Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Polsen v Harrison [2021] NSWCA 23 Hearing dates: 23 February 2021 Date of orders: 23 February 2021 Decision date: 03 March 2021 Before: Bell P; Basten JA; Simpson AJA Decision: 1. Leave to appeal granted. 2. Appeal dismissed with costs. Catchwords: COURTS AND JUDGES – bias – application for recusal – application declined – judge commented on role of plaintiff's expert at conclave – comments made during preliminary discussion as to amended pleading – whether a fair-minded lay observer might think judge might have pre-judged credibility of witness APPEALS – jurisdiction – appeal from "judgment or order" – refusal of a recusal application – application for disqualification made orally without notice of motion – whether refusal was a "judgment or order WORDS AND PHRASES — "judgment or order" – "fair-minded lay observer" Legislation Cited: Civil Procedure Act 2005 (NSW), s 57 Supreme Court Act 1970 (NSW), ss 19, 101 Cases Cited: AB v Director of Public Prosecutions (NSW) [2016] NSWCA 73 AJH Lawyers Pty Ltd v Careri (2011) 34 VR 236; [2011] VSCA 425 Almeida v Opportunity Equity Partners Ltd [2006] UKPC 44 Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175; [2009] HCA 27 Barakat v Goritsas [2012] NSWCA 8 Barton v Walker [1979] 2 NSWLR 740 British American Tobacco Australia Services Ltd v Laurie (2011) 242 CLR 283; [2011] HCA 2 Chamoun v District Court of New South Wales [2018] NSWCA 187 CNY17 v Minister for Immigration and Border Protection (2019) 94 ALJR 140; [2019] HCA 50 Concrete Pty Ltd v Paramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55 CUR24 v Director of Public Prosecutions (NSW) (2012) 83 NSWLR 385; [2012] NSWCA 65 Day v Saunders [2015] NSWSC 173 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 Galea v Galea (1990) 19 NSWLR 263 Gas & Fuel Corporation Superannuation Fund v Saunders (1994) 52 FCR 48 Grollo v Palmer (1995) 184 CLR 348; [1995] HCA 26 IOOF Australia Trustees Ltd v Seas Sapfor Forests Pty Ltd (1999) 78 SASR 151; [1999] SASC 249 Isbester v Knox City Council (2015) 255 CLR 135; [2015] HCA 20 Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48 Kostov v Director of Public Prosecutions (NSW) (No 2) [2020] NSWCA 94 Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70; [1990] HCA 31 Livesey v New South Wales Bar Association (1983) 151 CLR 288; [1983] HCA 17 McGovern v Ku-Ring-Gai Council (2008) 72 NSWLR 504 Michael Wilson & Partners v Nicholls (2011) 244 CLR 427; [2011] HCA 48 North Australian Aboriginal Legal Aid Service Inc v Bradley (2004) 218 CLR 146; [2004] HCA 31 Polsen v Harrison (No 3) [2021] NSWSC 125 Re JRL; Ex parte CJL (1986) 161 CLR 342 371; [1986] HCA 39 Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425; [2001] HCA 28 Reid v Commercial Club (Albury) Limited [2014] NSWCA 98 Rouvinetis v Knoll [2013] NSWCA 24 S&M Motor Repairs Pty Ltd v Caltex Oil (Australia) Pty Ltd (1988) 12 NSWLR 358 Stollery v Greyhound Racing Control Board (1972) 128 CLR 509; [1972] HCA 53 Tarrant v R [2018] NSWCCA 21 Vakauta v Kelly (1989) 167 CLR 568; [1989] HCA 44 Webb v The Queen (1994) 181 CLR 41; [1994] HCA 30 Category: Principal judgment Parties: Katrina Marie Polsen (Applicant) Dr Richard Harrison (Respondent) Representation: Counsel: M J Cranitch SC / J A Hillier (Applicant) M Windsor SC / M Hutchings (Respondent) Solicitors: Commins Hendriks (Applicant) HWL Ebsworth (Respondent) File Number(s): 2021/50323 Decision under appeal Court or tribunal: Supreme Court Jurisdiction: Common Law Division Citation: [2021] NSWCA 111 Date of Decision: 19 February 2021 Before: Lonergan J File Number(s): 2016/204451 [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] HEADNOTE [This headnote is not to be read as part of the judgment] The Applicant had brought an action against the Respondent for professional negligence in relation to bariatric surgery performed by the Respondent. A three-week hearing commenced on 15 February. On the third day of the hearing reference was made to the report of a joint conclave of medical experts, of which the primary judge had received a copy that morning. The primary judge expressed a view that a psychiatrist should not have been present at the expert conclave. She expressed the view that the psychiatrist's presence at the conclave was a problem; that he dominated the conclave on matters that ought to have been left to the surgeons; that his participation amounted to "advocacy in the extreme"; and that the evidentiary value of the experts' report may be in doubt as a result of the psychiatrist's participation. These views were expressed as 'flagging' to counsel potential issues arising from the joint experts' report, but were expressed in strong or colourful terms. At the time, counsel for the plaintiff did not dispute that the psychiatrist in question should not have been present at the conclave. The next day, counsel for the plaintiff made an oral application to the judge to recuse herself on the basis of apprehended bias in relation to the comments made the day before. Separately from his participation in the conclave, Dr Selwyn Smith was expected to give evidence for the plaintiff in relation to the psychiatric sequelae of the operation. It was submitted that the judge had made comments adverse to a significant witness for the plaintiff that might lead a fair-minded lay observer to apprehend that the judge might not bring an impartial and unprejudiced mind to a question to be determined, specifically concerning the credibility, usefulness and weight to be given to the evidence of the psychiatrist. The judge refused the recusal application. The plaintiff sought a stay of the proceedings in order to seek leave to appeal to this Court. The judge declined to grant the stay. The application for leave to appeal was heard concurrently with the appeal. The principal issues before the Court of Appeal were: (i) whether the Court of Appeal had jurisdiction to entertain the application for leave to appeal from a judge's refusal to recuse herself; (ii) whether the primary judge should have recused herself from the matter below. Held: by the Court, granting leave to appeal but dismissing the appeal: (i) An appeal lies from the trial judge's refusal to recuse herself without the need for any further order or direction which might form the basis of an interlocutory appeal: [40] Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427 applied Barton v Walker [1979] 2 NSWLR 740 not followed (ii) The primary judge did not err in refusing to recuse herself. The legal principles in question are uncontroversial: [46], [47]. In circumstances where the primary judge was not ruling on the admissibility of the joint report or of evidence to be given by the psychiatrist, and where her responses were necessarily impressionistic and intended to 'flag' concerns to counsel, the fair-minded lay observer would have expected that, if the judge were wrong in her assessment of the role played by the psychiatrist in the expert conclave, that would have been pointed out to her by counsel. That did not occur. The test as to whether a fair-minded lay observer might have feared that the judge might have prejudged a significant issue was not satisfied: [51]-[61]. Judgment 1. THE COURT: The applicant and respondent have civil proceedings pending in the Common Law Division. On the fourth day of the hearing the applicant requested that the trial judge recuse herself: she declined. The applicant seeks leave to appeal to this Court from the judge's refusal to recuse herself. The application raises two question, namely (i) whether the Court has jurisdiction to entertain the application and, if so, (ii) whether the Court should intervene. The answers are 'yes' and 'no' respectively. 2. The application for leave to appeal from the judge's ruling made on Friday 19 February 2021 was heard on Tuesday 23 February; at the conclusion of the hearing the Court made orders granting leave to appeal, dismissing the appeal with costs and reserving reasons. What follow are the Court's reasons for those orders. Background to application 1. On 15 February 2021, the trial judge commenced the hearing of a claim for damages for professional negligence brought by Katrina Marie Polsen against a Dr Harrison in the Common Law Division of this Court. The proceedings were set down for hearing some 18 months beforehand and were set to run for three weeks. 2. The plaintiff's case was opened on 15 February 2021 by Mr A J Bartley SC. In the course of his opening, the trial judge expressed her concern as to the adequacy of the pleading in light of the way in which the case was being opened. Two particular concerns were raised which related to the pleading of the scope of the duty of care alleged and the proper delineation of the risk of harm. Her Honour's concerns were echoed in his opening by Mr Windsor SC who appeared for Dr Harrison. 3. Much or all of the second day of the scheduled hearing was spent out of court, giving the plaintiff's legal representatives an opportunity to address the pleading points and matters of concern that had been raised by the trial judge on the first day of the hearing. 4. When the matter resumed on Wednesday 17 February 2021, debate ensued about an amended form of pleading which had been circulated to the defendant at 4.22pm the previous afternoon. In short the defendant's position was that the amendments presented in the fresh iteration of the pleading went well beyond the two matters about which the trial judge had expressed concern, sought to introduce new causes of action and/or new particulars of negligence which were said to be prejudicial and represented an unacceptable attempt to bring a new case after the commencement of the trial which, as noted above, had been set down some 18 months earlier and been confirmed as ready for hearing. 5. In the course of his submissions in relation to the new iteration of the Statement of Claim, Mr Windsor made reference to the fact that a joint conclave of experts had taken place and had produced a report (the joint report). Although the parties had received a copy of the joint report on the Monday that the hearing had commenced, it emerged that the trial judge had not, as at 17 February 2021, been provided with a copy of that report. 6. In the course of the debate about the proposed new iteration of the pleading, the trial judge, addressing Mr Bartley, said: "I thought at the end of Monday it was crystal clear what I directed to happen. That was to fix those two identified significant problems via a redrafting of a very limited part of the pleading; not a whole scale redraft. I didn't make a formal order and direction because I relied on the counsel at the bar table to take on board, given their seniority, what I had said on the record without reducing to a schoolmarm order. I see I should have done that because here I am dealing with an entirely new pleading". 1. Following that exchange with Mr Bartley, her Honour said: "It seems to me the choice is you either abandon the rewritten, redrafted expanded document that arrived last night and proceed and go back and fix, in accordance with the matters I raised on Monday and what I have just articulated, the December 2020 document, Amended Statement of Claim; or you press for the new document and the proceeding will be adjourned and the hearing date will be late next year …. Nobody wants that …" 1. After some further debate, Mr Bartley indicated that he would seek leave to amend and sought and was given time to prepare a formal application with supporting affidavit. The trial judge adjourned the matter until later in the day to allow these formalities to be attended to but, before she adjourned, was supplied with a working copy of joint report which both parties confirmed she should read during the course of the adjournment. 2. When the matter resumed, later in the afternoon on 17 February 2021, Mr Bartley provided the Court with written submissions in support of his application to amend. He pointed out to the trial judge that, in those submissions, he had referred to the joint report. That reference was the genesis of the following exchange between Mr Bartley and the trial judge which was the foundation for an application that was made on the following day that the trial judge recuse herself from continuing to hear the matter on the ground of apprehended bias. It is necessary to reproduce that exchange in full: "BARTLEY: In the submissions I have referred to the joint experts' report on liability. HER HONOUR: That document is a massive problem in my view. What on earth was Dr Selwyn Smith doing at that conclave? I consider that to be a car crash. I thought that the mention of Dr Selwyn Smith in the index to the court book was a typographical error. To the extent that I crossed it out, thinking it was just a duplication of Dr Smith, but what is a psychiatrist doing at a conclave which is talking about proper standards of care for decision making in respect of surgery? I have so many problems with his presence there. I just don't understand how that occurred. And as the judge hearing the matter, I consider that I've got a role in assisting the parties with a report that, to my mind, has gone completely off the rails by his presence. He dominated in a way that I think is entirely outside his area of expertise and I just don't understand why he was there. BARTLEY: Your Honour, it's a perennial problem with joint conferences as they are currently operating, because there tends to be an attitude during the - in advance of the joint conferences there tends to be an attitude that everybody that might have something to say is present at the joint conference. HER HONOUR: But why is it ever relevant for a psychiatrist to be there laying down the law about what he thinks should have been the activities of a surgeon? I'm asking that of the whole bar table, not just of you, Mr Bartley. What on earth was he doing there? BARTLEY: Just excuse me for a moment? HILLIER: So Dr Selwyn Smith only answered questions 1 to 4 and Dr Garett Smith-- HER HONOUR: I don't care which numbered questions he answered, he shouldn't have been there. BARTLEY: Yes, I know, your Honour, I understand that. HER HONOUR: I think that whole exercise has been a waste of time and costs and the whole thing has been bastardised by his presence. Anyway, I've got a strong view about it, but perhaps with the assistance of those at the bar table, that view might be modified. Was that a matter of agreement that he went? HILLIER: Yes, it was. HER HONOUR: I've never heard of anything so preposterous as a psychiatrist running the show for the first four questions of that conclave, which are matters for surgical experts to consider and provide the standard of care and the views articulated are advocacy in the extreme. Anyway, I wanted to flag that because I was so concerned. BARTLEY: Yes. May I just say that in general terms your Honour has flagged concern which I know as a matter of the Common Law Committee of the Bar Association, members have been raising issues relating to how closely supervised and directed joint conferences should be. And they seem to have acquired a life unto themselves. Different judges take different views as to them, but if I may say so, with respect, they are often - I mean, one sees joint conferences where you have physiotherapists and orthopaedic surgeons. I've seen one where there was a-- HER HONOUR: But that's fine and a matter for agreement between the parties in cases where on an issue by issue basis I assume there's careful discussion about who should be at what conclave, but I fail to see any possible propriety or relevance of having a psychiatrist for the plaintiff attending and apparently dominating the first four questions that are matters for surgical expertise, not psychiatric expertise. I'm flabbergasted about his attendance. Anyway, perhaps you can all help me with that but I wanted to flag that I have a significant concern. I mean, that doesn't rule out, I suppose - well, it might when I give it a bit more mature reflection, but deployment of anything in that joint report might have to be carefully thought about, because at the moment I'm seriously considering what, if anything, I can and ought to do in respect of it. I know it's not evidence in the proceeding, but I've got a real reservation about whether I'd accept it on any issue in these proceedings to be put before me as something upon which I should base any decisions in the proceeding". 1. After this passage, her Honour referred to some other aspects of the joint report which she considered problematic including the fact that different experts appeared to have been provided with different assumptions on which to base their expert opinions. 2. The balance of submissions on the afternoon of 17 February 2021 returned to the amendment application, the identification of authorities such as Aon Risk Services Australia Limited v Australian National University [1] which related to that application, and directions for Mr Windsor to address Mr Bartley's written submissions in support of the amendment application that had been provided in the course of the afternoon. 3. When the matter resumed on the morning of Thursday 18 February 2021, rather than proceeding to address on the amendment application, Mr Bartley made an oral application for the trial judge to disqualify herself from the further hearing of the matter on the basis of apprehended bias. The application was tied to the trial judge's comments the previous afternoon in relation to Dr Selwyn Smith and his role in the conclave that had led to the joint report. It was submitted that a fair minded lay observer might reasonably apprehend that in relation to the opinions expressed by Dr Selwyn Smith supportive of the plaintiff's case, the trial judge might not bring an impartial unprejudiced mind to his evidence. 4. Mr Bartley developed his submissions in support of this application at some length, emphasising the following references in the passage which has been set out at [11] above and which were also relied upon on appeal: (a) "What on earth was Dr Selwyn Smith doing at the conclave?" (T 83.35) (b) "I consider that to be a car crash". (T 83.36) (c) "I have so many problems with his presence there". (T 83.43) (d) That the conclave "has gone completely off the rails by his presence". (T 83.46) (e) "He dominated in way that I think is entirely highly outside his area of expertise". (T 83.46) (f) That he was "laying down the law about what he thinks should have been the activities of a surgeon". (T 84. 6) 2 (g) "I don't care which numbered questions he answered, he shouldn't have been there." (T 84.15) (h) "the whole thing has been bastardized by his presence". (T 84. 21) (i) "a psychiatrist running the show" (T 84.28) (j) "the views articulated are advocacy in the extreme". (T 84.31) (k) "I'm flabbergasted about his attendance". (T 84.48) (I) "I know its not evidence in the proceeding but I have got a real reservation about whether I'd accept it on any issue in these proceedings to be put before me as something upon which I should base any decisions in the proceeding". (T 85.5) 1. Mr Windsor, who had had no meaningful notice of the disqualification application, made extremely brief oral submissions, essentially taking the position that the question of disqualification was one for the court. [2] 2. The trial judge adjourned the matter at 10.54am on 18 February 2021 until Friday 19 February 2021 when she published her reasons for declining to recuse herself. [3] Her Honour concluded her judgment at [20] as follows: "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." 1. Following the delivery of those reasons, Mr Bartley applied for a stay of the proceedings, initially to seek instructions as to whether or not the plaintiff would seek leave to appeal from the recusal refusal and then, after such instructions had been obtained, for a stay pending the hearing of an application for leave to appeal. 2. Much of the balance of Friday 19 February was occupied hearing submissions in relation to the stay application. At the conclusion of those submissions, her Honour indicated that she declined to stay the proceedings and would provide written reasons on the following Monday morning, namely 22 February 2021. The reasons declining a stay were provided on the afternoon of 22 February 2021. [4] 3. A summons seeking leave to appeal to this Court from the decision refusing the recusal application was filed in the course of Monday 22 February 2021, together with a notice of motion seeking a stay of the proceedings in the Common Law Division pending determination of the appeal proceedings. 4. Following consultation with the President, the Registrar informed the parties that, rather than listing the notice of motion for hearing, the summons for leave to appeal would be listed as a matter of urgency the following morning and directions were made for the filing of submissions. The parties were informed on the Monday afternoon that a bench of three judges would be assembled with a view to hearing the application for leave to appeal and the appeal concurrently (if leave were to be granted) given the urgency of the matter and the fact that the trial would otherwise proceed (albeit that the trial judge had indicated that she would not hear the matter whilst the application for leave to appeal was being heard). 5. The application and appeal were heard concurrently on the morning of Tuesday 23 February. The primary judgment 1. In the course of her reasons in relation to the recusal application, the trial judge identified the relevant principles by reference to authority in this Court and the High Court. In particular, her Honour referred to the decision of Gleeson JA (with whom Emmett JA and Tobias AJA agreed) in Reid v Commercial Club (Albury) Limited [5] (with the emphasis below by underlining having been supplied by the trial judge): "[75] A judge should not sit to determine a case if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question to be determined: Michael Wilson & Partners Limited v Nicholls & Others at [31]. [76] The test of apprehension of bias is objective. It does not require an assessment of the state of mind of the judge, as is necessary on an inquiry about actual bias: Michael Wilson & Partners Limited v Nicholls & Others at [33]. Accordingly, this Court is not required or permitted to form a view as to whether the primary judge could be relied upon to determine the case impartially and on the evidence before her: Rouvinetis v Knoll [2013] NSWCA 24 at [24] per Basten JA (Ward and Barrett JJA agreeing). [77] An allegation of apprehended bias requires an objective assessment of the connection between the facts and circumstances said to give rise to the apprehension and the asserted conclusion that the judge might not bring an impartial mind to bear upon the issues that are to be decided. The question is not whether the judge had in fact prejudged an issue: Michael Wilson & Partners Limited v Nicholls & Others at 446 [67]. [78] It is necessary to keep in mind that claims of apprehension of bias are to be considered in the context of ordinary judicial practice. Active case management, as part of modern litigation, often requires that trial judges intervene in the conduct of cases. Judges are not expected to wait until the end of the case before they start thinking about the issues, or to sit mute while evidence is advanced and arguments are presented. Accordingly, the expression of tentative views, which reflect a certain tendency of mind of the judge, are not on that account alone to be taken to indicate prejudgment. Moreover, counsel are usually assisted by hearing the judges' tentative opinions on matters in issue and being given an opportunity to deal with them: Johnson v Johnson [2008] HCA 48; 201 CLR 488 at [13] (a case of alleged apprehension of bias) which referred to earlier comments in Vakauta v Kelly [1989] HCA 44; 167 CLR 568 at 571 (a case where actual bias was alleged)." 1. Her Honour also referred to the decision of the High Court in Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd [6] (with the emphasis below again having been supplied by the trial judge): "[110] The appeal involves the application of well-established principles, which were not in dispute and were both reiterated and explained in Ebner v Official Trustee in Bankruptcy [119] in the joint reasons of Gleeson CJ, McHugh, Gummow and Hayne JJ: 'Where, in the absence of any suggestion of actual bias, a question arises as to the independence or impartiality of a judge ..., a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide. That principle gives effect to the requirement that justice should both be done and be seen to be done, a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial. It is convenient to refer to it as the apprehension of bias principle ... The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty. Its application requires two steps. First, it requires the identification of what it is said might lead a judge ... to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits.' [111] In assessing the logical connection between a matter complained of and any deviation from deciding a case on the merits, (the 'second step' in Ebner v Official Trustee in Bankruptcy [120]) it is important to bear in mind the characteristics of modern litigation as recognised by Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ in Johnson v Johnson [121]: 'Whilst the fictional observer, by reference to whom the test is formulated, is not to be assumed to have a detailed knowledge of the law, or of the character or ability of a particular judge, the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice. The rules and conventions governing such practice are not frozen in time. They develop to take account of the exigencies of modern litigation. At the trial level, modern judges, responding to a need for more active case management, intervene in the conduct of cases to an extent that may surprise a person who came to court expecting a judge to remain, until the moment of pronouncement of judgment, as inscrutable as the Sphinx. In Vakauta v Kelly, Brennan, Deane and Gaudron JJ, referring both to trial and appellate proceedings, spoke of 'the dialogue between Bench and Bar which is so helpful in the identification of real issues and real problems in a particular case'. Judges, at trial or appellate level, who, in exchanges with counsel, express tentative views which reflect a certain tendency of mind, are not on that account alone to be taken to indicate prejudgment. Judges are not expected to wait until the end of a case before they start thinking about the issues, or to sit mute while evidence is advanced and arguments are presented. On the contrary, they will often form tentative opinions on matters in issue, and counsel are usually assisted by hearing those opinions, and being given an opportunity to deal with them.' [112] Sometimes judicial interventions and observations can exceed what is a proper and reasonable expression of tentative views. Whether that has happened is a matter of judgment taking into account all of the circumstances of the case [122]. However, one thing that is clear is that the expression of tentative views during the course of argument as to matters on which the parties are permitted to make full submissions does not manifest partiality or bias [123]." 1. The trial judge's reasoning in light of these principles was short but to the point as follows: "[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. [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. [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. [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. [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. [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." Appellate jurisdiction 1. An important preliminary issue is whether or not an appeal lies from the trial judge's refusal to recuse herself on the ground of apprehended bias. 2. The appellate jurisdiction of this Court is conferred by statute. Relevantly with respect to proceedings in a Division of the Court, it is conferred by s 101 of the Supreme Court Act 1970 (NSW), in the following terms: 101 Appeal in proceedings before the Court (1) Subject to this and any other Act and subject to the rules, an appeal shall lie to the Court of Appeal from— (a) any judgment or order of the Court in a Division, and (b) without limiting the generality of paragraph (a)— (i) any opinion, decision, direction or determination of the Court in a Division on a stated case, (ii) any exercise of a power to which section 24 applies, and (iii) any determination of the Court in a Division in proceedings remitted under subsection (4) of section 51. 1. The Act presently contains no definition of the phrase "judgment or order", or its constituent parts. In its original form, s 19 provided an expansive definition, but, in Barton v Walker, [7] Samuels JA (with the agreement of Reynolds and Glass JJA) concluded that the definition did not assist in determining whether refusal of a recusal application constituted a "judgment". [8] Samuels JA continued: "The order, which the appellants contend was made, was not entered …. However, the only formal disposal of the proceeding which could have occurred was his Honour's decision to reject the appellants' request; and, if that request were an application in the strict sense, then that decision would certainly have constituted an order …. The matter is best approached, therefore, by considering whether the appellants' request … amounted to a justiciable application. If the appellants were seeking to make an interlocutory application 'in or for the purposes of or in relation to' the proceedings commenced by their statement of claim, they should have made it by motion … of which, in the ordinary case, notice should have been given. No notice of motion was filed. But it is not uncommon for the Court to entertain a motion for certain orders without notice …." 1. After considering aspects of principle and practice with respect to the making of requests for recusal, Samuels JA concluded: [9] "What emerges from these authorities is that, even where an interlocutory procedure has been established for disqualification on the ground of actual bias, the public interest in the expeditious administration of justice is seen to militate against interlocutory appeals (or their equivalent) where all questions at issue may be determined upon an appeal after final judgment. But in the end this first question is determined by what was said by the majority in Watson's Case: [10] 'It was submitted on behalf of the husband that the wife's proper remedy was to appeal to the Full Court of the Family Court. As to that submission no more need be said than that an appeal lies only from a "decree" …, which means a "decree, judgment or order" …, and a judge who simply continues to sit after it has been submitted that he is disqualified does not thereby make a "decree".' Nor does he make an order, I would think, if he announces that he will sit, or gives reasons for deciding to do so. I do not consider that any order was made in the present case from which an appeal can be brought." 1. Samuels JA then turned to consider whether the Supreme Court in its inherent jurisdiction enjoyed a power to make a declaration the effect of which would be to disqualify a judge of the Court from sitting. Having rejected that proposition, the judgment turned to the factual submissions on which the claim of apprehended bias was founded, concluding that they had no substance. The last issue to be addressed was the submission that "hardship, delay and unnecessary cost may be entailed by the lack of a summary means of disqualifying a superior judge." [11] The submission was said to be unpersuasive in the circumstances, as the application for recusal was not made until there had been argument on complex questions of law and judgment had been reserved. That matter would necessarily have been argued afresh before another judge if the recusal application had succeeded; on the other hand, if the judge held against the appellants, they would have had an appeal on which "all the matters of bias so fully developed in these applications could have been raised and disposed of as well." [12] 2. The purpose in explaining the reasoning in Barton v Walker in some little detail is that in Michael Wilson & Partners v Nicholls [13] the plurality in the High Court stated: "[82] … The decision in Barton v Walker depended upon the proposition that whether a judge should continue to hear a case was a matter only for the judge concerned and that a motion that the judge disqualify himself or herself was 'not cognizable'; [14] the judge was held [15] to make no order on the application for disqualification. [83] The decisions about apprehension of bias that have been given by this Court since Barton v Walker show that a judge's decision to grant or refuse an application for disqualification is not a matter only for the particular judge. As was pointed out [16] in the plurality reasons in Ebner, the apprehension of bias principle has its roots in principles fundamental to the common law system of adversarial trial." 1. Subsequent passages referred to an application to seek to leave to appeal from the refusal of a recusal application at an interlocutory stage, without referring to any requirement to identify a subsequent interlocutory order as a mechanism for a valid challenge. On this basis, the application for leave to appeal from the refusal by the trial judge to recuse herself was an application with respect to a judgment or order for the purposes of s 101(1) of the Supreme Court Act. 2. There are, however, two aspects of the reasoning in Michael Wilson which may cast doubt upon that conclusion. First, the passage set out above describing the effect of Barton v Walker commenced with the following sentence which has been omitted from the quotation, namely: "In so far as Barton v Walker holds to the contrary, that decision should not be followed." 1. While the effect of that statement is to overrule Barton v Walker, it might be read as restricted to a specific point previously addressed. The immediately preceding passage considered whether there had been an opportunity for the respondents to appeal from the refusal of their recusal application, outlined as follows: "[80] In this case, if the respondents were right in asserting that there was a reasonable apprehension of bias, the whole of the trial with its attendant expense and use of court time would be wasted. Of course it must be recognised that the respondents in this case had no right to appeal against the refusal of Einstein J to recuse himself. But the respondents did have a right to seek leave to appeal. [81] As was explained in Gas & Fuel Corporation Superannuation Fund v Saunders, [17] a later interlocutory order made by a judge who has refused an application that the judge not hear the matter on account of a reasonable apprehension of bias is an order against which leave to appeal can be sought on the ground that the judge who made the order should not have done so. Conversely, as Saunders itself illustrates, where a judge allows an application for disqualification and makes orders effecting that decision, [18] leave to appeal can be sought against those orders on the ground that they should not have been made. Thus the order against which the respondents could have sought leave to appeal in this case was whatever order was made by Einstein J after he had refused to recuse himself. If, as the respondents asserted, Einstein J should not have continued to sit in the matter, whatever order was made (other than an order adjourning the case for the purpose of allowing another judge to deal with it) was an order which should not have been made by the judge who made it and would found an application for leave to appeal. And as it happened Einstein J made such an order on 4 June 2009 when he set dates for compliance with the general requirements for trial of proceedings in the Equity Division." 1. The passage at [80] did not suggest that the availability of an interlocutory appeal was contingent upon a subsequent interlocutory order being made which could become the subject of an appeal. On the other hand, the reference to Saunders, may have suggested otherwise. While the Full Court of the Federal Court in Saunders (Gummow and Heerey JJ, Davies J agreeing) accepted the validity of the conventional approach, it did so in relation to a recusal application that had been upheld at a time when the judge had announced the outcome of the case, but had stood the matter over for final orders. He had then made orders giving effect to the recusal by requiring that there be a new trial before another judge. The Full Court accepted that that order was a basis for an application for leave to appeal. 2. In the circumstances, the better way to read the first sentence in [82] is by reference to the observations which followed it, which provide the explanation as to why Barton v Walker should not be followed. As the summary of Barton v Walker set out above shows, other than the need to find a later order to appeal, there was no other relevant legal principle established by Barton v Walker. Further, to the extent that Saunders accepted the application of that principle, it did not need to do so. 3. The second basis for concern as to adoption of the reasoning in Michael Wilson is that it was concededly unnecessary for the determination of the case. [19] The question whether, by not commencing an interlocutory appeal, the respondents had waived their right to object to the judge continuing to hear the matter, did not arise. [20] It follows that the availability of an appeal from a refusal to recuse did not arise. 4. In Barakat v Goritsas, [21] Basten JA sitting alone took the view that, absent a clear statement that the High Court was overruling, not only Barton v Walker, but other authorities which followed similar reasoning, it was not appropriate for a single judge not to follow earlier authorities in intermediate courts of appeal. Particularly was that so in circumstances where High Court authority in Ex parte Armstrong, which had been relied on in Barton v Walker, was not expressly departed from in Michael Wilson, being referred to only in a footnote introduced by "[s]ee also". [22] In this case, it is less easy to avoid the issue. 5. Given the specific legal issue with respect to jurisdiction determined in Barton v Walker, it is difficult to read the statement in Michael Wilson that that case should not be followed, together with the explanation for that conclusion, as other than an affirmation that an interlocutory appeal may be brought from a decision to refuse a recusal application, without the need to wait for some further direction or order which might itself form the basis for an interlocutory appeal. 6. It must follow from the statement at [80] of Michael Wilson (that the respondents had a "right to seek leave to appeal" from Einstein J's refusal to recuse himself) that the Court was treating that decision as an "order" or "judgment", albeit on an interlocutory issue, within the meaning of s 101 of the Supreme Court Act. If an application for disqualification were made formally by notice of motion and resulted in a refusal to recuse, the notice of motion would be dismissed with costs and an application for leave to appeal would undoubtedly lie from such an order. No different result should obtain if the application for disqualification has been made orally. The question of jurisdiction should not turn on matters of form over substance. 7. As explained in Michael Wilson, properly understood a recusal application involves a challenge to the jurisdictional competency of the tribunal, as then constituted, to determine the case. There would be an irony in finding that an interlocutory appeal was always available with respect to the upholding of a recusal application, but only in respect of a refusal in circumstances where a further order followed or a notice of motion seeking such an outcome had been filed as opposed to having been made orally. What is more, it is usually easy to manufacture a further order, simply by seeking a stay pending disposal of a foreshadowed application for leave to appeal. That was what happened in the present case. 8. The reasoning in Michael Wilson means there is no basis for construing the phrase "judgment or order" in s 101 of the Supreme Court Act as not including a judgment or order determining a recusal application, whether such an application is made by formal notice of motion or not. It follows that this Court has jurisdiction to consider the application for leave to appeal from the trial judge's refusal of the recusal application. 9. The very fact that the issue of jurisdiction is one of some importance indicates that this was an appropriate case in which to grant leave to appeal. Did the trial judge err in refusing to recuse herself? Relevant principles 1. The first stage of the two stage Ebner test requires the identification of what it is said might lead a judge to decide a case other than on its legal and factual merits whilst the second requires an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. 2. No issue was taken with the trial judge's identification of the legal principles relevant to a disqualification application on the grounds of apprehended bias. Rather, the challenge was to her Honour's evaluative conclusion that the test for apprehended bias was not satisfied in the present case. 3. To the passages from the authorities extracted and emphasised by the trial judge (see [23]-[24] above) may be added the following propositions: 1. the application of the apprehended bias rule depends on the circumstances of each case; [23] 2. the fair-minded lay observer is an hypothetical figure, founded in the need for public confidence in the judiciary; [24] 3. there is an unavoidable level of imprecision in the standard of what a fair-minded lay observer "might" apprehend, such that a fanciful or speculative possibility must be clearly distinguished from the requisite "firmly-established" apprehension of bias; [25] 4. a finding of apprehended bias is not to be reached lightly; [26] 5. this is because the training, tradition and oath or affirmation of a professional judge require him or her to discard the irrelevant, the immaterial and the prejudicial; [27] 6. the duty of a judge to disqualify for proper reasons is matched by an equally significant duty to hear any case in which there is no proper reason to disqualify; [28] 7. the fair-minded lay observer is presumed to approach the matter on the basis that ordinarily the judge will act so as to ensure both the appearance and the substance of impartiality, [29] such that 8. the rebuttal of this presumption requires a "realistic possibility" of the apprehension of bias which is not "fanciful or extravagant" but is based on "the established facts" of the matter; [30] 9. "neither complacent nor unduly sensitive or suspicious", the fair-minded lay observer may have a level of scepticism as to professional pretensions, but will be cognisant of and vigilant against his or her own prejudices; [31] 10. the inquiry as to whether a judge might reasonably be apprehended to deviate from bringing an impartial mind to the resolution of a particular issue "requires no prediction about how the judge … will in fact approach the matter" and "admits of the possibility of human frailty"; [32] 11. the fair-minded lay observer is not presumed to reject the possibility of pre-judgment of a matter, otherwise an apprehension of bias would never arise in the case of a professional judge; [33] however, 12. interventionist comments or conduct by a judge will not unilaterally create an apprehension of bias in the mind of the reasonable lay observer, who is taken to understand that such interventions are often motivated by the judge's desire to understand the evidence and to advance the trial process; [34] 13. it is "difficult, and probably impossible, to state in the abstract, in a manner suitable for application to cases generally, the degree of knowledge to be attributed to a fair-minded observer"; [35] 14. there is to be attributed to the fair-minded observer a broad knowledge of the material objective facts as ascertained by the appellate court [36] and the "actual circumstances of the case" [37] as though the observer was sitting in the court; [38] 15. the fair-minded lay observer is taken to know the nature of the decision, the circumstances which led to the decision and the context in which it was made; [39] 16. the context which must be considered includes the legal, statutory and factual context in which the decision is made, [40] and "the totality of the circumstances", [41] although the fair minded lay observer will not be taken to have a detailed knowledge of the law or legal principles; [42] 17. the knowledge that the fair minded observer is taken to have is not limited to those facts and matters that were known at the time of an application for recusal and includes published statements made by the judge (whether prior, contemporaneous, or subsequent to the recusal application); [43] 18. the fair-minded lay observer will not act on "insufficient knowledge", but will "inform himself [or herself]" of the relevant circumstances, without making "snap judgments"; [44] 19. the judge's own view about his or her ability to decide the case independently and impartially, as recorded in any reasons for dismissing a recusal application, carries little weight in the fair mind of the hypothetical lay observer, [45] although 20. statements in a recusal judgment regarding factual matters, including the particular context of the comments or conduct in question, may be relevant; [46] 21. the fair-minded lay observer would not reasonably apprehend bias on the part of a judge from a short and emotional exchange taken out of context and weighed in isolation; [47] 22. the fair-minded lay observer will have regard to the cumulative effect of comments made by a judge and not to particular individual statements removed from their context; [48] and 23. subsequent statements made by a judge, following the comments or conduct said to give rise to a reasonable apprehension of bias, may indicate that an earlier expressed statement or impression was not final or that the judge had not committed to a particular point of view. [49] Consideration 1. In the present case, the various statements set out in [15] above from the exchange between the trial judge and Mr Bartley in the course of consideration of his amendment application were properly identified by the applicant in accordance with the first stage of the two stage Ebner test as matters that might be apprehended to lead the trial judge to decide the case other than on its legal and factual merits. 2. The logical connection between those matters and the feared deviation from a decision on the merits was said to be that the trial judge had taken a set against a particular expert witness to be called by the applicant, namely Dr Selwyn Smith, and that that meant that her Honour might be perceived as being unlikely to consider and take into account his evidence, when ultimately admitted, in a fair, balanced and impartial way. This would of course be to the applicant's great detriment. 3. The starting point of the analysis must be that the various statements listed in [15] above should not be considered or viewed in isolation or taken out of the context in which they were made. That context is very important. 4. A reasonable observer of the exchange between the trial judge and Mr Bartley would have observed and or be taken to know of or to have informed him or herself of the following matters: 1. at the time that the exchange upon which the applicant relies occurred, the trial judge was not ruling on the admissibility of either the joint report or any expert report of Dr Selwyn Smith and would know that that would occur later in the course of the trial; 2. the trial judge had only received the joint report earlier that day and had had only a short period of time in which to read it, with her responses to it necessarily impressionistic; [50] 3. the trial judge was "flagging" initial concerns she had with the joint report because Mr Bartley had indicated that he would be relying on it to some extent to support or explain his amendment application; [51] 4. the conclave process was for the purpose of experts in the same discipline identifying in a joint report points of agreement and disagreement between them with a view to facilitating the trial process; 5. the role of an expert was to assist the Court and not to be an advocate in the interests of the party in whose case the expert was providing evidence; 6. the trial judge had responsibility for managing the trial in order to facilitate: ● the just determination of the proceedings; ● the efficient disposal of the business of the court; ● the efficient use of available judicial and administrative resources; and ● the timely disposal of the proceedings, and all other proceedings in the court, at a cost affordable by the respective parties; [52] and 1. that this included a desire to understand the evidence and to advance the trial process; [53] 2. that the trial judge was proceeding on the footing, based upon her understanding of the case as opened to that point in time, that no psychiatric issues were relevant to the issues of liability [54] and that Dr Smith was only being called to give evidence on the topic of the sequelae of the allegedly negligent surgery; [55] 3. on the basis of that understanding, the parties should not have agreed to Dr Selwyn Smith being party to the expert conclave on issues of liability; 4. that, to the extent that Dr Smith had contributed to the joint report and conclave, the trial judge's impression was that he had dominated it and had argued forcefully for his point of view in what he had written in a manner that was not appropriate for an expert witness; 5. that if and to the extent that the trial judge was wrong in her understanding as to the relevance and role of the psychiatric evidence to be given by Dr Smith in the case, that would be pointed out to her by competent counsel; 6. that if a judge has proceeded on a misapprehension or mistaken view about a matter and that was pointed out to him or her, the judge would acknowledge that misconception and proceed in accordance with a correct understanding of the case or aspect of the case; 7. that the trial judge had not reached a final or concluded view about the matters in relation to which she had expressed her views. 1. This final point flows from the trial judge's statements towards and at the conclusion of the exchange with Mr Bartley that: "I've got a strong view about it, but perhaps with the assistance of those at the bar table, that view might be modified. … … I wanted to flag that I have a significant concern. …. …. I mean, that doesn't rule out, I suppose - well, it might when I give it a bit more mature reflection, but deployment of anything in that joint report might have to be carefully thought about …" (Emphasis added.) 1. Whilst the trial judge described herself as having a "strong view about it", it is plain from these remarks as well as her Honour's use of the verb "flag" twice in the passage reproduced at [11] above that her "view" was not set in stone and to that extent was at least a provisional view, albeit not perhaps as tentatively articulated as it might have been. 2. Many and indeed most of the individual statements set out in [15] above and relied upon by the applicant, when viewed in context as they would be by a reasonable, fair-minded observer, would not in our opinion have been understood to be personal criticisms of Dr Smith but rather criticism of the process by which, on her Honour's understanding of the case, he came to be involved in the conclave and joint report at all and the consequence of that in light of the intended purpose of a joint report. 3. The trial judge's evident frustration with Dr Selwyn Smith's presence in the conclave can be attributed to her apparent understanding that the issues on which he was expressing an opinion in answers to the first four questions posed had nothing to do with his field of expertise and that his answers, as recorded in the joint report, were trespassing into fields properly the province of the expert surgeons. As explained below, this understanding may have been mistaken but what is of significance for present purposes is considering how the exchanges relied upon by the applicant would have been understood by the fair-minded observer who would not have had a copy of the joint report in front of him or her. 4. The trial judge's colourful language of "a car crash", her statements that she had "so many problems with his presence there", that the joint report had "gone completely off the rails by his presence", that the "whole thing has been bastardised by his presence", that "he shouldn't have been there" and that she was "flabbergasted about his attendance" all fall within the same category of complaints about the conclave process having miscarried because of the mixing of disciplines and the straying from confined areas of professional expertise. So much is plain from those portions of her Honour's statements that we have emphasised in the quoted statements above. 5. That this was a concern not with Dr Selwyn Smith but the legal representatives and the process that had been followed in the conclave may be seen in her Honour's remark that: "I'm asking that of the whole bar table, not just of you, Mr Bartley. What on earth was he doing there?" (Emphasis added.) This remark, being directed as it was to the legal practitioners on both sides of the record, would not have suggested or conveyed to the reasonable fair-minded observer that the trial judge's lively concern was directed at only one side of the record. That may also be seen in her Honour's question as to whether it was a matter of agreement between the parties that Dr Smith was in attendance at the conclave. 1. Further support for the view that the trial judge's remarks were, at least for the most part, directed to the process that had been followed in the conclave and the preparation of the joint report rather than to Dr Selwyn Smith personally may also be seen from the fact that Mr Bartley's initial response was to say: "it's a perennial problem with joint conferences as they are currently operating, because there tends to be an attitude during the - in advance of the joint conferences there tends to be an attitude that everybody that might have something to say is present at the joint conference" and then to make reference to the fact that the process followed and management of conclaves was a matter that was being discussed by the Common Law Committee of the New South Wales Bar Association. In other words, it was an area of concern and debate at a general level. It was not without relevance that that is how Mr Bartley appeared to have understood the trial judge's remarks. 1. In the course of the hearing of the appeal, the Court was provided with a copy of the joint report that was the subject of the trial judge's critical remarks. Whilst it is not necessary to express a concluded view on the matter, it may well be that, contrary to her Honour's initial impression and understanding as articulated in her exchanges with Mr Bartley, the first four questions addressed in that report involved a disciplinary overlap in respect of which a psychiatrist's opinion as well as a surgeon's opinion may well be relevant with the consequence that it may have been appropriate for Dr Selwyn Smith to participate in that aspect of the conclave and to contribute to the joint report. 2. Unfortunately, rather than pointing out to her Honour that she may have been or was in fact mistaken in her view as to the relevance and or appropriateness of Dr Selwyn Smith providing answers to the first four questions posed to the experts (in which case, a reasonable fair-minded observer would legitimately have expected the trial judge to acknowledge her mistake if a mistake there had been), to the contrary, Mr Bartley appeared to agree with the trial judge's view that the doctor should not have been at the conclave. Thus, in response to her Honour's statement that "he shouldn't have been there", he said "Yes, I know your Honour, I understand that". 3. This response would have conveyed to the reasonable fair-minded observer that the trial judge's criticism of Dr Selwyn Smith's presence at the conclave was justified and acknowledged by the plaintiff's senior counsel. Most significantly, viewed in this light, the reasonable fair-minded observer would not have viewed the trial judge's critical remarks as evidence or a manifestation of bias or prejudgment on her Honour's part about Dr Smith personally or as to his credibility as an expert witness or the contents of his expert report(s), which her Honour did not have before her. Her remarks would have reasonably and fairly been considered as a criticism of the process which the legal representatives on both sides of the record had allowed to miscarry. 4. In relation to the trial judge's remarks about Dr Selwyn Smith dominating the conclave and being an advocate "in the extreme", an issue arose in the course of oral argument as to whether or not the reasonable observer would be taken to have knowledge as to what was actually contained in the joint report. Mr Cranitch SC, who appeared for the applicant on the appeal, submitted that he or she should be taken to have such knowledge. We disagree. 5. The hypothetical fair-minded lay observer is just that, a hypothetical observer of the process, to whom is to be attributed contextual knowledge as well as common sense and some general understanding of the trial process and the role of judges: see [50] above. The observer is not, however, a participant in the trial and his or her attributed or notional observations of the trial process do not fall to be assessed on the basis that he or she possesses or has a detailed knowledge of either the law [56] or the detail of court documents or particular pieces of evidence beyond that which may have been picked up from observing the court process and listening to counsel and exchanges with the judge. 6. What the reasonable fair-minded hypothetical observer would be taken to know about the conclave process and the report would, in our opinion, be derived from a general attributed knowledge of legal process together with that which would have been gleaned from observing proceedings in the course of the trial. In the present case, that knowledge would have relevantly included that the purpose of a conclave was for the experts in the same discipline to identify points of agreement and disagreement between them with a view to facilitating the trial process, that a report had been prepared which was only provided to the trial judge on the Wednesday morning of the hearing, that the trial judge had had only a brief opportunity to read it during a court adjournment, that her Honour was of the view (perhaps mistaken) that the principal issue on liability concerned the actual surgery undertaken by Dr Harrison on the plaintiff and that her Honour could not see or understand the relevance of the psychiatric opinion of Dr Selwyn Smith to this issue, and that her Honour's impression based on reading the report was that Dr Selwyn Smith had dominated the conclave and the views attributed to him were argumentative. 7. Accepting that every case will turn on its own facts and particular context, generally speaking, for a judge to observe that a witness had dominated or appeared to dominate a process does not amount to prejudgment or give rise to an apprehension of bias. 8. It is not uncommon, for example, when evidence is being given concurrently for a particular witness to dominate or to seek to dominate others involved in the process, whether intentionally or inadvertently, whether by force of personality, by garrulousness or by reason of the comparative personality of other witnesses involved in giving evidence concurrently. It is equally not uncommon for a judge to comment on that fact adversely by instructing a particular witness not to interrupt others, to give succinct answers, to focus on answering the particular question(s) asked and not to advocate for a particular cause or outcome. But no one would suggest, perhaps extreme examples aside, that to do so gave rise to an apprehension of bias requiring the disqualification of the judge. 9. The trial judge's comments about Dr Selwyn Smith appearing to have dominated the conclave do not appear to be any different in principle than observations that are frequently made by trial judges to and about lay and expert witnesses. 10. So also, in the course of argument, Mr Cranitch properly accepted that a judge instructing a witness, whether lay or expert, not to be an advocate when answering questions, would not give rise to an apprehension of bias on the judge's part. Rather, it would be a manifestation of the judge trying to ensure that the evidence that was being given was as helpful as possible to the Court in reaching a view as to the facts or as to a question requiring the assistance of experts. 11. Further, the trial judge's remarks about Dr Selwyn Smith dominating the conclave process would have been understood by the fair-minded observer as reflecting the trial judge's honest impression of his role in the conclave on the basis of what she had read in the joint report. Those statements, moreover, would have been understood in the context of the trial judge's overwhelming concern about the overall conclave process which has already been addressed. 12. For these reasons, we do not consider that a hypothetical fair-minded observer might have reached the conclusion, based upon his or her observations of the hearing and the exchange set out in [11] in particular, that there was a realistic possibility that the judge might not discharge her obligation to act without fear or favour, affection or ill-will by reason of statements she had made about Dr Selwyn Smith. ********** Endnotes 1. (2009) 239 CLR 175; [2009] HCA 27. 2. Tcpt, 17 February 2021, p 97.45. 3. Polsen v Harrison (No 2) [2021] NSWCA 111. 4. Polsen v Harrison (No 3) [2021] NSWSC 125. 5. [2014] NSWCA 98 at [75]-[78]. 6. (2006) 229 CLR 577; [2006] HCA 55 at [110]-[112]. 7. [1979] 2 NSWLR 740. 8. Barton at 747E. 9. Barton at 751B-D. 10. The Queen v Watson; Ex parte Armstrong (1976) 136 CLR 248 at 266; [1976] HCA 39. 11. Barton at 758C. 12. Barton at 759A. 13. (2011) 244 CLR 427; [2011] HCA 48 (Gummow ACJ, Hayne, Crennan and Bell JJ). 14. [1979] 2 NSWLR 740 at 750. See also R v Watson; Ex parte Armstrong (1976) 136 CLR 248 at 266 per Barwick CJ, Gibbs, Stephen and Mason JJ; Rajski v Wood (1989) 18 NSWLR 512; Australian National Industries Ltd v Spedley Securities Ltd (In liq) (1992) 26 NSWLR 411. 15. [1979] 2 NSWLR 740 at 751. 16. (2000) 205 CLR 337 at 343-345 [3]-[7]. 17. (1994) 52 FCR 48 at 64 per Gummow and Heerey JJ. See also Brooks v Upjohn Co (1998) 85 FCR 469 at 475-476. 18. Gas & Fuel Corporation Superannuation Fund v Saunders (1994) 52 FCR 48 at 58. 19. Michael Wilson at [86]. 20. Michael Wilson at [74] (and heading). Heydon J expressly reserved questions as to waiver and about the correctness of Barton v Walker: Michael Wilson at [118]. 21. [2012] NSWCA 8. 22. See fn 65 at [82]. 23. British American Tobacco Australia Services Ltd v Laurie (2011) 242 CLR 283; [2011] HCA 2 at [133]; Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70 at 87–88; [1990] HCA 31 (Laws). 24. Webb v The Queen (1994) 181 CLR 41 at 73; [1994] HCA 30 (Webb); Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48 at [12] (Johnson); Grollo v Palmer (1995) 184 CLR 348 at 394; [1995] HCA 26; North Australian Aboriginal Legal Aid Service Inc v Bradley (2004) 218 CLR 146; [2004] HCA 31 at [29]. 25. Re JRL; Ex parte CJL (1986) 161 CLR 342 at 352 (Re JRL); [1986] HCA 39;; Tarrant v R [2018] NSWCCA 21 at [12]. 26. Re JRL at 371; [1986] HCA 39; CNY17 v Minister for Immigration and Border Protection (2019) 94 ALJR 140; [2019] HCA 50 at [56] (CNY); 27. Vakauta v Kelly (1989) 167 CLR 568 at 584–585; [1989] HCA 44 (Vakauta); CNY at [28]. 28. Kostov v Director of Public Prosecutions (NSW) (No 2) [2020] NSWCA 94 at [32]. 29. Livesey v New South Wales Bar Association (1983) 151 CLR 288 at 299; [1983] HCA 17 (Livesey). 30. McGovern v Ku-Ring-Gai Council (2008) 72 NSWLR 504 at [110]; Day v Sanders [2015] NSWSC 173 at [94]; Stollery v Greyhound Racing Control Board (1972) 128 CLR 509 at 518–519; [1972] HCA 53. 31. Rouvinetis v Knoll [2013] NSWCA 24 at [24]; S&M Motor Repairs Pty Ltd v Caltex Oil (Australia) Pty Ltd (1988) 12 NSWLR 358 at 375–376 (S&M); Johnson at [53]. 32. Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 at [7]–[8] (Ebner). 33. British American Tobacco Australia Services Ltd v Laurie (2011) 242 CLR 283; [2011] HCA 2 at [145] (British American Tobacco); Livesey at 299. 34. Concrete Pty Ltd v Paramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55 at [4]; Almeida v Opportunity Equity Partners Ltd [2006] UKPC 44 at [103]. 35. IOOF Australia Trustees Ltd v Seas Sapfor Forests Pty Ltd (1999) 78 SASR 151; [1999] SASC 249 at [185]. 36. Webb at 73. 37. Laws at 87. 38. Webb at 73, fn 25 39. Isbester v Knox City Council (2015) 255 CLR 135; [2015] HCA 20 at [23] (Isbester); CNY at [58]; 40. Isbester at [20]. 41. CNY at [21]. 42. Johnson at [13]. 43. Webb at 73–74; Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425; [2001] HCA 28 at [28]; Isbester at [23]. 44. S&M at 380–381; AB v Director of Public Prosecutions (NSW) [2016] NSWCA 73 at [21] 45. British American Tobacco at 309 and 331 46. CUR24 v Director of Public Prosecutions (NSW) (2012) 83 NSWLR 385; [2012] NSWCA 65 at [35]–[42]. 47. Galea v Galea (1990) 19 NSWLR 263 at 279E. 48. AJH Lawyers Pty Ltd v Careri (2011) 34 VR 236 at 254–255; [2011] VSCA 425 at [67]–[68]; Chamoun v District Court of New South Wales [2018] NSWCA 187 at [46]. 49. Tarrant at [13]. 50. See [7], [10], [11] and [12] above. 51. "Anyway, I wanted to flag that because I was so concerned. … but I wanted to flag that I have a significant concern." See [11] above. 52. Civil Procedure Act 2005 (NSW) s 57. 53. See [46(xii)] above. 54. Thus the trial judge said in the passage extracted at [11] above "but I fail to see any possible propriety or relevance of having a psychiatrist for the plaintiff attending and apparently dominating the first four questions that are matters for surgical expertise, not psychiatric expertise." 55. In her judgment on the recusal application extracted at [25] above, the trial judge said, "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". 56. See Johnson at [13]. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 03 March 2021