Christie v Herro t/as Chemist Warehouse Oxford Street (No 1) [2018] NSWDC 236

District Court New South Wales

Medium Neutral Citation: Christie v Herro t/as Chemist Warehouse Oxford Street (No 1) [2018] NSWDC 236 Hearing dates: 17 May 2018 Date of orders: 18 May 2018 Decision date: 18 May 2018 Jurisdiction: Civil Before: Neilson DCJ Decision: Application that I disqualify myself from further hearing of these proceedings is refused Catchwords: CIVIL – PRACTICE AND PROCEDURE – Application for trial judge to disqualify himself – Mere identification of a peripheral issue which ought not be the subject of the adversarial process, not prejudgment of an issue in the proceedings Cases Cited: Johnson v Johnson [2000] HCA 48; (2000) 174 ALR 655 Category: Procedural and other rulings Parties: Beverley Christie (Plaintiff) Tony Herro trading as Chemist Warehouse Oxford Street (Defendant) Representation: Counsel: Mr M Inglis (Plaintiff) Mr J Sleight (Defendant)

Solicitors: Commins Hendricks (Plaintiff) Curwoods Lawyers (Defendant) File Number(s): 2017/171889 Publication restriction: Nil

Judgment 1. HIS HONOUR: This is an application that I disqualify myself from the further hearing of these proceedings. Yesterday afternoon Mr Inglis, who appears for the plaintiff, sought to adduce from the plaintiff evidence as to the state of the health of her husband. That was objected to by counsel for the defendant, Mr Sleight. There was then a debate between those at the Bar table and me about the issue that had just arisen. Mr Sleight indicated that he would object to the plaintiff's giving any evidence about her husband's state of health or his prognosis and, although Mr Christie was to be called by the plaintiff in her case, he would also object to Mr Christie's giving evidence which would amount hearsay. Clearly Mr Christie would be able to give evidence about the present state of his health, but he would not be theoretically able to give evidence as to the diagnosis given to him by his medical practitioners and would not be able to give the like evidence about his prognosis. 2. Mr Sleight indicated that he believed his legal argument to be a "good one" as he was obviously objecting to what would amount to hearsay evidence. I indicated that I thought the line of approach was "bloody minded". I said that for a number of reasons. 3. The plaintiff was examined by Dr Robert Gertler, a psychiatrist, on 3 July 2017. Dr Gertler prepared a report dated 10 July 2017. That report has been admitted into evidence. It would appear that the report would have been served upon the defendant's solicitor in the normal course. On p 2 of that report Dr Gertler said this: "Several days ago Mrs Christie's husband was diagnosed with incurable bone marrow cancer and this has understandably caused her to become significantly distressed and also concerned as to her ability to care for her husband in the future, given her own physical limitations." That comment has to be borne with this in mind. The plaintiff says that as a result of the accident relied upon in these proceedings, an accident which occurred at Bondi Junction on 15 November 2015, her ability to perform household duties and gardening duties has been impaired and as a result of that she makes the claim pursuant to provisions in Griffith v Kerkemeyer for the gratuitous assistance that her husband had been providing to her since 15 November 2015. 1. When Mr Inglis opened the case for the plaintiff, he pointed out that because of the plaintiff's husband's medical problem, the plaintiff's case for future care and assistance was based on a claim for commercial care and assistance because the plaintiff's husband would be, if not were already, unable to provide that assistance gratuitously. 2. The plaintiff was examined for the defendant by Dr Greg Bruce, an orthopaedic surgeon. Dr Bruce prepared a report bearing the date 30 October 2017 following upon his examination of the plaintiff on 25 October 2017. Dr Bruce observed this on p 6 of his seven page report when answering a question as to whether or not there was a reasonable need for gratuitous or commercial care as a result of the accident: "At present she is carrying out none of the household duties. This is presently being done by her husband. However he has a serious illness and it seems unlikely that he will be able to continue household duties for the foreseeable future. Domestic care services will most likely need to be obtained when her husband becomes too unwell to carry out household duties." Dr Bruce's reports are in evidence. There is a supplementary report bearing date 29 March 2018 but that did not involve the need for Dr Bruce to re-examine the plaintiff. I assume therefore that in the normal course of events the plaintiff's solicitors obtained Dr Bruce's report and served it upon the defendant's solicitor. 1. The defendant has also qualified Ms Sandra Colyer, an occupational therapist, who prepared an occupational therapy assessment. The assessment was carried out on 23 February 2018 and Ms Colyer generated a report dated 5 March 2018. That report is also in evidence and I assume that it would have been served by the defendant's solicitors some time shortly after it was made and hence it made its way into evidence without there being any objection. Paragraph [3.3] of that report, commencing on p 13, says this: "Mrs Christie lives with Neil and they have been married for 35 years. Neil has been recently diagnosed with terminal bone marrow cancer. At the time of the assessment, he had an accident whilst trimming the hedge and hit his shin with the electric trimmer. She took him to Bowral Emergency, due to blood loss and a significant wound. He was moved to Southern Highlands Private Hospital in Bowral, awaiting assessment of possible need to graft the wound. "She reported Neil retired six years ago and has been unwell for the past five years. The original diagnosis was Non Hodgkin Lymphoma, but he was recently re diagnosed by Associate Professor Lindsay Dunlop, Haemotologist, as something she understood to be more serious, ie a bone marrow cancer." 1. It appeared to me that requiring strict proof by the plaintiff of her husband's diagnosis and requiring strict proof from the plaintiff of her husband's prognosis, that is proving the advice that had been given to the plaintiff's husband by his general practitioner or Associate Professor Dunlop, was really not a significant issue in these proceedings and was one likely to cause great distress to the plaintiff and to her husband. I indicated that the appropriate course would have been for Mr Sleight to have discussed this matter, prior to the commencement of the hearing, with Mr Inglis, so that some agreement could be reached about the issue or how it could be less confrontationally proved. 2. In essence my complaint to Mr Sleight was about taking an issue which I did not believe to be a very serious factual issue, unlike factual issues such as the circumstances of the accident, and the claim that it was due to the negligence of the defendant, or the extent of the plaintiff's physical or mental disability. Indeed, ultimately the issue may not arise as to the plaintiff's claim for past and future attendant care services because the plaintiff may not be successful in establishing that she has the ongoing disability which she claims. 3. For the purpose of this application Mr Sleight referred me to the decision of the High Court of Australian in Johnson v Johnson [2000] HCA 48; (2000) 174 ALR 655. As in that case, Mr Sleight does not allege that I am affected by actual bias. Commencing in [11] the plurality Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ said this: "It has been established by a series of decisions of this Court that the test to be applied in Australia in determining whether a judge is disqualified by reason of the appearance of bias (which, in the present case, was said to take the form of pre judgment) is whether a fair minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide. [12] That test has been adopted, in preference to a differently expressed test that has been applied in England, for the reason that it gives due recognition to the fundamental principle that justice must be done, and must be seen to be done. It is based upon the need for public confidence in the administration of justice 'If fair-minded people reasonably apprehend or suspect that the tribunal has pre-judged the case, they cannot have confidence in the decision'. The hypothetical reasonable observer of the judge's conduct is postulated in order to emphasise that the test is objective, is founded in the need for public confidence in the judiciary, and is not based purely upon the assessment by some judges of the capacity or performance of their colleagues. At the same time, two things need to be remembered: the observer is taken to be reasonable; and the person being observed is 'a professional judge whose training, tradition and oath or affirmation require [the judge] to discard the irrelevant, the immaterial and the prejudicial'. [13] While the fictional observer, by reference to whom the test is formulated, is not to be assumed to have a detailed knowledge of the law, or of the character or ability of a particular judge, the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice. The rules and conventions governing such practice are not frozen in time. They developed to take account of the exigencies of modern litigation. At the trial level, modern judges, responding to a need for more active case management, intervene in the conduct of cases to an extent that may surprise a person who came to Court expecting a judge to remain, until the moment of the pronouncement of judgment, as inscrutable as the Sphinx. In Vakauta v Kelly, Brennan, Dean and Gaudron JJ, referring both to trial and appellant proceedings, spoke of 'the dialogue between Bench and Bar which is so helpful in the in the identification of real issues and real problems in a particular case'. Judges at trial or appellant level, who, in exchanges with counsel, express tentative views which reflect a certain tendency of mind are not on that account alone to be taken to indicate pre judgment. Judges are not expected to wait until the end of a case before they start thinking about the issues, or to sit mute while evidence is advanced and arguments are presented. On the contrary, they will often form tentative opinions on matters in issue, and counsel are usually assisted by hearing those opinions, and being given an opportunity to deal with them." 1. In the current case, in my view there could be no suggestion that I have pre-judged any issue, that I have pre-judged the credibility of the plaintiff, only part of whose evidence-in-chief I have heard, that I have pre-judged any issue relating to liability or that I have pre-judged any issue relating to quantum. What I was telling Mr Sleight is that, in my view, his identification as a real issue, the state of the plaintiff's husband's health, was in the circumstances involved not a real issue or one that was to be litigated in the usual adversarial role. 2. No doubt the state of the plaintiff's husband's health is a matter of great distress to her. I can understand that the defendant would be cautious about the prognosis. A prognosis is after all an informed guess as to what may happen in the future. However, some specialists are quite good at providing assessments of longevity of those afflicted by cancer. I do not know the extent of Dr Dunlop's prognosis. I know nothing of Dr Dunlop at all. However I would expect that some agreement could be reached about the prognosis provided to the plaintiff's husband by the Professor. Indeed, the Professor may be able to give a range of diagnoses. 3. Having said that, it is clear from what was submitted to me this morning by Mr Inglis, that in fact the plaintiff's husband does not know his prognosis. So it may well be necessary to obtain some evidence from Professor Dunlop. I suggested to counsel following upon Mr Inglis' telling me certain things that perhaps both counsel might like to speak to Dr Dunlop. In that case some agreement might be reached as to the ultimate prognosis. 4. However the issues tendered for my determination are based not solely on the issue that is currently the subject of controversy, the issues as to the plaintiff's husband's diagnosis and prognosis. I was only pointing out that I thought that this was not a real issue in the trial and that it should be determined in a matter that minimised the adversarial process. However as nothing can be said to have been pre-judged or seen to have been pre-judged, the application is refused.