Knight v Johnston[2013] QDC 259

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   In this matter the appellant appeals from a decision of the Magistrates Court, Cleveland made on 27 February 2013. His damages were assessed in the sum of $4,986. As a consequence of offers which had been made, he was ordered to pay the respondent’s costs, fixed in the sum of $9,545.

2. [2]
   The action arose out of injuries the appellant received in a motor vehicle accident on 20 May 2011. Liability was admitted. The only matter for determination by the Magistrate was the quantum for the appellant’s damages.

3. [3]
   The appellant was self represented at the trial, and on the appeal.

4. [4]
   The grounds of the appeal before me were as follows:

“1.  The orders were unreasonable due to the impact of injury suffered by the appellant arising from the accident;

2. Whether the second respondent’s expert witness was unreasonably appointed;

3. Whether the second respondent’s expert witness practiced in the relevant field in order to give evidence; and

4. The appellant is exercising his right for the proceeding which is subject to appeal, be heard de novo by the District Court of Queensland.”

5. [5]
   At the commencement of the appeal, following a suggestion by me, and after discussion with the appellant and counsel for the respondents, I ordered that the Notice of Appeal be amended by adding a further ground of appeal as follows:

“The appellant was given inadequate opportunity to conduct his case and the trial Magistrate displayed a perceived bias in his conduct of the trial.”

6. [6]
   Ultimately that amendment to the Notice of Appeal was not opposed by counsel for the respondents but he did contend the ground was not made out. In view of the amendment, I gave the parties leave to deliver further written submissions. Counsel for the respondent did provide such further submissions but none were received from the appellant.

The Trial

7. [7]
   In order to consider the appeal and to understand the reason for my suggesting that amendment to the notice of appeal it is necessary to considering the transcript of the hearing before the Magistrate.

8. [8]
   The Magistrate appeared from the outset to have determined that the appellant’s claim was unmeritorious. He did so prior to having given the appellant an opportunity to present his case. A fair reading of the transcript suggests, in my view, that he did so in circumstances where the appellant was unrepresented, a situation the Magistrate appeared to view with some distain, because of comments made to him about the strength of the appellant’s case by counsel for the respondents at the very beginning of the hearing.

9. [9]
   In my view the transcript strongly supports the view that a fair minded observer would apprehend the Magistrate exhibited a significant bias against the appellant. When the Magistrate was told by the respondent’s counsel, at the commencement of the hearing, that the appellant wished to cross-examine Dr Cooke, who was a orthopaedic surgeon engaged by the respondents to provide an expert report, the Magistrate, at a time he knew nothing about the matter, indicated that “normally you just take the information gleaned from the report.” He said this in circumstances where the cross-examination of Dr Cooke was being discussed. In response to that comment by the Magistrate, counsel for the respondent stated:

“Precisely and I do not wish to adduce any further evidence and this case could be determined on the papers.”

In my view such a comment was likely to have added to the Magistrate’s unfortunate resolution to dissuade the appellant from questioning the doctor, because he concluded that to do so was unnecessary.

10. [10]
    I interpose that in my experience, including practice in the area of accident compensation for the vast majority of the period of my professional life, that to merely “take the information gleaned from the report”, without questioning a doctor, is not normal. Cross-examination of medical practitioners is both normal and frequent, and is generally necessary to enable the judicial officer to determine what weight to give to a doctor’s professional opinion.

11. [11]
    Because the appellant wished to cross-examine Dr Cooke the Magistrate, who was, as I have said, of the view that such a practice was not normal, asked the appellant what questions he wanted to ask the doctor. He was told by the appellant that he wanted to ask questions regarding “the field of expertise he’s in”. From material later tendered it is obvious that the appellant was concerned that although Dr Cooke was an orthopaedic surgeon his specialty was in trauma to the lower limbs but that his compensable injury was to his spine. It seems to me that if that were so, cross-examination could possibly have influenced the weight the Magistrate might have placed upon Dr Cooke’s opinion.

12. [12]
    Instead of ensuring that Dr Cooke was available for such cross-examination, the Magistrate instead sought to dissuade the defendant from cross-examining the doctor. The Magistrate asked if there was a CV for the doctor. Told by counsel for the respondent that there was, he indicated “that would cover the field of expertise”. He was dismissive of the appellant’s request to cross-examine Dr Cooke, which was, of course a right he had and not a discretion residing with the Magistrate. When the appellant indicated that doctors who had provided x-ray and MRI reports on which he relied were not to be called to give evidence but their reports were to be admitted without their doing so (i.e. by consent) he said:

“Why would you expect this other doctor to do something where they don’t normally do that sort of thing?”

13. [13]
    This comment was in my view clearly designed to dissuade the appellant from cross-examining Dr Cooke.

14. [14]
    Later during discussion in respect of Dr Cooke’s CV, the Magistrate indicated that he was entitled to take judicial notice of the CV’s contents. In my view this is a most surprising observation, and was again likely to have helped dissuade the unrepresented appellant from cross–examining the doctor.

15. [15]
    Without further discussion, counsel for the respondent asked whether Dr Cooke could be told to resume surgery. Without enquiring of the appellant, the Magistrate indicated that would be appropriate. This is again a clear indication he was not inclined to allow the appellant to exercise his lawful right to cross-examine the doctor.

16. [16]
    The Magistrate asked questions and made comments throughout the trial which in my view had the effect of ridiculing or belittling the appellant and his submissions. For example at page 1.6 of the transcript, after the Magistrate had encouraged counsel for the respondents to explain the case to him, he said “Mr Knight, are you having Mr Howe present your case for you today.” Later, at the same page, he said:

“In the normal course, the appellant would open with some sort of opening and frustration is often the case when you are dealing with an unrepresented person. They’ve got little or no idea of the procedures and they do nothing other than slow down the proceedings.”

17. [17]
    At the following page, and again before reading any report or hearing any evidence, the Magistrate said in respect to the Civil Liability Act that “the whole point of that legislation was to prevent these ridiculous claims”. The appellant asked “if I may present my side of the argument” and the Magistrate responded; “You will. I mean you should have been going first, but given that you have limited understanding of how these processes evolve, Mr Howe is assisting the court in arriving at some sort of focus on what this issue is truly about, because I am getting little or not assistance from you.” 

18. [18]
    I interpose that up to that time the Magistrate had in fact give the appellant little opportunity to be heard. Most discussion had been between the Magistrate and counsel for the respondents. The Magistrate had not attempted to have the appellant outline his case to him and had not explained to the appellant the way in which his case should be presented i.e. by his giving evidence especially about the effect of the injury upon him, and on his capacity to earn income. Indeed, nowhere during the whole of the trial was this process ever explained to the appellant. Indeed, the plaintiff did not give any sworn evidence.

19. [19]
    At p.1.11 of the transcript the appellant again asked if he could continue and the Magistrate interrupted him, saying “the frustration though Mr Howe when you’re dealing with unrepresented people that have little or no understanding of the process, you’ve got to try and encourage them to come to some focus that everyone else is on. He’s obviously way out of focus and he doesn’t understand really the intricacies of how these hearings are conducted and that’s why we’re struggling at the moment.”

20. [20]
    Such a comment belies the Magistrates failure to explain to the appellant the need for him to give evidence or to allow him his right to cross-examine Dr Cooke. In my view he did nothing to assist the unrepresented appellant understand the process of conducting his case.

21. [21]
    Later the appellant said, in answer to questions from the bench (and without being sworn) that after finishing university in 2009 he had travelled overseas, at a time before the subject accident. The Magistrate, mistakenly believing that he had done so after being injured, said “So you went on a holiday. That would have been fairly arduous, wouldn’t it, with your injuries.” Such a comment is an indication of an attitude the Magistrate had to the appellant, clearly inconsistent with his obligation to be impartial. It was in my view designed to ridicule and belittle the appellant and his case.

22. [22]
    The Magistrate later adjourned to read material relevant to the case. Counsel for the respondent upon resumption of the case, indicated: “In the break… I did raise with (the appellant) whether he did wish to peruse his request for cross-examination of Dr Cooke. Mr Knight has told me that he does not wish to cross-examine Dr Cooke and does not wish for him to be recalled, but that he wishes to make some further submissions”.

23. [23]
    The appellant later appeared to resile from this position. He indicated he wished to tender material which he said was copied from Dr Cooke’s website and which he said indicated that Dr Cooke’s specialisation within orthopaedic surgery was in respect of injuries to ankles and feet, hip and knee replacements and generally to trauma to the lower limb, and not with respect of spinal injuries. When the Magistrate took issue with the fact that the appellant wished to rely on material that he had downloaded from the internet, and was questioning Dr Cooke’s expertise, the appellant said:

“Well.. if that’s the case, I may need to cross-examine Dr Cooke after all with regard to that document.”

24. [24]
    The Magistrate ridiculed the appellant’s reliance on material that had said had been taken from Dr Cooke’s website. He said to the appellant, “So you’re placing faith in what you’ve read on the internet…I mean… you can order pizza on the internet.” The appellant then indicated that it was because of the material taken from the internet that he needed to cross-examine Dr Cooke, to verify that the material was taken from Dr Cooke’s website and to show his expertise was unrelated to spinal injuries. Ultimately, this issue was overcome by the respondents’ counsel consenting to the tender of the material which the appellant had downloaded from Dr Cooke’s website, but the exchange does assist in consideration of whether the Magistrate approached the case with an open mind.

25. [25]
    Ultimately Dr Cooke was not called and the appellant was never sworn to give evidence. Rather he was asked some very limited questions by the Magistrate, including questions about his “normal occupation”. He asserted he was unable to get a job since the accident and that his chances of gaining employment were made much worse by the effects of the accident. He said his claim for future economic loss was based on disadvantage in the labour market. These were assertions which, in my view, should properly have been resolved by him giving evidence and cross-examining Dr Cooke about the doctor’s contrary view. Neither event occurred and the need to do so was never explained to the appellant.

26. [26]
    It was never explained to the appellant that it was necessary for him to give sworn evidence or to inform the court what symptoms he continued to suffer. He did say from the bar table that he had been prescribed panadine forte for “permanent back pain”. He indicated that after the subject accident he had difficulty repairing a small dingy and lifting the outboard motor. The report of Dr Cooke indicated that he had reported he continued to experience lower thoracic back pain, worse with sudden movements and of a crunching sensation in his back. He apparently described his level of back pain, at the time of the examination by Dr Cooke on 12 October 2012, as 5 out of 10 on a visual analogue scale. He described his sitting tolerance of only 45 minutes. He was not asked whether he agreed with the contents of Dr Cooke’s report about his symptoms.

27. [27]
    Perhaps the Magistrate’s best attempt to elucidate the symptoms from which the appellant said he suffered is at p1.38 of the transcript when he asked;

“Is there anything else you’d like to say in relation to that Mr Knight?”

At p1.40 he was again asked if he had anything else to say in relation to the matter. It was however never explained to him that the nature of court proceedings is that people are sworn to give evidence, and need to recount in details the symptoms from which they suffer, and the effect of those symptoms on their ability to earn income.

28. [28]
    Perusal of the transcript makes it clear that the Magistrate made no attempt to explain the appropriate processes to the appellant. He did not tell him of the need to give evidence, or of his entitlement to question Dr Cooke and of the importance of doing so.

29. [29]
    My concern with the Magistrate’s approach is not that if the matter had proceeded appropriately, which in my view it clearly did not, he could not have come to the conclusion he did. He may well have done so. In my view however the Magistrate used his position to effectively ridicule the appellant’s case. He did so from the commencement of the matter and, prior to his even reading the medical reports later tendered. He did so prior to hearing anything that the appellant himself said about the symptoms he had. At no time was he sworn to give evidence. The questions the Magistrate asked of him about the level of his symptomology were rudimentary at best. The Magistrate jumped to a conclusion that the appellant’s claim was “ridiculous”, without knowing at that time anything which might have justified that view. Although the Magistrate professed to counsel for the respondent a need to assist the self represented appellant, he instead ridiculed the appellant and his case and did little if anything to assist. He did not suggest to the appellant that he should give sworn testimony about the effects of the accident upon him. He appeared clearly to have misunderstood that Dr Cooke’s assessment that the appellant had no ongoing impairment of his capacity to earn could be subjected to testing by the appellant’s cross-examination of the Doctor, and that, if that had occurred he might not have accepted the doctor’s opinions.

30. [30]
    In my view even if the Magistrate’s assessment of damages is ultimately accepted as the correct position after an appropriate trial of the matter, the way in which the magistrate came to such a conclusion in this case was grossly inappropriate. He prejudged the matter, ridiculed the appellant, giving him no proper opportunity to exercise his right to cross-examine Dr Cooke and failed to assist the unrepresented appellant to understand the need to give sworn evidence about the effect of the accident upon him.

31. [31]
    For a judicial officer, self represented parties can sometimes be challenging. One can sometimes become frustrated, even annoyed. But it is part of ones function to determine cases without favour or prejudice, with a view to achieving a just resolution of the issues in dispute. Sometimes a self represented parties ignorance of rules of court and of evidence and procedure can mean that the party’s case cannot be fully presented. To do so might cause injustice to the other side. In this case the fact that the appellant did not himself have a specialist report on which he could rely might have been fatal to his case. Because of the way he had conducted the matter he was not given an opportunity to have the case adjourned to give him further time to obtain such a report. An application he made at one stage for an adjournment for this purpose was in my view quite properly refused by the Magistrate. To have done so might well have caused unfairness to the respondent.

32. [32]
    The approach of an appellate court in a case of alleged judicial bias is clear. In Elsafty Enterprises Pty Ltd & Anor v Gold Coast City Council [2011] QCA 84 White JA, with whom Chesterman JA and Martin J agreed, set out the relevant principles at paragraphs [59] to [62] of her judgment. Her Honour there said:

1. [59]
   There was no disagreement about the principles to be applied when one party alleges that a judicial decision is vitiated by the appearance of bias on the part of the pronouncing judicial officer. The test to be applied in Australia:

‘... 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.’  (Johnson v Johnson (2000) 201 CLR 488 at [11], 492)

1. [60]
   The plurality in British American Tobacco Australia Services Limited v Laurie (2011) HCA 2 observed, citing Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at 344-345, [6]-[7] and Forge v Australian Securities and Investments Commission (2006) 228 CLR 45 at 77, [66],

‘It is fundamental to the administration of justice that the judge be neutral. It is for this reason that the appearance of departure from neutrality is a ground of disqualification.’

1. [61]
   In Johnson, which concerned remarks made in the course of the trial by a Family Court judge about credit, Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ stated:

‘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.’’

They then said:

“Whilst 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 develop 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 pronouncement of judgment, as inscrutable as the Sphinx.’

Their Honours further explained:

‘Judges, at trial or appellate 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 prejudgment. 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. [62]
   Would, then, a fair-minded lay observer in possession of all the relevant facts have thought that the primary judge was demonstrating that he had pre-judged the issue which he had to decide?  .”

33. [33]
    In Elsafty Enterprises Pty Ltd & Anor v Gold Coast City Council (supra) the court also considered the proper approach when a party establishes that a judicial decision is vitiated by the appearance of bias. In stating her conclusions, White JA said:

“Had the applicants established a reasonable apprehension of bias in the primary judge, even if their other grounds were likely to be successful, the proceedings would likely have been restored to the Planning and Environment Court for consideration anew before another judge. This is because the appearance of neutrality in the judge is fundamental to any system of justice and any departure from it will undermine any reliance on any part of that hearing and especially where, as here, there is complaint that the applicants were not permitted to put their case fully.”

34. [34]
    Her Honour referred to an earlier decision of the Court of Appeal in Hills v Chalk & Ors [2008] QCA 159. In that case, Keane JA, as he then was, referred to the High Court decision in Concrete Pty Ltd v Paramatta Design and Development Pty Ltd (2006) 229 CLR 577. At paragraphs [6] and [7] of his decision, Keane JA said:

“[6]  Gummow ACJ said that the issue of bias must be dealt with first and separately from the other issues in the appeal. His Honour said:

‘If the bias submissions were to succeed, the remedy would be a retrial. If the [substantive] submissions were to succeed, the [appellate court] would itself provide the orders which should have been made and there would be no occasion to order a retrial.’

1. [7]
   Kirby and Crennan JJ said that, if bias is established, it ‘strike[s] at the validity and acceptability of the trial and its outcome.’  Their Honours said that a party who seeks to pursue a submission of bias on the part of the primary judge, whilst at the same time submitting that the case should be finally resolved in its favour, should be put to an election ‘on the basis that if the allegation of ... bias is made out, a retrial will be ordered irrespective of possible findings on other issues.’”

35. [35]
    This was consistent with the approach of a High Court in a case of bias in criminal proceedings. In Antoun v R [2006] HCA 2, Gleeson CJ said at [2] thereof:

“the trial judge announced his decision, in a peremptory manner, as soon as he was informed that an application would be made on the following day, and he repeated that decision before hearing any argument. He then listened to argument on sufferance, then repeated his decision. As it happens, his decision was right. The submission was without merit. That, however, does not remove the impression created by the course that was followed.

Callinan J, in the same case, said at [83]:

“It should be noted that the test as stated emphasises that a possibility, that is relevantly to say, the appearance of a possibility of an absence of an impartial mind on the part of the judge, may lead to disqualification. Their Honours also make it clear that the test does not involve, or require an inquiry into the facts or matters which brought the apprehended state of mind of the judge to one of apparent bias. It follows that the fact that the case may not only at the time, but also in retrospect, seem to be a strong one, indeed a very strong one, does not absolve the judge from giving it a fair hearing, and attending carefully and open-mindedly to the submissions of the parties made at appropriate times.”

36. [36]
    The test that His Honour referred was that set out in Ebner v Official Trustee in Bankruptcy (supra) (2000) 205 CLR 337.

Callinan J said at [85]:

“It seems to me that in this case the trial judge's conduct did present an appearance, indeed an unmistakable one, of prejudgment. As the passage from Ebner makes clear, when conduct of that kind occurs, it is not relevant to the inquiry as to whether an apprehension of bias has arisen that the strength of one party's case may have brought the judge to the point of making the remarks that he did.”

1. [86]
   It follows that the apparent strength of the respondent's case, and the weaknesses of the appellants' defence cannot be used as justification or excuse for the trial judge's expressions of a determination to reject submissions foreshadowed, but not yet made and developed…”

At [87] His Honour said:

“Nonetheless the trial judge was bound to follow the proper process of considering submissions and applications without apparently prejudging them. This clearly he did not do, even though, after stating that they would fail, he said that he would hear them. In view of the dogmatism and asperity of the trial judge's expressions, the latter was hardly likely to instil any confidence in either an innocent bystander, or the appellants. Indeed, it had the ring, more of a protestation, than an assurance of impartiality, of the kind referred to by Aickin J in Re Lusink; Ex parte Shaw and was likely therefore to have reinforced, rather than dispelled, the apprehension of bias which must by then have arisen.”

37. [37]
    The apprehension of bias principle was considered by the High Court in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 and was referred to by Callinan J as I have indicated. Ebner concerned the apprehended bias principle involved when a Judge required to hear a matter involving a bank in which the judge had an interest, either directly or indirectly, in shares in that bank. In their joint judgment the majority (Gleeson CJ, McHugh, Gummow and Haynes JJ) said:

“The governing principle is that, subject to qualifications relating to waiver… a judges is disqualified if a fair minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide. That principle gives effect to the requirement that justice should both be done and be seen to be done.”

Their Honours then said:

“[7]  The apprehension of bias principle may be thought to find its justification in the importance of the basic principle, that the tribunal be independent and impartial. So important is the principle that even the appearance of departure from it is prohibited lest the integrity of the judicial system be undermined. There are, however, some other aspects of the apprehension of bias principle which should be recognised. Deciding whether a judicial officer (or juror) might not bring an impartial mind to the resolution of a question that has not been determined requires no prediction about how the judge or juror will in fact approach the matter. The question is one of possibility (real and not remote), not probability. Similarly, if the matter has already been decided, the test is one which requires no conclusion about what factors actually influenced the outcome. No attempt need be made to inquire into the actual thought processes of the judge or juror.

1. [8]
   The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty. Its application requires two steps. First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a judge (or juror) has an "interest" in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed.”

38. [38]
    I find that the comments that the Magistrate made clearly identify a real possibility, indeed likelihood, that the Magistrate might have decided the case other than the on the legal and factual merits of the case. In my view on reading the transcript one necessarily comes to the conclusion that the Magistrate did not appropriately determine the matter and did not give effect to the requirement that justice should both be done and be seen to be done. In my view a fair minded lay observer would have readily apprehended that the Magistrate might not bring an impartial and unprejudiced mind to the resolution of the question that he was required to decide.

39. [39]
    Before me counsel for the respondent argued that, in reality, the Magistrate could have come to no other conclusion. I do not accept that and as is made clear in the cases I have referred to that is of no consequence if judicial bias is established.

40. [40]
    In my view it may be that if the appellant had been allowed to cross-examine Dr Cooke, as he indicated on a number of times that he wished to do, he might have been able to establish that Dr Cooke’s recent experience with the assessment of spinal injuries was so limited that the Magistrate would not have placed a great deal of weight upon his opinion. In such circumstances, if the appellant had given sworn evidence, as he ought have been required to do and as the Magistrate ought have explained to him was the normal process, the Magistrate might have been persuaded that he had a level of ongoing impairment of his spine which limited his capacity to work and which might have been productive of financial loss in the future. In my view the possibility that the Magistrate might have thus come to a different conclusion was a real possibility even if it can be properly characterised as a relatively unlikely outcome.

41. [41]
    In any case even if it was highly probable that he would have concluded as he did, his conduct of the matter was such that the appeal ought be allowed because of the significant bias he displayed in his consideration of the case.

42. [42]
    In my view the proper approach, once it is concluded that a judicial officer has offended against the principle of judicial independence and impartiality by displaying conduct likely to induce an independent lay observer to reasonably apprehend that the officer might not bring an impartial and unprejudiced mind to the resolution of the case, is that it should be returned for retrial. In my view such an approach is necessary, for any departure from the appearance of judicial neutrality will undermine reliance on the whole of the hearing.

43. [43]
    Counsel for the respondent referred to comments of Muir JA in du Boulay v Worrell & Ors [2009] QCA 63 at [69] that a self-represented person is as bound by the rules of court as a represented party to ensure the efficient, fair and cost effective resolution of cases. Whilst that is no doubt true, his Honour, in the same case, also referred to the fact that self-represented litigants should be offered a degree of indulgence and given appropriate assistance. In my view, in order to ensure procedural fairness in this case, the Magistrate ought to have a explained to the appellant the need for him to give evidence or the likely consequences if he did not and to have explained the likely consequences if he did not question Dr Cooke about the conclusions the doctor had come to. If that had occurred, it is in my view likely that the plaintiff would have given evidence of his symptoms, and their effect on him and have tested the opinions of Dr Cooke expressed in the report.

44. [44]
    In any case, the way in which the appellant conducted his case is not of significant relevance to the disposal of the appeal which should be sent for retrial because of the Magistrate offending the principle against judicial bias.

45. [45]
    Counsel for the respondent also disputed the Magistrate showed bias against the appellant and submitted that the Magistrate’s comments should be characterised as no more than robust comment from a judicial officer who was attempting to arrive at a resolution of the matter in dispute. I do not accept that such a view is open on a fair reading of the transcript.

46. [46]
    I am concerned that, inter alia, the proper court processes were never explained to the appellant. He was never advised that he was required to go into the witness box and give sworn evidence of the difficulties he had, and was having, with his spine. Such evidence is a necessary and vital element of any personal injuries trial. It can of course be that parties might agree that a medical report can be admitted by consent, and they might agree that the history of any injured litigant’s symptoms contained in the report is a proper and accurate summary of the litigant’s symptoms. In this case I do not think any appraisal of the transcript would enable me to conclude that such an agreement was reached and in any case the appellant was never advised that this could be the result of admitting Dr Cooke’s report, in the event that Dr Cooke was not required for cross-examination.

47. [47]
    Furthermore, even then the Magistrate would have been required to form a view as to whether the appellant’s assertions to Dr Cooke that he continues to experience lower thoracic back pain, which is worse with sudden movement, that he has a crunching sensation in his back, that his assessment of pain was five out of 10 on a pain scale, that he has a limited sitting tolerance and believes he may have trouble lifting, for example, a carton of soft drinks were in fact true. That would necessarily involve an assessment of whether the plaintiff was a truthful and reliable witness.

48. [48]
    In my view the Magistrate’s conduct at the trial would have indicated to a fair-minded lay observer that this was a task to which he would be unlikely to bring an impartial and unprejudiced mind.

49. [49]
    In my view there were clear “elements of one sidedness on the part of the trial (Magistrate) in the conduct of the trial”, to use a phrase taken from the judgment of McPherson JA in Merrin & Anor v Cairns Port Authority (2001) QCA 178.

50. [50]
    The decision of the Magistrate ought be set aside and the matter remitted to the Magistrates Court for re-hearing by another Magistrate.

51. [51]
    I will hear argument as to costs.