Polsen v Harrison

Supreme Court of NSW|2021-03-02|Before: Lonergan J

Judgment

On day 11 of this medical negligence trial, and what was to be day four of the plaintiff's cross-examination, the plaintiff, without notice to the Court, made a second application that I recuse myself.
The order sought in the Notice of Motion filed in Court on 3 March 2021, pursuant to leave, is framed as an order that "Lonergan J is disqualified from presiding over the proceedings".
The basis of this application was stated to be that my tipstaff, Ms Quinlivan, was formerly an employed solicitor at the firm of solicitors acting for the defendant, HWL Ebsworth, and that on one occasion, in February 2019, she attended a directions hearing before the Registrar at which there was some debate about timetabling of preparation steps then being undertaken.
Based on the submissions relied upon by the plaintiff and the authorities stated by senior counsel for the plaintiff, Mr Bartley SC, to be supportive of the application, I interpreted this application to be a request to recuse myself from hearing the matter any further on the basis of apprehended bias.

The evidence

The plaintiff relied upon an affidavit of Tonya Teresa Longmore, a solicitor employed by Commins Hendriks Solicitors. She deposed to having undertaken a review of the file and noted a letter from Ms Carruthers, HWL Ebsworth dated 5 February 2019, signed as "special counsel". The letter is appended to the affidavit and dealt with timetabling and complaints regarding late service of evidence on the part of the plaintiff. The letter noted that a guillotine order in relation to service of further expert evidence from the plaintiff would be sought at the directions hearing. It also noted that Ms Quinlivan would be attending the directions hearing on 6 February 2019 on behalf of the defendant.
Ms Longmore deposed to a belief that on 6 February 2019 the matter was "not dealt with by Registrar Bradford by consent". She does not state the basis for that belief or what it is that she reviewed on the file that led her to that conclusion or to what matter the "absence of consent" pertained. She does not depose to having been present at the directions hearing - indeed her observations suggest that she was not present. She does not refer to a conversation with anyone who was present, as the basis for her assertions.
Ms Longmore annexed Supreme Court Practice Note SC CL-7 which includes the following: Representation 21. Each party not appearing in person must be represented at any conference hearing by a barrister or a solicitor familiar with the subject matter of the proceedings and with instructions sufficient to enable all appropriate orders and directions to the made."
An extract from the transcript of the trial is also annexed where I raised with counsel for their consideration the fact that an expert rheumatologist relied upon by the plaintiff attended high school with me. In that transcript I noted that I have not seen her for 12 years and I have never had any dealings with her in a professional context, but thought I should put that on the record in case it is mentioned that she knows me. I also noted that I did not see it as a problem and that I have never discussed with her anything to do with her occupation or mine.
Also annexed was an extract from the Supreme Court website describing the process for applying for a position as tipstaff or associate to the Supreme Court, and broadly their functions.
Mr Bartley requested that I take into account on the application that when his client Ms Polsen was informed of the role a tipstaff has in assisting a judge in legal research and the like, and was told that my current tipstaff had worked for the defendant's firm in the past, his client said "How can that be fair?"

Submissions

Mr Bartley submitted that on 6 February 2019, competing sets of orders and submissions were advanced on behalf of Ms Polsen and Dr Harrison as well as the then second defendant the Murrumbidgee Local Health District and that Registrar Bradford was "required to give consideration to the competing positions being advanced and determine the orders to be made". No evidence was tendered on the application in support of that being the position, however I take that assertion in the written submissions at face value for the purposes of determining this application.
The disclosure I made in respect of Dr Bleasal set out in paragraph 8 above is noted to be the only disclosure made in the course of the hearing to date.
Mr Bartley submitted that the test by which I should decide whether to disqualify myself is set out in the joint judgment of Gleeson CJ McHugh, Gummow and Hayne JJ in Ebner v The Official Trustee in Bankruptcy [2000] 205 CLR 337 ("Ebner") at [6] and [7]: "[6] Where, in the absence of any suggestion of actual bias, a question arises as to the independence or impartiality of a judge (or other judicial officer or juror), as here, the governing principle is that, subject to qualifications relating to waiver (which is not presently relevant) or necessity (which may be relevant to the second appeal), 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. [7] The apprehension of bias principle may be thought to find its justification in the importance of the basic principle, that the tribunal be independent and impartial. So important is the principle that even the appearance of departure from it is prohibited lest the integrity of the judicial system be undermined. There are, however, some other aspects of the apprehension of bias principle which should be recognised. Deciding whether a judicial officer (or juror) might not bring an impartial mind to the resolution of a question that has not been determined requires no prediction about how the judge or juror will in fact approach the matter. The question is one of possibility (real and not remote), not probability. Similarly, if the matter has already been decided, the test is one which requires no conclusion about what factors actually influenced the outcome. No attempt need be made to inquire into the actual thought processes of the judge or juror." (footnotes omitted).
Mr Bartley submitted that the manner in which the principle is to be applied is set out in Ebner at [8]: "[8] 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 (or juror) 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. The bare assertion that a judge (or juror) has an "interest" in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed."
Mr Bartley submitted that the following collected statements of principle in the following cases, lead to the inexorable conclusion that I must disqualify myself from continuing to hear the proceedings: (i) Vakuata v Kelly (1989) 167 CLR 568; [1989] HCA 44; [5] Where such comments which are likely to convey to a reasonable and intelligent lay observer an impression of bias have been made, a party who has legal representation is not entitled to stand by until the contents of the final judgment are known and then, if those contents prove unpalatable, attack the judgment on the ground that, by reason of those earlier comments, there has been a failure to observe the requirement of the appearance of impartial judgment. By standing by, such a party has waived the right subsequently to object. The reason why that is so is obvious. In such a case, if clear objection had been taken to the comments at the time when they were made or the judge had then been asked to refrain from further hearing the matter, the judge may have been able to correct the wrong impression of bias which had been given or alternatively may have refrained from further hearing. It would be unfair and wrong if failure to object until the contents of the final judgment were known were to give the party in default the advantage of an effective choice between acceptance and rejection of the judgment and to subject the other party to a situation in which it was likely that the judgment would be allowed to stand only if it proved to be unfavourable to him or her. … [10] I accept the observation of McHugh J.A. in the instant case that "in the case of a professional judge whose training, tradition and oath or affirmation require him to discard the irrelevant, the immaterial and the prejudicial, a conclusion that there is a reasonable apprehension that he is biased should not be drawn lightly". In effect, that is what this Court said in Livesey, at p 299. And it is true, as Clarke J.A. pointed out, that it is a "reasonable apprehension" with which the court is concerned. And, if it adds anything, it is such an apprehension in "a fair-minded observer": Livesey, at p 294. But, in this regard, the public perception of the judiciary is not advanced by attributing to the reasonable or fair-minded observer a knowledge of the law and an awareness of the judicial process that ordinary experience suggests not to be the case. Such an observer, on being told the nature of the litigation in the present case and then being told of his Honour's remarks, is unlikely to conclude that his Honour was showing no bias against the appellant's potential witnesses and in turn against the appellant's case as to the extent of the respondent's disabilities. On the contrary, the observer is likely to conclude that his Honour would approach the assessment of damages with a strongly held opinion that the evidence of the appellant's medical witnesses (which he had not heard) would almost certainly be loaded against the respondent and therefore be worthy of little credence. To take but one example, his Honour's reference to asking counsel for the appellant "whether the GIO, instead of referring the plaintiff to its usual panel of doctors who think you can do a full weeks work without any arms or legs, had done something useful in this case by sending the plaintiff to a specialist in rehabilitation" could have left no member of the public in doubt as to the reliance likely to be placed by his Honour on the medical evidence to be adduced by the appellant. As to the level of sophistication that should be attributed to the reasonable or fair-minded observer, see Kirby P. in S & M Motor Repairs v Caltex Oil (1988) 12 NSWLR 358, at pp 375-376. (ii) Ebner v The Official Trustee in Bankruptcy [2000] 205 CLR 337; [2000] HCA 63 [20] This is not to say that it is improper for a judge to decline to sit unless the judge has affirmatively concluded that he or she is disqualified. In a case of real doubt, it will often be prudent for a judge to decide not to sit in order to avoid the inconvenience that could result if an appellate court were to take a different view on the matter of disqualification. However, if the mere making of an insubstantial objection were sufficient to lead a judge to decline to hear or decide a case, the system would soon reach a stage where, for practical purposes, individual parties could influence the composition of the bench. That would be intolerable. … [84] The test for the appearance of bias was formulated in a series of cases decided by reference to common law principles and without regard to the role of Ch III of the Constitution. However, in my view, that test properly reflects the requirement of Ch III. What is in issue is not bias, but the appearance of bias. And as a practical matter, that can only be determined by reference to considerations of reasonableness and fairmindedness. And because the ultimate rationale for the requirement that courts appear to be impartial is the maintenance of public confidence in the administration of justice, it is appropriate that the test be formulated by reference to the reasonable apprehension of the hypothetical fair-minded lay observer. (iii) Michael Wilson & Partners Limited v Robert Colin Nicholls & Ors (2011) 244 CLR 427; [2011] HCA 48 [33] Because the test is objective it is important to keep an inquiry about apprehension of bias distinct from any inquiry about actual bias. An inquiry about actual bias in the form of prejudgment would require assessment of the state of mind of the judge in question. No doubt that would have to be done, at least for the most part, on the basis of what the judge had said and done. But to allow an inquiry about whether the judge had in fact prejudged some issue to enter into a debate about what a fair-minded lay observer might apprehend is to introduce considerations that are irrelevant to the issue that is to be decided when a party submits that there is or was a reasonable apprehension of bias. The respondents did not submit in this Court or in the courts below that the trial judge had in fact prejudged any issue. … [80] In this case, if the respondents were right in asserting that there was a reasonable apprehension of bias, the whole of the trial with its attendant expense and use of court time would be wasted. Of course it must be recognised that the respondents in this case had no right to appeal against the refusal of Einstein J to recuse himself. But the respondents did have a right to seek leave to appeal.
Mr Bartley sought to distinguish the circumstances examined in the decisions of Hurley v McDonald's Australia Ltd [2000] FCA 961 ("Hurley") per Dowsett J at [87] and Gaynor v Local Court of NSW & Ors [2019] NSWSC 516 ("Gaynor") per Harrison J, because the factual matters that were considered in those cases were fundamentally different to the present factual matrix. In those cases the staff in issue, an associate and tipstaff respectively, had not previously appeared for a party in the proceedings, nor did they have significant confidential information relevant to the respective proceedings or a particular party. (I interpolate here that the basis for asserting in submissions that Ms Quinlivan had "significant confidential information" was never explained and does not seem to have its origin in any evidence before the Court).
Mr Bartley argued that Ms Quinlivan was "duty bound to act in accordance with Dr Harrison's best interests" and was "privy to significant confidential information concerning the case against Dr Harrison and his defence of it". He does not reference any evidence in support of either submission but as I understand it, says that I should infer it from the circumstances.
Mr Bartley submitted that Practice Note CL7 requires the legal representative to have a certain level of knowledge to enable compliance with the practice note and that the fact that Ms Quinlivan had "acted for" Dr Harrison in the course of these proceedings had not been disclosed by me and that I should have drawn the matter to the attention of the parties: S & M Motor Repairs Pty Ltd v Caltex Oil (Australia) Pty Ltd (1988) 12 NSWLR 358 and Dovade Pty Ltd v Westpac Banking Corporation (1999) 46 NSWLR 168 at [105] to [107].
In terms of application of the test in Ebner, Mr Bartley argued that the asserted connection with the possibility of departure from impartial decision-making is that the fundamental role of a tipstaff, whose role is to provide legal research, in Court duties and other support and to assist judicial officers in their work, means that a fair-minded lay observer might reasonably apprehend that in being assisted by that tipstaff, I might not bring an impartial and unprejudiced mind to the resolution of the questions that I will be called upon to decide, namely the ultimate determination of the proceedings.
It was submitted that the basis for this is that the tipstaff previously "acted for" Dr Harrison and that I had not disclosed this in the course of the hearing and that I may be provided with assistance by the tipstaff in a way that would lead to the relevant apprehension.

Dr Harrison opposes the application: submissions and principles

In opposing the application, Mr Windsor SC also relied upon the statements of principle in Ebner at [6], but emphasised that as stated in CNY 17 v Minister for Immigration and Border Protection (2019) ALJR 140 ("CNY") at [21], it is necessary to identify the factor which is claimed might lead a decision maker to decide the matter otherwise than on an independent and impartial evaluation on the merits, and there must be consideration of the reasonableness of the apprehension of the deviation from a decision on the merits being caused by the identified factor: Ebner at [8].
The evidence should identify how an independent observer might construe the evidence in a way that would cause a party to feel that a judge was possibly unable, or that there was even an appearance that the judge was possibly unable, to bring an impartial mind to the resolution of the dispute: Gaynor at [36].
Mr Windsor submitted that there are four distinct, sometimes overlapping ways in which the impartiality of the Court may be, or may appear to be, compromised: British American Tobacco Australia Services Ltd v Laurie (2011) 242 CLR 283; [2011] HCA 2 at [24]; Webb and Hay v R (1994) 181 CLR 41; [1004] HCA 30 at [25] namely: (i) interest, where the judge has an interest in the proceedings, whether pecuniary or otherwise, giving rise to a reasonable apprehension of prejudice, partiality or pre-judgment; (ii) conduct, where a judge is engaged in conduct in the course of or outside the proceedings, giving rise to the apprehension of bias; (iii) association, where the judge has a direct or indirect relationship, experience or contact with a person or persons interested in, or otherwise involved in the proceedings; and (iv) extraneous information, where the judge has some knowledge of some prejudicial, but inadmissible, fact or circumstance giving rise to the apprehension of bias.
Apprehended bias must be firmly established. The suspicions of the ultrasensitive, paranoid or cynical must not be allowed to determine the legal standard of impartiality. A vague sense of unease or disquiet is not enough: Farkas v Thomason [2020] WASC 67 at [74] quoted in Kostov v Director of Public Prosecutions (NSW) (No 2) [2020] NSWCA 94 at [30].
Apprehended bias must be assessed by reference to all the circumstances of the case: CNY 17 at [135].
A Court ought to attribute to a fair-minded lay observer, knowledge that in a civil case trial by judge alone anywhere in Australia, whatever assistance the judge may have from persons who are not judges, such as counsel, solicitors, witnesses, assessors, the judge's associate or tipstaff or other Court staff, 'the judgment in the case, the exercise of judicial power, remains that of the judge: Bahonko v Moorfields Community and Others [2012] VSCA 89 at [32].
As observed by Harrison J at [35] and [38] in Gaynor, cases are decided by judges, not their staff.
Mr Windsor submitted, correctly, that there was no suggestion that the tipstaff would have any input or influence on the decision-making process given it is the judge who will make the decision.
The evidence suggests that there was one attendance at a short directions hearing two years ago at which there was a debate about whether a self-executing order and other timetabling orders should be made.
There is no evidence at all that Ms Quinlivan had any role in the day-to-day conduct of the proceedings.
It is surprising that junior counsel for the plaintiff Ms Hillier did not identify the tipstaff on the first day of the hearing and the complaint has now only been made on day 11 of the hearing.
The disquiet expressed by Ms Polsen herself about the tipstaff relationship and role in chambers is not sufficient to form a basis to grant the application.

Decision

The legal principles in question for applications of this type are uncontroversial, but some aspects of them bear emphasis in the context of this application.
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]. [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]".
CNY17 v Minister for Immigration and Border Protection & Anor [2019] HCA 50 at [56] to [58] also provides useful statements of principle: "[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". A finding of apprehended bias is not to be reached lightly. 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. 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". Second, a logical connection must be articulated between the identified thing and the feared deviation from deciding the case on its merits. 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". It is also necessary to consider "what is involved in making the decision and the identity of the decision-maker". This draws attention to the fact that the test must recognise "differences between court proceedings and other kinds of decision-making". 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. 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]"." (footnotes omitted).
As correctly pointed out by Mr Windsor SC, the applicant plaintiff must demonstrate that the identifying factor - that my tipstaff attended a single directions hearing two years ago where there may have been a dispute about the timetable for service of documents - might lead me to decide the issues that I have to decide in this trial, namely, content of duty of care, breach of duty, causation and damages, other than objectively and on their merits.
The apprehension must be reasonable.
It is unreasonable to suggest that there is any link at all between events two years ago involving my tipstaff - about which there is no evidence other than that she attended a directions hearing - and my judging the final issues in this trial.
Issues of timetabling and arguments about those timetabling directions are very far removed from anything I have to decide. The Registrar dealt with those passing timetabling issues two years ago.
As was stated with clarity by Harrison J in Gaynor at [35] and [38], judges, not their staff members, decide cases.
The evidence led from the bar table about Ms Polsen's own view, is irrelevant to the questions that have to be considered for apprehended bias.
The test is based on the reasonable fair-minded lay observer, which for obvious reasons, Ms Polsen cannot be.
Although delivered on 3 March 2021, the day after this argument was heard, the decision of the Court of Appeal in Polsen v Harrison [2021] NSWCA 23 usefully collects from the authorities, amongst other relevant considerations, the principles that underpin the test of the reasonable fair minded lay observer at [46]: "[46] To the passages from the authorities extracted and emphasised by the trial judge (see [23]-[24] above) may be added the following propositions: (i) the application of the apprehended bias rule depends on the circumstances of each case; (ii) the fair-minded lay observer is an hypothetical figure, founded in the need for public confidence in the judiciary; (iii) 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; (iv) a finding of apprehended bias is not to be reached lightly; (v) 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; (vi) 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; (vii) 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, such that (viii) 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; (ix) "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; (x) 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"; (xi) 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; however, (xii) 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; (xiii) 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"; (xiv) there is to be attributed to the fair-minded observer a broad knowledge of the material objective facts as ascertained by the appellate court and the "actual circumstances of the case" as though the observer was sitting in the court; (xv) 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; (xvi) the context which must be considered includes the legal, statutory and factual context in which the decision is made, and "the totality of the circumstances", although the fair minded lay observer will not be taken to have a detailed knowledge of the law or legal principles; (xvii) 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); (xviii) 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"; (xix) 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, although (xx) statements in a recusal judgment regarding factual matters, including the particular context of the comments or conduct in question, may be relevant; (xxi) 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; (xxii) 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; and (xxiii) 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". (footnotes omitted).
I reject the application made for me to recuse myself from further hearing this trial as it has not been demonstrated that there is any link between my tipstaff attending a directions hearing two years ago for the defendant, and any reasonably held apprehension that I might not impartially decide the issues for final determination in this case.
The plaintiff is to pay the defendant's costs of this application.

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: 16 March 2021

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