Hunt v Radio 2SM Pty Ltd (No. 3)

[2010] NSWDC 57

CITATION:	Hunt v Radio 2SM Pty Ltd (No. 3) [2010] NSWDC 57
HEARING DATE(S):	6, 7 and 8 April 2010
JUDGMENT DATE:	21 April 2010
JURISDICTION:	Civil
JUDGMENT OF:	Gibson DCJ
DECISION:	(1) Defendant’s application for Gibson DCJ to disqualify herself dismissed.
CATCHWORDS:	PRACTICE AND PROCEDURE - application to trial judge for disqualification on the basis of apprehended bias
LEGISLATION CITED:	Civil Procedure Act 2005 (NSW), ss 56, 60 and 62 Defamation Act 2005 (NSW), ss 18 and 48
CASES CITED:	ASIC v Rich [2009] NSWSC 1229; 75 ACSR 1 Avenhouse v The Council of the Shire of Hornsby (Supreme Court of NSW, Spender AJ, 27 June 1995) Bagshaw v R [2009] NSWCCA 32 Barron v Attorney-General for NSW [1987] 10 NSWLR 215 Bourne v Bourne [2008] FamCA 799 Browne v Dunn (1829) 3 Sim 23; (1829) 57 ER 909 Budd v Kambah Tea Tree Plantations Pty Ltd [2001] NSWCA 180 Cassegrain v Commonwealth Development Bank of Australia Ltd [2003] NSWCA 260 Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; (2006) 231 ALR 663; (2006) 81 ALJR 352; (2006) 70 IPR 468; (2007) AIPC 92-241; [2006] HCA 55 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 GPI Leisure Corp Ltd v Herdsman Investments Pty Ltd (No 3) (1990) 20 NSWLR 15 Hunt v Radio 2SM Pty Ltd (No. 2) [2010] NSWDC 43 Idoport Pty Ltd & Anor v National Australia Bank [2001] NSWSC 868 Ivory v Telstra Corporation Ltd [2002] QCA 457 J&M (No 2) [2004] FMCA 652 Johnson v Johnson (2000) 201 CLR 488 JRL, Re; Ex parte CJL (1986) 161 CLR 342; (1986) 66 ALR 239; (1986) 10 ALN N184; (1986) 10 Fam LR 917; (1986) FLC 91-738; [1986] HCA 39 Kam v MJR 24 Fam L R 656 Kettle v Baker [2009] FamCAFC 113, 41 Fam L R 437 Kranz v R (1991) 53 A Crim R 331 Ley v R De W Kennedy (Finance) Pty Ltd (Court of Appeal, Mahoney JA, 21 May 1975, unreported) Long v Tranh [2008] FamCA 730 McCrohon & Bergseng v T J McGrath (Supreme Court of NSW, Bryson J, 25 February 1994) R v Commonwealth Conciliation & Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546; [1969] ALR 504 R v Fitzgerald (Queensland Court of Appeal, 17 December 1996) R v Lusink; Ex parte Shaw (1980) 32 ALR 47; (1980) 55 ALJR 12; (1980) 6 Fam LR 230; (1980) FLC 90-884 Raybos Australia Pty Ltd & Anor v Scitec Corporation Pty Ltd Seven Network v News [2007] FCA 1062 Vakauta v Kelly (1989) 167 CLR 568 Victoria Anderson v National Australia Bank [2007] VSCA 172 Wakely v R (1990) 64 ALJR 321 Watson, Re; Ex parte Armstrong (1976) 136 CLR 248; (1976) 9 ALR 551; (1976) 50 ALJR 778; (1976) 1 Fam LR 11,297; (1976) FLC 90-059 Westpac Banking Corp v Perkins (1999) FCA 986 Zhang v Blinds Pty Ltd t/as Blinds by Peter Myer [2008] NSWADTAP 24
TEXTS CITED:	Victorian Supreme Court, Practice Note 4 of 2004
PARTIES:	Plaintiff: Robert Christopher Hunt Defendant: Radio 2SM Pty Ltd
FILE NUMBER(S):	3018 of 2009
COUNSEL:	Plaintiff: Mr C A Evatt / Mr C J Dibb Defendant: Mr A T S Dawson
SOLICITORS:	Plaintiff: W D Hunt & Associates Defendant: Banki Haddock Fiora

Judgment

[1] These are my reasons for my refusal to disqualify myself as the judge presiding over a jury trial. It is made on the third day of a defamation jury trial which was set down for hearing to commence on Tuesday 6 April 2010.

[2] The relevant background facts are as follows. The plaintiff commenced proceedings concerning two publications. The first is a radio broadcast, over a half hour period, on Radio Station 2SM on 30 June 2009. The plaintiff sought a copy of the tape from Media Monitors and received an MP3 file containing only the first section of the broadcast. The plaintiff gave evidence he was obliged by the code of conduct to send this to the Mayor and Councillors, and this compelled self-publication is the second cause of action.

[3] The radio broadcast (which was transmitted over 21 relay stations in New South Wales and Queensland) consists of conversations between the radio compere and three callers, “Les”, “Paul” and “Colin”, but the MP3 file (the basis of the second publication) only contains the extract for the caller “Les”.

[4] Although the first of the three speakers only identified himself in the first publication, on the radio, as “Les”, the plaintiff recognised the voice as that of a Mr Les Lobsey. Mr Lobsey had a prior history of difficulties with the council. In the course of his dealings with council he had threatened to sue the council, sack certain officials (including the plaintiff) and, in conjunction with a Mr Woodforth, to shoot them (Exhibit 1).

[5] The nature of the defence of offer of amends puts it into a very special category amongst defamation defences. Firstly, the impact of the offer of amends would be undone unless the court allocates the earliest trial date it can. Secondly, the issues are limited to defamatory meaning and such issues of fact as are in dispute consistent with s 18 of the Defamation Act 2005 (NSW), as opposed to the often complex issues which arise in actions where qualified privilege, comment or truth are pleaded.

[6] In this case, issues of costs and the form of the apology are not in dispute; the question is whether the offer to make amends was made at the first opportunity and should have been made to the recipients of the second publication (the Councillors), and whether the offer of $15,000 (for both publications) was reasonable.

[7] When the matter was set down, the parties told me that an estimate of time similar to a s 7A jury trial (two days) was appropriate. To err on the side of caution, I listed the matter for four days. In addition, to ensure all interlocutory matters were dealt with, I listed all foreshadowed interlocutory matters for argument and handed down judgment on the three which remained in dispute: Hunt v Radio 2SM Pty Ltd (No. 2) [2010] NSWDC 43.

The trial commences

[8] The defendant, who did not comply with consent orders to exchange lists of questions for the jury, brought a series of applications on the morning of the trial. Jury empanelment did not commence until just before midday. After jury selection, Mr Evatt commenced his opening (for 15 minutes), until the lunch adjournment. He continued after lunch and the plaintiff was called at 3.09 pm. The plaintiff’s evidence in chief continued until 4 pm. The following day three “reputation” witnesses from Quirindi were interposed, and their evidence lasted until 2.20 pm. Reputation witnesses traditionally give evidence about prior good reputation and the impact of the publication on the plaintiff’s reputation. In the case of the Mayor, his evidence was also that he received the second matter complained of (the self-publication) and forwarded it to the Independent Commission Against Corruption (ICAC); his cross-examination by counsel for the defendant occupied most of this time.

[9] The plaintiff was recalled in the afternoon of the second day. Examination-in-chief continued from 2.20 pm until 3.43 pm (according to Mr Dawson) and the court sat for some extra time that afternoon.

[10] The following day (i.e. Day 3) Mr Dawson said:

“DAWSON: Your Honour could I say in relation to timetabling, I’ve had a think about this overnight and I thought I should raise it this morning. I would hope not to be all day with the plaintiff in cross-examination, but whatever happens I would have thought that we could expect the evidence - unless my friend has any more witnesses and I don’t think he does other than--

EVATT: I’ve got Mrs Hunt.

HER HONOUR: He’s got Mrs Hunt.

EVATT: But she will be very short.

DAWSON: I don’t know whether there’s going to be any need to call Mrs Hunt in light of a matter that I can raise with your Honour this morning about figures, et cetera.

HER HONOUR: I think she’s still going to have to give evidence about hurt feelings.

DAWSON: Well if she’s been called on that issue then that obviously won’t take long and my friend will probably want to call her. But I would have thought that if that’s the only other witness, even if I call some witnesses, I wouldn’t have thought the evidence will go past today, or if it does it will only go very shortly into the morning.

HER HONOUR: You know what that means? It means sending the jury out. If I have addresses tomorrow it means sending the jury out on a Friday or a Friday afternoon, which is very undesirable.

DAWSON: That’s why I thought I should raise it your Honour. I think - it’s obvious to my gross disadvantage, but it’s nothing we can do anything about. If that happens and I begin addressing, say tomorrow, I would hope to finish well within the day, and my friend would then follow.

EVATT: I can’t be here Monday or Tuesday.

HER HONOUR: That’s the problem you see.

EVATT: You’ll have to split the time.

HER HONOUR: I’m very sorry. The way I timetabled this case I’m very conscious of the fact that - and the essence of an offer of amends, would have to be that the case gets on as quickly as the court possibly can, and that’s why I especially put it down for this week, hoping that I could finish it in the time. And that’s the reason for my anxiety because - the defendants chance of relying on this defence would be destroyed if the court couldn’t get the case on quickly. It’s got to be the essence. Otherwise the plaintiff says, “And in addition I had the two year court wait.” See what I mean? And I don’t want any defendant to be in that very difficult position.

…

HER HONOUR: Mr Dawson if you have a look in the transcript you will see the very real problem is that I have a part heard matter on Monday and Tuesday …

DAWSON: And I understand that your Honour and I have my own difficulties next week. But the difficulty is your Honour that when a matter is set down for example in the Supreme Court in the Common Law Division, Justice Simpson makes painfully clear to the parties at the beginning of the case when availability and length of time is discussed, she says:


“I will be sitting on this case until it ends and I’m not going to interrupt it, particularly where there’s a jury involved, and if it takes longer, it takes longer and that’s the way it is.”


Justice Studdert used to say the same thing and indeed a three week 7A trial which went well beyond expectations simply had to keep going and all of this had to just throw briefs both sides of the bar table.

HER HONOUR: Mr Dawson different courts have different rules.

DAWSON: I understand that.

HER HONOUR: This court is a circuit court, judges in this court have to travel all over New South Wales in a circuit, something that Supreme Court judges very rarely do.

DAWSON: I understand that.”

[11] The discussion concluded:

“DAWSON: And if the evidence can finish today then it may be that we can both address tomorrow, your Honour can sum up in perhaps a briefer form.

HER HONOUR: If I can sum up - if you can address briefly then I can say you’ve heard from counsel.” (p. 220 – 4)

[12] Mr Dawson’s cross-examination of the plaintiff commenced on 7 April at 3.40 pm and went until 4 pm the following day. Objection was taken concerning relevance and Mr Evatt complained on a number of occasions (T 242 and 324), saying on one occasion:

“EVATT: This cross-examination is designed to delay this trial, he agreed to three or four days and he’s doing everything he can to make sure it goes longer. I can’t be here on Monday, I’ve got Checkwin(?) and Armidale Council in the Supreme Court, Mr Dibb has got something, he knows that. I’m going to ask your Honour to prohibit any further cross-examination on exhibit 1 or otherwise discharge this jury and the case can go before your Honour alone without a jury. Your Honour has got the power to do that.

HER HONOUR: Yes, what do you say to that Mr Dawson?

DAWSON: Well your Honour my friend predicates that his attack and the remarks he makes about me deliberately trying improperly--

EVATT: That’s what you did.

DAWSON: --to extend the length of this trial, he predicates all of that on the basis that the cross-examination is irrelevant, I’ve dealt with that issue.” (p. 242)

[13] Mr Dawson said he was entitled to ask these questions (T 243 line 2), and that it was unfair to put any limitation or restriction (T 243 lines 17 – 18, lines 23 – 4).

[14] Mr Evatt continued to object and at T 260-261, in the absence of the plaintiff and of the jury, asked how much longer Mr Dawson would be with the plaintiff, to which he said:

“I can't responsibly give your Honour an estimate.”

[15] The following discussion of time length then occurred:

“HER HONOUR: Mr Dawson, I need to know where we’re going. If you can't put an estimate on your cross-examination time to assist me in case of a management of a trial where time is short, what I’m going to do, I’m going to indicate to you that I really need you to be finished to by 1 o'clock.

DAWSON: Your Honour, I was proposing to finish by one.

HER HONOUR: Well, that's excellent.” (T 260 – 1).

[16] I had previously told the jury I was concerned the case could go into next week, When the jury returned I told them:

“HER HONOUR: Members of the jury I can tell you that we hope that the plaintiff’s cross-examination will be finished by 1 o’clock and that will mean that you’ll be having another witness, Mrs Hunt, at 2 o’clock or thereabouts and after that we’ll what’s going to happen but we think we’re going to move along in that way. I’m just telling you to give you some idea of the evidence you’re going to be hearing. So you’ll be hearing the plaintiff being cross-examined up until 1 o’clock and then I anticipate that some time shortly after 2 o’clock Mrs Hunt will give evidence. What’s your next question Mr Dawson?

DAWSON: Can I ask your Honour, does your Honour intend to tell the jury about the direction that your Honour has made?

HER HONOUR: Mr Dawson, what it is, is that I have made that direction, after consultation with the parties Mr Dawson interrupted to me that but for interruptions he thought he would have finished by 1 o’clock in any event, so I’ve told him that I’m going to hold him to 1 o’clock as being the time that he should finish, notwithstanding the fact that he’s had some interruptions and I’m hoping that that will be the case.” (T 268)

[17] There is a transcript error here; it should read “Mr Dawson indicated to me”, not “interrupted”.

[18] The cross-examination was still continuing at 1.00pm and I sat through the lunch hour to rule on admissibility of solicitors’ correspondence about the offers. Mr Dawson told me he thought that he would be less than an hour that afternoon cross-examining the plaintiff on this bundle (T 315). Given the fact that he had previously told me that he could, but for Mr Evatt’s objections, have finished the cross-examination before 1 pm, I told him that he could have 15 minutes on this issue.

[19] Mr Dawson said he needed to put other matters “to be fair” to the plaintiff. I suggested that if he raised any Browne v Dunn (1829) 3 Sim 23; (1829) 57 ER 909 matters with Mr Evatt during the lunch adjournment, it may not be necessary to put questions to the plaintiff.

[20] Mr Dawson submitted that no delay in the case had been his fault. He attributed any delay to Mr Evatt:

“My friend was a day of time with the plaintiff in chief. He told me he’d be 90 minutes. He went for a day” (T 314).

[21] Mr Dawson said Mr Evatt had caused delay by objections to his questions:

“DAWSON: If your Honour is going to impose a very drastic time limitation on my cross-examination of the plaintiff, the man who brings the case, my client will not get a fair go in this case. I make that submission very, very seriously.” (T 315)

[22] Before rising for the lunch adjournment I said:

“HER HONOUR: Mr Dawson I gave you until 1 o’clock. I’m giving you an extension to make sure that over the next 25 minutes you can sort out all the residual matters you should raise. If at 2.15 there are some additional residual matters you think you can sort out in five to 10 minutes you can tell me. But I can tell you me [sic] but I can tell you that you are going to be sitting down and you we’re going to be calling Mrs Hunt some time between 2.15 and 2.30.”

[23] In asking Mr Dawson for an estimate, I had in mind the provisions of s 62 Civil Procedure Act 2005 (NSW) and was following the procedure in Cassegrain v Commonwealth Development Bank of Australia Ltd [2003] NSWCA 260, where the trial judge asked counsel for a “current estimate” of the cross-examination. When counsel said it would be an hour, the trial judge said he would accept this, and give counsel that long. If it became necessary to cross-examine after that time, counsel could ask to extend the period.

[24] The Court of Appeal in Cassegrain v Commonwealth Development Bank of Australia Ltd considered (at [47]) that it was “not correct” to consider this a time limit. The trial judge was “trying to ensure that witnesses were not unnecessarily inconvenienced and that the trial was not unnecessarily delayed”, and it was “both appropriate and desirable” that this should occur (at [50]).

[25] Time limits on cross-examination have, in the intervening seven years since this judgment, become a common feature of civil and criminal jury trials, by reason of the greater emphasis on the administration of justice being “just, cheap and quick” (s 56 Civil Procedure Act 2005 (NSW)), and I have discussed this in more detail later in these reasons.

[26] Mr Dawson again raised his concerns about being asked to conclude his cross-examination in 15 minutes after lunch:

“HER HONOUR: Mr Dawson you assured me this morning that but for interruptions you could have finished at 1 o’clock.

EVATT: Yes.

DAWSON: No I did not say that your Honour. I said I had intended discounting interruptions to finish by 1 o’clock. That was my expectation and my plan.

HER HONOUR: Well I’m giving you an extension. But Mr Evatt and Mr Dawson you should both of you note that the days when counsel could cross-examine up hill and down dale in circumstances where you get this kind of delay are just not there anymore.

DAWSON: But your Honour I have not been cross-examining for all that long. It’s an important case both to the plaintiff and the defendant. The issues arising from exhibit 5 and under section 18 of the Act are issues which go to the heart of this defence. I should not be time restricted to 15 minutes and deal with what is the most crucial issue in the case your Honour.”

[27] When the matter resumed at 2 pm Mr Dawson brought an application that I should disqualify myself for apprehended bias. The basis upon which the application was brought was as follows:

(a) I imposed restrictions upon his cross-examination of the plaintiff although I had not imposed any restrictions on Mr Evatt at all in his examination in chief. Mr Dawson submitted that Mr Evatt went for an “extraordinary” amount of time in chief, despite his estimate of 90 minutes:


“Every criticism about this case running over has been directed at me, and not a single matter has been directed at Mr Evatt. This is despite the fact that he took an extraordinary amount of time for evidence-in-chief, which he predicted would last 90 minutes” (T 326).


Mr Evatt commenced his examination in chief of the plaintiff at 3.09 pm on 6 April, and went to just before 4 pm. The examination in chief continued the following day from 2.20 pm (other witnesses having been interposed). Mr Dawson said he commenced cross-examination at 3.43 pm. We sat some time after 4 pm for both the cross-examination and legal argument. The cross-examination continued the next day until 1 pm. I note the intervening cross-examination by Mr Dawson of the Mayor had taken almost half a day.

This is the principal basis for this application and it is discussed in more detail further in this judgment. I shall first note the other grounds for complaint of apprehended bias.

(b) When I asked Mr Dawson how long this application for me to disqualify myself would take (which I said I viewed seriously, and would be prepared to allow some hours for), because I would have to tell the jury when they would be likely to be called back in, Mr Dawson said he relied upon my references to the time as another matter in support of his application (T 323). Mr Dawson said he would not like to have any restrictions whatever put on his time (T 324).

The listener sitting in the back of the court would regard it as important for the jury to have some idea of when they would be called back in, and would not regard an inquiry of this kind from a trial judge wanting to pass on such information as further proof of apprehended bias.

(c) As examples of my preparedness to help Mr Evatt, Mr Dawson complained that I asked (T 84) if Mr Evatt needed time to do something, and had offered to leave the bench for a short time. In addition, when Mr Evatt made a remark to the effect that the chief executive of Radio 2SM was a “welsher”:


“… when I complained about, instead of putting Mr Evatt in his place , sought to put me into a corner and said, “Did I submit that Mr Evatt should be reported to the Bar Association?” The proper response, with respect, would have been to say to Mr Evatt that it was not appropriate for him to make that sort of remark from the bar table at the beginning of a case where there were, as your Honour knows, and as my friend well knew at the time, journalists in court …” (T 328, emphasis added).


Mr Dawson repeated the submission that I should have “put Mr Evatt back in his place” (see T-327 and 328) rather than inquire if Mr Dawson wanted me to refer the matter to the Bar Association.

I had no way of knowing (nor would the listener at the back of the Court) if this was a joking remark between counsel or a serious breach of ethics. It is not appropriate for a trial judge to put any barrister “in his place” at any time. If Mr Evatt’s remarks were improper, then the appropriate forum for dealing with such remarks is the Bar Association, not a trial judge who is about to start a jury trial. The listener at the back of the court would be concerned about the fairness of a trial judge who embarked upon the process of disciplining counsel, especially upon such slender information, and without further inquiry. I note similar concerns by the Queensland Court of Appeal in Ivory v Telstra Corporation Ltd [2002] QCA 457 at [61] where the appellant complained of bias where the trial judge had not “dressed down” the first respondent for its failure to comply with certain orders. The role of the trial judge is to get on with the hearing.

As for asking Mr Evatt if he needed more time, he is nearly 80 years old and very unsteady on his feet. The listener at the back of the court would expect a trial judge to show courtesy to anyone in court in such a position.

(d) On the first day of the trial the defendant brought an application that the plaintiff should not play the tape of the matter complained of, but the whole programme, including programme breaks and advertisements. The plaintiff submitted that the matters complained of should have been played, not the advertisements or other material in between. I observed that such an application should have been amongst the interlocutory applications the parties made before the trial. The defendant resiled from requiring the plaintiff to play the whole tape (which I understood went for about an hour, and for the rest of which there was no transcript), but Mr Dawson said he would do so in his own case. Mr Dawson complained that I “criticised him roundly” for not raising the matter before the trial when in fact it was not an interlocutory matter at all. (T 328), and that to a bystander at the back of the room this would amount to evidence of apprehended bias.

This was one of a number of interlocutory matters which resulted in two hours of argument before the jury empanelment commenced. It was a matter which could have, and, in my view as trial judge, should have, been sorted out between the parties prior to the hearing. The listener sitting at the back of the court would expect that when a case is called on, the parties are ready to start and that jurors are not kept waiting to be empanelled, particularly in circumstances where the listener would have observed messages from the sheriff’s office in the adjoining building being relayed to me in court about what was happening, whether they could send the panel to morning tea or not, whether empanelment would start that day or whether they should send the jury panel home.

The listener at the back of the court would also have some understanding of how the jury panel members would feel while waiting to be called on. He or she would understand a trial judge, who had already spent time on interlocutory matters, being concerned to find that instead of the trial commencing, there were still more issues that had to be resolved.

(e) What Mr Dawson called an “unfortunate exchange” (at T 178) where I raised with Mr Dawson, in the absence of the jury, my concerns about what I perceived as our communication problems and my wish that we could shake hands and start again (T 181).

The listener at the back of the Court would see exchanges of this sort as attempts by the trial judge to move the trial along.

(f) My inquiry about the time when the witnesses were flying back to Quirindi was objected to, on the basis that they were driving back together, and this statement was incorrect.

I was not told that how the witnesses were travelling until I asked the jury if they would mind staying back for a few minutes into the lunch adjournment, and asked when the witnesses’ plane was. Mr Evatt said they were driving, not flying back (T 153). Mr Evatt had previously only told me (T 25) they were “coming” from Quirindi. There was no information given to me about how they were coming, or that they were travelling together.

The listener at the back of the court would have heard what I heard, and would not have regarded my assumption that the witnesses had planes to catch as evidence of apprehended bias. More importantly, the listener would, like any member of the public, be sympathetic to country witnesses who had come to town to give evidence and who were anxious to get back, and would view my concerns in that light.

The listener at the back of the court has expectations about the comfort of witnesses, like the comfort of jurors, being high in the mind of a trial judge.

(g) My concerns that Mr Dawson was still cross-examining a reputation witness at 1.10 pm, and for the jury to be able to have their lunch.

Although Mr Dawson said that this witness was put in the witness box after 1 pm, he was in fact put into the witness box at 12.57 pm according to the transcript. His evidence in chief was very brief, and both sides had told me this evidence would take five minutes so that we could complete his evidence before lunch. Mr Dawson started just before 1 pm and when he was still going at 1.10 pm I pointed out the time to him. The listener sitting at the back of the court would have understood these concerns, and would have seen my remarks in that context.

(h) On occasions when we sat through the morning tea or lunch adjournments or after 4 pm, I reminded Mr Dawson that I had a court reporter and court officers’ welfare to consider, and that I had to take into account occupational health and safety regulations in this regard. These remarks were all made in the absence of the jury.

The listener, who would have been in the same position, would have understood concerns about court staff welfare being at the back of the trial judge’s mind.

(i) Mr Dawson objected to my demeanour towards him, asserting that I shouted at and pointed at him.

I do not agree that this accurately reflects my conduct in court. The transcript of these proceedings speaks for itself. The listener at the back of the court would have understood that I was worried about moving the case along, and that these concerns related to case management of a trial where the jury and the court had been expecting the case to finish in the time allotted, where this was not only increasingly unlikely to be the case, but there was no certainty about how long these proceedings would take.

Members of the public, of whom the bystander at the back of the court is a representative, have expectations that judges will look after witnesses, jurors and court staff and will have regard for the proper use of court time by lawyers. They would be unlikely to be sympathetic to demands by lawyers to be permitted to conduct cases in such a way that the convenience of jurors, witnesses, court staff and the court calendar are not also given importance.

The relevant legal principles

[28] In JRL, Re; Ex parte CJL (1986) 161 CLR 342; (1986) 66 ALR 239; (1986) 10 ALN N184; (1986) 10 Fam LR 917; (1986) FLC 91-738; [1986] HCA 39, Mason J said:

“It needs to be said loudly and clearly that the ground of disqualification is a reasonable apprehension that the judicial officer will not decide the case impartially or without prejudice rather than that he will decide the case adversely to one party. There may be situations where previous decisions of a judicial officer on issues of fact and law may generate an expectation that he is likely to decide issues in a particular case adversely to one of the parties.” ((1986) 161 CLR 342 at 352)

[29] Reasonable apprehension of bias by reason of prejudgment must be ‘firmly established’ (R v Commonwealth Conciliation & Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546 at 553-4; [1969] ALR 504; Watson, Re; Ex parte Armstrong (1976) 136 CLR 248 at 258-263; (1976) 9 ALR 551; (1976) 50 ALJR 778; (1976) 1 Fam LR 11,297; (1976) FLC 90-059; R v Lusink; Ex parte Shaw (1980) 32 ALR 47; (1980) 55 ALJR 12 at 14; (1980) 6 Fam LR 230; (1980) FLC 90-884).

[30] In Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; (2006) 231 ALR 663; (2006) 81 ALJR 352; (2006) 70 IPR 468; (2007) AIPC 92-241; [2006] HCA 55, Kirby and Crennan JJ, with Gummow ACJ agreeing, citing Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at 344–5 [6]–[8]; 176 ALR 644 at 647–8 ; 63 ALD 577 at 580 ; [2000] HCA 63, said (at [110]) :

“[110] The appeal involves the application of well-established principles, which were not in dispute and were both reiterated and explained in Ebner v Official Trustee in Bankruptcy in the joint reasons of Gleeson CJ, McHugh, Gummow and Hayne JJ:


“The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty. Its application requires two steps. First, it requires the identification of what it is said might lead a judge ... to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits.”

In assessing the logical connection between a matter complained of and any deviation from deciding a case on the merits, which in Ebner is called the second step, it is important to bear in mind the characteristics of modern litigation as recognised by Gleeson, Gaudron, McHugh, Gummow and Hayne JJ in Johnson v Johnson [(2000) 201 CLR 488 at 493 [13]]:


"Whilst the fictional observer, by reference to whom the test is formulated, is not to be assumed to have a detailed knowledge of the law, or of the character or ability of a particular judge, the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice. The rules and conventions governing such practice are not frozen in time. They develop to take account of the exigencies of modern litigation. At the trial level, modern judges, responding to a need for more active case management, intervene in the conduct of cases to an extent that may surprise a person who came to court expecting a judge to remain, until the moment of pronouncement of judgment, as inscrutable as the Sphinx. In Vakauta v Kelly [(1989) 167 CLR 568], 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.””

Limitations on question time and adverse rulings

[31] The fundamental issue is when and in what circumstances a trial judge should ask for time estimates and/or impose limits on cross-examination by counsel and whether, by imposing a limit on one counsel, this amounts to evidence of apprehended bias.

[32] The practice of asking counsel for time estimates, and indicating that they will be held to those estimates, is one which the NSW Court of Appeal considered to be appropriate. In Cassegrain v Commonwealth Development Bank of Australia Ltd [2003] NSWCA 260 at [47]-[50], Sheller JA, with Ipp and McColl JJA agreeing, observed:

“[47] One of the grounds of appeal was that the attitude adopted by the trial Judge towards the case of the Cassegrain parties expressed from time to time during the hearing of the proceedings and the reasons for judgment given by his Honour amounted to ostensible or apprehension of bias. In his submissions, Mr Cassegrain asserted that at an early stage the trial Judge took an adverse view of the case brought by the Cassegrain parties and the case defended by them. Apparently, as part of this claim, it is said that the trial Judge put a time limit on counsel with respect to the cross-examination of Mr Wilmott and Mr Burgess. This assertion is not correct. As appears from the transcript, on 15 October 2002 Mr Wilmott was called at about 10.28 am. Not long after that, cross-examination by counsel for the Cassegrain parties began. It continued after the short adjournment. A little time before the luncheon adjournment the following interchange took place:



"HIS HONOUR: Mr Cameron, quite a lot of time has been taken with this witness. What is the current estimate of your position?

CAMERON [who at the hearing appeared for the Cassegrain parties]: Probably another hour, I think, your Honour, with this witness, and probably an hour with Mr Burgess.

HIS HONOUR: Yes. Well, I think that it's appropriate in terms of the estimates and so forth for me to limit the cross-examination accordingly. If you say you will need another full hour with this witness, I will accept that estimate. If you say you are going to take an hour with the next witness, Mr Burgess, I will give you that period of time to cross-examine him.

You can apply to extend the period of time as you see it becomes necessary and we do need to move through this case, and you have been moving in to and out of areas without copies of documents, and backwards and forwards considerably. Is there going to be a further witness beyond Mr Burgess?

BELL: There's no other witnesses who have given statements, your Honour.

HIS HONOUR: You move on then. I suggest you proceed ahead, because that's the period of time that you are allotted. You need to get to the burden of the case, to the extent that you are putting matters to the witnesses and it is a matter for how long you take, for you to get there."

[48] Some time well into the afternoon hearing the following interchange took place:



"HIS HONOUR: You now have something like 40 minutes to cross-examine Mr Burgess.

BELL: We don't mind if he has to stay, we would just like to know now so we can make arrangements.

HIS HONOUR: You do have to make your mind up, Mr Cameron, he will be here if you need him in the morning but you have said you won't. It is a matter for you.

CAMERON: Yes, your Honour."


[49] The cross-examination of Mr Willmot finished after two further questions and answers without any application by counsel for an extension. At 3.30 pm Mr Burgess was called and his cross-examination finished a little time before the adjournment without any application for it to be extended.

[50] Clearly enough in intervening when he did his Honour was trying to ensure that witnesses were not unnecessarily inconvenienced and that the trial was not unnecessarily delayed. That he should do so was both appropriate and desirable. He left it open to counsel for the Cassegrain parties to ask for an extension of time. This was not done. There is nothing to suggest that counsel was denied the opportunity fully to cross-examine Mr Wilmott and Mr Burgess.”

[33] In Seven Network v News [2007] FCA 1062 Sackville J noted the usefulness of such restrictions and that while, “perhaps wrongly” he had not imposed rigid time limits, he had kept counsel to their estimates of time (at [24]).

[34] Section 62 (1) – (5) Civil Procedure Act 2005 (NSW) now provides:

“(1) The court may, by order, give directions as to the conduct of any hearing, including directions as to the order in which evidence is to be given and addresses made.

(2) The court may, by order, give directions as to the order in which questions of fact are to be tried.

(3) Without limiting subsections (1) and (2), the court may, by order, give any of the following directions at any time before or during a hearing:



(a) a direction limiting the time that may be taken in the examination, cross-examination or re-examination of a witness,

(b) a direction limiting the number of witnesses (including expert witnesses) that a party may call,

(c) a direction limiting the number of documents that a party may tender in evidence,

(d) a direction limiting the time that may be taken in making any oral submissions,

(e) a direction that all or any part of any submissions be in writing,

(f) a direction limiting the time that may be taken by a party in presenting his or her case,

(g) a direction limiting the time that may be taken by the hearing.

(4) A direction under this section must not detract from the principle that each party is entitled to a fair hearing, and must be given a reasonable opportunity:



(a) to lead evidence, and

(b) to make submissions, and

(c) to present a case, and

(d) at trial, other than a trial before the Local Court sitting in its Small Claims Division, to cross-examine witnesses.

(5) In deciding whether to make a direction under this section, the court may have regard to the following matters in addition to any other matters that the court considers relevant:



(a) the subject-matter, and the complexity or simplicity, of the case,

(b) the number of witnesses to be called,

(c) the volume and character of the evidence to be led,

(d) the need to place a reasonable limit on the time allowed for any hearing,

(e) the efficient administration of the court lists,

(f) the interests of parties to other proceedings before the court,

(g) the costs that are likely to be incurred by the parties compared with the quantum of the subject-matter in dispute,

(h) the court’s estimate of the length of the hearing.”

[35] Mr Dawson asked me to limit my summing up to the jury (T 220), and agreed that he and Mr Evatt should limit their addresses. However, he opposed any restrictions on his cross-examination, saying he should be permitted to cross-examine “properly” (T 324). His position was that he should not be asked (hence his initial response that he could not responsibly give an estimate) and that if asked, he should not be held to the time estimate.

[36] The practice of placing limitations on cross-examination is one of a series of case management practices which has come into use in courts over the past fifteen to twenty years. Young J in GPI Leisure Corp Ltd v Herdsman Investments Pty Ltd (No 3) (1990) 20 NSWLR 15 indicated that such an order would be made when circumstances dictated, and there are references to such orders being made in some judgments in the early 1990s, such as McCrohon & Bergseng v T J McGrath (Supreme Court of NSW, Bryson J, 25 February 1994). In Avenhouse v The Council of the Shire of Hornsby (Supreme Court of NSW, 27 June 1995) Spender AJ, sitting in common law, considered it was time to re-assess the rules in the interests of shortening cases and cutting the costs.

[37] The practice of placing limitations on cross-examination around Australia is now in such wide use that it is noted in most Australian jurisdictions as a provision in practice rules (e.g. paragraph 3.12(i) of Practice Note 4 of 2004 of the Victorian Supreme Court and s 62(3) Civil Procedure Act 2005 (NSW)).

[38] The practice of placing limits on cross-examination has been used in appropriate cases in the Supreme Court. In complex litigation it is a useful tool, for the reasons explained by Einstein J in Idoport Pty Ltd & Anor v National Australia Bank [2001] NSWSC 868 at [74] – [79]. In ASIC v Rich [2009] NSWSC 1229; 75 ACSR 1 at [63] – [66] Austin J notes that such a restriction reduced time and costs, and also noted that a more pro-active pre-trial case management could have reduced the hearing time by about three months.

[39] Limitations on cross-examination have been considered permissible, in appropriate circumstances, in criminal jury trials (Barron v Attorney-General for NSW [1987] 10 NSWLR 215 at 224 per Hunt J; Kranz v R (1991) 53 A Crim R 331; Wakely v R (1990) 64 ALJR 321; R v Fitzgerald (Queensland Court of Appeal, 17 December 1996); Bagshaw v R [2009] NSWCCA 32 at [21]. The District Court’s country circuit criminal hearing system relies on accurate estimates of time and a degree of flexibility to allow for the convenience of jurors or witnesses and persons (including counsel) who have to travel the long distances which are a necessary part of a court system spread out over a wide geographical area.

[40] Limits on cross-examination are used in civil litigation of all kinds, ranging from the Federal Court (Westpac Banking Corp v Perkins (1999) FCA 986 at [19]) to the Family Court (Kettle v Baker [2009] FamCAFC 113, 41 Fam L R 437 at 466; Bourne v Bourne [2008] FamCA 799 at [9]; Long v Tranh [2008] FamCA 730 at [8]; Kam v MJR 24 Fam L R 656 and in the Federal Magistrates Court (J&M (No 2) [2004] FMCA 652 at [5]). It is a procedure adopted in many administrative tribunals (see Zhang v Blinds Pty Ltd t/as Blinds by Peter Myer [2008] NSWADTAP 24 at [46] – [48], noting the Court of Appeal’s reliance on this issue in rejecting a complaint that one party was not allowed to “fully” cross-examine the other).

[41] In Victoria Anderson v National Australia Bank [2007] VSCA 172 at [95] Nettle JA noted:

“[95] In Budd v Kambah Tea Tree Plantations Pty Ltd [ [2001] NSWCA 180 ] , Heydon JA sanctioned the sort of approach adopted by the judge in this case as the modern and not unacceptable technique of conducting a trial, particularly in a busy trial court under pressure from crowded lists. As his Honour remarked, trial litigation often calls for plain speaking, directness and sometimes asperity. Unquestionably, a trial judge like any judge should strive to avoid truculence and discourtesy. But in the scheme of things, it is almost inevitable that there will be some of it in any hard fought cause.”

[42] In Ivory v Telstra Corporation Ltd [2002] QCA 457 at [83] and [85], Wilson JA noted:

“[83] Litigation is an adversarial process. It is the responsibility of a trial judge not only to be impartial and to be seen to be so, but also to maintain control over a trial and the conduct of the parties in the course of the trial.

…

[85] I respectfully agree with the observation of Mahoney JA in Ley v R De W Kennedy (Finance) Pty Ltd [ (Court of Appeal, Mahoney JA, 21 May 1975, unreported) ] as cited in the later decision of Raybos Australia Pty Ltd & Anor v Scitec [ Raybos Australia Pty Ltd & Anor v Scitec Corporation Pty Ltd (NSW Court of Appeal, Kirby P, Samuels and Mahoney JJA, 16 June 1986) ] that the right of a litigant to present his case -


"must not be seen as giving ..... an absolute right to conduct a case, or to conduct a case in the manner and for the time that such a person chooses, whatever that choice may be. That right must be balanced against the rights of other parties who are involved in the litigation, including the right...... not to be involved in pointless litigation and to have the litigation conducted properly and with reasonable promptitude; and it must be balanced against the right of the public generally not to have the court's time wasted."


...

What steps will be appropriate, in a particular case, to prevent injustice being done to parties who find themselves involved in litigation conducted in this way, must, of course, be determined in the light of the facts of that a case; but it should be clear that it is proper that steps be taken to that end.”

[43] The litigant in those proceedings was self-represented, where a greater degree of forebearance would be exercised by a court.

[44] This was a case which the parties had not only told the court and the jury, but agreed between themselves should finish in four days. Mr Dawson had volunteered that addresses should be limited, and suggested I should give a limited summing up to the jury. The problem was that by Thursday afternoon, contrary to his earlier estimates, he was still cross-examining the plaintiff; both sides still had witnesses to call, and in addition the addresses and summing up, needed to take into account the approaching weekend and the unavailability of both counsel during the following week.

[45] It was with these problems in mind that I followed the procedure of the trial judge in Cassegrain, and offered only a short extension when the cross-examination could not be completed.

[46] The listener at the back of the court would understand the problems caused by cases running overtime, particularly where there was the convenience of a jury to take into account. The jury had 11 pages of questions to answer and the rest of the evidence, as well as addresses, to take in. The listener at the back of the court would have understood that my proposed further restriction was of a case management nature and part of my role as a judge to be in control of the trial process.

[47] In seeking to hold Mr Dawson to his 1 pm estimate, offering short extensions and suggesting he sort out Browne v Dunn problems with Mr Evatt, I had in mind the principles in s 62(4) and the checklist of factors in s 62(5). Although I referred to the provisions of ss 56-62 Civil Procedure Act 2005 (NSW) throughout his submissions, Mr Dawson never referred me to any of the items in these checklists. His submissions was, essentially, that he should be able to tell the court that he could not “responsibly” give a time estimate (T 261) and that he should be able to cross-examine “properly” (T 324). His submissions were made as if s 62(3)-(5) did not exist.

[48] Mr Dawson’s failure to refer to s 62 means that I cannot respond by matching his complaints with its provisions, or set out the way in which I had regard to the important safeguards contained in ss 56(1), 60 and 62(3)-(5) Civil Procedure Act 2005 (NSW). Judges should exercise the utmost care when imposing limits on counsel. The circumstances of this case, however, were such that Mr Dawson also asked me to restrict my summing up, and his opponent to limit his addresses, and everyone was concerned to balance justice with procedural fairness. As this is a defamation matter, I also need to note s 48 Defamation Act 2005 (NSW) which deals with striking a balance between the fairness and proportionality of costs in this litigation.

[49] The single most important procedural reform in the Civil Procedure Act 2005 is the introduction of the overriding principle that justice be “just, cheap and quick”. The listener at the back of the court would expect judges will not only accept these principles but apply them in trials with limited issues, agreed time estimates and country witnesses.

Orders

(1) Defendant’s application for Gibson DCJ to disqualify herself dismissed.

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