AZ v The Age [No 2]

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 00518 of 2011

AZ (A PERSON UNDER A DISABILITY WHO SUES BY HER LITIGATION GUARDIAN BZ)	Plaintiff
v
THE AGE	Defendant

———

JUDGE:	McMillan J
WHERE HELD:	Melbourne
DATE OF HEARING:	19, 20, 21, 22, 23, 26, 27, 29, 30 November and 3, 4, 5, 6, 12 December 2012
DATE OF JUDGMENT:	12 September 2013
CASE MAY BE CITED AS:	AZ v The Age [No 2]
MEDIUM NEUTRAL CITATION:	[2013] VSC 436

———

COURTS AND JUDICIAL SYSTEM – Plaintiff applied for disqualification of trial judge sitting alone on grounds of apprehended bias – Common law negligence proceeding – Application made on the basis of the accumulative effect of a multitude of matters – Whether the fair-minded lay observer would apprehend bias – Application dismissed.

———

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr T Tobin SC Ms B Knoester	Adviceline Injury Lawyers
For the Defendant	Mr J Rush QC Mr N Rattray	Wisewould Mahony

TABLE OF CONTENTS

Introduction

Applicable Principles

The Substance of the Apprehended Bias Application

Discharging Witnesses

The Transcript

Requirement that Opening Submissions and a Witness Outline be Provided

The Transcript

Reactions to Witnesses

The Plaintiff’s Evidence and State of Health

The Opening Submissions
The Plaintiff’s Health
Discussion relating to The Plaintiff’s Evidence
Proposal that the Litigation Guardian Remain Outside the Room
Comments Prior to the Plaintiff Giving Evidence
Submissions of the Plaintiff in Support of the Fourth Point

Prejudgment of Issues in the Case during Opening Submissions

Discussion During the Opening
Submissions of the Plaintiff in Support of the Fifth Point

The Strike Out Application

“Model Litigant” Comment
Awareness of the Peer Support Workshop Document

Time Allowances

Commencement of the Trial
Fourth Day of the Trial
Sixth Day of the Trial

Objections and Narrowing Evidence

Mr Tippet’s Evidence
Ms Jackson’s Evidence
Ms McMahon’s Evidence
Mr David Cooper’s Evidence
Professor Embleton’s Evidence
Exchanges relating to Photographs Taken by The Plaintiff

Discovery During Trial

Discrete Comment Made as to the Plaintiff’s Evidence

Reasons for Dismissing the Application

Civil Procedure Act 2010

The Ten Points

Conclusion

HER HONOUR:

Introduction

On 4 December 2012, on the 11^th day of a 14 day trial and before the defendant called its final witness, senior counsel for the plaintiff made an application that I excuse myself from further hearing the proceeding on the ground of apprehended bias.

The matters relied upon by counsel for the plaintiff in support of the application were summarised as ‘my demeanour’. ‘My demeanour’ embraced a multitude of matters, specifically in relation to the plaintiff’s witnesses and generally throughout the case, including the way in which I appeared to be listening to and open to the evidence that was being given; whether I listened to the evidence of the plaintiff’s witnesses in the same way that I listened to the defendant’s witnesses; how I accepted and responded to the evidence of the witnesses; whether I appeared to be paying attention to the evidence; how I reacted to the witnesses and engaged with the witnesses; comments made by me adverse to the way in which the plaintiff's case was being conducted; the differing attitude that I showed throughout the course of the case in relation to allowing time to one party and not to another; my prejudging of the evidence without hearing from the plaintiff; my involvement in and attitude to objections; my leading in those objections in what were matters that I should not have been involved in; my narrowing of the plaintiff's case; and my attitude to the late discovery of documents provided by the defendant.

The application made by the plaintiff was put on the basis that each point taken alone would not be sufficient to satisfy the test for apprehended bias but that the cumulative effect of all of those matters would mean that a fair-minded, independent observer might reasonably apprehend that the Court might not bring an impartial and unprejudiced mind to the resolution of the relevant questions.

The defendant opposed the plaintiff’s application and in so doing submitted that the application was ‘without any form of substance or merit’.

After considering the submissions of both parties, I concluded the plaintiff had not made out a case for apprehended bias and dismissed the application on 6 December 2012. At that time, I said that I would provide my reasons for doing so in my judgment. I now provide my reasons.

The reasons contained in this judgment refer to issues raised and witnesses who gave evidence in the substantive proceeding. Rather than provide a lengthy background to the substantive proceeding, I refer to the judgment: AZ v The Age [No 1] [2013] VSC 335 (12 September 2013) (McMillan J).

Applicable Principles

The parties agreed that the test to be applied for apprehended bias was that expressed in Johnson v Johnson (‘Johnson’),[1] as further explained by the High Court in Ebner v Official Trustee in Bankruptcy (‘Ebner’): ‘The test in this country with respect to the appearance of bias 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 [he or she] is required to decide”’.[2]
[1](2000) 201 CLR 488.
[2] (2000) 205 CLR 337, 363 (citations omitted).

Counsel for the plaintiff quoted further from Ebner:

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.[3]

[3]Ibid 345 (emphasis added).

Consequently, when deciding whether there is apprehended bias, the focus is on the perceptions of the fair-minded lay observer, and not on the thought processes of the Court. Further, the question concerns the real possibility of the lay observer apprehending bias, not the probability of that observer doing so.

Counsel for the defendant referred to the following passages in Ebner:

the governing principle is that, subject to qualifications relating to waiver (which is not presently relevant) or necessity (which may be relevant to the second appeal), a judge 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, a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial. It is convenient to refer to it as the apprehension of bias principle.
…
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 is said might lead a judge (or juror) to decide a case other than on its factual and legal 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.
…
[Judges] do not select the cases they will hear, and they are not at liberty to decline to hear cases without good cause. Judges do not choose their cases; and litigants do not choose their judges. If one party to a case objects to a particular judge sitting, or continuing to sit, then that objection should not prevail unless it is based upon a substantial ground for contending that the judge is disqualified from hearing and deciding the case.[4]

[4]Ibid 344–5, 348 (citations omitted).

Following Ebner, the test for apprehended bias is a two-stage test. First, the party making the claim must identify conduct that might lead the judge to decide the case other than on its merits, and secondly, the party must show a logical connection between that conduct and the feared deviation from the course of deciding the case on its merits.

In relation to a lay observer’s perception of prejudgment, counsel for the defendant referred to Laws v Australian Broadcasting Tribunal,[5] and in particular to the following passage from the decision of Gaudron and McHugh JJ, where their Honours said:

A reasonable bystander does not entertain a reasonable fear that a decision-maker will bring an unfair or prejudiced mind to an inquiry merely because he has formed a conclusion about an issue involved in the inquiry. When suspected prejudgment of an issue is relied upon to ground the disqualification of a decision-maker, what must be firmly established is a reasonable fear that the decision-maker's mind is so prejudiced in favour of a conclusion already formed that he or she will not alter that conclusion irrespective of the evidence or arguments presented to him or her.[6]

[5](1990) 170 CLR 70.

[6]Ibid 100 (citations omitted).

Counsel for the defendant also referred to the following passage in Johnson, to explain the nature and atmosphere of modern litigation:

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.[7]

[7]Johnson v Johnson (2000) 201 CLR 488, 493 (citations omitted).

The above passage explains what the fair-minded lay observer can expect to see in modern litigation. To give shape to the ‘fair-minded lay observer’, counsel for the defendant quoted from the judgment of Kirby J in Johnson:

The attributes of the fictitious bystander to whom courts defer have therefore been variously stated. Such a person is not a lawyer. Yet neither is he or she a person wholly uninformed and uninstructed about the law in general or the issue to be decided. Being reasonable and fair-minded, the bystander, before making a decision important to the parties and the community, would ordinarily be taken to have sought to be informed on at least the most basic considerations relevant to arriving at a conclusion founded on a fair understanding of all the relevant circumstances. The bystander would be taken to know commonplace things, such as the fact that adjudicators sometimes say, or do, things that they might later wish they had not, without necessarily disqualifying themselves from continuing to exercise their powers. The bystander must also now be taken to have, at least in a very general way, some knowledge of the fact that an adjudicator may properly adopt reasonable efforts to confine proceedings within appropriate limits and to ensure that time is not wasted. The fictitious bystander will also be aware of the strong professional pressures on adjudicators (reinforced by the facilities of appeal and review) to uphold traditions of integrity and impartiality. Acting reasonably, the fictitious bystander would not reach a hasty conclusion based on the appearance evoked by an isolated episode of temper or remarks to the parties or their representatives, which was taken out of context. Finally, a reasonable member of the public is neither complacent nor unduly sensitive or suspicious.[8]

[8]Ibid 508–9 (citations omitted).

In Johnson, Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ also cited with approval the approach in Vakauta v Kelly[9] as follows:

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, 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.[10]

[9]Vakauta v Kelly (1989) 167 CLR 568.

[10]Johnson v Johnson (2000) 201 CLR 488, 493 (citations omitted).

Counsel for the plaintiff submitted that the fair-minded lay observer was somebody sitting in Court with an ability to understand the processes of Court, and ‘a person of average capacity looking at this matter, not a lawyer, nor somebody without education’.[11]
[11]Transcript of Proceedings, AZ v The Age (Supreme Court of Victoria, McMillan J, 4 December 2012) 950

I take the fair-minded lay observer to be as described by the Court of Appeal in AJH Lawyers Pty Ltd v Careri (‘Careri’).[12] In Careri, Warren CJ, Hansen JA and Almond AJA held that ‘[t]he fictional lay observer “is not to be assumed to have a detailed knowledge of the law, or of the character or ability of a particular judge”. Yet the fictional observer is taken to understand the dynamics of modern judicial practice’.[13]
[12](2011) 34 VR 236.
[13]Ibid 243 (citations omitted).

In relation to apprehended bias based on the cumulative effect of various factors, counsel for the plaintiff cited Mogan Holdings Pty Ltd v Harrison as authority.[14] There, the appellants raised 12 examples of the trial judge’s conduct and claimed that, when considered individually or in combination, that conduct ‘gave rise to the reasonable apprehension that her Honour might not bring an impartial and unprejudiced mind to the determination of the matter’.[15] The Court of Appeal accepted the appellants’ arguments in relation to three examples of the trial judge’s conduct, allowed the appeal on the basis of apprehended bias, and ordered a new trial.[16] The three examples of the trial judge’s conduct all related to treatment of the one witness. The case is, therefore, not a clear authority for the principle that a case of apprehended bias may be mounted on the cumulative effect of several factors.
[14][2011] VSCA 202 (1 July 2011).
[15]Ibid [11].
[16]Ibid [26].

Authority for that principle can be found in Careri. There, the Court of Appeal remitted the matter back to the County Court for retrial, based on apprehended bias. The case before the County Court involved a review of a taxation of costs by the Registrar. The Court of Appeal held that the judge’s conduct on day two of the review, viewed together with her Honour’s conduct on days four and six of the review, was such that ‘the observer might reasonably apprehend that … there was a real and not remote possibility that her Honour did not bring an impartial and unprejudiced mind to the resolution of the question whether the disputed costs were “necessary” or “proper”’.[17]
[17] AJH Lawyers Pty Ltd v Careri (2011) 34 VR 236, 255. See also at 255 [73].

An apprehended bias application on grounds of accumulation was also considered in Parramatta Design & Developments Pty Ltd v Concrete Pty Ltd (‘Parramatta Design’).[18] That proceeding concerned a copyright infringement claim made by an individual who conducted an architectural business and owned the copyright in architectural drawings for a development prepared for the owner of a site in Nelson Bay. There, the Full Court of the Federal Court upheld an appeal on the basis of apprehended bias on the part of the trial judge arising from the cumulative impact of several factors.[19] These factors included statements made by the primary judge during the trial and statements made in his reasons for judgment. This finding of apprehended bias was subsequently overturned in the High Court.[20] The High Court did not, however, disagree with the Full Court’s approach of looking at the cumulative weight of the conduct.[21] In considering the comments made by the primary judge and the approach taken by the Federal Court, Kirby and Crennan JJ stated:

When what was said by his Honour is seen in that proper context, and given the necessity for a contemporary trial judge to identify the issues and ‘to understand the evidence’, and also given his Honour’s assurances of keeping an open mind, there is nothing in his Honour’s remarks taken individually, or considered cumulatively, which was capable of giving rise to a reasonable apprehension of bias. While correctly identifying the test to be applied, the Full Court, in assessing what the primary judge said in argument and in his later reasons, erred in failing to analyse, and give due weight to, the tension in the architect’s dual roles and the inconsistent positions the architect adopted to the facts, at different stages of the dispute.[22]

[18](2005) 144 FCR 264.

[19]Ibid 277.

[20] Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577.

[21]Ibid 610–11 (Kirby and Crennan JJ), 636 (Callinan J).

[22]Ibid 611 (citations omitted).

Kirby and Crennan JJ also stated:

Sometimes judicial interventions and observations can exceed what is a proper and reasonable expression of tentative views. Whether that has happened is a matter of judgment taking into account all of the circumstances of the case. However, one thing that is clear is that the expression of tentative views during the course of argument as to matters on which the parties are permitted to make full submissions does not manifest partiality or bias.[23]

[23]Ibid 610 (citations omitted).

In a separate judgment, Callinan J stated:

As I have already indicated, the judicial interventions during the trial itself would not give rise to an apprehension of bias. Nor would the reasons for judgment, of themselves standing alone. It was not unreasonable for the trial judge to observe in his judgment that time and expense had been wasted on issues of no sufficient bearing upon the critical ones …
Taken cumulatively, his Honour’s interventions and reasons for judgment do not give rise to an apprehension of bias. Critical, strong and candid they may have been, but excessively so they were not. To some extent they may be taken to be expressions of exasperation, unfortunately so perhaps, but as a matter of degree, still falling short of apparent bias. This Court is in the same position as the Full Court in deciding the ground of appeal on the issue of bias. Both courts have to do so on the basis of the written record. The view that I take of that is, as I have already foreshadowed, that the appellant has established an absence of apparent bias.[24]

[24]Ibid 636.

Accordingly, when determining whether the plaintiff’s claim of apprehended bias is established, this Court may consider the cumulative impact upon a fair minded lay observer of the trial judge’s conduct or course of conduct.

Counsel for the plaintiff submitted, and I accept, that if a judge concludes apprehended bias has been demonstrated, the judge should excuse himself or herself from hearing the matter further. [25] That being said, in my view, a judge should not disqualify themselves from hearing a matter further himself or herself too readily, or if the plaintiff’s objection is not based on substantial grounds.[26]
[25] AJH Lawyers Pty Ltd v Careri (2011) 34 VR 236, 241 (citations omitted). Note: counsel for the plaintiff also submitted that if I were to excuse myself from further hearing, the case could be referred to another judge and the evidence heard to date could be adopted with the right of the parties to call further evidence. Counsel for the defendant disagreed stating ‘the matter is not that simple’: Transcript of Proceedings, AZ v The Age (Supreme Court of Victoria, McMillan J, 4 December 2012) 1003.
[26]AJH Lawyers Pty Ltd v Careri (2011) 34 VR 236, 242.

The Substance of the Apprehended Bias Application

As stated above, counsel for the plaintiff referred to a multitude of matters as supporting the apprehended bias application. These individual matters have been grouped thematically under 10 points in support of the application:

(a)the discharging of witnesses;
(b) the requirement that opening submissions and a witness outline be provided;
(c)reactions to witnesses;
(d)the plaintiff’s evidence and state of health;
(e)the prejudgment of issues in the case during opening submissions;
(f)the strike-out application;
(g)time allowances;
(h)objections and narrowing evidence;
(i)discovery during the trial; and
(j)a discrete comment made in relation to the plaintiff’s evidence.

Counsel for the plaintiff based many submissions on comments made by the Court during the running of the trial. For that reason, it as important to quote the sections of the transcript containing what are said to be adverse or prejudicial comments made by the Court, so that those comments are in context.

Discharging Witnesses

The first reason for dismissal advanced by the plaintiff is that in discharging the majority of the plaintiff’s witnesses, the Court made very brief comments, in a ‘very curt’ manner, with the most that was said being ‘thank you‘ or ‘you are discharged’; the witness’s name was never used.[27] It was contended that the Court adopted a curt and non-embracing demeanour towards all of the plaintiff’s 16 witnesses, with no exceptions at all and this was a consistent pattern adopted towards the plaintiff’s witnesses.[28]
[27]Transcript of Proceedings, AZ v The Age (Supreme Court of Victoria, McMillan J, 4 December 2012) 954.
[28]Ibid.

Counsel for the plaintiff referred to my dismissal of Professor Alexander McFarlane where I said ‘Yes, you may stand down, Professor’;[29] of Dr Marie Pirotta, where I said, ‘You may be excused’;[30] of Dr Neil Greenberg, where I said, ‘Yes, you’re excused and thank you’;[31] and of Ms Andrea Jackson, where I said, ‘You are excused’.[32]
[29]Transcript of Proceedings, AZ v The Age (Supreme Court of Victoria, McMillan J, 21 November 2012) 313.
[30]Transcript of Proceedings, AZ v The Age (Supreme Court of Victoria, McMillan J, 22 November 2012) 414.
[31]Transcript of Proceedings, AZ v The Age (Supreme Court of Victoria, McMillan J, 27 November 2012) 650.
[32]Transcript of Proceedings, AZ v The Age (Supreme Court of Victoria, McMillan J, 21 November 2012) 334.

Counsel submitted that these remarks were to be contrasted with those directed to the two witnesses called by the defendant, Ms Louise Graham and Professor Grant Devilly. Counsel contended that the Court embraced those witnesses in its manner of dismissal. In particular, the Court thanked Ms Graham twice, and the dismissal of Professor Devilly was ‘a much longer dismissal and embracing of the witness’.[33]
[33]Transcript of Proceedings, AZ v The Age (Supreme Court of Victoria, McMillan J, 4 December 2012) 953.

Counsel for the plaintiff considered this point was of ‘very minor strength on its own’ but placed some emphasis on this point.[34]
[34]Ibid 955.

The Transcript

The dismissals of the various witness, aside from the four witnesses already referred to in paragraph [28] above, are as follows:

(a)Litigation guardian, BZ:
[MR TOBIN]: If Your Honour pleases.
HER HONOUR: Yes thank you, you may stand down, [BZ].[35]
[35]Transcript of Proceedings, AZ v The Age (Supreme Court of Victoria, McMillan J, 19 November 2012) 91.
(b)Mr Gary Tippet:
HER HONOUR: That's all Mr Tobin?
…
Thank you, Mr Tippet, you may stand down.[36]
[36]Transcript of Proceedings, AZ v The Age (Supreme Court of Victoria, McMillan J, 20 November 2012) 176.
(c)Dr Darryl Wade:
HER HONOUR: This witness may be excused?
MR TOBIN: May be excused. Thank you, Your Honour.
HER HONOUR: Yes. Thank you, Dr Wade.
…
MR TOBIN:Thank you, Your Honour.
WITNESS:Thank you.
HER HONOUR: Thank you.[37]
[37]Transcript of Proceedings, AZ v The Age (Supreme Court of Victoria, McMillan J, 21 November 2012) 345.

(d)Mr Mark Brayne:
[MS KNOESTER]: I think we've come almost to the end. I have no further questions, so if Mr Brayne could be excused.
HER HONOUR: Yes. Thank you, Mr Brayne, that completes all of the evidence or questions that will be asked of you. So we are going to disconnect now. You may be excused.[38]
[38]Transcript of Proceedings, AZ v The Age (Supreme Court of Victoria, McMillan J, 22 November 2012) 398.
(e)Ms Katherine McMahon:
[MS KNOESTER]: Thank you Your Honour, could this witness please be excused.
HER HONOUR: Yes, you may be excused.[39]
[39]Transcript of Proceedings, AZ v The Age (Supreme Court of Victoria, McMillan J, 23 November 2012) 507.

(f)Mr Phillip Castle:
[MR TOBIN]: … we've run out of evidence, Your Honour.
HER HONOUR: That's all right. You may be excused Mr Castle.[40]
[40]Ibid 513.

(g)Mr David Cooper:
HER HONOUR: You may be excused, Mr Cooper?———Thank you very much. Does someone want these back?
MR TOBIN: Sorry, Your Honour, I wish to tender those. Thank you, Mr Cooper. I forgot to tender that.[41]
[41]Transcript of Proceedings, AZ v The Age (Supreme Court of Victoria, McMillan J, 26 November 2012) 553.
(h)Associate Professor David Charles Caple:
[MR TOBIN]: Thank you, Professor.
HER HONOUR: Thank you, Professor, you may be excused?———Thank you.[42]
[42]Ibid 579.
(i)Mr Nick Place:
[MS KNOESTER]: Yes. Thank you, Your Honour. Might Mr Place please be excused?
(THE WITNESS WITHDREW)[43]
[43]Ibid 604.
(j)Dr David William Wiseman:
[MR TOBIN]: Thank you, Doctor.
HER HONOUR: Thank you, you are excused, Doctor.[44]
[44]Transcript of Proceedings, AZ v The Age (Supreme Court of Victoria, McMillan J, 27 November 2012) 666.

(k)Ms Nerida Jane Crewdson:
[MR TOBIN]: Thank you, Ms Crewdson.
(THE WITNESS WITHDREW)[45]
[45]Ibid 701.
(l)Ms Helena Sutherland McCullum:
MS KNOESTER: No re-examination, Your Honour. Might Ms McCallum be excused.
(THE WITNESS WITHDREW)[46]
[46]Ibid 717.
(m)The Plaintiff, AZ:
[MS KNOESTER]: Thank you, [AZ]?———Thank you for listening to me.
(THE WITNESS WITHDREW)[47]
[47]Transcript of Proceedings, AZ v The Age (Supreme Court of Victoria, McMillan J, 27 November 2012) 748.

(n)Professor Gary Embleton:
HER HONOUR: You may be excused and someone will be in touch with you to arrange a convenient time for you to come back.[48]
[48]Transcript of Proceedings, AZ v The Age (Supreme Court of Victoria, McMillan J, 22 November 2012) 444.
… [and later]
[MR TOBIN]: If your Honour pleases.
HER HONOUR: Professor Embelton, you may be excused, thank you for attending today.[49]
(o)Ms Louise Graham:
[MR RUSH]: They are the matters, Your Honour, may Ms Graham be excused.
HER HONOUR: Yes thank you. Thank you, Ms Graham, you may be excused.[50]
(p)Professor Devilly:
[MR RUSH]: They are the matters, Your Honour.
HER HONOUR: Thank you.[51]
[49]Transcript of Proceedings, AZ v The Age (Supreme Court of Victoria, McMillan J, 30 November 2012) 779.
[50]Transcript of Proceedings, AZ v The Age (Supreme Court of Victoria, McMillan J, 3 December 2012) 861.
[51]Transcript of Proceedings, AZ v The Age (Supreme Court of Victoria, McMillan J, 4 December 2012) 946.

Requirement that Opening Submissions and a Witness Outline be Provided

The second point relied upon by the plaintiff is the Court’s requirement that the plaintiff provide opening submissions and a witness timetable. Counsel for the plaintiff submitted that the Court required a detailed outline of witnesses to be called and the substance of the evidence of each witness, whereas the defendant was required to provide a list of witnesses but no outline of the evidence of each witness. Counsel also submitted that, in considering apprehended bias, the Court should take into account the fact that the plaintiff prepared lengthy opening submissions, as those submissions fully informed the defendant of the plaintiff’s case.

The Court’s directions that opening submissions and a witness timetable be provided were made on 13 and 17 August 2012, during the hearing of an application by the plaintiff on each occasion to adjourn the trial.[52] The direction in respect to a witness timetable was made after counsel for the plaintiff indicated that the plaintiff would potentially call up to 25 witnesses, although their estimate for the trial was 10 days, and arose in the context of a discussion as to an appropriate date for an adjournment of the trial. Issues were also raised by counsel for the plaintiff in relation to the availability of a number of witnesses travelling from interstate and two witnesses who were to give evidence by video link from London. The video link to London necessitated the Court sitting outside the usual hours.
[52]Note: originally, the trial of this proceeding was listed for hearing on 17 July 2012 with an estimate of 10 days. This date did not suit the plaintiff due to the availability of counsel. The trial was then set down for hearing on 13 August 2012, before being adjourned again to 27 August 2012. The trial was then ultimately adjourned to 19 November 2012.

The Transcript

The relevant transcript from the hearing on 13 August 2012 is:

HER HONOUR: How many witnesses do you have?
MR TOBIN: We have a potential of about 25 witnesses. It's not anticipated we'll call them all …
HER HONOUR: Mr Rush, what's the defendant's position?
MR RUSH: Well Your Honour, that's the first time we've heard 25 witnesses which makes the assessment of ten days, we would say, utterly unmanageable.
HER HONOUR: Unrealistic. Well ten days [is] unrealistic and unmanageable? In the sense of — if, I think the plaintiff's going to have to sit down and do an outline of how they propose to manage the case in the sense of calling witnesses, otherwise it will be come unmanageable but we'll deal with that later.
MR RUSH: Your Honour, I'm not saying it's unmanageable but the trial will not finish in ten days.
HER HONOUR: Yes. Yes, I understand.
…
[To counsel for the plaintiff] what I want you or your instructing solicitors to do is to prepare an outline of … the timing of the case. So that we know what witness you're going to call and when you're going to call [them] and how you're going to call the witness because obviously from what you've said, you've got overseas people. There's going to be video conferencing, I assume.
MR TOBIN: Yes.
HER HONOUR: That will assist the defendant's side in getting the case running smoothly. If you have 25 witnesses, potentially, then I would like to know in what order you're going to call them and what amount of time you're allowing for them and also then Mr Rush can allow a certain time for how long he expects to cross-examine them.
MR TOBIN: Most of the — we got notice on Friday for the intention of the defendant to cross-examine 12 medical witnesses.
HER HONOUR: Yes.
MR TOBIN: Because this is a proceeding that's governed by the medical — exchange of medical reports, most of those medical witnesses, as far as the plaintiff is concerned, would take no more than 20 minutes in chief because they rely upon their report. Looking — — —
HER HONOUR: it's the cross-examination that might take some time.
MR TOBIN: The cross-examination of course we can't make an estimation of that. We don't know where the defendant's going with this.
HER HONOUR: But if you create a list where you present an order of the witnesses then we can have some order in the case which might make it run a little bit more smoothly.
MR TOBIN: It may save Your Honour from experience in running a case like this, we would intend to lock in pivotal witnesses at certain times and then have the balance of the witnesses move around. That we've got a number of journalists and ex-journalists who are available to be called at short notice. The big ones are the international ones because being out of London and the times that are available for them to get access to video conferencing so we will give an indication to Your Honour as to the dates of those and then the availability of others as to how long we think they'd take. It is unusual, Your Honour, in any case for the plaintiff to be required to detail the whole of those witnesses in the sense that even though — unless they're expressing expert opinion and they're retained, it's normally — not normal for the plaintiff to disclose all the witnesses they're calling.
There is some sensitivity, of course, because Your Honour will appreciate that the defendant is going through considerable turmoil at present and a number of journalists from that institution have expressed a willingness and we wouldn't be calling them unless we had to — had to call them because of the effect of their evidence might be upon — they see it upon their employment so there's a — — —
HER HONOUR: Yes, are you saying you don't want to name the witnesses?
MR TOBIN: There's some we don't to — we wouldn't want to name immediately.
HER HONOUR: Yes well you can — — —
MR TOBIN: Well I could see there — — —
HER HONOUR: — — — you can solve that by putting Journalist 1 and the substance of the type of evidence they would be called. But unless there's some order in calling 25 witnesses, it's going to be impossible to manage and presumably Mr Rush will have witnesses as well so that the case can be managed efficiently if we know, not necessarily the names of the witnesses you're going to be calling but the type of witness and the medical ones, obviously, are not a problem but the others might be.
MR TOBIN: With the — if we can indicate how we propose to lock in the interstate — international witnesses as to their times and indicate that we will have a — witnesses to fill up the balance at any time and what general category.
HER HONOUR: Yes.
MR TOBIN: We'll do that, Your Honour.
HER HONOUR: All right.
MR TOBIN: As to the — the thing is, we don't know how long any witness is going to take because the majority of the case will be the defendant, it seems, in that they want to cross-examine everyone.
HER HONOUR: Yes but once the defendant sees your list then he will be able to put in an estimate of the cross-examination so that we get some idea of the — how long each witness is going to take. The other thing — — —
MR TOBIN: They've got — they've given us a list of the 12 medical witnesses they wish to cross-examine.
HER HONOUR: Yes. The other issue that would assist me is to have counsel send to me an outline of opening submissions before the trial starts.[53]
[53]Transcript of Proceedings, AZ v The Age (Supreme Court of Victoria, McMillan J, 13 August 2012) 5–6, 8–11.

Reactions to Witnesses

The third matter raised by the plaintiff was how the Court reacted to the majority of the witnesses, meaning how I engaged with them and how I listened to and noted their evidence. This ground was multifaceted and included a failure by the Court: to reassure witnesses who were upset when giving their evidence; to look at witnesses when they gave evidence; to pay attention; and to take regular notes of the evidence in chief of the plaintiff’s witnesses. Specifically, it was submitted that I rarely took notes during the evidence‑in‑chief, whereas, during the evidence‑in‑chief of Ms Graham for the defendant, I made notes, but not during her cross-examination. At one stage, I was instead ‘using nail clippers or manicuring in some way’.[54] It was said that my lack of engagement with the plaintiff’s witnesses was in contrast to my reaction to the two witnesses called by the defendant, where it was said that I looked at those witnesses most of the time when they gave their evidence‑in‑chief, and that I appeared to be taking notes regularly.
[54]Transcript of Proceedings, AZ v The Age (Supreme Court of Victoria, McMillan J, 4 December 2012) 962.

In particular, counsel for the plaintiff relied on the following matters in support of this submission:

(a)during the evidence of the litigation guardian, BZ, counsel contends that I paid little attention and did not ‘inter-react’ when BZ appeared very upset on one occasion. It was said that when BZ appeared upset, I should have provided BZ with some reassurance by telling him to take his time, asking him whether he wished to take a break, and actions of that nature;
(b)in relation to the evidence of Dr Pirotta, it was said that my reaction to her evidence was similar to my reaction to BZ, in that I did not react when she broke down in the witness box, and that the only matters that appeared to interest me were the evidence about the plaintiff walking the dog and the evidence about the plaintiff's inability to give evidence;
(i)The transcript records one question asked by the bench during cross-examination;
[MR RATTRAY]: And in terms of her living arrangements, did you ask her about that or did she tell you about that or do you just leave that alone?———I understand from conversations we've had that she shares a house, she has a housemate who's been very supportive. I think she has a cat, she minds dogs occasionally, but that — no, it's not something we talk about particularly.
HER HONOUR: You said she minds dogs?———Yes, she has — I think this is the right friend, she has a friend from the — she has a friend somewhere who sometimes brings a dog and then she — she makes herself, and she thinks this is a good thing, go for a walk with the dog, or dogs, it might be two dogs, I can't remember exactly, but that's — she sees that as a positive thing to get and walk.[55]
[55]Transcript of Proceedings, AZ v The Age (Supreme Court of Victoria, McMillan J, 22 November 2012) 412.

(c)in the course of the evidence of Ms Jackson, it was said that, when she broke down crying, I made no attempt to reassure her in any way, such as inviting her to take a break or to have a drink of water, which counsel submitted was common practice for the Court in relation to a distressed witness;
(d)in the course of what counsel for the plaintiff described as the extensive and far-reaching evidence of Mr Tippet, it was contended that I seldom looked at him in circumstances where he was endeavouring to engage and speak to the Court by directing his answers directly to me on most occasions;
(e)during the extensive video evidence of Professor Greenberg, who was in London, counsel contends that I rarely looked at the video link screen although Professor Greenberg was directing his answers to me. It was also said that, while he was giving his evidence, I did not concentrate on the answers but rather read from a textbook on evidence at a time when no evidentiary issue had been raised. It was also said that I asked Professor Greenberg only one question throughout a period of his extensive one-and-three‑quarter hours of evidence. That question was in the course of cross-examination, when counsel said that I appeared to be trying to make the point that a traumatised person needed to be involved in the event occurring rather than after the event.

(i)The relevant transcript is:
[WITNESS]: … trauma is an out of control event — but it's very much about how the person was in the event, so I often give the example of you're driving along a cliff in a car and you roll off the road and the car rolls down the hill. So, if you wave your arms in front of you and you have no idea what was happening and the first thing you remember is the ambulance person pulling you out, then you may score two out of two because you were — the event was out of control but so were you. But if you happened to be a very well trained Royal Marine when you roll off the side of a hill and you put your hand in front of you because you know the air bag's going off and you hold your seatbelt because you know that's going to protect you, and when the car comes to a stop you smash the window and crawl slowly out of the car, when the ambulance personnel get there and you're able to explain to them exactly what happened, the event was out of control but you weren't, so you would score zero. So it's not about the event, it's about the person's perception of how they were doing during the event.
HER HONOUR: But if I can just ask this question then, it seems to me from your answer it's the person who is involved in the event?———Yes. So, I know nothing about the details of this case but if the — if this lady has been taking photographs — — —
No, in the example you were giving, in the example that you were describing then, it's the person who has some part of the event that's occurring?———Well, not necessarily, Ma'am, it's the person involved in the event, so if I was a bystander in that car accident, and I saw the car rolling down and I — I would be involved in that event even though I wasn't the person in the car, and the — the — — —
So in that case you're the person who's seeing the event?———Yes. They are involved in the event somehow even if they're not the one being directly traumatised themselves.
[HER HONOUR:] I follow.[56]
[56]Transcript of Proceedings, AZ v The Age (Supreme Court of Victoria, McMillan J, 27 November 2012)
641–2.

(f)during the video evidence of Mr Brayne, who was also in London, counsel submitted that I appeared to pay little attention, as I did not look at the witness during his evidence and I spent a considerable time reading the Accident Compensation Act 1985, when that Act was not relevant at that time;
(g)during the evidence of Professor McFarlane, it was said that, when he answered the questions asked of him by counsel, he attempted to address those answers directly to me but I did not look at him when he did so;
(h)in the course of the evidence of Mr Place, it was said that I appeared at times not to be paying attention. It was said that this was ‘partly shown … when he was trying to answer a question’, when I interrupted him in his answer and said to him, ‘See if you could focus on the question’.[57] Counsel for the plaintiff contended that Mr Place was, in fact, answering the question and that, if I had paid attention to him, it ‘would have been known that he was in fact answering the question’;[58]
(i)The relevant transcript is:
[MS KNOESTER]: … who were the attendees at that awards ceremony? ——— I'm not sure exactly. There was basically the editors of all the major papers were there, because it was a great opportunity for me to actually kind of tell them what the thesis is and what I thought that I found, so, yeah, I certainly remember that, you know, most of the leading editors were there.
As part of the acceptances of that award were you given an opportunity to speak to those who'd assembled at that ceremony?———Yes, I was.
What did you say?———I said that I'd really hoped that my thesis wouldn't be like the Arc de Covenant at the end of Raiders of the Lost Ark. I don't know if you remember that film, the place where the Arc de Covenant gets put in a wooden box and wheeled into a warehouse, sort of, with all the other wooden boxes.
HER HONOUR: See if you could focus on the question?———I am.
What do you — — —?———Because I said that I didn't want my thesis to be like that, I didn't want it to get wheeled into a warehouse and never seen again, and so the direct link was in fact that I said to all the editors, "I don't want this to be put in your bottom drawer and never read and never looked at. It's important. I've found that journalist have been badly affected by what they're doing, there are clear trauma symptoms. Journalists, young journalists were suffering. You really need to read this and do something about it.[59]
[57]Transcript of Proceedings, AZ v The Age (Supreme Court of Victoria, McMillan J, 4 December 2012) 961.
[58]Ibid.
[59]Transcript of Proceedings, AZ v The Age (Supreme Court of Victoria, McMillan J, 26 November 2012) 591.

The Plaintiff’s Evidence and State of Health

The fourth matter relied upon by the plaintiff is that, before hearing the plaintiff’s evidence, the Court made comments adverse to the plaintiff that demonstrated a consideration of the issues solely from the perspective of the defendant. These comments related to the state of the plaintiff’s health and her evidence. Counsel for the plaintiff also submitted that the Court demonstrated prejudgement of the plaintiff's case in dealing with her capacity to give evidence and by indicating a view that the plaintiff’s conduct in the trial was contrary to instructions, tactically determined and done in a way that was aimed at causing prejudice to the defendant. Counsel for the plaintiff referred to several exchanges between the Court and bar.

The Opening Submissions

In relation to the opening submissions, the transcript is:

HER HONOUR: … Are the parties proposing to lead evidence viva voce for the in-chief part?
MR RUSH: I would have thought certainly from the defendant's point of view, Your Honour, we would be intending to lead viva voce evidence substantially — — —
HER HONOUR: Yes, that would be my preference.
… [and later]
MR RUSH: … The final matter, Your Honour, is something that we raised when this matter was last before Your Honour and it is the proposal that the plaintiff be called as the final witness. We know of no rule of practice that would forbid or say that that cannot be done but having regard to the timetable, particularly having regard to matters of importance that we wish to put to the plaintiff in cross-examination, I foreshadow again the difficulty of putting those matters to expert witnesses that are called on the plaintiff's behalf.
HER HONOUR: Yes.
MR RUSH: If it comes to a time at the conclusion of the evidence where this matter may circle again, we just note that we've put it on notice — the plaintiff on notice on two occasions.
HER HONOUR: Yes. Well, the plaintiff is on notice for that and it is an unusual circumstance. I'm not sure how much — from my point of view, I would have preferred to hear the plaintiff much earlier and I also would prefer to hear the plaintiff rather than — or see the plaintiff rather than be by video link because it doesn't — there is quite a bit lost in terms of the video link and I understand the position in relation to the plaintiff but the other — or the thought that crossed my mind as to whether it's appropriate that the court goes out to the plaintiff's residence but I'd leave that with you. But it is an unsatisfactory state of affairs where the principal witness is going to be by video link, or proposed to be by video link.
MR TOBIN: Given we don't propose — if the plaintiff is capable of giving evidence, which we hope she will be — an ambulance attended the premises on Friday night and there are still real issues as to whether we'll have her right in time — — —
… There are real issues as to her current state of health. …
I can say, Your Honour, that the practice is one which I understand Mr Rush's comments in relation to it but it's a practice that I have adopted and seen adopted by others ...
HER HONOUR: You're at risk though from possibly Mr Rush, I think he has foreshadowed that he may need to recall — — —
MR TOBIN: To re-examine, yes, Your Honour, I understand that, Your Honour.
HER HONOUR: Very well.[60]
[60]Transcript of Proceedings, AZ v The Age (Supreme Court of Victoria, McMillan J, 19 November 2012) 4–6.

The Plaintiff’s Health

Before turning to the further comments made by the Court, it is important to briefly set out the evidence before the Court at that time as to the plaintiff’s state of health.

Dr Pirotta, along with the plaintiff’s current and former treating psychologists and the litigation guardian, all expressed grave concerns in respect of the plaintiff’s health and the impact of litigation upon her.[61]
[61]Note: for further evidence as to the plaintiff’s health, see AZ v The Age [No 1] [2013] VSC 335 (12 September 2013) (McMillan J).

The litigation guardian said that the plaintiff had expressed thoughts of self harm and suicide to him and her condition worsened as the trial date approached.[62] In the lead up to the trial, the plaintiff broke down and an ambulance was called to her home. The litigation guardian attended her home and he described her distress at that time as follows:

she was fearful about the court case, she was paranoid that there were journalists out waiting for her to come outside of the front door, she was fearful that someone was going to actually chase her through her own house and try and get photos of her, that her name was going to be plastered all over the print and all the other media and she was fearful of the outcome, of what was going to happen, that she was going to be crucified. She'd drawn pictures. She's got a notebook where she's drawn pictures of a tree with a person hanging, as in hung from the tree. There's other pictures there, they're all very vivid accounts of her fears.[63]

[62]Transcript of Proceedings, AZ v The Age (Supreme Court of Victoria, McMillan J, 19 November 2012) 76,79.

[63]Ibid 80.

Dr Pirotta described the plaintiff as being at the ‘extreme end’ of patients that she has treated with a non-psychotic mental illness. When notified that her case was being brought, the plaintiff was said to have almost been in the foetal position, crying and shaking in Dr Pirotta’s office.[64] Dr Pirotta said that the plaintiff:

wishes she’d never been talked into allowing it to happen and she wished it would all just go away. So whether she wins or loses, I mean, I think she’s just a bit disinterested at this stage. I think she’s just found the whole process extraordinarily stressful … I think it’s bringing up … all of the events again and I think she was aware there would probably be media interest and that worried her a lot. She just wanted to be left alone basically.[65]

[64]Transcript of Proceedings, AZ v The Age (Supreme Court of Victoria, McMillan J, 22 November 2012) 402.

[65]Ibid 413.

Dr Pirotta’s view was that the plaintiff would have bolted rather than attend Court in person, but that, if she did attend, she would be overwhelmed, terrified and horrified, and unlikely to be able to give evidence.[66]
[66]Ibid 405.

Discussion relating to The Plaintiff’s Evidence

On the 22 November 2012, after the Court heard from Dr Pirotta and the litigation guardian, the following exchange took place:

MR TOBIN: Your Honour, just before adjourning, could I mention in relation to the calling of the plaintiff, Your Honour will have heard from both the treating psychologist and the general practitioner as to the difficulties the plaintiff will have in giving evidence. Your Honour, it is — before we move into making any plans, of course, anything we do will have to be subject to the court's approval.
What is proposed, and I (indistinct) this for Your Honour's consideration and my learned friend's consideration as well, is that a remote location be chosen for the evidence to come by way of video; that at that location with the plaintiff be either her psychologist or her medical practitioner Dr Pirotta or Mr Wade; that the plaintiff's brother be at the location but outside the room where the plaintiff is giving evidence and that the medical practitioner in the room have the authority to terminate the course of evidence on the grounds of medical condition if that person so forms that opinion in the course of that witness giving evidence.
If Your Honour would permit us to consider and then advise of a venue for that to occur, we would propose approaching the plaintiff giving evidence in that form.
HER HONOUR: What sort of venue are you talking about?
MR TOBIN: A venue where — by way of a video into the court — into Court 7, Your Honour, rather than it being in court, that the witness be at a — as you would if it was a sexual offence but not in a court, where the person is absent from the court but by way of video.
HER HONOUR: So just so I'm clear. You would — you're proposing that a medical person be with the witness in the room where the video link occurs but her litigation guardian is outside?
MR TOBIN: Outside, yes. The only two people who will be in the room, unless Your Honour was to seek to have an Associate there, would be the plaintiff and the medical practitioner or the psychologist, the treating medical practitioner or the treating psychologist.
HER HONOUR: I think there needs to be a video person to operate the video.
MR TOBIN: Yes. Yes, certainly, Your Honour.
HER HONOUR: I'll leave that with you, Mr Rush, overnight so you can think about it. Is there any precedent for doing something like that in these circumstances.
MR TOBIN: I have done it in the past but the only time I've done it is in fact where I have been examining counsel-in-chief and the witness — I'm there with the witness. But that's on one occasion. I'm not aware of the plaintiff being called remotely previously but I'm aware of the reverse, the De Bene Esse or the court going to the location for it to occur. The application is made at this stage because Your Honour has had the opportunity to hear the evidence of those people who are involved in her — — —
HER HONOUR: I think the evidence seems to suggest that — as I apprehend it at the moment, that the witness this morning, the GP, Dr Pirotta, thought that the plaintiff would be most comfortable — sorry, not that she'll be comfortable at all frankly but that she'd possibly be the most comfortable in her own environment.
MR TOBIN: Yes.
HER HONOUR: What you're proposing is not her own environment.
MR TOBIN: Her own environment would be a matter of taking the court to a location.
HER HONOUR: Yes, that's what I mentioned to you at the beginning, that there's another possibility, that the court would go to her so that she does remain in her own environment.
MR TOBIN: As I understood that witness, her own environment meant outside the court environment.
HER HONOUR: Well, no. Her last letter suggests staying — or is it one of — these were all to do with the applications — these letters were to do with the applications about — on an earlier occasion but "even in the safe environment of her own home" that's what — I undertook that to be the safest environment.
MR TOBIN: Yes, Your Honour. Could I say in relation to that, Your Honour, that the plaintiff will not permit her legal team access to her house, nor did she permit others access to her house because she has a sense of her house is not presentable for anyone else by reason of her condition.
HER HONOUR: So if she went to another location — — —
MR TOBIN: Yes.
HER HONOUR: The court could go there?
MR TOBIN: Yes, Your Honour. If we could find another comfortable location that would accommodate the court and it's a question of whether it would be easier for the court — or whether the best evidence is achieved by being there with everyone or being at a location where she is remote. I can indicate to Your Honour, the concept of witnesses giving evidence remotely is very frequent of course.
HER HONOUR: Yes, but mostly people don't like it.
MR TOBIN: Yes.
HER HONOUR: That's the problem. Even Dr Embelton has elected to come back because he doesn't like the video link.
MR TOBIN: He doesn't like it.
HER HONOUR: And he's a professor of psychology.
MR TOBIN: Yes. Of course most victims of sexual assault do it that way.
HER HONOUR: This person is not that.
MR TOBIN: No, but for that same reason. And I've had it in other — I've had it even suggested where a Sikh psychologist won't take off his turban with the knife in it where the judge has ordered that he go off to somewhere to do it by video because he wouldn't let him into the court. So the whole range — — —
HER HONOUR: The problem that I see with video evidence and I've experienced a number of occasions with video evidence, is that you don't really get a communication that is at its optimum. There is the person in one room not being able to see other than on the TV and likewise the court only sees the person through the prism of the TV screen and communication is more than just the words.
MR TOBIN: Could we then — — —
HER HONOUR: So I think have a think about it overnight — — —
MR TOBIN: Yes, Your Honour.
HER HONOUR: — — — as to what you would like to put forward as the optimum.
MR TOBIN: I understand what you're saying, Your Honour. I agree with your comments that it's not the best way of getting evidence but we want to get the evidence and we may have to. But we'll look for a safe alternative venue where we could — one of the whole reasons we have courts set up is they're meant to be safe alternative venues but — — —
HER HONOUR: It just depends on the particular person.
MR TOBIN: Yes, Your Honour.
HER HONOUR: We will do everything we can to accommodate a feeling of safety but we can only go so far.
MR TOBIN: Yes, Your Honour.[67]

[67]Ibid 472–6.

On the 23 November 2012, the following exchange took place:

MR TOBIN: … If I may however, Your Honour, go back to the calling of the plaintiff and the way in which we do it.
HER HONOUR: Have you discussed this with Mr Rush?
MR TOBIN: No, Your Honour.
HER HONOUR: I think that you should have a discussion with Mr Rush about it because what I'm concerned [about] is fairness for both parties, that is fairness for the plaintiff and fairness for the defendant, and you may be able to reach agreement as to the most fair way, so that the plaintiff is able to give evidence, but one of the things that I think is important is that if you do proceed by way of a video conference, it is important that all of the people in the room are able to be seen in the room on the screen.
MR TOBIN: Yes, Your Honour.
HER HONOUR: And I'm not sure whether you've made any enquiries as to whether a video link is available but I think it's in the interest of both parties that you discuss this with your opponents.
MR TOBIN: I'll discuss it with my learned friend and then raise it again further, Your Honour, in the sense that I we have some opposition.
HER HONOUR: Do you wish to say anything, Mr Rush?
MR RUSH: Yes, I do, Your Honour. I wasn't present in court when Dr Pirotta gave her evidence, but we, Your Honour, have an extreme concern. We have a job to do in relation to representing the defendant, and when a general practitioner gives evidence as was given at p.413 of the transcript
…
Your Honour, it's of course a matter for our learned friends, but we are put in a stressful position in relation to the way in which we conduct our case and to force a person into giving evidence that arguably on what was opened on Monday in relation to her condition last, what is it, a fortnight ago, a fortnight ago last Friday, we are seriously concerned as to the repercussions of a cross-examination of the plaintiff, and that creates a great unfairness for us in the way in which we conduct our case, and we, I'm instructed, to put that very clearly to the court, that concern that we have, in the context — — —

HER HONOUR: I likewise have that concern. The difficulty is whether or not there's a way around it. I don't have an answer yet in my mind, and that's why I thought it best that all of you get together and work out a way as to how it could possibly be achieved, but at the moment the evidence suggests, certainly from Dr Pirotta, that it would be extremely detrimental on the plaintiff's health. Now, that would leave, if you're not in a position to cross-examine her and she's not in a position to give evidence, that leaves the plaintiff's case without any evidence of the plaintiff, and that has to be considered by both parties. I can't solve the problem for you at this stage but I think you should have discussions and see where you're going.
MR RUSH: Thank you Your Honour.
HER HONOUR: That's not very helpful but it's at least a step in — you just have to get together and see if you can reach a resolution. If not I'll have to make a ruling based on your submissions.
MR RUSH: Thank you Your Honour.
HER HONOUR: Very well, I'll adjourn until Monday.[68]

[68]Transcript of Proceedings, AZ v The Age (Supreme Court of Victoria, McMillan J, 23 November 2012) 513–6.

On 26 November 2012, a further, lengthy exchange took place:

MR TOBIN: … the litigation guardian is endeavouring to bring the plaintiff into the DPP remote location for her to give evidence from that location
…
HER HONOUR: How does that fit in, though, with what the evidence is at p.413 of what was referred to on Friday?
MR TOBIN: It fits in with it on the basis that it would be extremely uncomfortable for the plaintiff, but it's a situation where the, if the plaintiff does so say she's willing to do so it's intended to call her on that basis …
HER HONOUR: The evidence that is set out in 413 seems to be contrary to what you're putting, that is to say that she doesn't want the case to go on, or doesn't want the case at all.
MR TOBIN: Yes, insofar as the evidence at 413 as to her wishes, there's two factors in that, Your Honour, one as to the source of instructions of course in this case are from the litigation guardian, ... The second thing as to the plaintiff having a very significant issue with the fact of her giving evidence, … It was mentioned on Friday that my learned friend is going to be at a disadvantage, we would say, Your Honour, it is just staggering to us to hear that comment being made. It's a bit like in a Wrongs Act claim for the defendant to say the widower's been — the party's been killed by us and therefore we can't cross-examine, or in a brain damage case the person who's got brain damage, therefore we can't cross-examine, and we're at a disadvantage. Everyone accepts where somebody doesn't have full competence and capacity to give evidence there are issues that are created from that, but to say that the party who, on every medical report has caused the injury, then says "We're at a disadvantage", we've found it quite staggering …
MR RUSH: … Can I firstly indicate from the defendant's point of view we have told Mr Tobin that in relation to the calling of the plaintiff we will cooperate it in whatever he wants to do ... But for my learned friend it say he is stunned as a consequence of what was put forward on Friday, we say — and compare it with a Wrongs Act claim is, in our submission, really missing the point.
What Your Honour has indicated at p.413 is a general practitioner who is concerned as to the health of her patient, … and the effect of giving evidence and indicating that the patient indeed does not wish to pursue this litigation and was being pushed by others, in that sense — and didn't want — regrets that she was ever "talked into it".
In that sense, Your Honour, our concern and the predicament that we find ourselves in, that cross-examination of the plaintiff from our perspective is extremely difficult … for us to cross-examine as we should cross-examine on behalf of the defendant is likely to cause enormous distress to the plaintiff. If Mr Tobin doesn't understand that, well, we're stunned and that's the message that we're trying to convey to the court.
But we, Your Honour, can do nothing more than alert the court … we raised it because we are extremely concerned.
HER HONOUR: I think quite rightly so because it does raise the issue of a conflict in the plaintiff's camp in terms of the litigation guardian and the plaintiff. The defendant should not be restricted in how it runs its case. I understand that this case has always been defended on very significant issues in relation to liability but the plaintiff has to come to grips with the differing instructions that it might have.
On the one hand, … counsel for the plaintiff seeks to call the plaintiff to rely on the evidence that she might give in relation to her position. But on the other hand, the plaintiff has indicated through her general practitioner that she does not want this case to be pushed or to go ahead. It seems to me that the litigation guardian and the plaintiff are at opposite ends of the spectrum and that raises real concerns for the court that there's a conflict that needs to be resolved before the matter goes on.
Mr Rush, from the defendant's position, should not have to take up the burden of that conflict and needs to be able to run his case as a defendant would normally run the case. In my view, the way the matter is proceeding, where there is evidence that the giving of evidence is likely to cause enormous distress to the plaintiff. It is not fair to push the burden of that distress onto the defendant. That was the reason I raised it this morning.
It seems to me the two issues that have been raised in respect of the plaintiff have been intermingled and the first one is the issue of how she would give evidence if she did, which is the video arrangement and whether or not the defendant has any objections in relation to that. For myself there are various principles that apply in terms of giving video evidence and it is unsatisfactory in many ways from the court's perspective to hear evidence by video but the defendant has said that it will cooperate and not stand in the way.
But the real issue is the juxtaposition of the conflicting position of the plaintiff and the litigation guardian. So on the one hand you have a position where the plaintiff is putting forward as to being able to give evidence. On the other, the position where she's not able to give instructions and I simply don't understand how that can be put forward in the running of this case and I think it needs to be resolved before we go any further.
… You may be in a position, Mr Tobin, where you need to seek a ruling, or at least consider your position …
MR TOBIN: The plaintiff has been declared a person with a disability pursuant to Order 15. A litigation guardian has been appointed …
We have considered with the litigation guardian very seriously the situation as far as the progress of this case. We have taken advice from medical practitioners in the matter and have been totally conscious of the litigation guardian's position in relation to the care for the welfare of [the plaintiff]
… we see the litigation guardian not being in any position of conflict in relation to the instructions he's provided, and we have discussed it with him on many occasions.
HER HONOUR: I don't need to know the detail, I just need to point out to you there is a conflict as the evidence stands now.
…
MR TOBIN: We see no reason to do anything other than what we're doing, Your Honour; we're acting in accordance with instructions.
HER HONOUR: Yes, but you're acting in accordance with the instructions of the litigation guardian which, as I pointed out to you, appear to be in conflict now with the instructions of the plaintiff. I couldn't put it plainer.
…
Now, the ball's in your court in relation to that, Mr Tobin, I'm not going to go over what I've already said, but in my view, based on the material that is now before the court, there is that conflict.
MR TOBIN: We know what the evidence is, Your Honour, and — — —
HER HONOUR: Forget about the evidence of the issues on liability. The issues of the medical practitioner called Dr P[i]rotta differs and is contradictory to the position you put in relation to the litigation guardian.
MR TOBIN: Yes, Your Honour, as to what the plaintiff has expressed and that opinion formed by the doctor in relation to that issue, I understand that, but the litigation guardian is informed by more than one source and takes judgment for more than one aspect of it.
HER HONOUR: More than one medical person on this issue has indicated the effect that that litigation could possibly have on the plaintiff, but I think the evidence goes further now from Dr P[i]rotta in relation to the plaintiff.
MR TOBIN: That she has real concerns for the plaintiff's welfare in giving evidence, yes.
HER HONOUR: No, it goes further than that if you read p.413 …
I will leave it with you. I've said as much as I want to say about it, Mr Rush has said as much as he wants to say about it, but it's something that you should take on board in the running of the case.
MR TOBIN: Yes, Your Honour. Your Honour, can we stand the matter down for ten minutes so we can seek some further instruction? …
Your Honour, we have discussed the matter with the litigation guardian and we have received instructions from him to proceed … the litigation guardian's situation, it is along these lines; that he has formed the opinion from his close association with the plaintiff over the last eight years and from matters that she has said to him, that it is in her best interests to run this litigation …
Finally, … [the plaintiff] has anticipated that in giving evidence she'll be coming to a court which will be full of reporters and that she'll be photographing coming to and from the court, her evidence will be broadcast and there'll be photographers.
HER HONOUR: I haven't got an issue about the video evidence, I've made that clear, that's not the issue that's concerning me. It's the conflict between the litigation guardian and the plaintiff. Now, I can't put it any plainer.
MR TOBIN: The litigation guardian is of the understanding that the plaintiff's perception of what will be involved in giving evidence is giving evidence in a court full of reporters and being photographed coming into — — —
HER HONOUR: She's not giving evidence in the court if Mr Rush accedes, as he has, to a video link.
MR TOBIN: That's what's being said, Your Honour, and so the plaintiff, when she's expressing her concern about going to court and giving evidence is expressing it without an acceptance of the procedure that will be involved in her giving evidence. …
HER HONOUR: I don't read the evidence on pp.412 and 413 as having anything to do with a video link. It's to do with the case, full stop …
the concern that's been put from the other side [is] that her mental health is possibly at risk by giving evidence as it stands now. The extra evidence is at 413 of the transcript, that she's never wanted this case to go on, she's been saying that to Dr Pirotta for the last 12 months. Is the litigation guardian listening to her? That's not a question that I have to resolve. It's a question you have to resolve.
MR TOBIN: Yes, Your Honour.
HER HONOUR: What you're saying is you've resolved it?
MR TOBIN: Yes, Your Honour. This litigation guardian has been most attentive. …
we have no concern — we have concerns generally but we have no concern in relation to this litigation guardian not acting with the best interests of the plaintiff at heart and we have no concern that he is acting in a conflict situation in respect thereto. ...
MR RUSH: … Your Honour, we don't question the concern of the litigation guardian but Your Honour, our concerns are raised by 413.
… Your Honour only has to turn to the medical reports of Dr Pirotta. …
Now, that is the material that greatly concerns us and a cavalier approach cannot be taken to it. …
HER HONOUR: Yes. It does raise issues, Mr Tobin, as to whether the litigation guardian does have the plaintiff's interests at heart and in his head because what the plaintiff is now — if the matter proceeds along the lines that you've outlined, is not in accordance with the medical reports of Dr Pirotta. It does raise a real concern in my mind.
MR TOBIN: Your Honour, we accept the concern. …
Your Honour, if we're relying upon what Dr Pirotta says, my learned friend says, "[The plaintiff] has talked to me about the trauma of dealing with WorkCover and the impending legal action."
HER HONOUR: You don't need to read it out.
…
I've had regard to the three paragraphs there, plus the paragraph that was read at p.150 and the transcript at 413 and it raises a serious issue, I think, in terms of the plaintiff's health and the ramifications of her evidence being given, even if it is in the circumstances of the video evidence and you, as counsel for the plaintiff, have to take all of those matters into consideration. It's not just the litigation guardian's position. It's also the plaintiff's position.
MR TOBIN: Yes, Your Honour.
HER HONOUR: It seems to me possibly you may not be taking on board the seriousness of the effect of giving evidence, even on the video link, may have on the plaintiff.
Now, as the case stands now, there is no evidence on the part of the plaintiff, although reference has been made to an affidavit that's not before me. None of the matters that are referred to in the expert reports can be relied upon. It's only the expert opinion that can be taken into account by the court.
MR TOBIN: Yes, Your Honour.
HER HONOUR: But a solution has to be brought to the problem that's before us now.
MR TOBIN: We foreshadow one solution, Your Honour, would be the plaintiff has had a detailed statement prepared which went with the claim form, which I think is a four-page statement, together with the affidavit.
HER HONOUR: Yes, but the problem that I see with that sort of approach is that it denies the defendant any ability to challenge the facts in those documents and that would put the defendant at a detriment.
MR TOBIN: But it's in those circumstances, Your Honour, where the evidence is that the defendant has accepted that the plaintiff has suffered an injury in the course of her employment and paid her for total compensation since that period of time, …
Now, if it were to be sought, if this case were to proceed where the court is concerned as to the emotional competence of a witness to give evidence, the court would then be left in a situation similar to a deceased witness, and so those documents which were produced by her at a previous time, would be documents which would be able to be put before the court. …
HER HONOUR: I don't think the analogy is quite the same, and you also run the risk that very little weight would be put on the facts contained in those documents. I think the difficulty in these sort of cases is that a plaintiff in the position of this one may see the cause of her health problems in a different view to others. That's part and parcel of the health issues that she has, and in the running of this case it's clear that the issues that arise in terms of liability are significant, and causation is one of them and it's a big one, just as the scope of the duty is a big one, and the foreseeability of the injury is, so that, the problem for you doesn't go away by putting statements forward that cannot be given the weight that would be given if the evidence were by way of viva voce evidence.
…
MR TOBIN: That's why we intend to call the plaintiff, but we do that in the context where every medical practitioner who has examined her has the association except for one at the Alfred Hospital.
HER HONOUR: Yes, but every medical practitioner that has examined her is examining her on the material that she has given to them.
…
MR TOBIN: It's in the context also, though, Your Honour, we've got the admission by the defendant that the plaintiff has suffered injury in the course of her employment which is employment related, and has incapacitated her to this time by the payments of compensation on the (indistinct) and the commonwealth type admission.
…
The plaintiff, the desire of the litigation guardian, and those advising the plaintiff, is that she present to give evidence, and upon her presentation to give evidence we will adduce the necessary evidence. Now, insofar as there may be a restriction as to the clarity of her evidence, or a restriction as to the endurance that she can have in giving her evidence, that will affect the evidence, but the evidence will be there and evidence which we anticipate to be un-contradicted evidence. Now, what I understand is being said by my learned friends is in effect this case can't proceed — — —
HER HONOUR: No, he's not saying that at all. He's saying the way the case proceeds must be conducted with extreme care and it's not appropriate to adopt a cavalier approach. Now, you are possibly looking at the case, and must be, with a different attitude or view, because it is very much a live issue, liability is very much a live issue, and the aspects that I've spoken of are contested, and it's not a situation where the defendant is going to be conceding the issues of scope of duty, foreseeability or causation; that's been made clear, that's how the case has been opened, and it's not just an issue of saying, "The case is also this and therefore it follows that this is the situation for this plaintiff"; all of those issues that I've raised are very much live issues based on the evidence, and it that's how I'll be deciding it, on the facts.
MR TOBIN: Yes, Your Honour, but scope and foreseeability is not dependent upon the plaintiff's evidence.
HER HONOUR: No, not at all. But that is an issue in the case.
MR TOBIN: Yes, it's — and we see that's adequately covered on the evidence. …
Now, we've satisfied ourselves, Your Honour. Unless the court wishes of its own nature to have the litigation guardian give evidence again before the court in relation to the matters that he takes into account, as to whether or not he is acting in a position of conflict, we can't see anything else but proceed how we're proceeding, Your Honour.
HER HONOUR: Yes. Thank you.
MR RUSH: Your Honour, …
Much of what has just been said is irrelevant to the issue of the plaintiff's calling. We have at no stage said that the plaintiff's case should not proceed. Our issue is that the calling of evidence from the plaintiff is precarious to her health.
HER HONOUR: Yes.
MR RUSH: We do not hide from the fact that if the plaintiff were called, we see, on the basis of how this case proceeds, the sort of things that we're required to put to the plaintiff
…
HER HONOUR: Yes. Well, I think we've fully canvassed the issues and, Mr Tobin, I'd ask that you give consideration to all of the matters that have been raised and I can't take the matter any further other than to highlight what has already been said.
MR TOBIN: Yes, Your Honour. Does Your Honour desire to hear from the litigation guardian again? We don't understand what the application is in the sense of our learned friends have raised an issue — — —
MR RUSH: There's no application.
HER HONOUR: There's no application. It's a concern, Mr Tobin. I'm struggling to understand that you can't see it but, as I said, I've said all that I need to say about it and I've said it a number of times. You can reflect perhaps over lunch time once you read the transcript and as well as has fallen from me this morning, Mr Rush has also raised the same concern. It is really a matter for you, not for Mr Rush and not for me.
MR TOBIN: Yes, Your Honour.
HER HONOUR: But the court has drawn to your attention the issues that have been raised, and it's a discrete issue, and you should bear that in mind before you proceed any further.[69]
[69]Transcript of Proceedings, AZ v The Age (Supreme Court of Victoria, McMillan J, 26 November 2012) 517–40.

MR TOBIN: No, we're told we'll get an affidavit on 5 December. There are people who are named — — —
HER HONOUR: He will provide the affidavit in the form that is required to address your concerns.
MR TOBIN: Our concerns are to know at this time or when it is first able to be known by the defendant as to whether those documents did exist. Now, as I understand it, there are seven or eight people who are named on that email who would be in a position to inform the defendant whether the documents ever existed. The defendant says, we are looking at one source, we should be entitled to know whether they ever existed. An affidavit of documents of course should tell us whether or not they did exist. If the reliance is on Mr McKinnon only, when there are other people who are presently available, we say that when this document has come so late they should be moving quickly to rectify the situation.
HER HONOUR: Mr Rush, you understand Mr Tobin's concerns. Can you take that up with your instructing solicitors.
MR RUSH: I will, Your Honour.
MR TOBIN: I call Kate McMahon please.[105]

[105]Transcript of Proceedings, AZ v The Age (Supreme Court of Victoria, McMillan J, 22 November 2012) 445–8.

Counsel submitted that the attitude of the Court was that the affidavit would be provided on 5 December 2012 and that the Court facilitated the defendant in not discovering documents and delayed the filing of affidavits in relation to discovery until the close of the plaintiff's case. Counsel submitted that this was done in circumstances where the defendant had produced the Peer Support Workshop Document and the plaintiff then sought discovery of any further documents or an assurance from the defendant that there were no more documents. Counsel for the plaintiff contended that there was no requirement placed on the defendant to ‘get their house in order’ when the plaintiff was saying ‘we need it in order’.[106] In such circumstances, counsel contended that the Court should have required the defendant to disclose everything at ‘that stage’.[107]
[106]Transcript of Proceedings, AZ v The Age (Supreme Court of Victoria, McMillan J, 5 December 2012) 1015.
[107]Ibid.

The second relevant part of the transcript that is relevant is:

HER HONOUR: I'll withdraw the note of tender. Very well, anything else to deal with?
MR TOBIN: No, Your Honour.
MR RUSH: Can I just say Your Honour, there's — — —
MR TOBIN: There's two matters, sorry. We received the affidavit of documents today, I saw them at two minutes past 12. We wish to reserve our position in relation that the affidavit of documents is sworn by the person who swore the previous affidavit of documents.
MR RUSH: What you want me to note is the reserving of this — — —
MR TOBIN: Sorry, I'm not closing our case until we consider our position in relation — — —
HER HONOUR: Yes, well, you've made that clear earlier and you've just got it and you need time to consider it.
MR TOBIN: Yes, I just made it on the basis that we thought we were getting the affidavit next week but we did get it served before, Your Honour. That's the only matter, but Ms Knoester wishes to tender some documents which hadn't previously been tendered but should have been perhaps.[108]

[108]Transcript of Proceedings, AZ v The Age (Supreme Court of Victoria, McMillan J, 30 November 2012) 780.

Counsel contended that the Court favoured the defendant in this exchange. It was contended that I responded, by my words and my demeanour, with annoyance towards the plaintiff’s complaints about the defendant’s non-discovery and its effect on the case when I said, ‘Yes. Well, you've made that clear earlier and you've just got it and need time to consider it’. Counsel for the plaintiff contended that my response was intended to suggest, in fact, ‘what are you complaining about[?]’.[109] Counsel for the plaintiff submitted that it was not simply a question of the Court acting on the assurance of somebody undertaking as to the production of documents. Rather, what was relevant was that the defendant stated that it had no more documents and that an affidavit would be sworn on 5 December 2012, then two days later it produced more documents contrary to that undertaking.
[109]Transcript of Proceedings, AZ v The Age (Supreme Court of Victoria, McMillan J, 5 December 2012) 1015.

Discrete Comment Made as to the Plaintiff’s Evidence

The tenth matter relied upon by the plaintiff was described as my inappropriate observation in ‘raising the issue of garlic’, which the plaintiff contended was for no other purpose other than to show bias. I found this submission difficult to follow and, accordingly, shall set out the submission of counsel directly:

MR TOBIN: It starts at 831, line 25, where it's put, "The plaintiff in this case says that she felt the Employee Assistance Program, which was basically you could buy a book on eating garlic, it wasn't beneficial to her," and Mr Rush then stands, "Your Honour, just so it's understood that it's the plaintiff's assertion of what the Employee Assistance Program is," and Your Honour says, "I think you should also make it clear that it was a statement that was made last week, not any earlier."
Now, Your Honour is there making an observation — — —
HER HONOUR: Sorry, is there garlic — — —
MR TOBIN: — — — in relation to garlic, an observation of recent invention because the fact of it being observed it was only made last week, at that time, if that had have been put to the plaintiff in cross-examination to make an allegation of recent invention, it would be a matter that the plaintiff would be entitled to call evidence on but it's a matter that falls from Your Honour's lips because I then say, "Well, the only time Your Honour has heard from the plaintiff is last week." Why is the observation made?[110]

[110]Ibid.

The relevant transcript is during the cross-examination of Ms Graham by counsel for the plaintiff on 3 December 2012:

[MR TOBIN]: When you say the Employee Assistance Program was publicised, did The Age do any assessment of their Employee Assistance Program, as to the benefit that persons who attended felt from that program?———A formal assessment?
An assessment whether it's formal or otherwise to check whether these people had the appropriate training and were achieving what the program was?———I know that could very well have been done because it was discussed at senior management meetings and HR would have been managing that, not us.
The plaintiff in this case says that she felt the Employment Assistance Program which was basically to buy a book on eating garlic, wasn't beneficial for her.
MR RUSH: Your Honour, just so it's understood, that is the plaintiff's assertion of what the Employment Assistance Program is.
HER HONOUR: I think you also should make it clear that it was a statement that was made last week, not any earlier.
MR TOBIN: Sorry, Your Honour?
HER HONOUR: That that was the evidence last week when the plaintiff — her assertion about buying or eating garlic, was an assertion made by the plaintiff last week.
MR TOBIN: Yes, Your Honour, but Your Honour is not saying that that has been a first time or recent assertion is it?
HER HONOUR: That's the first time I have heard it.
MR TOBIN: Well she only gave evidence last week, Your Honour.
HER HONOUR: Yes.
MR TOBIN: It was never put to her that she never said that before and she has made statements — — —
MR RUSH: Your Honour, there was much that was not put to the plaintiff. All I am saying is that my learned friend puts it as the plaintiff's assertion in the question, it makes the question a fair question.
HER HONOUR: Yes.
MR TOBIN: The plaintiff gave evidence that the treatment in effect was not beneficial to her in 2003 and involved a reference to eating garlic. Was there anything done by The Age to assess its Employment Assistance Program and the quality of the providers?———That would have been something that would have been done through HR. The only assessment I could make on it was how the staff reacted to it and [the plaintiff] … was always very positive about it.[111]

[111]Transcript of Proceedings, AZ v The Age (Supreme Court of Victoria, McMillan J, 3 December 2012) 831–2.

Counsel for the plaintiff contended that the only inference from this exchange was that the Court considered that the plaintiff’s evidence on this point was of recent invention. This comment was made at a time when the plaintiff had closed her case and when no such allegation had been made by the defendant. Counsel contended that there was no basis for making such an allegation and, for the Court to have formed the view that this was a recent allegation, without it ever being put in any way to the plaintiff, shows that I prejudged the case with a bias against the plaintiff.

This was said to be particularly concerning when this was ‘coupled back’ with the Court continuing to say ‘the defendant is prejudiced and I will take into account that you don't cross-examine’ and the like.[112] It was contended that the Court was, in effect, saying ‘I have assumed the defendant would have asked this and the answer would have been that’ because there is no other basis for making that statement.[113] This was said to show impermissible conduct but also a bias by the Court as I was speculating as to what the evidence would have been if the question had been asked.
[112]Transcript of Proceedings, AZ v The Age (Supreme Court of Victoria, McMillan J, 5 December 2012) 1015.
[113]Ibid 1018.

Reasons for Dismissing the Application

In making this application, counsel for the plaintiff was clear that it was not suggested that any matter on its own was capable of satisfying the test for apprehended bias and that the application was put on the basis of the cumulative effect of matters.

Civil Procedure Act 2010

Before I turn to the points relied upon by counsel for the plaintiff, there are relevant provisions of the Civil Procedure Act 2010 that should be noted:

CHAPTER 2—OVERARCHING PURPOSE AND OVERARCHING OBLIGATIONS
PART 2.1—OVERARCHING PURPOSE
…
9 Court's powers to further the overarching purpose
(1)In making any order or giving any direction in a civil proceeding, a court shall further the overarching purpose by having regard to the following objects—
(a)the just determination of the civil proceeding;
(b)the public interest in the early settlement of disputes by agreement between parties;
(c)the efficient conduct of the business of the court;
(d)the efficient use of judicial and administrative resources;
(e) minimising any delay between the commencement of a civil proceeding and its listing for trial beyond that reasonably required for any interlocutory steps that are necessary for—
(i)the fair and just determination of the real issues in dispute; and
(ii)the preparation of the case for trial;

(f)the timely determination of the civil proceeding;
(g)dealing with a civil proceeding in a manner proportionate to—
(i)the complexity or importance of the issues in dispute; and
(ii)the amount in dispute.

(2)For the purposes of subsection (1), the court may have regard to the following matters—
(a)the extent to which the parties have complied with any mandatory or voluntary pre-litigation processes;
(b) the extent to which the parties have used reasonable endeavours to resolve the dispute by agreement or to limit the issues in dispute;
(c)the degree of promptness with which the parties have conducted the proceeding, including the degree to which each party has been timely in undertaking interlocutory steps in relation to the proceeding;
(d) the degree to which any lack of promptness by a party in undertaking the proceeding has arisen from circumstances beyond the control of that party;
(e)the degree to which each person to whom the overarching obligations apply has complied with the overarching obligations in relation to the proceeding;
(f)any prejudice that may be suffered by a party as a consequence of any order proposed to be made or direction proposed to be given by the court;
(g)the public importance of the issues in dispute and the desirability of a judicial determination of those issues;
(h)the extent to which the parties have had the benefit of legal advice and representation.

(3)This section does not—
(a)limit any other power of a court to make orders or give directions; or
(b)preclude the court from considering any other matters when making any order or giving any direction.

CHAPTER 4—COMMENCEMENT AND CONDUCT OF CIVIL PROCEEDINGS
…
PART 4.2—CASE MANAGEMENT
…
47Judicial powers of case management—overarching purpose and active case management
(1)Without limiting any other power of a court, for the purposes of ensuring that a civil proceeding is managed and conducted in accordance with the overarching purpose, the court may give any direction or make any order it considers appropriate, including any directions given or orders made—
(a)in the interests of the administration of justice; or
(b)in the public interest.

(2)A direction given or an order made under subsection (1) may include, but is not limited to, imposing any reasonable limits, restrictions or conditions in respect of—
(a)the management and conduct of any aspect of a civil proceeding; or
(b)the conduct of any party.

(3)Without limiting subsection (1) or (2), a court may actively case manage civil proceedings by—
(a) giving directions to ensure that the civil proceeding is conducted promptly and efficiently;
(b) identifying at an early stage the issues involved in the civil proceeding, including any issues that have not been resolved in accordance with any mandatory or voluntary pre-litigation processes;
(c) deciding the order in which the issues in dispute in the civil proceeding are to be resolved including—
(i)deciding promptly which issues need full investigation and a hearing; and
(ii)disposing summarily of other issues;

(d)encouraging the parties—
(i)to co-operate with each other in the conduct of the civil proceedings;
(ii)to settle the whole or part of the civil proceedings;
(iii)to use appropriate dispute resolution;

(e)controlling the progress of the civil proceeding, including, but not limited to—
(i)fixing timetables;
(ii)dealing with as many aspects of a civil proceeding as it can on the same occasion;
(iii)dealing with the civil proceeding without the parties needing to attend court;
(iv)making use of technology;

(f)limiting the time for the hearing or any other part of a civil proceeding, including, but not limited to—
(i) limiting the number of witnesses at the hearing;
(ii)limiting the time for the examination or cross-examination of any witness;
(iii)limiting the issues or matters that may be the subject of examination or cross-examination;

(g)considering whether the likely benefits of taking a particular step in a civil proceeding justify the cost of taking it.

48 Court's power to order and direct pre-trial procedures
(1In addition to any other power a court may have, a court may make any order or give any direction it considers appropriate to further the overarching purpose in relation to pre-trial procedures.
(2)Without limiting subsection (1), a court may give any directions or make any orders it considers appropriate with respect to—
(a)the conduct of proceedings;
(b)timetables or timelines for any matters to be dealt with, including—
(i) the conduct of any hearing; and
(ii) the time within which specified steps in a civil proceeding must be completed;

…
(e)defining issues by pleadings or otherwise, including requiring parties or their legal practitioners to exchange memoranda, or take other steps to clarify questions;
…
(g)any other matter specified in rules of court.

49Court's power to order and direct trial procedures and conduct of hearing
(1)In addition to any other power a court may have, a court may give any direction or make any order it considers appropriate to further the overarching purpose in relation to the conduct of the hearing in a civil proceeding.
(2)A direction or an order under subsection (1) may be given or made by the court at any time—
(a)before a hearing commences; or
(b)during a hearing.

(3)Without limiting subsection (1), a court may give any direction or make any order it considers appropriate with respect to—
(a)the order in which evidence is to be given and addresses made;
(b)the order in which questions of fact are to be tried; (c) limiting the time to be taken by a trial, including the time a party may take to present the party's case;
(d)witnesses, including—
(i) limiting the time to be taken in examining, cross-examining or re-examining witnesses;
(ii) not allowing cross-examination of particular witnesses;
(iii) limiting the number of witnesses that a party may call;

(e) limiting the issues or matters that may be the subject of examination or cross-examination;
(f) limiting the length or duration of written and oral submissions;
(g) limiting the numbers of documents to be prepared or that a party may tender in evidence;
(h) the preparation by the parties of an agreed bundle of documents for use in the proceeding or a schedule summarising business records or other documents;
(i) the place, time and mode of trial;

(j) evidence, including, but not limited to whether evidence in chief should be given orally, by affidavit or by witness statement;
(k) costs, including the proportions in which the parties are to bear any costs;
(l) any other matter specified in rules of court.

The Ten Points

After considering the matters relied upon, I consider that the plaintiff has not satisfied the apprehended bias test on the basis of the cumulative effect of those matters.

As the transcript illustrates, there is no substance in the plaintiff’s first point relating to the discharging of witnesses at the conclusion of their evidence.

As for the second point, the request for a witness timetable was made to both parties and is not, in my view, an unusual requirement in the context of a long case with many witnesses being called. The Court’s additional request that the plaintiff provide an outline of witnesses was suggested as a solution to the signalling, on behalf of senior counsel for the plaintiff, that he did not wish to name some of the witnesses in advance of the case. In my view, the independent observer, having an understanding of the Court’s case‑management role in modern litigation, and not being unduly sensitive or suspicious, would not place any weight on such a direction. The independent observer would also be taken to understand that the length of the written submissions were determined by their authors, not by the Court. The Court’s directions were part and parcel of pre-trial case management pursuant to s 48 of the Civil Procedure Act 2010.

As for the third point, I do not consider that an independent observer would necessarily expect that the Court, rather than counsel leading evidence, would initiate a response to witnesses who appear distressed. The Court’s role is to observe and consider the evidence presented by the parties. Of course, there will be times when a Court will intervene, but not as part of a judicial function. The other matters relied upon by counsel for the plaintiff under the third point concern whether or not I paid attention during the evidence led by counsel for the plaintiff:

(a)in support of this submission, counsel for the plaintiff relied upon the Court’s questions and directions made during the evidence of Mr Place, Dr Pirotta and Professor Greenberg as evidencing a lack of interest on the part of the Court. I consider that the limited questions asked by me to Dr Pirotta and Professor Greenberg would not signal a lack of interest in their evidence to the independent observer. In relation to the evidence of Mr Place, in my view, to ask the witness to focus on the question in this context is proper and could not be said to give rise to a concern by an independent observer that I was not paying attention. This is particularly so when the independent observer would know that the witness had a habit of giving extremely long and discursive answers to questions. An example from Mr Place’s evidence is as follows:
[MS KNOESTER]: What was the particular motivation — well, firstly, what did that thesis address, what issues?———The thesis addressed the question of whether journalists should get psychological debriefing after covering trauma.
What was the particular reason by which you chose that topic?———Well, I'd been recently disturbed by my time at police rounds, to the extent that there was one particular day where I was at a — what turned out to be a murder/suicide. Most murders are murder/suicides that you cover as a journalist, so it was sort of — and I was doing the 2.00 a.m. until 10.00 a.m. graveyard shift, as it was known, which is pretty much murders, fatal car accidents and the occasional fight. So we got a call at about sort of 2.30 or 3.00 a.m. or we heard on the radio that there was a Code 33, which is a body in a house, so off we went. I think out to Springvale. And it's sort of — I was probably 21 years old at the time, maybe 20 years old. I'd been a journalist — an active journalist after my copy boy year for a couple of years. And anyway, I was there basically on the police tape talking to a young constable who was just guarding the tape and by then — the cops are pretty good. They sort of know which journalists they can trust and which ones they can't and I think I had a decent reputation, so they sort of walked over and said, "Look, it's a murder/suicide and we think a kid's kind of basically killed his mate and then killed himself but we can't tell you that officially." The police are really good. They do everything properly but forensics have to go in. They sort of can look at a scene and go, "Here's what we think happened," but then they triple check, which is kind of good to know. But it means that you stand around on the tape for a long time waiting for that to happen, before they can officially give you the story. And this was on a Friday night/Saturday morning, so it would have been about 3.00 or 4.00 a.m. on a Saturday morning and I was kind of, you know, really — it sort of dragged on until about 6.00 a.m. or you know, 6.30 and I was getting kind of toey because I was going surfing with some friends that day and I really wanted to kind of basically file the story for The Saturday Herald so I could jump in my car and go and get down the beach and while that was happening, a car pulled up at the tape and the cop who I was talking to about whatever went down said — told this car to move along and this woman said, "But that's my house. What's going on?" and sort of got dragged out of her car with dawning realisation something was horribly, horribly wrong and got taken into a neighbour's house and that really affected me. I mean, here I was 20 or 21 years old, already callously just thinking I was going to get this story out of the way so I could go surfing and I kind of watched this woman's entire world dissolve. And that — you know, that bothered me. It bothered me a lot and that was pretty much the genesis of the thesis. I was going to write a thesis about the death of The Saturday Herald a few years later because I was involved in that, which would have been really easy, but then I thought about this topic and I thought it's just — you know, all these cadets have been put out into this situation and no one ever asked this question, so I sort of just felt like I had a really strong — a really strong thesis, and it turned out that way.[114]

Consistent with the relevant provisions of the Civil Procedure Act 2010, a witness who demonstrates a habit of giving extremely long answers to questions can quite properly, and should be, directed to answering the question. This is part and parcel of trial management;
(b)otherwise, I add this observation. Judges are human — each may display his or her own personal traits (good or bad) at times in Court. The fundamental question however is whether an independent, well-informed observer would conclude that such traits, if displayed in Court, mean that a fair trial is denied to a party. The fair-minded observer would, undoubtedly, understand that many aspects of human behaviour are not confined to the body of the Court, the jury box or the bar table and that a moment’s inattention or distraction in the course of a hard fought, long trial does not mean that a judge is not following or comprehending the evidence given by a particular witness.

[114]Transcript of Proceedings, AZ v The Age (Supreme Court of Victoria, McMillan J, 26 November 2012) 582–4.

The plaintiff placed considerable emphasis on the fourth point relating to the plaintiff’s evidence and state of health. For the following reasons, I do not consider that the matters relied upon support the existence of apprehended bias:

(a)counsel for the plaintiff accepted that the Court’s comments relating to video evidence would not be an issue if the Court was simply indicating that the best evidence was viva voce evidence. Counsel submitted, however, that the way in which such comments were expressed indicated that this course was being undertaken tactically or otherwise improperly. In my view, the independent observer with a knowledge of court room procedure would see nothing out of the ordinary in remarks by a trial judge that it is preferable to hear the principal witness in person because of matters of memory, presentation and in relation to reliability and recall. The questions of demeanour can be significant, particularly in a claim based on a psychological impairment. Self-evidently it is preferable to see and hear the witness ‘in the flesh’. The Court’s views as expressed do no more than indicate that preference, while accepting that on occasions that this may not be possible. The transcript clearly discloses that I was open to the suggestion that the plaintiff give her evidence by video link;
(b)the Court’s indication on 27 November 2012 that ‘the difficulty with an affidavit is it’s an unsatisfactory way of getting the evidence … when it’s been prepared by someone else’, was made prior to the plaintiff giving evidence and counsel accepted that the affidavit would be expanded upon in viva voce evidence. I consider that the independent observer would not take this comment to be a criticism of the plaintiff or a prejudgment of her evidence, but again, an expression of a preference as to the manner of giving evidence. As observed by Callinan J in Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd, it is recognised that with written statements:
It is … impossible to avoid the suspicion that statements on all sides are frequently the product of much refinement and polishing in the offices and chambers of the lawyers representing the parties, rather than of the unassisted recollection and expression of them and their witnesses. This goes some way to explaining the quite stilted and artificial language in which some of the evidence is expressed in writing from time to time, as it was here. Viva voce evidence retains a spontaneity and genuineness often lacking in pre-prepared written material.[115]

(c)further, in my view, an independent observer would appreciate that the evidence of Dr Pirotta gave rise to a potential conflict between the plaintiff and litigation guardian. There is no force in counsel for the plaintiff’s submission in those circumstances that there was ‘absolutely no evidence of differing instructions’.[116] In my view, the transcript indicates that the Court approached the issue of conflict by expressing a concern for the welfare of the plaintiff and whether her reluctance to proceed with the case had been taken on board by the litigation guardian and her legal advisers. In the context of the exchange that occurred, I consider that an independent observer would understand that the Court might hold legitimate concerns for the welfare of the plaintiff and the proper administration of justice, and that those concerns might not have been readily allayed by counsel for the plaintiff;
(d)counsel for the plaintiff also submitted that the Court continually looked at the case from the defendant’s perspective after counsel for the defendant indicated that the defendant was put in a position of stress by the limitations on the plaintiff’s oral evidence. In particular, counsel referred to the Court’s comments that the defendant would not concede issues and should not be restricted in the way that it ran its case. I consider that those comments, viewed in context, would not suggest to the independent observer that the Court adopted the view of one party, but rather that the Court was simply grappling with the issue before it, being that the plaintiff would likely be extremely distressed if a thorough cross-examination was undertaken by counsel for the defendant and that, if the plaintiff could not give evidence, this would raise an issue as to the evidentiary basis for her claim. I do not accept counsel for the plaintiff’s characterisation of this exchange as indicating that the Court was applying an incorrect test in considering the evidence given by a vulnerable witness or that the Court was indicating prejudgment of the case. Rather the Court simply made it clear that it would be deciding the case ‘on the facts’, with the caveat of ensuring a fair trial for both parties;[117]
(e)finally, the Court’s preference that only Dr Pirotta be present while the plaintiff gave evidence was expressed as being subject to counsel’s submissions. In my view, this exchange is no more than an exercise by the Court of its administrative and case management functions. Nothing was said by counsel for the plaintiff on this issue. In my view, this could not be considered by the independent lay observer to be some form of prejudgment in relation to the litigation guardian.

[115]Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577, 634–5.

[116]Transcript of Proceedings, AZ v The Age (Supreme Court of Victoria, McMillan J, 4 December 2012) 965.

[117]Transcript of Proceedings, AZ v The Age (Supreme Court of Victoria, McMillan J, 26 November 2012) 517–40.

As for the fifth point, in my view, the independent observer, hearing the whole of the exchange during opening submissions would not perceive that the Court had prejudged the outcome by reason of the questions asked and comments made. Rather, in my view, the observer, who is taken to have some experience of court room procedure, would be aware that, during the opening of a case, judges regularly, frequently and as a matter of habit ask counsel for explanation, or question counsel on particular issues. The independent observer would appreciate the exchange was part of ‘the dialogue between Bench and Bar which is so helpful in the identification of real issues and real problems in a particular case’.[118]
[118]Vakauta v Kelly (1989) 167 CLR 568, 571 (Brennan, Deane, Gaudron JJ).

Similarly, in relation to the sixth point, I do not accept counsel for the plaintiff’s characterisation of the exchange between the bench and bar during the hearing of the plaintiff’s application to strike out the defence. In my view, the transcript indicates that the Court asked counsel for the plaintiff questions relating to the defendant’s awareness of the Peer Support Workshop Document, and such questions took place as part of a commonplace dialogue between the bench and the bar. It was only during the submissions by counsel for the defendant that the Court was informed that the defendant could not contest its awareness of or the admissibility of the Peer Support Workshop Document. Counsel for the defendant did, however, press that the failure to provide the document was not a deliberate oversight and that the Court should not accept the presumption of ‘awareness’ as submitted by the plaintiff. During the course of the ruling, the Court dealt with the submissions of both parties as to knowledge of the document; rejected the plaintiff’s submissions on that point; and noted that the defendant did not argue awareness. I consider that the independent observer would not find a cause for concern in relation to this point. The other matter relied on in respect to the sixth point is my statement that ‘I get sick of hearing about the model litigant’.[119] I qualified this initial statement after the luncheon adjournment, when I said ‘I don’t think that I’m sick of hearing about it. I’m aware of it … and all litigants are required to act in a certain way. But it does seem to be a rhetorical submission made on many occasions’.[120] The independent observer is taken to know that from time to time judges do become testy, impatient or exasperated and that a judge may say something slightly intemperate but understandable. Indeed, there is a point where a judge needs to be direct — particularly in the face of repetitive submissions on a point that is well understood. In my view, this statement could not be considered by an independent observer to construe any form of prejudgment in relation to the plaintiff.
[119]Transcript of Proceedings, AZ v The Age (Supreme Court of Victoria, McMillan J, 20 November 2012) 130, 193.
[120]Ibid.

The submissions as to time allowances, the seventh point, also carry little weight. I consider that the independent observer would appreciate that the question of time allowances is a matter of case management and dependent on the circumstances at the time of the application. The circumstances in which each request for time was made were qualitatively different, such that I do not consider that the Court’s allowance of time twice when requested by the defendant, and refusal to grant time to the plaintiff on one occasion, would indicate to the independent observer a bias against the plaintiff, as submitted by the plaintiff’s counsel.

In respect of matters referred to under the eighth point relating to the objections and narrowing of evidence, in my view, these matters are not properly matters that should be put as part of the application for apprehended bias. No submission was made by counsel for the plaintiff as to why it was proper to put them as part of the application. These matters should be dealt with, as counsel for the plaintiff submitted, ‘in another place’.[121]
[121]Transcript of Proceedings, AZ v The Age (Supreme Court of Victoria, McMillan J, 4 December 2012) 993.

As to the ninth point, I consider that an independent observer would not view the Court’s response to the parties’ positions relating to the affidavit of discovery as favouring or displaying bias towards the defendant. Issues of discovery occur from time to time during the running of trials and are often dealt with by way of an undertaking being given by counsel. In my view, an objective observer would understand that the way in which this issue was handled was a matter of case management. At the end of the first exchange, on 22 November 2012, the Court requested that counsel for the defendant take up with their instructing solicitors counsel for the plaintiff’s concerns in relation to the provision of an affidavit of documents. I consider that an independent observer would not view the course adopted by the Court on this occasion as facilitating non-discovery on the part of the defendant. In the second, short exchange, counsel suggested that I showed annoyance in words and demeanour when I said ‘Yes. Well you’ve made that clear earlier and you’ve just got it and need more time to consider it’.[122] I do not consider that this response would necessarily be interpreted by an independent observer as signalling an impatience, but if it did, that this impatience would show prejudgment.
[122]Transcript of Proceedings, AZ v The Age (Supreme Court of Victoria, McMillan J, 30 November 2012) 780.

The plaintiff’s tenth point relates to the comments made by the Court in respect to the plaintiff’s evidence about ‘garlic’. The Court’s comments were made at a time when counsel for the plaintiff was cross-examining Ms Graham on the efforts made by the defendant in the past to elicit the views of their staff as to the Employee Assistance Program. In this context, I do not accept counsel for the plaintiff’s proposition that there was only one conclusion open to an independent observer in respect of the Court’s direction, being that the Court had prejudged the plaintiff’s evidence on ‘garlic’ to be of recent invention. In my view, an independent observer would not readily draw this inference. In any case, the independent observer would appreciate that this intervention allowed counsel for the plaintiff an opportunity to deal with the Court’s tentative view before proceeding.

Conclusion

For all of the above reasons, on 6 December 2012, I dismissed the plaintiff’s application that I excuse myself from further hearing the proceeding on the ground of apprehended bias.

----

[2013] VSC 436

12 September 2013