CK & S LTD V TALBOT 2002 UNDERWRITING CAPITAL LTD AND ANOR HC AK CIV-2004-404-006957 [2009] NZHC 581 (20 May 2009)

IN THE HIGH COURT OF NEW ZEALAND
AUCKLAND REGISTRY
                                                                      CIV-2004-404-006957



              BETWEEN                      CK & S LIMITED
                                           Plaintiff

             
AND                          TALBOT 2002 UNDERWRITING
                                           CAPITAL LIMITED
               
                           First Defendant

                                           MAINTENANCE TECHNOLOGY AND
              
                            ENGINEERING LIMITED
                                           Second Defendant


Hearing:      (On the
Papers)

Appearances: J G Miles QC, M G Ring QC and P R Rzepecky for the Plaintiff and
             First Defendant
            
B D Gray QC and A J Sherlock for the Second Defendant

Judgment:     20 May 2009


                            JUDGMENT OF DUFFY
J
                             [Re Recusal Application]



                       This judgment was delivered by Justice Duffy
 
                       on 20 May 2009 at 2.15 pm, pursuant to
                               r 11.5 of the High Court Rules

   
                   Registrar/Deputy Registrar
                       Date:


Counsel:    J G Miles QC P O Box 4338 Shortland Street
Auckland 1140;
            M G Ring QC P O Box 105521 Auckland 1143; and
            P R Rzepecky P O Box 105521 Auckland 1143 for
the Plaintiff and
            First Defendant
            B D Gray QC P O Box 4338 Shortland Street Auckland 1140 for the Second
            Defendant

Copies To: McElroys P O Box 835 Shortland Street Auckland 1140
           Hesketh Henry Private Bag 92093
Auckland Mail Centre Auckland 1142

CK & S LTD V TALBOT 2002 UNDERWRITING CAPITAL LTD AND ANOR HC AK CIV-2004-404-
006957 20 May
2009
[1]    The trial of this proceeding is part heard. The issues in dispute are between
the first defendant and the second defendant.
The first defendant has settled with the
plaintiff and now through rights of subrogation is prosecuting the plaintiff's claim
against
the second defendant. The trial is due to recommence in June 2009. The
first defendant has filed an application requesting that I,
as trial Judge, recuse myself
and grant a new trial.


[2]    The second defendant has filed notice that it abides the Court's decision.
At
a judicial conference on 27 April 2009, I determined, with the consent of the first
defendant, that the application could be dealt
with on the papers. In accordance with
the procedure for recusal set out in Muir v Commissioner of Inland Revenue  [2007] 3
NZLR 495, the delivery of my judgment and reasons for judgment are being
delivered in open Court.


[3]    The application for recusal is
founded on the assertion that the trial, to date,
has been conducted in a manner that demonstrates apparent bias and which,
therefore,
prevents there being a fair trial. The grounds relied upon to support the
application fall into two groups: those that assert a factual
basis to establish apparent
bias; and those which assert a state of facts from which an inference of apparent bias
is then drawn.
I propose to deal with each group separately.


[4]    Some explanation of the issues in dispute is necessary. While en route to
Tonga, the vessel "SY Symphonia" experienced problems with the seal of her
propeller shaft, which began leaking and thereby allowed
seawater to enter the
vessel. This prevented the vessel's engine from being used and from then on she
was driven under sail. She
subsequently encountered heavy weather in the form of
Cyclone Eseta. Her sailing ability, during the heavy weather, was allegedly
hindered
by a leaking starboard exhaust valve. The vessel did not make port before the
cyclone struck. She suffered the cyclone at
sea and is now a constructive loss.


[5]    The first defendant's case is that but for the leaking seal, and later the leaking
starboard
exhaust valve, the vessel would have been safe at harbour in Tonga before
Cyclone Eseta struck.      Furthermore, the cause of the
leaking seal and leaking
starboard valve is alleged to be the defective and negligent workmanship of the
second defendant. Hence,
the first defendant contends that the second defendant's
defective and negligent workmanship caused the vessel to encounter the cyclone
and
led to her becoming a constructive loss.


[6]    The second defendant has denied it caused the vessel to suffer the harm and
resulting damage which she experienced. No affirmative defences or allegations of
contributory negligence have been pleaded. The
second defendant takes the position
that causation is for the first defendant to prove.


Facts relied on to establish apparent bias


The alleged plotting of charts


[7]    As an example of the trial Judge stepping outside the agreed issues and
evidence, it is
said, at para 4.14 of the memorandum in support of the application,
that after the first defendant's evidence from the vessel's Captain
(Mr McLean) and
another witness (Captain Austin) had been given, I advised counsel in open Court of
certain steps I had taken during
the intervening weekend. Those steps are said to be
that on my "own charts at home" I "had plotted the course of the vessel and the
cyclone (the latter being not in evidence); and that as a result, it appeared [to me]
that CKS's/Talbot's case may well have a fundamental
causation flaw". The first
defendant then submits that such action if carried out by a jury would plainly amount
to juror misconduct.
It is said that the conduct described would be sufficient by
itself to require recusal and a new trial.


[8]    I have no difficulty
with the legal principles the first defendant has outlined
in its memorandum in support of this ground for recusal. However, the
facts relied
upon by the first defendant are wrong and are at odds with what actually occurred.


[9]    The trial commenced on Wednesday,
22 October 2008. Mr McLean gave
evidence on Thursday, 23 October 2008. In the course of the second defendant's
cross-examination
of Mr McLean, the second defendant put to Mr McLean in cross-
examination chart NZ 14638 (INT 638). At pp 36 to 37 of the notes of
evidence,
counsel for the second defendant referred Mr McLean to plots that had been marked
on this chart by a witness (a Mr Spencer),
who was going to give expert evidence on
navigation for the second defendant. The plots made by Mr Spencer showed the
path of Cyclone
Eseta and the course the vessel took. At the time the cross-
examination of Mr McLean was undertaken, the second defendant supplied
a copy of
chart NZ 14638 (INT 638), with Mr Spencer's plots of the cyclone's path and the
vessel's course, to Mr McLean, the Court and to counsel. Mr
Spencer's plots of the
cyclone's path show a series of positions at identified dates and times. Mr Spencer's
plots of the vessel's
course also show a series of positions at identified dates and
times. The cross-examination of Mr McLean on chart NZ 14638 (INT 638)
was
done, in part, to discharge the obligations to put to Mr McLean evidence that the
second defendant was later to call. At the
time, the Court was advised that chart
NZ 14638 (INT 638), with the plotted positions of the cyclone and the vessel, would
be produced
when Mr Spencer gave evidence for the second defendant. He has now
done so and the chart as marked by him is now in evidence as exhibit
14.


[10]   During the weekend (25 and 26 October 2008), I read over the material that
had been placed before the Court during the
previous week's hearing. This included
chart NZ 14638 (INT 638) and the plotted positions by Mr Spencer. The plotted
positions by
Mr Spencer showed that the vessel's course and the path taken by
Cyclone Eseta met some time between 0900 and 1300 hours on 13 March
2003
outside Tonga.


[11]   The propeller shaft seal had failed on 9 March 2003. This position is marked
on the chart as "shaft
hold" by Mr Spencer because, from then on, the propeller shaft
was immobilised and the vessel moved under sail power only. There
was evidence
from the first defendant's witness, Captain Austin (who gave evidence on Friday,
24 October 2008), that Mr McLean and
the crew of "SY Symphonia" learned of
Cyclone Eseta's presence at approximately 0400 hours on 12 March 2003.


[12]   The first defendant
had led no independent expert evidence on the course the
vessel took. Captain Austin (whom the first defendant describes in the memorandum
in support of its recusal application as its expert witness on navigation) was also the
Marine Manager of the loss-adjuster hired
by the underwriters to investigate the
cause, nature, and extent of the vessel's loss. His active role in the investigation
meant
that while he had maritime expertise, he was not independent of the parties.
Moreover, his evidence did not address the availability,
or otherwise, of alternative
courses, nor did his evidence address the ability of the vessel to avoid the cyclone
had the propeller
shaft seal not failed.


[13]   The combined effect of reading Mr Spencer's plotted positions (of the
cyclone's path and the vessel's
course) on chart NZ 14638 (INT 638), as well as the
chart itself, suggested the following possibility:


       a)      that there
was a period of time from 0400 hours on 12 March 2003
               until 0300 hours on 13 March 2003 when the Captain had known
of
               the leaking seal and of the approaching cyclone; and


       b)      at that time the vessel was in the open sea,
with nothing to impede her
               passage in any direction.


[14]   There had been no cross-examination of Mr McLean with
regard to whether
or not, in these circumstances, he could have altered course to avoid the cyclone and,
if so, why he did not do
so.


[15]   Given the circumstances then before me, I considered it necessary to ask the
parties if there was a common position
that the vessel necessarily had to continue her
course to Tonga. I also asked counsel if there was any issue being raised that the
vessel could have altered her course so as to avoid the cyclone. I considered that at
an early stage of the trial this clarification
of the evidence and the stance the parties
were taking was necessary and in the interests of justice.


[16]   At no time did I consult
charts of my own (I do not have charts of the Pacific
region), nor did I attempt to plot a course of either the vessel or the cyclone.
This is
not a step I would take and in any case it was unnecessary, as Mr Spencer had
already carried out this task. The information
on which I relied, when I raised the
issue of avoidance of the cyclone with counsel, was already before me in the form of
material (prepared by Mr Spencer) which
had been put to Mr McLean in cross-
examination and which I expected to be formally produced when Mr Spencer gave
his evidence.


[17]   Later, on 11 and 12 December 2008, Mr Spencer gave evidence. At p 482 of
the notes of evidence, it is recorded that the
second defendant accepted that it had
raised certain causation issues positively, but it had not in that category raised issues
regarding
the decision as to which way to head on first learning of the approach of
the cyclone. The questions I asked of Mr Spencer regarding
the possibility of
altering course to avoid the cyclone were asked prior to the second defendant's
formally recorded position.


[18]   The first defendant's memorandum in support of the recusal application
contends that the possibility of alternative courses
is not part of the agreed issues in
the proceeding. The first defendant carries the burden of proving the causation of
loss. The
current state of the pleadings is as follows. In the second amended
statement of claim, dated 23 May 2007, it is alleged, at para
22.4, that the breaches
by the second defendant meant the vessel could not "reach safe harbour, or outrun or
avoid cyclone conditions".
It is not appropriate at this stage of the proceeding to
consider the extent to which the first defendant's evidence has addressed
those
allegations. In its statement of defence to the second amended statement of claim,
the second defendant has denied this allegation.
Given the second defendant's denial
of causation, I considered it necessary to clarify with Mr Spencer (as the person
responsible
for plotting the positions on chart NZ 14638 (INT 638) what could be
read from the evidence he was presenting.


[19]   I do not
consider it appropriate to go into further detail about the clarification
of this aspect of the evidence in circumstances where the
trial is still to proceed.
However, I do not consider the action I took to be analogous to jurors conducting
enquiries of their own.
I do not accept the suggestion that my conduct can be viewed
as an attempt to "impugn the navigation decisions" of Mr McLean. I consider
I did
no more than what s 100 of the Evidence Act 2006 permits. I do not consider my
conduct in this regard to be a ground warranting
recusal for apparent bias.
Conducting research into diesel engines


[20]   Early in the trial an issue arose regarding how the
propeller shaft seal used on
the vessel actually worked. Of interest was whether or not the seal was water
lubricated. A copy of
the manual for the seal, which was in the agreed common
bundle, described the seal as water lubricated and made various references
to the
water lubrication system. The seal is comprised of two parts: a phenolic resin seal
and a metal seat. The first defendant's
expert, Dr Gregory, gave evidence that the
seals were water lubricated and that there was a fine film of seawater between the
resin
seal face and the metal seal seat (notes of evidence, p 105). Later, another
witness for the first defendant, a Mr Wood, gave evidence
that the resin seal and
metal seal seat were not water lubricated and that there was no film of seawater
between the face of the
seal and the seal seat (notes of evidence, pp 123-124).
Mr Wood said the two surfaces were designed to rub dry (notes of evidence,
p 123).


[21]   I had indicated to the parties and to counsel at the commencement of the trial
that I was about to participate in
a Coastguard course on the maintenance of marine
diesel engines. I had asked if this could pose a problem, and no objection was made.
I had available to me reading material for this course. In one of the books there was
a brief reference to seals of the type used
in "SY Symphonia". They were described
as being water lubricated. This was consistent with the description in the seal's
manual.
  Given the divergence in evidence from the first defendant's experts
(Dr Gregory and Mr Wood), as well as the references in the manual to the seal being
water lubricated, I
considered the issue of how the manufacturer of the seals intended
them to work required clarification. At notes of evidence, p 157
(subsequent to the
evidence from Dr Gregory and Mr Wood), there is the record of my enquiry of
counsel as to whether they had a common
position on how the seals actually worked.
By then, the evidence I had heard from two of the first defendant's expert witnesses
was
at odds on how the seals were intended to operate. It was clear to me by then
that the second defendant's position was that there
was a film of seawater between
the face of the resin seal and the seal seat. Subsequently, other expert witnesses for
the second
defendant gave evidence to the effect that the seal was water lubricated.
[22]   There had been no meeting of the independent experts
and so any points of
possible agreement, as well as any reasons for disagreement, were unknown. It
seemed to me that how the seal
was intended to work was a fact capable of being
established by agreement. Later, I directed the experts to confer on this topic,
with
the result that a written statement recording their common understanding was
produced to the Court. This statement accepted
that a small amount of water entered
between the face of the resin seal and the seal seat.


[23]   I referred counsel to the book
I had read on marine diesel engines that
referred to how the seals worked in principle, at a time when I had already heard
conflicting
evidence from the first defendant's witnesses (Dr Gregory and Mr Wood)
on this topic. I happened to be reading my book on marine
diesel engines for
another purpose and came upon a reference to a type of seal like that which was the
subject of the proceedings.
I considered that, in the interests of justice, it was
important to establish how the seal was intended to work. I also considered
that the
experts of both parties had the necessary expertise to reach a view on the topic. The
book I had on diesel engines, which
I made available to counsel for the parties, said
nothing about what could cause these particular seals to fail.


[24]   Given the
approach taken in r 9.43 to r 9.46 of the High Court Rules and
Schedule 4 in relation to the evidence of expert witnesses, I considered
it was
appropriate to intervene and attempt to have the issue of how the seals worked in
principle resolved. It was the divergence
in the evidence of the two expert witnesses
of the first defendant (Dr Gregory and Mr Wood), rather than anything I had read,
which
caused me to adopt this approach. It follows that I do not consider my
conduct in this regard to amount to conducting my own research
outside the
parameters of the evidence being led in Court. This ground for recusal for apparent
bias is not made out.


Facts alleged
to support an inference of apparent bias


[25]   I propose to deal specifically with allegations that can be answered without
the
need to express reasons, which might also require views to be formed on live
issues in the trial. Where that cannot be done, I will
deal with the allegations in a
more general way. I stress that any observations about a witness are made now at a
preliminary stage
and without the benefit of the full consideration of all the evidence
that is necessary before a final judgment on the substantive
issues can be reached.


[26]   It is alleged that questions I asked of Mr Aitcheson, a witness for the second
defendant, who was
the person responsible for the allegedly defective workmanship
on the propeller shaft seal, were pointed in his favour. An example
given is that I
asked Mr Aitcheson if he could read handwritten notes Captain Austin had made of
an interview with Mr Aitcheson "easily
enough" in circumstances where I had first
said I had "great difficulty" reading the notes.          References are given in the
memorandum supporting the recusal application to evidence at notes of evidence,
pp 206 and 207.


[27]   The cross-examination on this topic commenced at notes of evidence, p
205.
Counsel for the first defendant had begun cross-examining Mr Aitcheson by
referring him to the handwritten notes of Captain
Austin, which were at p 239 of the
common bundle of documents. There was a typewritten transcript of these notes at
p 242A of the
common bundle. I interrupted the cross-examination to say:

       Mr Ring, you have very helpfully given me the transcript but I
have great
       difficulty reading the handwritten version and it would be easier if we could
       work off the typewritten version
or certainly move between the two. (p 205,
       notes of evidence).

[28]   Mr Ring did refer the witness to the typewritten version.
The witness must
have had difficulty finding the typewritten version because I then asked him if he
could read the handwritten version
of the notes. Then Mr Ring repeated a request for
the witness to be shown the typewritten version (p 242A) and then proceeded to
cross-examine the witness on the typewritten version, as the references from then on
are to p 242A.


[29]   In circumstances where
a witness is being cross-examined on handwritten
notes not of his own making and there is a typewritten transcript of the notes
available
in the common bundle, I consider it is only fair to enquire of the witness if
he can read and answer questions, working from the
handwritten version. I also
consider it was appropriate to request counsel to work from the typewritten transcript
of the notes.
I do not consider that my questions and comments can be seen as
pointed questions designed to assist Mr Aitcheson.


[30]   It is
also alleged that questions I asked of Professor Fergusson, an expert
witness for the second defendant, on "smoke or smell of burning
shortly after the
seal failed" can be seen as being designed to undermine the evidence of the crew of
"SY Symphonia" that they had
not detected any such smell. The crew had given
evidence they had not detected any smoke or smell of burning around the phenolic
resin seal. There was expert evidence that phenolic resin has a strong and distinctive
pungent smell when it reaches a high temperature.
         However, it was not until
Professor Fergusson gave evidence that my attention was drawn to the fact that, in
this case,
at the time the failure of the phenolic resin seal was discovered, it was
partly submerged in seawater, and water was spraying out
from between the seal
faces as a result of the failure. Ms Ansley, who was one of the crew on board
"SY Symphonia", gave evidence
for the first defendant. In her written brief of
evidence, she said that she could:

       ... see water gushing in from around
the stern seal which was already half
       submerged under water. As the top half was not yet under water, the water
       was
spraying rapidly like a fire hydrant in an arch like manner. (Written
       brief, para 4.12).

[31]   When the seal failure was
discovered, the vessel was motor sailing. This
meant the engine was in gear, and so the propeller shaft would have been revolving.
The seal is attached to the propeller shaft at the point where it enters the stern of the
vessel. Since the propeller shaft and seal
would have been revolving through the
seawater, in which the seal was partly submerged, the phenolic resin part of the seal
would
have come into contact with the seawater. There was also the seawater
spraying from between the seal faces. It follows that if the
seal had failed from
overheating, that failure would also have led to the seawater immersion I have just
described.


[32]   I considered
it necessary to clarify with Professor Fergusson if this particular
state of affairs could or would have any impact on the general
expectation that
overheated phenolic resin would give off smoke and a pungent burnt smell. None of
the earlier evidence about the
behaviour of overheated phenolic resin had placed it in
the context I have just described.         The first defendant had cross-examined
Professor Fergusson on the ability to observe
smoke or smell of burning phenolic in
a room and whether the size of the room would have any effect on the ability to
detect these
features. The professor had said the smell was pungent. I considered
that in order to gain any proper understanding of the likelihood
of smoke or a
pungent burning smell being present around the failed seal the actual circumstances,
that applied at the time the failed
seal was discovered, should be described to the
professor for his comment. I considered, therefore, that his answer to the first
defendant's questions and the earlier evidence I had heard required clarification in
that I wanted to know what impact, if any, could
the presence of the amount of
seawater Ms Ansley described in her brief of evidence have on the otherwise
expected pungent smell
overheated phenolic resin can emit.           For this reason, I
referred Professor Fergusson to para 4.12 of Ms Ansley's written
brief. I consider
that the questions I asked in this regard were in accordance with s 100 of the
Evidence Act. I do not accept that
my actions can be seen to be an attempt to
minimise or undermine Ms Ansley's evidence, or the evidence of Mr Farrell, the
vessel's
engineer, who saw the consequences of the failed seal after Ms Ansley did.


[33]   Another allegation of asking a pointed question
is made in relation to
questions I asked of Professor Fergusson regarding whether or not particles of
silicon carbide that were larger
than the gap between the phenolic resin seal and the
seal seat could escape through the gap. It is said that, because I asked if
the particles
could break up, this could be seen as helping the witness and, therefore, assisting the
second defendant. Professor
Fergusson was an expert witness giving evidence in
accordance with the code of conduct for experts. He is a professor and head of
the
chemicals and materials engineering department of the University of Auckland. He
has been employed by the university since 1968.
He is a chartered engineer and has
published over 140 scientific and engineering papers. I considered the evidence he
was giving
was to assist the Court. Whether or not silicon carbide particles were
present between the seal and the seal seat is a disputed fact
that is yet to be
determined. The proposition that if the particles were present and were larger than
the gap they could not escape
depends upon whether the particles would remain at
their original size or break down into a smaller size, as a result of wear between
the
seal and the seal seat. Rather than leave this issue unknown, I considered it was in
the interests of justice to clarify whether
or not silicon carbide particles in this
circumstance would break down.           I considered that Professor Fergusson was
appropriately
qualified to answer this question. Without an answer from any expert
on this topic, it could not be assumed that the particles would
not break down. The
issue would simply have been left hanging, which was not in the interests of justice.


[34]     Another similar
example of asking questions for clarification, because
otherwise the issue would be left hanging, arises from the allegation made
in relation
to the evidence of Mr Beech at p 379 of the notes of evidence. It is alleged that I
displayed apparent bias because I
asked Mr Beech if he had any reason to doubt the
alignment of the seal in the experiment he had carried out. Mr Beech was an expert
witness giving evidence for the second defendant. He had been cross-examined
about the fact he had measured the seal face used in
his experiment in one position
only. It was suggested to him that, by doing this, his measurements may not have
taken account of
any variations away from the position from which the measurement
was always taken. He did not accept that proposition. When his rejection
of the
proposition was challenged, his response was that as the seal was circular and so
running in a rotary motion, he would expect the wear to be even. It was then
put to
him that that would depend on the alignment, and he agreed it would. I then asked
Mr Beech if he had any reason to doubt that
the alignment of the seal used in the
experiments might lead to any variations of wear in the seal. I considered it was
necessary
to ask this question because, without an answer, it could not be assumed
what the nature of the alignment was.           Again, I
consider the questions were
necessary for the purpose of clarification.


[35]     In relation to the last identified allegedly "pointed
question", I see nothing
pointed in asking witnesses with engineering backgrounds about what they meant by
the use of the term mandrel
or about an engineer's ability to adapt items for use as
tools.


[36]     I do not want to go into detail about the evidence relating
to the possibility of
debris from the vessel's sea chest blocking the water cooling for the propeller shaft
seal. However, the memorandum
in support of the recusal application refers to a
comment I made to counsel for the first defendant regarding the Court and counsel
taking another view of the vessel. The memorandum states that a view after the
vessel had been laid up for six years would be pointless.
Whilst the state of the sea
chest will have deteriorated in the last six years, whether or not there was any filter
system in place
between the sea chest (which supplied water to the propeller shaft
seal's cooling system) and the seal, which is commonplace on vessels,
is a relevant
factor that might still be possible to ascertain. I do not, therefore, see my comment
regarding a second view as indicative
of apparent bias.


[37]    I do not propose to make any comment on the alleged apparent bias that the
first defendant contends can
be inferred from a Ruling that I made on 3 November
2008 during the cross-examination of Mr Aitcheson. I consider that the effect
of the
Ruling and the reasons given therefor are properly explained in the written Ruling of
that date.


[38]    I propose to deal
with the allegations relating to the number of times on
which I questioned witnesses in the course of their evidence and the nature
of those
questions, including an alleged destructive flow of cross-examination. I consider
that it is not possible to give full detailed
responses to these allegations, given that
the trial is part heard. To do so would necessarily require comment that would
reflect
or require the formation of views on the trial issues yet to be determined.


[39]    However, by way of general comment, I record
that this is a difficult case
where there is a substantial amount of expert evidence of a technical nature. The
majority of the witnesses
are experts. There has been no pre-trial conference of
experts. The expert witnesses have not conferred on specified matters, they
have not
attempted to reach agreement on matters in issue in the proceedings; nor have they
prepared any written statements stating
matters on which they agree and matters on
which they do not agree, including the reasons for their disagreement. This has
made difficult
the identification of agreement and disagreement, as well as reasons
for disagreement.


[40]    On the few occasions during the
trial where I have stopped the trial for the
purpose of having experts attempt to reach an agreement on a single issue, agreement
has been reached. An example of how the propeller shaft seal is intended to work is
one example. Another example is when Professor
Ferguson would not accept the
accuracy of a hand-drawn cross-section of a seal seat that had been prepared by
Dr Gregory.      Both
these witnesses are members of Auckland University's
Engineering Faculty.        When given time and the opportunity to retire to
the
engineering faculty for the purpose of properly examining the particular seal seat in
question, which was depicted in Dr Gregory's cross-section drawing, a more
accurate cross-section drawing was able to be achieved. I have no reason to doubt
that had the experts
had the opportunity to confer, they could have reached common
agreement on many issues, and, in respect of those that they did not
agree on,
reasons for their disagreement could have been provided. But since this had not
occurred, I considered, therefore, that
in the course of their evidence, it was
necessary for me to ask questions in order to ensure:


       a)      that I had properly
grasped what they were saying;


       b)      to clarify what they were saying; and


       c)      to clarify what I considered
to be points of disagreement between the
               witnesses.


This was often done just before the witness was about to move
on to a new topic.
Furthermore, there were times during the trial when counsel invited questions from
the Bench before a witness
moved onto a new topic.


[41]   The role of expert witnesses is to assist the Court. It is, therefore, imperative
that the Court
be able to understand the opinions expert witnesses have formed and
their reasons for holding those opinions. It is also imperative
that the Court be
informed of the reasons why an expert does not accept the opinion of another expert.
If information of this type
is not forthcoming from the evidence in chief or cross-
examination of a witness, I consider that the Court has an obligation to
question an
expert in this regard.


[42]   The first defendant has referred to the death of a witness (a Mr Wickham)
before the
trial commenced as being a reason for why there was no conference of the
experts.   However, Mr Wickham is someone whom Captain
Austin (who was
working for the underwriters) engaged to assist in the investigations into the cause of
the vessel's loss. Given
this role, it is difficult to see how Mr Wickham could be
expected to attend a conference of experts who were expected to conduct
themselves
in accordance with the fourth schedule of the High Court Rules. It is also difficult to
see why, given the involvement
of so many other expert witnesses, the conference
could not proceed without Mr Wickham.


[43]   It is suggested that at times, while
providing independent expert witnesses
with an opportunity to think about their answer, I have destroyed the flow of cross-
examination.
The expert witnesses were all reputable, well qualified independent
experts whose evidence was being given in accordance with the
code of conduct for
expert witnesses. I consider their evidence was called to assist the Court. There was
no suggestion in any of
the cross-examination that a witness could be unreliable or
that his or her evidence was not credible. It will often be the case
that experts
disagree. The whole intent of the High Court Rules relating to experts is to ensure
that the Court is fully cognisant
of the nature of disagreement and the reasons why
there is disagreement.


[44]   In circumstances where experts have not had an
opportunity to confer, and
where propositions are being put to an expert who indicates he would need time to
consider before being
able to give full reasons as to why he disagrees with the
proposition, I do not see anything wrong with providing such a witness
with an
opportunity. It is no different from the circumstance where the witness has proper
opportunity to consider reasons for disagreement
and to set them out in a written
statement in accordance with r 9.44(d). I also consider that it is appropriate when
experts have
stated an opinion, which does not readily reveal the supporting reasons,
for a Court to enquire as to why the opinion is held or
why a proposition put in
cross-examination has not been accepted.         Unless the supporting reasons are
disclosed in evidence,
it is difficult to make sense of any opinion given in evidence.


[45]   In view of what I have just said regarding the circumstances
of this case and
the nature of the questions I asked, I do not consider that the number of times I
questioned the parties' witnesses can indicate apparent bias or affect the parties'
right to a
fair trial.


[46]    This is a case where both parties are represented by Senior Counsel. At no
time during the 16 days that this
trial has already been proceeding did counsel
indicate in open Court a concern about the degree of intervention from the Bench;
nor
did Senior Counsel seek to see me in Chambers for the purpose of raising
concerns about the degree of judicial intervention.


[47]
   I have given careful consideration to the authorities relied upon by the first
defendant. Many of them either relate to criminal
jury trials, or they were decided
some time ago. I consider that the modern approach to civil litigation and the
Judge's role in
Judge alone civil trials has changed significantly in recent times.
This is exemplified by statements to be found in recent judgments
on apparent
judicial bias in the context of applications for recusal or appeals alleging a
miscarriage of justice on the ground of
apparent bias through excessive judicial
intervention.


[48]    In Johnson v Johnson [2000] HCA 48;  [2000] 201 CLR 488 at 493, the majority judgment of
the High Court of Australia 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. In Vakauta v Kelly
      
 ... Brennan, Deane and Gaudron JJ, referring both to trial and appellate
        proceedings, spoke of "the dialogue between bench
and bar which is so
        helpful in the identification of real issues and real problems in a particular
        case" ... Judges,
at trial or appellate level, through exchanges with counsel,
        express tentative views which reflect a certain tendency of
mind, are not on
        that account alone to be taken to indicate pre-judgment. 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.
This passage was subsequently cited with approval
by the High Court of Australia in
Concrete Pty Ltd v Parramatta Design and Developments Pty Ltd and Anor [2006] HCA 55;  [2006]
229 CLR 577 at 609.


[49]   A similar approach is now taken in England. In Amjad v Steadman-Byrne
[2007] EWCA Civ 625;  [2007] 1 WLR 2484 at 2486-2487 (at [10]), Sedley LJ said:

       The test of ostensible bias is not contentious. It is whether a fair-minded
    
  observer informed of all the relevant circumstances would have concluded
       that there was a real possibility that the judge
was biased. Bias in the present
       context has to mean the premature formation of a concluded view adverse to
       one party.
We put it in this way because it is well established not only that a
       judge may and commonly will begin forming views about
the evidence as it
       goes along, but that he or she may legitimately give assistance to the parties
       by telling them what
is presently in the judge's mind. This may properly
       include as it did for example in Jacob J's decision in Hart v Relentless
       Records Ltd  [2002] EWHC 1984 (Ch) at  [38] letting the parties know before
       the defence case that the judge did not think much of the claimant's
       evidence. What
is not acceptable is for the judge to form, or to give the
       impression of having formed, a firm view in favour of one side's
credibility
       when the other side has not yet called evidence which is intended to impugn
       it.

[50]   When I consider
the modern authorities and the principles to be found in
them, as applied to the present circumstances, I do not consider that anything
I said
or did could appear to suggest that I had formed a concluded view adverse to the first
defendant; nor that there was any issue
as to the credibility of the first defendant's
witnesses. I queried if the parties had reached common understandings between
themselves
on certain facts relating to causation, which would have obviated the
need to prove certain allegations made in the second amended
statement of claim.
The concerns I raised in this regard were not related to the reliability or credibility of
the first defendant's
evidence. In the absence of any common position, the question
remained as to where the evidence might lead in terms of the discharge
of the burden
of proof in relation to causation.       I also questioned experts for the purpose of
understanding their evidence,
particularly as to why they held certain views. In
doing so, I did no more than attempt to clarify technical engineering expert evidence
of some complexity with witnesses who were independent experts giving evidence
subject to the code of conduct of expert witnesses.
[51]    In New Zealand, the test for apparent bias is to be found in Muir v CIR
(supra [2]). The judgment makes it clear that the
approach is a two-stage enquiry
(at [62]). First, the actual circumstances that have a direct bearing on whether the
Judge was or
may be seen to be biased must be identified. Then there is an enquiry
to determine if those circumstances as established might lead
a fair-minded lay
observer to reasonably apprehend that the Judge might not bring an impartial mind to
the resolution of the case.
When I apply this two-stage test to the circumstances, I
reach the following conclusions:


        a)    The allegation that there
has been a stepping outside of the agreed
              issues and evidence has not been made out. The allegations made
        
     under that head are based on factual mistakes;


        b)    The allegation that there has been an attempt to impugn the evidence
              of some of the first defendant's witnesses has not been made out;


        c)    The allegation that pointed questions
were asked has not been made
              out; and


        d)    Any allegation that I have prematurely formed a concluded view
              adverse to one party has not been made out.


[52]    I consider that there was a proper basis for the nature and the
number of
questions from the Bench. It follows that what has occurred cannot give rise to a
reasonable apprehension on the part of
a fair minded lay observer that the case might
not be decided by an impartial mind.


[53]    It follows that the application for
recusal is dismissed. This removes any
foundation for the application for a new trial and, accordingly, it is dismissed as
well.




                                                                Duffy J