RAMADAN v NEW SOUTH WALES INSURANCE MINISTERIAL CORP

COURTS & JUDGES - bias - actual bias - reasonable apprehension of bias - test to be applied - stringent test - whether the parties or a fair minded observer might entertain a reasonable apprehension of bias or pre-judgment on the part of the judge - District Court damages action for personal injuries - primary judge (McLachlan DCJ) refers to the fact that the plaintiff, after being resident in Australia for seventeen years, required an interpreter for most of his evidence - judge refers to the absence of evidence of attempts by the plaintiff to improve his English language skills - judge refers to plaintiff's receipt of payments and benefits and to his having "taken full advantage of our social security system" - judge states that plaintiff probably misrepresented extent of his pain level to Social Security Department - judge states that there has been medical over-servicing although such allegation was not made to the plaintiff's doctors called to give evidence - whether references to lack of English language skills in context referred only to limited employment market available to the plaintiff - whether other comments adequately explained by reference to the judge's disbelief of the plaintiff's genuineness - whether actual or apprehended bias established - held: (1) (by the Court): Allegations of bias, actual and apprehended, on the part of a judicial officer should be specifically alleged and pleaded with particularity. The Government Insurance Office of New South Wales v Mortimer, Court of Appeal (NSW) 6 April 1994, unreported, applied; (2) The test for apprehended bias is whether the observer entertains a reasonable apprehension of bias or pre-judgment on the part of the judge that he or she might not be able to bring an impartial mind to bear on the decision. Livesey vy New South Wales Bar Association (1983) 151 CLR 288; Australian National Industries Ltd v Spedley Securities Ltd (in liq) and Ors (1992) 26 NSWLR 411 (CA) applied; (3) (per Cole JA and Rolfe AJA; Kirby P dissenting): By that standard, the allegation of actual or apprehended bias on the part of the primary judge was not made out. Observations by Kirby P and Cole JA on Australian National Industries Ltd v Spedley Securities Ltd (in liq) and Ors (1992) 26 NSWLR 411 (CA). Mohamed Ibrahim v Government Insurance Office of New South Wales, Court of Appeal (NSW), unreported, 28 March 1995 considered.

DAMAGES - assessment of past and future economic loss - evaluation of medical evidence - evaluation of witnesses called by plaintiff - primary judge (McLachlan DCJ) disbelieved truthfulness of plaintiff - rejects evidence of plaintiffs doctors - prefers medical evidence of reports from respondent's doctors - rejects substantial claim for financial loss and loss of future economic capacity - held: (per Cole JA and Rolfe AJA; Kirby P assuming): The findings of the primary judge, depending upon his assessment of the evidence and of the truthfulness of the plaintiff could not be

disturbed. Devries & Anor v Australian National Railways Commission & Anor (1993) 177 CLR 472 applied.

Kirby P This Court has before it an appeal from the District Court of New South Wales (McLachlan DCJ). Mr Mohamad Awad Ramadan (the appellant) complains that a judgment entered by his Honour in his favour against New South Wales Insurance Ministerial Corp (the respondent) is appealably inadequate. The judgment entered was in the sum of $50,992. The appellant asserts that he was entitled to a judgment of approximately seven times that sum.

The facts of the case, the approach which his Honour took, the course of the appeal and the competing arguments of the parties anre set out in the reasons of Cole JA and Rolfle AJA. I will not repeat what is there said. Given the present authority of the High Court of Australia governing the review of fact-

finding by trial judges who expressly, or by necessary implication, ground their decisions in impressions of the truthfulness of a party or of witnesses, the appellant's challenge to the judgment entered by McLachlan DCJ, upon the grounds of appeal originally filed, was doomed to fail. See Devries & Anor v Australian National Railways Commission & Anor (1993) 177 CLR 472, 479.

However, with respect to my colleagues who are of a differing view, I have concluded that, by the stringent test established by the High Court of Australia and by this Court, the public or the parties might have a reasonable apprehension from the remarks of his Honour in the course of giving his reasons for judgment, that he might not have been able to bring an impartial mind to bear upon the matters before him for judicial decision. See Livesey v New South Wales Bar Association (1983) 151 CLR 288, 294. The criterion to be applied has been described as a "Spartan" one and even "unrealistic" in its stern requirements. See Australian National Industries Ltd v Spedley Securities Ltd (in liq) and Ors (1992) 26 NSWLR 411 (CA), 448f. But it is the duty of this Court to apply the test which the law establishes. It regularly does so. It is a test which defends the manifest impartiality of the administration of justice throughout this country. It is one which I do not myself regard as unrealistic. On the contrary, I see it as one of the main bulwarks of our system of law and the courts and one of the system's main defences.

As the other members of the Court have explained, the appellant came back to the second oral hearing with a number of assertions (and grounds of appeal) complaining of bias on the part of the primary judge. I agree with Cole JA that the allegations can be catalogued as, alternatively, assertions of:

(a)actual bias (or prejudice) on the part of his Honour or, if there was no such actual bias proved;

(b)a reasonable apprehension of bias, derived from the objective record, tested by reasonable standards according to what might have affected his Honour's approach.

There is much common ground between all members of the Court on the principles to be applied:

The mere fact that a judge disbelieves a witness is not a ground for asserting, (still less a basis for establishing) bias, actual or apprehended, on the judge's part. Given the extreme difficulty of overturning a decision founded in an expressed belief or disbelief of a party or important witness, many judges today, rightly in

URJRAMADAN v NEW SOUTH WALES INSURANCE MINISTERIAL CORP (Kirby P) 3

my view, conserve expressions of belief and disbelief to cases where it is essential to express them. At least, restraint will be exercised where the judge has only his or her impression of the witness, in the brief encounter in the courtroom, as the foundation for an opinion of truthfulness or falsity of evidence. Such restraint is reinforced by the repeated instruction of science that opinions of truth-telling based on the perceived impression of narrators is hopelessly unreliable. Better by far, if at all possible, to ground judicial opinions in logical reasoning and probability, sustained by objective evidence, than opinion based on faulty impressions. This case illustrates once again the near impregnability of conclusions founded on judicial impressions, forcefully expressed as to the truth-telling of parties and witnesses. That legal consequence may have the merit of finality. But sometimes it may also, objectively, mask a serious injustice for which the present law provides no effective redress;

Cases will arise where a judge feels obliged to express an opinion as to the truthfulness or untruthfulness of a party or a witness. If this is in fact the basis of the judge's decision, candour and honesty in the expression of judicial reasons requires the conclusion to be stated. Yet judges will still exercise restraint in giving expression to apprehended falsehood and in accusing a party, or a witness, of lying. See eg Smith v New South Wales Bar Association (1992) 176 CLR 256, 268. Although Smith was a disciplinary case, where special considerations apply, the same general caution against making judicial allegations of deliberate lying is apt as a principle of wider application. This is not only because of the lessons of science and recognition that judges do not have any particular capacity to tell truth from falsehood beyond that enjoyed by other human beings. It is also because a judicial denunciation carries particular consequences. It may be repeated by others under the cloak of privilege. It may do great harm. It may go beyond the judge's function to resolve the case. It may amount, in the circumstances, to a misuse of the judicial office. In our tradition, statements ex curia are generally restrained, and rightly so;

If a party considers that a judge has exhibited actual bias or reasonably apprehends the appearance of bias on the part of the judge, that party is obliged to make that allegation known as quickly as possible. Otherwise, it may be taken to have waived the right later to complain. See Vakauta v Kelly (1989) 167 CLR 568, 587; R v Power [1940] St R Qd 111 (QFC), 120; Hinton v Mill (1991) 57 SASR 97 (SC) 100; Varga v Scigliano, Court of Appeal (NSW), unreported, 6 February 1995; The Council of the Municipality of Burwood v Harvey, Court of Appeal (NSW), unreported, 3 April 1995, 14. It is obviously difficult for a party, or its representatives, to make such an allegation against a judge. It may be feared that even years later, the judge might continue to carry the wound and to resent the allegation rather than regarding it as simply an incident of judicial office. No busy judge escapes such accusations. Harvey illustrates such an accusation against myself. If candour on the part of judges in expressing their reasons is to be defended, so candour on the part of litigants must be expected, and courage on the part of their representatives required. See Zanatta v McCleary [1976] 1 NSWLR 231 (CA), 241;

If an allegation of actual or apprehended bias is to be made in court proceedings, it should not only be recorded in a timely fashion during the tied. It should be alleged, with appropriate particularity, in subsequent proceedings, as in the notice of appeal. See Pt51 r8(1)(c) SCR. That this is the rule of practice required of such allegations in this Court is made clear by the judgment of the Court in The Government Insurance Office of New South Wales v Mortimer,

Court of Appeal (NSW), unreported, 6 April 1994. (extracted by Rolfe AJA). This rule derives not only from the modern principles of pleading. It rests also upon respect for the judicial office and recognition that it is a serious, and not a light, matter for a party or its legal representatives, to allege bias against a judge. If it is to be claimed, it must be done quickly and with particularity;

The mere fact that an allegation of bias (actual or apprehended) is made is not, of itself, a ground for disqualification of a judge. See Re JRL; Ex parte CJL (1986) 161 CLR 342, 352. See also Livesey v New South Wales Bar Association (1983) 151 CLR 288, 294. The appellate court has no report from the trial judge. It is confined to the record of the conduct of the trial, the reasons given by the judge and, exceptionally, affidavits of those who observed the trial and who place before the court evidence designed to supplement the record where it is said to be defective. It is sometimes difficult to recapture, from printed text the atmosphere of a trial. Appellate courts must be cautious, lest words are taken out of context and magnified by excessive forensic scrutiny;

Long ago it was said that the devil himself knoweth not the mind of man. It is therefore usually exceptionally difficult for a party to establish actual bias on the part of a judge. Typically, it involves deriving a conclusion about the judge's thoughts and feelings. Judicial restraint will usually, but not always, prevent their clear manifestation. This is one reason why it is customary for cases of bias to be dealt with according to the objective criteria of apprehended bias rather than the subjective one of actual prejudice. The appellate court is typically taken to the language used by the primary judge as signals both of what the judge was thinking and feeling and of what the parties and members of the public, acting reasonably, would think about the judge's approach to the case. As Rolfe J said in Coya (Constructions) Pty Ltd, cited by his Honour in this case, judges and other decision-makers, sometimes allow "unnecessary, inappropriate or irrelevant criticisms or observations about a party or witnesses or the conduct of the case or the merits of the litigation" to intrude into their reasoning. From such verbal indications, the appellate court may feel driven to a conclusion that bias is made out. The test to be applied in deriving the conclusion is the stringent one to which I have previously referred;

All judges attach importance to the right which is enjoyed alike by the parties and the community, to have serious matters of dispute in the courts resolved by an independent and impartial tribunal. That is the hallmark of our system of justice. It is part of the professional mission of judges to ensure that this right is upheld. It is also a requirement of the law. It is not confined to our legal system. Its provision may be traced to ancient times. Its origins lie in the very notion of judicial resolution of disputes in a community seeking civilisation. See S & M Motor Repairs Pty Ltd & Ors v Caltex Oil (Australia) Pty Ltd & Anor (1988) 12 NSWLR 358 (CA), 361. The right to an impartial tribunal is recognised by international statements of fundamental human rights. See International Covenant on Civil and Political Rights, Article 14.1. It is therefore not a minor principle of a technical kind. It is a bedrock rule. It is the foundation upon which our system of courts of justice rests. It is one of the ultimate guarantees of community acceptance of the decisions of one group of human beings profoundly affecting the lives, rights and obligations of many others; and

Each case of actual or apprehended bias must be judged on its own facts. Different judges respond differently to allegations of judicial bias. One of the justifications of a separate appellate court is to ensure that such allegations may be made without fear that professional proximity or psychological sympathy

URJRAMADAN v NEW SOUTH WALES INSURANCE MINISTERIAL CORP (Kirby P) 5

derived from group attitudes will govern the court's response to the accusation. Appellate courts enjoy advantages of hindsight and sometimes further material information. They are not under the same pressures as trial judges. Their role is, and should be, that of taking a second look at the proceedings. They do so in defence both of justice to the particular parties and to ensure the integrity of the judicial system itself. See Livesey (above) 294. There are various restraints which tend to discourage the making of the accusation of bias unless it is deemed serious and relevant. But when such suggestions are made, it is essential that the appellate court should approach its function without defensiveness or resentment. It must neither be unduly tender to the suspicion and accusations of a losing litigant nor unduly defensive of a judicial colleague or resentful of an attack of bias, allowing it to conjure up recollections of still-resented like accusations against one's- self.

I turn to apply these principles to the instant case. In some ways, it is similar to the problem which was recently presented to the Court, differently constituted, in Mohammed Ibrahim v Government Insurance Office of New South Wales, Court of Appeal (NSW) unreported, 28 March 1995. In that case, Powell JA gave the judgment of the Court. There, as in this case, the appellant was a Lebanese plaintiff complaining of a wholly inadequate judgment in the District Court. There, as here, the primary judge (not McLachlan DCJ) had disbelieved the appellant. There, as here, the judge had expressed the view, not earlier put to the doctors or the parties, that the medical treatment and costs "reflect excessive over-servicing of his complaints by the medical profession". There, as in this case, the judge had commented upon the dependence of the appellant on social security and his conclusion that the appellant was "not in the slightest interested in taking work" but was content to rely "on the beneficence of the Commonwealth government...".

The Court in Ibrahim ordered that the District Court judgment be set aside and a retrial had. This was in the face of clear findings as to credit which, in a mechanical approach to the case, would have sustained the finality of the District Court judgment. Powell JA was of the view that the passages in the judgment:

"..expose what are to my mind... unsatisfactory features about the way in which his Honour went about determining...the proceedings."

So far as the accusation of "over-servicing", Powell JA said (ibid, 24):

"The reference... to 'excessive over-servicing... by the medical professional' - which phrase I take to mean the provision of services which were not in fact necessary and not believed to have been so - in my view ought not to have been made unless - which we were informed it was not - the issue was raised at the trial and the doctor or doctors in question had been given an opportunity to answer the charge."

So far as the reference in Ibrahim to social security was concerned and the appellant's suggested reliance on payments made by the Department of Social Security, these were said by Powell JA to be "not of the slightest relevance to any issue remaining open in the proceedings...". With every respect, I would apply the same remarks to the like comments of the trial judge in this case. It was not relevant to the assessment of the appellant's damages to comment adversely on the fact that:

¢ The appellant, after being resident in Australia for seventeen years, required an interpreter for most of his evidence given in the witness box (tpt 494);

¢ There was no evidence as to the extent to which the appellant had tried to improve his English speaking reading and writing skills (tpt 494);

¢ The appellant had worked for less than half of the nine years prior to the date of the accident (tpt 401);

¢ The appellant had received payments of benefits from the Department of Social Security both before and after the accident (tpt 401);

¢ The appellant had probably misrepresented the extent of his pain level to the Department of Social Security, although there was no evidence at all to support that belief;

¢ The appellant, having come to Australia, had not accepted the need to become conversant with the English language (tpt 401).

Clearly, the appellant's limited skills in the English language were relevant to the employment market in which he could hope to gain work suitable to his disabilities. But that is not the way in which I read his Honour's comments. Read fairly, in their context I take those comments to be critical of the appellant's social failure and suggested linguistic laziness. It was suggested by the trial judge that this bordered on an obdurate resistance to his obligation to learn the English language if he were to have the privilege of living in Australia. The appellant was an auto mechanic. In such a job in Sydney, uninjured, he might quite readily have obtained work which made few demands upon his English language skills. It is a commonplace that learning languages becomes more difficult with age. The appellant's children will learn the English language. It is unreasonable to diminish the appellant's rights to damages on the footing of an expressed belief about his linguistic reticence. The common law requires that the impact of the wrong be judged as it fell upon the appellant If he were a person with poor language skills, that was a consideration which reduced his available labour market. It enlarged his entitlement to damages. It was no basis for diminishing his damages as the primary judge seems to have thought.

The repeated reference to the appellant's receipt of social security and its description as "our social security system" is, in my respectful view an unacceptable indication that his Honour was treating the social security system as something that belonged to "us". The use of the possessive personal pronoun "our" could reasonably be taken to indicate that his Honour might not be able to bring a completely impartial mind to bear on the appellant's claim. He drew a circle around "our" social security system. The appellant was outside his circle.

As in Ibrahim there was no evidence whatever in this case of the "possibility that there has been some over-servicing [of the appellant] by some members of the medical profession". Certainly, nothing to that effect was put to the appellant's treating doctor, Dr Guirgis who was called to give oral evidence at the trial. As in Ibrahim, I consider that this statement was irrelevant and wrongly made. With respect, it is a further indication that, by our stringent standards, a reasonable apprehension of bias might be concluded.

The appellant relied solely on the matters contained in the primary judge's reasons for judgment. He made no complaint that during the trial any comment or indication of an attitude adverse to the appellant was made, eg of excessive claims on social security or of excessive medical over-servicing. No question of waiver or election arises. Along with the other members of the Court, I am content to deal with the amended grounds in the notice of appeal. For my own part, I would uphold ground 12. Quite clearly this Court cannot reassess the appellant's damages. So much was recognised by both parties to the appeal. Accordingly, there must be a retrial.

URJRAMADAN v NEW SOUTH WALES INSURANCE MINISTERIAL CORP (Kirby P) 7

The foregoing is enough to dispose of the appeal. But I cannot allow some remarks in the reasons of Cole JA in this case to go unnoticed.

Spedley (above) to which Cole JA refers, came to this Court, exceptionally constituted, from orders of Cole J as the trial judge. His Honour declined, in effect, to disqualify himself from further hearing the proceedings. The case really established no novel doctrine. The doctrine was clear when the application was made to the trial judge. With respect it ought to have been applied. This was pointed out by Meagher JA in Spedley. Whilst disagreeing with the doctrine, Meagher JA accepted that it was binding on him. He proceeded faithfully to give effect to it. Relevantly, the doctrine was established in Livesey (above). It has been restated several times since, both in the High Court of Australia and in this Court.

I have reconsidered what I said in Spedley. I have done so in the light of the criticisms of Cole JA in this Court in this case. I see no reason to change what I wrote:

1. Judges may deny that "professional comity" restrains legal practitioners from alleging actual bias. But other judges have recognised the awkwardness which a lawyer faces in making such an accusation. Comity usually leads, at least in the first instance, to a private request to judges accused of actual or apprehended bias, to stand aside. This is what was done in Livesey. See ibid, 289. Where disqualification is alleged it is suggested, where appropriate, through court registries. It reflects the proper desire of the legal profession to handle such matters sensitively and in such a way as to advance, and not undermine, the proper working of the system of justice. The lawyer may apprehend that the judge will deeply resent the accusation and even take it personally. The client will go away; but the lawyer must return to the judge's court. He or she may fear that the scar will remain, as sometimes it does. This, and other considerations (some of them mentioned above), explain why it is rare indeed to face an accusation of actual bias. It is why such accusations are usually expressed fin terms of what a reasonable observer might have apprehended;

2. The reference to "real opinions of litigants" is not irrelevant. Litigants give lawyers instructions to which the latter are usually obliged (if lawful) to give effect. Litigants are not normally members of the lawyers' fraternity. They may be more willing to speak bluntly and to insist that the lawyers state what the parties feel, viz that the judge was actually biased. With every respect, it is simply an error of law to say that the opinions of litigants are irrelevant. In Livesey, the Full High Court (Mason, Murphy, Brennan, Deane and Dawson JJ) at 294 said, relevantly:

".. appellate courts... will on occasion conclude that a decision of a judge... has resulted in a situation where one of the parties or a fair-minded observer might entertain a reasonable apprehension of bias or pre-judgment. " (emphasis added)

Thus, it is not irrelevant to consider the opinions of litigants, being the parties to proceedings in the court. The litigants' opinions are clearly relevant, although not determinative. This is because the right to an impartial court is a right which belongs to the litigants as well as to the public generally. The opinion must be reasonable;

3. The reference to the "natural human desire for consistency of thought and action" is a reference to the particular problem, relevant in Spedley but not in this case, of a judge continuing to sit who has previously made a decision, or voiced

opinions, that render continuance undesirable or impermissible. In this respect Spedley was no more than an application of the clear principles in Livesey; and

4. So far as the "elegant and kindly" request for disqualification addressed to Cole J in Spedley is concerned, I do not believe that my remarks evidenced any misunderstanding or misquotation of what Cole J said in that case. Why was an "elegant and kindly" approach adopted? Presumably out of courtesy to his Honour and to the judicial office. But also, presumably, out of concern that the request - however formulated - might be resented so that it lay in wait until years later when, in a different place, in a different case, in different circumstances, it might emerge to be given the voice of protest of a hurt which was still felt. In response to this hurt, I would say, in words that are equally apt to McLachlan DCJ in the case in hand and in terms of the reminder of the Full High Court in Livesey (above) at 294:

"Such a conclusion [that one of the parties or a fair-minded observer might entertain a reasonable apprehension of bias or pre-judgment] does not involve any personal criticism of the judge at first instance or any assessment of his qualities or of his ability to have dealt with the case before him fairly and without pre-judgment or bias. It is simply an instance of the ordinary working of the appellate process in which the views of the judges who constitute the appellate court prevail over the views of the judge or judges who constituted the court from which the appeal is brought. "

So it was in Livesey. So it was in Spedley. So it should be here.

The orders which I favour are: 1 Appeal allowed; 2. Set aside the judgment of the District Court (McLachlan DCJ); 3. In lieu thereof, order that the proceedings be returned to the District Court for retrial of the plaintiffs entitlement to damages; 4. Confirm the costs order at trial; 5. Order that the respondent pay the appellants costs of the appeal but have, in respect thereof, a certificate under the Suitors' Fund Act 1951.

Cole JA Mohamad Ramadan, the appellant, has appealed against a judgment of McLachlan DCJ delivered 8 August 1994 in which he was awarded a verdict of $50,992 comprised as follows:

Past economic loss $10,000.00 Interest on past economic loss $ 7,800.00 General Damages $25,000.00 Past out of pocket expenses $ 8,192.00 Total: $50,992.00

The appellant has contended that there should be awarded the sum of $347,289.80 made up as follows:

General damages $45,000.00 Out of pocket expenses $17,019.80 Past wage loss $80,000.00 Interest of past wage loss $46,480.00

URJRAMADAN v NEW SOUTH WALES INSURANCE MINISTERIAL CORP (Cole JA) 9

The appellant initially raised 9 grounds of appeal they were:

That His Honour erred in the assessment of general damages.

That His Honour erred in the assessment of past and future economic loss.

That His Honour failed to give any or any proper weight to the evidence of Dr Ellis or Dr Guirgis (the treating orthopaedic surgeon) and ultimately rejected such evidence in toto.

That His Honour failed to take any or any proper account of the fact that the cross-examination of Dr Wallis and Dr Guirgis (the only doctors called in the case by the plaintiff or the defandant) did suggest that the plaintiff was incapacitated as a consequence of his injuries being the subject of the claim for damages.

That His Honour erred in using his observation of the plaintiffs physical appearance and movement in the witness box to reach a conclusion that the evidence of Dr Ellis and Dr Guirgis should be rejected.

That His Honour erred in rejecting the evidence of Dr Ellis and Dr Guirgis in respect of ongoing incapacity and the extent thereof.

That His Honour erred in failing to give any or any property (sic) weight to the non-service of three medico-legal reports by the defendant.

That His Honour erred in finding that a failure to speak good English in 1977 was in some indeterminate way prejudicial to the plaintiff in respect of his post February 1986 economic loss.

That his Honour erred in inferentially rejecting unchallenged evidence of the plaintiff's daughter."!

Ground 10 is irrelevant. At the hearing of the appeal it became apparent that the challenge to the trial judge's finding that he did not accept the appellant as a witness of truth was, in reality, an allegation that the trial judge was biased or, alternatively, that the terms of the trial judge's judgment gave rise to a reasonable apprehension of bias. That being so, the Court indicated that if those allegations were to be pursued as grounds of appeal specific grounds must be formulated and detailed submissions advanced in respect of them in order that the respondent might have the opportunity to respond to the allegations upon the basis that they were allegations of actual bias or reasonable apprehension of bias rather than simply allegations made in support of an attack upon the trial judge's finding of absence of credit in the appellant.

An allegation of bias, or of reasonable perception of bias is a serious allegation. For that reason alone it must be advanced with clarity and particularity. PtS1 r8(1)(c) requires specificity of any ground relied upon in support of an appeal. An allegation of bias or reasonable perception of bias should not be permitted to be raised on an appeal by a side wind.

In consequence the appellant was granted leave to file and amended notice of appeal which raised the following additional grounds, and to hear additional oral submissions:

"11. That in his judgment dated 8 August, 1994, the Trial Judge affected (sic) actual bias against the appellant.

12. That the judgment dated 8 August, 1994 gave rise to a reasonable apprehension of bias against the appellant.

13. That in considering his judgment, the Trial judge allowed himself to be affected by a prejudice against the appellant which was unreasonable and unacceptable, and which was based upon the following matters which were irrelevant to the assessment of the appellant's damages, namely -

i) That the appellant, after being resident in Australia for 17 years, required an interpreter for most of his evidence given in the witness box;

ii) That there was no evidence as to the extent to which the appellant had tried to improve his English speaking, reading and writing skills;

iii) That the appellant had worked for less than half of the nine years prior to the date of the accident the subject of proceedings;

iv) That the appellant had received payments or benefits from the Department of Social Security both before and after the accident the subject of proceedings;

v) That His Honour believed that the appellant had probably misrepresented the extent of his pain level to the Social Security Department, when there was no evidence at all to support that belief

vi) That the appellant, having come to Australia, had not, in the opinion of the trial judge, accepted the need to become conversant with the English Language; and

vii) That there was a "possibility that there has been some over servicing (of the appellant) by some members of the medical profession" when there was no evidence of that "possibility", nor was anything to that effect put to the treating doctor, Dr Guirgis.

14. That His Honour erred in allowing to the appellant only one half of the appellant's claim for out of pocket expenses."2

The proceedings were adjourned to enable the parties to provide to the Court written submissions on the additional grounds.

The appellant was born on 16 June 1943 in Lebanon. He arrived in Australia on 29 January 1977. He was thus 34 at that time. He had been a motor mechanic in Lebanon and continued that occupation after his arrival in Australia. The accident in which he was injured occurred on 2 February 1986. He had thus been in Australia for nine years at that time. The trial of his claim for damages was heard on 21 and 22 June 1994, more than eight years after the accident.

As the appellant claimed for past economic loss, his pre-accident employment record was of obvious materiality. His pre-accident employment, as found by the trial judge and as not seriously disputed, may be summarised as follows:

(a) After arriving in Australia in January 1977, the appellant obtained employment with a Toyota/Mercedes car dealer in approximately April 1977. He worked there for approximately eight months. Mr Morris QC for the appellant opened that in that employment the appellant earned approximately $180 per week net but left that job "of his own accord in January 1978 and was unemployed. He had prospects of getting another job which proved to be

2. Amended Notice of Appeal dated 17 March 1995, p2-p4
3. Appeal Book, p53.

URJRAMADAN v NEW SOUTH WALES INSURANCE MINISTERIAL CORP (Cole JA) 114

A. "Because this one from the service station at Rockdale, he gave me more money and I had a family."

Q. "Did you go straight from that job to another job or did you have some period of unemployment?"

A. "No, I didn't go straight, I was on the unemployment for a while."

Q. "Why did you leave Mercedes to go on unemployment."

A "Tt wasn't enough money and I had five children."

That matter was taken up in cross-examination. Ultimately the appellant said he left the Toyota/Mercedes job at Miranda for two reasons, namely, that he had a problem with the supervisor, and secondly because he was not being paid enough money there. He said:

Q. "What was the problem you had with the supervisor at Miranda?"

According to a reference from the Stewart Car Co, his employer at Miranda, he was employed from the 3 March 1977 to 4 November 1977. The reference stated:

*During this period of time he was under supervision. His performance was satisfactory on vehicles he was familiar with.

He did not make any effort to overcome the language reading and writing problem, which created excessive loss of time in translation, this led to his dismissal."¢

(b) For approximately two years, the appellant was "on unemployment". He said he was looking for work during that time. That must have encompassed the years 1978 and 1979.

(c) The appellant then obtained employment at a Caltex Service Station at Rockdale. He worked there for six to seven months before the service station closed down7. He was earning approximately $250 per week net.8

(d) The appellant was then unemployed for approximately two to three years. During that time he said he was looking for work as a motor mechanic. During that time he received social service payments as an unemployed person but said he was working part time and earning "$50 to $60 a week"®. He was asked:

Q. "And did the combination of those two sources of income give you more money Than you had been earning at the Caltex at Rockdale?"

(e) The appellant commenced his own motor mechanic's business he said in 198311. He leased premises at Lakemba for this purpose. He was asked the nature of his business:

Q. "And did you commence in those premises servicing cars for friends and acquaintances from the Lebanese community?"

A. "Australians, Greeks, everybody used to come to me."!2

Appeal Book, p91. Appeal Book, p113-p115. Appeal Book, p241. Appeal Book, p91. Appeal Book, p117. Appeal Book, p188. Appeal Book, p118.

He said he worked five and a half days a week, had a nephew assisting him and was earning$700 or more a little or less" a week!3. He was paid for his work in cash, paid his outgoings from that cash and did not bank his receipts!4. He confirmed in cross-examination that the average amount of money he made during a week was $700, with it varying between $400 and $800 a week clear!5. Although his banking was irregular, he stated that he filed tax returns disclosing his income from the mechanical business at Lakemba!©. Those filed returns, he said, were accurate!7.

The appellant's 1985 tax return showed a net income from his mechanics business of $5,556!8. When Mr Ramadan was faced with this return showing an income of approximately $100 per week he sought to deny that it was his return because he had not signed it notwithstanding that it was the basis upon which accountants had prepared a claim for economic loss on his behalf and had been provided to the solicitors for the respondent!9.

The appellant's income tax return for the year ended 30 June 1986 showed a gross income of $21,672 from the mechanics business with a net income from that source of $7,1002°. It was during that financial year, on 2 February 1986, that the appellant was injured.

In the motor vehicle accident it was the appellant's case that he had injuries to

his head, back and neck. He was taken to Bankstown Hospital by ambulance where he remained for four hours under observation. He was then allowed to

leave and returned home. I will return his subsequent medical treatment.

The appellant's post accident, pre-trial employment may be summarised as follows:

(a) After the accident he had two weeks off work2!. On returning to work he said he felt pain in his head and back22. After about two and a half or three months he closed down the business. He said:

Q. "And after two and a half months, what did you notice about your ability to work, were you able to continue to work?"

A "Because when I start to feel pain, I start to feel bad as well emotionally."23

He said he couldn't lift engine parts except with help. When asked why he stopped work after two and a half months, he replied:

"T went to try and see a physiotherapy could make me well. I thought that I am

• to see if I could be normal again."24

(b) After he closed his business the appellant said he did tune-up work for "a lot of friends" doing one or two jobs a week and earning $30 to $40 per week. The money was paid in cash. At the trial date he was continuing to do that work

URJRAMADAN v NEW SOUTH WALES INSURANCE MINISTERIAL CORP (Cole JA) 13

averaging "$75-80 per week"25. The appellant had done no other work in the eight years between the accident and trial.

(c) At the date of trial the appellant had been living on the invalid pension for about one and a half years. It was against this background that the trial judge was required to assess the appellant's past economic loss and any future loss of earning capacity.

It was against this background of evidence that the trial judge wrote:

"I am asked to award substantial damages to this man who says that pre-accident he was earning between $400-$800 per week clear of expense yet he disclosed only $5,556 clear of expense up to June 1985 (seven months before the accident) and $7,100 for the next year. I reject his attempt to evade the issue by saying that the copy return presented to him was not signed. That document had been forwarded to the defendant's solicitors by his own solicitors. This is the same man who appears to have worked less than half of the nine years prior to the accident and has taken full advantage of our social security system to the extent that his Counsel tells me that some $94,000 is likely to be demanded by the Social Security Department when the plaintiff receives his award of damages."26

The trial judge did not accept the appellant as a witness of truth. He wrote:

"T do not have any doubt at all that the plaintiff exaggerates nor do I have any doubt that he exaggerates with a view to persuading me to award higher damages. T accept that he sustained muscular injury in both the cervical and lumbar regions and a mild blow to the head The problem is to determine whether be has any real continuing pain in any region and as to the extent that that pain prevents him from working."27

Those issues were the substantial issues before the trial judge. His honour wrote the passage I have quoted above?8 at the conclusion of setting out the competing contentions in relation to economic loss, and his review of the competing medical evidence.

His Honour summarised the respondent/defendant's contention in relation to economic loss in the following terms:

"As to economic loss, Mr Russell for the defendant said that the plaintiff was restricted for a short time but was fit after that. However, if I conclude that the plaintiff has a continuing problem, then he has been fit for lighter type work since shortly after the accident. I should conclude - it is submitted - that the plaintiff has decided to put his feet up. Even before the accident, he was not a great wage earner and only actually worked 3 out of the 9 years prior to the accident."29

His Honour then summarised the appellant's contention in relation to economic loss in the following terms:

"Mr Morris QC for he Plaintiff said that the Plaintiff is of limited education and English. He asked me to appreciate that a mechanic needs to get into many awkward positions. I should ask myself whether the Plaintiff was capable of

25. Appeal Book, p104.
26. Appeal Book, p400-p401.
27. Appeal Book, p400.
28. Appeal Book, p400-p401.
29. Appeal Book, p393.

running a service station or a store - with his background. He would need to be in an ethnic store and, of course, he has no experience. He had a single skill and can no longer exercise it.

Out of pocket expenses are agreed at $17,019.80 but not as to causation. If I conclude that the continuing treatment is not related to the accident, it was agreed that I should call for further evidence.

1. A repairer's licence issued in 1984 and 1985 and a Motor Mechanic Tradesman's certificate issued on 3 May 1989.

2. A certificate of registration of a factory issued to the Plaintiff in June 1984.

3. A letter dated 1 December 1978 from Stewart Toyota - in the form of a reference - following employment from March 1977 to November 1977. His performance was satisfactory on vehicles of which he was familiar but it goes on to say "he did not make any effort to overcome the language reading and writing problem which created excessive loss of time in translation" - this lead to his dismissal.

Therein, of course, lies one of the Plaintiff's problems. I am asked to award substantial damages for economic loss to the plaintiff who - even after 17 years in Australia - still needs an interpreter for most of his evidence given in the witness box. There is no evidence as to the extent to which he has tried to improve his English speaking, reading and writing skills."3°

Exception is taken to the last quoted paragraph by the appellant. It is said to contain the first two of six statements in the judgment indicating bias, prejudice or reasonable apprehension of bias. I will return to that matter. For the present it is sufficient to say that in considering the question of future economic loss his Honour noted evidence from a former employer that his dismissal from employment was due to his failure to seek to overcome language problems with the consequence that he had been dismissed because of "excessive loss of time" in translation "of instructions to him'. If that had been a difficulty in him retaining employment in the past, as it had, it was reasonable for his Honour to comment that absent a change in that situation, which change had obviously not occurred because he required an interpreter and there was no evidence of attempts to improve the language skills, that deficiency would be likely to operate as a problem to him obtaining employment in the future. It obviously affected his capacity to obtain employment, and was thus relevant to the claim for loss of income earning capacity.

The appellant was seen by a plethora of medical practitioners. There was a clear conflict between those who were called or whose reports were tendered on behalf of the appellant and those on behalf of the respondent.

The conflict is to typified by the difference of view between Dr Guirgis, called by the plaintiff, and Professor Gye, Emeritus Professor of Neurological Surgery. Dr Guirgis found "20% restriction in the cervical spine with the appearance of spasm on exceeding that range, 35% restriction on lumbar spinal movements with pain and spasms thereafter, symptoms consistent with chronic musculo-ligamentus sprain/strain of the cervical and lumbar spines with the implication of the mid-cervical and lower two lumbar intervertebral disc and with aggravation of the underlying degenerative changes in the spine", headaches,

URJRAMADAN v NEW SOUTH WALES INSURANCE MINISTERIAL CORP (Cole JA) 15

sleep disturbances, memory disturbances producing post traumatic stress disorder and chronic pain syndrome, all of which was causally related to the accident, based on the history given by the appellant. In the result Dr Guirgis was of the view the appellant remained unfit for work as he had been since the accident3!.

Professor Gye, whilst noting the appellant's complaints, could find no clinical evidence of any significant abnormality involving his cervical or lumbar sacral spine, the associated muscles or ligaments, or the cervical or lumbar sacral nerve roots. Radiological changes noted were "mild constitutional degenerative changes compatible with his age". The appellant exhibited a "marked functional overlay in his exaggeration of the straight leg raising test of nerve root tension''32. Professor Gye was of the view that the appellant had not suffered any permanent medical impairment as a consequence of the accident, and no treatment was required. The prognosis in relation to muscular and ligamentus strain in his neck and lower back was good in the short and long term although prognosis in relation to the functional overlay was guarded. He considered Mr Ramadan fit to resume "his normal duties as a motor mechanic without restriction or reservation". No rehabilitation was required. It his view Mr Ramadan had not suffered any condition likely to significantly impair his normal life activities. Professor Gye concluded:

"T cannot accept that Mr Ramadan's present complaints have any relationship to the alleged motor vehicle accident which occurred five years and nine months ago."33

The trial judge accepted in substance the evidence of the respondent's medical experts. He found that those called by the appellant based themselves on histories given by the appellant, which histories depended upon acceptance of the appellant as truthful. The trial judge did not accept the appellant as truthful. He said:

My additional findings are that the plaintiff has not persuaded me on the balance of probabilities that any continuing pain in the result of he accident. He has persuaded a number of the doctors to the contrary and I must reject their evidence. I am also not persuaded that the plaintiff is unfit for the work of a motor mechanic. He has misrepresented to the extent of his pain level to various doctors and, probably, to the Social Security Department. He has almost certainly understated his income to the Taxation Department and, having come to Australia, he has not accepted the need to become conversant with the English language and, as a result, probably has some difficulty in obtaining a job....

I find that any continuing problems resulting from his injuries ceased in a matter of months after the accident although his depression may have continued longer. I find that he has no continuing physical or psychiatric condition as a result of the accident."34

There was a medical conflict which the trial judge was obliged to resolve. He resolved it in favour of the respondent having considered the medical reports and having heard oral evidence from Dr Ellis and Dr Guirgis. He regarded Dr Ellis as a medico-legal advocate, and did not accept the views of Dr Guirgis based, as they were, to a major extent, upon acceptance of the appellant's account of pain and disabilities. This Court may not disturb the trial judge's finding of fact based

31. Appeal Book, p190-p191.
32. Appeal Book, p293.
33. Appeal Book, p292-p293.
34. Appeal Book, p401.

upon the credibility of a witness unless it can be shown that the trial judge "has failed to use or has palpably misused his advantage or has acted on evidence which was inconsistent with facts incontrovertibly established by evidence which was glaringly improbable."35 Unless this Court disturbs the trial judge's rejection of the appellant as a witness of truth, it must follow that the Court cannot disturb the trial judge's rejection of Dr Guirgis and other medical witnesses for the appellant where their views were based upon acceptance of complainants as recited by the appellant.

In my opinion there was abundant evidence upon which the trial judge could form the view that the appellant was not to be accepted as a witness of truth. That evidence includes:

(a)The fact that the appellant was dismissed from his employment with Stewart Toyota rather than, as he said, his leaving the job to seek more money;

(b)the plaintiffs assertion that his earnings were, on average, $700 per week whereas his tax returns showed income in the order of $100 per week;

(c) the appellant's unpersuasive endeavours to disown the tax returns; and

(d)the observation, refered to in the evidence, of the appellant in the witness box when he was able to turn his head 180 degrees compared with his account given to various medical practitioners of restriction on movement.

It follows, in my view, that there is no ground for disturbing the trial judge's finding on the credit of the appellant.

Grounds 3, 4, 5, 6 and 7 all relate to the medical conflict.

I have previously stated reasons why the trial judge's finding upon the credit of the appellant may not be disturbed. The consequence is that his Honour was entitled not to accept the views of Dr Ellis and Dr Guirgis as being based upon untruthful histories given by the appellant. However, it was argued that the views of Dr Ellis and Guirgis were supported by "facts incontrovertibly established" so that their evidence must be preferred, and that of the respondent's medical experts rejected. The facts incontrovertibly established were said to be twofold, first, that CAT scans, CT scans and electro magnetic imaging all showed significant disturbance beyond normal degenerative changes and, second, that Dr Guirgus discerned spasms which could not be faked.

It is sufficient to dispose of the first so called "incontrovertibly established fact" to record that Dr Mellick who saw the x-rays and scans could detect no abnormality in them>6, and as to the second, that Dr Mellick detected no spasm. Professor Gye's views accorded with those of Dr Mellick37.

Regarding ground 1, in light of the trial judge's finding that:

"Any continuing problems resulting from his injuries ceased in a matter of months after the accident although his depression may have continued longer. I find that he has no continuing physical or psychiatric condition as a result of the accident."

there is no basis for disturbing the trial judge's assessment of general damages in the sum of $25,000.

35. Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479.
36. Appeal Book, p279-p280.
37. Appeal Book, p278,p290-p291.

URJRAMADAN v NEW SOUTH WALES INSURANCE MINISTERIAL CORP (Cole JA) 17

Regarding ground 2, in the light of the finding just quoted there is no basis for disturbing the trial judge's decision to award the appellant a "buffer" of $10,000 to compensate him for loss for both past and future economic capacity. His Honour assessed that loss of earnings from February 1986 to 30 June 1986 in the sum of $5,158 and added to that sum a figure of $4,842 to produce a total figure of $10,000 "for past economic loss whilst conceding that that figure is far from precise but based upon the principle that the plaintiff should have moved back into the workforce within in one year if not sooner"38. Ground 2 fails.

Regarding ground 9, there is nothing to suggest that his Honour did not have regard to the appellant's daughter's evidence when assessing general damages. This ground fails.

Ground 8 is best considered with the grounds alleging bias, prejudice and reasonable apprehension of bias.

BIAS, PREJUDICE AND REASONABLE APPREHENSION OF BIAS

The appellant by the amended grounds of appeal has contended that, when the judgment is considered as a whole it establishes:

(b) there would be in the mind of an independent observer and in the mind of the appellant, a reasonable apprehension of bias; or

(c) the trial judge had allowed himself to develop a prejudice against the appellant which was unreasonable, unfair and unacceptable, and which affected his Honour's assessment of the appellant's damages in a way which intruded upon the appellant's entitlement to a fair trial."39

In support of these submissions, Counsel for the appellant submitted:

"2. In considering his judgment and in assessing the appellant's entitlement to damages, the Trial Judge allowed himself to be affected by a prejudice against the appellant which was unreasonable, unfounded and unacceptable, and which was based upon the following matters which were irrelevant to the assessment of the appellant's damages, namely -

i)That the appellant, after being resident in Australia for 17 years, required an interpreter for most of his evidence given in the witness box; 394M

ii) That there was no evidence as to the extent to which the applicant had tried to improve his English speaking, reading and writing skills; 394N

iii) That the appellant had worked for less than half of the nine years prior in the date of accident the subject of proceedings; 401D

iv) That the appellant had received payments of benefits from the Department of Social Security both before and after the accident the subject of proceedings 401E

v) That His Honour believed that the appellant had probably misrepresented the extent of his pain level to the Social Security Department, when there was no evidence at all to support that belief, 401K

vi) That the appellant, having come to Australia, had not, in the opinion of the Trial Judge, accepted the need to become conversant with the English language. 401M."

By using the words "allowed himself to be affected by a prejudice" the appellant has made clear that the allegation is not one of reasonable perception of bias, but is one of actual bias based on a prejudice or prejudgment.

38. Appeal Book, p402.
39. Appellant's Further Submissions, paral2.

It is important to firmly bear in mind a critical distinction between an allegation of actual bias and an allegation of reasonable apprehension of bias. They are allegations of an entirely different character. An allegation of actual bias requires an appellate court if it is to uphold the allegation, to make a finding that the trial judge was, in truth, biased against or prejudiced in the sense of having prejudged against the appellant. It involves a finding of judicial impropriety, and probably of judicial misconduct. It involves a finding of breach of the judicial oath.

An allegation of reasonable perception of bias is an allegation of, and involves, if it be upheld, findings of quite a different nature. It does not involve any finding of judicial impropriety or misconduct by the trial judge, nor does it involve any finding of breach of the judicial oath. It involves only a finding that a reasonable and intelligent lay observer may gain from the conduct of the proceedings or, in this case, a reading of the judgment, an impression that the trial judge may have been biased, not that he was. A finding of a "reasonable apprehension' of bias in a reasonable and intelligent lay observer is quite a different finding to one of actual bias in the judge.4°

The distinction between these two contentions, and the nature of the findings required to be made if the contention of bias on the one hand or reasonable apprehension of bias on the other is to be upheld, is not always recognised. In Australian National Industries Ltd v Spedlgy Securities Ltd (in liq) & Ors*! Kirby P wrote:

"As in most cases of this kind, the present application was presented to Cole J in this Court as one of apprehended, but not actual, bias on the part of his Honour. I have always considered that this distinction, to which Judges, and other lawyers attach such great importance, is founded more upon professional comity than the real opinions of the litigants involved or of the reasonable members of the community whose imputed conclusions are taken to determinative of the matter.

Judges and other lawyers hasten to deny the possibility that they or their colleagues actually suffer from bias. They protest this rare psychological capacity, as a class, to put prior conclusions entirely "out of mind". This is said to be so, even if the bias which attends the natural human desire for consistency of thought and action are the usual inclination of any human being to uphold an opinion earlier expressed if supported by grounds which seemn totally convincing to that person at the time of their expression. As Cole J said in this case (describing the vehicle used to seek his disqualification) such circumlocution usually owes more to "elegance" and "kindliness" on the part of the challenger than to the real opinion which the challenger holds."42

I profoundly disagree with the learned President's approach and remarks.

The distinction between actual bias and reasonable apprehension of bias involves, as I have endeavoured to point out, consideration of quite different questions and the making of quite different findings. It is for appellants to determine, with that understanding, whether they wish to allege either actual bias or reasonable apprehension of bias or both. The distinction has nothing to do with *professional comity': it involves analysis and consideration of different issues.

40. See generally Vakuata v (189) 167 CLR 568 at 572-574.

42. Australian National Industries Ltd v Spedley Securities (in liq) (1992) 26 NSWLR 411 at 416-417.

URJRAMADAN v NEW SOUTH WALES INSURANCE MINISTERIAL CORP (Cole JA) 19

The "real opinions of litigants" are irrelevant in relation to either allegation. If the allegation is one of actual bias that involves a consideration of the conduct of the trial, or the terms of the judgment, to determine whether actual bias is displayed therein. The opinion of the litigant is irrelevant to that. If the allegation is one of reasonable apprehension of bias, the opinion of litigants in that case is irrelevant: the relevant consideration is the view that a reasonable and intelligent lay observer might form, as Vakuata v Kelly makes clear.

Further, the existence of what Kirby P describes as "the natural human desire for consistency of thought and action" which might be thought to operate to incline a judicial officer to "uphold an opinion earlier expressed" which at the time it was expressed was "supported by ground which seem totally convincing to that person at the time of their expression" cannot constitute or ground an allegation of actual bias. It may lead a reasonable and intelligent lay observer to a perception that the judicial officer may be biased such that he ought to be disqualified but that is quite a different finding to one of actual bias. Actual bias, in those circumstances, would involve a finding that the judicial officer did not attend properly to the evidence, but rather reached a decision determined by reference to previously expressed views. It involves a finding that the judicial officer was in fact unable to, and did not, comply with his judicial obligations.

In the concluding sentence of the paragraph I have quoted from the judgment of Kirby P, his Honour has taken what I said out of context. What I wrote in Spedley Securities Ltd (in liq) v Yuill & Ors43 was as follows:

"By notice of motion filed 26 April 1991, Australian National Industries (ANI) seek a direction that this matter not be listed for hearing before me. The notice of motion is an elegant and kindly way of asking me to disqualify myself from hearing these proceedings."

The fact that the applicant in that instance chose that form of notice of motion, rather than a notice of motion seeking that I disqualify myself upon grounds of apprehended bias, as distinct from actual bias which was specifically disavowed, is no ground for concluding that there does not exist a very real and important distinction between an allegation and finding of actual bias on the one hand, and an allegation and Ending of a reasonable apprehension in an intelligent lay observer that an impression of bias exists.

It follows from what I have said that the three alternative bases of criticism of the judgment under appeal are in truth only two. The allegations in (a) of actual bias, and (c) of the judge having "allowed himself to develop a prejudice against the appellant" are each an allegation of actual bias.

I shall deal with each of the six particulars said to support the allegations. Regarding particulars (i) and (ii), these cannot form any basis for support for finding of actual bias. His Honour was addressing the prospect of the appellant's future employment, as he was obliged to, in considering the claim for future loss of earning capacity. Senior Counsel for the appellant, as His Honour indicated, had apparently contended that the appellant's future work prospects were diminished because of his limited English4+. The appellant's Senior Counsel had opened that matter45. He was seeking to persuade the trial judge that the appellant's deficiency in English would limit him to running "an ethnic store" because of his deficiency in English. The appellant had in the past been dismissed

43. (unreported) 4 July 1991, pl.
44. Appeal Book, p393.
45. Appeal Book, p81.

because of that deficiency and his absence of effort in seeking to overcome it. His Honour was obliged to consider the appellant's submission and to determine whether the appellant suffered from a restriction in English language skills and the effect that that had upon his future employment prospects. In considering those prospects, as his Honour pointed out, lack of English was "one of the plaintiff's problems".

Read in the context of the judgment the remarks neither demonstrate nor exhibit actual bias.

It is to be noted that Counsel for the appellant accepted that the appellant's limited skills in the English language "may have been relevant to a limited extent to the appellant's ability to secure employment on the open labour market". Once that concession is made, any possibility of the remarks constituting actual bias disappears.

Regarding particulars (iii), (iv), (v) and (vi), the passages complained of are all found in two consecutive paragraphs. They need to be read, however, in the context of four consecutive paragraphs. For convenience I set out those paragraphs:

"I am asked to award substantial damages to this man who says that pre-accident he was earning between $400-$800 per week clear of expenses yet he disclosed only $5,556 clear of expenses up until June 1985 (7 months before the accident) and $7,100 the next year. I reject his attempt to evade the issue by saying that the copy return presented to him was not signed. That document had been forwarded to the Defendant's solicitors by his own Solicitors.

This is the same man who appears to have worked less than half of the 9 years prior to the accident and has taken full advantage of our social security system to the extent that his counsel tells me that some $94,000 is likely to be demanded by the Social Security Department when the Plaintiff receives his award of damages.

On pll of this judgment, I gave some preliminary findings. My additional findings are that the Plaintiff has not persuaded me on the balance of probabilities that any continuing pain is the result of the accident. He has persuaded a number of the doctors to the contrary and I must reject their evidence. I am also not persuaded that the Plaintiff is unfit for the work of a motor mechanic. He has misrepresented the extent of his pain level to various doctors and, probably, to the Social Security Department. He has almost certainly understated his income to the Taxation Department and, having come to Australia, he has not accepted the need to become conversant with the English language and, as a result, probably has some difficulty in obtaining a job.

As to economic loss, I propose to award a buffer."46

His Honour was considering the appellant's past work record. That was relevant both to the claim for past economic loss, and to the claim for future loss of earning capacity. Whether the appellant worked or chose to receive social security payments which, with permitted additional part-time work yielded him an income greater than that which he could earn in full time actual employment, was a matter material to those considerations. The materiality of the appellant's receipt social security benefits was accepted by the appellant in written submissions as being relevant47. Obviously also relevant to a claim for post and future was the fact that the appellant had, in truth, worked less than half of his

46. Appeal Book, p400-p401.
47. Appellant's Further Submissions, para7.

URRAMADAN v NEW SOUTH WALES INSURANCE MINISTERIAL CORP (Rolfe AJA) 21

time in Australia prior to the accident. Having found that the appellant had misrepresented the extent of his asserted pain to various doctors it was open to the trial judge to surmise that similar misrepresentations had been made to the Social Security Department to obtain continuation of unemployment benefits which, with supplementary part-time work placed him in a better financial position than if he had had to engage in full time work. As I have previously indicated, deficiency in English language was clearly material to his Honour's decision. His Honour's use of the words "as a result" make clear that his comments in relation to the appellant's failure to become conversation in the English language were related entirely to both past and future job prospects.

None of the four particulars form any basis for a finding of actual bias.

Nor do they form any basis for an intelligent and informed lay observer forming a reasonable impression of bias. Each comment related to, and was relevant to, a matter which the trial judge was obliged to decide.

Regarding ground 14, having regard to the finding which I have quoted above, that the appellant's injuries ceased within a matter of months after the accident and that there was no continuing physical or psychiatric condition resulting from the accident, the trial judge's allowance of one half of the out of pocket expenses must, on any view, be regarded as generous. This ground fails.

Rolfe AJA Mr Russell of Counsel, who appeared for the respondent/defendant, commenced his oral submissions with a forceful denunciation of the submissions made by Mr Rewell of Counsel for the appellant/plaintiff to the effect that the judgment of McLachlan DCJ, which is the subject of this appeal, was infected by bias and prejudice. The cause for his complaint was that neither the appellant's grounds of appeal nor written submissions raised these allegations.

This point having been made the Court took the view that if bias, whether apprehended or real, and/or prejudice were to be alleged the Notice of Appeal should be amended to set forth the precise grounds of appeal with particularity and specificity. In doing so it was giving effect to the requirement of Pt51 r8(1)(c). At Tp19 Mr Rewell orally stated the proposed amendments in the following terms:-

"REWELL: That the decision of the trial Judge was affected by bias. Alternatively, as an additional amended ground of appeal, that there was a reasonable apprehension of bias in the manner in which his Honour approached his judgment.

Thirdly, in the further alternative, that his Honour allowed his decision to be prejudiced by matters which his Honour ought not to have reasonably taken into account.

I think that probably covers the strict pleading of the matters that were raised in the course of my submissions and in the discussion with the Court."

When Mr Rewell's attention was directed to the range of matters requiring consideration under the grounds of appeal alleging bias and prejudice, in so far as an allegation of prejudice may add to or differ from an allegation of actual bias, he said:-

"We would not submit that there was any remark made by the trial Judge during the course of the trial which would lead either to a conclusion of bias or a reasonable apprehension of bias, but that any matter that came out which dealt with those particular grounds of appeal came out only in the judgment.

We do not suggest there was any remark made by his Honour during the course of the trial or any interference in the conduct of the trial which might amount to bias or a reasonable apprehension of bias."

The Court granted leave to file an Amended Notice of Appeal "along the lines announced by" Mr Rewell, gave directions and made appropriate costs' orders. The Amended Notice of Appeal added grounds 11, 12, 13 and 14 in the following terms:-

"11.That in his judgment dated 8 August, 1994, the Trial Judge affected actual bias against the Appellant.

12. That the judgment dated 8 August 1994 gave rise to a reasonable apprehension of bias against the appellant.

13.That in considering his judgment, the Trial Judge allowed himself to be affected by a prejudice against the appellant which was unreasonable and unacceptable, and which was based upon the following matters which were irrelevant to the assessment of the appellant's damages, namely -

i) That the appellant, after being resident in Australia for 17 years, required an interpreter for most of his evidence given in the witness box;

ii)That there was no evidence as to the extent to which the appellant had tried to improve his English speaking, reading and writing skills;

iii)That the appellant had worked for less than half of the nine years prior to the date of accident the subject of proceedings;

iv)That the appellant had received payments of benefits from the Department of Social Security both before and after the accident the subject of proceedings;

v)That His Honour believed that the appellant had probably misrepresented the extent of his pain level to the Social Security Department, when there was no evidence at all to support that belief;

vi)That the appellant, having come to Australia, had not, in the opinion of the Trial Judge, accepted the need to become conversant with the English language; and

vii) That there was a 'possibility that there had been some over servicing (of the appellant) by some members of the medical profession' when there was no evidence of that 'possibility', nor was anything to that effect put to the treating doctor, Dr Guirgis.

14.That his Honour erred in allowing to the appellant only one half of the appellant's claim for out of pocket expenses."

I have set forth these matters to show how an appeal, which came before the Court as one confined to whether the amount of damages was adequate, led to issues of bias, both actual and apprehended, and prejudice being raised.

In my opinion there can be no doubt that if an allegation of bias, whether actual or apprehended, and/or prejudice is to be raised on appeal, the grounds of appeal must set forth the complaint in precise terms, and the written submissions must similarly identify and articulate it. Not only do the rules so require, but allegations of bias and/or prejudice are very serious and neither the parties nor the Court should be left in any doubt they are being made and of the basis upon which that is occurring. As Mahoney JA, with whom Handley and Sheller JJA agreed, said in The Government Insurance Office of New South Wales v Mortimer (Court of Appeal - 6 April 1994 - unreported):-

"Tf there be bias, it is proper that it be alleged. The fact that an allegation, if it is to be made, is to be made in respect of the person in high office does not mean that the allegation should not be made. In this regard, no person is in a

URRAMADAN v NEW SOUTH WALES INSURANCE MINISTERIAL CORP (Rolfe AJA) 23

position of privilege by reason of his office or his cloth: Mohahir Ali v Ellmore [1953]2 All ER 1044 at 1049-1050, per Hodson LJ.

However, an allegation that a judge acted in a proceeding notwithstanding that he was biased, is a serious allegation: at least ordinarily it will be so. It will ordinarily involve judicial misconduct, judicial incompetence, or default generally of a similar nature. If an allegation may properly be made, it is the right and, in some cases, the duty of a counsel or party to make it In Zanatta v Cleary [1976] 1 NSWLR 231 at 241, I said:

"T would not desire to qualify the right of a party, or the right of his professional advisers, fearlessly to press every matter which, within the law, may properly be pressed in support of a claim. However, justice requires that a proper sense of responsibility be exercised in this regard and if evidence, the tender of which is apt to cause damage to others, will not be admissible, then justice will normally require that that evidence be not tendered. The fact that such evidence may, if accepted according to its terms, indicate a degree of indiscretion would render it less rather than more appropriate to be tendered. Matters of indiscretion, if they arise, may be dealt with by other means."

But it is accepted that, in respect of a party or witness, a charge of misconduct should be made only where the party making it satisfies himself that there are grounds for making it: see Rajski v Bainton (1990) 22 NSWLR 125 at 135-137. To put the matter no higher, nothing less is to be expected where such an allegation is made against a judge. Such an allegation should not be made upon grounds that are equivocal or, a fortiori, flimsy.

In this case, there is in my opinion no basis for the allegation of bias which has been made. It would not be open to be inferred from that which has been relied upon that the judge was in fact biased or, indeed, for any proper apprehension that he was.

The serious situation, which may arise from the making of an allegation of apprehended bias, was pointed up by Kirby P in Australian National Industries Ltd v Spedley Securities Ltd (in liq) & Ors (1992) 26 NSWLR 411 at p416-p417:-

"As in most cases of this kind, the present application was presented to Cole J and in this Court as one of apprehended, but not actual, bias on the part of his Honour. I have always considered that this distinction, to which Judges and other lawyers attach such great importance, is founded more upon professional comity than the real opinions of the litigants involved or of the reasonable members of the community whose imputed conclusions are taken as determinative of the matter.

Judges and other lawyers hasten to deny the possibility that they or their colleagues actually suffer from bias. They protest this rare psychological capacity, as a class, to put prior conclusions entirely 'out of mind'. This is said to be so, even if the bias which attends the natural human desire for consistency of thought and action are the usual inclination of any human being to uphold an opinion earlier expressed if supported by grounds which seem totally convincing to that person at the time of their expression. As Cole J said in this case (describing the vehicle used to seek his disqualification) such circumlocution usually owes more to 'elegance' and 'kindliness' on the part of the challenger than to the real opinion which the challenger holds.

The assertion from Mr Maher that 'it is, with respect, difficult to see how (he) could possibly hope to succeed in this defence if the action is heard by Cole J comes close to an assertion of actual bias on his Honour's part. Nevertheless the legal propositions urged upon

the Court were confined to a suggested disqualification for apprehended and not actual bias. I am, therefore, content to deal with them in that way for I believe that they yield the conclusion which the appellants seek."

His Honour was noting there is a real possibility that an allegation of "apprehended bias" may well mask, in certain circumstances, one of actual bias, which is most serious. It seems to me that an allegation of prejudice must be viewed in the same way. The reason why such allegations are so serious are set forth in Mortimer and in the reasons of Cole JA in the present case. They amount to allegations of judicial misconduct or incompetence and, although Cole JA has drawn a distinction between apprehended and actual bias, which I find satisfactory, the prospect that apprehended bias may, in certain circumstances, be equated to actual bias in the way Kirby P has suggested, makes an allegation of apprehended bias, in such circumstances, an equally serious matter. Although one ground of appeal relies on apprehended bias, there is separate reliance upon actual bias and prejudice, and, it is to be noted, the same material is relied on in support of the allegations of actual bias and prejudice, as in support of the allegation of apprehended bias. Mr Rewell submitted there is a distinction between actual bias and prejudice, but I cannot discern it.

In circumstances where the bias or prejudice is said to arise from something that happened before or during the hearing or prior to the delivery of judgment, objection should be taken as soon as possible, generally speaking, so that the right to take the point is not waived: Vakauta v Kelly (1989) 167 CLR 568. When that occurs the trial Judge has an opportunity to place on the record any matter of clarification or explanation. When the attack arises from the terms of the judgment the trial Judge's position is left to be "defended" solely by the legal representatives for the respondent and without the assistance of any comments by the trial Judge. In this appeal Mr Russell has undertaken that task with considerable skill. He was the counsel who represented the respondent on the hearing. I refer to this because it means he has the advantage, which no one else in this Court involved in making submissions or decisions has had, of being present for the whole of the hearing and, thereby, having an understanding of what transpired, which cannot be enlivened by the written record. Thus, even though the bias and prejudice are said to arise out of the judgment, Mr Russell has been able to refer the Court to parts of the transcript, which make, in my opinion, totally explicable what might otherwise have not been so clear. This highlights the importance of having available assistance, when such allegations are made, from those who appeared on the hearing. If that is not available the Court should, in my opinion, confine itself to that which appears in the appeal book or which is otherwise proved in an appropriate manner. These latter remarks, of course, also apply, perhaps with greater force, when the challenge is one of bias and/or prejudice during the hearing.

None of what I have written, or proposed to write, is intended to deflect proper criticism from a trial Judge when the circumstances give rise to a legitimate complaint of bias and/or prejudice. So much is made clear by the decision in Mortimer. Where such complaints are made, however, they must be made with specificity and particularity in the grounds of appeal, they must not be allowed to intrude into an appeal by a "side wind", and, having been made, the Court must

URRAMADAN v NEW SOUTH WALES INSURANCE MINISTERIAL CORP (Rolfe AJA) 25

be able to come to a comfortable satisfaction they have been established. In this way the Court will do justice to both parties.

In my opinion the establishing of bias and/or prejudice in the reasons for judgment leads to many difficulties for the party asserting it. It has always been recognised, but recent decisions of the High Court have emphasised, that the trial Judge enjoys a very substantial advantage over an appellate Court in determining contested factual issues, especially where, as in most cases including the present, a resolution of such issues will depend upon an assessment of the credibility and reliability of witnesses: Abalos v Australian Postal Commission (1990) 171 CLR 167; Devries v Australian National Railways Commission (1993) 177 CLR 472 and the cases referred to therein.

If a trial Judge comes to a firm conclusion that a witness should not be accepted, there can be no doubt it is part of the judicial duty to state his reasons for so doing. It may well be they cause alarm or hurt to the person about whom the observations are made. But if they are made in the context of deciding disputed questions of fact by a disclosed reasoning process, and if they are necessary to show why such questions have been resolved in a certain way, a failure by the trial Judge to state them not only breaches his or her obligation to give reasons, but leads, potentially, to injustice for the party who or which would otherwise benefit from them. The successful party is entitled to have available the submission, if the evidence permits the trial Judge to make the finding, that not only was a certain witness rejected, but that he or she was rejected for strong. reasons expressed by the trial Judge.

Of course, what I have said is in the context that there is evidence to support the finding, and that the finding goes no further than is necessary to decide the particular issue. But if the trial Judge enjoys the peculiar advantages on issues of fact, which appellate Courts recognise, for him or her not to avail himself or herself of it and make, in appropriate cases, robust decisions, would mean the trial Judge was not making proper use of that advantage to the detriment of the successful party. It would also mean that an appellate Court would be deprived of full assistance from the trial Judge.

This Court must, in my opinion, view allegations of bias and/or prejudice in the judgment of the trial Judge with particular care. By the time a Judge comes to write his or her judgment, or at least by the time it is completed, he or she will have formed a view. The reasons for judgment are the public expression of that view and why it was formed. Whilst weighing the competing factual and legal contentions the judgment will, of necessity, be structured to explain the conclusion to which the judicial mind has come. In most cases that result will have been reached by dint of a combination of matters the trial Judge finds. By aggregating and emphasising them the judgment will come to a view favourable to one party and not favourable to the other. But this cannot be said, in any presently relevant sense, to amount to "bias" or "prejudice". It is merely the determination by the trial Judge of disputed issues. Depending on the issues raised and the significance of the evidence of a witness to a determination of those issues, so may depend the emphasis the trial Judge places on factors leading to his or her upholding or rejecting certain evidence. In State of New South Wales v Coya (Constructions) Pty Ltd (Rolfe J - 4 July 1994 - unreported) I referred to this in a matter in which there was an allegation of bias and/or prejudice in the decision making process in the following terms, at p128:-

"Any consideration of bias in the Award must commence with the proposition that on a fair reading of the Award either the general manner of expression or that stated explicitly leads to the conclusion that the Arbitrator had a biased mind, or that there are findings which are so obviously wrong and in favour of one party that the only reasonable inference to be drawn is that they are the product of a biased mind. The second way of expressing the matter has its own difficulties. It is not unusual for a decision to favour in a number of respects one party. Nor is it unusual for that decision to be the subject of legitimate attack on questions of fact and/or law. Finally such a decision, depending upon the views formed by the decision maker, may be expressed in terms critical of the unsuccessful party. In saying that I am referring to criticism of the unsuccessful party in a sense relevant to arriving at the decision and to the extent properly necessary to explain the decision. I find it difficult to conceive of a situation where a combination of those matters would lead a court reviewing the decision to conclude that the decision maker was biased. And indeed on issues of fact and credit the reviewing tribunal may be assisted by a robust assessment by the decision maker of various witnesses. However if the circumstances to which I have referred amount in law to bias there is a recognition that decisions may be attacked not merely as being wrong but as being the product of a biased mind because they are wrong. It may well be that after a decision maker has concluded that a witness is not to be accepted as truthful, for example, that decision maker is precluded from sitting on any case involving the credit of that witness in the future if objection is taken. The ground for that preclusion is apprehended bias: Australian National Industries Ltd v Spedley Securities Ltd (in liq) & Ors (1992) 26 NSWLR, 411. But that is very different from looking at a decision, in which one party has been substantially or wholly successful, and concluding that from the fact of that decision and the way in which it is expressed, insofar as the expression discloses the reasons for reaching the decision, the decision maker was biased.

What I have just said has to he distinguished from a situation where the decision maker intrudes into his reasoning unnecessary, inappropriate or irrelevant criticisms or observations about a party, or witnesses, or the conduct of the case or the merits of the litigation. Such comments may, and I put the matter no higher than that, evince a response that a reasonable person looking at the remarks could reasonably conclude that the decision maker, when he entered upon the task of deciding the issues, did so with a biased mind in the sense that it was wrongly infected by irrelevant considerations."

Accordingly, in my opinion, bias and/or prejudice, cannot flow simply from a decision, albeit one which is highly critical of a party, provided the evidence and other matters eg demeanour, to which the tribunal of fact may legitimately have regard, supports the criticism. Usual judicial restraint will, almost invariably, ensure the criticism goes no further than achieving justice between the parties, but I would repeat that, in my opinion, the party, who or which has satisfied the trial Judge the criticism is justified, is, generally speaking, entitled to such a finding and the benefit it gives.

In the present case three main criticisms of bias and/or prejudice are made of his Honour's reasons. They are stated in the Amended Grounds of Appeal in various ways, but they are, in essence, that his Honour was critical of the appellant's lack of fluency in the English language, notwithstanding the time he has resided in Australia; that the appellant did not work for long periods but was in receipt of social service payments, in the context of which his Honour referred

URRAMADAN v NEW SOUTH WALES INSURANCE MINISTERIAL CORP (Rolfe AJA) 27

to "our social service system"; and that there was a possibility of some "overservicing" of the appellant by some doctors. I shall deal with these criticisms seriatim.

At AB394 his Honour, after referring to a submission by Mr Morris of Queen's Counsel, who appeared for the plaintiff on the trial, that the plaintiff was of limited education and fluency in English, considered a letter which had been written by a former employer. His Honour said:-

"His performance was satisfactory on vehicles with which he was familiar but it (the letter) goes on to say "He did not make any effort to overcome the language reading and writing problem which created excessive loss of time in translation'

• this led to his dismissal."

It was in the context of a claim for past economic loss his Honour was considering this and he continued:-

"Therein, of course, lies one of the plaintiff's problems. I am asked to award substantial damages for economic loss to the plaintiff who - even after seventeen years in Australia - still needs an interpreter for most of his evidence given in the witness box. There is no evidence as to the extent to which he has tried to improve his English speaking, reading and writing skills."

His Honour was dealing with an important head of damages, namely past economic loss. He also had to consider loss of future earning capacity and he was pointing out that on the evidence before him the appellant's lack of skills in the English language had led to his dismissal from one position, which he was otherwise qualified to perform, and thus potentially impacted adversely on his ability to follow his trade. Further, the letter made reference to the failure by the appellant to make an effort to overcome the language problem. The last sentence I have just quoted cannot, in this context, be read as a criticism, per se, of the appellant, but as some evidence assisting his Honour to the conclusion that the lack of fluency in the English language and the appellant's failure to rectify it, which had led to his dismissal from a prior position, did not assist him in obtaining employment and, of course, this was not a matter in any way attributable to the accident. In my view it borders on the fanciful to suggest that in context his Honour was manifesting bias or prejudice to the appellant in these circumstances. One consideration in relation to past economic loss and loss of future earning capacity, the legitimacy of which cannot be doubted, was the potential restriction imposed by the language difficulty. To seek to erect from that permissible finding of fact, in relation to a matter squarely in issue, an allegation of bias and/or prejudice, must, in my opinion, fail.

The second criticism stemmed from his Honour's finding that the appellant seemed to be prepared to rely on the social security system. In order to put the matter into context it is necessary to quote from his Honour's reasons commencing at AB400. His Honour said:-

'I am asked to award substantial damages to this man who says that pre-accident he was earning between $400 - $800 per week clear of expenses yet he disclosed only $5,556 clear of expenses up to June 1985 (seven months before the accident) and $7,100 in the next year. I reject his attempt to evade the issue by saying that the copy return presented to him was not signed.

That document has been forwarded to the defendant's solicitors by his own solicitors.

This is the same man who appears to have worked less than half of the nine years prior to the accident and has taken full advantage of our social security system to the extent that his counsel tells me that some $94,000 is likely to be demanded by the Social Security Department when the plaintiff receives his award of damages.

On pll of this judgment, I gave some preliminary findings. My additional findings are that the plaintiff has not persuaded me on the balance of probabilities that any continuing claim is the result of the accident. He has persuaded a number of the doctors to the contrary and I must reject their evidence. I am also not persuaded that the plaintiff is unfit for the work of a motor mechanic. He has misrepresented the extent of his pain level to various doctors and, probably, to the Social Security Department. He has almost certainly understated his income to the Taxation Department and, having come to Australia, he has not accepted the need to become conversant with the English language and, as a result, probably has some difficulty in obtaining a job."

When the paragraphs I have just quoted are read together I can see nothing about which legitimate complaint can be made by the appellant either in the context of an allegation of bias or prejudice, or in any other context. On the one hand his Honour noted there was an allegation of substantial earnings, which was not borne out by the income tax return furnished by the plaintiff. On the other, and in the same context, he noted the appellant, who was alleging he was earning between $400 and $800 per week and was entitled to be compensated on that basis, had worked for less than half of nine years prior to the accident and obtained substantial benefits from the social security system. A fair reading of his Honour's judgment means he was rejecting the claim that the appellant could earn between $400 and $800 per week clear of expenses, in part because for approximately four and half years he was obtaining social security payments. In my view, this is a legitimate method of reasoning having regard to the matters in issue before his Honour.

His Honour's reference to the appellant's not becoming conversant with the English language was, once again, very relevant in the matter he was considering, viz economic loss. It was, for the reasons I have given, supported by the evidence.

It has been suggested by the President that the description of the social security system as "our" system had the effect of "drawing a circle around" the system, within which are his Honour and others, but which excludes the appellant. Mr Russell conceded that perhaps the use of "our" was not entirely appropriate. Even if it were not, its use could not, in my opinion, conjure up any feeling that his Honour was biased or prejudiced, or was treating the appellant in a way different from the way in which he would treat anyone else. It seemed to be suggested, in this context, that his Honour was referring to the appellant being a "bludger" and, perhaps, that his Honour was taking some interest in the overall integrity of the social security system. I am unable to read the word "our" as connoting either this or a suggestion that his Honour was biased or prejudiced. As I have said one issue before his Honour was the amount of damages for past economic loss and future loss of earning capacity suffered by the appellant. The evidence was that from time to time the appellant had ceased work or engaged only in work on a part time basis, whilst obtaining social service benefits. This may not call for any criticism, but it seems to me it was obviously relevant for his Honour to take into account, in the context of such claims, the way in which, from time to time, the

URRAMADAN v NEW SOUTH WALES INSURANCE MINISTERIAL CORP (Rolfe AJA) 29

appellant had ordered his financial affairs in a manner inconsistent with the ability to earn the large amounts for which he contended.

Another attack made was that his Honour expressed the tentative conclusion that the appellant may have misled medically trained persons, who took part in the approval of social service benefits. Not only was this put forward in a tentative way, but it was clearly consequential upon his Honour's finding that the appellant had exaggerated the extent of his complaints to the treating doctors and, therefore, it may be inferred, also to those retained by the social security system. In my opinion these criticisms of his Honour are without foundation.

Finally it was submitted his Honour manifested bias or prejudice by suggesting there had been over servicing. It was submitted this had never been put to the doctors and, therefore, it was unfair for his Honour to have so concluded. But his Honour was not being critical of any doctor. He was of the view the appellant had exaggerated to him and to his doctors and, on the evidence this finding was open. From that finding he moved to the conclusion that there had been overservicing, ie servicing which, but for the appellant's exaggeration, would not have been necessary. Once again I find nothing in this which goes anywhere near supporting an allegation of bias or prejudice.

The various matters to which I have referred, whether taken individually or in aggregate, do not satisfy me in any way at all that his Honour was guilty of bias or prejudice. When read fairly, in the context of the whole of his Honour's reasons, they give no hint of any such pre-disposition.

The Court has been referred to at least one decision in which it has discerned, in other circumstances, comments showing bias and/or prejudice. In this area, in my opinion, every case must be decided on its own particular facts, and each judgment must be scrutinised having regard to what the trial Judge said in the context of the evidence before him or her and the issues for determination, and against the background of what transpired at the trial. One must also distinguish between cases where the conduct at trial is relevant as showing bias and/or prejudice, which has manifested itself in the ultimate judgment. I therefore find it unnecessary to refer to particular cases. The task before me is to determine whether McLachlan DCJ can be said from the terms of his judgment to have manifested bias and/or prejudice. I have come to the firm conclusion his Honour has manifested neither bias nor prejudice in the terms of his reasons for judgment, which is the only allegation made.

The appellant relies also upon apprehended bias arising, as I have said, from the same facts and circumstances as are said to constitute actual bias and/or prejudice. Whilst the concept of apprehended bias is well enough understood where there is some event, act or omission before or during the hearing or before the delivery of judgment, I have a difficulty in applying it where judgment has been delivered. I can understand a judgment being infected with actual bias, and so much appearing from a reading of it. I have more difficulty understanding how a judgment which, of necessity, may have to be critical, can give rise to an appearance of bias and, therefore, amount to apprehended bias. I am content to adopt, for present purposes, because I believe it is sufficient for the purposes of deciding this appeal, the analysis of Cole JA that apprehended bias involves a finding that a reasonable and intelligent lay observer, to which I would add with some knowledge of the relevant circumstances, may gain from a reading of the judgment an impression that the trial Judge may have been biased. In my view that impression could not be reached by such an observer reading his Honour's judgment.

I agree with the reasons of Cole JA that the other challenges to his Honour's judgment must fail. I propose that the appeal be dismissed with costs.

5 The appeal is dismissed with costs. Counsel for the appellant: K P Rewell Solicitors for the appellant: Keddies 10 Counsel for the respondent: D J Russell Solicitors for the respondent: Solicitor for New South Wales Insurance