Polsen v Harrison (No. 2) [2021] NSWSC 111

Polsen v Harrison (No. 2) [2021] NSWSC 111

The cumulative effect of the judge's comments about Dr Selwyn Smith's presence at the expert surgeons' liability conclave did not meet the test for apprehended bias. In context, the comments were made as part of case management to alert counsel to potential problems with deployment of the joint report for an imminent amendment application, and robust expression of preliminary concerns seeking counsel's assistance did not reasonably indicate prejudgment of Dr Selwyn Smith's evidence.

Jurisdiction
Australia
Judgment Date
19 February 2021
Procedural Posture
Medical Negligence Proceeding / Plaintiff's Application for Recusal of Presiding Judge at Trial on Grounds of Apprehended Bias
Outcome
Application for recusal rejected; the judge declined to recuse herself.
Legal Topics
['recusal' 'apprehended Bias' 'expert Evidence' 'joint Expert Conclave' 'case Management']
['practice and Procedure' 'civil Procedure'] ['recusal' 'apprehended Bias' 'expert Evidence' 'joint Expert Conclave' 'case Management']

Case Brief

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Procedural Posture

Medical Negligence Proceeding / Plaintiff's Application for Recusal of Presiding Judge at Trial on Grounds of Apprehended Bias

Legal Issues

  1. 1 ["Whether comments made by the trial judge about Dr Selwyn Smith's participation in a joint liability conclave and the resulting report might reasonably cause a fair-minded lay observer to apprehend that the judge might not bring an impartial mind to the credibility, usefulness and weight to be given to Dr Selwyn Smith's evidence." 'Whether the comments were made in a case management context and amounted to no more than robust expression of tentative views about issues counsel would need to address.']

Ratio Decidendi

The cumulative effect of the judge's comments about Dr Selwyn Smith's presence at the expert surgeons' liability conclave did not meet the test for apprehended bias. In context, the comments were made as part of case management to alert counsel to potential problems with deployment of the joint report for an imminent amendment application, and robust expression of preliminary concerns seeking counsel's assistance did not reasonably indicate prejudgment of Dr Selwyn Smith's evidence.

Court Disposition

Application for recusal rejected; the judge declined to recuse herself.

Orders

  • ['I decline to recuse myself.']