Polsen v Harrison [2021] NSWCA 23 (on Caselaw) saw the NSW Court of Appeal called upon to consider an application for leave to appeal from a decision of a trial judge in a medical negligence claim, refusing an application for recusal. As noted previously in this blog, the initial application was made after the trial judge commented on role of one of the plaintiff’s experts at a conclave.
The Court of Appeal granted leave to appeal but refused the appeal. As noted in the headnote:
The primary judge did not err in refusing to recuse herself. The legal principles in question are uncontroversial: [46], [47]. In circumstances where the primary judge was not ruling on the admissibility of the joint report or of evidence to be given by the psychiatrist, and where her responses were necessarily impressionistic and intended to ‘flag’ concerns to counsel, the fair-minded lay observer would have expected that, if the judge were wrong in her assessment of the role played by the psychiatrist in the expert conclave, that would have been pointed out to her by counsel. That did not occur. The test as to whether a fair-minded lay observer might have feared that the judge might have prejudged a significant issue was not satisfied: [51]-[61].