With thanks to Denise Aydin for drawing attention to the matter of Polsen v Harrison (No 2) [2021] NSWSC 111, available on AUSTLII.
Part way through a trial and before hearing of a plaintiff’s application to further amend a statement of claim, the plaintiff invited the trial judge to recuse herself on the grounds of apprehended bias following comments made the previous day about the involvement of a psychiatrist in a joint liability conclave with eight surgeons.
Ultimately the plaintiff’s application was rejected. Two extracts from the judgment appear below.
[15] One issue of the many live issues in the proceedings is the assessment of the psychiatric sequelae of the defendant’s negligence. Dr Selwyn Smith is the plaintiff’s sole medico-legal expert in that regard, there being no evidence from any treating psychiatrist or psychologist. His role in the proceedings is thus not unimportant, but the context of my comments about his presence at the liability conclave says nothing at all about the credence and respect with which his relevant expert evidence will be treated.
[19] Whilst acknowledging the fact that the test addresses the chance that a fair- minded lay observer would apprehend that I might not bring an impartial mind to the resolution of a question for decision at the trial, that apprehension still needs to be a reasonable apprehension. The context of the comments in issue was clearly one of case management, alerting counsel to issues which would require addressing first thing the next morning, before the pressing application for leave to substantially amend could be entertained. Additional context is that the trial could not proceed until these matters were clarified and determined. Expressing preliminary views robustly, and seeking assistance from counsel about those tentative views does not indicate pre-judgment. It is part of ordinary judicial function and practice to articulate potential problems to ensure counsel are on notice of concerns and can use out of Court time to think about them and assist the Court by addressing them.
See also: Polsen v Harrison (No 3) [2021] NSWSC 125 on Caselaw, in respecf of a stay application.