Polsen v Harrison (No 5)

1. [1]

   On day 11 of this medical negligence trial, and what was to be day four of the plaintiff’s cross-examination, the plaintiff, without notice to the Court, made a second application that I recuse myself.

2. [2]

   The order sought in the Notice of Motion filed in Court on 3 March 2021, pursuant to leave, is framed as an order that “Lonergan J is disqualified from presiding over the proceedings”.

3. [3]

   The basis of this application was stated to be that my tipstaff, Ms Quinlivan, was formerly an employed solicitor at the firm of solicitors acting for the defendant, HWL Ebsworth, and that on one occasion, in February 2019, she attended a directions hearing before the Registrar at which there was some debate about timetabling of preparation steps then being undertaken.

4. [4]

   Based on the submissions relied upon by the plaintiff and the authorities stated by senior counsel for the plaintiff, Mr Bartley SC, to be supportive of the application, I interpreted this application to be a request to recuse myself from hearing the matter any further on the basis of apprehended bias.

5. [5]

   I refused the application and these are my reasons.

The evidence

1. [6]

   The plaintiff relied upon an affidavit of Tonya Teresa Longmore, a solicitor employed by Commins Hendriks Solicitors. She deposed to having undertaken a review of the file and noted a letter from Ms Carruthers, HWL Ebsworth dated 5 February 2019, signed as “special counsel”. The letter is appended to the affidavit and dealt with timetabling and complaints regarding late service of evidence on the part of the plaintiff. The letter noted that a guillotine order in relation to service of further expert evidence from the plaintiff would be sought at the directions hearing. It also noted that Ms Quinlivan would be attending the directions hearing on 6 February 2019 on behalf of the defendant.

2. [7]

   Ms Longmore deposed to a belief that on 6 February 2019 the matter was “not dealt with by Registrar Bradford by consent”. She does not state the basis for that belief or what it is that she reviewed on the file that led her to that conclusion or to what matter the “absence of consent” pertained. She does not depose to having been present at the directions hearing - indeed her observations suggest that she was not present. She does not refer to a conversation with anyone who was present, as the basis for her assertions.

3. [8]

   Ms Longmore annexed Supreme Court Practice Note SC CL-7 which includes the following:

4. [9]

   An extract from the transcript of the trial is also annexed where I raised with counsel for their consideration the fact that an expert rheumatologist relied upon by the plaintiff attended high school with me. In that transcript I noted that I have not seen her for 12 years and I have never had any dealings with her in a professional context, but thought I should put that on the record in case it is mentioned that she knows me. I also noted that I did not see it as a problem and that I have never discussed with her anything to do with her occupation or mine.

5. [10]

   Also annexed was an extract from the Supreme Court website describing the process for applying for a position as tipstaff or associate to the Supreme Court, and broadly their functions.

6. [11]

   Mr Bartley requested that I take into account on the application that when his client Ms Polsen was informed of the role a tipstaff has in assisting a judge in legal research and the like, and was told that my current tipstaff had worked for the defendant’s firm in the past, his client said “How can that be fair?”

Submissions

1. [12]

   Mr Bartley submitted that on 6 February 2019, competing sets of orders and submissions were advanced on behalf of Ms Polsen and Dr Harrison as well as the then second defendant the Murrumbidgee Local Health District and that Registrar Bradford was “required to give consideration to the competing positions being advanced and determine the orders to be made”. No evidence was tendered on the application in support of that being the position, however I take that assertion in the written submissions at face value for the purposes of determining this application.

2. [13]

   The disclosure I made in respect of Dr Bleasal set out in paragraph 8 above is noted to be the only disclosure made in the course of the hearing to date.

3. [14]

   Mr Bartley submitted that the test by which I should decide whether to disqualify myself is set out in the joint judgment of Gleeson CJ McHugh, Gummow and Hayne JJ in Ebner v The Official Trustee in Bankruptcy [2000] 205 CLR 337 (“Ebner”) at [6] and [7]:

4. [15]

   Mr Bartley submitted that the manner in which the principle is to be applied is set out in Ebner at [8]:

5. [16]

   Mr Bartley submitted that the following collected statements of principle in the following cases, lead to the inexorable conclusion that I must disqualify myself from continuing to hear the proceedings:

6. [17]

   Mr Bartley sought to distinguish the circumstances examined in the decisions of Hurley v McDonald’s Australia Ltd [2000] FCA 961 (“Hurley”) per Dowsett J at [87] and Gaynor v Local Court of NSW & Ors [2019] NSWSC 516 (“Gaynor”) per Harrison J, because the factual matters that were considered in those cases were fundamentally different to the present factual matrix. In those cases the staff in issue, an associate and tipstaff respectively, had not previously appeared for a party in the proceedings, nor did they have significant confidential information relevant to the respective proceedings or a particular party. (I interpolate here that the basis for asserting in submissions that Ms Quinlivan had “significant confidential information” was never explained and does not seem to have its origin in any evidence before the Court).

7. [18]

   Mr Bartley argued that Ms Quinlivan was “duty bound to act in accordance with Dr Harrison’s best interests” and was “privy to significant confidential information concerning the case against Dr Harrison and his defence of it”. He does not reference any evidence in support of either submission but as I understand it, says that I should infer it from the circumstances.

8. [19]

   Mr Bartley submitted that Practice Note CL7 requires the legal representative to have a certain level of knowledge to enable compliance with the practice note and that the fact that Ms Quinlivan had “acted for” Dr Harrison in the course of these proceedings had not been disclosed by me and that I should have drawn the matter to the attention of the parties: S & M Motor Repairs Pty Ltd v Caltex Oil (Australia) Pty Ltd (1988) 12 NSWLR 358 and Dovade Pty Ltd v Westpac Banking Corporation (1999) 46 NSWLR 168 at [105] to [107].

9. [20]

   In terms of application of the test in Ebner, Mr Bartley argued that the asserted connection with the possibility of departure from impartial decision-making is that the fundamental role of a tipstaff, whose role is to provide legal research, in Court duties and other support and to assist judicial officers in their work, means that a fair-minded lay observer might reasonably apprehend that in being assisted by that tipstaff, I might not bring an impartial and unprejudiced mind to the resolution of the questions that I will be called upon to decide, namely the ultimate determination of the proceedings.

10. [21]

    It was submitted that the basis for this is that the tipstaff previously “acted for” Dr Harrison and that I had not disclosed this in the course of the hearing and that I may be provided with assistance by the tipstaff in a way that would lead to the relevant apprehension.

Dr Harrison opposes the application: submissions and principles

1. [22]

   In opposing the application, Mr Windsor SC also relied upon the statements of principle in Ebner at [6], but emphasised that as stated in CNY 17 v Minister for Immigration and Border Protection (2019) ALJR 140 (“CNY”) at [21], it is necessary to identify the factor which is claimed might lead a decision maker to decide the matter otherwise than on an independent and impartial evaluation on the merits, and there must be consideration of the reasonableness of the apprehension of the deviation from a decision on the merits being caused by the identified factor: Ebner at [8].

2. [23]

   The evidence should identify how an independent observer might construe the evidence in a way that would cause a party to feel that a judge was possibly unable, or that there was even an appearance that the judge was possibly unable, to bring an impartial mind to the resolution of the dispute: Gaynor at [36].

3. [24]

   Mr Windsor submitted that there are four distinct, sometimes overlapping ways in which the impartiality of the Court may be, or may appear to be, compromised: British American Tobacco Australia Services Ltd v Laurie (2011) 242 CLR 283; [2011] HCA 2 at [24]; Webb and Hay v R (1994) 181 CLR 41; [1004] HCA 30 at [25] namely:

4. [25]

   Apprehended bias must be firmly established. The suspicions of the ultrasensitive, paranoid or cynical must not be allowed to determine the legal standard of impartiality. A vague sense of unease or disquiet is not enough: Farkas v Thomason [2020] WASC 67 at [74] quoted in Kostov v Director of Public Prosecutions (NSW) (No 2) [2020] NSWCA 94 at [30].

5. [26]

   Apprehended bias must be assessed by reference to all the circumstances of the case: CNY 17 at [135].

6. [27]

   A Court ought to attribute to a fair-minded lay observer, knowledge that in a civil case trial by judge alone anywhere in Australia, whatever assistance the judge may have from persons who are not judges, such as counsel, solicitors, witnesses, assessors, the judge’s associate or tipstaff or other Court staff, ‘the judgment in the case, the exercise of judicial power, remains that of the judge: Bahonko v Moorfields Community and Others [2012] VSCA 89 at [32].

7. [28]

   As observed by Harrison J at [35] and [38] in Gaynor, cases are decided by judges, not their staff.

8. [29]

   Mr Windsor submitted, correctly, that there was no suggestion that the tipstaff would have any input or influence on the decision-making process given it is the judge who will make the decision.

9. [30]

   The evidence suggests that there was one attendance at a short directions hearing two years ago at which there was a debate about whether a self-executing order and other timetabling orders should be made.

10. [31]

    There is no evidence at all that Ms Quinlivan had any role in the day-to-day conduct of the proceedings.

11. [32]

    It is surprising that junior counsel for the plaintiff Ms Hillier did not identify the tipstaff on the first day of the hearing and the complaint has now only been made on day 11 of the hearing.

12. [33]

    The disquiet expressed by Ms Polsen herself about the tipstaff relationship and role in chambers is not sufficient to form a basis to grant the application.

Decision

1. [34]

   The legal principles in question for applications of this type are uncontroversial, but some aspects of them bear emphasis in the context of this application.

2. [35]

   Gleeson JA (with whom Emmett JA and Tobias AJA agreed) usefully set out the test for apprehended bias in Reid v Commercial Club (Albury) Limited [2014] NSWCA 98 at [75] to [78]:

3. [36]

   CNY17 v Minister for Immigration and Border Protection & Anor [2019] HCA 50 at [56] to [58] also provides useful statements of principle:

4. [37]

   As correctly pointed out by Mr Windsor SC, the applicant plaintiff must demonstrate that the identifying factor - that my tipstaff attended a single directions hearing two years ago where there may have been a dispute about the timetable for service of documents - might lead me to decide the issues that I have to decide in this trial, namely, content of duty of care, breach of duty, causation and damages, other than objectively and on their merits.

5. [38]

   The apprehension must be reasonable.

6. [39]

   It is unreasonable to suggest that there is any link at all between events two years ago involving my tipstaff - about which there is no evidence other than that she attended a directions hearing - and my judging the final issues in this trial.

7. [40]

   Issues of timetabling and arguments about those timetabling directions are very far removed from anything I have to decide. The Registrar dealt with those passing timetabling issues two years ago.

8. [41]

   As was stated with clarity by Harrison J in Gaynor at [35] and [38], judges, not their staff members, decide cases.

9. [42]

   The evidence led from the bar table about Ms Polsen’s own view, is irrelevant to the questions that have to be considered for apprehended bias.

10. [43]

    The test is based on the reasonable fair-minded lay observer, which for obvious reasons, Ms Polsen cannot be.

11. [44]

    Although delivered on 3 March 2021, the day after this argument was heard, the decision of the Court of Appeal in Polsen v Harrison [2021] NSWCA 23 usefully collects from the authorities, amongst other relevant considerations, the principles that underpin the test of the reasonable fair minded lay observer at [46]:

12. [45]

    I reject the application made for me to recuse myself from further hearing this trial as it has not been demonstrated that there is any link between my tipstaff attending a directions hearing two years ago for the defendant, and any reasonably held apprehension that I might not impartially decide the issues for final determination in this case.

13. [46]

    The plaintiff is to pay the defendant’s costs of this application.