Polsen v Harrison

Supreme Court of NSW|2021-02-18|Before: Lonergan J, Gummow ACJ, Crennan Bell JJ

Judgment

Yesterday morning, under the shadow of a yet to be heard application to extensively amend a Further Amended Statement of Claim in a complex medical negligence matter on day three of the trial, an application has been made by the plaintiff for me to recuse myself on the ground of apprehended bias.
The basis of the application concerns comments made in Court by me on Wednesday afternoon as to the role played by a psychiatrist, Dr Selwyn Smith, in a joint liability conclave he attended with eight surgeons, in a case concerning the liability of a surgeon for bariatric surgery performed in 2013.
Senior Counsel for the plaintiff advised the Court that the joint report from the liability conclave, received by the Court on Wednesday morning, would be relied upon to support the application to amend the Further Amended Statement of Claim.
Given that stated position, I flagged with the parties what I saw to be potential problems with the deployment of that joint report created by the presence at the conclave of Dr Selwyn Smith who, in that context, commented on questions of liability that were in my view the province of surgical experts not psychiatrists, and the additional problem that the four surgeons retained by the plaintiff and Dr Selwyn Smith were noted by the convener of the conclave to have been given an additional and different set of assumptions to those held by the four surgeons who attended on behalf of the defendant.
In that context I sought the assistance of counsel and made a number of observations about the joint conclave process and resulting report, some of which have been raised by Senior Counsel for the plaintiff as providing a basis for a fair minded lay observer to apprehend that I might not bring an impartial mind to the resolution of a question for decision at the trial: Michael Wilson & Partners Limited v Robert Colin Nicholls & Ors (2011) 244 CLR 427; [2011] HCA 48 at [68] per Gummow ACJ, Hayne, Crennan Bell JJ.

The observations in issue

At 3:50pm on Wednesday 17 February 2021, the Court re-convened for the plaintiff's counsel to provide an update regarding the progress of the preparation of the proposed application to amend. After a discussion about the documentation that had just been forwarded to chambers, this exchange occurred: 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 (emphasis added).
Senior Counsel for the plaintiff submitted that these were views expressed before there was any evidence in the case, views expressed unsolicited by the seeking of any order by a party in relation to the joint conference and without knowing that Dr Selwyn Smith's presence and participation in four questions at the conference was by consent.
I do not accept that this accurately describes the situation. First, the Court was well-aware that the only way Dr Selwyn Smith could have been present at the conclave was with the agreement of both parties. Second, the plaintiff's Senior Counsel made it very clear that the plaintiff intended to deploy the liability conclave joint report in support of her application to amend which was to be heard the next morning. The admissibility and or use to which the joint report could or should be put is a matter subject to Uniform Civil Procedures Rules 2005 (NSW) ("UCPR") 31.26 and the discretions set out in UCPR 31.24. This had become a live and pressing issue and the problems with the report were flagged in that context to ensure counsel were prepared to deal with it the next day.
The submission was made that a fair minded lay observer, hearing those comments about a witness of importance in the plaintiff's case, might legitimately have some degree of concern as to whether the tribunal would pay less attention at the trial to the opinions of Dr Selwyn Smith than the opinions of others. That fair-minded observer might think that Dr Selwyn Smith's opinions will be treated in a different category by the Court and that he is in a category of an expert who does not take seriously his obligation to the Court, given his conduct has led to a "car crash", his conduct "bastardised" the whole conference and who in his conduct in the conference, behaved in a way that the Court described as "advocacy in the extreme".
It was submitted that Dr Selwyn Smith is the only expert who will be called in the plaintiff's case regarding the psychiatric sequelae of the physical injuries suffered by her. Taken cumulatively, a fair-minded lay observer must at least have sown in their minds objectively the seeds of doubt about Dr Selwyn Smith being treated in a different category from other experts called in the case.

Other issues raised about the joint liability report

For context and completeness I include the exchange that followed on from the observations in issue: BARTLEY: Perhaps I could flag also at this stage and I don't want to take up any of your Honour's time at the moment, but in relation to the rehabilitation experts, the plaintiff will, I think, probably want to raise an appropriate time the issues relating to the input by way of the video, the eight hours of video. HER HONOUR: That happened, didn't it? That was by agreement? BARTLEY: Well yes but I'm seeking detailed instructions as to it, but there were problems with linkages to - apparently there were two electronic files. One had 20 minutes of activity that was of interest, from the defendant's point of view. There was an eight hour version of it as well and now that the joint conference is over, my instructing solicitor is seeking confirmation from at least some of the attendees, just how much of the film was accessible to them and of course the use that was taken. I will be suggesting, I will be submitting that whereas film, as we understood it, when it was used extensively, was shown to the plaintiff and it was used to challenge her credit and it was used, et cetera, et cetera, that was done in court and could be answered, it was normally put to the plaintiff of course, but to show that we were flagging an issue that showing it to experts who don't have the sophisticated approach to film that a court would take may be an issue. HER HONOUR: I don't know about them not having a sophisticated approach. I've glanced at that report and I see, from the tone of it, that the experts took a particular approach, they felt there'd been a lack of veracity on the part of the plaintiff in the way she presented herself. That's a whole other issue and we can deal with that when we come to it. But I thought it was by agreement that the film went to the conclave and that that was an issue that was flagged that I didn't have to deal with in the end. BARTLEY: I don't think there's any problem about how it got to them, but it's the extent (a) to which they actually took it into account and (b) there are the black and white views of the - the experts are not familiar with this sort of thing and - HER HONOUR: I don't know if that's actually a correct statement, but can I say this, I get the flavour of what you're saying and that that, like any of the joint reports in this matter, is not in evidence unless and until somebody tenders it, and you might want to be heard about that. BARTLEY: Yes. The other issue with the film of course is - and your Honour, with respect, has picked up on this - whether or not the plaintiff's credit was a matter for their decision is very much a moot point. HER HONOUR: That's my interpretation of what they're saying, but it seemed to me they were saying, "This is inconsistent with what she told us she could do." Anyway, that's an issue for later and thank you for flagging it. BARTLEY: It is indeed. I'm sorry, whilst we're on the topic, I thought I'd raise it. HER HONOUR: No, that's all right, I'm content for you to flag it and I understand why you would. The other thing that worried me about the joint liability report is that at some point it became evident that some of the group had a document prepared by your side of things and the other side didn't have it and so that means that the assumptions, which are complicated in this case and significant, were inconsistently provided to the group. I mean, really it's a bit of a - BARTLEY: It's one of the issues. HER HONOUR: Well, I thought the procedure, and it certainly was when I was involved in them with a hands‑on role, was to ensure every expert had exactly the same material and under no circumstances should any expert be provided from one side or the other with other material, it just might undermine the whole process and I think that might be something we have to look at later. BARTLEY: Indeed. And the threshold issue, I think in general terms, is the fact that it was, with all due respect to the charms of the audio visual world, when the doctors were all in one room together and they could see what they all had, it worked better, but I think probably everybody in the joint liability conference was AV, material was being supplied to them digitally, sometimes one party would be supplied, sometimes the other, so - HER HONOUR: Well, it's just the person mediating that conference has bothered to include in the report a concern that that seemed to be creating some of the differences in answers. That's a good reason to have a mediator there, but anyway, I wanted to flag that because it's problematic. BARTLEY: Yes, I'm obliged because it gave me the opportunity to say a couple of things too. So I'll get the authorities that we seek to rely upon and those extracts, the authorities and the passages to your Honour by 5 o'clock.

Principles

Gleeson JA (with whom Emmett JA and Tobias AJA agreed) usefully set out the test for apprehended bias in Reid v Commercial Club (Albury) Limited [2014] NSWCA 98 at [75] to [78]: "[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] (emphasis added). [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). (Emphasis added)
CNY17 v Minister for Immigration and Border Protection & Anor [2019] HCA 50 at [17], [21], [56] to [58] also provides useful statements of principle: "[17] What the bias rule requires of the Authority is that its conduct and that of the Minister and the Secretary is never such that a fair-minded lay observer properly informed as to the nature of the procedure for which Pt 7AA provides might reasonably apprehend that the Authority might not bring an impartial and unprejudiced mind to the resolution of the factual and legal questions that arise for its decision in the conduct of a review. That adaptation to the scheme of Pt 7AA of the standard formulation of the bias rule29 has a number of elements which warrant further exposition. [21] Establishment of an apprehension of bias on the part of the Authority then requires the taking of two essential steps: first, identification of the factor which it is postulated might have led the Authority to have decided the review otherwise than on an independent and impartial evaluation of the merits; and, second, articulation of how that factor might have led the Authority to have decided the review otherwise than on an independent and impartial evaluation of the merits [35]. Taking those two steps is necessary to provide the foundation for the third and critical step in the application of the bias rule. That is the step of assessing whether the fair-minded lay observer might reasonably apprehend in the totality of the circumstances that the articulated departure might have occurred [36]. In taking that third step, "it is the court's view of the public's view, not the court's own view, which is determinative" [37]. [56] The test for apprehended bias is whether "a fair-minded lay observer might reasonably apprehend that the [decision-maker] might not bring an impartial mind to the resolution of the question the [decision-maker] is required to decide" [64]. A finding of apprehended bias is not to be reached lightly [65]. The determination of whether an apprehension of bias is "reasonable" is not assisted by philosophical conceptions of the varieties of seriousness or materiality. [57] The test has two steps. First, one must identify what it is that might lead a decision-maker to decide a case other than on its legal and factual merits [66]. What is said to affect a decision-maker's impartiality? Partiality can take many forms, including disqualification by direct or indirect interest in the proceedings, pecuniary or otherwise; disqualification by conduct; disqualification by association; and disqualification by extraneous information [67]. As Deane J said in Webb v The Queen, in relation to disqualification by extraneous information, "knowledge of some prejudicial but inadmissible fact or circumstance [may give] rise to [an] apprehension of bias" [68]. Second, a logical connection must be articulated between the identified thing and the feared deviation from deciding the case on its merits [69]. How will the claimed interest, influence or extraneous information have the suggested effect? [58] In applying the test, "it is necessary to consider ... the legal, statutory and factual contexts in which the decision is made" [70]. It is also necessary to consider "what is involved in making the decision and the identity of the decision-maker" [71]. This draws attention to the fact that the test must recognise "differences between court proceedings and other kinds of decision-making" [72]. The fair-minded lay observer knows the nature of the decision, the circumstances which led to the decision and the context in which it was made [73]. The fair-minded lay observer has "a broad knowledge of the material objective facts ... as distinct from a detailed knowledge of the law or knowledge of the character or ability of the [decision-maker]" [74]."
Further consideration was provided in Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55; at [110] to [112]: "[110] The appeal involves the application of well-established principles, which were not in dispute and were both reiterated and explained in Ebner v Official Trustee in Bankruptcy [119] in the joint reasons of Gleeson CJ, McHugh, Gummow and Hayne JJ: "Where, in the absence of any suggestion of actual bias, a question arises as to the independence or impartiality of a judge ..., a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide. That principle gives effect to the requirement that justice should both be done and be seen to be done, a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial. It is convenient to refer to it as the apprehension of bias principle ... The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty. Its application requires two steps. First, it requires the identification of what it is said might lead a judge ... to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits." [111] In assessing the logical connection between a matter complained of and any deviation from deciding a case on the merits, (the "second step" in Ebner v Official Trustee in Bankruptcy [120]) it is important to bear in mind the characteristics of modern litigation as recognised by Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ in Johnson v Johnson [121]: "Whilst the fictional observer, by reference to whom the test is formulated, is not to be assumed to have a detailed knowledge of the law, or of the character or ability of a particular judge, the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice. The rules and conventions governing such practice are not frozen in time. They develop to take account of the exigencies of modern litigation. At the trial level, modern judges, responding to a need for more active case management, intervene in the conduct of cases to an extent that may surprise a person who came to court expecting a judge to remain, until the moment of pronouncement of judgment, as inscrutable as the Sphinx. In Vakauta v Kelly, Brennan, Deane and Gaudron JJ, referring both to trial and appellate proceedings, spoke of 'the dialogue between Bench and Bar which is so helpful in the identification of real issues and real problems in a particular case'. Judges, at trial or appellate level, who, in exchanges with counsel, express tentative views which reflect a certain tendency of mind, are not on that account alone to be taken to indicate prejudgment. Judges are not expected to wait until the end of a case before they start thinking about the issues, or to sit mute while evidence is advanced and arguments are presented. On the contrary, they will often form tentative opinions on matters in issue, and counsel are usually assisted by hearing those opinions, and being given an opportunity to deal with them." [112] Sometimes judicial interventions and observations can exceed what is a proper and reasonable expression of tentative views. Whether that has happened is a matter of judgment taking into account all of the circumstances of the case [122]. However, one thing that is clear is that the expression of tentative views during the course of argument as to matters on which the parties are permitted to make full submissions does not manifest partiality or bias [123]. (Emphasis added)

Decision

One issue of the many live issues in the proceedings is the assessment of the psychiatric sequelae of the defendant's negligence. Dr Selwyn Smith is the plaintiff's sole medico-legal expert in that regard, there being no evidence from any treating psychiatrist or psychologist. His role in the proceedings is thus not unimportant, but the context of my comments about his presence at the liability conclave says nothing at all about the credence and respect with which his relevant expert evidence will be treated.
Senior Counsel for the plaintiff was at pains to point out that what was in fact in my mind at the time of the exchange is irrelevant to the objective test to be applied and it forms no part of my consideration of the plaintiff's application that I in fact hold no pre-conceived view or judgment about the content of Dr Selwyn Smith's expert views in the proceedings at all.
Given the objective test provided by the authorities, it is no part of my determination that if such an apprehension is or might be reasonably held by a fair minded lay observer, it would be wrong.
Having reviewed the authorities cited by Senior Counsel for the plaintiff: Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427; [2011] HCA 48; Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48; Chamoun v District Court of New South Wales [2018] NSWCA 187; British American Tobacco Australia Services Ltd v Laurie (2011) 242 CLR 283; Barakat v Goritsas (No 2) [2012] NSWCA 36; Isbester v Knox City Council (2015) 255 CLR 135; [2015] HCA 20 and having considered the authorities provided for my assistance by Senior Counsel for the defendant: Wehbe v Minister for Home Affairs (2018) 361 ALR 1; [2018] HCA 50; Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; 2006); [2006] HCA 55, I have formed the view that the cumulative effect of the exchange set out in full in [6] above does not meet the test that what I have said might reasonably cause a fair-minded lay observer to apprehend that I might not bring an impartial mind to the resolution of a question for decision at the trial - namely the credibility, usefulness and weight to be given to the evidence of Dr Selwyn Smith.
Whilst acknowledging the fact that the test addresses the chance that a fair- minded lay observer would apprehend that I might not bring an impartial mind to the resolution of a question for decision at the trial, that apprehension still needs to be a reasonable apprehension. The context of the comments in issue was clearly one of case management, alerting counsel to issues which would require addressing first thing the next morning, before the pressing application for leave to substantially amend could be entertained. Additional context is that the trial could not proceed until these matters were clarified and determined. Expressing preliminary views robustly, and seeking assistance from counsel about those tentative views does not indicate pre-judgment. It is part of ordinary judicial function and practice to articulate potential problems to ensure counsel are on notice of concerns and can use out of Court time to think about them and assist the Court by addressing them.
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.

Amendments 23 February 2021 - Typographical error in paragraph 19. The word "not" has been inserted between the words "might" and "bring". 23 February 2021 - DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 23 February 2021

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