GRHOVAC v GIO [1991] NSWCA 129

GRHOVAC v GIO

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MAHONEY, MEAGHER and HANDLEY JJA

25 July 1991, 4 October 1991

[1991] NSWCA 129

APPEAL AND NEW TRIAL — Adverse comments of trial judge reflecting on plaintiff's credit — No evidence to support comments — Whether sufficient to disqualify judge on ground of apprehended bias — Whether failure by counsel to object waived plaintiff's right to new trial on ground of apprehended bias. held Appeal allowed and new trial ordered. The conduct of the trial judge disqualified him from hearing and determining the case. The evidence of ostensible bias in the reasons for judgment revived the plaintiff's right to challenge the judgment based on the judge's earlier conduct and also gave rise to a fresh basis for such a challenge. Jones v Dunkel (1959) 101 CLR 298 Vakauta v Kelly (1989) 167 CLR 568 Browne v Dunn (1894) 6 R67 Jones v National Coal Board [1957] 2 QB 55

Mahoney JA The facts are detailed in the judgment of Handley JA which I have had the opportunity of reading.

In Hughes v Robert W Kirby and Ors (Court of Appeal, 27 September 1991, unreported) I expressed my view as to what, in circumstances here relevant, is the duty of a trial judge. I there said:

"The defendant submitted that what his Honour said should lead to the conclusion that, in the mind of the postulated reasonable or fair-minded observer, his Honour was biased in the sense that he was influenced to decide against the defendant and to describe him as he did for reasons which had no basis in the evidence and has not been fairly put to him. To adapt the language of Toohey J in Vakauta v Kelly (1989) 167 CLR 568, '... his Honour's remarks would excite in the minds of the parties and in members of the public a reasonable apprehension that the trial judge might not bring an unprejudiced mind to the resolution of the matter before him...': at 584. See also Galea v Galea (1990) 19 NSWLR 263.