RAMADAN v NEW SOUTH WALES INSURANCE MINISTERIAL CORP [1995] NSWCA 386

RAMADAN v NEW SOUTH WALES INSURANCE MINISTERIAL CORP SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KirBy P, COLE JA and ROLFE AJA 16 and 30 March 1995, 7 April 1995 [1995] NSWCA 386

COURTS & JUDGES — bias — actual and reasonable apprehension of — judge refers to "our social security" — refers to medical over-servicing not alleged in trial to plaintiff or doctors — disbelieves plaintiff — whether actual or apprehended bias established — held: (by maj): Not established. DAMAGES — preference for defendant's medical reports over plaintiff's own and doctor's oral evidence — held: Cannot be disturbed.

COURTS & JUDGES — bias — actual bias — reasonable apprehension of bias — test to be applied — stringent test — whether the parties or a fair minded observer might entertain a reasonable apprehension of bias or pre-judgment on the part of the judge — District Court damages action for personal injuries — primary judge (McLachlan DCJ) refers to the fact that the plaintiff, after being resident in Australia for seventeen years, required an interpreter for most of his evidence — judge refers to the absence of evidence of attempts by the plaintiff to improve his English language skills — judge refers to plaintiff's receipt of payments and benefits and to his having "taken full advantage of our social security system" — judge states that plaintiff probably misrepresented extent of his pain level to Social Security Department — judge states that there has been medical over-servicing although such allegation was not made to the plaintiff's doctors called to give evidence — whether references to lack of English language skills in context referred only to limited employment market available to the plaintiff — whether other comments adequately explained by reference to the judge's disbelief of the plaintiff's genuineness — whether actual or apprehended bias established — held: (1) (by the Court): Allegations of bias, actual and apprehended, on the part of a judicial officer should be specifically alleged and pleaded with particularity. The Government Insurance Office of New South Wales v Mortimer, Court of Appeal (NSW) 6 April 1994, unreported, applied; (2) The test for apprehended bias is whether the observer entertains a reasonable apprehension of bias or pre-judgment on the part of the judge that he or she might not be able to bring an impartial mind to bear on the decision. Livesey vy New South Wales Bar Association (1983) 151 CLR 288; Australian National Industries Ltd v Spedley Securities Ltd (in liq) and Ors (1992) 26 NSWLR 411 (CA) applied; (3) (per Cole JA and Rolfe AJA; Kirby P dissenting): By that standard, the allegation of actual or apprehended bias on the part of the primary judge was not made out. Observations by Kirby P and Cole JA on Australian National Industries Ltd v Spedley Securities Ltd (in liq) and Ors (1992) 26 NSWLR 411 (CA). Mohamed Ibrahim v Government Insurance Office of New South Wales, Court of Appeal (NSW), unreported, 28 March 1995 considered.