Supreme Court New South Wales Medium Neutral Citation: Harris v Bellemore (No 4) [2012] NSWSC 878 Hearing dates: 26 July 2012 Decision date: 03 August 2012 Before: McCallum J Decision: Plaintiff's application to have proceedings referred for hearing by another judge refused Catchwords: COURTS - jurisdiction - where proceedings remitted to trial judge to determine specified questions following appeal - whether task remitted by Court of Appeal required trial judge to rehear matters already determined by her - whether trial judge would be acting beyond power to determine questions remitted COURTS - practice and procedure - application of apprehended bias principle -specific questions remitted to trial judge by Court of Appeal - whether issues already determined by trial judge - where decision to remit to same judge alleged to have been made by Court of Appeal per incuriam - whether matter should be referred for hearing by another judge Legislation Cited: Supreme Court Act 1970 Cases Cited: British American Tobacco Australia Services Limited v Laurie [2011] HCA 2 British American Tobacco Australia Services Ltd v Laurie [2009] NSWCA 414 Harris v Bellemore [2010] NSWSC 176 Harris v Bellemore [2011] NSWCA 196 Category: Interlocutory applications Parties: Paul Harris (plaintiff) Michael Bellemore (defendant) Representation: Counsel: B Toomey QC / E Romaniuk (plaintiff) S Donaldson / E Muston (defendant) Solicitors: TD Kelly & Co (plaintiff) Blake Dawson (defendant) File Number(s): 2010/92491 2001/20699 Publication restriction: None Judgment 1These are proceedings for medical negligence which were heard and determined at first instance by me. The principal judgment was given in March 2010: Harris v Bellemore [2010] NSWSC 176. Following further argument, final judgment for the plaintiff was entered on 24 June 2010 in the sum of $652,892.95. 2An appeal against the principal judgment was allowed in part: Harris v Bellemore [2011] NSWCA 196. The point on which the appeal succeeded was that I was wrong to have declined to determine an aspect of the plaintiff's claim on the basis that it had not been pleaded. The orders of the Court of Appeal included an order remitting the proceedings to me to determine four questions (specified in the order) relating to that aspect of the claim. 3Upon the re-listing of the proceedings before me, the plaintiff sought an order that I refer the matter for hearing by another judge of the Court. This judgment determines that application. Circumstances in which the application is made 4In the appeal, the plaintiff contended that the judgment entered in his favour was inadequate as a result of my having erred as follows (see appeal judgment at [14]): (a) in concluding that the plaintiff had not pleaded a claim for damages relating to his procurvatum deformity, with the result that the plaintiff was not entitled to damages related to that deformity, and finding that in any event the plaintiff's procurvatum deformity did "not appear to have any functional significance for [the plaintiff]" (Judgment [267]); (b) in rejecting the appellant's tender of a report dated 25 May 2009 of Mr Simonis, an orthopaedic surgeon, concerning the appellant's current condition; and (c) in rejecting the appellant's claim for damages based upon his alleged psychiatric condition. 5The Court of Appeal rejected grounds (b) and (c): at [112] and [144] respectively per Macfarlan JA; Beazley and McColl JJA agreeing at [1] and [2] respectively. 6Ground (a) raised two issues, namely, the correctness of my conclusion as to whether the procurvatum claim had been pleaded and the correctness of an alleged finding as to the merits of that claim. The Court of Appeal dealt with the second issue first: at [71]-[82] of the appeal judgment. After considering my discussion of the significance of the procurvatum, Macfarlan JA said (at [82]): [82]In these circumstances my view is that either the primary judge should be regarded as not having given reasons for concluding that the appellant's procurvatum is of no functional significance or, if her Honour's reasons should be inferred to be those given in relation to the appellant's posterior displacement condition, those reasons do not support the conclusion that the appellant's procurvatum is of no functional significance. As determination of this issue involves the interpretation of expert evidence adduced before her Honour and the resolution of apparent conflicts in that evidence, this Court is not in my view in a position to resolve the issue of whether the appellant's procurvatum is of any functional significance and, unless there are other reasons not to do so (such as the pleading point to which I will turn), the issue should be remitted to the primary judge for resolution. 7The underlined sentence determined an issue raised in argument before the Court of Appeal as to the appropriate orders in the event that the appeal was allowed. The defendant had submitted that, if minded to accept ground (a), the Court of Appeal should itself determine the procurvatum issue. That the Court of Appeal had power to do so if it saw fit was not in dispute: cf s 75A(10) of the Supreme Court Act 1970. However, the plaintiff opposed that course. Further, whilst opposing that course, the plaintiff did not raise any issue as to whether the matter should be remitted to me, as opposed to being remitted to this Division for hearing by another judge. Mr Toomey of Queen's Counsel, who now appears for the plaintiff with Mr Romaniuk, explained that the question was never asked. He informed me that, had the issue been raised, the plaintiff would have opposed the remitter to me and would have sought an order remitting the matter for hearing by a judge of the Division other than me. 8The Court of Appeal considered that, "as determination of [the procurvatum] issue involves the interpretation of expert evidence adduced before her Honour and the resolution of apparent conflicts in that evidence", it was not in a position to resolve the issue of whether the appellant's procurvatum is of any functional significance. On that basis, the Court held that, subject to the pleading point, the procurvatum issue should be remitted to be determined by me: at [82]; reiterated at [91]. It may be noted that the Court's reason for declining to decide the procurvatum issues itself would apply equally to another judge of this Division. 9Turning to the pleading point, the Court of Appeal held that I was wrong to reject the procurvatum claim on the basis that it had not been pleaded. The Court held that, despite some aspects of the pleading that warranted criticism, the pleading sufficiently conveyed the claim in question (at [85], [92]). Macfarlan JA continued (at [93] to [94]): [93]It cannot in my view be said that on the evidence before her Honour the claim was in any event bound to fail. The respondent admitted that he was negligent in not using hinges and there is arguably a basis in the evidence for concluding that the procurvatum condition would have been avoided or corrected if the respondent had used the hinges. Further, as I have indicated above, there is arguably a basis in the evidence for a finding that the appellant's procurvatum condition constitutes a serious disability. The primary judge's contrary conclusion, that the procurvatum did not appear "to have any functional significance for Mr Harris" (see [75] above) was not supported by any reasons that her Honour gave. [94]In these circumstances the procurvatum claim must be remitted to the primary judge for determination. This should be upon the basis that the only issues in respect of the claim not yet resolved in favour of the appellant are the following: (a) Would the appellant's procurvatum condition have been corrected by the fitting of hinges to the appellant's Ilizarov frames? (b)Does the appellant's procurvatum condition constitute a disability of any significance? (c) To what extent was this condition caused by the respondent's treatment of the appellant other than in performing the second osteotomy? (d) If yes to both (a) and (b) and in light of the answer to (c), what further damages, if any, should be awarded to the appellant? 10The orders of the Court of Appeal (at [147]) remitted the proceedings to me "to make such orders as may be considered appropriate in respect of costs of the proceedings at first instance, to determine the following questions and to make such consequential orders as may be considered appropriate" (emphasis added). The "following questions" were those set out at [94] of the judgment, reproduced above. 11The plaintiff applied to the High Court for special leave to appeal against the decision of the Court of Appeal. That application was determined on 9 December 2011: Harris v Bellemore [2011] HCA Trans 346. The application for special leave included a challenge to the order of the Court of Appeal remitting the matter to me. In refusing special leave, the High Court said: The applicant seeks special leave to appeal against the order of the Court of Appeal which remitted the matter to the primary judge to determine whether the applicant's procurvatum condition could have been corrected by the respondent, whether it constituted a disability of any significance and whether it was caused by the respondent's treatment of the applicant. The remitter extended to a requirement that the primary judge consider what further damages, if any, should be awarded to the applicant. The applicant complained that the primary judge had made findings in relation to the procurvatum condition which amounted to a pre-judgment on aspects of the questions remitted to her. However, having regard to the primary judge's conclusion that the procurvatum claim was not before her, such observations as she made did not, in our opinion, preclude her from coming from (sic) conclusions favourable to the applicant on remitter. Relief sought 12The order now sought is to have the matter referred for hearing by another judge of the court on the grounds that: (i)there could reasonably be an apprehension of bias if I were to hear the case; (ii)I might be acting beyond power in rehearing a decision of my own. 13Mr Toomey emphasised that the plaintiff does not contend actual bias. Power 14It is logical to consider the issue of power first. The premise of the contention that I might be acting beyond power in determining the questions remitted to me was that I have already determined those questions, or parts of them. 15In the principal judgment, I said (at [241]-[242]): 241On that basis, it may be accepted that 20% of any flexion deformity is due to the posterior displacement and so falls within the class of consequences for which Dr Bellemore admits liability. The question is, 20% of what? In light of the agreement between the current condition experts that Mr Harris can fully extend his knee, I am not satisfied that the posterior displacement has any functional significance. 242Separately, it was contended on behalf of Mr Harris that liability for the residual procurvatum (responsible for 70% of the assumed flexion deformity) flows from Dr Bellemore's admission of breach of duty in failing to use hinges to correct the varus deformity. In light of the evidence summarised above, it is doubtful whether the procurvatum has any functional significance either, although it appears to be a matter that is upsetting Mr Harris. In any event, that issue is considered separately below. 16I returned to the issue of the procurvatum at [267] to [268], where I said: 267It remains to consider the vexed question of the procurvatum. Mr Harris contends that the procurvatum is one of the problems that could have been corrected or forfended if Dr Bellemore had fitted hinges or conical washers to the frame. For the reasons already explained, the procurvatum does not appear to have any functional significance for Mr Harris. Accordingly, the consideration of that contention is of doubtful utility. 268In any event, a threshold issue (identified in Mr Kelly's proposed additional question 32) is whether the Court should consider the contention at all. It was submitted on Dr Bellemore's behalf that Mr Harris had not brought any claim based on an allegation that Dr Bellemore was negligent in failing to identify or correct the procurvatum deformity. 17Mr Toomey submitted that the underlined remarks in those two passages were findings reached in the discharge of my fact-finding function. On that basis, he submitted that the determination of the issues remitted to me by the Court of Appeal would require me to rehear a matter I have already determined. The burden of the submission as to power was that "this Court" (evidently a reference to the Court in a Division) has no power of rehearing. The plaintiff submitted that the Court of Appeal has a statutory power of rehearing conferred by s 75A of the Supreme Court Act 1970. However, it was submitted that "the remitter from that Court does not imbue this Court with that power. If it were otherwise it would be conferring on this Court the right to sit on appeal from itself". 18If that submission were correct, I do not think it would sustain the relief sought in the present application (to have the proceedings referred to another judge of the Division). The determination of a judge of the Court in a Division is a determination of the Court. If there is no power to determine the issues remitted in the present case (on the basis that this Court cannot rehear an issue it has already determined), that is a want of power in the Court, not in any individual judge of the Court. The powers of the Court are not personal to the judges who exercise them. 19In any event, I do not think the submission is correct. First, the principal judgment did not determine the issue whether the plaintiff's procurvatum condition has any functional significance. The remarks relied upon (underlined in the extracts set out above) were expressed as doubts, not findings. In light of my conclusion on the pleading point, no determination of the procurvatum issue was required. 20Secondly, even if the issue should be taken as having been determined by me, the determination has been undone by appellate correction. The Court of Appeal concluded that I either overlooked giving reasons for the remarks made or gave reasons that did not sustain them. Further, the Court expressly remitted "the only issues in respect of the [procurvatum] claim not yet resolved in favour of the [plaintiff]" (at [94]). The proposition that the Court in a Division has no power to determine an issue of fact again in that circumstance is a difficult one. The power of the Court of Appeal to remit the questions was not in dispute: cf s 75A(10) of the Supreme Court Act. A corollary of Mr Toomey's submission appears to be that, notwithstanding the existence of that power, the Court of Appeal was in effect constrained either to determine the issues itself or to order a whole new trial before another judge. 21For those reasons, I am not persuaded that I have no power to determine the questions remitted to me by the Court of Appeal. Even if I had any doubt in that respect, it would not be for me to act on any such doubt. Implicit in the orders of the Court of Appeal is that Court's satisfaction that the questions remitted to me are within my power to determine. I am bound by their decision in that (and every) respect. Reasonable apprehension of bias 22The basis for invoking the apprehended bias principle was the contention that I have already made a finding at a final hearing as to the functional significance of the procurvatum (at [242] and [267] of the principal judgment, set out above). It may be accepted that there is overlap between that issue and the issues remitted to me by the Court of Appeal. The plaintiff also relied upon the fact that I made credit findings concerning him (at [30] to [37] of the principal judgment). 23The parties' submissions raised an interesting question as to the content of the apprehended bias principle in that context. The premise of the application is the existence of a reasonable apprehension that I will not decide the issues remitted to me impartially or without prejudice. Mr Donaldson, who appeared with Mr Muston for the defendant, submitted that, in assessing an apprehension of bias, there is a distinction between the position of a judge at the outset of a case and the position of a judge to whom a specific point, or part of a case, has been remitted by an appeal court following a hearing. He said "the Court does not expect, and the community does not expect, the same degree of pure objectivity" at that point. 24Whilst assuring the Court of his respect for Mr Donaldson, Mr Toomey described that as an absurd proposition for which no authority had been or could be cited. He submitted that there can be no comparative measuring of apprehension of bias - it is either there or it is not. That is an unexceptionable statement, so far as it goes. However, I did not understand Mr Donaldson's submission to be directed to the measure of apprehended bias that may properly be tolerated in the administration of justice. At any point of the process, the answer is "none" (although the principle is subject to the exceptions discussed by the High Court in British American Tobacco Australia Services Limited v Laurie [2011] HCA 2 at [146] and following). 25Rather, I understood Mr Donaldson's submission to be directed to the proposition that the question is to be judged by the standard of an observer who is not only fair-minded but also informed (including as to the status of the proceedings). 26The relevant principles were considered by the High Court in British American Tobacco Australia Services Limited v Laurie. In that case, the Court (by majority) upheld the dissenting decision of Allsop P in the Court of Appeal: British American Tobacco Australia Services Ltd v Laurie [2009] NSWCA 414. The President had held (at [11]): The grave quality of such a finding by a trial judge and the necessity for the trial judge to be persuaded in his or her mind as to its truth informs my view that a fair-minded lay observer might reasonably think that a judge, who has been so persuaded, might not be able to bring a mind free of the effect of the prior conclusion, so solemnly reached, to bear in dealing with the same issue in respect of the same party on a later occasion. 27In the High Court, the majority said (at [145] per Heydon, Keifel and Bell JJ): Allsop P's conclusion was correct. In addition to the possibility of the evidentiary position changing, a reasonable observer would note that the trial judge's finding of fraud was otherwise expressed without qualification or doubt, that it was based on actual persuasion of the correctness of that conclusion, that while the judge did not use violent language, he did express himself in terms indicating extreme scepticism about BATAS's denials and strong doubt about the possibility of different materials explaining the difficulties experienced by the judge, and that the nature of the fraud about which the judge had been persuaded was extremely serious. In the circumstances of this unusual case, a reasonable observer might possibly apprehend that at the trial the court might not move its mind from the position reached on one set of materials even if different materials were presented at the trial - that is, bring an impartial mind to the issues relating to the fraud finding. 28In the present case, the Court of Appeal held that I ought to have determined an issue which I had either not determined or not determined properly when I published the principal judgment. Further, the Court declined to determine that issue itself, for the reason that it should rather be sent back to be determined by me, since I had had the benefit of hearing all the evidence. The High Court expressly endorsed that approach. Whilst the refusal of special leave does not stand as a binding decision, it forms part of the juridical context in which I have been tasked with determining the questions remitted. 29In my view, a fair-minded lay observer so informed would not entertain a reasonable apprehension that I have lost impartiality on the questions remitted, particularly knowing that, since publishing the principal judgment, I have enjoyed the benefit of appellate correction. 30The plaintiff submitted that the reasonable apprehension of bias may have been created unwittingly by the Court of Appeal. In particular, Mr Toomey noted that, in remitting the matter to me, the Court of Appeal did not expressly consider my findings in the principal judgment as to the plaintiff's credit. 31I do not think there is any basis for concluding that the decision of the Court of Appeal to remit the matter to me was made through inadvertence. Even if there were any basis for reaching that conclusion, it would not be for me to determine that issue. I consider myself bound by the decision of the Court of Appeal that the four outstanding questions concerning the procurvatum claim should be remitted to be determined by the judge who heard all of the evidence in the case (me). 32For those reasons, the application to have the proceedings referred for hearing by another judge is refused. ********** Amendments 10 August 2012 - Name of barrister ' Mr Romaniuk' - included Amended paragraphs: Paragraph 7 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 10 August 2012