O'Connell v Barnett

[2014] VSCA 125

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2014 0036

CATHY O’CONNELL

v

GEOFFREY BARNETT

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JUDGES	ASHLEY, MANDIE and BEACH JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	13 June 2014
DATE OF JUDGMENT	20 June 2014
MEDIUM NEUTRAL CITATION	[2014] VSCA 125
JUDGMENT APPEALED FROM	O’Connell v Barnett [2013] VCC 1336

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TORTS – Personal injury – Cosmetic surgery – Unsuccessful proceeding by patient against treating surgeon – Self-represented plaintiff – Whether plaintiff denied procedural fairness by judge’s intervention in plaintiff’s examination-in-chief – Reference to defendant’s consultation notes not yet in evidence – Whether judge’s questions in substance cross-examination – Whether denial of procedural fairness by judge’s failure to assist plaintiff in tender of document – No want of procedural fairness – McWhinney v Melbourne Health (2011) 31 VR 285 distinguished – Appeal dismissed.

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Appearances:	Counsel	Solicitors
For the Appellant	Mr G D Dalton	Victorian Bar Duty Barrister Scheme
For the Respondent	Mr A N Murdoch QC with Ms M S Fitzgerald	Avant Law

ASHLEY JA
BEACH JA:

The Application and appeal

1. Cathy O’Connell, whom we shall call ‘the appellant’, seeks leave of the Court to extend the time within which to appeal against orders made by a judge in the County Court on 16 October 2013;  and, if leave be granted, to appeal against those orders.  They were made in a case in which the appellant sued Geoffrey Barnett, the respondent, in contract and in tort arising out of surgery which he performed upon her on 7 December 2006.  The orders, in short, were that there be judgment for the respondent with costs.

1. The application to extend time was initiated by summons filed 7 April 2014 – that is, more than five and a half months after the orders sought to be appealed from.

Proposed ground of appeal

1. The appellant set out two proposed grounds of appeal in a document dated 11 April 2014.  A third ground was later foreshadowed.  But, before us, appellant’s counsel pursued a single ground:

1.The learned trial judge failed to discharge his duty to ensure a fair trial by:

(a)failing to give the plaintiff a proper opportunity to give her evidence-in-chief;

(b)leading the plaintiff’s evidence-in-chief as to her consultations with the defendant by reference to and in response to the defendant’s clinical notes, upon which plaintiff did not wish to rely;

(c)cross examining the plaintiff in the course of her evidence-in-chief, including by reference to the defendant’s clinical notes;

(d)asking questions of the plaintiff during her evidence-in-chief which were premised upon false assumptions as to the meaning of the defendant’s clinical notes;

(e)wrongly refusing to permit the plaintiff to tender the defendant’s letter to the Professional Conduct Department Medical Practitioners Board dated 26 June 2008 or, alternatively, failing to provide the plaintiff with reasonable assistance to tender the letter.[1]

[1]Sub-paragraph (e) was added by leave at the outset of the hearing.

Delay

1. By affidavit sworn 11 April 2014, the appellant sought to explain the delay in bringing an appeal by reference to three matters.  First, that she expended much time in attempting to obtain legal representation free of charge.  Second, that in the period January to February 2014 she was troubled by a basal cell carcinoma on the rim of her right eye, which required surgery.  Third, that she had been advised by the Court’s Self-represented Litigants Coordinator that, if she did not commence an appeal within time, she could apply for an extension of time.

1. The respondent disputed that an order extending time should be made.  Counsel argued that the delay had not been satisfactorily explained, that to now extend time would cause his client significant prejudice, and that any appeal would be futile.

1. The Court took the course of hearing, at the one time, the application and the substance of the appeal which would follow if extension of time was granted.  Despite there being good reason why extension should be refused, we are content that it be granted so as to enable consideration and disposition of the substance of the matter forthwith.

1. For the reasons which follow, we would dismiss the appeal.

The proceeding

1. The proceeding out of which the present appeal[2] arises was initiated in November 2009.  It came to trial on 23 September 2013.  The trial extended over ten days.  The appellant, who had previously engaged solicitors, appeared unrepresented.  The respondent was represented by senior and junior counsel.

   [2]We will so describe it hereafter, rather than refer to ‘application’ and ‘appeal’.

The Circumstances:  a general description

1. The appellant, who is now aged 56, over the years underwent a number of operations which involved her supra-pubic area.  The last of them prior to the appellant consulting the respondent was a hysterectomy and surgical treatment for a prolapsed bladder.

1. The appellant first attended upon the respondent, a plastic, reconstructive and cosmetic surgeon, on 30 November 2005.  She consulted him again on 3 May 2006, 18 October 2006 and 5 December 2006.  On 7 December 2006, she underwent surgery.

1. The precise reason or reasons for which the appellant first consulted the respondent, and what passed between them at subsequent consultations and on the day on which surgery was performed, was in dispute.  It is at least clear that the appellant wanted a scar left by the hysterectomy surgery revised.  It further appears that the appellant, who appears from the trial transcript to be very image-conscious, was aware of a slight ‘protrudence’, as she described it, in her lower abdomen subsequent to the hysterectomy, and that she wanted this to be remedied.  She was very clear that she did not want liposuction, which had been performed upon a different part of her body on an earlier occasion.  It is also apparent that she wanted the scar from the revision surgery to leave as small a scar as possible, and that it should be below the upper line of swimwear and underpants which she was accustomed to wearing.

1. According to the respondent’s evidence, it became clear on the occasion of the appellant’s second consultation (on 3 May 2006) that she was concerned about a roll of abdominal fat. It was below the navel.  She wanted it to be removed.  It was an aspect of the abdominal contour issue which concerned the appellant.

1. According to the respondent, he informed the appellant on a number of occasions that, in order to achieve what she wanted, it would be necessary to make an incision which stretched from hip to hip.  The appellant denied she had ever been told such a thing, or that she had agreed to such a procedure.  On the other hand, she accepted that she knew that the new scar would be more extensive than the scar then present.

1. The respondent made notes of the consultations, and had the appellant sign them on most occasions.  But the respondent’s evidence, quite apart from the appellant’s broad allegations noted below, revealed that in several instances the respondent had added aide-mémoires to what had been signed.

1. On 3 May 2006, the respondent also provided the appellant with a brochure, which he had marked up to indicate the surgery that was then intended.  There was dispute between the appellant and respondent as to what the marking depicted.

1. The appellant repeatedly described the respondent’s notes as having been falsified, and as lies.  She gave evidence that notes had been incomplete when she signed them.  She also gave evidence that the respondent had falsified records wholesale.  So also had his wife, who worked as one of his practice nurses.  Further, she averred, he had lied in responding to a disciplinary complaint which she had made against him, and also in providing material to a medical panel convened under Part VBA of the Wrongs Act 1958. 

The judge’s reasons

1. On 15 October 2013, the judge delivered extremely detailed reasons.  He summarised his conclusions this way:

184.By her Statement of Claim, the plaintiff alleges there was an agreement between the parties that the defendant would undertake a limited lower abdominoplasty with a resultant small suprapubic scar.  I am satisfied that while there was an agreement between the plaintiff and defendant, it was not a term of that agreement that the plaintiff would be left with a small suprapubic scar.  I am satisfied it was a term of the agreement that the plaintiff would be left with a scar from one hip to the other, in accordance with the evidence of Mr Barnett.

185.The plaintiff’s claim in contract fails.

186.The plaintiff further alleges the defendant was negligent in undertaking an inappropriate procedure such as to leave her with a scar which went from one hip to the other.  She claims the defendant failed to warn her as to the risks of surgery.

187.I prefer the evidence of the defendant, supported by his clinical notes, the nursing notes, and the diagram drawn upon the brochure, as to the reasons the plaintiff sought surgery in the first place, and the advice provided to the plaintiff in the course of the pre-operative consultations.

188.I am of the view the plaintiff received adequate and appropriate advice as to the nature of the surgery to be undertaken, the size and type of the incision, the amount of tissue to be removed, the need for the area of skin to be taken, and the resultant scarring.  I am satisfied the advice provided to the plaintiff was sufficient for her to make an informed decision to proceed with the surgery.

189.I am satisfied that the risks of the surgery were explained to the plaintiff and that she understood them.  I am satisfied she attempted in the consultations of December 2006 to have the defendant undertake more limited surgery, resulting in a smaller scar, but that he refused to do so, and offered the plaintiff the option of cancelling the surgery.  I am satisfied the plaintiff agreed to proceed.

190.I prefer the evidence of Messrs Rubinstein and Archer that the surgery was appropriate to address the abdominal contour defect caused in part by the weakness in the abdominal muscles and in part by the presence of some excess abdominal tissue.  I accept it was necessary to remove the amount of skin and tissue as occurred, to address these issues.  I am not satisfied surgery with a smaller incision and smaller resultant scar could have achieved those ends.

191.I am satisfied the scarring was within the boundaries of the garment or garments brought into the hospital by the plaintiff on the day of the surgery.

192.Given my findings, it is unnecessary for me to consider whether the defendant acted in accordance with a significant number of Australian practitioners as contemplated by s 59 of the Wrongs Act 1958.[3]

[3]O’Connell v Barnett [2013] VCC 1336 [184]-[192].

1. In so concluding, the judge made credit findings which were adverse to the appellant, and credit findings which were favourable to the respondent and Mrs Barnett.

1. The judge described the appellant as ‘a disingenuous, unreliable and deceptive witness’ by reference to nine circumstances, some of which were interrelated.  Thus:

·Regularly, the plaintiff changed her evidence to suit her purpose in the course of both examination and cross-examination.  An example was that in evidence-in-chief, she said that she agreed with Mr Barnett to bring in a pair of underwear shortly prior to the surgery, and not ‘togs’.  Later, in cross-examination, she agreed there was a discussion that she would bring in underwear or togs.  ‘Togs’ was a word she used.  On occasions, she was unable to recall what was said in the course of the consultations and then, when it suited the purpose of her case, said she had a clear recollection of what operation was to be performed and the length of the scar she was to receive.

·A further example is that she gave varying reasons for why she went to see Mr Barnett for revision surgery in the first place.  She conveniently changed those reasons depending upon the questions she was being asked.  She said it was Mr Barnett who told her she had a pot stomach and was not part of the reason she saw him in the first instance.  She denied that she went to see Mr Barnett because of a small roll of skin and fat bulging above the scar.  Yet that was the history clearly given to Professor Marshall.

·In examination-in-chief, she said she went to see Mr Barnett because her abdomen was protruding and because the scar rubbed against the line of her underwear.  At another time she said she wanted the scar revised.

·She denied in evidence in cross-examination that she had consulted Dr Goodman, although said that she may have spoken to him in the course of a consultation with her husband, who was receiving treatment from him.  This stands in stark contrast to her Answers to Interrogatories.

·It was repeatedly put to the plaintiff that the brochure provided by Mr Barnett showed a line which clearly represented her existing scar, drawn to the edge of her tattoo.  From the photographs, it is clear that her existing abdominal scar did intersect with the tattoo.  She persistently denied that to be the case despite the photographic evidence, and said that the line drawn on the brochure represented the scar she expected she would get.

·She accused Mr Barnett, and the nurses employed by him, of lying, ‘doctoring’ and making up the clinical and nursing notes and hiding photographs.  There was no basis on the evidence or otherwise for such allegations to be made.  She further accused Mr Rubinstein of digitally enhancing photographs taken by him at his consultation. Extraordinarily, and without a shred of evidence, Ms O’Connell said in the course of her final submissions, that the person who referred her to Mr Barnett, Ann Emmerslie, had received ‘kickbacks’ for the referral.

·In cross-examination, the plaintiff said that in relation to her consultation of 3 May 2006, she could not remember whether she had been examined in any of the standing, sitting or lying positions nor whether Mr Barnett had felt her abdomen.  And yet later, again in cross-examination, she denied Mr Barnett had, on that or any other occasion, examined her in any position or ‘put his hands on me’.

·There are inconsistencies between what the plaintiff said occurred both in the course of the consultation with Mr Barnett, and what was recorded in his clinical notes and the hospital notes.  There is an absence of any complaint by her in the hospital notes about the size of the scar, and yet on her version, she was so distressed and angry when the bandages were removed, that she protested long and loud to the nursing staff.  It is most unlikely those protests were not recorded if they were in fact made.

·Most significantly, in the course of her cross-examination, she was belligerent, argumentative, persistently refused to answer questions, changed the issue upon which she was being questioned to one more suited to her purpose, and became angry when matters were put to her with which she did not agree.  She made none of the concessions I would expect of an honest witness.[4]

[4]Ibid [129] (citations omitted).

1. The judge reached this conclusion respecting the respondent:

131.Generally, I found Mr Barnett a credible and impressive witness giving a measured and fair account, in particular of the consultations which preceded surgery.

…

134.Despite a belligerent and at times argumentative cross-examination, Mr Barnett responded in a measured manner, attempting to answer the questions.  I reject the submission of the plaintiff that his clinical notes were reconstructed or enhanced.  I accept that the notes record precisely what was said in the course of the consultations with the plaintiff.  I reject the claim of the plaintiff that he took photographs on almost every occasion in the course of the pre-operative consultations, and withheld them.[5]

[5]Ibid [131], [134].

1. In the case of Mrs Barnett, the judge expressed this conclusion:

135.I found Mrs Barnett an impressive and honest witness.  She was the author of the ‘nursing notes’.  In both examination and cross-examination, her answers to questions were both measured and responsive.  I accept the nursing notes are accurate and truly reflect what occurred in the course of the various post-operative telephone conversations.  Generally they show that in the early stages, the plaintiff was satisfied with the surgery, although comments that she did not expect the resultant scar.  However, she put this down to her fault or misunderstanding.  The plaintiff’s accusation Mrs Barnett lied, and manufactured the notes to suit her husband’s purpose, are entirely without merit.[6]

[6]Ibid [135] (citations omitted).

1. The judge’s reasons reveal that the appellant gave evidence, inter alia, that –

(1)       she knew that the post-operative scar would be longer than her existing scar, but not as long as it turned out to be;

(2)       the respondent had not told her, pre-operatively, that the scar would turn out to be as long as it proved to be;

(3)       she attended the respondent post-operatively.  He was sheepish, arrogant, rude and dismissive. She had reported him to the Health Services Commissioner and the Medical Board.  He had lied to the Board;

(4)the respondent had lied, doctored his notes and hidden photographs which he had taken of her;

(5)the respondent had never physically examined her;

(6)certain lines drawn on a brochure were, as she knew, the intended incision;

(7)there had been no discussion between them about removal of fat and skin;

(8)the respondent had not advised her that the future scar would be hypertrophic;

(9)       when she had signed the doctor’s notes referring to the consultation on 3 May 2006, there had been no diagram then drawn in them;

(10)when she had signed the consultation notes for 5 December 2006, the notes had been incomplete;

(11)     the respondent had not offered to cancel the operation if she was dissatisfied with the scar which he told her would result;

(12)the respondent had only seen her in hospital once after surgery, not twice as the hospital notes recorded;

(13)the notes made by Mrs Barnett (referable to post-surgery communications and observations) were fabricated.

1. His Honour’s reasons disclose in detail the evidence given by the respondent.  The gist of the doctor’s evidence in chief was that –

(1)       the appellant complained of a bulging stomach and scarring from previous surgery.  His surgery was designed to correct the contour of the abdominal wall and improve the scar;

(2)he had physically examined her on  more than one occasion;

(3)       contrary to the appellant’s evidence, his notes of the first and subsequent consultations had not been fabricated;

(4)the diagram which he drew on his notes at the consultation held on 3 May 2006 showed what he proposed doing;

(5)       on 3 May 2006, the appellant accepted the operation which he proposed, but wanted the scar to be as small as possible.  He told her that it was necessary that it be from hip to hip;

(6)       on 18 October 2006, the appellant said that she wanted a shorter scar.  He told her that, unless she had a longer scar, he could do nothing for her;

(7)in the event, she agreed to the surgery and signed consent and hospital forms;

(8)       on 5 December 2006, the appellant returned, again saying that she wanted a shorter incision.  Again, he said that he was not prepared to do that.  The appellant then told him that the scar had to be kept within ‘togs’, or bikini bottoms.  She agreed to the incision and scar as he had explained it;

(9)       on 7 December 2006, before surgery, he told the appellant that if she did not want a hip to hip scar, he would call the operation off.  She agreed to go ahead;

(10)     the appellant brought hipster bikinis, not underpants, to hospital on 7 December 2006, so that he could mark their upper and lower limits in order that any scarring could be kept within their perimeters.  He did so mark her body; and scarring was so confined.

1. In cross-examination, according to the judge’s reasons, the respondent –

(1)denied ‘that the evidence he gave was a lie’;

(2)denied that he undertook a radically different operation to that discussed with the appellant;

(3)disagreed that any aspect of his surgery had been unnecessary.

1. The judge’s reasons addressed the evidence given by Mrs Barnett.  His Honour noted that the witness had recorded post-operative comments by the appellant which did not sit with the latter’s evidence.  The same applied to observations made by Mrs Barnett as to the appellant’s presentation at a consultation on 14 December 2006.  I have already noted the appellant’s response to this evidence.

1. Expert evidence was called at the trial.  Three specialists gave evidence, Professor Donald Marshall for the appellant and Messrs Brett Archer and Craig Rubinstein for the respondent.  The evidence of the first-mentioned was of some assistance to the appellant, although the judge was critical of a change in the witness’s position which had been adopted without evident explanation.  The evidence of the other expert witnesses assisted the respondent.  The evidence of the three witnesses mainly addressed the competence of the surgery undertaken.

1. It was well open to the judge to prefer the evidence of Messrs Archer and Rubinstein to that of Professor Marshall.  No proposed ground of appeal seeks to challenge his Honour’s conclusions with respect to the expert evidence.

1. It was in all the circumstances which we have described that the judge accepted the evidence of the respondent on critical matters – particularly as to what was said in the course of the pre-operative consultations.  That evidence accorded with contemporaneous documents.

1. In accepting that the surgery which was in fact performed was that to which the appellant had given written consent, his Honour identified the question as being not what the operation was called, but rather: what was to be undertaken, was consented to and was in fact undertaken?

1. Overwhelmingly, in our opinion, the evidence supported the findings which his Honour made upon factual issues.

1. A critical matter at trial was what communications took place between the appellant and respondent before surgery; and thus whether the appellant gave informed consent to the operation which was in fact performed.  The further issue was whether the surgery had been competently conducted.

1. Upon the first issue, contemporaneous records supported the respondent’s account.  So did the evidence of the respondent and Mrs Barnett.  As against that, there was the evidence of the appellant.  Faced with obvious difficulties in the contemporaneous written material, the appellant’s answer was to assert that the records had been falsified and that the respondent and his wife had lied.

1. The second issue, as we have said, was essentially the province of the medico-legal witnesses, and their evidence favoured the respondent.  That was so although Professor Marshall’s opinion was in fact adverse to the respondent.  As the judge explained, Professor Marshall’s opinion was compromised by his having shifted ground without apparent reason.

1. But what we have said about there being powerful reasons why the judge should have decided the matter as he did does not determine the question raised by the sole ground of appeal. To that question we now turn.

Procedural unfairness?

Appellant’s submissions summarised

1. The appellant contends that the trial was unfair principally by reason of the procedure adopted by the trial judge during the appellant’s evidence in chief; but also because of what transpired with respect to the letter the subject of sub-paragraph (e) of the ground of appeal.

1. Appellant’s counsel submitted that the judge had taken his client through her evidence in chief by reference to the respondent’s pre-surgery consultation notes; and that in doing so he had cross-examined the appellant, and had made a number of factual assumptions as to evidence which the respondent would give which turned out to be incorrect.  He submitted also that the present case was relevantly indistinguishable from McWhinney v Melbourne Health (‘McWhinney’).[7]  Here, as there, the plaintiff had been cross-examined about notes which were inadmissible at the time.  It mattered not that in McWhinney the notes upon which the plaintiff was cross-examined by the judge never got into evidence, whereas here they did.  Nor did it matter that here, when the appellant gave her evidence in chief, it was certain that the notes would get into evidence – as they did.

   [7](2011) 31 VR 285.  See also, for completeness, McWhinney v Melbourne Health [2013] VSCA 162.

1. Appellant’s counsel specifically stated that no criticism was made of the judge’s intention.  He said that it was accepted that his Honour’s motivation was ‘entirely appropriate’.

1. But intention and motivation, counsel submitted, cannot save a trial which proves to be unfair.[8]  This trial was unfair as a matter of substance, not form.  The unfairness was a combination of the notes being put to the appellant, the respondent’s case being thereby put to her, and her answers being tested and probed where her case departed from the respondent’s notes.  Within the appellant’s evidence, counsel submitted, evidence was admitted which the appellant did not want to be admitted.

   [8]Jones v National Coal Board [1957] 2 QB 55.

1. Counsel eventually conceded that there was very little – he identified several questions and answers on one page of transcript – by way of recognisable cross-examination.  He also agreed that his client had not taken issue with a good deal of what the respondent had recorded in his notes.  Thus he agreed with Mandie JA that, whatever might be said about the procedure followed with respect to the first consultation (held on 30 November 2005), his client’s complaint led to no injustice – because it turned out that the respondent’s notes were not at odds with the appellant’s account.  We understood him to agree also that this was the situation with respect to the notes of third consultation (held on 18 October 2006). Nonetheless, counsel submitted, the procedure followed with respect to those consultations should be viewed as part of an unfair process.

1. Counsel identified the consultation held on 3 May 2006 as being of the greatest importance to his argument.  It was at that consultation that the appellant was given the marked brochure referred to in [15] above.

The appellant was not represented at trial

1. The appellant, as we have said, appeared unrepresented.  That almost always creates a real problem for a judge.  The judge who is entirely non-interventionist risks a trial which becomes bogged down in a swamp of irrelevance.  The judge who intervenes runs the risk of it being said that he or she was too favourably disposed to one or other party, or simply intervened too much.

1. It is of critical importance that, at the end of the trial, the judge should fully understand the case which the litigant wishes to advance; and should understand it without having visited unfairness upon the litigant.  That can be difficult where technical matters in a particular field of professional expertise are of central importance.

Circumstances known to the judge before the appellant began her evidence

1. By the time that the appellant came to give evidence, the following circumstances were known to the judge.  They assist an understanding of how the trial – specifically, the appellant’s evidence – unfolded.

1. First, the appellant came to this litigation against the background of having brought a disciplinary complaint against the respondent.  The point is not her lack of success in that connection, but rather that – as a result of the disciplinary proceeding and perhaps discovery in the County Court proceeding – she evidently became acquainted with the minutiae of the documentation.  So much is evident from her ability to pick out lines in certain documents which, as she perceived it, aided her cause; and to tender fragments of such documents.  So much is also evident from her characterisation of any part of a document which did not fit in with her case as lies and falsification.  At times also, she anticipated the questioner, whether judge or counsel for the respondent, when being asked about a particular document.

1. Second, the appellant opened her case at length.  In the course of doing so, she strayed beyond what could have been relevant to the proceeding.  But she also identified the dates of the four pre-surgery consultations, and placed stress on the brochure which the respondent had marked for her on 3 May 2006.  According to her opening, it showed what was to be done; which differed from what had in fact been done.  She relied upon other documents of which the respondent was the author.  She asserted that they showed that what the respondent had planned to do was not what he had done.  She had gone into hospital to have a ‘subumbilical limited lower abdominoplasty’, but she had paid for a ‘subumbilical abdominoplasty’.  Indeed, the operation notes showed that she had had ‘an abdominoplasty… [which] is major surgery’.  She stated, too, that she had consented to ‘a lower abdominoplasty’.  She identified the bases of her claim as being that she had not given informed consent to the surgery;[9] and that it had been incompetently performed.  She stated that the respondent had lied and changed his notes.  She identified parts of his notes which he had allegedly falsified.  She asserted that things he had said to the Medical Board and the medical panel were wrong.  She said ‘I mean his notes are all over the place’.  She said of Mrs Barnett that the latter had ‘fabricated nursing notes that were so grossly untrue…’.

   [9]Our terminology.

1. What the appellant did not address in her opening, however, was any detail (excepting with respect to the brochure given to her on 3 May 2006) of what transpired at the four pre-surgery consultations; and yet she appreciated their importance to the case by characterising the notes in the way that she did.

1. Third, from the circumstances already mentioned, it must have been apparent that the appellant is an intelligent, articulate person, who had a very clear perception of her case; and of the points at which it departed from the respondent’s account of events.

1. Fourth, if there could have been any doubt that the respondent’s notes would be of importance to resolution of critical issues, the preliminary opening of counsel for the respondent (made after the appellant had opened her case, but before she began her evidence) made it clear that the respondent so perceived it.  Counsel immediately took the judge to the doctor’s notes.  He said that the respondent would explain the markings on the brochure given to the appellant on 3 May 2006.  He went through the notes in detail.  His client’s case was, he said, that the appellant had undergone an operation which ‘she fully understood and was prepared to undergo’; and that the surgery had been competently performed.  It is clear that he asserted that the notes made out the first of those matters.

1. It was in those circumstances – we entertain no doubt in an attempt to assist the appellant, by giving her evidence some structure – that his Honour intervened in the appellant giving her evidence in chief.

The appellant’s evidence in chief

1. The appellant’s evidence in chief, running to about 75 pages of transcript, was given over parts of two days.

1. It relevantly began with the appellant giving a short account of why she had consulted the respondent, and what she had not wanted done.  She then referred to what the respondent had allegedly said to the medical panel in 2008, observing that it ‘proves how mixed up Dr Barnett is in his notes’.  Then she referred to a receipt for the cost of surgery, and said that it ‘says nothing about removal of fat or anything like that, and that is something that he absolutely did not discuss with me’.

1. This evidence lacked coherence, and it did not address the four pre-surgery consultations – said by appellant’s counsel, correctly, to have been ‘critical’ to the case; and so understood by the appellant – other than by what might be inferred from the appellant’s broad generalisations.

1. It was then that the judge suggested, in effect, that the witness might begin with the first consultation.

1. What then followed was that the judge took the appellant through those consultations, taking as a starting point – but by no means was it the end point – the respondent’s notes.  His Honour’s approach was to begin by telling her what the notes apparently said, and then to ask her if they were correct, or wrong, or inadequate.  This focused attention upon the critical areas of dispute.

1. Repeatedly, the judge gave the appellant the opportunity of giving evidence additional to that which emerged from her answers to his questions about particular notes, or to enable her to clarify her intention or state of mind at particular stages in the period between November 2005 and December 2006.  And she took up that opportunity.

1. The following are questions asked and answers given with respect to the consultation on 30 November 2005:

… you’ve got the opportunity to tell me whether what’s said there is right or wrong or whether there’s things missing - - -? - - - OK.

Or whether you have a different recollection or – you can do it in whatever way you want.  Do you follow? - - - Sure.  That’s OK. …

…

Do you remember anything further from that first consultation? - - - No, Your Honour.  I know he said that he was going to write to, um, Raphael, to find out what muscles had been divided.  And that was the first I knew about it, but that explained why I’d had a bit of a protruding stomach.  I know he was going to write to Professor Andrew Kaye to find out if I could undergo an anaesthetic because I had a pituitary tumour.  I don’t have that any more.

…

… Well, at the end of this consultation what was decided, if anything?---Well, basically that he - - -

Did he just say ‘Look, I need to make these further investigations’? - - - Yeah, need to make these further investigations and that was kind of the end of it, yep.  Um, - - -

So by this time you’d consented to nothing? - - - No, I hadn’t consented to anything, no.  I just said I wanted it fixed and, um, he said he’d find out what muscles.

1. The following is one of several similar questions which the judge asked with respect to the consultation on 3 May 2006, each of which the appellant answered:

All right.  Anything else you want to say occurred up to this point? - - - No, but I think like I just said, the documents given to me on the 3^rd I took away and read them.  I confirmed on the 18^th that I read the document.  I said that I didn’t want any liposuction.  It didn’t matter that he cut into the edges of the tattoo, um, and that the scar was definitely to stay inside the undies.

1. After the four pre-surgery consultations had been addressed, there was this question and answer:

All right. Now, is there anything else you want to say about these consultations before the operation?  Anything we haven’t discussed or anything you want to raise? - - - I’m just saying, Your Honour, that any diagrams and things on the notes.  I admit, yes, that I signed that I got the document.  I admit that, yes, I signed I’d read the document, but my signatures are after receiving the document, yes.  Understood the document, yes.  They’re not under muscle plication, fat removal - - -

If it was added, it was added later, you say?---Absolutely, absolutely.

1. Almost at the end of the appellant’s evidence in chief, there were these questions and answers:

All right.  So have we covered everything Ms O’Connell that you want to tell me? - - - Um, Your Honour there – can I um – Judy’s helped me um, prepare a few notes.  If it’s possible can I read through them?

Well it depends what they say.  I’m - - -? - - - OK.

If your formal [sic] lawyer has given you things to say, it might be better if you keep that until your address at the end, when you’re entitled to argue your case before me.  What I’m interested now at the present time, are facts?
---OK.

What was said, what you saw, what happened? - - - Yep.

What treatment you’ve had? - - - OK.

What you feel about your additional scarring? - - - Well I’m embarrassed.  I’m upset.  I’m angry.  I’m disillusioned.  I felt like I was tricked.  I felt when I went in five times and was so explicit about what I wanted, that I was basically treated without respect.  I believe that Dr Barnett did the operation how he wanted.  He had no regard for what I wanted.  Um, I’m just really angry about it.  Really angry.

Yes.  Anything else you want to tell me? - - - No Your Honour, I suppose that’s – there’s – there’s a lot in here, but I mean - - -

1. We add that the appellant, well into her evidence in chief, appeared to be appreciative of the judge’s understanding that she was not a lawyer, and that she had a battle on her hands against a represented defendant.

Consideration of particulars of alleged unfairness

1. It is complained by sub-paragraph (a) of the ground of appeal that the judge failed to give the appellant a proper opportunity to give her evidence in chief, thereby breaching his duty to afford her a fair trial.  Our analysis of the way in which the evidence proceeded shows that there is no substance to that complaint.

1. By sub-paragraph (b) it is said that the judge breached his fair trial duty by conducting the appellant’s evidence in chief by reference to the respondent’s clinical notes of the consultations, and did so against the appellant’s express wishes.

1. It is the fact that the appellant’s evidence in chief was partly given by reference to the respondent’s notes; but only in part.  Viewed overall, there was no unfairness in the procedure adopted.

1. Next, it is simply not the case that the way in which the appellant’s evidence in chief was elicited was against her express wishes.  After she had given the evidence recounted at [51] above, the judge asked her whether the first consultation had been on 30 November 2005 – a matter which was uncontroversial.  He asked her whether she had a copy of the Court Book – which contained the various consultation notes – before her.  The appellant’s response was that she would prefer to look at the doctor’s bills, if that was possible.  The bills would, no doubt, have fixed the dates of the consultations.  But it cannot be supposed that they would have given any information at all about the critical communications between appellant and respondent.

1. The appellant then said that she thought that she thought she was ‘just going to say my piece’.  But she added

If I take all this with me, is that OK? I had it before your Honour, I’m sorry.  I’m sure that’s fine if you want to - - -

66         The appellant having been given the Court Book, the judge asked:

Now, do you want to tell me what you say as best you recalled [sic] was discussed on that consultation?  Can you remember the different conversations you had or does it all effectively blur into the one?

1. The witness’s response was to say

Your Honour, can I just say something without everybody jumping down my throat?  Just give me five minutes please.  Dr Barnett is relying on his notes … I’m telling you now they are not true, what he has written.

1. A fair reading of the transcript, we interpolate, shows that neither before nor after this remark by the appellant did anyone jump down her throat.

1. A little later, as we have noted at [56] above, his Honour said that the appellant had the opportunity to tell him whether what was said at a particular page of the Court Book was:

right or wrong, or whether there’s things missing … [o]r whether you have a different recollection or – you can do it in whatever way you want.

1. It was in the context thus described that his Honour thereafter put questions to the appellant based upon what the consultation notes recorded, and what he understood the respondent would say in evidence.  We do not accept the submission that the procedure was adopted against her express wishes.

1. By sub-paragraph (c) of the ground, the appellant contends that the judge breached his fairness duty by cross-examining her, including by reference to the clinical notes.  But, at least very largely, as appellant’s counsel conceded orally, what transpired was not cross-examination, but simply open-ended questions which in many instances resulted in the appellant agreeing with what the respondent had written.  Indeed, the judges’ questions, in almost all instances, might very well have been asked by counsel for the appellant, had she been represented.

1. Appellant’s counsel, as we have said earlier, particularly focused upon the judge’s questions respecting the 3 May consultation.  There were two aspects to that questioning.  First, what had transpired between appellant and respondent in connection with the marked brochure.  Second, reference in the consultation notes to a roll of fat.

1. Upon the first of those matters, we immediately observe that it was the appellant, not the judge, who first referred to the brochure.  Then followed a lengthy series of questions and answers in which the witness gave evidence of things said in the consultation which led to, and explained as she understood it, the various markings on the brochure.  The judge’s questions, in our opinion, were entirely appropriate to illuminate the witness’s understanding of those markings.

1. We turn to the second aspect of the questioning on 3 May.  One aspect of the witness’s answers respecting the brochure was that certain of the markings depicted an area of fat which the doctor wanted to remove by liposuction.  But she had told him that she didn’t want liposuction.  She stated that there had been absolutely no discussion between them about the removal of tissue or fat to reduce the protuberance.

1. A little later, respondent’s counsel intervened.  He said that in his preliminary opening he had not referred to a ‘fourth aspect of the procedure’ – the removal of a roll of fat which was present when the appellant was sitting.  The respondent’s notes of 3 May referred to a small roll because of old scarring.

1. This led the judge to question the appellant about the note.  The appellant put her position clearly.  There had been no relevant roll of fat.  The note had been ‘doctored’.

1. Appellant’s counsel submitted that a few questions on this topic had the character of cross-examination.  They were founded, he argued, upon a misunderstanding as between the judge and the appellant.

1. For the moment, we concentrate upon the submission that those questions were in the nature of cross-examination.  The judge gave the appellant the opportunity to say anything further that she desired about the ‘roll of fat’ note.  Nonetheless, we accept that a few of his Honour’s questions about that matter had the character complained of.  But they were few, and in our opinion were inconsequential in the context of fairness considered overall.

1. Appellant’s counsel submitted, by reference to sub-paragraph (d) of the ground, that the procedure was also unfair because the judge, in some instances incorrectly, put critical aspects of the respondent’s case to the appellant.  He instanced the entry in the respondent’s notes of 3 May 2006 to which we have been referring.  The entry reads ‘[s]mall roll ∵ old scar [diagram] ? some exc[ision] of fat … mark out roll sitting ie length of scar’.

1. The judge, counsel submitted, wrongly put it to the appellant that the respondent would give evidence that the ‘roll’ was a further issue about which the appellant consulted the respondent; whereas in fact the respondent’s evidence was that the ‘roll’ was part of the same issue as the abnormal contour of the abdomen, which the appellant had already said was one of the reasons she had consulted the respondent.  There was, counsel submitted, no inconsistency in the appellant’s evidence, whereas the judge had discerned one.

1. In our opinion, this alleged instance of unfairness did not have that character.  The gist of the appellant’s account was that when she attended the respondent, it was by reason of the scar and what she described as ‘a small protrudence’ in the lower abdomen - that is, below the navel.  The latter, it appears, was a consequence of interference with the abdominal musculature when the hysterectomy was performed.  But according to the respondent’s evidence, at the 3 May consultation there was another matter which concerned the appellant and which she desired be remedied – a roll of fat which was more evident when she was seated.

1. The appellant repeatedly denied in evidence that removal of fat was any part of the contemplated surgery.  She repeatedly referred to her refusal to have liposuction performed.  The respondent’s evidence was that the fat was to be removed, not by liposuction, but by the use of a scalpel.

1. It was in the context of the appellant’s denial that removal of a roll of fat was part of the proposed operative procedure that the judge asked this:

Now, as I understand it what Mr Barnett’s evidence is going to be was that there was another issue among the various, that is that there was a roll of fat I suppose when you were sitting.  Do you remember that?  Was it discussed?  Do you want to say anything about it?[10]

[10]Emphasis added.

1. The appellant’s response was:

That’s totally untrue.  I still have the roll.  It’s above my navel.  …  There was no roll.

1. In his evidence, the respondent stated that it became obvious to him at the consultation on 3 May 2006 that the problem was larger than he had initially assessed it.  When sitting down, the appellant had a roll of fat which became bigger.  The appellant was concerned about it, and wanted it corrected as well.  It became more apparent to him that, in order to fully address all her problems, she required a lower abdominoplasty rather than a limited lower abdominoplasty.  Although the roll of fat was part of the general problem of the contour of the appellant’s abdomen, its particular significance became evident on the occasion of the second consultation.

1. The true point was whether on 3 May 2006, as the respondent averred, the appellant identified a roll of fat which became bigger when sitting as a problem to be resolved; or whether, as the appellant averred, she had never raised a roll of fat which became bigger when sitting as a problem, let alone agreeing that it was to be resolved by the proposed surgery.

1. Appellant’s counsel further submitted that, in answering the judge’s questions, his client had wrongly assumed that a note made by the respondent on 3 May would be relied upon by him as a record of his having marked her (alleged) roll of fat with a pen on that day, although that turned out not to be the respondent’s evidence.

1. There is nothing to the point.  Why want of fairness should be discerned when the appellant made an unwarranted assumption in a non-responsive answer to an invitation by the judge to say anything more that she wished is not apparent to us.

McWhinney

1. Before passing from the matters raised by sub-paragraphs (a)-(d) of the ground of appeal, we must say something about counsel’s submissions founded on McWhinney.  Counsel relied upon these passages in that case:

35.The final complaint concerns the manner in which his Honour examined the appellant and used the Royal Melbourne Hospital medical file of the appellant which had been produced pursuant to subpoena.  The file had not been and was not tendered as an exhibit in the proceedings.  The trial judge asked the appellant various questions covering some 10 pages of transcript, concerning its content, including the record of the assessment made by the admitting doctor before the appellant was detained.  The trial judge invited him to comment on numerous matters that had been recorded in the file including observations of the appellant and conversations between the appellant and various persons.  It was not in issue that the trial judge did not know at the time that these questions were asked whether it would become evidence in the case.  Later, the appellant, when asked whether he wished to tender the hospital file, said that he did not wish to do so.

36.The appellant submitted that as a consequence of these questions, evidence was introduced into the case that was not part of the evidence which the appellant wished to adduce.  It amounted to cross-examination, and undermined the case he wished to present.  Senior counsel for the respondent properly conceded that as the content of the hospital file was not yet in evidence, its contents should not have been explored with the appellant and his evidence concerning its content was wrongly admitted.  He fairly acknowledged that much of the questioning was properly characterised as cross-examination.  For that reason alone the procedure followed was unfair.  However, counsel for the respondent submitted that the trial judge had only used the records in the way in which counsel for the appellant would have used them had the appellant been represented.  It was said that the appellant would have been asked to comment on the records of the doctor who had made the assessment.  That submission cannot be sustained.  First, the trial judge’s questions were not confined to the admitting doctor’s recorded account.  Secondly, it is unlikely, in our view, that a plaintiff would be asked by his counsel in chief to comment upon matters that might possibly be the subject of evidence later by defence witnesses.  It is much more likely that his counsel would wait to see what matters were put to the plaintiff in cross-examination.  Had the trial judge followed that course, then depending on what was put in cross-examination, the appellant may have been asked, in re-examination by the trial judge, to comment upon some of the matters that had been raised.

37.For these reasons, the admission of this evidence rendered this aspect of the proceedings unfair and resulted in the introduction of inadmissible evidence.  The procedural unfairness bore upon issues which were in controversy and which were ultimately decided adversely to the appellant.  That is all that needs to be shown to satisfy the test in Stead v State Government Insurance Commission.[11]  The possibility cannot be excluded that this evidence, which bore directly upon the central issue, resulted in the trial judge forming an adverse view of the appellant which thereby affected the outcome.[12]  The respondent did not attempt to advance any argument to the contrary.  The judgment in favour of the respondent must be set aside and a new trial ordered.

[11](1986) 161 CLR 141.

[12]Ucar v Nylex Industrial Products Pty Ltd (2007) 17 VR 492.

1. In our opinion, what the Court said there is not transposable to the circumstances of this case.

1. First, the plaintiff’s case there was that, by reason of the negligence of servants and agents of the defendant, he had wrongly been admitted to hospital as an involuntary patient, and had there been treated for mental illness from which he which he did not suffer.

1. The defendant’s hospital file relating to the plaintiff had been subpoenaed.  It relevantly consisted of notes of observations of the plaintiff, and of conversations in which he had engaged with various persons leading up to his admission.  The file travelled beyond the admitting doctor’s assessment.

1. Contrast the situation in this matter.  Here, the respondent was an individual, not a hospital entity.  He was the author of the notes.

1. Second, in that case counsel for the defendant conceded that much of the judge’s questioning was properly characterised as cross-examination.  Almost entirely, that was not the tenor of the judge’s questioning in this case.  Whatever may be said about the situation in McWhinney, in our view the judge in the present case, by his questioning, was plainly seeking to assist the appellant in the presentation of her case, and to understand the issues between the parties.

1. Third, when the judge cross-examined McWhinney about the contents of the file – the cross-examination went beyond the admitting doctor’s assessment – he did not know whether the file would get into evidence.  After the cross-examination, the judge asked the plaintiff if he wished to tender it.  The plaintiff said no.  The defendant, it appears, made no attempt to tender the file.

1. Contrast the situation in this matter. The judge’s questions were directed to the respondent’s notes, upon which the appellant and the judge knew the respondent was relying; and not to the recorded observations of others, or conversations between the appellant and other persons.  Further, it was certain that the notes would go into evidence.

1. Fourth, this Court in McWhinney rejected the submission for the defendant that the judge’s questions were no more than plaintiff’s counsel would have asked had the plaintiff been represented.  One reason was that the questions had not been confined to the admitting doctor’s assessment.  That is not this case.  A second reason was that, in the Court’s estimation, plaintiff’s counsel would not have asked questions about notes which might possibly have been the subject of evidence by defence witnesses later on.  That is not this case.

1. Fifth, in that case the effect of the questioning was the admission of evidence which was then inadmissible, parts of which might never become admissible.  That is not this case.

1. Sixth, counsel for the defendant in that case conceded that a possible effect of the judge’s questions was that he formed an adverse view of the plaintiff which affected the outcome of the trial.  No such concession was made here.  To the contrary, respondent’s counsel submitted that the judge’s findings as to credibility were unimpeachable.

The respondent’s letter of 26 June 2008

1. The final matter raised by the ground of appeal, by sub-paragraph (e), is that the judge breached his fairness duty by wrongly refusing the appellant leave to tender a letter written by the respondent to the disciplinary tribunal in 2008; or, alternatively, failing to provide the appellant with reasonable assistance to tender the letter.  This asserted breach does not arise out the appellant’s evidence in chief.

1. In the letter, the respondent wrote in part:

Mrs O’Connell failed to outline the extreme low cut nature of the hipster jeans, which she wears, in any of the above five interviews.  Allowance would have been made for this with fine tuning of the scars laterally if she had volunteered this information.  Every effort was made to conceal the scar below the bikini’s [sic] that she brought in.

1. This short passage was part of a lengthy letter in the course of which the respondent refuted a number of allegations which the appellant later made when giving evidence in this proceeding.

1. The plaintiff briefly mentioned the particular passage when opening her case, saying that what the respondent had written ‘just doesn’t make sense’.

1. In examination-in-chief, she referred to a number of aspects of the letter, stating that some of what the respondent had said was lies.  She mentioned the passage set out at [101], and stated that it showed that the respondent had admitted that the scars could have been smaller.

1. She made no attempt to tender the letter, or any part of it, at that stage.

1. Then, during her cross-examination of the medico-legal expert Mr Archer, she asked questions relating to the necessary length of the incision made by the respondent.  She read to the witness that part of the letter set out at [101] above.

1. The judge then said this:

Ms O’Connell, just, please.  Ms O’Connell, you’re really asking this witness to comment on something that is a matter which is not of technical plastic surgery expertise.  You’re asking this witness to comment on Mr Barnett saying ‘Well, I wasn’t told that Ms O’Connell wanted an abdomen that could be seen without scarring if she was wearing this or that item of clothing.’  It’s not – that’s not expertise.  And I think it’s unfair on Mr Archer that you ask him to respond to it.  I understand your point, but I don’t think it’s a matter that you can question this witness on.

1. The appellant did not pursue the matter at that stage.  But after the witness had concluded his evidence, there was this interchange between the appellant and the judge:

MS O’CONNELL:  Your Honour, I just want to make this point very, very clear;  it’s said in Dr Barnett’s own words, ‘Allowance would have been made for this – Ms O’Connell failed out [sic] outline the extreme low cut nature of her hipster jeans.’  Well, actually my undies sit lower than my jeans.

HIS HONOUR:  You’re quoting from a response - - -

MS O’CONNELL:  It’s this, they wouldn’t give me - - -

HIS HONOUR:  Just hear me out.  You’re quoting from a response given by Mr Barnett to the Medical Board.

MS O’CONNELL:  Exactly, yes.

HIS HONOUR:  Following your complaint.

MS O’CONNELL:  Yes.

HIS HONOUR:  That’s not evidence before me.  So I know nothing about it.

MS O’CONNELL:  Well, I’m happy for it to be given into evidence.

HIS HONOUR:  Well, I’m not.

MS O’CONNELL:  Well, he clearly states ‘Allowance would have been made for this.’

HIS HONOUR:  Yes, I know, but that’s not what – that’s not before me.  I’ve got to make a decision based only on the evidence which comes before me.  And I don’t have that evidence.  So there’s no point in - - -

MS O’CONNELL:  Can’t I put his opinion in?  Because this is his opinion.  He’s saying it could have been done.

HIS HONOUR:  Well, you can’t at this stage.  You might be able to do it when Mr Barnett gives evidence.

MS O’CONNELL:  All right, OK.

HIS HONOUR:  When he gets into the witness box you may say to him, for example, ‘Is this an opinion you – is this a letter you wrote to the medical board?’

MS O’CONNELL:  Yeah.

HIS HONOUR:  ‘Do you stand by it?’

MS O’CONNELL:  Yeah.

HIS HONOUR:  But you’ve got to be careful about that because if you do do that Mr Murdoch might say ‘Well, I want that opinion to go into evidence.’

MS O’CONNELL:  I’m happy for it to go into evidence.

HIS HONOUR:  Well, I’m not sure I am.  Anyway, let’s leave that until Mr Barnett arrives. …

1. Counsel for the appellant, before us, submitted that his client had in substance tendered the letter at that stage, that respondent’s trial counsel had not objected, and that the judge should have accepted the tender.  But we think it likely that his Honour perceived that if the letter went into evidence it might, overall, work to the appellant’s disadvantage; and, for this reason, he discouraged tender.  That, we think, is why the judge explained to the appellant how part of the letter might be used in cross-examination of the respondent.  No unfairness was thereby worked upon the appellant.

1. In cross-examination of the respondent, the appellant took the witness to the letter, and put different parts of it to him.  He agreed that he had written those parts.  When the passage at [101] was put to him, he said that if the appellant had worn hipster jeans to a pre-surgery consultation, he would have drawn lines lower, and kept the scar within those bounds.  He was pressed that he had admitted (in the passage we have cited) that he ‘didn’t need to cut [the appellant] that much’.  He answered that he had made no such admission.  The appellant then said to the judge ‘as far as I’m concerned fine tuning means that you don’t cut them as much’.  The judge did not agree with that interpretation, and refused to permit the appellant to ask a question which made such an assumption.  In fact, the question had already been put and answered.

1. The appellant did not tender the letter at that stage.  The judge did not prompt her to do so.  His not doing so worked no unfairness upon her.  What she wanted to put in had already been put orally to the respondent.  He had agreed that he had written the part of the letter which had been put to him – although he disputed the meaning which the appellant sought to put upon it.

1. We add that, had the appellant tendered the letter, its receipt was likely to have hindered, rather than assisted, her case.  But if she had tendered part only of the letter, respondent’s counsel was likely to have argued that the whole should be tendered; and, if that argument had failed, to have tendered the letter through his client.

Orders

1. We would extend time for the service and filing of a Notice of Appeal to 13 June 2014, and would order that the ground set out at [3] above stand as the ground notified by Notice of Appeal served and filed that day.  We would dismiss the appeal.

MANDIE JA:

1. I agree with Ashley and Beach JJA.

1. However, I wish to add the following.

1. In my opinion, the judge did not fail to ensure a fair trial as the appellant contends.  The judge gave the appellant every opportunity to explain her case and to give her evidence in support of it.  As in McWhinney v Melbourne Health,[13] the judge’s questioning of the appellant was clearly designed to assist her in eliciting the evidence that was necessary to set out her case.

   [13](2011) 31 VR 285.

1. It would have been preferable, however, if the judge had left it to the

respondent’s counsel, if he so wished, to question the appellant about the matters that were recorded in the respondent’s notes.  It would also have been preferable if the judge had avoided asking questions of the appellant premised upon what the respondent was going to say in evidence, or what the judge considered he was probably going to say in evidence.[14]

[14]See, for example, T 127 where the judge says, ‘According to what Mr Barnett will say, is that, well I don’t know precisely what he will say, whether he says he said this to you, I think [counsel] said he will, what he says he said to you on this occasion, “The operation procedure was discussed again.  A cut from hip to hip bone necessary for good job”.’

1. Further, it was unfortunate that the judge found it necessary to ask the appellant to explain why a matter of significance to her case was mentioned in the respondent’s notes when her evidence was that the respondent did not raise it with her.  It was inappropriate for the judge to say to the appellant ‘can you explain how it appears to come into his notes then, if you didn’t raise it?’.  This put the appellant in a potentially invidious situation – although it is true that her response that the respondent had doctored his notes was one that she had voiced on a number of occasions.

1. However, that said, I am satisfied that the appellant was not deprived of the ability to put her case in a proper way by reason of the process adopted by the judge to assist her in explaining her position and that, looking at the transcript of her examination-in-chief as a whole, there was no failure by the judge to discharge his duty to ensure a fair trial.

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