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Vakauta v Kelly [1989] HCA 44; (1989) 167 CLR 568 (5 October 1989)

CATCHWORDS

HEARING

DECISION

2. It is inevitable that a judge who sits regularly to hear claims for damages for personal injury will form views about the reliability and impartiality of some medical experts who are frequent witnesses in his or her court. In some cases and notwithstanding the professional detachment of an experienced judge, it will be all but impossible to put such preconceived views entirely to one side in weighing the evidence of a particular medical expert. That does not, however, mean that the judge is disqualified from hearing the particular action or any other action involving that medical expert as a witness. The requirement of the reality and the appearance of impartial justice in the administration of the law by the courts is one which must be observed in the real world of actual litigation. That requirement will not be infringed merely because a judge carries with him or her the knowledge that some medical witnesses, who are regularly called to give evidence on behalf of particular classes of plaintiffs (e.g. members of a particular trade union), are likely to be less sceptical of a plaintiff's claims and less optimistic in their prognosis of the extent of future recovery than are other medical witnesses who are regularly called to give evidence on behalf of particular classes of defendants (e.g. those whose liability is covered by a particular insurer). If it were so infringed, the administration of justice in personal injuries cases would be all but impossible. In that regard, both necessity and common sense require that a distinction be drawn between the case where a judge has some preconceived views about the expertise or reliability of the professional opinions of an expert medical witness and the case where a judge has preconceived views about the credit or trustworthiness of a non-expert witness "whose evidence is of significance on ... a question of fact" which "constitutes a live and significant issue" in the case (see Livesey v. New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288, at p 300).

3. Nor will that requirement of the reality and appearance of impartial justice be infringed if a judge with preconceived views about the general reliability of the evidence of a particular medical witness discloses the existence of such views in the course of the dialogue between Bench and Bar which is so helpful in the identification of real issues and real problems in a particular case. In the course of an eloquent passage in his judgment in Reg. v. Watson; Ex parte Armstrong (1976) 136 CLR 248, at p 294, Jacobs J. expressed the view that judicial "silence" is a "counsel of perfection". We respectfully disagree with the application of that observation to a trial judge sitting without a jury. It seems to us that a trial judge who made necessary rulings but otherwise sat completely silent throughout a non-jury trial with the result that his or her views about the issues, problems and technical difficulties involved in the case remained unknown until they emerged as final conclusions in his or her judgment would not represent a model to be emulated.

4. On the other hand, there is an ill-defined line beyond which the expression by a trial judge of preconceived views about the reliability of particular medical witnesses could threaten the appearance of impartial justice. In the passage in his judgment in Watson to which we have referred, Jacobs J. pointed to the undoubted fact that "it is confidence in his own integrity which supports (a judge) not only in his judgment but in all his words and conduct". Knowledge of his or her own integrity can sometimes lead a judge to fail to appreciate that particular comments made in the course of a trial may wrongly convey to one or other of the parties to the litigation or to a lay observer an impression of bias. For example, the appearance of impartial justice could be compromised if the words or actions of a trial judge conveyed the impression that preconceived adverse views about a particular medical witness were influencing the judge's approach to the case to an extent that the judge was entering the arena to denigrate the witness or to oppose the witness' views or that the judge was biased against the party who had called that particular witness or that the judge was likely to be concerned, in the judgment actually deciding the case, to vindicate the preconceived adverse views about the witness by findings contrary to whatever views that witness might express.

5. Where such comments which are likely to convey to a reasonable and intelligent lay observer an impression of bias have been made, a party who has legal representation is not entitled to stand by until the contents of the final judgment are known and then, if those contents prove unpalatable, attack the judgment on the ground that, by reason of those earlier comments, there has been a failure to observe the requirement of the appearance of impartial judgment. By standing by, such a party has waived the right subsequently to object. The reason why that is so is obvious. In such a case, if clear objection had been taken to the comments at the time when they were made or the judge had then been asked to refrain from further hearing the matter, the judge may have been able to correct the wrong impression of bias which had been given or alternatively may have refrained from further hearing. It would be unfair and wrong if failure to object until the contents of the final judgment were known were to give the party in default the advantage of an effective choice between acceptance and rejection of the judgment and to subject the other party to a situation in which it was likely that the judgment would be allowed to stand only if it proved to be unfavourable to him or her.

6. The learned trial judge's adverse comments about Dr. Lawson, Dr. Revai and Dr. Dyball in the course of the trial of the present case were indeed strong: "that unholy trinity"; the G.I.O.'s "usual panel of doctors who think you can do a full week's work without any arms or legs"; whose "views are almost inevitably slanted in favour of the GIO by whom they have been retained, consciously or unconsciously." His Honour indicated that he regarded those three medical practitioners as falling within a "particular category of doctors" to whom he had an adverse attitude. He stated that he expressed his views "for the benefit of the present parties in the negotiations which were taking place." The implication of that last comment would seem to have been that the parties should negotiate any settlement on the basis that his Honour would not be influenced by what those three doctors might say in evidence. In the event, only Dr. Lawson was called to give oral evidence. Dr. Revai's written report was received in evidence. No evidence from Dr. Dyball was received.

7. If the above comments made by the learned trial judge in the course of the trial had stood alone, we would have been of the view that the appellant, having taken no clearly stated objection to them at the time and having stood by until the contents of his Honour's judgment were known, could not now found upon them in order to have that judgment set aside on the grounds of a reasonable apprehension of bias. The statements which the learned trial judge had made about his preconceived views of Dr. Lawson were, however, effectively revived by what his Honour said in his reserved judgment. The appellant's failure to object to the comments made in the course of the trial cannot, in our view, properly be seen as a waiver of any right to complain if comments made about Dr. Lawson in the judgment itself would, in the context of those earlier comments, have the effect of conveying an appearance of impermissible bias in the actual decision to a reasonable and intelligent lay observer. While, as we have indicated, the line between comments which would be likely to have that effect and comments which would not is necessarily an imprecise one, we have come to the conclusion that, when they are read in the context of what was said in the course of the trial, his Honour's comments in his judgment fall on the wrong side of that line. In particular, it seems to us that such a lay observer would be likely to see the derogatory and wide-sweeping references to Dr. Lawson in the judgment - "Even Dr. Lawson"; "his evidence, which was as negative as it always seems to be - and based as usual upon his non-acceptance of the genuineness of any plaintiff's complaints of pain" (emphasis added) - as indicating that his Honour was concerned to vindicate his preconceived and very strong adverse views about the reliability of Dr. Lawson as a witness and had allowed those views to prejudice his whole approach to the case to the detriment of the defendant. An experienced lawyer would appreciate the ability of a trial judge to ensure that preconceived views do not cause the actual decision to be tainted by prejudgment or bias. The likelihood that the lay observer would not lies at the heart of the requirement of the appearance as well as the reality of impartial justice. To borrow and adapt words used by Mahoney J.A. in his dissenting judgment in the Court of Appeal, the comments in the judgment were such as to cause "reasonable apprehension" on the part of a lay observer that the judgment itself was, "in the end", affected by bias.

DAWSON J. The appellant, who was the defendant in this action and behind whom the Government Insurance Office of New South Wales ("the GIO") stands as the real litigant, seeks to have a judgment against him set aside upon the basis that there was actual bias on the part of the trial judge or, alternatively, that the trial judge's behaviour would give rise to a reasonable apprehension of bias. Toohey J. has set out in his judgment the course of events and those parts of the transcript of the trial and of the trial judge's judgment upon which the appellant relies and I shall not set them out again.

2. It is, I think, possible to summarize the remarks made by the learned trial judge during the trial upon which reliance is placed by the appellant as indicating a view on the part of his Honour that three doctors, who were commonly called by the GIO in cases in which the GIO was the defendant's insurer and who were to be called by the defendant in this case, were prone to make light of a plaintiff's disabilities. The view was expressed in forceful and colourful terms, his Honour saying that the GIO's usual panel of doctors "think you can do a full weeks work without any arms or legs" and that the three doctors involved in this case - Drs Lawson, Revai and Dyball - expressed opinions which were "almost inevitably slanted in favour of the GIO by whom they have been retained, consciously or unconsciously". His Honour also expressed views about the GIO, the real client instructing the defendant's counsel. Those views were to the effect that that organization was notoriously inefficient in the conduct of personal injury litigation and that it "would have to carry the can" or that it may be "necessary to tip the can on the GIO" for its failure to maintain workers' compensation payments in the case of the plaintiff.

3. Certain of these remarks were raised by counsel for the plaintiff after they had been made, for the purpose of having them recorded in the transcript. The remaining remarks were made by the learned trial judge by way of response when this was done. No objection was taken by the plaintiff's counsel nor was any application made on the basis of any of the remarks.

4. In the event, of the three doctors to whom I have referred, only Dr Lawson was called as a witness, although a report from Dr Revai was tendered in evidence. In his judgment the learned trial judge said that Dr Lawson's evidence did not impress him and that it was "as negative as it always seems to be - and based as usual upon his non-acceptance of the genuineness of any plaintiff's complaints of pain". Elsewhere in his judgment his Honour referred to evidence given by Dr Lawson which would appear to concede disability on the part of the plaintiff but preceded each reference by the words "Even Dr Lawson thought . . .".

5. The relevant principle is that laid down in Reg. v. Watson; Ex parte Armstrong (1976) 136 CLR 248, at pp 258-263, and applied in Livesey v. New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288, at pp 293-294, namely, that a judge should not sit to hear a case if in all the circumstances the parties or the public might entertain a reasonable apprehension that he might not bring an impartial and unprejudiced mind to the resolution of the question involved in it. Of course, where there is actual bias, then, a fortiori, a judge ought not to sit. Although it is not necessary to refer to previous cases to establish the principle, now that it has been authoritatively stated, there is guidance to be found in those cases as to the manner in which the principle is to be applied.

6. The lack of impartiality which is alleged in this case is not said to have arisen from any interest in the outcome of the case; it is based upon the preconceived views which the trial judge had about the defendant's witnesses and the real defendant, the GIO. Preconceptions do not necessarily mean bias on the part of the judge who holds them. As was said by Charles J. in Reg. v. London County Council; Ex parte Empire Theatre (1894) 71 LT 638, at p 639, "preconceived opinions - though it is unfortunate that a judge should have any - do not constitute such a bias, nor even the expression of such opinions, for it does not follow that the evidence will be disregarded". And in this Court in Reg. v. Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co. Pty. Ltd. [1953] HCA 22; (1953) 88 CLR 100, at p 116, a majority was of the opinion that when bias arising from preconceptions is in question, as distinguished from bias through interest, there must be strong grounds for finding its existence. A judge "must so have conducted himself that a high probability arises of a bias inconsistent with the fair performance of his duties, with the result that a substantial distrust of the result must exist in the minds of reasonable persons". In Re J.R.L.; Ex parte C.J.L. [1986] HCA 39; (1986) 161 CLR 342, at p 372, I expressed the view that suspicion of bias may well be ineradicable where the bias is thought to result from preconceptions existing independently of the case. That is so, but it is not to say that bias is inevitably displayed merely because a judge holds preconceptions or reveals that he does.

7. Unfortunate or not, it is virtually unavoidable that a judge, sitting in a jurisdiction such as that in which the trial judge was sitting, should form some view concerning a party appearing in case after case and of the expert witnesses habitually called by that party. But, as was pointed out in Reg. v. Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group [1969] HCA 10; (1969) 122 CLR 546, at p 554, a fair and unprejudiced mind "is not necessarily a mind which has not given thought" to relevant matters or one which, having thought about them, "has not formed any views or inclination of mind upon or with respect" to them.

8. The question is, therefore, not whether the learned trial judge had preconceived views arising from his previous experience, but whether his preconceptions were of such a kind or were so expressed as to lead a reasonable person to apprehend that he was unable to approach the resolution of the case in a fair and even-handed manner without any inclination towards one side or the other.

9. Whilst the language in which the trial judge expressed himself in the course of the trial may be regrettable, it would not, I think, without more, cause a fair-minded observer to apprehend that he was biased against the defendant in this case. The remarks in question certainly disclose a view that the evidence given by the three doctors is usually slanted in favour of the GIO. But that of itself does not indicate that the trial judge would not accept their evidence in this case if it did not display that tendency, or justify an apprehension that he might not do so. Were his remarks indicative of a closed mind upon the question of the credibility of those witnesses, then it is clear from Livesey's Case that that may give rise to a reasonable apprehension of bias. But the remarks made by the trial judge about the three doctors carried with them no necessary implication of that kind. Nor did his remark made about the GIO preclude him from considering its case impartially. Indeed, to recognize a preconception and alert the parties to it is likely to assist rather than hinder an impartial approach. It is plain that, notwithstanding the views which a judge may have formed in other cases, he may nevertheless be able to assess the evidence in the case before him fairly and to recognize when and where it does not confirm his previous experience. For these reasons, I do not think that the remarks made by the trial judge during the course of the trial were such as to indicate actual bias nor do I think that the parties or a member of the public could reasonably entertain an apprehension of bias on the part of the trial judge.

10. Such a conclusion renders it strictly unnecessary for me to consider whether the course adopted by counsel for the plaintiff was such as to constitute a waiver of any objection to the trial judge's continuing to hear the matter before him. However, it may be useful if I indicate that, had the objection been open, the course taken did, I think, amount to a waiver of it. No objection was taken to the continuation of the trial before his Honour, either formally or in effect. The purpose for which certain of his Honour's remarks were raised by counsel was to have them recorded on the transcript, presumably for use in the event of appeal, and the failure to identify any other purpose necessarily implied that no other point was then taken. If those remarks, or his Honour's response, displayed bias, actual or ostensible, then the failure of counsel to object did, I think, amount to a waiver of the objection. I do not mean to suggest that an objection will be waived if it is not made in formal or even explicit terms. The circumstances may be such that it is plain, without it being put into words, that a judge is being asked to consider his position having regard to the requirement of impartiality. But when the matter of the trial judge's remarks was expressly raised, counsel not only failed to give any indication that the trial judge was being invited to disqualify himself or take some other step to cure the situation but appeared to suggest that the purpose of raising the matter was only to enable the trial judge's remarks to be recorded in the transcript. It cannot be the position that a party can wait to see whether the outcome of a case is favourable to him before raising an objection, the availability of which he was previously aware, on the ground of bias. See R. v. Sussex Justices; Ex parte McCarthy (1924) 1 KB 256, at p 259.

11. There can, I think, be no doubt that an objection upon the ground of bias can be waived. Even where it is a question of the public apprehension of bias, the parties themselves must be competent to waive the objection. Although justice must manifestly be seen to be done, where a party, being aware of his right to object, waives that right, there will be little danger of the appearance of injustice. In the case of a criminal prosecution where the public is directly interested in the outcome, it may be different, but even in such a case, Isaacs J., in Dickason v. Edwards [1910] HCA 7; (1910) 10 CLR 243, was clearly of the view that a party may waive the objection. At p 260 he said:
"So that the principle seems to me to be this
- that, if the person whose presence is
challenged can fairly be said to be biassed,
either by reason of his necessary interest or
by reason of some pre-determination he has
arrived at in the course of the case, then he
ought not to act unless there is something to
relieve him from these disqualifications.
Even in a public prosecution a party may
waive the objection. One of the strongest
examples of this is the case of Wakefield
Local Board of Health v. West Riding and
Grimsby Railway Co. ((1865) [1865] EngR 726; 6 B & S 794
(122 ER 1386)). There the Statute provided
that the justices should be disinterested
parties, but the words were held not
necessarily to prevent waiver. A distinction
has been drawn between public judicial
tribunals and private judicial tribunals, but
I am not satisfied that that is a sound
distinction."
that a party may waive his right to object on the ground of bias. As Hood J. said in Re McCrory; Ex parte Rivett (1895) 21 VLR 3, at p 6:

"A litigant who knows (as the applicant did
here) that there may be some objection to the
constitution of the Bench is bound to mention
it at once, in fairness both to the
magistrate and to the other side, and even if
the objection be a good one the litigant
cannot afterwards be allowed to complain if
with knowledge he remains silent . . . ."

12. In Re Alley; Ex parte The Australian Building Construction Employees' and Builders Labourers' Federation (1985) 60 ALJR 181, at p 182; 64 ALR 6, at p 7, this Court said:

"The law has, in the past, taken a
strict view of the consequences of the
failure of a party to object to the
participation in proceedings by a member of a
tribunal who is said to be biased. In some
cases it has been held that a party entitled
to object to the participation of an
adjudicator, disqualified by interest or
likelihood of bias, will be deemed to have
waived that entitlement if, being fully aware
of the circumstances, he fails to object as
soon as is reasonably practicable. In other
cases it has been held that a party failing
to take objection may be refused relief if he
seeks a discretionary remedy. The question
whether it is possible to waive a right of
this kind raises interesting questions which
it is not necessary to consider here."

13. That leads me to the remarks made by the learned trial judge in his judgment. I can see no reason why these remarks should not be considered in the context of the remarks made earlier in the trial. So considered, it seems to me that the conclusion is inevitable that his Honour failed to consider the evidence in the case fairly and impartially, putting to one side his preconceived views about the GIO and its witnesses. On the contrary, the reference to Dr Lawson's evidence being "as negative as it always seems to be - and based as usual upon his non-acceptance of the genuineness of any plaintiff's complaints of pain" indicates that his Honour failed to set aside his prejudice in his consideration of the evidence called by the defendant. The other remarks made in relation to Dr Lawson's evidence to which I have referred confirm that conclusion. Although the offending remarks in the judgment are confined to Dr Lawson, in the context of the remarks made by the trial judge during the trial, they must, I think, display a lack of impartiality extending to the defendant's case generally. Since the judgment was reserved there was no opportunity for the defendant to object to its contents. Consequently there can be no question of any waiver of the right to object.

14. It follows, in my view, that the appeal should be allowed, the judgment on trial should be set aside and a new trial should be directed on the question of damages.

TOOHEY J. The appellant was the defendant in an action for damages for personal injuries brought by the respondent in the Supreme Court of New South Wales. In reality, the defendant was, as the appellant is, the Government Insurance Office of New South Wales ("G.I.O.").

2. After the hearing of the action began, the appellant admitted liability for the accident which was the subject of the respondent's claim and thereafter the matter proceeded as an assessment of damages. The trial judge reserved judgment and on 24 December 1986 he awarded the respondent damages of $529,500. The appellant appealed against that judgment to the Court of Appeal. The grounds of appeal included matters going to the quantum of the judgment but those grounds were not pursued. The grounds of appeal agitated before the Court of Appeal and now before this Court assert bias on the part of the trial judge, both actual and ostensible. To understand how this issue arose, it is necessary to say something of the course of proceedings in the Supreme Court and also of the contents of the judgment itself.

3. The hearing in the Supreme Court began on 2 December 1986 and on that day the respondent gave evidence as did several witnesses (irrelevant to this appeal) on her behalf. On 3 December Dr Voss was interposed and gave evidence on behalf of the appellant. At a point in the proceedings, which followed a short adjournment at the conclusion of Dr Voss' evidence, counsel for the appellant engaged in a dialogue with the trial judge which it is necessary to reproduce at length:

"MR KELLEHER: There was yesterday reference
which was not included in the transcript
when I indicated that the three doctors that
the GIO intended to call were Dr Revai,
Dr Lawson and Dr Dyball. Your Honour I
think referred to the three doctors as 'that
unholy trio'.
HIS HONOUR: I might have said 'trinity'.
MR KELLEHER: There is also the reference
with regard to Dr Dyball. Your Honour
indicated there was one matter where he
indicated he would not comment on the matter
unless he had instructions from the GIO.
HIS HONOUR: No, what I said was I once had
a case where he refused to accept a fact
asserted by the plaintiff because it had not
been confirmed to him in his instructions
from the GIO, in a case in which the GIO was
not even involved.
MR KELLEHER: The third matter was an
indication by your Honour with regard to the
late payment of workers compensation, that
there should be a component for damages in
respect of that.
HIS HONOUR: What I said to you was I was
raising it with you so that you could meet a
case that the GIO's failure to maintain
workers compensation payments was itself a
cause of the plaintiff's worries.
MR KELLEHER: As I understood, your Honour
had indicated that there should be a
component.
HIS HONOUR: I said it was a case you would
have to meet and I was raising it with you
so that you would be able to apply your mind
to it.
MR KELLEHER: With respect, my memory was
your Honour indicated that there should be a
component in respect of that.
HIS HONOUR: I can assure you I did not say
there should be a component. I said I was
raising it with you so that you would be
able to meet a case if necessary, of course,
by way of explanation for the delays. I
also drew your attention to the fact that
the GIO was still paying compensation, so
that it had not cut off the payments, it had
simply failed to pay.
MR KELLEHER: Certainly my memory was your
Honour indicated there should be a
component. The last aspect was a reference
in colourful terms in respect of tipping the
can on the GIO.
HIS HONOUR: I said it would have to carry
the can where it did cause problems to the
plaintiff which may mean it would be
necessary to tip the can on the GIO. Are
those the only matters?
MR KELLEHER: Those are the matters. There
is one further matter and I cannot recall
the full context of it."

"MR KELLEHER: No, it may with the rest
indicate a view as far as your Honour was
concerned with regard to GIO matters as to
the extent of damages that should be awarded
in a GIO matter, but it adds very little to
that line, but I am instructed and seek to
have it noted.
HIS HONOUR: It may be noted. Are those the
matters?
MR KELLEHER: Those are the matters."

4. Apart from drawing his Honour's attention to what were said to be omissions in the transcript of the proceedings of the previous day and making the comment just mentioned, counsel for the appellant said no more at that stage. His Honour then made a statement which it is advisable to set out in full so that the arguments raised in the appeal may be properly understood:

"HIS HONOUR: I will add something to that.
I recall asking Mr Kelleher yesterday
whether the GIO, instead of referring the
plaintiff to its usual panel of doctors who
think you can do a full weeks work without
any arms or legs, had done something useful
in this case by sending the plaintiff to a
specialist in rehabilitation. I recall
later, after learning that the GIO had
retained Dr Voss for that very purpose,
expressing the view that I had often been
impressed in other cases with the opinions
of Dr Voss on that particular subject.
I also recall stating yesterday that I am
not usually very impressed with the views of
the other doctors, Drs Lawson, Revai and
Dyball, who have been identified as the
defendant's doctors in this case, on the
basis that those views are almost inevitably
slanted in favour of the GIO by whom they
have been retained, consciously or
unconsciously. That statement was related
to the very same subject matter. It is, I
believe, a well known phenomenon that the
GIO does retain doctors who are likely to
express views which will not assist the
plaintiff's case. Such a selective attitude
is, of course, not restricted to the GIO or
even to defendants generally. There are a
number of doctors who it can confidently be
assumed will express views upon a medico
legal basis, after being qualified for that
purpose, which will assist and sometimes
greatly extend the plaintiff's case, and
that some such doctors will go to
extraordinary lengths in doing so. This
problem in the resolution of medical issues
in these cases was in fact referred to in
the State Government's recent discussion
paper on personal injury and workers
compensation litigation.
I see nothing wrong in making my own
attitude to these matters known to the
parties. The parties in the present case
had earlier informed me that negotiations
were underway to settle the matter. I was
informed that those negotiations are still
underway today. Had the plaintiff in the
present case qualified doctors to give
evidence who were in that particular
category of doctors, I would have made a
similar comment in relation to them.
It is inevitable that judges hearing
personal injury litigation without juries
will come to form views as to the general
reliability as witnesses of certain doctors
whom they see or whose reports they see in
case after case on one or other side of the
record. Those views are often expressed in
the reasons for judgment given in case after
case. I have often expressed my views
concerning the value of opinions given in
reports by various doctors and no doubt
someone down in the GIO could have
discovered those views if he had been minded
to search for them. However, the notorious
inefficiency with which that organisation
conducts personal injury litigation in this
Court is such that I felt it safer to
express those views directly for the benefit
of the present parties in the negotiations
which were taking place.
I have not, of course, yet heard the
evidence of these doctors in the present
case. Since passing the remarks of which
complaint is now made, I have been given to
read overnight the reports of Drs Lawson and
Revai. I was not given a copy of
Dr Dyball's report as I was with the others.
Whether that fact is a consequence of the
view expressed by counsel for the plaintiff
in this case that that report supports his
client, I do not know. I reserve my opinion
in relation to those reports until it is
seen whether the doctors are called as
witnesses, but having now read them I feel
no embarrassment whatsoever in relation to
the critical remarks which I passed
concerning those doctors.
I have also since read the report of
Dr Voss and I have had the benefit of seeing
him here in this case. Likewise, I feel no
embarrassment whatsoever in relation to the
laudatory remarks which I passed concerning
Dr Voss at the same time. Indeed, as I said
at the conclusion of his evidence, I found
it very helpful, even though he was unable
to give a direct answer to the rather acute
legal problem which arises in the present
case.
Is there any further objection?
MR KELLEHER: There is no further objection
. . ."

5. Although his Honour asked whether there was any "further objection", counsel for the appellant does not appear to have taken any objection on the previous day. And what had transpired thus far could hardly be characterized as an objection to what his Honour had said, as distinct from a complaint that the transcript was silent on the matters canvassed. The respondent's counsel then called Dr Lawrence. Thereafter Dr Lawson was interposed at the request of the appellant's counsel. The appellant called no other oral evidence but tendered medical reports from Drs Allsop, MacGee and Revai as well as a report from Dr Voss and two from Dr Lawson, tendered during the proceedings. Thus, in terms of the doctors referred to in the exchange between his Honour and counsel, the appellant called Dr Voss and Dr Lawson and tendered reports from Dr Revai without calling that doctor.

6. In his reasons for judgment, his Honour said:

"I accept the view of the plaintiff's doctors
(which is also substantially the view of
Dr Voss) that the plaintiff will continue to
suffer pain and discomfort throughout the
rest of her life . . ."

"Dr Lawson's suggestion that the plaintiff
could work in the casualty ward did not
impress me. Neither did the remainder of
his evidence, which was as negative as it
always seems to be - and based as usual upon
his non-acceptance of the genuineness of any
plaintiff's complaints of pain."

7. It was the appellant's case before the Court of Appeal and before this Court that the remarks made by his Honour on 2 and 3 December 1986 during the course of the action constituted actual bias, alternatively that they gave rise to a reasonable apprehension of bias and further that the passages in his Honour's judgment, to which reference has just been made, likewise constituted actual and ostensible bias. The appellant appeared to concede that actual bias is capable of being waived, though not apprehension of bias, while contending that nothing done by the appellant's counsel amounted to waiver. It was the respondent's case that there was no bias, actual or ostensible, in anything said by the trial judge or in anything appearing in his reasons for judgment; that actual and ostensible bias may each be waived; and that, if there had been bias, it had been waived in respect of anything said during the course of the hearing. It was not suggested that there had been or could have been waiver of any bias to be found in the reasons for judgment.

8. All members of the Court of Appeal rejected the notion of actual bias during the hearing and I am not persuaded that their Honours erred in this regard. What appears in his Honour's reasons for judgment must be the subject of separate analysis. Certainly the remarks made by his Honour during the hearing concerning the G.I.O. and the three medical witnesses might be taken as indicating a jaundiced view of the case to be presented on behalf of the present appellant. Perhaps even more disturbing was the comment by his Honour, in the context that his views regarding the value of opinions given by various doctors might well be ascertained from judgments he had given previously, that the "notorious inefficiency" of the G.I.O. was such that he "felt it safer to express those views directly for the benefit of the present parties in the negotiations which were taking place". If that was his Honour's intention, in making the remarks he did, the G.I.O. might well feel that it was being pressed to make an offer on the basis that, whatever might be said by the medical witnesses called by it, the trial judge was likely to attach no weight to the evidence of those witnesses. Nevertheless, while those comments may have constituted the expression of preconceived opinions, they were not such as to preclude his Honour from bringing to bear on the evidence adduced at the hearing his professional skills and from determining the issues by reference only to that evidence: see The Queen v. Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co. Pty. Ltd. [1953] HCA 22; (1953) 88 CLR 100, at p 116.

9. However, there can be little doubt that his Honour's remarks would excite in the minds of the parties and in members of the public a reasonable apprehension that the trial judge might not bring an unprejudiced mind to the resolution of the matter before him, namely, an assessment based upon the evidence, lay and medical, of an appropriate amount to compensate the respondent for the injuries she had suffered: The Queen v. Watson; Ex parte Armstrong (1976) 136 CLR 248, at pp 258-263; Livesey v. New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288, at pp 293-294, 300.

10. I accept the observation of McHugh J.A. in the instant case that "in the case of a professional judge whose training, tradition and oath or affirmation require him to discard the irrelevant, the immaterial and the prejudicial, a conclusion that there is a reasonable apprehension that he is biased should not be drawn lightly". In effect, that is what this Court said in Livesey, at p 299. And it is true, as Clarke J.A. pointed out, that it is a "reasonable apprehension" with which the court is concerned. And, if it adds anything, it is such an apprehension in "a fair-minded observer": Livesey, at p 294. But, in this regard, the public perception of the judiciary is not advanced by attributing to the reasonable or fair-minded observer a knowledge of the law and an awareness of the judicial process that ordinary experience suggests not to be the case. Such an observer, on being told the nature of the litigation in the present case and then being told of his Honour's remarks, is unlikely to conclude that his Honour was showing no bias against the appellant's potential witnesses and in turn against the appellant's case as to the extent of the respondent's disabilities. On the contrary, the observer is likely to conclude that his Honour would approach the assessment of damages with a strongly held opinion that the evidence of the appellant's medical witnesses (which he had not heard) would almost certainly be loaded against the respondent and therefore be worthy of little credence. To take but one example, his Honour's reference to asking counsel for the appellant "whether the GIO, instead of referring the plaintiff to its usual panel of doctors who think you can do a full weeks work without any arms or legs, had done something useful in this case by sending the plaintiff to a specialist in rehabilitation" could have left no member of the public in doubt as to the reliance likely to be placed by his Honour on the medical evidence to be adduced by the appellant. As to the level of sophistication that should be attributed to the reasonable or fair-minded observer, see Kirby P. in S & M Motor Repairs v. Caltex Oil (1988) 12 NSWLR 358, at pp 375-376.

11. Counsel for the respondent warned us not to overlook that, where ostensible bias is alleged, much may depend upon the tone in which allegedly offending remarks are delivered. While that may be so, it does not assist the respondent in the present case. There is nothing to suggest that his Honour's remarks were made lightheartedly. And, in the case of Dr Lawson, although that doctor gave his evidence without any apparent demur from the Court or counsel, his Honour, in judgment, delivered a trenchant criticism of him, specifically and generally. This is not to conclude that bias during the hearing may be assessed by reference to the judgment. It is mentioned only in relation to any suggestion that his Honour was not serious in his expressed criticism of Dr Lawson as a witness.

12. But, the respondent argued, if there was ostensible bias on the part of the trial judge during the hearing of the action, the appellant waived any right to complain of that bias by reason of counsel's failure to do otherwise than draw the attention of the trial judge to what he had said on the previous day. The questions thus raised are - can there be waiver of ostensible bias and, if there can, was there waiver in the present case? In Re Alley; Ex parte The Australian Building Construction Employees' and Builders Labourers' Federation (1985) 60 ALJR 181; 64 ALR 6 this Court left the first question open. In Watson the majority said, at p 263:

". . . the rule that a judge may not sit to
hear a case if it might reasonably be
considered that he could not bring a fair
and unprejudiced mind to the decision
applies to every court in Australia, subject
only to the exceptions (statutory authority,
necessity and waiver), mentioned by
Isaacs J. in Dickason v. Edwards ((1910)
[1910] HCA 7; 10 CLR 243, at pp 259-260) none of which
has any application to the present case."

13. In Dickason v. Edwards, which was concerned with expulsion from a friendly society following adjudication by a tribunal of that society, Isaacs J. said, at p 261:

"But in any event it is clear that in the
case of a public tribunal the party affected
may, if he has knowledge, waive the
objection of disqualification."

14. In S & M Motor Repairs v. Caltex Oil, at p 373, Kirby P. commented:

"The entitlement to a judge who is
manifestly impartial is not simply a private
right which may be wiaved. It inheres in
the public as well as to the individual
litigant. It is not for the individual
litigant to waive the public's rights: cf
United States v Lustman [1958] USCA2 468; 258 F 2d 475 at 478
(1958)."

15. In his judgment in the Court of Appeal, McHugh J.A. referred to a number of authorities where waiver was held to be available in the case of a claim for disqualification for bias. Save for the last, these were all cases of bias on the ground of interest: The Queen v. The Cheltenham Commissioners [1841] EngR 582; (1841) 1 QB 467 (113 ER 1211); "The Vernon" (1864) 1 QSCR 119; Wakefield Board of Health v. West Riding and Grimsby Railway Company [1865] EngR 726; (1865) 6 B & S 794 (122 ER 1386); Re McCrory; Ex parte Rivett (1895) 21 VLR 3; Raven v. Burnett (1895) 6 QLJ 166; The King v. Byles; Ex parte Hollidge (1912) 108 LT 270; The King v. Sussex Justices; Ex parte McCarthy (1924) 1 KB 256; The King v. Essex Justices; Ex parte Perkins (1927) 2 KB 475; In the Marriage of Murphy and Armstrong (1978) 35 FLR 482; Nickelseekers v. Vance (1985) 1 Qd R 266.

16. There is no reason why, in authority or in principle, a litigant who is fully aware of the circumstances from which ostensible bias might be inferred, should not be capable of waiving the right later to object to the judge continuing to hear and dispose of the case. That is not to say that the litigant in such a position must expressly call upon the judge to withdraw from the case. It may be enough that counsel make clear that objection is taken to what the judge has said, by reason of the way in which the remarks will be viewed. It will then be for the judge to determine what course to adopt, in particular whether to stand down from the case. For counsel to invite the judge to withdraw from the case may be quite premature, particularly if the judge acknowledges the apparent bias in what has been said and thereafter takes steps to dispel that apprehension. But, as Dawson J. noted in Re J.R.L.; Ex parte C.J.L. [1986] HCA 39; (1986) 161 CLR 342, at p 372, suspicion of bias based on preconceptions existing independently of the case "may well be ineradicable". In that situation there will be no option but to ask the judge to disqualify himself. In any event objection must be taken: see Re McCrory; Ex parte Rivett, at p 6. It was not taken in the present case.

17. In the result, when a party is in a position to object but takes no steps to do so, that party cannot be heard to complain later that the judge was biased. It was suggested during argument that this situation may be one, not of waiver, but of estoppel. The distinction between waiver and estoppel was drawn by Isaacs J. in Craine v. Colonial Mutual Fire Insurance Co. Ltd. [1920] HCA 64; (1920) 28 CLR 305, at pp 326-327, in a passage which has been referred to on many occasions. See also Spencer Bower and Turner, The Law Relating to Estoppel by Representation, 3rd ed. (1977), pp 317-320. Notwithstanding the difficulties that do arise from time to time in distinguishing between waiver and estoppel, the situation here is more akin to the former than to the latter. Waiver involves a decision by the party against whose case bias is shown to raise no objection. It is this conduct which is in question rather than the conduct of the other party. The other party does not alter his position in reliance on that decision, although it is true that, had objection been taken at the time, the trial judge may have disqualified himself and the action could have been heard before another judge without serious loss of time. The situation is one in which the law prevents a party to litigation from taking up two inconsistent positions; he is held to his election. While, of course, the community has an interest in knowing that cases are decided impartially, that interest is not affected adversely by a doctrine which refuses a party to litigation the opportunity to resile from a position he has taken. The appellant should be held to have waived any entitlement to challenge what was said by his Honour during the hearing.

18. Reference was made earlier to the terms of his Honour's judgment in so far as it related to Dr Lawson's evidence. Counsel for the respondent conceded, correctly in my view, that it is permissible to evaluate what was said in the judgment in the light of what had been said at the hearing. Even without such resort, the remarks made by his Honour concerning Dr Lawson amounted to ostensible bias because they would lead to the conclusion, in the mind of the reasonable or fair-minded observer, that his Honour's assessment of Dr Lawson's evidence was heavily influenced by views he had formed on other occasions rather than by an assessment based on the case in hand. That conclusion becomes irresistible when regard is had to what had been said by his Honour concerning Dr Lawson and G.I.O. witnesses during the hearing.

19. Once it is accepted that there was bias, at any rate ostensible bias, in the judgment itself, no question of waiver or estoppel can then arise. What was delivered was a reserved judgment, without any opportunity for counsel to question what it contained.

20. It is an unfortunate consequence, alleviated only by the appellant's undertaking not to disturb the costs of the proceedings below and of the further undertaking to meet the respondent's costs of this appeal, that the appeal to this Court should be allowed, that the appeal to the Court of Appeal should be allowed, that the judgment of his Honour should be set aside and that a new trial be directed as to the question of damages.

ORDER

Set aside the orders of the Court of Appeal of New South Wales except in relation to costs and in lieu thereof order that the appeal to that Court be allowed.

Set aside the orders of Hunt J. except in relation to costs and order a new trial on the question of damages.

The appellant to pay the costs in this Court.