VARGA v SCIGLIANO [1995] NSWCA 482

VARGA v SCIGLIANO

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P, CLARKE and HANDLEY JJA 6 February 1995, 6 February 1995

[1995] NSWCA 482

JUDGES — impartiality — apprehended bias- differentiation of causes of back pain- judge remarks that he "cannot see how" the treating doctor can help by oral evidence — application to discharge judge refused — held: (by maj): Remark tentative and provisional — no apprehended bias appeal dismissed. Vakauta v Kelly (1989) 167 CLR 568 appld.

PRACTICE AND PROCEDURE — apprehended judicial bias — obligation of legal practitioners to raise point — avoidance of waiver — significance of delay in reserving point raised at trial discussed.

JUDGES — bias — apprehended bias — stringent standards for manifestly impartial trials — differential assignment of plaintiff's symptoms to successive injuries — trial judge (Craigie DCJ) hears plaintiff and receives medical reports — plaintiff's counsel indicates intention to call the medical practitioner who treated the plaintiff and spoke to him in his native language — judge states "I don't see how he can help your case" — objection later made on ground of appearance of bias — judge refuses to disqualify himself — on appeal to the Court of Appeal — held — (Clarke JA and Handley JA; Kirby P dissenting): The claim of apprehended bias was not made out, even by the stringent standards established by the High Court of Australia and by the Court of Appeal. Vakauta v Kelly (1989) 167 CLR 568; Re Keely; Ex parte Ansett Transport Industries Ltd (1990) 63 ALJR 495 (HC); Galea v Galea (1990) 19 NSWLR 263 (CA); Australian National Industries Ltd v Spedley Securities Ltd (In Liq) (1992) 26 NSWLR 411 (CA) applied.

PRACTICE AND PROCEDURE — judicial bias — duty to raise at trial — obligation to reserve point — relevance of delay in raising point and seeking disqualification — consideration of delay between morning adjournment and after luncheon adjournment Vakauta v Kelly (1989) 167 CLR 568; Totalisator Agency Board (NSW) v Casey and Anor (1994) 54 IR 354 (CA) considered. International Covenant on Civil and Political Rights, Art 14.1.