High Court of Australia
New South Wales Court of Appeal Mahoney, McHugh and Clarke JJA Vakauta v Kelly
ORDER (By majority) Appeal dismissed with costs
Cur adv vult
27 July 1988 MAHONEY JA.
The plaintiff sued the defendant for damages caused to her by the defendant's negligence in the driving of a motor vehicle. On 24 December 1986 the learned trial judge gave judgment for the plaintiff for $529,500. The defendant has appealed to this Court against that judgment.
The notice of appeal was filed in 1987. The grounds of appeal included matters going to the quantum of the judgment: those grounds have not been pursued. The grounds of appeal which have been pressed have been only that the learned trial judge displayed ostensible bias or pre-judgment against the defendant; and that "the last offer of the defendant in settlement nego tiations was communicated by the plaintiff's counsel to his Honour's associate at the conclusion of the hearing and prior to his Honour's delivering reserved judgment thereby rendering the appearance of a fair trial nugatory".
In so far as the suggestion that the defendant's offer of settlement was communicated to his Honour's associate is intended to constitute a ground of appeal separate from the ground relating to bias or ostensible bias, it may be put aside. The submission has been that, after his Honour had reserved judgment on 3 December 1986, counsel then appearing for the defendant heard senior counsel for the plaintiff at the trial saying to his Honour's associate words to this effect: '… and their last offer was $375,000'. There was no other evidence concerning that matter. The complaint was, in substance, that the counsel for the plaintiff then involved had, in breach of propriety, communicated to the associate what was the last offer of settlement; that this was done in circumstances that a reasonable person would infer it might have been conveyed to the learned judge; and, as I think the suggestion was, that this was apt to influence a judge in such a case as the present.
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