Polsen v Harrison (No. 2)

1. [1]

   Yesterday morning, under the shadow of a yet to be heard application to extensively amend a Further Amended Statement of Claim in a complex medical negligence matter on day three of the trial, an application has been made by the plaintiff for me to recuse myself on the ground of apprehended bias.

2. [2]

   The basis of the application concerns comments made in Court by me on Wednesday afternoon as to the role played by a psychiatrist, Dr Selwyn Smith, in a joint liability conclave he attended with eight surgeons, in a case concerning the liability of a surgeon for bariatric surgery performed in 2013.

3. [3]

   Senior Counsel for the plaintiff advised the Court that the joint report from the liability conclave, received by the Court on Wednesday morning, would be relied upon to support the application to amend the Further Amended Statement of Claim.

4. [4]

   Given that stated position, I flagged with the parties what I saw to be potential problems with the deployment of that joint report created by the presence at the conclave of Dr Selwyn Smith who, in that context, commented on questions of liability that were in my view the province of surgical experts not psychiatrists, and the additional problem that the four surgeons retained by the plaintiff and Dr Selwyn Smith were noted by the convener of the conclave to have been given an additional and different set of assumptions to those held by the four surgeons who attended on behalf of the defendant.

5. [5]

   In that context I sought the assistance of counsel and made a number of observations about the joint conclave process and resulting report, some of which have been raised by Senior Counsel for the plaintiff as providing a basis for a fair minded lay observer to apprehend that I might not bring an impartial mind to the resolution of a question for decision at the trial: Michael Wilson & Partners Limited v Robert Colin Nicholls & Ors (2011) 244 CLR 427; [2011] HCA 48 at [68] per Gummow ACJ, Hayne, Crennan Bell JJ.

The observations in issue

1. [6]

   At 3:50pm on Wednesday 17 February 2021, the Court re-convened for the plaintiff’s counsel to provide an update regarding the progress of the preparation of the proposed application to amend. After a discussion about the documentation that had just been forwarded to chambers, this exchange occurred:

2. [7]

   Senior Counsel for the plaintiff submitted that these were views expressed before there was any evidence in the case, views expressed unsolicited by the seeking of any order by a party in relation to the joint conference and without knowing that Dr Selwyn Smith’s presence and participation in four questions at the conference was by consent.

3. [8]

   I do not accept that this accurately describes the situation. First, the Court was well-aware that the only way Dr Selwyn Smith could have been present at the conclave was with the agreement of both parties. Second, the plaintiff’s Senior Counsel made it very clear that the plaintiff intended to deploy the liability conclave joint report in support of her application to amend which was to be heard the next morning. The admissibility and or use to which the joint report could or should be put is a matter subject to Uniform Civil Procedures Rules 2005 (NSW) (“UCPR”) 31.26 and the discretions set out in UCPR 31.24. This had become a live and pressing issue and the problems with the report were flagged in that context to ensure counsel were prepared to deal with it the next day.

4. [9]

   The submission was made that a fair minded lay observer, hearing those comments about a witness of importance in the plaintiff’s case, might legitimately have some degree of concern as to whether the tribunal would pay less attention at the trial to the opinions of Dr Selwyn Smith than the opinions of others. That fair-minded observer might think that Dr Selwyn Smith’s opinions will be treated in a different category by the Court and that he is in a category of an expert who does not take seriously his obligation to the Court, given his conduct has led to a “car crash”, his conduct “bastardised” the whole conference and who in his conduct in the conference, behaved in a way that the Court described as “advocacy in the extreme”.

5. [10]

   It was submitted that Dr Selwyn Smith is the only expert who will be called in the plaintiff’s case regarding the psychiatric sequelae of the physical injuries suffered by her. Taken cumulatively, a fair-minded lay observer must at least have sown in their minds objectively the seeds of doubt about Dr Selwyn Smith being treated in a different category from other experts called in the case.

Other issues raised about the joint liability report

1. [11]

   For context and completeness I include the exchange that followed on from the observations in issue:

Principles

1. [12]

   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]:

2. [13]

   CNY17 v Minister for Immigration and Border Protection & Anor [2019] HCA 50 at [17], [21], [56] to [58] also provides useful statements of principle:

3. [14]

   Further consideration was provided in Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55; at [110] to [112]:

Decision

1. [15]

   One issue of the many live issues in the proceedings is the assessment of the psychiatric sequelae of the defendant’s negligence. Dr Selwyn Smith is the plaintiff’s sole medico-legal expert in that regard, there being no evidence from any treating psychiatrist or psychologist. His role in the proceedings is thus not unimportant, but the context of my comments about his presence at the liability conclave says nothing at all about the credence and respect with which his relevant expert evidence will be treated.

2. [16]

   Senior Counsel for the plaintiff was at pains to point out that what was in fact in my mind at the time of the exchange is irrelevant to the objective test to be applied and it forms no part of my consideration of the plaintiff’s application that I in fact hold no pre-conceived view or judgment about the content of Dr Selwyn Smith’s expert views in the proceedings at all.

3. [17]

   Given the objective test provided by the authorities, it is no part of my determination that if such an apprehension is or might be reasonably held by a fair minded lay observer, it would be wrong.

4. [18]

   Having reviewed the authorities cited by Senior Counsel for the plaintiff: Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427; [2011] HCA 48; Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48; Chamoun v District Court of New South Wales [2018] NSWCA 187; British American Tobacco Australia Services Ltd v Laurie (2011) 242 CLR 283; Barakat v Goritsas (No 2) [2012] NSWCA 36; Isbester v Knox City Council (2015) 255 CLR 135; [2015] HCA 20 and having considered the authorities provided for my assistance by Senior Counsel for the defendant: Wehbe v Minister for Home Affairs (2018) 361 ALR 1; [2018] HCA 50; Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; 2006); [2006] HCA 55, I have formed the view that the cumulative effect of the exchange set out in full in [6] above does not meet the test that what I have said might reasonably cause a fair-minded lay observer to apprehend that I might not bring an impartial mind to the resolution of a question for decision at the trial – namely the credibility, usefulness and weight to be given to the evidence of Dr Selwyn Smith.

5. [19]

   Whilst acknowledging the fact that the test addresses the chance that a fair- minded lay observer would apprehend that I might not bring an impartial mind to the resolution of a question for decision at the trial, that apprehension still needs to be a reasonable apprehension. The context of the comments in issue was clearly one of case management, alerting counsel to issues which would require addressing first thing the next morning, before the pressing application for leave to substantially amend could be entertained. Additional context is that the trial could not proceed until these matters were clarified and determined. Expressing preliminary views robustly, and seeking assistance from counsel about those tentative views does not indicate pre-judgment. It is part of ordinary judicial function and practice to articulate potential problems to ensure counsel are on notice of concerns and can use out of Court time to think about them and assist the Court by addressing them.

6. [20]

   I do not accept that taken individually or cumulatively the comments about the difficulties created by the parties requiring Dr Selwyn Smith’s presence at the expert surgeons liability conclave meet the test for apprehended bias. The application to recuse myself is rejected.