CONSTANTIN GEORGIEV v GUENTHER GROESCHL SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL Hope, SAMUELS and CLARKE JJA 14 March 1989, 14 March 1989 [1989] NSWCA 84 NEGLIGENCE — CONTRIBUTORY NEGLIGENCE — DAMAGES — IMPAIRMENT OF EARNING CAPACITY — BIAS — NO QUESTION OF PRINCIPLE Clarke JA This is an appeal by Mr Constantin Georgiev, the plaintiff in the court below, against the direction by McInerney J that judgment be entered in his favour in the sum of $25,144. The plaintiff, as I will call Mr Georgiev, has challenged that judgment on three bases. He says that his Honour was in error in deducting 25% of the damages on account of his contributory negligence. In the second place he says that the assessment of damages was flawed in fundamental respects and that the court should set aside the award and direct a new trial. In the third instance he challenges the award upon the basis that it was the product of a biased mind; in other words he charges McInerney J with actual bias such as to require that the award be set aside. It is convenient to deal in the first place with the challenge to the finding of contributory negligence. Before going to the facts I should point out that his Honour found that in all the circumstances of the case the defendant, who had been sued by the plaintiff, was not keeping a proper lookout and his failure to keep such a lookout was causally related to the injuries suffered by Mr Georgiev. Upon that basis he concluded that the plaintiff was entitled to a verdict. He then turned his attention to the question of contributory negligence and concluded that the plaintiff failed to observe the defendant's vehicle until a point at which it struck him or was just about to strike him. Insofar as on his Honour's finding the accident took place just short of the centre of the road he came to the conclusion that if the plaintiff had looked before he started to cross the road or even after he had started to cross the road he would have observed the vehicle being driven by the defendant in plenty of time to take avoiding action. According to his Honour the failure to take any steps to become aware of traffic approaching constituted negligence on the part of the plaintiff which itself contributed to his accident. Upon the apportionment of fault between the plaintiff and the defendant his Honour concluded that the defendant was 75% to blame. The challenge is not directed to the apportionment of fault; rather it is said that his Honour was in error in concluding that the defendant had shown that the plaintiff was guilty of negligence. In order to evaluate this complaint it is necessary to refer back to the two versions of the incident. The plaintiff himself said that about 7.50 am on 2 April 1984 he left his home at 104 Elizabeth Bay Road, Elizabeth Bay with the intention of proceeding across the road to a bus stop which was situated about 200 yards away. The roadway was approximately 7 metres wide and the plaintiff was proceeding in a diagonal direction. In his evidence in chief he said that there were no cars coming on his right when he 2 UNREPORTED JUDGMENTS started to cross the road, and when he was a little over half way across he heard the screech of tyres, and looking to his right observed a long white American car coming out of the driveway of 100 Elizabeth Bay Road, and that this vehicle proceeded towards him and struck him on the right femur. He then proceeded to describe in the most elaborate fashion imaginable a sequence of events which involved him being thrown on the bonnet of the vehicle and then being discharged onto the roadway in such a manner as to allow his foot to be caught under the wheel of the vehicle. During cross examination the plaintiff's story seems to have changed to a degree. On this occasion he says he saw the defendant's vehicle being driven out of the driveway of 100 Elizabeth Bay Road. He saw it make a left hand turn from the mouth of the driveway and travel towards him. At the time that it moved out of the driveway it was travelling, according to his evidence, at between 15 and 20 kilometres per hour. As it moved towards him it slowed to 10-15 kph. He said because of the speed of the vehicle it came upon him in a flash and he was unable to take any evasive action. The defendant's story was markedly different. He said he came out of his driveway at a very slow speed and proceeded in a direction towards the plaintiff at about 3 kilometres per hour. Under cross examination he reiterated his statement that he was travelling at no more than that speed. The defendant did however frankly admit that he did not see the plaintiff prior to the collision, and in those circumstances the finding of negligence against him was not surprising. The parties seem to have treated the speed of the defendant's vehicle as the critical factor which bore upon the issue of contributory negligence. The plaintiff for his part suggested that that speed of between 10 or 15 and 20 kph meant that he had no opportunity to protect himself. The defendant on the other hand, emphasising the slow speed at which he was travelling, suggested that the plaintiff would have had no trouble in avoiding the accident if he had been exercising even a small degree of care. Because of this division of views his Honour turned his attention to the speed of the defendant's vehicle. He was unable to accept that either party was accurate in his assessment. He then looked for corroborating evidence. Fortunately in this case there was some evidence of that nature available. Two police officers were proceeding down the road and saw the defendant's vehicle driven out of the driveway and on to the road. Both of these officers conceded that they were not paying close attention to the other vehicle, although I think it is fair comment that the very ordinariness of the driving of the other vehicle gave them no cause to pay particular attention. They said that they thought it emerged onto the roadway at about 2 to 3 miles per hour, or in any event at a slow speed, and then drove slowly towards the plaintiff. In the light of this corroborating evidence his Honour formed the conclusion that the defendant's account, while not totally acceptable, was a more reliable one than that of the plaintiff. In particular his Honour rejected the version given by the plaintiff that the vehicle emerged onto the roadway with squealing tyres at between 15 and 20 kph. He stated that the vehicle was travelling slowly at all relevant times. Once his Honour rejected the plaintiff's account, as he was entitled to on the state of the evidence, then the finding of contributory negligence does not seem surprising at all. The plaintiff had moved from the footpath onto a roadway some 7 metres wide and having traversed between 3 and 4 metres was struck by a vehicle proceeding at a speed of perhaps 3 to 4 or 5 miles per hour. The speed URJ CONSTANTIN GEORGIEV v GUENTHER GROESCHL (Clarke JA) 3 of the vehicle was little more than a walking speed. It is difficult to understand how it could be, if the plaintiff had been keeping a proper look out, he had failed to see the approaching vehicle and take evasive action. In my opinion the finding in the defendant's favour on the speed aspect of the evidence left it open to his Honour to reach a conclusion that a failure on the part of the plaintiff contributed materially to the injuries suffered by the plaintiff, and accordingly his Honour was not in error in reaching that conclusion. Indeed, I express my own view it would have been surprising if his Honour had reached any other conclusion in the light of those facts. The first ground of appeal is therefore rejected. I turn then to the second basis of challenge to the judgment which his Honour directed be entered; that is that the award of damages was inadequate and reflected an erroneous evaluation of the injuries and disabilities which the plaintiff had demonstrated on the evidence before the court. Before coming to the detail of that claim I should say that a relevant matter was his Honour's rejection of the plaintiffs version of the accident and the finding that the defendant's version, which bespoke of a far more minor accident, was correct. The plaintiff mounted his attack upon the assessment essentially by referring the court to the description of the disabilities contained in a report of 16 June 1986 written by Doctor Benanzio which the plaintiff submitted was clear in its terms and had been or should have been accepted by his Honour. The description reads: 1. Injury to the cervical spine which has aggravated pre existent but silent degenerative changes precipitating symptoms. We do know that once degenerative changes become symptomatic, return to an asymptomatic condition cannot be expected, particularly when the degree of pathology is an advanced one, as in this patient. 2. A right thumb Bennet's fracture. A degree of disability must be expected to persist. 3. A low back contusion/strain which has precipitated symptoms supported by the radiological evidence of disc lesion. 4. A severe contusion of the lateral aspect of the right hip region. The present residual complaints are related to soft tissue sufferance represented by fibrotic changes. 5. A severe right knee contusion/strain which, as mentioned above, is complicated by radiological evidence of cartilage damage and widespread degenerative changes. As mentioned in previous correspondence, the patient needs arthroscopic investigations which may lead to surgical treatment, depending upon the findings. There is a post-traumatic condition on the superolateral aspect of the right patella which is the cause of ache. 6. A crush injury of the right foot with fracture of the second metatarsal base. The present right foot complaints, as reported above, are consistent with this type of injury which involves not only the bony tissue but the soft tissues as well. The plaintiff submitted, as I have pointed out, that his Honour had accepted Dr Benanzio's assessment of his disabilities. That submission requires a reference to his Honour's judgment which makes it plain that the submission is founded on a misunderstanding of the terms in which the judgment was expressed. What his Honour said was that he accepted Doctors Stuckey and Benanzio and their assessment of his condition. Taken in isolation that statement would appear to support the plaintiff, but it is of course impossible to pay regard to that statement in isolation. It appeared in a passage of his Honour's judgment where his Honour 4 UNREPORTED JUDGMENTS was dealing with the plaintiff's complaint that he was suffering from an accident induced back disability. It was in dealing with that particular complaint, and only that complaint, that his Honour made the statement that I have recited. If there was any doubt about that view of the meaning of what his Honour said it was removed by his next statement in which he refers to a condition which on any view of his judgment was a reference to the back disability. Accordingly the plaintiff fails to make good the first challenge which was based upon the premise that his Honour had accepted in its entirety Dr Benanzio's opinion. That of course does not dispose of the argument because it is then said that his Honour should have accepted those findings of Dr Benanzio, who was- the doctor most familiar with the plaintiff's case. Before proceeding to deal with the individual determinations made by his Honour I should point out that the judgment contains a lengthy and very careful analysis of each of the complaints made by the plaintiff. In the course of that analysis McInerney J refers to and in a sense criticises the failure of the plaintiff to call as a witness the first doctor whom he consulted in connection with his accident induced injuries. That doctor was Dr Bosnic, a general practitioner, who it appears saw the plaintiff on a number of occasions shortly after the accident. Ineed not pause to make detailed reference to the somewhat surprising failure of the plaintiff to call that witness in the light of the fact that the doctor actually appeared before the court to explain an apparent non obedience to a subpoena. But I should say that when a judge is faced with a conflict of medical evidence and a description of disabilities which were not clearly established, and which were the subject of some disagreement between the doctors, it is not unexpected to find the judge expressing concern at the difficulty with which he was faced as a result of the failure of the plaintiff, who bore the onus, to call the first treating doctor. Indeed in this case the first specialist seen, and his reports were admitted into evidence, was Dr Mahoney and even he was not called. I therefore do not accept that his Honour's judgment was open to criticism upon the ground that he made critical observations based on the failure of the plaintiff to call Dr Bosnic. It seems to me that he was faced with a very difficult situation in which the disabilities were not clear cut, in which there was not a clear unanimity of opinion by the doctors. In these circumstances the absence of the first treating doctor was, in my opinion, a matter of some significance. I turn then to the individual complaints made by the plaintiff. He said that he had suffered from a continuing disability of the right foot. McInerney J accepted this complaint to a degree. He found that the plaintiff had suffered a minor fracture in the foot and that it had healed quickly. He noted that in January 1987 the plaintiff's complaints to Dr Benanzio in respect of this disability were minimal. He accepted that contrary, or more optimistic, opinions given by Dr Stuckey had been proved correct. What is most significant is that, whilst his Honour accepted that there had been some disability for a time, he rejected the plaintiff's complaints as to the degree of symptoms which he has suffered and has continued to suffer. He thought the plaintiff would, no doubt, have had some pain for a few weeks after the accident but that his foot had healed with no residual discomfort. A reading of the judgment demonstrates a careful analysis and emphasises the fact, which was relevant to each of the plaintiff's complaints, that the doctors based their opinions in each instance upon a full acceptance of the plaintiff's complaints. His Honour's reasons would leave no doubt that he was sceptical of URJ CONSTANTIN GEORGIEV v GUENTHER GROESCHL (Clarke JA) 5 the reliability of the plaintiff as a historian, and in those circumstances the careful analysis which he undertook was necessary. I must confess I can find no error either in approach or in the manner in which his Honour resolved the issues between the parties. I do not think the plaintiff has made good any challenge to the findings in relation to the right foot. He then turned his attention to the right hip injury and submitted that again there had been insufficient recognition of the great disabilities from which he suffered. The learned trial judge noted that as early as 22 October 1984 Dr Mahoney, in his first report, had referred to the fact that the plaintiff appeared to have made a good recovery in relation to this complaint. At that time he made no complaint of symptoms emanating from the right thigh. His Honour's conclusions were that he was not convinced the plaintiff was suffering from any real disability in that area. Those conclusions were based upon the evidence of Dr Mahoney when regarded in the light of later evidence from Dr Benanzio and Dr McGlynn. Again I am unable to find any fault with them. The next complaint related to the right thumb which was said to have been injured in the accident. His Honour accepted that injury had occurred. He accepted that this injury extended into the metacarpal joint. He recognised this would have caused the plaintiff some pain over a period of time. In express acceptance of Dr Stuckey's conclusions, he thought that any discomfort the plaintiff had had over the early period had disappeared except for the odd occasional ache. The disability in the right knee was the next matter to which attention was turned. This was said to be the most serious of all the injuries. Indeed the plaintiff relied on this injury in a number of ways. He said that it disabled him to such an extent that he was unable to move freely and to continue with his jogging which had been a matter of some pleasure. Not only was he deprived of the pleasure of jogging but with his inability to continue with it he had put on a lot of weight and the increase in his weight had led to the development of mature diabetes which he contends is a serious matter. The argument in relation to diabetes of course depended, as did the evaluation of the plaintiff's disability, upon a determination as to whether there was an accident caused disability and, if so, an evaluation of the extent of the disability. His Honour was at pains to emphasise that he had endeavoured to carry out that evaluation but had found his attempts seriously undermined by the plaintiff's own conduct. That conduct was his failure to submit to an arthroscopy on a number of occasions. More than one of the doctors said that while he had a provisional opinion as to the cause of the disability in the plaintiff's knee he would not be confident in expressing an opinion that that was indeed the problem until he had seen the results of arthroscopy. There were, it seems, a number of occasions on which medical practitioners tried to arrange for these examinations but in each instance their efforts were frustrated by the plaintiff. There also appears to have been at least one appointment made for an arthroscopy but the plaintiff even on that occasion found some reason to avoid it. The plaintiffs conduct in this respect made the assessment of his disability very difficult indeed even if it did not raise a suspicion as to his genuineness. These were all matters which his Honour needed to consider and they were in fact considered by him and referred to in his judgment. He was also required to determine whether there was a causal connection between any knee disability 6 UNREPORTED JUDGMENTS complained of by the plaintiff and the accident and the absence of Dr Bosnic and any corroboration of the plaintiff's pre-accident physical condition compounded the difficulties of that determination. If the medical evidence had all been one way to the effect that the plaintiff was suffering from an accident caused disability in the knee then these other features of the case may not have mattered. But that was not the position. In fact the x-ray examinations exposed a condition which was equally consistent with a trauma induced state of the knee as with a degenerative condition pre existing any trauma. Faced with this fairly perplexing division of opinion, his Honour came to the conclusion that even if the plaintiff had not suffered from symptoms in the knee prior to the accident he would have suffered from them shortly after and without being exposed to the trauma of the accident. In his final assessment his Honour concluded that he was not satisfied that the plaintiff had established that the symptoms of which he complained stemmed from the accident. He did, however, find that the plaintiff did have a degenerative condition in his knee, and in this respect the finding is supported by the x-ray evidence, and concluded on the probabilities that such condition had been aggravated by the accident for a period which had terminated prior to the hearing. At the time of the hearing he thought that if there was any problem with the knee related to the accident it only caused minor discomfort. I have sought in my analysis of his Honour's judgment to emphasise that the evaluation problem was made more difficult by the conduct of the plaintiff and by his failure to adduce evidence from the early treating doctors which might have established his case on the balance of probabilities. In the light of these failures it seems to me that he can hardly complain with his Honour's conclusion that he was not satisfied that the condition and the causal nexus necessary to sustain the claim had been made good. I would reject this ground of complaint also. The fifth symptom or series of symptoms of which the plaintiff complained related to his lower back. In this respect his Honour accepted the evidence of Drs Stuckey and Benanzio and accepted their assessment of his condition. The plaintiff can hardly complain about that. Upon that acceptance his Honour felt that there had been no disc lesion but there had been a minor strain which led to the plaintiff suffering from some aches and pains from time to time. Similar conclusions were reached by his Honour in relation to the plaintiff's neck. I do not think it necessary to say any more about that than it was open to his Honour to reach the conclusion that he did. I do not think any appellable error has been shown. I should, however, emphasise that in his conclusion his Honour stated that nothing about the plaintiff's neck condition rendered him unable to carry out his work as a solicitor. The final disability of which the plaintiff complained was the mature diabetes which he had suffered since about 15 months after the accident. I have already explained the steps by which the plaintiff sought to relate that disability to his accident. His Honour declined to accept a causal nexus for the reason that he rejected the underlying premise, that is that the knee condition had been induced by the accident. What his Honour said was this: "I am not satisfied his knee condition relates from the accident so as to prevent him from exercising and in those circumstances I am obliged to find that the diabetes on the balance of probabilities is not related to the accident." URJ CONSTANTIN GEORGIEV v GUENTHER GROESCHL (Clarke JA) 7 In a sense the learned trial judge has found that the probabilities were against the claim by the defendant. What is clear is that he was not satisfied, because of the plaintiff's failure to link his knee condition to the accident, that the diabetes was related to the accident. The process of reasoning seems to me to have been particularly appropriate and I can find no error in it. I therefore would conclude that the plaintiff has failed to show that his Honour's findings as to his disabilities was vitiated in any way by error. On the contrary, based as they were to a large degree upon his Honour's assessment of the credibility of the plaintiff, I would regard them as being within the range of a trial judges findings which is subject to a very limited challenge in an appellate tribunal. Not only has the plaintiff failed to sustain any such challenge but he has failed to show that error had occurred. Accordingly, (I leave aside for the moment the claim for economic loss) I am unable to accept that were, as here, there has been a finding of relatively minor disability in a number of areas his Honour's assessment of the damages has been shown to be erroneous. Perhaps the most serious challenge made by the plaintiff is against the decision of his Honour not to award him any damages for economic loss. The plaintiff was and is a solicitor of the court. He does not say '_hat he has had to cease practice as a result of his disabilities. His case was that although he can work, perhaps only part-time, he could not function nearly as efficiently as he did prior to the accident, with the consequence that his practice dropped off in an alarming fashion. Perhaps that is not an entirely accurate way of putting it. Perhaps it is more accurate to say that the growth of the practice did not maintain its momentum. Of course this claim depended almost entirely, if not entirely, upon his Honour's assessment of his work capacity. If he had failed to show that there had been any loss of his capacity to earn then it would follow that, no matter what loss of income had been shown, there had been a failure to relate that loss to the accident. It seems to me that upon a fair reading of his Honour's judgment there is demonstrated the reason why he declined to award any damages at all for economic loss. He simply did not accept that the injuries and disabilities had caused the plaintiff to withdraw from work to such an extent as to lead to economic loss in the past. He clearly did not accept that there was any demonstration of an impairment of capacity in the future. In saying that I have particular regard to his Honour's statement that he did not accept that the plaintiff was, as a result of the injuries, either singly or collectively, unfit for work as a solicitor and he did not accept as a fact that as a result of the accident he could only work part-time. My hesitation about accepting those statements as destructive of the plaintiff's claim for the past flows from their expression in the present tense. His Honour seems to be saying in the passage to which I have made reference that the plaintiff had not been shown as at the date of the trial to be unable to perform full time work as a solicitor. However, if one examines those parts of his judgment which follow the statement to which I have made reference one finds particular reference to the difficulties involved in reaching a positive conclusion that the plaintiff had established some inability in the past from the inconsistent histories which had been furnished to the various doctors. This was, it seems to me, another reflection of his Honour's inability to accept the plaintiff as a truthful and accurate historian. He pointed out that the plaintiff had told Dr Stuckey in October 1986 that he had been unable to return to full time duties for 15 months, being only able to work in the morning during that time. The clear inference is 8 UNREPORTED JUDGMENTS that following the expiry of 15 months he had returned to full time work. to Dr McGlynn he gave a different history. That was that he was off duty for approximately 18 months and then resumed casual part time employment. These histories are entirely inconsistent. Given that they were provided by an experienced solicitor of the court, it is not surprising that they led his Honour to view with some apprehension the evidence that had been given by the plaintiff. In the light of those inconsistencies and the different views of the doctors, his Honour proceeded to say that he could not accept that there was any incapacity arising from the injury adding that if it was a fact that the plaintiff was only working part time he believed that was because of lack of motivation or some other reason not connected with his injuries. It seems to me, when regard is paid to the whole of the judgment and the particular analysis I have just made, the thrust of the judgment is a rejection by his Honour of the plaintiff's claims that he was disabled to such an extent that the disability reflected an economic loss in the past. Having regard to his findings that the plaintiff had suffered some injuries which healed very quickly and a couple of underlying conditions the aggravation of which he had led to only minor disability, it seems to me that those conclusions were entirely open to his Honour. I am not prepared to accept that he has been shown to be in error. His Honour's conclusions made it unnecessary for him to come to any conclusion on what he described as the extravagant claims made in respect of economic loss. I do not think that his description of the claims as extravagant is in the slightest inaccurate, nor do I think his Honour is out of place in referring to the extreme divergence in the evidence supporting the claims that had been made. For instance the plaintiff called evidence from two accountants, one of whom assessed his loss for the 1986 financial year at $254,138 and another at $511,322. The mere expression of the difference is enough to evoke some surprise. However those differences reflect in my opinion the fact that the evidence was based on a number of very limited assumptions, some of which may have been quite wrong. For instance, one of the accountants thought the yearly increase in the practice over a number of years was 25% while another accountant came to the view that the increase was 52%. It is not surprising to find in the light of those discrepancies and the limited nature of the assumptions upon which the views were based that an actuary who was called, Dr Frank Asche, said: "Both results are subject to a large degree of uncertainty. We are after all only predicting future outcomes from five or six data points. With such scanty data I would have little confidence in the results of either model. What confidence I do have is incomparably greater than that I have in the AD Robb analysis." The material before his Honour certainly entitled his Honour to act on the opinion of Dr Asche which seems to me to reflect the commonsense of treating with the utmost reserve any assessments based on limited and unproven assumptions. Indeed examination of such records as were ultimately tendered in the case shows that his Honour was correct in declining to accept that there had been such an interruption to the momentum of the growth of the practice as was claimed by the plaintiff. His Honour pointed out that in 1983 the total number of cases disposed of by the practice was 251, in 1984 267, and in 1985 304, and in 1986 370. The most simple mathematics reveals that there was approximately 50% increase in the number of cases being disposed of in that three year period. URJ CONSTANTIN GEORGIEV v GUENTHER GROESCHL (Clarke JA) 9 Such evidence, in my opinion, is entirely destructive of a case of a momentous interruption to the momentum of the practice. I am of opinion that even if the evidence had justified some finding of physical disability which gave rise to an incapacity to work all the time it did not further justify the conclusion that that incapacity had resulted in any economic loss at all. I would therefore agree with his Honour that the plaintiffs claim for economic loss failed on the ground of lack of proof. The final attack on the judgment was based upon the claim of bias. This was a most serious charge framed in intemperate language and persisted in by a solicitor of the court in the face of what seems to me to have been an almost complete absence of supporting evidence. What the plaintiff said to the court in presenting his own case was that "throughout the hearing of the case his Honour displayed signs of prejudice, jealousy and bias against the plaintiff and even attempted to intrude upon and/or interfere with the proceedings. It became patently clear that he did not like the plaintiff and at times did not even try to hide that fact." The somewhat immoderate language in which that expression of a claim of bias was made paled into insignificance against later statements such as "his Honour in an outburst of jealousy screamed"; "his Honour lost his temper again"; "his Honour exploded and very rudely told me to stop". Whilst in my opinion the manner in which this claim was framed is deserving of censure, it is as nothing as to the censure which should be visited upon the plaintiff's final complaint which related to what he said was the most serious exhibition of bias. His Honour made it plain in his judgment that he had a great deal of difficulty analysing the plaintiff's claim for economic loss. There were the widely divergent views of the two accountants, and the implicit rejection of those views as extremely tenuous by Doctor Asche. His Honour did not have before him anything other than the reports of the experts, supplemented by their evidence, which were based upon tax returns which were in turn drawn from the records kept by the solicitor in his practice. Faced with what was a difficult situation, his Honour sought, as he made plain in his judgment, to have the books of the practice produced before him so that he could have an opportunity to evaluate in a serious fashion the particular claims made. I emphasise that there is no doubt that his Honour sought on at least one, if not two, occasions to have those books brought before him. It is those endeavours which have led the plaintiff to say that "his Honour ceased to conduct himself as a judge and sought to take on the role of an investigator, a role which is entirely inappropriate for a judge and demonstrated bias against the plaintiff." In his written submissions the plaintiff said that the complaint which was of vital importance was as follows: "As stated at the beginning of this heading, his Honour on more than two occasions (he admits two) tried to unsuccessfully interfere with the proceedings by his desire to turn himself into an investigator of the plaintiff's case and more specifically to investigate his books, in order, as he put it, to find out, if nothing else, why and how the increase in fees in the year 1984 happened. And he made no secret about it on page 38 of the judgment where he said "In order to determine the real situation I suggested on two occasions to Mr Hardwick, Senior Counsel for the plaintiff, that it might assist if I were given an opportunity to examine the books of the practice on which the returns were said to be based. At 113 of the transcript I asked Mr Abbott whether the documentary material on which the tax returns were prepared were still in existence and he stated in the affirmative. Mr Hardwick said he would take steps to have this material available."' These 10 UNREPORTED JUDGMENTS statements made by his Honour which were referred to in the written submission, including the passage in the judgment, show absolutely no improper conduct on the part of his Honour. On the contrary they show, in my opinion, a very earnest endeavour to assess in a productive fashion the very large claims for economic loss made by the plaintiff. They do not and could not be regarded as demonstrating an unwarranted intrusion by the trial judge into adversarial litigation. This would not of course be the first time a judge has sought assistance and guidance from the parties, nor would it be the first time he has sought that assistance by the leading of further evidence. Faced with the problem with which McInerney J was faced, I would have thought that any judge would have sought further assistance. I would reject out of hand the submission that this demonstrated an unwarranted intrusion into the case and represented a demonstration of bias. However, the plaintiff did not limit his submissions to the comments I have recorded. He added these words: This time, however, the plaintiff and his advisors knew that his Honour had over stepped his mark and told him in no uncertain way that they were not prepared to do so." When the court sought from the plaintiff guidance as to the passage in the transcript where the plaintiff or his advisors had indicated to his Honour that they were not prepared to produce the books, he did not do so. Instead he said that they had never told his Honour that they were not prepared to do so. They had simply remained mute and failed to produce the books. What this means is that the submission was misleading and it is hard to believe it was otherwise than deliberately misleading. For my part I find this conduct on the part of a solicitor wholly unacceptable. Solicitors are relied upon to be completely honest and candid with the court and to present argument in a fashion which demonstrates absolute integrity. I need hardly say that this statement made by the solicitor failed to achieve that standard. There were other grounds, which the solicitor said were less important, which were advanced in support of the submission of bias. Some of these I have already recorded such as the allegations of an outburst of jealousy. I do not believe it is necessary for me to do more than say that I find them completely lacking in substance. I do not find the slightest implication of actual bias in the evidence in this case either in the appeal book or as supplemented by the affidavit evidence. In my opinion there is no substance at all in the submission of bias and I reject it. In all the circumstances the appeal should be dismissed with costs. Hope JA I agree. I must add to what my brother Clarke has said in relation to the conduct of the appellant in this appeal. As has been said, the appellant is a solicitor who in this appeal has appeared for himself. He is not merely a solicitor who should know his responsibility to the court no matter what the nature of his practice is. He is a solicitor whose practice has been limited to litigation and his practice must have brought him into regular contact with and indeed appearance before courts, and given him a close acquaintance with the application of the responsibilities and duties imposed on all legal practitioners appearing in courts. URJ CONSTANTIN GEORGIEV v GUENTHER GROESCHL (Hope JA) 11 The duty of any barrister or solicitor appearing in a court is to assist the court, to have complete integrity in giving that assistance, and not to try to mislead the court. Dealing with matters relevant to this case, it is improper to make submissions as to facts for which there is no evidentiary foundation at all, and it is highly improper to make factual submissions which are indeed contradicted by the only relevant evidence. My brother Clarke has referred to a few instances. I want to refer to others as well as to those. At the outset of the appeal the solicitor sought to tender two affidavits, one by himself and one by a managing clerk in his employ. These affidavits averred that McInerney J in the course of the hearing of the case had used these words, "One million dollars? Even I cannot afford that." The affidavit ended by a paragraph alleging a belief that the words had been deleted from the transcript of the proceedings. In support of the application to make use of these affidavits two grounds were initially relied on, and after some discussion a third ground was added. The first ground was that the transcript had been interfered with by or by the direction of the Judge so as to have the correct passage deleted and changed. The second was that the words that appear in the transcript were not those words which had been taken down by the court reporter. The third was that the words the subject of the affidavits were additional to the words which were recorded but were not taken down by the court reporter. In the transcript it appears that Mr Jenkyn for the defendant was asking Mr AH Abbott, an accountant called by the plaintiff, about two properties owned by the plaintiff, one in Double Bay and one in Elizabeth Bay. The following is then recorded. "MR JENKYN: Q. Both obviously valuable properties, in good areas? A. Yes. HIS HONOUR: Over a million dollars. Even I would understand that, Mr Jenkyn." It will be seen that the allegation in the affidavit gave a slightly different version to that which appears in the transcript. It is possible that the deponents believed they heard what they said, but it is more likely than not that the transcript writer got it down correctly. Which ever version was correct does not make the slightest difference to the case for the appellant. However, there was no evidence of any kind to suggest that the Judge had interfered with the transcript or caused it to be altered or that the words which are in the transcript were not taken down by the court reporter. Those submissions were utterly without foundation and were highly improper and were such as should not be made by any solicitor whether appearing on his own account or on behalf of a client. The next matter is the matter referred to in passing by Clarke J where the solicitor said in his written submissions that his Honour lost his temper during cross-examination of Mr Abbott when he was being asked about two properties. It was said that when Mr Abbott remembered one property was at Double Bay and could not remember where the other one was, the solicitor thought he was helping the court by saying where the other one was, namely, Elizabeth Bay. The transcript supports this view. Mr Abbott, being asked where the properties were, said: "One is in Double Bay and I do not know where the other one is." It is then recorded that the plaintiff, who was not in the witness box, and was presumably in the body of the court, said: "Elizabeth Bay." His Honour is then recorded as saying "Mr Hardwick, would you tell your client not to indicate an answer to your witness, please." As well as saying in his written submissions that his Honour lost his temper on this occasion, the written submissions went on to say that his Honour exploded and very rudely told him to stop or he would deal with him. There is no evidence whatsoever to support that submission. His Honour gave a very proper and very 12 UNREPORTED JUDGMENTS courteous direction in relation to an obviously improper interposition by the plaintiff in the giving of evidence. To say that his Honour rudely told him to stop or he would deal with him is simply to mislead the court as to the nature of the evidence that was recorded in the transcript. The next matter arose from what the solicitor said was interference by the trial judge in answering questions. What he told the court was this was the worst case of interference by a trial judge that he had ever heard. It will be remembered that the solicitor is a litigation solicitor and he would be very familiar with what goes on in courts. The submission that it was the worst case of interference he had ever heard is quite unsupported by the transcript. On questioning it appeared that the solicitor was referring to the asking of questions by his Honour about the financial records and books which supported the reports furnished by Mr Abbott and the income tax returns which he had made up. The learned judge asked Mr Abbott was he in a position to tell the court whether or not the documentary material on which the tax returns were prepared was still in existence. Mr Abbott replied that it was. Senior counsel for the solicitor then told the judge that they would take steps to get that material. He apprehended that his Honour would like it to be an exhibit. His Honour is recorded as saying: "I think there is a very substantial claim made and I want all the material I can get." Later, after Mr Abbott had been asked further questions about his report and the accounts, senior counsel for the plaintiff and his Honour are recorded as saying: "MR HARDWICK: These books your Honour wishes to see, Mr Abbott will get these together and come back. HIS HONOUR: I might want to see a bit more, too, the documents on which the books are based. At any rate, I have indicated whatever you do, you do it. MR HARDWICK: Your Honour has indicated your Honour wants, as it were, substantiation of the figures appearing in the tax returns. HIS HONOUR: Yes, certainly I do, in the light of the evidence in this case. MR HARDWICK: And Mr Abbott will have to go away and get that? HIS HONOUR: I don't expect him to do it today. (Witness retired and excused.) MR HARDWICK: You will have to come back with this material. MR ABBOTT: I will be happy to give it to you, sir. MR HARDWICK: From the ground floor up; do you understand?" To suggest it is interference at all, much less the worst case of interference the solicitor had ever heard, is incomprehensible and without warrant. In my opinion it was a gross abuse of the privilege which is given to practitioners to make submissions. The last matter and possibly the most serious is the one that Clarke JA has described when, in relation to the material I have just described, in his written submissions the solicitor said that the plaintiff and his advisers knew that his Honour had overstepped his mark and told him in no uncertain way they were not prepared to do so; that is, to make the books and other records available. That was quite misleading. I find it difficult to understand, having regard to the evidence which I have quoted and which was the only relevant evidence, that it was not deliberately misleading. The solicitor had told the court that what was meant by that very specific description of what took place was that by silence, that is by doing nothing and not producing the books, they had told the judge in URJ CONSTANTIN GEORGIEV v GUENTHER GROESCHL (Hope JA) 13 no uncertain way they were not prepared to do so. That is not a possible meaning of the words. Indeed trying to support them in that way makes the abuse of privilege all the grosser. In my opinion it is a case where the solicitor has shown a considerable degree of unreliability. I must tell him that that type of conduct, if persisted in, may lead to a certain course being taken in relation to his remaining on the roll of solicitors. I agree with the orders proposed. HOPE JA The orders of the court are the appeal is dismissed with costs. The Appellant appeared in person Solicitors for the Appellant: C Georgiev and Co Counsel for the Respondent: AS Morrison and RI Goodridge Solicitors for the Respondent: GD Clare