Aardvark Security Services Pty Limited v Ruszkowski

[1993] HCATrans 283

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S39 of 1993

B e t w e e n -

AARDVARK SECURITY SERVICES PTY

LIMITED

Applicant

and

BRONWYN JANE RUSZKOWSKI

Respondent

Application for special leave

to appeal

BRENNAN J
DAWSON J

TOOHEY J

Aardvark 1 17/9/93

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 17 SEPTEMBER 1993, AT 12.23 PM

Copyright in the High Court of Australia

MR J. POULOS, QC: If Your Honours please, I appear with my

learned friend, MR J.W. CATSANOS, for the applicant

for leave. (instructed by Vandervords)

MR A.J. LESLIE, QC: If the Court pleases, I appear with my

learned friends, MR A.J. BARTLEY and

MR R.G. HANRAHAN. (instructed by Athena Touriki)

BRENNAN J:	Mr Poulos.
MR POULOS:	Your Honours, the appeal arose out of what I

might call a new section of the Workers

Compensation Act in which it could be the defence

of the employer that any fault on the part of the

deceased was a complete defence and that no

compensation would have to be paid if, in the

particular circumstances of the case, the deceased

was speeding or was driving his cycle without the

light illuminated at the time it collided with a

street sweeper.

The respondent employer in the court below

attempted to prove those facts by calling, firstly,

the driver of a street sweeper and some police witnesses. It was our contention that, on the

objective facts that were managed to be proved at

the court below, there was evidence of speed in

certain marks on the roadway upon which the police

witnesses attempted to opine that the speed of the

cycle must have been excessive.

In the course of the running of the trial,

however, that particular proposition was not able

to be developed because of the intervention of the

trial judge. The intervention was in the classic

method, counted in terms of numbers of questions

that were asked, and secondly, the characteristics

of those questions were put to the Court of Appeal

and, on the basis of that number of questions and

the type of questions asked, His Honour the	President was of the view that the trial judge's	intervention was excessive and that a fair trial
was not held and would have ordered a new trial.
His Honour -

BRENNAN J:  We have read the judgments, Mr Poulos. What is

your special leave point?

MR POULOS:  The special leave point is that there seems to

be a conflict between two streams of authority: one

represented by the Court of Appeal in England of

Jones v The National Coal Board, and the other a

New Zealand authority which was referred to by the

learned President. In both of those cases where
excessive intervention was relied upon by the

appellant, there was no question of waiver. There

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was not a precondition that the parties in the

court below needed to object. The question that

has to be decided, we say, as a matter of

importance is is it necessary, in cases where

excessive intervention by the trial judge and

entering into the arena by the trial judge should

be the subject of an objection - - -

BRENNAN J: But do you not have to start with the

proposition that the majority of the Court of

Appeal said that some of the questions were

unfortunate but there was not such an intervention

as would cause the difficulties?

MR POULOS:  Yes, Your Honour. We say that the point of

attack must be upon the judgment of His Honour

Justice Handley who said that the questions were

unfortunate but we also attack it on this basis,

that Mr Justice Handley said that some of the facts
that were the subject of those questions were not

important for the resolution of the issue in the court below. We take issue with that particular contention because the questions that were being

directed to the police witness at that time were

important factors, such as the amount of damage to

the cycle, whether or not the light was switched on
or off; they were facts which were germane to the

issue and we say that His Honour was in error in

characterizing them as not being germane to the
issue; that when you look at the approach that he

adopted in saying that there was not any need to

correct His Honour because the form of intervention

was not serious, we say that he was in error

because he misconstrued that particular point.

BRENNAN J: 

Even if he were, does your case get beyond the

stage of saying that on the facts of this case, the
President was right and the others were wrong?

MR POULOS: 

Yes, and we say that the President raised the question of - if the President was right on the

may be at cross purposes - - -

facts of this case and there was - I am sorry, we

BRENNAN J: Start it another way: if the majority was right

in this case.

MR POULOS:  Does Your Honour mean that the majority was

right that there was no - - -

BRENNAN J:  No sufficient intervention to lead to the

conclusion that the principles in Jones v The

National Coal Board were violated.

MR POULOS:  That is certainly the point at which we say that

the Handley judgment should be reviewed because if he is incorrect, then there would be a majority in

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favour of the proposition that there was an unfair

trial.

BRENNAN J:  Yes. Does that not mean that in order to review

what you describe as the Handley judgment, it is a

question for this Court being asked to consider the

facts of the way in which the trial was conducted

in order to see whether it simply agrees with the

President or agrees with Justice Handley?

MR POULOS:  Certainly that is one of the things that would have to be done.

BRENNAN J: Is that not the basic problem? You are inviting

us to look at a question of fact, and only a

question of fact, on which that will be determined?

MR POULOS:  We say it is a question of law, that the

intervention was of such a degree that there has

been a failure to provide one of the parties with a

fair trial, the appearance of a fair trial.

BRENNAN J: That is the proposition of law. If there has

been such an intervention as to deprive a party of

a fair trial, then the judgment can be set aside.

That is the principle of law. The next question

is: was there such an intervention in this case? A

question of fact. And it seems to me, from what

you are saying, that you are really inviting us to

review the finding of fact as made by the majority

of the Court of Appeal.

MR POULOS:  Only in a very narrow way because all of the

cases that have come before this Court in the past

have involved such a finding of fact, such as

Vakuata was a question of fact and degree and there

were differing opinions about that. But, of

necessity, all such appeals as this one must

involve such a question, of counting questions and

characterizing the nature of them. But as a matter

of law, a party could never have a review of such a

thing in this Court - and I say that with great

respect - because it must of necessity involve

assessing the factual basis of whether or not a

judge was right and weighing up the material that

he had before him, in order to gather the point
together and say that there has been a deviation to

the point where there must be an error of law.

In the way that the President has expressed

himself in this judgment, and in a later judgment

which I think we sent to Your Honours, is that in

such a circumstance is it possible for a party to

waive the public's right to the appearance of a

fair trial. In doing so, he acknowledges himself

to be bound by Vakuata, but we say that this is a

case that is clearly distinguishable from Vakuata.

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The question of law must be expressed in different

terms.

TOOHEY J: But you do not get to the question of waiver, do

you, unless there is a degree of intervention so

great as to indicate that the trial has miscarried.

MR POULOS:  Yes.

TOOHEY J: And if you do not get to that point, then the

question of waiver does not arise.

MR POULOS:  Yes, that is true.

TOOHEY J: Are you suggesting that the decision of the

majority in the Full Court was founded upon waiver

only or rather on Their Honours' assessment of the

degree of interference that there had been?

MR POULOS:  It is based upon both, obviously. We seek to

point out where the question of intervention was

incorrectly handled, that His Honour

Mr Justice Handley seemed to say that where there

was excessive intervention it did not matter

because it did not deal with facts which were

central to the issue.	We say that is a simple
error.

TOOHEY J: That is leaving the matter solely in the area of

an assessment made by members of the Court of

Appeal; an invitation to this Court to review that evidence for the purpose of making its own assessment?

MR POULOS:  Yes.

TOOHEY J: Put that way, it is very difficult to see how

there is any point of special leave involved.

MR POULOS:  Except that this is a case which squarely raises

the Jones v The National Coal Board point and the

New Zealand authority - if I might remind myself

and Your Honours of the name of that authority,

E.H. Cochrane Limited v Ministry of Transport,

(1987) 1 NZLR. That was a criminal case but there

was reviews of the civil law, both in this country

and in England, and deals with the degree and the

number of questions and quotes with approval

Watson's case and others. A judgment of

Lord Justice Purchas, in R v Matthews, which is at

page 151 at about point 50, it is a convenient

summary of the law, if I might quote from it:

"To summarise these authorities the

following propositions appear to emerge: (1)

Whilst a large number of interruptions must

put this court on notice of the possibility of

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a denial of justice, mere statistics are not
of themselves decisive; (2) The critical
aspect of the investigation is the quality of

the interventions as they relate to the

attitude of the judge as might be observed by

the jury and the effect that the interventions

have either upon the orderly, proper and lucid

deployment of the case for the defendant by

his advocate or upon the efficacy of the

attack to be made on the defendant's behalf

upon vital prosecution witnesses by cross-

examination administered by his advocate on

his behalf; (3) In analysing the overall

effect of the interventions, quantity and

quality cannot be considered in isolation, but

will react the one upon the other; but the
question which is posed ultimately for this
court is ~Might the case for the defendant as
presented to the jury over the trial as a

whole, including the adducing and testing of evidence, the submissions of counsel and the

summing-up of the judge, be such that the

jury's verdict might be unsafe?' In the

presence of conditions in which this Court has

been alerted in the manner to which we have

referred, it appears to us that if there is a

possibility of a denial of justice -

In this particular instance, the speed of the cycle was the critical piece of evidence before the trial

judge and if I might take Your Honours to page 46

in an effort to demonstrate that here the witnesses were, as it were, unbalanced, the exposition of the evidence was interrupted about the one piece of

evidence which would have been crucial in the

decision of His Honour. It starts at the top of

the page and the questions were being asked by

counsel for the employer. I will not quote the

full passage of evidence but the constable was

speaking about the marks made by a heavy bike

skipping across the road gouging the concrete and - What does that indicate to you, the skipping.	this is at 5:
A. When a bike skips like that, it indicates
a rough speed of what it would have been
doing.
Q. Constable, are you able - and just answer
this yes or no - from the observations that you made are you able to give an estimate of
speed? A---Yes.
Q. What was your estimate of speed.

An objection was made. It was noted. At that

stage we would submit that the police constable had

been accepted as an expert in this respect.

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MR JUDD

Q. What was your estimate of speed. A---Can

I just say something prior to giving an

estimate, your Honour.

Q. No, please just give me the estimate

first, sir, that is all. A---Between 80 and

100 kilometers an hour.

His Honour then intervened and interrupted counsel and said:

Q. That is before or after the accident.

A---After it came into contact with the street

sweeper.

Q. You have got no idea what it was before

these vehicles met, have you. A---No, sir.

MR JUDD

Q. It is not going to accelerate, is it,

Constable.

OBJECTION

MR JUDD

Q .. Constable, do you have reasons for giving

that estimate.

His Honour then interrupted. He said:

He just gave his reason, because it bounces,

skips.

We submit that when that kind of question is put into the context as a whole, then the trial judge has, in doing so, broken the second rule as

expressed by Lord Justice Purchas, that the quality

of the interventions are to relate to the attitude

of the judge. The way that they were directed to

the witness interfered with the one crucial fact
that had to be proved by the employer in this case.

There are many other examples of it which have been

referred to and set out in the list of

interventions which are attached.

So this is not a case, we say, of simply a number of interventions; it is the quality of them

that has to be considered, and that Your Honours

would take that into account when looking at the

course of the trial as a whole.

In the President's decision in a recent case of Goktas which we attached to the submissions he puts it on a broad basis and I refer to page 3 of

his judgment in Goktas v Government Insurance

Office of New South Wales, when he speaks of the

rule as expressed in Vakuata by Justice McHugh when

Aardvark 7 17/9/93

he was then in the Court of Appeal.	I am quoting
from the last paragraph on page 3:

It is also proper to say that the rule

which McHugh JA urged in Vakuata, is strongly

to be encouraged as a proper practice. Yet a
failure by a legal representative at the trial

to note objections and to ask that they be

recorded, although often a significant
handicap, may sometimes be explained in the

forensic setting. It will be rare that it is to a party's advantage for its representative
to challenge the fairness of a judge. Or to

impugn the judge's neutrality. Still more

rare will it be to suggest bias, or the

appearance of bias, on the part of that judge. To the end of the trial, the parties and their representatives depend so heavily upon the

opinion of the judge that there will be

natural inhibitions, psychological impediments

and forensic constraints which restrain

challenges of this kind where they are not

absolutely necessary. Where there is a

professional Bar, the ongoing relationships

with judges in other cases adds a further

restraint which it would be naive to ignore.

BRENNAN J:	Which it is surprising to think of, if you have an independent bar, jealous of the interests of a
client.
MR POULOS:	Yes, Your Honour. But whether, in the

particular context of this case, such an

explanation may have been forthcoming.

BRENNAN J:  Oh no, that is a different problem. I just did

not wish that passage from the President's judgment

to pass without some comment.

MR POULOS:  In respect of those things, in this particular

case it is not like Vakuata's case and other cases

of its kind where statements were made by judges

that indicated a prejudgment on their part; this is

a case where there is an ongoing process throughout

the trial which is difficult to pinpoint.	By the
end of the trial, the flavour that has been

obtained is one of excessive intervention which has

got to that point and been expressed in the

judgment without objection which probably could not

have been - there is no point in the trial, we say,

that that could have been clearly flagged as the

point at which counsel would interrupt His Honour.

If there is nothing further, Your Honours, the point that we have made in our written submission

to you, in summary form, is that there seems to be

this area covered by Jones v The National Coal

Aardvark 17/9/93

Board which is separate and apart from the Vakuata point, where Vakuata and other cases do have the

clear point during the running of the trial where

one can say, well, there are factors which should

signal to counsel involved in it that there should

be an objection but that it has not concerned the
English Court of Appeal or the New Zealand Court of

Appeal in cases which are so clearly similar to the one that we are appealing from, that this Court

should set the context as to how one deals with
cases of excessive intervention as compared to

cases where apparent bias is more clearly

signalled.

BRENNAN J:  Thank you, Mr Poulos. We need not trouble you,

Mr Leslie.

Despite the earnest argument of Mr Poulos we

can see no question of principle which ought to

attract the grant of special leave in this case.

The essential issue is the assessment to be made of
the trial judge's interventions in the course of
the trial. That is a question of fact which does

not ordinarily warrant a grant of special leave.

The grant of special leave is accordingly

refused.

MR LESLIE:	Would the Court grant the respondent's costs?
MR POULOS:	Nothing to say on that matter, Your Honour.

BRENNAN J: It will be refused with costs.

AT 12.46 PM THE MATTER WAS ADJOURNED SINE DIE

17/9/93

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