Polsen v Harrison (No. 3)

1. [1]

   On day five of a 15 day medical negligence trial, having refused the plaintiff’s application on day four to recuse myself from hearing the trial, (Polsen v Harrison (No 2) [2021] NSWSC 111), the plaintiff made an oral application for a stay of the proceedings conditional upon the plaintiff forthwith filing an application for leave to appeal from the decision refusing to recuse myself from hearing the case.

2. [2]

   The application was made orally upon handing down my judgment Polsen v Harrison (No 2). Given its urgent nature I proceeded to hear the application without formality. The defendant took no objection to the application proceeding this way but submitted that there is no right of appeal of the type foreshadowed by the plaintiff and even if there was, a stay should not be given at this relatively advanced stage of the trial and the trial should proceed.

3. [3]

   I was provided with authorities by Senior Counsel for the plaintiff, Mr Bartley SC, and Senior Counsel for the defendant, Mr Windsor SC. These authorities, ranging from Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685; (1985) 10 ACLR 42 to Vitality Works Australia Pty Ltd v Yelda [2021] NSWCA 4 (decided three weeks ago) have led me to the view that there is some arguable tension between those authorities – in particular tension created by the High Court obiter dicta in Michael Wilson & Partners Limited v Nicholls [2011] HCA 48 (“Michael Wilson”) - as to whether there is a right of appeal on an interlocutory basis when the only decision made is a refusal by a Supreme Court Judge to recuse herself or himself from continuing to hear a trial.

4. [4]

   At the completion of argument I refused to order a stay, and adjourned early to provide the plaintiff’s legal advisors with time to prepare the proposed appeal, and indicating this hearing can be adjourned when counsel are required to appear in the Court of Appeal to argue the application.

5. [5]

   These are my reasons for refusing to stay the proceedings.

The power to order a stay

1. [6]

   The power to order a stay of proceedings is set out in s 67 of the Civil Procedure Act 2005 (NSW):

2. [7]

   In considering this application and any application before me, I must have full regard to ss 56, 57 and 58 of the Civil Procedure Act:

3. [8]

   In support of her application for a stay, reliance was placed by the plaintiff upon the statements of the Court of Appeal in Alexander v Cambridge Credit Corp Ltd (1985) 2 NSWLR 685; (“Alexander”). That case dealt with an application to stay execution of a judgment pending appeal, but as stated by Basten JA in Barakat v Goritsas [2012] NSWCA 8 at [22] (“Barakat”), the principles stated still provide relevant guidance:

4. [9]

   Basten JA re-stated and refined these principles in Barakat in that part of his judgment headed “Basis of the application for leave to appeal”, in the context of pre-trial rulings made by a trial judge who had refused to recuse himself for apprehended bias:

5. [10]

   At [29], [30] and [31] in Barakat Basten JA considered the power pursuant to which a judge of appeal could make an order to preserve the status quo pending the hearing of an appeal. He noted that in relation to an appeal against an interlocutory order that may involve, in an appropriate case, directing that the trial not proceed pending determination of the appeal or ordering a stay of proceedings in the court below having a similar effect, s 46(2) of the Supreme Court Act 1970 (NSW) provides the power to preserve the status quo pending the hearing of an appeal, his Honour adding: “No doubt, as a matter of practice that power, will not be exercised to vacate or override an earlier order given by another judge absent a change of circumstances”.

6. [11]

   The situation with which I am dealing is a little more uncertain than that presented in Barakat given that there is arguably no “order” from which the plaintiff seeks leave to appeal.

7. [12]

   In Barakat the applicants invited Basten JA to revisit the “conventional view” of resistance to interlocutory intervention in trial proceedings, absent a clear indication that the applicants for intervention are likely to succeed:

8. [13]

   The reference to “the past” in [10] of Barakat I take to be a reference to the approach of the Court of Appeal in Jae Kyung Lee v Bob Chae-Sang Cha & Ors [2008] NSWCA 13 (“Lee v Cha”) and in particular the observations of Hodgson JA at [1] to [3]; Makucha v Sydney Water Corporation (No 2) [2011] NSWCA 249 at [6] (“Makucha”) and Nikolaidis v Legal Services Commissioner 2005 NSWCA 91 at [15] to [16] and [18] (“Nikolaidis”) (amongst others). In Nikolaidis, Bryson JA highlighted the different considerations that apply when a stay of execution of the judgment is sought, such as in Alexander, as opposed to a stay in relation to proceedings which are part heard. See in relation to this distinction the helpful discussion in Vitality Works Australia Pty Ltd v Yelda [2021] NSWCA 4 (“Vitality”) at [15] to [20] per Payne JA, upon which Mr Windsor SC placed reliance, and which provides in my view a pragmatic and proper approach to issues such as these.

9. [14]

   The relevant part of the “approach” of the High Court in Michael Wilson was as follows:

10. [15]

    I have reproduced the extract from Michael Wilson in full because it formed a central focus of the plaintiff’s application, as did the detailed review of its effect by Basten JA in Barakat at [15] to [21], where his Honour dealt with the question of the potential repercussions of failure to seek leave to appeal and that it could be considered to be a waiver of that right, and circumstances where and why the Court of Appeal had, and should, grant leave to appeal in such circumstances:

11. [16]

    Reliance was also placed by Mr Bartley on Barakat v Goritsas (No 2) [2012] NSWCA 36 at [63] to [64] (“Barakat (No 2)”) as providing critical context and articulating the test that unless the appeal is “patently untenable” leave to appeal should be granted:

Submissions

1. [17]

   It was submitted by Mr Bartley that given leave to appeal would be granted based on Barakat (No 2) a stay of proceedings should be ordered by me now, recognising that a grant of leave is a forgone conclusion.

2. [18]

   As I understand the argument advanced by Mr Bartley, I should read the comments by the High Court in Michael Wilson as support for the proposition that I should grant a stay now, because, in effect, the plaintiff has no option but to pursue the application now so she is not precluded later. I should also exercise my discretion to grant a stay now because the failure to do so will lead to weeks of hearing time being wasted, should the plaintiff’s proposed appeal succeed, and it serves the dictates of justice to prevent that occurring.

3. [19]

   Mr Bartley submitted that I should not countenance the artificiality of waiting for an “order” to be made in the proceedings, when it is evident that the effect of the plaintiff’s appeal, if upheld, is that I cannot hear any more of the case and it must be allocated to another judge.

4. [20]

   Mr Bartley also relied upon the judgment of Campbell JA in Vaughan v Dawson [2008] NSWCA 169 at [17] which seemed to provide a different test to that in Barakat (No 2), namely to consider whether there is a serious question to be tried. He submitted that the judgment refusing to recuse myself failed to deal with the nub of the plaintiff’s argument and therefore there is a serious question to be tried, and the balance of convenience favours granting a stay to avoid wasted costs associated with hearing the matter, when success on appeal would have the effect of disqualifying me from hearing the matter.

5. [21]

   On behalf of the defendant, Mr Windsor SC submitted that there is no right of appeal of the type that Mr Bartley asserts and the standard that would apply on such an application is not the standard argued for the plaintiff. In support of these submissions he relied upon Vitality at [14]; Makucha at [6] and Lee v Cha at [1] to [3] per Hodgson JA.

6. [22]

   Second, the observations of Basten JA at [14] in Barakat, make it clear that neither prerogative relief nor injunctive relieve would lie against a decision of a judge of the Supreme Court in the prevailing circumstances.

7. [23]

   Third, it was submitted bearing in mind those matters, as well as the stage of the proceedings generally, I should exercise my discretion not to grant a stay given the delays that a stay would cause. The defendant is entitled to have the trial proceed. Although in day five of the trial and no evidence has yet been led, the case is well advanced. The balance of convenience favours continuing with the trial, not only because of costs, but also the inconvenience and prejudice to the defendant if his case is not heard and determined. Proper application of ss 56 to 60 of the Civil Procedure Act requires that the hearing proceed and any applications made to the Court of Appeal can at the relevant time take their own course.

Decision

1. [24]

   None of the authorities to which I have been taken dealt precisely with the same circumstances as this application, where no order at all had been made by the trial judge and so no order could form any part of the basis for the application for recusal.

2. [25]

   That does not mean that the principles cannot be extracted and applied, but it seems to me that I am obliged, based on the observations of Basten JA in Barakat in [15] and [16] to question whether there is binding judicial statement to the effect that the decision of a Supreme Court judge rejecting a recusal application can, by itself, form the subject matter of the proposed appeal.

3. [26]

   Given that position, I consider that I ought not grant a stay of proceedings for the purpose of pursuit of what may well comprise a misconceived appeal.

4. [27]

   On the question of whether I should, regardless, exercise my discretion to grant a stay on the basis that there may be a right to seek leave to appeal, given what was said in the obiter remarks of the High Court in Michael Wilson, I conclude that does not tip the balance of convenience towards granting a stay. In that regard I am also persuaded by the considerations articulated by Mr Windsor and my obligations as a judge of the Court pursuant to s 57 of the Civil Procedure Act, to use Court time allocated to this trial, unless and until it is evident that I cannot.

5. [28]

   In reaching this view I have also taken into account my indication to counsel after hearing argument on the stay application, (at T155.1-25), that I would adjourn the hearing to allow counsel to attend any hearing in the Court of Appeal.

Orders

1. [29]

   The plaintiff’s application for a stay of proceedings is refused.