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. Kirby P I will ask Clarke JA to give the first judgment. Clarke JA The appellant sustained a back injury at work on 20 August 1988. He saw his general practitioner and was referred by him to Dr George Weisz, an orthopaedic surgeon, who thereafter treated him in respect of his back condition. I should mention at this stage the fact that the appellant had only recently arrived in Australia from Romania and was unfamiliar with the English language. He apparently discussed his problems with Dr Weisz in the Romanian language and it has been said in this Court with some force that Dr Weisz would have been better able to understand his complaint than other doctors who examined him and who did not speak the Romanian language and who did not use the services of an interpreter. 2 UNREPORTED JUDGMENTS The appellant continued under Dr Weisz's care until 29 March 1989 when he was involved in a motor vehicle accident, the subject of the claim which has led to the present appeal. Almost immediately following that accident he went to see Dr Weisz and continued under his care. A critical issue at the trial was whether the motor vehicle accident had aggravated the back condition of which the appellant was complaining and, if so, the extent and duration of that aggravation. Dr Weisz gave evidence, both in reports and orally, to the effect that both accidents had detrimental effects on the appellant's underlying back pathology, but it was the second, or car accident, which was the major cause of the appellant's continuing problems. The doctors who gave reports to the respondent's solicitors had expressed somewhat different views based upon the histories they had received and I will turn to those later. Their views, however, were that any aggravation arising from the motor vehicle accident had ceased long prior to the trial. That, it seems to me, was the critical issue which confronted the trial judge. His Honour determined that issue adversely to the appellant, with the consequence that he restricted the claim for loss of wages to a period of twelve months; he restricted the claim for out-of-pocket expenses to a degree and because of his view that there was no significant impairment of the appellant's ability to lead a normal life consequent upon the motor vehicle accident he awarded no general damages. The appellant has challenged the judgment and by leave relied on an amended notice of appeal in which two grounds are raised. The first is that his Honour was in error in not disqualifying himself for judicial bias and the second was that in assessing the appellant's credit his Honour gave insufficient weight as to the appellant's limited understanding of the English language. The second ground can be disposed of shortly. There is no doubt that the appellant had a limited understanding of the English language, and when he gave his evidence he had the assistance of an interpreter. The course that was followed was not unusual, in that the appellant gave the bulk of his evidence in English but when he struggled with questions asked of him or suggestions to him he sought, and properly sought, the aid of the interpreter. It is difficult for this Court to comprehend the extent of the limitation on the appellant's understanding of the language merely from a reading of the transcript. In this particular area the trial judge who sees and hears the person giving evidence is in a greatly advantaged position in determining whether allowance should be made for the limitation of understanding in assessing credit and, if so, to what extent allowance should be made. His Honour was undoubtedly alive to the problem of limited understanding, but in the end he reached, mainly from his assessment of varying aspects of the evidence, an adverse view of the appellant's credibility. There is nothing in the judgment, so far as I can see, which tends to indicate that his Honour insufficiently took account of the limitation of understanding. What was said in the appellant's written submissions was that while his Honour made some allowance for the language difficulties he failed to attach sufficient weight to those difficulties in assessing the appellant's credit. In the absence of some material on which this Court could conclude that there had been an inadequate allowance made, it seems to me virtually impossible for the court to set aside the judgment upon this ground of appeal. I would reject it on the simple basis that there is no evidence to support it, either in the events URJ VARGA v SCIGLIANO (Clarke JA) 3 during the trial or in the terms of the judgment itself. There can be no doubt his Honour gave allowance for the factor which is relevant and there is nothing to indicate that that allowance was insufficient. In particular I would reject the concept that merely an adverse finding supported the ground of appeal. I come then to the ground which was the major subject of the appeal and which took virtually the whole time of the hearing. I have earlier referred to the critical issue. All of the relevant, or nearly all of the relevant, medical reports were tendered at an early stage in the trial, including the reports of Dr Weisz, Dr Edwards and Dr Ireland. The respondent wished to lead oral evidence from Dr Edwards and because of difficulties, which were not discussed during the appeal, his Honour permitted the respondent to lead the evidence from Dr Edwards before the appellant himself had finished his evidence and before Dr Weisz had given evidence. It is not suggested that there was anything improper about this course, and I mention it simply to set out the chronological course of events. When Dr Edwards' evidence had been concluded the appellant went back into the witness box and gave the rest of the evidence sought to be lead from him. concluding his testimony fairly shortly before the short adjournment. At that stage, and possibly in response to something said about the intention of calling Dr Weisz, his Honour said words to the following effect: "I don't see how he can help your case." Counsel for the appellant made no response and his Honour took the short adjournment. Following that adjournment Dr Weisz arrived at court and his evidence was taken and concluded. He finished about lunchtime. During the luncheon adjournment the appellant instructed his counsel to apply for the judge to disqualify himself on the ground of apprehended bias. That question was debated and in the event his Honour declined to accede to the application. A transcript of his Honour's judgment is available to the court and in broad terms his Honour, having referred to the relevant authorities, said that the statement which he had made might be seen as a development of his thinking as a result of the evidence and his reaction to it, and then his Honour referred to a portion of the judgment of Mr Justice Dawson in Re Keely Ex Parte Ansett Transport Industries Ltd (1990) 63 ALJR 495. The submissions which have been put before this Court have proceeded upon the basis that the test is as expressed by the learned President in Australian National Industries Ltd v Spedley Securities Ltd (In Liq) (1992) 26 NSWLR 411 at 419. There the President said, and I quote: "By repeated decisions of the High Court the test is now expressed in terms of possibilities, that is whether the parties or the public might entertain a reasonable apprehension that the judge might not bring an impartial and unprejudiced mind to the resolution of the question involved" (and reference was made to R v Watson Ex Parte Armstrong (1976) 136 CLR 248 at 262 and Livesey v New South Wales Bar Association (1983) 151 CLR 288, 293. 298.) Counsel for the respondent did not challenge the statement that this was the correct test to apply, and it seems to me in the circumstances that it is appropriate that it be applied. However, two things must immediately be said about this case and the events which occurred, and that is that his Honour was, so far as can be gleaned from the limited information available to this Court and the terms of his judgment, expressing what might be called a tentative thought reflecting his reaction to the evidence. 4 UNREPORTED JUDGMENTS Now, as the learned President also said in Spedley at 418, judges in the course of litigation in exchanges with parties and their representatives or in interlocutory decisions may express their preliminary views with vigour, but this should not necessitate their disqualification. The President referred, inter alia, to Galea v Galea (1990) 19 NSWLR 263 at 278. Similar expressions of opinion were made by Mr Justice Dawson in Keely in a passage cited by the trial judge, and to which reference should be made by me. There Mr Justice Dawson said that: "The airing by a judge of a view indicating the general drift of his thinking in response to an argument, but expressed to be tentative or exploratory and in respect of which the parties are allowed full opportunity to make submissions (albeit those submissions are rejected by the judge) manifests no impartiality or bias, even though colourful but unprejudiced language may have been employed by the Bench." What can be gathered by those statements is, I think, consistent with expressions taken from other cases in support of the proposition that trial judges should not simply remain mute during the whole course of the hearing, but that from time to time they should, for the assistance of the parties, give them the benefit of tentative reactions to the evidence and to submissions made by the parties. The clearest expression of that view appears in Vakauta v Kelly 167 CLR 568 at 571. Mr Tonner, who argued the case for the appellant with his usual skill, accepted those general principles, but he said that there were three factors in this case that gave to the trial judge's statement a special quality which would have created the reasonable apprehension of which the cases speak. The first was the timing of the comment, and in particular the fact that it was made before Dr Weisz gave evidence. The second was that Dr Weisz's evidence was, contrary to the tentative view stated, of critical importance to the appellant's case. He was the treating doctor. He had examined the appellant both before and after the motor vehicle accident. He was in the best position to know the after effects of the work accident and the after effects of the motor vehicle accident. His evidence was at the crux of the appellant's case and to deal with it, albeit tentatively, in the manner in which his Honour did gave expression to a viewpoint which must have raised the relevant apprehension in the mind of the objective observer. The third matter relied on was that Dr Weisz's evidence was also important on the appellant's credit. I had some difficulty in understanding this submission, but as I finally appreciated it, it was to the effect that the appellant's consistent assertions to Dr Weisz would have stood him in good stead and those assertions might be placed against other factors in his evidence, which might be thought to reflect against his credibility. I still have some difficulty in understanding the import of this submission because as I read the judgment on appeal the trial judge's adverse view of the appellant's credibility would not have been lessened by anything Dr Weisz said. That, of course, leaves the other two factors and it is at this stage that I should return to the critical issue. Dr Ireland, whose report was tendered, but who did not give oral evidence, said that the appellant had told him that a few months after the motor vehicle accident his back had returned to its condition immediately before that accident. Dr Edwards gave evidence that the appellant told him that after a long time his back got better from the motor vehicle accident, and then Dr Edwards' clinical notes were tendered and they included the words "after a long time" followed by URJ VARGA v SCIGLIANO (Kirby P) 5 the words "got better" beneath the date 29.3.89, which obviously enough was the date when the history was taken. Dr Weisz's evidence, on the other hand, was that the effects of the motor vehicle accident continued throughout. What I think emerged to his Honour, and may have given his Honour a provisional view, was that the really critical question was whether the plaintiff could be accepted in his assertion that in fact his back had never got better following the motor vehicle accident, in the light of all the evidence in the case and particularly the evidence of those doctors. Upon one view, what the trial judge was saying was that no matter what Dr Weisz said one returned to that critical issue. On another view, he may have been expressing a tentative reaction to the force of Dr Edwards' evidence, bearing in mind that that doctor had just given that evidence. However, it seems to me that it would be speculation for this court to reach any conclusion as to what the judge had in mind, in light of the fact that no one at the trial bothered to examine that question or to seek further explanation from his Honour. All that one has is his Honour's statement which, as I sought to emphasise, could not be regarded as other than tentative, query as to how Dr Weisz's evidence could assist the appellant. That statement was made in a manner which suggested that it was tentative and at a time which enabled all parties to deal with it by way of evidence and submissions. It seems to me, with great respect, that it falls almost fairly and squarely within the statement made by Justice Dawson in Keely, and that it provides no sound basis upon which this court could set aside the judgment under appeal and order a new trial. In my opinion, this is not a case in which the court can say that the objective observer might reasonably have reached the apprehension of which the authorities speak. In my opinion, the appeal should be dismissed with costs. Kirby P. The facts have been stated by Clarke JA in terms which I accept. On the second ground of appeal, contained in the amended notice of appeal filed by leave, I agree with what His Honour has said. On that ground I too would dismiss the appeal. A STRINGENT TEST FOR MANIFESTLY IMPARTIAL JUSTICE The relevant legal principles to be applied to the first ground of appeal have been stated by Clarke JA. To them I would merely add reference to the well-known passage in the judgment of Mason J in Re JRL: Ex parte CJL (1986) 161 CLR 342 at 352, requiring that judicial officers should not too readily submit to an application that they should disqualify themselves from sitting. His Honour said: "Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not by acceding too readily to suggestions of appearance of bias encourage parties to believe that by seeking the disqualification of a judge they will have their case tried by someone thought to be more likely to decide the case in their favour". It is important for this court to keep those remarks, which have been applied by the Court in many cases (see for example Galea v Galea (1990) 19 NSWLR 263 (CA) at 278) in the forefront of its mind as it approaches the remaining question which is presented by this appeal. However, it is equally important to note that in the series of cases, which began with Watson (above) and continued with Livesey (above) and was given the clearest exposition in Vakauta (above) 6 UNREPORTED JUDGMENTS (reversing this court's decision in 13 NSWLR 502), the High Court of Australia (and this Court) have adopted a most stringent rule to uphold the appearance of justice in our courts. The reasons for the stringent rule are not hard to find. Justice, and the acceptance of it in the courts, depends upon the confidence of the community. If that confidence is lost, the acceptance of the decisions of the courts will be undermined. ARGUMENTS FAVOURING DISMISSAL OF THE COMPLAINT Clarke JA has set out the reasons which make this case one at the borderline. For my own part, I consider that the most powerful reasons for dismissing the appeal are as follows: 1. In their actual terms, the words used by Craigie DCJ, as agreed and presented to this Court, do not demonstrate a concluded opinion or a definite and final view. His Honour said that he did "not see how" the evidence of Dr Weisz could help the appellant's case. However it remained for the appellant to endeavour to lift the scales from his Honour's eyes so that he could see that which, at the time of his announcement, he could not see; 2. His Honour was signalling to the parties the fact that, as he was thinking at the time of his announcement, the critical issue was not one of medical opinion, but of the truth of the plaintifFs evidence, both in evidence before him and in the statements recorded by the respondent's medical witnesses. Upon the plaintiff's veracity, on one view, Dr Weisz's evidence would not be determinative; 3. That being the issue critical to his thinking, his Honour was possibly signalling that the appellant might consider calling some corroborative evidence which would lend support to the assertion of a continuity of symptoms; for example, he might call the appellant's wife, who was not, in the event, called to give evidence at the trial; 4. His Honour might have been signalling that the parties should contemplate, if they had not already done so, the possibility of settlement of the proceedings. In this regard it is not perhaps irrelevant to note that, immediately after making the statement said to offend the rule of manifest judicial impartiality, his Honour adjourned the hearing in a way which would have permitted discussions; 5. Most importantly in my consideration, it is important that this Court, by its decisions resolving particular cases, should not tie judges up in silence. Jacobs J in Watson (above) at 294 expressed the opinion that judicial silence was "a counsel of perfection". The High Court in Vakauta (at 611) has made it plain that this is not the view which is now held. This Court in Galea, at 279, said the same. The reasons for this change are explained in the decisions of Australian courts. Those who are interested in reading an explanation in terms of due process of law can read the useful article by Professor David Shapiro "In Defence of Judicial Candor" 100 Harvard Law Review 731 (1987). Professor Shapiro suggests that the silent judge can, in fact on occasion, be himself or herself guilty of a departure from the principles of natural justice and due process. By silence, the judge may deprive the parties of the opportunity of affecting the decision, which is the whole point of litigation before a court. THE REASONS FOR UPHOLDING THE APPEAL The foregoing considerations were those which led me to approach this case with an initial feeling that the Court should not intervene. I respect the views of those who remain of that view. However, after consideration of the arguments of the parties I have come to the contrary opinion. I must explain why: URJ VARGA v SCIGLIANO (Kirby P) 7 1. The evidence of Dr Weisz was arguably critical to the important question which Craigie DCJ had to decide. If the view of Dr Weisz were accepted, then his Honour could proceed to treat the matter as a significant case resolving issues in doubt in favour of the appellant. If the view of the respondent's medical witnesses were accepted, the case was a modest one indeed. If the issue which determined that point was the issue of credibility, it has made it all the more important, as the High Court said in Livesey (above) at 300, that the judge at trial should proceed with great care. Upon that basis, his Honour ought not to have indicated what might appear to an impartial observer to have been a determination that the evidence of Dr Weisz "[is] not going to help your case"; 2. It was critical to the case to form an opinion on the application of s79 of the Motor Accident Act 1988. In the terms in which that Act then applied, his Honour had, in effect, a preliminary question to determine whether the appellant had been significantly impaired by the injury suffered in the relevant accident. Unless such a determination were made favourably to the appellant, he would, differently from the common law, be deprived by statute of any damages at all for non-economic loss. This made the approach to the question addressed by Dr Weisz's evidence even more important for the fair trial of the appellant's claim; 3. The only witness, apart from the general practitioner (who was not called), who had seen the appellant over an extended period, and who could cast what one might expect would be impartial light on the appellant's continuity of symptoms (and thus the issue of aetiology presented for decision) was Dr Weisz. The respondent's witnesses had, typically for cases such as this, seen the appellant only for the purpose of giving evidence at the hearing. They neither had the continuity of attention to his condition, nor did they have the responsibility of treating him. It is not unusual in cases of this kind for the court to hear of the importance which is typically attached by trial judges, rightly in my view, to the advantages which the treating doctor, the one who has seen the plaintiff over an extended period, may often have over independent witnesses qualified solely for forensic purposes; 4. Dr Weisz spoke the appellant's language, Romanian. The evidence disclosed that, when the appellant saw Dr Weisz, they conversed, unsurprisingly, in Romanian. If the critical question in this case was the resolution of the symptoms of the appellant after the supervening motor vehicle accident, that was a question which required some subtlety of attention. It was more likely that that question could be usefully explored in conversation between a medical practitioner and a patient in the patient's primary language. The evidence suggests that Drs Ireland and Edwards, who saw the appellant for the respondent, were obliged to converse with him in the English language. Whilst the appellant made good strides in his understanding of the English language, which appears from the way in which the trial was conducted (in part in English and in part with the aid of the interpreter), the determination of the subtle issue which was crucial to the resolution of the question crucial to the case, would not be so readily secured through the filter of a foreign language as it would by a witness who had the advantage of speaking to the person involved in his or her primary tongue; 5. Dr Weisz saw the appellant within days of each of the incidents which were said to have had a causative effect. He was therefore in the advantageous position, unlike the respondent's medical practitioners, of being able to address differentially the impact of the supervening motor car accident with greater attention to its causative effect than witnesses who were obliged to rely, in this regard, upon nothing but history, 8 UNREPORTED JUDGMENTS 6. The respondent's own medical practitioners gave different versions of the statements made by the appellant to them. Dr Ireland, for example (transcript 98P) records a history that the impact of the motor vehicle accident resolved in "a short" time. Dr Edwards (transcript 91S) recorded "after a very long time". This disparity between the record of the two medical practitioners made the evidence of Dr Weisz, far from being evidence unlikely to help the appellant's case, important for the resolution of the recorded differences between the evidence of the respondent's medical experts; 7. Dr Weisz in his oral evidence (transcript 59P) advanced what could arguably be viewed, by the application of a manifestly impartial mind, as a good reason to support the appellant's version of the continuity of symptoms; 8. The case is not one, as Vakauta (above) was, where the objection to the judicial remark was reserved for the appeal court. It was an objection which was raised at the trial. It is true that it was not raised immediately. However, as the court has been informed, the primary judge retired soon after his comments. Indeed, it was not raised until a couple of hours later, following the luncheon adjournment. I do not regard that delay as being so significant as the fact that the point was raised at the trial. There are, of course, practical, professional and other reasons for restraint in asking a judge, who has the charge of deciding the case, to disqualify himself or herself for apprehended bias. If the judge declines, the judge will proceed to decide the case. If the case is one, as this one was, where liability was admitted and the litigant was a person of modest means, it does not require too much imagination to understand the pressures which would exist to have the matter determined in the one trial. Counsel would also be entitled to a little time to reflect upon the point, to take instructions, to research the authorities and to present a considered argument. All of this made the raising of the point, within a couple of hours of its unexpected presentation, and after the luncheon adjournment of the trial, perfectly reasonable and proper. The fact that it was raised suggests that those who had the charge of the appellant's case at trial formed the view that the colour and atmosphere of the trial had been affected by his Honour's remark. The remark is not recorded in the transcript. But there is no doubt that a remark to the effect of that which Clarke JA has stated was made. So much was acknowledged by his Honour's reasons in rejecting the application that he should disqualify himself. I attach importance to the fact that the application for disqualification was made with fair promptness. Whilst it does not, as Mason J pointed out in Re JRL; ex parte CJL, entitle the appellant to have the judge disqualify himself, it does indicate that, at a time soon after it was uttered, the remark was one which occasioned sufficiently deep anxiety in those who were appearing for the appellant to make the application to the judge at the trial. It was not an afterthought. Cf Vakauta (above), 572, Totalisator Agency Board (NSW) v Casey and Anor (1994) 54 IR 354, 360; Preston v Carmody and Ors (1993) 53 IR 206, 218; Hinton v Mill (1991) 57 SASR 97,100. 9. The resulting verdict was low. It was in a sum of $22,656. It contained no provision for non-economic loss. Had the evidence of Dr Weisz been accepted, the verdict and judgment would have been substantially greater. The question which is therefore presented is whether the appellant received a manifestly fair trial by the stringent standards required by the authority of High Court of Australia and by this Court. BY STRINGENT STANDARDS APPREHENDED BIAS ESTABLISHED URJ VARGA v SCIGLIANO (Handley JA) 9 While I regard the matter as being at the borderline, I have regretfully come to the view that the appellant's complaint should be upheld by this Court. It is important that this Court should not send signals which require judicial silence from trial judges. This is not such a case. But it is equally important that the Court should uphold the stringency of manifestly fair trials. The conclusion is not one which determines that Craigie DCJ was actually biased. It is merely one which determines that the remark which was made falls on the wrong side of the line, and that a reasonable observer, by the stringent tests applied to such cases, might have concluded that the judge could not utter such a remark, in such a context, and thereafter be able to bring an impartial mind to bear upon the evidence of Dr Weisz. That is the view I have reached. I do so not only to uphold the appellant's entitlement to a manifestly fair, impartial and independent tribunal. I do so, as well, to protect the community's rights in that regard for this is a fundamental right upheld by the common law as well as by international human rights law. See eg International Covenant on Civil and Political Rights. Art. 14.1 ORDERS For these reasons, the orders which I favour are: (1) The appeal allowed; (2) Set aside the judgment of Judge Craigie; (3) In lieu thereof, order that the proceedings be returned to the District Court for retrial; (4) Order that the costs of the appeal be paid by the respondent, but the respondent to have, in respect thereof, if otherwise so qualified, a certificate under the Suitors' Fund Act 1951; and (5) Order that the costs of the retrial be in the determination of the judge conducting that retrial. Handley JA In my opinion, the remarks of the trial judge which form the foundation of the plaintiffs application to him that he disqualify himself were both tentative and provisional. They were also made at a relatively late stage in the trial, on the second day after the plaintiff had completed his evidence, all the medical reports had been tendered and apparently read by the judge, and the only doctor called for the defendant, Dr Edwards, had been interposed and had completed his evidence. In all the circumstances, I have not been persuaded that either the parties or the public could reasonably entertain the view, based on those remarks alone, that the trial judge might not bring an unprejudiced and impartial mind to the decision of the case. I agree with the fuller reasons given by Justice Clarke and with the orders that he proposed. Kirby P: The appeal is, by majority, dismissed with costs. Appeal dismissed with costs. Counsel for the Appellant: RC Tonner Instructed by: Michael E Stevens and Co Counsel for the Respondent: GA Laughton Instructed by: GM Meadows, Solicitors for GIO