WU (By his next friend Xiao Ying WU) v DEVINDER [1998] NSWCA 267

WU (By his next friend Xiao Ying WU) v DEVINDER SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

MEAGHER JA, COLE JA and STEIN JA 25 March 1998 [1998] NSWCA 267

PERCEIVED bias — procedural fairness — standard of proof — exposure of judge's reasons

Cole JA. Mr Wu has appealed from an award made in his favour by O'Toole CCJ on 18 December 1996. The appeal is restricted to questions of law. By various grounds of appeal the appellant has raised the following substantive grounds of appeal: 1. Trial judge ought to have disqualified herself for perceived bias. 2. There was a denial of procedural fairness. 3. The trial judge applied the wrong standard of proof 4. The judgment did not expose the trial judge's reasons for not being satisfied on the balance of probabilities that the appellant had suffered a change in cognitive capacity and a degree of permanent brain damage. In my opinion none of these grounds should be upheld. I shall address each in turn. PERCEIVED BIAS The appellant's wife gave her evidence through an interpreter fluent in Mandarin. After she had given evidence concerning her discovery that the appellant had been injured, her visit to him in hospital, the changes she observed to his physical and mental well being and attitudinal changes towards her and her family, counsel for the respondent made some enquiry of her Honour regarding whether the interpreter was accurately interpreting the evidence being given in Mandarin. His enquiry was apparently based upon a comparatively lengthy English translation of a brief, if not monosyllabic, answer given in Mandarin. This led her Honour to ask the interpreter "What was said in Mandarin please?', evoking the answer 'That is exactly what I have said'. Her Honour continued:

I have noticed now that there has been interruption that sometimes the word 'yoh(?)', single syllable is rendered "yes'. And sometimes much longer