Pikios v Sydney Water Corporation [2001] NSWCC 51

Compensation Court of New South Wales

CITATION : Pikios v Sydney Water Corporation [2001] NSWCC 51 PARTIES : Michael Pikios Sydney Water Corporation MATTER NUMBER(S) : 3595 of 1990/1 JUDGMENT OF: Walker J at 1 CATCHWORDS: Statutes & Delegated Legislation :- LEGISLATION CITED: CASES CITED: DATES OF HEARING: 26/3/01 EX TEMPORE JUDGMENT DATE : 03/27/2001

FOR APPLICANT: Mr R J Taylor instructed by W H Parsons & Associates Solicitors LEGAL REPRESENTATIVES: FOR RESPONDENT: Mr G Farkas instructed by Astridge & Murray Solicitors

JUDGMENT: THE APPLICATIONS 1. Mr Farkas for the respondent moves the Court on two bases; firstly, that I disqualify myself on the grounds of perceived bias; secondly, that I vacate the three-day special fixture to hear this case and adjourn the hearing until such time as the worker submits himself to certain psychoneurological testing at the hands of Associate Professor Richard Mattick, a clinical psychologist. The Award 2. On 10 November 1992 his Honour Judge Manser gave judgment in respect of a claim by Mr Pikios against the respondent for weekly benefits. He made an award of $200 per week from 22 May 1988 and continuing in the worker's favour. 3. Relevant to this application his Honour, at page 10.8 of his judgment found: Consequently, I have come to the view that the worker should be accepted as having suffered an inordinate reaction to a relatively minor injury to his back acting upon a basic histrionic personality so as to produce a real and intangible psychiatric incapacity. The Claims 4. Both parties present counter-claims before this Court; namely, (a) the employer seeks to terminate the s 40 award on the basis that the applicant no longer suffers from the incapacity for work that can be related to the injury found by Judge Manser; (b) the worker seeks to convert a s 40 award for partial incapacity to an award under s 37 for total incapacity for work, claiming a deterioration in his work-related disability. The Medical Examinations 5. Mr Farkas bases his application to vacate the special fixture on the worker's conduct during two medical examinations by the psychologist qualified by the respondent Associate Professor Richard Mattick. The first examination occurred on 2 August 2000. Professor Mattick's report of the same date makes the following allegations relevant to this application. 6. Par 8.4, "I could not get him to complete questionnaires as he was disinterested in doing so". At par 9.4: He was generally co-operative but refused to complete questionnaires including the Minnesota Multi-Phase Personality Inventory and other questionnaires. He said they did not apply to him and he could not be convinced to complete them. 7. The second medical examination took place on 21 February 2001. Professor Mattick's report of the same date makes the following allegations relevant to the application. In par 9.5: He eventually refused to do any questionnaires stating, 'My nerves are so excited I can't do it'. He appeared to be angry again, slamming the desk several times and was not willing to stay. He said that he was not told of the duration of the interview and was not willing to co-operate with it. 8. At par 9.6, "He said he had seen Dr Leuwin today for one to one and a quarter hours and he complained he was irritated by the process". At par 9.7: I attempted to administer subtests of the Wechsler Memory Scale - Third Edition and he refused to undertake these subtests. He said, 'I refuse to do any more', adding, 'I want to catch an aeroplane' which was due at 6.45 pm. He then said he wished to go and have something to eat. When asked, he said he had not had any lunch and that he sat in the waiting-room for a long period prior to 2 pm. He knew the appointment was due for 2 pm. At par 10.1: I attempted to administer the Wechsler Memory Scale - Third Edition (WMS III). On the information and orientation subtest he achieved a score of 13. This indicates that he is oriented to day-to-day events. He refused to complete the rest of the test. 9. At par 10.2, "On the Rey 15 item test he was only able to recall four items out of 15". At par 10.3, "I re-administered the Rey 15 item test and he recalled nine items out of 15". At par 10.4, "I had him attempt the abbreviated Hiscock Forced Choice Procedure (A/HFCP) and he undertook five of the 36 trials refusing to continue". At par 11.8, "He refused to be assessed adequately". THE LAW Res Judicata 10. In Bruce v Grocon (1995) 11 NSWCCR 245 his Honour Judge Neilson reviewed the law on estoppel in workers compensation cases. He summarised it as follows: Estoppel will arise if (1) in further proceedings there should be a judgment inconsistent with a prior judgment or the granting of remedies inconsistent with the remedy originally granted or the declaration of rights inconsistent with the determination of those rights made in the earlier proceedings and (2) the matter being agitated in the second or further proceedings was relevant to the original proceedings. 11. His Honour Judge Burke in Almario v Carrington Constructions Pty Ltd 13 NSWCCR 739 expressed the general principle as, The ultimate test for the application of res judicata in the strict sense is whether a subsequent order granting relief now sought would be inconsistent with an existing order. 12. In North Broken Hill v Vockins (unreported) 13 December 1999 the Court of Appeal held that procedural provisions in the Act - and in that case they were the right to strike out a worker's claim pursuant to s 102 of the 1998 Act - could be waived by an employer's delay in bringing appropriate motions to strike out proceedings or the hearing. His Honour Judge Neilson made a similar decision in Rauk v Restistle (1997) 15 NSWCCR 159. 13. These cases were based upon a Rule of Court insisting on expeditious determination of any bar against jurisdiction. I do not propose to find a waiver here but will weigh the employer's delay in exercising my general discretion. MEDICAL EXAMINATIONS 14. In Fernando v Commissioner of Police (1995) 36 NSWLR 567 Powell J held: In the absence of clear statutory or other lawful authority or excuse no person may be required to submit to a medical examination and still less undergo any form of medical treatment or to be detained for the purposes of any form of medical without his consent. 15. In Kavanagh v The Sutherland Shire Council (unreported) 28 August 2000, matter number 39067 of 1998, his Honour Judge Curtis held that s 119 of the 1998 Act did not permit the employer to breach the principle in Fernando's case by requiring the worker to submit to a bronchial challenge test. 16. In Godfrey v Wollongong Women's Information Service (1999) 19 NSWCCR 74 her Honour Judge Truss decided: Firstly, where a matter is before the Court the employer's entitlement to require a worker to be examined by a medical expert is pursuant to Pt XX r 2, otherwise s 19 and reg 43 apply where the matter is either not before the Court or where the worker is on a continuing board. Judge Truss disagreed with our colleague his Honour Judge Armitage in Patten v St George Hospital (unreported) 11 April 1997 that a psychologist was not a medical expert within the meaning of Pt XX r 2. Judge Truss also found that particular psychologist's evidence was not relevant to the claim before the Court. It related only to the need for massage treatment. I propose to follow Judge Truss's view about psychologists. .......... s 119 of the 1998 Act. S 119 relevantly provides: 1. A worker who has given notice of an injury must, if so required by the employer, submit himself or herself for medical examination by a medical practitioner provided and paid for by the employer; 2. A worker receiving weekly payments of compensation under this Act must, if so required by the employer, from time to time submit himself or herself to examination by a medical practitioner provided and paid for by the employer; 3. If a worker refuses to submit himself or herself for any examination under this section or in any way obstructs the examination (a) the worker's right to recover compensation under this Act with respect to the injury or (b) the worker's right to weekly payments is suspended until the examination has taken place; 4. A worker must not be required to submit himself or herself for examination by a medical practitioner under this section otherwise than in accordance with the regulation or at more frequent intervals than may be prescribed by the regulations. 17. Pt XII of the Workers Compensation Regulations under the 1987 Act provides for medical examination and disputes, reg 12.43 provides relevantly, 43(1) a worker shall not, under s 129 of the Act, be required to submit himself or herself for examination by a medical practitioner otherwise than in reasonable hours. 18. S 129 of course has been supplanted by s 119 of the WIMS Act. 19. The Compensation Court Rules relevantly provide compensation for r 20.1: 1. this division applies to a medical examination (other than examination by a medical referee or medical panel as provided in the 1998 Act) required, ordered or conducted for the purposes of the proceedings in the Court; 2. medical examination includes any examination by a medical expert but does not include tests mentioned in Div 2 - 20. I might interpolate here that Div 2 is limited to testing for rehabilitation purposes - 4. Where a notice for medical examination of a worker is served pursuant to r 2 and the worker does not submit to examination in accordance with the notice and the Court is of the opinion that there is no reasonable excuse for his not so submitting the Court may on terms stay proceedings as to any claim for compensation made in the court in respect of the worker; 5. Cl (1) the Court may on terms make orders for the medical examination of the worker in respect of whom the claim for compensation is made in the Court including an order that the worker submit to examination by a specified medical expert at a specified time and place; (2) where the Court orders that a worker submit to examination by a medical expert the worker shall do all things reasonably requested and answer all questions reasonably asked of him by the medical expert for the purposes of the .......... THE SUBMISSIONS 21. It is Mr Farkas' submission that in failing to undertake the various psychoneurological tests asked of him by Professor Mattick the applicant has been guilty of obstructing the medical examination within the meaning of s 119(3) of the 1998 Act. Mr Farkas further submits that s 199(3) is mandatory in its application, leaving the Court with no discretion but to suspend the worker's claim for compensation until the tests are undertaken. He makes the further point that s 119(3) does not use terms such as "unreasonably" or "with good cause" to qualify the word "refuses". The operative term in s 119(3) is "obstructs". The Court is being asked to find the worker has placed an obstacle in the way of the medical examination. To my mind at least this opens up the discretion of the Court to evaluate the facts and circumstances of the worker's actions to determine whether the refusal constitutes an obstruction. 22. S 119 subjects its application to the regulations and r 12.43 requires that the hours of the medical examination be reasonable. The Court has also imposed rules, notably r 20.4 which raises the possibility of reasonable excuse, for not submitting to the examination. 23. Mr Farkas submits that in a case where the employer's case is that the worker no longer suffers from any disability and the worker's case is that the injury found by Judge Manser has deteriorated then the employer is entitled to have its medical experts explore four possibilities; namely, 1. Has the worker suffered from any physical or psychological condition; 2. If the worker continues to suffer from a work-related psychological condition, does it incapacitate him for work; 3. If not, when did the psychological injury resolve and 4. Does the worker suffer from a psychological condition that is not work-related. 24. It is Mr Farkas's submission that the Court should find the tests Professor Mattick has proposed to administer were relevant to the determination of these four questions and his client cannot receive fairness of procedure until the tests are carried out. Further, Mr Farkas submits that the applicant's medical experts have raised a range of psychological conditions in their reports to which Professor Mattick's tests have relevance; namely, · organic brain disorder syndrome; · major depressive disorder; · somatoform disorder; · dementia. 25. In addition, the respondent's medical experts have raised serious questions as to the applicant's credibility and Professor Mattick's tests will assist the Court in its determination of whether or not his complaints are genuine. 26. Mr Taylor's first submission is that the parties are bound by Judge Manser's determination as to the nature of the worker's injury. The respondent is not entitled to bring medical evidence to prove Judge Manser wrong nor is the worker entitled to mount a case based on new alleged psychological injuries such as organic brain damage, dementia or any other disorder inconsistent with Judge Manser's determination on the facts. Mr Taylor secondly submits that the application, as it relates to the medical examination of 2 August, should be rejected on the basis that the Rules of Court relevant to s 119 entitle the respondent to seek relief if an examination has been obstructed. Having made no such application for some seven months and, after the matter has been specially fixed for three days, the application is now made. The respondent should be estopped from making it. 27. Mr Taylor would make the same application about the report of 21 February 2001 although Mr Farkas' instructions are that the report did not become available to his solicitors until about two weeks ago. 28. Mr Taylor's third submission is that the applicant co-operated for some two and a half hours with Professor Mattick's examination and tests. When it became clear that he would be required to be tested for up to another two and a half hours Mr Pikios became angry. He was also concerned about missing his aeroplane home at 6.45 pm. Another cause of Mr Pikios's concern was that the test Professor Mattick was conducting went well beyond those he had advised the worker's solicitors about on 8 May 2000. Indeed, tests for cognitive function were expressly excluded by Professor Mattick. 29. Mr Taylor's submission was that in all the circumstances I would find that Mr Pikios refusal to continue with the tests was reasonable. 30. Mr Taylor's fourth submission was that notwithstanding the worker's refusal to co-operate with all the tests Professor Mattick was able to reach a series of firm and unqualified conclusions concerning the worker's psychological state; notably, · at par 9.4, "I assessed him for signs of cognitive dysfunction and could find none"; · par 9.1, "There was no particular evidence of any anxiety disorder"; · par 9.9, "There was no evidence of any depressive disorder"; par 9.10: I assessed him for signs of dementia and could not find any. There was no evidence of any psychiatric disorder, hallucination, delusion, paranoia, bizarre thoughts, thought disorder, schizophrenia or bipolar disorder. He was able to recall information without any marked problems. · Par 11.4, "There was no pain behaviour of any kind. I find his presentation to be implausible"; · par 11.7.3, "I also note that he is not taking any antidepressant medication currently. On that basis I suspect there is no significant emotional disturbance present"; · par 11.9, "I believe there is gross overstatement in this case". 31. Mr Taylor's submission is that such a definite and damning report could not be made more so by further testing. THE EVIDENCE Professor Mattick's Letter of 8 May 2000. 32. Professor Mattick wrote to the employer's solicitor regarding concerns expressed by the worker's solicitors about the tests she wanted to administer. He explained the tests would take three to four hours. He advised the tests would be a number of self-reporting questionnaires concerning psychological morbidity to assess the nature and extent of such psychological disturbance. He nominated the following tests: Beck, Anxiety Inventory; Beck, Depression Inventory; Hopkins, Symptom Check; Minnesota Multi-Phasic Personality Inventory. Questionnaires on the extent of pain, its nature and the disability caused by the pain would also be undertaken. He said he did not anticipate tests of cognitive functioning occurring. Dr B Wilcox 33. Dr Wilcox, as the chief medical officer for Sydney Water, reported on 9 June 1998. He found Mr Pikios had a well established chronic abnormal illness behaviour pattern. He said the question of whether Mr Pikios had some form of mental illness should be answered by a specialist psychiatrist. He found no permanent physical impairment. In a further report of the same date he noted Mr Pikios walked out of his rooms with a shuffling gait and a walking stick but increased his gait and did not need the stick after he proceeded along the footpath. Dr John Albert Roberts 34. Dr Roberts, a psychiatrist, reported on 22 September 1998. He found the applicant had, "zero assessable impairment" and "no evidence whatsoever of any psychiatric condition and that his physical assertions are inconsistent with genuine disability". Dr Shand 35. My attention was drawn to Judge Manser's account of the evidence of Dr Shand, the employer's psychiatrist. He found the worker to be suffering from a psychogenically-based reaction to his original injuries. He also found his behaviour at the interview to include a "paranoid attitude about the case and examining doctors, at least from the insurance company side". THE WORKERS MEDICAL CASE 36. I have been presented by Mr Taylor with a voluminous file of some 95 medical reports going back many years and involving some 32 medical practitioners. Reports that the employer relies heavily upon in this application are those of the psychiatrist Dr Enrico Parmegiani dated 14 September 2000. At page 7 of that report Dr Parmegiani gives the following opinions: In my opinion there are two possible diagnoses to explain such a marked deterioration: (1) Mr Pikios might suffer from an organic brain syndrome or dementia due to a head trauma (DSNIV) due to an unrecognised head injury during the fall. This may explain his attentional problems, irritability, anxiety, depression or effective .......... , apathy and other changes in personality. It would be appropriate to further investigate this possibility through the use of a neuropsychological assessment looking particularly for evidence of frontal lobe damage; (2) Mr Pikios may suffer from a somatoform pain disorder associated with both psychological factors and a general medical condition of chronic type. 37. Dr Parmegiani disagreed with Judge Manser's determination that Mr Pikios suffered from a histrionic personality prior to the accident. It is Professor Mattick's and Mr Farkas' assertion that the raising of the organic brain damage syndrome created the necessity for tests of cognitive function to be undertaken. Resolving The Matter Relevance 38. As Judge Truss points out in Godfrey's case the fundamental requirement of the law of evidence is one of relevance and the Court will not enforce medical examinations outside the specialties required by the injury. It is Mr Taylor's submission that in prescribing the parameters of relevance for any medical examination the principle of res judicata plays a prominent role in this case. In other words, Judge Manser's findings as to the nature of the applicant's work-related injuries are binding on the parties to this case and neither party is entitled to mount a medical case that is fundamentally inconsistent with those findings. He submits, and I concur, that Judge Manser's findings on injury preclude either the worker or the employer mounting a case that his real injury was not as Judge Manser found but was in fact an organic brain damage syndrome. Accordingly, insofar as Professor Mattick's testing for cognitive dysfunction relates to organic brain damage, the employer, and consequently Professor Mattick, is not entitled to insist upon such testing in his medical examination. Professor Mattick conceded in his evidence the primary purpose of the cognitive testing was to eliminate the possibility of brain damage as suggested by Dr Parmegiani. However, he also asserted that cognitive dysfunction testing could have another function and that was to ascertain the truth of the worker's claims about the symptoms such as depression which could be associated with memory loss or loss of concentration. 39. I must say that I found this explanation a little lame and gained the strong impression that the cognitive functional testing was really only about the brain damage. Moreover, it was clear from Professor Mattick's evidence and his reports that what he was really on about was subjecting Mr Pikios to the abbreviated Hiscock Forced Choice Procedure Tests, the purpose of which was to test the veracity of the applicant's claims in this case. I propose to deal with the question as to whether the employer is entitled to conduct psychoneurological testing for the purposes of determining whether or not the applicant is being truthful in his claims at a later point in this judgment. However, I do not believe that a Wechsler Memory Scale testing has any relevance to the case the parties are entitled to put to this Court. Reg 12.43 40. Mr Taylor has put a series of arguments that in effect go to the employer's compliance for the requirements of reg 12.43; namely, that the medical examination conducted by Professor Mattick was not conducted within reasonable hours. I agree this was not the case. My reasons for reaching this conclusion may be summarised as follows: · the worker was found by Judge Manser to be suffering from a mental illness which falls within DSMIV; namely, an aggravation of a pre-existing histrionic personality disorder. His current medical advisers all suggest that he suffers from serious psychiatric disability. It is not my function to determine that case in this application. However, the case law imposes a burden on the Court to ensure that workers are not further injured during the course of medical examinations. The employer's legal advisers arranged a full day of exhaustive medical examinations for Mr Pikios starting with a one and a quarter hour's consultation with Dr Leuwin and a further four to five hours of medical testing by Professor Mattick. This was organised in the knowledge of Dr Shand's evidence, accepted by Judge Manser, at the original trial that Mr Pikios had a great deal of trouble with medical examinations and was extremely paranoid about them. The employer was also aware that Mr Pikios had trouble with the written tests at his first examination by Professor Mattick. Mr Pikios had not had lunch during his long day of medical examinations and if Mr Pikios is indeed still suffering from the condition found by Judge Manser then the process of medical examination was, in my view, very oppressive for a person suffering a mental illness and not conducted within reasonable hours. · A related issue is Mr Pikios' need to get away from the examination at North Sydney and catch an aeroplane due to leave at 6.40 pm. A five-hour testing period would have prevented that happening. Indeed, a four-hour testing period would have made it virtually impossible. I appreciate Professor Mattick's view that he might have been able to make it in that required time. Be that as it may we should remember that mere mortals who travel on aeroplanes are told to be there at a certain hour and that would have been 6 o'clock in Mr Pikios's case. Mr Pikios was obliged to find a cab and travel to the airport and get there in that time. I find that that would have been impossible. There is no wonder then that Mr Pikios became irritable and then angry at the situation he was being placed in. I find that the time-frame in which he was asked to conduct this medical examination was quite unreasonable in all the circumstances of the case. · Professor Mattick's letter to the employer's solicitors of 20 May 2000 which it is agreed was passed on to the worker's solicitors. It specifically states that he does not anticipate additional testing for cognitive function, no doubt leading to the worker's increasing agitation when he learned from Professor Mattick that he was to be subjected to such testing. Was There A Reasonable Excuse For The Worker Not Submitting To The Tests? 41. I have already found reasonable excuse in the form of the appointed hours of testing and the irrelevance of the testing to the claim before the Court. I should deal here with the further argument that employers are entitled, pursuant to s 119, to conduct psychoneurological testing that would expose workers feigning psychological injury. 42. In Skea v Legg (?) (2000) NSWCCR 644 at 672 in pars 455-461 I discussed the contentious issue of Australian courts being presented with statistical constructs based on epidemiological studies in the United States of America that are supposed to determine causation. This is particularly controversial in the case of mental illness which medical science has yet been able to determine the aetiology with any certainty of diseases such as those defined in manuals such as DSMIV. I referred in Skea to the decision of McHugh J in Bennett v The Minister for Community Welfare (1992) 176 CLR 408 at 428 and King CJ in SGIO v Laube (1984) 37 SASR 31. 43. The bottom line is that just as Australian courts are highly suspicious of other new-fangled American devices such as lie detectors there are a lot of very valid concerns about the probative value of neuropsychological testing that go to the validity of its normative data, the effectiveness of the testing and the subjectivity of the testing. In a case where at the best the testing not carried out by Professor Mattick was only peripherally relevant to the issues for determination and in a legal system whose judiciary is not about to permit statistical constructs to usurp the function of judge and/or jury I take the view that Mr Pikios's failure to complete the tests do not provide particularly strong grounds for vacating a three-day special fixture. · Mr Taylor's final submission is that Professor Mattick has reached all the conclusions required of him by the employer notwithstanding the fact that Mr Pikios did not complete all the tests. I have previously recited those conclusions and need not do so again. As Mr Taylor remarked that lines drawn before the court in 2001 are much the same as in 1992; with the medical experts from the worker's camp finding profound psychological injury and the employer's experts determining the worker to be feigning disability and free of any physical or psychological disability. Further tests are highly unlikely to change that state of affairs and it would be a waste of this Court's valuable time to delay this case for a further six months while they are conducted. Accordingly, taking all the evidence into consideration I have reached the conclusion that I should dismiss the application and I do so. 44. The next part of the application related to apprehended bias. Mr Farkas moved that I disqualify myself from hearing this application to vacate the special fixture on the grounds of apprehended bias. The indicia of bias raised in the submission was that he was about to call Professor Mattick as his expert witness and he was a man with whom I had personally associated. The circumstance of that association as eventually deposed by Professor Mattick was that some years ago he had attended a brunch with a friend of mine, a Mr Heilpern, at his home at Byron Bay. Mr Farkas suggested that the perception of apprehended bias could be drawn from the intimate nature of that luncheon, there being only five persons present. Professor Mattick told the Court that the social gathering had lasted for about one and a half hours. Mr Heilpern, he said - and correctly, I might add - was Director General of the New South Wales Department of Community Services for the two years in which I was its minister. That was in the mid-1980s. 45. It is accurate for Mr Farkas to suggest that I am friends with Mr Heilpern although since Mr Heipern moved to Byron Bay in about 1990 and since we both became judicial officers we have only met on very odd occasions. I have no recollection of meeting Professor Mattick. Indeed, I fear I would not perform terribly well if subject to his subtests of the Wechsler Memory Scale because despite looking him in the eye for some two hours and listening to his evidence I still have absolutely no recollection of the meeting. I do have a recollection of Mr Heilpern moving to Byron Bay in 1990 and of meeting him at his homes at Tyagarah and at Possum Creek on several occasions early in that decade. Mr Farkas did not clearly spell out the nature of the apprehended bias. I gather from his submission that the reasonable observer in the back of the court would apprehend that it was likely I would not bring an unprejudiced mind to my determination of this application because Professor Mattick was a friend of a friend and had met me at a private function. 46. My reaction to this proposition was that it was ludicrous. I did not develop my reasons at the time and I should do so now. In the course of a Parliamentary career spanning 25 years, including 15 years as a Minister of State, I had occasion to attend thousands of meetings and social occasions where I was introduced by friends and colleagues to their friends. During my legal career I have similarly attended a very large number of dinner parties and luncheons with friends who have introduced me to their friends and acquaintances. If those friends were key witnesses in a case before me then I would, unless the circumstances were exceptional, disqualify myself for apprehended bias. Many judges during their legal careers have come into contact with expert witnesses. In this jurisdiction where the same experts appear before the court with monotonous regularity both counsel and qualifying solicitors become very well acquainted with the medico-legal consultants in the various specialties. A strict refusal not to hear cases in which judges have met one or more of the experts in a social context could find many judges of this court not sitting very often at all. 47. Where is the prejudice here? The suggestion is that because Professor Mattick was introduced to me by a friend at a private luncheon that I will not bring an unprejudiced mind to the case. The presumption that because the context was one of friendship and conviviality is that I would be prejudiced in Professor Mattick's favour. At this point I should refer to the case law. The modern Australian test for apprehended bias has its genesis in Livesey v New South Wales Bar Association (1983) 151 CLR 288 where Kirby J proposed the test at page 298 of "whether the parties or the public might entertain a reasonable apprehension the judge might not bring an impartial and unprejudiced mind to the resolution of the question involved". 48. The test is to be judged through the eyes of a legal fictional personality known as "the fair-minded observer". This observer's viewpoint has traditionally had nothing to do with the Court's personal view about current public attitudes of judicial accountability; rather, it is a view of what the Court believes to be the standards of judicial conduct necessary to ensure the confidence of ordinary members of the community in the impartiality of our system of justice - see Webb v R (1994) 181 CLR 41. 49. The Court, in applying the test, is required to examine each indicia of bias raised in determining whether or not it is reasonably satisfied that the fair-minded observer might be entertaining a reasonable suspicion of bias - see Dovade Pty Ltd v Westpac (unreported) (1999) NSWCA 113 30 April 1999 92. I have scoured the authorities in an endeavour to gauge what level of acquaintance might be seen by our appellant tribunals to be sufficient to require a judge's disqualification. There is no simple answer, however. Appellant Courts have been at pains to point out the test for apprehended bias is not always easy to apply for it may involve questions of degree and particularity of circumstances that may strike different minds in different ways - see Re Shaw ex parte Shaw (?) (1980) 32 ALR 47 54. 50. In S And M Motor Repairs Pty Ltd v Caltex Oil (Australia) Pty Ltd 12 NSWLR 358 Bryson J was asked to disqualify himself because he had regularly appeared as a barrister representing Caltex Oil interests. The majority of the Court of Appeal found that the reasonable observer would not apprehend bias in that situation. 51. In Gas Corp v Ellicott (1997) 1 VR 332 the Victorian Court of Appeal dealt with an arbitrator, Mr Ellicott, who had acted as leading counsel for the opponents, severely criticising the expert witness to be called before him as arbitrator in the case. Again, the Court of Appeal found no apprehended bias. 52. In Ebner v The Official Trustee in Bankruptcy (unreported decision of the High Court on 7 December 2000) the High Court said at par 39 of its judgment: Potential forms of association between a judge and a litigant are manifold. It may be assessed that all Australian judges have some form of relationship with a bank, for example. There are only four major banking groups in this country. Banks are frequently litigants. 53. At par 30: It is not only association with a party to litigation that may be incompatible with the appearance of impartiality. There may be a disqualifying association with a party's lawyer or a witness or some other person concerned with the case. In each case, however, the question must be how it is said the existence of the association might be thought by the reasonable observer possibly to divert the judge from deciding the case on its merits. 54. The indicia of bias, Mr Farkas suggests, that is likely to convince the reasonable observer that there is an apprehension of bias was that apparently a decade or so ago I met a medical witness for the respondent over lunch at a friend's home. I have no recollection of that event but accept that it did occur. What Mr Farkas seems to be saying is that because Professor Mattick is a friend of a friend of this judge and because the association, though brief and long ago, occurred in an intimate setting; namely, a private meal, then the independent observer is likely to apprehend a bias. He does not articulate to whom the bias would flow but presumably it would favour the employer. There is no evidence before the Court as to what the discussion took place all those years ago, what it was about or whether or not there was anything said that might cause me to form an adverse opinion about Professor Mattick or even a positive opinion. 55. The fact that I have no recollection of Professor Mattick suggests that no such opinions were formed. Judges of this Court are usually drawn from the ranks of barristers or solicitors who have practised in the jurisdiction. I am no exception. In the course of professional practice legal advisers have a great deal to do with qualified medical experts, not only do they qualify them but they have regular conferences with them and frequently meet them socially at medico-legal and other legal occasions. Because the pool of medico-legal consultants in this jurisdiction is relatively small few cases would go by in which the judge is not personally acquainted with at least one of the medical witnesses. This jurisdiction could become unworkable if there was automatic disqualification by judges who in any way had an association with a medical witness. The authorities are clear that bias must be real. 56. Judges have a concomitant duty to hear cases put before them and to resist forum-shopping. It is only in circumstances that parties or the public might entertain a reasonable apprehension the judge might not bring an impartial and unprejudiced mind to the resolution of the question before the Court that disqualification should occur. Given the brevity of the meeting, the time elapsed since it occurred, the absence of any evidence as to what was said at the meeting, the judge's lack of recollection of the events and the strong suggestion that the bias would be in the witness's favour I am of the opinion that it is not at all likely that the fictitious bystander could see any merit in this application and would not form a reasonable apprehension that the judicial officer would not bring an unprejudiced mind to the resolution of the questions before the Court. Accordingly, I do not propose to disqualify myself. Mr R J Taylor instructed by W H Parsons & Associates Solicitors appeared for the applicant Mr G Farkas instructed by Astridge & Murray Solicitors appeared for the respondent