal can be brought."

Did the trial judge err in refusing to recuse herself?

Relevant principles

1. The first stage of the two stage Ebner test requires the identification of what it is said might lead a judge to decide a case other than on its legal and factual merits whilst the second requires an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits.
2. No issue was taken with the trial judge's identification of the legal principles relevant to a disqualification application on the grounds of apprehended bias. Rather, the challenge was to her Honour's evaluative conclusion that the test for apprehended bias was not satisfied in the present case.
3. To the passages from the authorities extracted and emphasised by the trial judge (see [23]-[24] above) may be added the following propositions: 1. the application of the apprehended bias rule depends on the circumstances of each case; [23] 2. the fair-minded lay observer is an hypothetical figure, founded in the need for public confidence in the judiciary; [24] 3. there is an unavoidable level of imprecision in the standard of what a fair-minded lay observer "might" apprehend, such that a fanciful or speculative possibility must be clearly distinguished from the requisite "firmly-established" apprehension of bias; [25] 4. a finding of apprehended bias is not to be reached lightly; [26] 5. this is because the training, tradition and oath or affirmation of a professional judge require him or her to discard the irrelevant, the immaterial and the prejudicial; [27] 6. the duty of a judge to disqualify for proper reasons is matched by an equally significant duty to hear any case in which there is no proper reason to disqualify; [28] 7. the fair-minded lay observer is presumed to approach the matter on the basis that ordinarily the judge will act so as to ensure both the appearance and the substance of impartiality, [29] such that 8. the rebuttal of this presumption requires a "realistic possibility" of the apprehension of bias which is not "fanciful or extravagant" but is based on "the established facts" of the matter; [30] 9. "neither complacent nor unduly sensitive or suspicious", the fair-minded lay observer may have a level of scepticism as to professional pretensions, but will be cognisant of and vigilant against his or her own prejudices; [31] 10. the inquiry as to whether a judge might reasonably be apprehended to deviate from bringing an impartial mind to the resolution of a particular issue "requires no prediction about how the judge … will in fact approach the matter" and "admits of the possibility of human frailty"; [32] 11. the fair-minded lay observer is not presumed to reject the possibility of pre-judgment of a matter, otherwise an apprehension of bias would never arise in the case of a professional judge; [33] however, 12. interventionist comments or conduct by a judge will not unilaterally create an apprehension of bias in the mind of the reasonable lay observer, who is taken to understand that such interventions are often motivated by the judge's desire to understand the evidence and to advance the trial process; [34] 13. it is "difficult, and probably impossible, to state in the abstract, in a manner suitable for application to cases generally, the degree of knowledge to be attributed to a fair-minded observer"; [35] 14. there is to be attributed to the fair-minded observer a broad knowledge of the material objective facts as ascertained by the appellate court [36] and the "actual circumstances of the case" [37] as though the observer was sitting in the court; [38] 15. the fair-minded lay observer is taken to know the nature of the decision, the circumstances which led to the decision and the context in which it was made; [39] 16. the context which must be considered includes the legal, statutory and factual context in which the decision is made, [40] and "the totality of the circumstances", [41] although the fair minded lay observer will not be taken to have a detailed knowledge of the law or legal principles; [42] 17. the knowledge that the fair minded observer is taken to have is not limited to those facts and matters that were known at the time of an application for recusal and includes published statements made by the judge (whether prior, contemporaneous, or subsequent to the recusal application); [43] 18. the fair-minded lay observer will not act on "insufficient knowledge", but will "inform himself [or herself]" of the relevant circumstances, without making "snap judgments"; [44] 19. the judge's own view about his or her ability to decide the case independently and impartially, as recorded in any reasons for dismissing a recusal application, carries little weight in the fair mind of the hypothetical lay observer, [45] although 20. statements in a recusal judgment regarding factual matters, including the particular context of the comments or conduct in question, may be relevant; [46] 21. the fair-minded lay observer would not reasonably apprehend bias on the part of a judge from a short and emotional exchange taken out of context and weighed in isolation; [47] 22. the fair-minded lay observer will have regard to the cumulative effect of comments made by a judge and not to particular individual statements removed from their context; [48] and 23. subsequent statements made by a judge, following the comments or conduct said to give rise to a reasonable apprehension of bias, may indicate that an earlier expressed statement or impression was not final or that the judge had not committed to a particular point of view. [49]

Consideration

1. In the present case, the various statements set out in [15] above from the exchange between the trial judge and Mr Bartley in the course of consideration of his amendment application were properly identified by the applicant in accordance with the first stage of the two stage Ebner test as matters that might be apprehended to lead the trial judge to decide the case other than on its legal and factual merits.
2. The logical connection between those matters and the feared deviation from a decision on the merits was said to be that the trial judge had taken a set against a particular expert witness to be called by the applicant, namely Dr Selwyn Smith, and that that meant that her Honour might be perceived as being unlikely to consider and take into account his evidence, when ultimately admitted, in a fair, balanced and impartial way. This would of course be to the applicant's great detriment.
3. The starting point of the analysis must be that the various statements listed in [15] above should not be considered or viewed in isolation or taken out of the context in which they were made. That context is very important.
4. A reasonable observer of the exchange between the trial judge and Mr Bartley would have observed and or be taken to know of or to have informed him or herself of the following matters: 1. at the time that the exchange upon which the applicant relies occurred, the trial judge was not ruling on the admissibility of either the joint report or any expert report of Dr Selwyn Smith and would know that that would occur later in the course of the trial; 2. the trial judge had only received the joint report earlier that day and had had only a short period of time in which to read it, with her responses to it necessarily impressionistic; [50] 3. the trial judge was "flagging" initial concerns she had with the joint report because Mr Bartley had indicated that he would be relying on it to some extent to support or explain his amendment application; [51] 4. the conclave process was for the purpose of experts in the same discipline identifying in a joint report points of agreement and disagreement between them with a view to facilitating the trial process; 5. the role of an expert was to assist the Court and not to be an advocate in the interests of the party in whose case the expert was providing evidence; 6. the trial judge had responsibility for managing the trial in order to facilitate: ● the just determination of the proceedings; ● the efficient disposal of the business of the court; ● the efficient use of available judicial and administrative resources; and ● the timely disposal of the proceedings, and all other proceedings in the court, at a cost affordable by the respective parties; [52] and 1. that this included a desire to understand the evidence and to advance the trial process; [53] 2. that the trial judge was proceeding on the footing, based upon her understanding of the case as opened to that point in time, that no psychiatric issues were relevant to the issues of liability [54] and that Dr Smith was only being called to give evidence on the topic of the sequelae of the allegedly negligent surgery; [55] 3. on the basis of that understanding, the parties should not have agreed to Dr Selwyn Smith being party to the expert conclave on issues of liability; 4. that, to the extent that Dr Smith had contributed to the joint report and conclave, the trial judge's impression was that he had dominated it and had argued forcefully for his point of view in what he had written in a manner that was not appropriate for an expert witness; 5. that if and to the extent that the trial judge was wrong in her understanding as to the relevance and role of the psychiatric evidence to be given by Dr Smith in the case, that would be pointed out to her by competent counsel; 6. that if a judge has proceeded on a misapprehension or mistaken view about a matter and that was pointed out to him or her, the judge would acknowledge that misconception and proceed in accordance with a correct understanding of the case or aspect of the case; 7. that the trial judge had not reached a final or concluded view about the matters in relation to which she had expressed her views.

Endnotes

1. (2009) 239 CLR 175; [2009] HCA 27.
2. Tcpt, 17 February 2021, p 97.45.
3. Polsen v Harrison (No 2) [2021] NSWCA 111.
4. Polsen v Harrison (No 3) [2021] NSWSC 125.
5. [2014] NSWCA 98 at [75]-[78].
6. (2006) 229 CLR 577; [2006] HCA 55 at [110]-[112].
7. [1979] 2 NSWLR 740.
8. Barton at 747E.
9. Barton at 751B-D.
10. The Queen v Watson; Ex parte Armstrong (1976) 136 CLR 248 at 266; [1976] HCA 39.
11. Barton at 758C.
12. Barton at 759A.
13. (2011) 244 CLR 427; [2011] HCA 48 (Gummow ACJ, Hayne, Crennan and Bell JJ).
14. [1979] 2 NSWLR 740 at 750. See also R v Watson; Ex parte Armstrong (1976) 136 CLR 248 at 266 per Barwick CJ, Gibbs, Stephen and Mason JJ; Rajski v Wood (1989) 18 NSWLR 512; Australian National Industries Ltd v Spedley Securities Ltd (In liq) (1992) 26 NSWLR 411.
15. [1979] 2 NSWLR 740 at 751.
16. (2000) 205 CLR 337 at 343-345 [3]-[7].
17. (1994) 52 FCR 48 at 64 per Gummow and Heerey JJ. See also Brooks v Upjohn Co (1998) 85 FCR 469 at 475-476.
18. Gas & Fuel Corporation Superannuation Fund v Saunders (1994) 52 FCR 48 at 58.
19. Michael Wilson at [86].
20. Michael Wilson at [74] (and heading). Heydon J expressly reserved questions as to waiver and about the correctness of Barton v Walker: Michael Wilson at [118].
21. [2012] NSWCA 8.
22. See fn 65 at [82].
23. British American Tobacco Australia Services Ltd v Laurie (2011) 242 CLR 283; [2011] HCA 2 at [133]; Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70 at 87-88; [1990] HCA 31 (Laws).
24. Webb v The Queen (1994) 181 CLR 41 at 73; [1994] HCA 30 (Webb); Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48 at [12] (Johnson); Grollo v Palmer (1995) 184 CLR 348 at 394; [1995] HCA 26; North Australian Aboriginal Legal Aid Service Inc v Bradley (2004) 218 CLR 146; [2004] HCA 31 at [29].
25. Re JRL; Ex parte CJL (1986) 161 CLR 342 at 352 (Re JRL); [1986] HCA 39;; Tarrant v R [2018] NSWCCA 21 at [12].
26. Re JRL at 371; [1986] HCA 39; CNY17 v Minister for Immigration and Border Protection (2019) 94 ALJR 140; [2019] HCA 50 at [56] (CNY);