Villella v Telstra Corporation Limited [No 2]
[2014] VCC 914
•6 March 2014 and 29 August 2014
| IN THE COUNTY COURT OF VICTORIA | Revised |
AT MELBOURNE
CIVIL DIVISION
Case No. CI-12-05259
| ROSA VILLELLA | Plaintiff |
| v | |
| TELSTRA CORPORATION LIMITED | Defendant |
...
JUDGE: | Lewitan | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 3, 4, 5, and 6 March 2014 | |
DATE OF RULING: | 6 March 2014 and 29 August 2014 | |
CASE MAY BE CITED AS: | Villella v Telstra Corporation Limited [No 2] | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 914 | |
REASONS FOR RULING
...
Subject: Apprehended bias
Legislation Cited: Civil Procedure Act 2010 ss 9, 47, 49; Evidence Act 2008 s 41; County Court Civil Procedure Rules 2008 Order 29.
Cases Cited:Johnson v Johnson (2000) 201 CLR 488; R v Watson; Ex parte Armstrong (1976) 136 CLR 248; Livesey v New South Wales Bar Assn (1983) 151 CLR 288; Re Keely and Anor; Ex Parte Ansett Transport Industries (Operations) Pty Ltd and Ors (1990) 20 ALD 289; Vakauta v Kelly (1989) 167 CLR 568; Galea v Galea (1990) 19 NSWLR 263;
Kekatos v The Council of the Law Society of New South Wales [1999] NSWCA 288; Rees v Bailey Aluminium Products Pty Ltd (2008) 21 VR 478; Anderson v National Australia Bank [2007] VSCA 172.
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr Korman | Shamrock Woodland Lawyers |
| For the Defendant | Mr McDonald | Moray & Agnew |
Table of Contents
Introduction..................................................................................................................................... 1-6
Applicable principles.................................................................................................................. 7-33
The history of the proceeding............................................................................................... 34-39
The substance of the apprehended bias aplication...................................................... 40-165
Narrowing the permitted scope of the plaintiff counsel’s cross-examination of Ms Cathcart 42-106
Appearance of bias in allocation of time for cross-examination and allocation of blame for length of trial.................................................................................................................................... 107-131
Answering questions on behalf of the witness......................................................... 132-140
Assertion of privilege on behalf of the witness......................................................... 141-145
Requiring plaintiff’s counsel to destroy the effect of his own cross examination 146-148
Advising a party how to exercise its rights................................................................ 149-152
Interposition of witnesses.............................................................................................. 153-165
Conclusion..................................................................................................................................... 166
Introduction
1 On the twentieth day of the trial, counsel for the plaintiff made an application that I recuse myself from further hearing the proceeding on the ground of apprehended bias. [1] At the time it was set down, the estimated duration of the trial was 10 – 15 days. At the commencement of the trial both counsel agreed that the duration of the trial would be 10 days.[2] The plaintiff made it clear that she does not allege actual bias.
[1]3 March 2014.
[2]Transcript p 41.
2 The matters relied on by counsel for the plaintiff in support of the application were summarised as my management of Ms Cathcart’s cross-examination on the 27 and 28 February 2014 (days 18 and 19 of the trial) viewed in the context of the trial as a whole to date. These matters included narrowing the permitted scope of the cross-examination of Ms Cathcart, the allocation of time for cross-examination and blame for length of the trial, answering questions on behalf of the witness, assertions of privilege on behalf of the defendant, requiring plaintiff’s counsel to destroy the effect of his own cross-examination, advising a witness how to exercise her rights and the interposition of witnesses. Counsel for the plaintiff submitted that he proposed to rely principally on the morning’s cross-examination of Ms Cathcart on Friday 28 February 2014.
3 The application made by the plaintiff was made on the basis that each point taken alone would not be sufficient to satisfy the test for apprehended bias but that the overall impression created by all of the matters would mean that a fair-minded observer might reasonably apprehend that the Court might not bring an impartial mind to the resolution of the relevant questions.
4 The defendant strenuously opposed the plaintiff’s application and each and every ground upon which reliance was placed. The defendant submitted that the application was not bona fide and that the plaintiff made a forensic decision to try and abort the trial to obtain more time to improve the plaintiff’s case.
5 After considering the submissions made by both parties, I concluded that the plaintiff had not made out a case for apprehended bias and dismissed the application on 6 March 2014. At that time, I said that I would provide my reasons for doing so with my judgment . I now provide my reasons.
6 The reasons contained in this judgment refer to issues raised and to witnesses who gave evidence in the substantive proceeding. Rather than provide a lengthy background to the substantive proceeding, I refer to the judgment Villella v Telstra Corporation Limited [No 1] 2014 VCC 913.
Applicable principles and relevant legislative provisions
7 It has been established by a series of decisions of the High Court that the test to be applied in Australia is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide. [3]
[3]Johnson v Johnson (2000) 201 CLR 488; R v Watson; Ex parte Armstrong (1976) 136 CLR 248; Livesey v NSW Bar Association (1983) 151 CLR 288, 294.
8 Counsel for the defendant referred to the following passage in the judgment of Brooking JA in State of Victoria v Psaila[4] :
The test is based not on notions of “real likelihood” or “real danger’ but on reasonable apprehension on the part of a fair-minded and informed observer:Webb v R. A question of ostensible bias can be a difficult one, involving matters of degree, and particular circumstances may strike different minds in different ways. Reasonable apprehension of bias must be firmly established, a mere lack of nicety is not enough. (emphasis mine).
[4][1999] VSCA 193, [28]
9 In a separate judgment Ormiston JA discussed the concept of the informed observer:
…it must be remembered that the informed observer will not entertain the necessary apprehension “merely because [the decision-maker] has formed a conclusion about an issue involved in the inquiry…When suspected prejudgment of an issue is relied upon to ground a disqualification of a decision-maker, what must be firmly established is a reasonable fear that the decision-maker’s mind is so prejudiced in favour of a conclusion already formed that he or she will not alter that conclusion irrespective of the evidence or arguments presented to him or her.[5]
[5][1999] VSCA 193, [47].
Excessive intervention
10 Counsel for the plaintiff referred to the following passage in Re Keely and Another; Ex parte Ansett Transport Industries (Operations) Pty Ltd and others:[6]
Of course judicial intervention can be excessive and should not be such as to deprive counsel of the opportunity to put their case coherently and in the manner in which they wish to put it.
[6](1990) 20 ALD 289 at 296.
11 However in the preceding paragraph of that judgment Dawson J referred to the observation by the majority in Vakuata v Kelly[7]:
In the course of an eloquent passage in his judgment in R v Watson; Ex parte Armstrong[8] Jacobs J expressed the view that judicial “silence” is a “counsel of perfection”. We respectfully disagree with the application of that observation to a trial judge sitting without a jury. It seems to us that a trial judge who made necessary rulings but otherwise sat completely silent throughout a non-jury trial with the result that his or her views about the issues, problems and technical difficulties involved in the case remained unknown until they emerged as final conclusions in his or her judgment would not represent a model to be emulated.
[7](1989) 167 CLR 568, 571.
[8](1976) 136 CLR 248, 294.
12 Counsel for the defendant submitted that it was important to take into account the exigencies of modern litigation and referred to the following passage in Johnson v Johnson[9] :
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 suggestion 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 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.
[9](2000) 201 CLR 488, 493.
13 When discussing the attributes of a fictitious bystander, Kirby J in Johnson stated that the fictitious bystander must “now be taken to have, at least in a very general way, some knowledge of the fact that an adjudicator may properly adopt reasonable efforts to confine proceedings within appropriate limits and to ensure that time is not wasted”.[10]
[10](2000) 201 CLR 488, 508.
14 Counsel for the defendant referred to the discussion by Kirby J in Johnson about the changes that have come about in the administration of justice.
Changes that have come about in the administration of justice, including the increase in the number of trials by single judges, have also required, to some extent, an adjustment to the rules of reticence in judicial observations that may still be appropriate where trials, criminal or civil, are conducted before a jury. One of the reasons for such changes has been the desire to increase the efficient management of the trial process. Yet it is in that context that the expressions of preliminary and tentative views may sometimes appear to an outsider to indicate prejudgment. Although some adjudicators may be hard to shift from tentative opinions, lawyers know that, in most judicial decision-making, the process is a continuous one. Preliminary inclinations do change. [11]
[11](2000) 201 CLR 488,505.
Judge not to assume the role of an advocate
15 Counsel for the plaintiff referred to the following passage in Kekatos v The Council of the Law Society of New South Wales[12] :
A judge should not depart from his role as a judge and take up the role of an advocate. But particularly when sitting without a jury (as was his Honour), the judge may intervene to control, to clarify, or to make known a provisional view. In modern times it is to be expected that the judge will not be a silent spectator, but will so intervene in the interests of ensuring a just and expeditious trial.
[12][1999] NSWCA 288.
16 Counsel for the defendant referred to the leading judgment delivered by Kirby A-CJ in Galea v Galea[13]. When considering the suggestion that the judge had assumed the role of an advocate, Kirby A-CJ stated that the guidelines established by the authorities provide that the examination must take place in the context of the whole of the trial and in the light of the number, length, terms and circumstances of the interventions. Kirby A-CJ endorsed the view that it has become more common for judges to take an active part in the conduct of cases than was hitherto conventional and to take a more active role, particularly in civil lists. “In part, this change is a response to the growth of litigation and the greater pressure of court lists.”[14]
[13](1990) 19 NSWLR 263, 281-282
[14](1990) 19 NSWLR 263, 282.
Duty to hear and determine cases
17 The defendant referred to the warning against the ‘abdication of judicial function’ referred to in the following passage in Livesey v NSW Bar Association[15]:
If a judge at first instance considers that there is any real possibility that his participation in a case might lead to a reasonable apprehension of pre judgment or bias, he should, of course, refrain from sitting. On the other hand, it would be an abdication of judicial function and an encouragement of procedural abuse for a judge to adopt the approach that he should automatically disqualify himself whenever he was requested by one party so to do on the grounds of a possible appearance of pre-judgment or bias, regardless of whether the other party desired that the matter be dealt with by him as the judge to whom the hearing of the case has been entrusted by the ordinary procedures and practice of the particular court.
[15](1983) 151 CLR 288, 294 (Mason, Murphy, Brennan Deane and Dawson JJ).
18 The obligation of judicial officers to sit and not to accede too readily to suggestions of appearance of bias has frequently been referred to in decisions of the High Court. In Galea v Galea Kirby A-CJ stated:
I first remind myself of Mason J’s warning in JRL; Ex parte CJL (at 352) that judicial officers should not too readily submit to an application that they should disqualify themselves from sitting. Such applications are increasingly made nowadays:
“…Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour.
I take it that this is the kind of consideration that Powell J had in mind when he referred to the “bluff being called.”[16]
[16](1990) 19 NSWLR 263, 278.
19 In Johnson v Johnson Kirby J referred to the salutary warning given in Re JRL ; Ex parte CJL[17] that judicial officers in Australia were obliged to discharge their professional duties unless disqualified by law.
They were told not to accede too readily to suggestions of an appearance of bias, lest parties be encouraged to seek such disqualification without justification. Applications of that kind might sometimes be made in the hope of securing an adjudicator more sympathetic to a party’s cause. Or they might be made because of the strategic advantage that may thereby be secured, expecially the interruption of lengthy proceedings and the delays consequent upon obtaining a fresh start in a busy court or tribunal.[18] (emphasis mine)
Context of the whole trial
[17](1986) 161 CLR 342, 352.
[18](2000) 201 CLR 488 at 504.
20 Counsel for the defendant submitted that the impartial observer is not a person who wandered into this court last Friday morning. The impartial observer is somebody who sat in the court, is familiar with the issues, the way the evidence has unfolded and the exchanges between counsel and the bench that have preceded the particular exchanges that are relied upon by the plaintiff to establish basis. Counsel for the defendant referred to the following passage in the judgment of Kirby A-CJ in Galea v Galea[19] :
In judging the suggestion of a supervening apprehension of bias, it is reasonable to assume that the hypothetical lay observer would base the opinion on a fair assessment of the judge’s conduct in the context of the whole of the trial. … the right, and perhaps the duty, of the judge to expose the development of his thinking to the appellant, and explain and justify what he said, can be viewed as a whole and seen in context.
[19](1990) 19 NSWLR 263, 279.
21 Similarly at point 4 of the guidelines emerging from the cases dealing with allegations that the Judge had assumed the role of an advocate, Kirby A-CJ repeated:
4.The decision on whether the point of unfairness has been reached must be made in the context of the whole trial and in the light of the number, length, terms and circumstances of the interventions. It is important to draw a distinction between intervention which suggests that an opinion has been finally reached which could not be altered by further evidence or argument and one which is provisional, put forward to test the evidence and to invite further persuasion. [citations omitted].[20]
Excessive judicial questioning
[20](1990) 19 NSWLR 263, 281.
22 In Galea v Galea[21] Kirby A-CJ drew a distinction between the limits of questioning or comments by a judge when sitting with a jury and when sitting alone in a civil trial. Kirby A-CJ stated:
2.…Although there is no relevant distinction, in principle between the judicial obligation to ensure a fair trial whatever the constitution of the court, greater latitude in questioning and comment will be accepted where a judge is sitting alone. This is because it is conventially inferred that a trained judicial officer, who has to find the facts himself or herself , will be more readily able to correct and allow for preliminary opinions formed before the final decision is reached: see R v Matthews (1983) 78 Cr App R 23; E H Cochrane Ltd v Ministry of Transport.
[21](1990) 19 NSWLR 263, 281.
23 Counsel for the defendant submitted that in one sense the application was premature given the fact that Ms Cathcart was still in the process of being cross-examined and there had been calls for further documents which would be answered at an appropriate time.
24 An apprehended bias application based on the cumulative effect of various factors was considered by the High Court in Concrete Pty Limited v Paramatta Design & Developments Pty Ltd[22]. In considering the comments made by the primary judge, Callinan J stated:
[22][2006] 229 CLR 577, 636.
As I have already indicated, the judicial interventions during the trial itself would not give rise to an apprehension of bias. Nor would the reasons for judgment, of themselves standing alone. It was not unreasonable for the trial judge to observe in his judgment that time and expense had been wasted on issues of no sufficient bearing upon the critical ones…
Taken cumulatively, his Honour’s interventions and reasons for judgment do not give rise to an apprehension of bias. Critical, strong and candid they may have been, but excessively so they were not. To some extent they may be taken to be expressions of exasperation, unfortunately so perhaps, but as a matter of degree, still falling short of apparent bias….The view that I take …is…that the appellant has established an absence of apparent bias.
The Civil Procedure Act 2010
25 Before I turn to the submissions relied upon by counsel for the plaintiff, it is necessary to consider the statutory obligations imposed on the Court by the Civil Procedure Act. The statutory regime was discussed by the Court of Appeal in Yara Australia Pty Ltd & Ors v Oswal[23] (Yara). In a joint judgment, Redlich, Priest JJA and Macaulay AJA stated:
8 One of the main purposes of the Act is ‘to provide for an overarching purpose in relation to the conduct of civil proceedings to facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute’ [s 1(1)(c)]. The Act provides for ‘overarching obligations for participants in civil proceedings to improve standards of conduct in litigation’, and ‘expanding the powers of the courts in relation to costs in relation to civil proceedings,’ [s 1(2)(a) and (b)].
9 The court is obliged to give effect to the overarching purpose of the Act ‘to facilitate the just, efficient, timely and cost effective resolution of the real issues in dispute’ [s 7]. The court is directed to further the overarching purpose by having regard to the objects and matters articulated in s9 of the Act which include the efficient use of judicial and administrative resources and dealing with the proceeding in a manner proportionate to the complexity and importance of the issues and amount in dispute.
[23][2013] VSCA 337
26 Section 9 of the Civil Procedure Act sets out the Court’s powers to further the overarching purpose:
(1)In making any order or giving any direction in a civil proceeding, a court shall further the overarching purpose by having regard to the following objects –
(a)the just determination of the civil proceeding;
(b)the public interest in the early settlement of disputes by agreement between parties;
(c)the efficient conduct of the business of the court;
(d)the efficient use of judicial and administrative resources;
(e)minimising any delay between the commencement of a civil proceeding and its listing for trial beyond that reasonably required for any interlocutory steps that are necessary for –
(i)the fair and just determination of the real issues in dispute; and
(ii)the preparation of the case for trial;
(f)the timely determination of the civil proceeding;
(g) dealing with a civil proceeding in a manner proportionate to –
(i)the complexity or importance of the issues in dispute; and
(ii)the amount in dispute.
(2)For the purposes of subsection (1), the court may have regard to the following matters –
(a)the extent to which the parties have complied with the pre-litigation requirements or any other mandatory or voluntary pre-litigation processes;
(b)the extent to which the parties have used reasonable endeavours to resolve the dispute by agreement or to limit the issues in dispute;
(c) the degree of promptness with which the parties have conducted the proceeding, including the degree to which each party has been timely in undertaking interlocutory steps in relation to the proceeding;
(d)the degree to which any lack of promptness by a party in undertaking the proceeding has arisen from circumstances beyond the control of that party;
(e)the degree to which each person to whom the overarching obligations apply has complied with the overarching obligations in relation to the proceeding;
(f)any prejudice that may be suffered by a party as a consequence of any order proposed to be made or direction proposed to be given by the court;
(g)the public importance of the issues in dispute and the desirability of a judicial determination of those issues;
(h)the extent to which the parties have had the benefit of legal advice and representation. (emphasis mine).
27 Part 4.2 of the Civil Procedure Act deals with case management. The relevant provisions are:
47 Judicial powers of case management – overarching purpose and active case management
(1) Without limiting any other power of a court, for the purposes of ensuring that a civil proceeding is managed and conducted in accordance with the overarching purpose, the court may give any direction or make any order it considers appropriate, including any directions given or orders made -
(a) in the interests of the administration of justice; or
(b) in the public interest.
(2)A direction given or an order made under subsection (1) may include, but is not limited to, imposing any reasonable limits, restrictions or conditions in respect of –
(a)the management and conduct of any aspect of a civil proceeding; or
(b)the conduct of any party.
(3) Without limiting subsection (1) or (2), a court may actively case manage civil proceedings by –
(a)giving directions to ensure that the civil proceeding is conducted promptly and efficiently;
(b)identifying at an early stage the issues involved in the civil proceeding, including any issues that have not been resolved in accordance with the mandatory or voluntary pre-litigation requirements;
(c) deciding the order in which the issues in dispute in the civil proceeding are to be resolved including –
(i)deciding promptly which issues need full investigation and a hearing; and
(ii)disposing summarily of other issues;
(d)encouraging the parties –
(i)to co-operate with each other in the conduct of the civil proceedings;
(ii)to settle the whole or part of the civil proceedings;
(iii)to use appropriate dispute resolution;
(e) controlling the progress of the civil proceeding, including, but not limited to –
(i)fixing timetables;
(ii)dealing with as many aspects of a civil proceeding as it can on the same occasion;
(iii) dealing with the civil proceeding without the parties needing to attend court;
(iv)making use of technology;
(f) limiting the time for the hearing or any other part of a civil proceeding, including, but not limited to –
(i)limiting the number of witnesses at the hearing;
(ii)limiting the time for the examination or cross-examination of any witness;
(iii)limiting the issues or matters that may be the subject of examination or cross-examination;
(g) considering whether the likely benefits of taking a particular step in a civil proceeding justify the cost of taking it. (emphasis mine)
…
49 Court’s power to order and direct trial procedures and conduct of hearing
(1)In addition to any other power a court may have, a court may give any direction or make any order or give any direction it considers appropriate to further the overarching purpose in relation to the conduct of the hearing in a civil proceeding.
(2) A direction or an order under subsection (1) may be given or made by the court at any time-
(a)before a hearing commences; or
(b)during a hearing.
(3) Without limiting subsection (1), a court may give any direction or make any order it considers appropriate with respect to –
(a)the order in which evidence is to be given and addresses made;
(b)the order in which questions of fact are to be tried;
(c)limiting the time to be taken by a trial, including the time a party may take to present the party’s case;
(d)witnesses, including –
(i)limiting the time to be taken in examining, cross- examining or re-examining witnesses;
(ii)not allowing cross-examination of particular witnesses;
(iii)limiting the number of witnesses, including expert witnesses, that a party may call;
(e)limiting the issues or matters that may be the subject of examination or cross-examination;
(f)limiting the length or duration of written and oral submissions;
(g)limiting the number of documents to be prepared or that a party may tender in evidence;
(h)the preparation by the parties of an agreed bundle of documents for use in the proceeding or a schedule summarising business records or other documents;
(i)the place, time and mode of trial;
(j)evidence, including, but not limited to whether evidence in chief should be given orally, by affidavit or by witness statement;
(k)costs, including the proportions in which the parties are to bear any costs;
(l)any other matter specified in rules of court. (emphasis mine)
28 In Yara the Court of Appeal emphasised that the provisions of the Civil Procedure Act are under-utilised and that parties in a proceeding are under a strict positive duty to comply with each of the overarching obligations and the court is obliged to enforce those duties in the interests of improving case management, reducing waste and delay and enhancing the accessibility and proportionality of civil litigation.[24] Redlich, Priest JJA and Macaulay AJA said that “Judicial officers must actively hold the parties to account”.[25]
[24][2013] VSCA 337, [25]-[26].
[25][2013] VSCA 337, [26]
29 Counsel for the plaintiff submitted that the provisions of the Civil Procedure Act and the Court’s duty to efficiently and effectively engage in case management are not in dispute. The plaintiff wholeheartedly agrees that the Court was obliged to keep this case within reasonable bounds, and she agrees that the duration of this case has indeed exceeded those bounds. The plaintiff agrees that there must be proportionality and a claim for $347,677 does not justify a case of this length. The plaintiff does not suggest that I acted ultra vires or exceeded my jurisdiction.[26]
[26]Transcript pages 1573-1574.
30 Counsel for the plaintiff submitted that the Civil Procedure Act in this area has “wrought no revolution”, that the court always had the inherent powers to control its own process and nothing really has changed. This is contrary to the following view expressed by Redlich , Priest JJA and Macaulay AJA in Yara:
25The explanation for the under-utilisation of the provisions of the Act lies in part in a false perception that these provisions and the overarching obligations do not effect any material change to the Rules and the inherent jurisdiction of the Court. Sackville J, writing extra-judicially, referred to the misconception that specific legislative intervention is unnecessary, since the rules or the inherent powers of the confer ample authority on the judges to manage litigation in a manner that minimises delays and ensures that costs are proportionate to the matters in dispute, concluding that such a view underestimates the significance of legislation. The Act creates obligations which extend beyond those in the Rules and confers upon the courts a panoply of powers not found in the Rules. (Citations omitted, emphasis mine).
31 Counsel for the plaintiff submitted that the nub of the apprehension of bias is that there was an unfair application of case management principles. Counsel for the defendant submitted that I am given very specific powers to use in furtherance of civil proceedings and that is what I have done in terms of a number of the matters relied upon by the plaintiff.
The Evidence Act 2008 (Evidence Act )
32 The following provisions of the Evidence Act are also relevant:
41 Improper questions
(1)The court may disallow an improper question or improper questioning put to a witness in cross-examination, or inform the witness that it need not be answered. (emphasis mine)
(2) The court must disallow an improper question or improper questioning put to a vulnerable witness in cross-examination, or inform the witness that it need not be answered, unless the court is satisfied that, in all the relevant circumstances of the case, it is necessary for the question to be put.
(3)In this section, improper question or improper questioning means a question or a sequence of questions put to a witness that –
(a)is misleading or confusing; or
(b)is unduly annoying, harassing, indimidating, offensive, oppressive, humiliating or repetitive; or
(c)is put to the witness in a manner or tone that is belittling, insulting or otherwise inappropriate; or
…
(6) A party may object to a question put to a witness on the ground that it is an improper question.
(7)However, the duty imposed on the court by this section applies whether or not an objection is raised to a particular question. (emphasis mine)
33 In Rees v Bailey Aluminium Products Pty Ltd[27] the Court of Appeal (Ashley and Redlich JJA and Coghlan AJA) stated that the trial judge has a responsibility, independently of objections, to prevent counsel from asking “improper questions” when cross-examining a witness.
The oversight of the manner in which evidence is elicited is a primary function of the trial judge.
[27](2008) 21 VR 478, [87]
The history of the proceeding
34 Counsel for the defendant submitted that a trial of this proceeding was commenced on 18 July 2013 and was aborted because of comments His Honour Judge Cosgrave made after Mr Denysenko approached and made inappropriate comments to the defendant’s instructing solicitor on the third morning of the hearing.[28] At that stage Ms Villella was being cross-examined. The following day plaintiff’s counsel (without any notice) made a detailed application for the trial judge to disqualify himself. After two days of argument His Honour reserved his decision on the point and handed down his ruling on 22 July 2013.
[28]See His Honour’s Ruling [2013] VCC 882.
35 Counsel for the defendant submitted that the result of that application was that seven days of court time was rendered fruitless and both parties obtained certificates pursuant to the Appeal Costs Act 1988. It was later realised that the defendant was not eligible to obtain a certificate because it was a corporation of a certain size. The upshot of the application for recusal was that the plaintiff had her costs paid whereas the defendant, through no fault of its own, had to bear all its costs in relation to the aborted trial.
36 Counsel for the defendant submitted that what followed after that were some extra-ordinary efforts by the plaintiff’s solicitors to ensure that Telstra was not indemnified by the Appeal Costs Fund. On 30 July 2013 Mr Bradley of Shamrock Woodland Lawyers forwarded an e-mail to Judge Cosgrave’s associates in the following terms:
The plaintiff applies to the court to be heard in relation to an application for orders that:
1.The defendant is permanently restrained from making application to the Appeal Costs Board for any payment in respect of the indemnity costs certificate granted by order of Justice Cosgrave [sic] on 22 July 2023.
2. The defendant pay the plaintiff’s costs of the application.
37 The defendant submitted that the application that I should recuse myself for apprehended bias was not bona fide. The application was made on the 20th day of the trial. The plaintiff had all but closed her case. The defendant had led a substantial proportion of its evidence, including four key witness Mr Lamont, Mr Hicks, Ms Cathcart (part-heard) and Mr Emery (part-heard). All the witnesses had given lengthy evidence, including extensive cross-examination, and had either spent days at court (Mr Hicks, Mr Emery) or on call.
38 The defendant submitted that plaintiff has made a forensic decision to try and abort the trial with a view to obtaining a hearing by a different Judge and/or to obtain more time to improve the plaintiff’s case. Counsel for the defendant submitted that the forensic decision which was made is unsurprising given the lack of evidence adduced on behalf of the plaintiff, including the unexplained failure of the plaintiff to give evidence, major credibility issues concerning Mr Denysenko, the lack of corroboration of Mr Denysenko’s evidence and the absence of documentary evidence concerning the alleged rectification work.
39 The defendant submitted that it can be reasonably anticipated that the plaintiff would make a further application for a certificate pursuant to the Appeal Costs Act in the event that this application is successful. If so the plaintiff will be indemnified for her costs for the 20 plus days of the trial. The defendant, on the other hand, is not entitled to such a Certificate and will incur, for the second time, a significant amount of costs together with immeasurable inconvenience and distress to its witnesses such as Ms Cathcart, Mr Hicks, Mr Emery as well as the other witnesses it proposed to call.
The substance of the apprehended bias application
40 An application for apprehended bias involves a two-step process. First the party making the claim must identify conduct that might lead the judge to decide the case other than on its merits, and second the party must show a logical connection between that conduct and the feared deviation from the course of deciding the case on its merits.[29]
[29]Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337.
41 The plaintiff relied on seven matters in support of its application.
(A) My actions in continually and unreasonably narrowing the permitted scope of plaintiff’s counsel’s cross examination of Ms Cathcart over the course of the morning of 28 February 2014;
(B) Appearance of bias in allocation of time for cross examination and allocation of blame for length of trial;
(C) Answering questions on behalf of the witness. It is alleged that on two occasions I answered questions put by plaintiff’s counsel on Ms Cathcart’s behalf;
(D) Assertions of privilege on behalf of defendant;
(E) Requiring plaintiff’s counsel to destroy the effect of his own cross-examination;
(F) Advising a party how to exercise its rights; and
(G) Interposition of witnesses.
A. Narrowing the permitted scope of plaintiff counsel’s cross- examination of Ms Cathcart
42 The plaintiff submitted that my actions in continually and unreasonably narrowing the permitted scope of plaintiff’s counsel’s cross examination of Ms Cathcart over the course of the morning of 28 February 2014 constituted excessive intervention depriving counsel of the opportunity to put the plaintiff’s case coherently in the way the plaintiff wished to put it.
43 The plaintiff alleged that my intervention in the conduct of Ms Cathcart’s cross-examination could fairly be said to have created the impression that I had assumed the role of advocate for the defendant. The plaintiff submitted that it is not asserted that I had assumed the role of advocate but that a fair minded onlooker may form the view that I had adopted that role.
44 As stated by Kirby A-CJ in Galea v Galea[30] it is reasonable to assume that the hypothetical lay observer would base the opinion on a fair assessment of the judge’s conduct “in the context of the whole of the trial.” It is necessary to consider the matters that had transpired in court before Ms Cathcart was cross-examined on the morning of 28 February 2014 (the 19th day of the trial) in order to appreciate the circumstances in which I intervened.
Plaintiff’s application to amend her pleadings
[30](1990) 19 NSWLR 263, 279.
45 On the 13th day of the trial (20 February 2014) and before Mr Gairns was cross-examined, counsel for the plaintiff sought to amend the plaintiff’s statement of claim. In effect, the plaintiff wanted to add a new cause of action that at the time of performing the works on the back fence, Telstra ought to have paid attention to what was going on with the conduit at the front of the house[31] and that “even if all that was installed was the rear cable, Telstra ought to have prevented water coming into the house”.[32]
[31]Transcript pp 830 – 831.
[32]Transcript p 830.
46 Counsel for the defendant opposed the plaintiff’s application and submitted that the proposed amendments were designed to overcome fatal flaws in the plaintiff’s case based on how the evidence had emerged during the running of the case.[33]
Now, in my submission it would be fair to say that if Telstra’s evidence was accepted as to what work they did on 15 June 2009, the plaintiff’s case must inevitably fail. Because the plaintiff’s case has always been that Telstra – originally it was that they’d laid the 50 mill conduit. Well that allegation had now been abandoned, but only abandoned after evidence. Then it is put on the basis that, “Oh, well, they didn’t install the long piece of 50 mill conduit, they installed this shorter piece of 50 mill conduit and the cable and the junction box and disconnected and re-connected the 10 mill conduit.”
Now, it seems to me that if Your Honour doesn’t accept that case either, again, the plaintiff’s case must immediately fail. And in my submission that’s become readily apparent to the plaintiff’s legal advisors, so when carefully analysed these amendments are designed to overcome the major deficiencies in the plaintiff’s case as it has emerged from the evidence.[34]
[33]Transcript p 832.
[34]Transcript pp 832-833.
47 Counsel for the defendant submitted that the amendments bear no relationship to the way the case was opened, no relationship to the evidence given by Mr Denysenko and was not mentioned in Mr Gairns’ Order 44 statement. The amendments were an attempt to establish a general duty of care owed by a telecommunications company in terms of carrying out ancillary works not related to the work it actually performed on the person’s premises.
“So it’s a new allegation. It raises all sorts of ramifications in terms of the pleadings and the evidence, but we say most importantly it has been thrown into the mix at this stage because there are fatal flaws in the plaintiff’s case and this is being done as a desperate attempt to salvage something from the case so far.[35]
[35]Transcript p 833.
48 Counsel for the defendant submitted that the application was made on day 13 of the trial. The previous trial went for six days. The trial was listed for hearing once before that.[36] The plaintiff had the opportunity to seek to amend her statement of claim prior to the commencement of this trial.
[36]Transcript pp 834 -835.
49 After some discussion, the plaintiff withdrew her application to amend her pleadings.
Cross-examination of Mr Lamont
50 The fair-minded lay observer would have seen that on the following day (day 14 of the trial), Mr Lamont was subjected to cross-examination by counsel for the plaintiff in a loud, aggressive manner and that questions were put without a proper foundation.
MR KORMAN: And you did not say anywhere on p.3007, “NB. Mr Hicks tells me this work has been done but it doesn’t appear anywhere on Telstra’s records.”
HER HONOUR: There’s no real reason to raise your voice.
MR KORMAN: I’m sorry, Your Honour.
HER HONOUR: Thank you.
MR KORMAN: I’m losing control.[37]
[37]Transcript pp 923 – 924.
51 The cross-examination continued:
He did it from his own pocket, do you believe?...Ask Mr Hicks.
Do you think, as a Telstra expert giving evidence about the usual procedures followed at Telstra, that it is likely that Mr Hicks personally financed this operation?
MR McDONALD: Your Honour, I object to this question and I…
HER HONOUR: Could you please ask…? Well I wouldn’t think Mr Hicks personally financed….
Would….? …Sorry.
Would you please leave the court room
(THE WITNESS WITHDREW)
MR McDONALD: In my submission this line of questioning in relation to Mr Hicks is at best mischievous because my learned friend is well aware that there’s an Order 44 statement filed in these proceedings by Mr Hicks in which he sets out what was done in relation to this particular work, and in particular the engagement of a Telstra contractor to see to it. So to suggest to this witness that Mr Hicks might have funded it out of his own pocket or something like that in my submission is mischievous and inappropriate.
MR KORMAN: Well, Your Honour, I take great exception. I haven’t taken exception till now, but I do from now on, at words such as “mischievous” being used in relation to me. Now the fact that Mr Hicks may or may not give evidence when he is on the stand is totally beside the point to this question.[38]
[38]Transcript p 929 – 930.
Application for further discovery
52 On the following day (the 15th day of the trial) counsel for the plaintiff made an application for further discovery.
Justine Cathcart’s evidence
53 The substance of the plaintiff’s complaint concerning apprehended bias pertains to the evidence given by Ms Cathcart and in particular the cross-examination on the morning of Friday 28 February 2014. Ms Cathcart commenced her evidence on Thursday morning the 27 February 2014 and was still in the witness box on Friday lunchtime with an indication by counsel for the plaintiff that the cross-examination would continue for some hours to come. The cross-examination on Friday morning was largely in relation to topics that had already been covered on the previous day.
54 Ms Cathcart is a Dispute Resolution Group (DRG) Claims Officer employed by Telstra Corporation to manage public liability claims for Telstra. Ms Cathcart’s role in the proceeding has been to search data bases and compile lists of documents which have formed the basis of affidavits of discovery. The scope of her evidence and any interchange with counsel concerning admissibility of her evidence and relevance must be analysed in terms of relevance to the issues in dispute and Order 29 of the County Court Civil Procedure Rules 2008 (County Court Rules) which provides for a limited scope for discovery and secondly provides that the requirement for discovery is to carry out a reasonable search.
55 As my management of the cross-examination of Ms Cathcart on Friday must be viewed in the context of the trial as a whole, it is necessary to consider the evidence given by Justine Cathcart on Thursday 27 February and Friday 28 February, the 18th and 19th days of the trial.
56 At the conclusion of Mr Lamont’s evidence, counsel for defendant asked if Mr Lamont could be excused. Counsel for the plaintiff had no objection. Counsel for the plaintiff then made the following application:
...The plaintiff would wish to cross-examine Ms Cathcart. My understanding has been, from my friend, that she is to be called in any case but what I would want is either that my friend gives an undertaking to the court that she will be here or that the court gives leave at some stage for the plaintiff to re-open its case, subpoena Ms Cathcart and re-open its case purely for the purpose of cross-examining her on that affidavit.
HER HONOUR: Well I don’t understand how you would cross-examine her anyway if you re-opened your case. You couldn’t cross-examine her if you called her as your witness.
MR KORMAN: That’s true. Well in that case…
HER HONOUR: So I just don’t really understand what you’re saying. I mean, you’re not prejudiced because you’ve got the document.
MR KORMAN: No, Your Honour.
MR McDONALD: I’ll put my learned friend’s mind at rest, Your Honour, if it helps. Ms Cathcart will be called in the case.
HER HONOUR: Very well.
MR McDONALD: Subject to this. She has been in hospital and she, as we understand it, is being discharged from hospital today, and subject to her state of health generally, it is intended to call her up as a witness in the proceedings.[39]
[39]Transcript pp 975 – 976.
57 Before Ms Cathcart was sworn, counsel for the defendant advised the court that “she recently had surgery and she’s asked to be allowed to sit while she gives her evidence”.[40]
[40]Transcript p 1227.
58 Ms Cathcart came into court carrying a surgical ring cushion and it was difficult for her to enter and exit the witness box. On each occasion when Ms Cathcart was asked to leave the court, it was necessary for Ms Cathcart to stand, remove the surgical ring cushion from the seat in the witness box and take the surgical ring cushion with her. This process was cumbersome and time consuming.
59 Counsel for the plaintiff repeatedly insisted that objections be taken in the absence of the witness.
MR KORMAN: Your Honour, I do insist that objections are taken not in the hearing of this witness.
…..
HER HONOUR: Perhaps if you could wait till the witness leaves the room, Mr McDonald.[41]
[41]Transcript p 1268.
60 On 30 April 2012 Steve Hicks sent a Damages Investigation Report to Justine Cathcart (the damages investigation report).[42] On 1 May 2012 Liz Stafford forwarded an email to Steve Hicks about the damages investigation report stating that “the member of public is claiming approximately $150K”.[43]
[42]Exhibit AD.
[43]Exhibit AD.
Transcript page 1231-1236 (day 18 - 27 February 2014)
61 Mr Lawrence Skipworth-Michell sent an email to all three members of the Claims Management Group on 27 June 2012 seeking advice on his recommendations in relation to the claim.[44]
[44]Transcript p 1231.
What was his advice?...I recall he thought there were issues with the client and he recommended three courses of action. One was to deny the claim outright, one was to conduct further investigations and the other was to see if we could undertake settlement negotiations.
And on what basis did he say that one of your courses of action was to deny the claim?
MR McDONALD: Your Honour, I object to these questions on the basis of relevance.
MR KORMAN: Can the witness please leave the room. I know it’s hard – but.
(THE WITNESS WITHDREW)
HER HONOUR: Yes, Mr Korman, what’s the relevance of these questions?[45]
MR KORMAN: Sorry, I thought my friend was going to.
HER HONOUR: Well, he’s made his objection. So what’s the relevance?
MR KORMAN: Relevance. Yes, Your Honour. The rreason that Mr Skipworth’s advice to Telstra is relevant is – just one moment – has several …
HER HONOUR: But you’re asking on what basis he…
MR KORMAN: Yes, Mr – sorry.
HER HONOUR: Well, shouldn’t you be asking that of Mr Skipworth.
….
MR KORMAN: We say it is relevant because Mr Skipworth’s assessment of what were and were not the issues in the case is a very relevant matter to these proceedings. What Mr Skipworth told Telstra at this point is very relevant because this case is about Telstra’s liability.[46]
[45]Transcript p 1231.
[46]Transcript p 1232.
62 Counsel for the plaintiff submitted that the email is not privileged because litigation was not anticipated by Ms Cathcart at that stage.
What this witness statement establishes is that the process was as follows. The claim arrived. The claim was sent to Mr Skipworth for assessment. Mr Skipworth came back to Ms Cathcart. Ms Cathcart says in her witness statement that seeing as it was over $60,000 it was to be sent to Moray & Agnew for their advice. At some stage they gave advice – which I don’t know, but will adduce when that was. But it was only after that advice was given at the earliest that litigation was anticipated.
And the authorities are that it is not enough that there was a possibility of litigation, there must be an actual anticipation. And until – at the very earliest until Moray & Agnew said don’t settle, or whatever they said – we don’t know what they said, but at least until Moray & Agnew was asked that question in order to determine should we litigate this or should we not litigate it, no view, on my submission, had been formed before that.[47]
[47]Transcript p 1233.
HER HONOUR: Yes.
MR McDONALD: Any evidence in a proceeding must be relevant to the facts in issue. The facts in issue in this proceeding are (1) did Telstra perform the work it is alleged to have performed in June 2009, (2) if it did, was a result of that work that water entered the house via the 10 millimetre conduit at some point in time, and (3) if so, did that water result in new or further damage to the house and the plaintiff thereby suffered loss.
Now, evidence as to dealings between Mr Skipworth-Michell and Ms Cathcart and/or Moray & Agnew are not relevant to the facts in issue before Your Honour. It is not pleaded that somehow the claim has been admitted. That’s not been raised in the pleadings. And even if it were, we would say – well, it hasn’t been pleaded. But the facts in issue are, as I’ve described, and the evidence from any witness and the cross-examination of any witness must be relevant to those issues. And this simply isn’t. And I’ll also raise for consideration a question of privilege, but that is not my primary argument.[48]
…
HER HONOUR: But why is it relevant to first of all, whether Telstra performed the work? Secondly, if it did, was the damage caused? And, thirdly, did the plaintiff suffer loss? Why is it…
MR KORMAN: Because Mr Skipworth may well have provided evidence and materials that relate to those topics. And not only that, Your Honour, he may well have said other stuff that relates one way or the other to the question. And I have to say this as well – and I suppose it is right to raise it at this point. Part of this cross-examination is going to go to Telstra’s credit. It’s not only on issues of – factual issues of causation.
There’s issues of credit and the way Telstra is running this litigation and very important issues of credit that this witness is primarily placed to respond to. She, it appears, is Telstra’s public face in running this matter. And therefore if, for example, Mr Skipworth said, “this is hopeless”, that goes to credit – it is hopeless to deny liability. It goes to Telstra’s credit…
HER HONOUR: Well, that’s for me.
MR KORMAN: I understand that.
HER HONOUR: I mean, that’s for me to decide. And what Mr Skipworth may or may not have said is irrelevant on that. It’s just irrelevant.[49]
[48]Transcript pp 1233 – 1234.
[49]Transcript pp 1235 – 1236.
63 Counsel for the defendant submitted that it is clear from the transcript that at all relevant times, the defendant has maintained or asserted its objections to certain evidence either on the basis of relevance and/or legal professional privilege. And alternatively that the line questioning was an attempt at further discovery.
Transcript p 1237 (27 February 2014 – day 18)
64 Counsel for the plaintiff questioned Ms Cathcart about the email which Mr Skipworth-Michell sent to Ms Cathcart on 27 June 2012.
On what grounds did Mr Skipworth say Telstra could deny the claim?...On the basis that it appeared as though the cable had been broken when a palm tree was planted in the yard. As such, whoever had planted the palm tree had most likely damaged the cable. Therefore any – any – that was not our issue.
Mr Korman called on Telstra to produce that email.[50]
MR McDONALD…We’ll conduct some inquiries while the evidence is proceeding, Your Honour.[51]
[50]Transcript p 1237.
[51]Transcript p 1237.
Transcript pages 1238 – 1242 (27 February 2014 – day 18)
65 Ms Cathcart said that she replied to Mr Skipworth-Michell on 28 June 2012. In that email she said that as the settlement negotiations he was wanting to undertake were for around $60,000. “I think, that I would need him to obtain legal advice from Moray & Agnew before I agreed to any settlement.”[52] Counsel for the plaintiff continued to cross-examine Ms Cathcart about the contents of the two affidavits of documents she swore on 5 February and 15 May 2013 and asked her whether the emails dated 27 and 28 June 2012 were contained in those affidavits.[53]
[52]Transcript pp 1237- 1238.
[53]Transcript pp 1238 -1239.
MR McDONALD: If my learned friend is referring to emails, presumably he has copies of the emails that he’s referring to.
MR KORMAN: No, Your Honour, these emails for the first time ever in this proceeding have come to the plaintiff’s attention through Ms Cathcart’s evidence. Ms Cathcart, you prepared the affidavits of documents for Telstra, didn’t you?...Yes I did.
Was 27 June email included in that affidavit?...I can’t recall.
Well, Your Honour, I think the affidavit speaks for itself. I can show the affidavit to the witness but I – well perhaps….
HER HONOUR: Yes, show it.
MR KORMAN: Ms Cathcart, I’ll hand you up the affidavit of documents.
HER HONOUR: Is this affidavit of documents in your second volume?
MR KORMAN: I think they’re in the defendant’s – both the first and the second. I’ve got p. 223.
HER HONOUR: Of the defendant’s book?
Mr KORMAN: The defendant’s book. And they go to - I think it’s p 242. Ms Cathcart, I’ll hand you up a copy of the three – there’s three affidavits. If you could just have a look through that at your leisure and when you have finished looking I’ll ask you that question again.
HER HONOUR: Which year?
MR KORMAN: 27 June – the emails in question are dated 27 June 2012 and 28 June 2012.
MR McDONALD: Your Honour, there’s a matter I wish to raise in the absence of the witness.
HER HONOUR: Thank you.
(THE WITNESS WITHDREW)
MR McDONALD: According to my instructions, on 26 February 2013, and I think this was the subject of some evidence the other day, a letter was sent by my instructing solicitors to Shamrock Woodland and in that letter it itemised – or attached to that letter was an itemised list of documents over which privilege was being claimed and the emails that my learned friend is now referring to are contained in that list.
HER HONOUR: Where is the – is that in the court book, the letter that you’re referring to?
MR McDONALD: No, it’s not in the court book.
HER HONOUR: Do you have a copy?
MR McDONALD: Yes I do, Your Honour. It was raised the other day – I’m sure it came before Your Honour the other day in the context of the issue about further discovery.
HER HONOUR: And was this the subject of the directions hearing? Was this the subject of the directions hearing over which settlement was reached?
MR McDONALD: Yes, I believe so, Your Honour.
HER HONOUR: What’s that document? Which document are you talking about now? Item number?
MR McDONALD: So that items 33 and – I believe that Items 33 and 34 on that list, Your Honour.
HER HONOUR: Yes. So take me through the chronology. So these were the – these were items 33 and 34 and then what, there was a directions hearing before – there was a summons before – which was scheduled for hearing on…
MR KORMAN: Your Honour, if I can just make the point before my learned friend starts, that it must be borne in mind this hearing was not a directions hearing, this matter related to subpoenaed material from Echelon which Telstra objected to production. So it was an interlocutory matter rather than a question of discovery by Telstra.
HER HONOUR: Yes.
MR McDONALD: I think the chronology was set out in Mr Kemp’s affidavit that was filed the other day.
HER HONOUR: If that’s the case it can’t go to credit, Mr Korman. It can’t go to credit as you’re putting to this witness.
MR KORMAN: Your Honour …
HER HONOUR: And that is – anyway.
MR McDONALD: So the point I wish to make, Your Honour, it cannot be properly put to a witness that documents weren’t discovered when clearly they have been discovered.
HER HONOUR: Yes, I know. It’s just…
MR KORMAN: Your Honour, I was not aware that those documents appeared there but I will be – and I be at some point when the evidence comes to – if the evidence that I believe will be adduced will be adduced, I will be making an application to see those documents.
HER HONOUR: But that’s already been ruled upon, it’s already been consented to and, Mr Korman, you are taking a lot of time pursuing matters that shouldn’t be pursued at this stage of the hearing.
MR KORMAN: Your Honour, I take on board what Your Honour is saying and, with respect…
HER HONOUR: Thank you, and they’re matters that relate to strategy and so on. Anyway, I’ll call the witness back at this stage. The questions are not permissible on the basis of credit.
MR KORMAN: Yes, Your Honour.
HER HONOUR: Thank you. Perhaps you can set that matter straight – I will with the witness.
MR KORMAN: I’m sorry, Your Honour?
HER HONOUR: Thank you. Perhaps you can set that matter straight – I will with the witness.
MR KORMAN: I’m sorry, Your Honour?
HER HONOUR: I’ll set the set the matter straight with the witness because you’ve made some implications.
JUSTINE MARY CATHCART, recalled:
Ms Cathcart, I just want to say to you that those emails that Mr Korman was referring to appear to have been referred to in a letter from Moray & Agnew to Mr Bradley on 25 February 2013 and privilege was claimed for the. Yes?
MR KORMAN: And it would be right to say that the purpose of that legal advice was to determine which course of action to take next?...And I also given the potential size of the claim, I’m also required to be able to justify any expenditure to the board and given the complexity of the claim, which we were only vaguely aware of at that stage, it was very important for us to have expert legal advice on the matter.
So in other words one of the possible options that was in your mind at that time was that if Moray & Agnew would advise payment should be made you would require….
HER HONOUR: You can’t ask her about – these are privileged matters.
MR KORMAN: Yes, Your Honour, the privilege…
HER HONOUR: You’re going to privilege, going to the advice that she’s seeking from her legal advisors.
MR KORMAN: And I will keep right away from anything to do with what advice was given by the legal advisors.
HER HONOUR: Thank you.[54]
[54]Transcript pp 1239 -1242.
Transcript pages 1245 -1250 (27 February 2014 – day 18)
66 Counsel for the plaintiff submitted that the plaintiff challenges the concept that all documents that predate September are privileged on the basis of litigation privilege (s119). He referred to the following paragraph 1.3.10720 of Stephen Odgers, Uniform Evidence Law, Tenth Edition.
The authorities indicate that proceedings are “anticipated or pending” where they are actually contemplated – a mere apprehension of possible litigation is not sufficient. [See cases cited in fn 100 p 658]. In Mitsubishi Electric Australia Pty Ltd v WorkCover Authority (Vic)[55] Batt JA (with whom Callaway and Charles JJA agreed) distilled the test (under the comparable common law) as being: “there must be a real prospect of litigation, as distinct from a mere possibility, but it does not have to be more likely than not”.
[55](2002) 4 VR 332.
67 Counsel for the plaintiff submitted that the purpose for which a document was prepared must be as determined at the time of its preparation. A discussion then ensued as to the issue of reopening questions of discovery after agreement had been reached in relation to the application and the agreement made on 26 February 2013.
MR KORMAN: … So, Your Honour, those are my submissions and as I say these documents over which privilege has been asserted, it is my submission that not only – not only – was there no privilege attaching to a lot of these documents….
HER HONOUR: Well, why was the agreement made that no objection would be taken to those documents? Well, just let us go through …
MR KORMAN: Yes, Your Honour.
HER HONOUR: …what’s stated.
MR KORMAN: Yes, Your Honour. Yes.
HER HONOUR: Because, Mr Korman, I’m very concerned as to the amount of time that’s being taken. And directions have been made. Applications have been made. And you can’t have two bites at the cherry.
MR KORMAN: Your Honour, those proceedings concerned only the question of a subpoena.
HER HONOUR: Well, that doesn’t matter. I mean, the question…
MR KORMAN: Well, it does matter. It does matter, Your Honour, because an agreement was made between the parties. The court can’t go behind that agreement. And I myself don’t even know what was the content of the discussions. All…
HER HONOUR: I beg your pardon? The court can’t go behind the agreement? The fact is that the agreement was made.
MR KORMAN: Yes, Your Honour.
HER HONOUR: The reasons for the agreement do not matter.
MR KORMAN: That’s right, Your Honour. So therefore because the reasons for the agreement do not matter all that the court is faced with is that the parties consented to orders that some documents will be produced and some documents won’t be produced. It is not possible to go beyond that and assert that the plaintiff accepted the proposition that…
HER HONOUR: I don’t accept your submissions on that.
MR KORMAN: Yes, Your Honour.
HER HONOUR: I just don’t accept your submissions.
MR KORMAN: Yes, your Honour.
…
HER HONOUR: I mean, it would make the process of the commercial list totally unworkable.
MR KORMAN: Your Honour, I just have to put this on record.
HER HONOUR: Everything that you say is on record, Mr Korman.
MR KORMAN: Well, I wish to make this submission, Your Honour. This case indeed is taking a long time. And this case indeed is taking a long time through no fault of the plaintiff. This case is taking a long time because the defendant has adopted numerous strategies, all of which waste a lot of time. One of them is claiming privilege in circumstances where it knew full well that no privilege could attach to these documents.
HER HONOUR: Yes, I’ve heard your submission on that. Thank you.
MR KORMAN; Well, I didn’t say the others.
HER HONOUR: I’ve got the book that you’re referring to.
MR KORMAN: Yes, Your Honour.
HER HONOUR: I’m just going to have a look at it.
MR KORMAN: Yes, Your Honour.
HER HONOUR: “The provision of a legal opinion as to whether a bank director’s estimate of a possible settlement figure for litigation was reasonable in all the circumstances was the provision of professional legal services” Have you got Warner v Women’s Hospitals and Lazenby v Zammit?
MR KORMAN: With me, Your Honour?
HER HONOUR: Yes, with you.
MR KORMAN: No, I haven’t got any authorities.
HER HONOUR: Yes. And in Mitsubishi Electric Australia Pty Ltd v Workcover Batt JA distilled the test under the comparable common law as being, “There must be a real prospect of litigation, as distinct from a mere possibility, but it does not have to be more likely than not.”
MR KORMAN: Yes, Your Honour.
HER HONOUR: Yes. What do you say, Mr McDonald?
Mr MDONALD: We say this matter was resolved by way of the summons that was issued in relation to it and the orders that were made.
HER HONOUR: And what date was the summons issued? Have I got a copy of the summons in Mr – is it Mr Kemp’s affidavit?
MR McDONALD: What I wanted to bring Your Honour’s attention to was an affidavit in opposition to that was sworn by Lawrence Skipworth-Michell. I’ll hand up a copy to Your Honour. It’s not on the file.
HER HONOUR: And can I have the summons, a copy of the summons please.
MR McDONALD: Could I also hand up the affidavit and the orders, Your Honour. And in particular, refer Your Honour to Paragraph 6 of the affidavit and the orders.
HER HONOUR: Thank you. I’m going to read these affidavits in my chambers.
(Short adjournment)
HER HONOUR: Yes, Mr McDonald, I’ve read the affidavits. What do you wish to say?
MR McDONALD: Well just to repeat what I said before, that is to say that these issues were the subject of a summons. There was an affidavit sworn by Mr Skipworth-Michell at paragraph 6, asserting that “The nature and quantum of the Claim were such that I believed it was highly likely that litigation would be commenced against Telstra in relation to the claim.”
HER HONOUR: Yes.
MR McDONALD: So we would submit that from that date at the latest these communications are privileged and in terms of – well firstly we say it was dealt with by way of the summons and consent orders, that’s the first point. Secondly, we say that the types of communications that evidence is sought to be adduced fall within s.119(a), “A confidential communication between…”
HER HONOUR: One moment, I’ll turn that up, thank you. Yes, continue.
MR McDONALD: So sub-section (a) says: “A confidential communication between the client”, which in this case is Telstra, “and another person”, which in this case is Lawrence Skipworth-Michell, “or between a lawyer acting for the client”, which is in this case Moray & Agnew , “and another person”, which may be Mr Skipworth-Michell, “that was made for the predominant purpose of the client being provided with legal services, et cetera, or an anticipated or pending Australian or overseas proceeding in which the client is or may be or was or might have been a party.”
…
HER HONOUR: Yes. Do you wish to say anything by way of reply, Mr Korman?
MR KORMAN: Only two very minor things, Your Honour. One is I’m not sure if my friend is making this point or not, but the privilege is Telstra’s to assert or deny, not – not Echelon Claims Management, and the second is that despite whatever is in Mr Skipworth’s affidavit, the plaintiff is seeking to adduce evidence from this witness that goes to establishing the date of anticipated proceedings.
HER HONOUR: Well if you wanted to challenge Mr Skipworth’s allegation and if you had wanted to challenge the claims being made for privilege, then that should have been dealt with at the time that these proceedings were dealt with in the directions court. And an agreement was made and I don’t propose to allow those issues to be re-litigated here and I will provide my – I won’t allow the questions and I’ll provide my reasons….
MR KORMAN: If I can just have Your Honour clarify. The questions that are not allowed are questions that go to the issue of when the anticipated date of proceedings was? I’m asking if that’s what the court’s…
HER HONOUR: Well the questions [that] relate to any questions that arise out of and in relation to the emails the subject of the privilege.[56]
[56]Transcript pp 1245 – 1250.
Transcript pages 1252 – 1257 (27 February 2014 – day 18)
68 After further discussion, Ms Cathcart was recalled.
MR KORMAN: Yes, Ms Cathcart, in your statement you say that in early November 2012 Telstra was served with the statement of claim?...Yes that’s right.
What I’d like to ask you is, when you received that statement of claim, was that the first time it was anticipated as a real possibility that this litigation would begin?...No, given the quantum of the claim, we would regard anything that large as I suppose not likely but litigation being a distinct possibility.
What I’m saying is …
HER HONOUR: You’ve got your answer.
Mr Korman: Your Honour, I can’t really discuss this in front of the witness.
HER HONOUR: Well, what’s your next question?
MR KORMAN: My next question is you had said earlier that the advice that was being sought from Moray & Agnew was one of the possible lines of action would be if a settlement was recommended you would need to get approval from the board and you would need legal advice to get that approval up?...That’s not correct, I wouldn’t need approval from the board but I would have to be able to justify my decision to the board.
Yes, and that was one of the possibilities. What I’m asking you is was there any time between getting the legal advice of Moray & Agnew and November when the statement of claim was served on you, was there any time that you at Telstra – or your opinion, had shifted from it being a distinct possibility to it being actually contemplated?...I don’t understand the question.
HER HONOUR: Yes, I don’t understand the question either.
MR KORMAN: I’ll put it to you this way. From the moment the claim was served on Telstra, there was always a distinct possibility that there would be litigation, wasn’t there?...Yes.
And I’m saying was there any stage where Telstra’s anticipation of litigation became, when you thought, this is more than just a possibility, this might actually happen?...Yes.
When was that?...That would be as the claim progressed and more and more facts came to light and our position became clearer.
HER HONOUR: Can you just – yes, all right, finish because I’m just – finish the answer.
MR KORMAN: Yes, sorry?...That we were more concerned with protecting Telstra’s position and we didn’t think the claim was bona fide.
So you’re saying when you reached the view the claim was not bona fide, that’s when you thought, this really might happen, litigation is a likely outcome quite possibly?...Well, we thought it was likely from the beginning given the quantum but as more and more facts came to light.
So you’re saying from the beginning you thought it was not just a possibility but actually quite likely that the customer would sue Telstra?...If he did not get the outcome he desired, yes.
But you didn’t know at that time even what outcome you were going to offer him.
Mr McDONALD: Your Honour, I object to that question and I object to any further questions that are repetitive in terms of the witness’ evidence to date.[57]
[57]Transcript pp 1253- 1254.
HER HONOUR: I’m sorry, Ms Cathcart, you have to leave the court room please.
(THE WITNESS WITHDREW)
MR KORMAN: Your Honour, I will not make any further submissions after this one.
HER HONOUR: Just one moment, I’m looking at something. See in Odgers it refers to Mitsubishi Electric Australia Pty Ltd v WorkCover, “distilled the test (under the comparable common law) as being: “there must be a real prospect of litigation, as distinct from a mere possibility, but it does not have to be more likely than not”.
MR KORMAN: Yes, Your Honour, the submission I’m making is this one. The question of privilege in these proceedings, in my submission, is critical. The question of whether privilege has been rightly claimed can only be established through this witness. The question of when proceedings were anticipated for purposes of the law is a critical question.
HER HONOUR: But you’ve got the answers. She says as soon as they received the claim she said that litigation as likely.
MR KORMAN: Yes, Your Honour, as I said, I’ll just finish my submissions and I won’t enter into any disputes.
HER HONOUR: Thank you, yes.
MR KORMAN: It is my submission that within reasonable limits, and reasonable limits are more than 10 minutes, within reasonable limits, a cross-examiner is entitled to test propositions that are stated by a witness and a cross-examiner is entitled to quite vigorously and robustly challenge evidence that is given by a witness. I’ll finish my submissions and I won’t say any more.
It is my submission if the plaintiff is not given the opportunity to fully test the proposition that litigation was anticipated at any given date on the evidence of the witness the plaintiff has not been given a proper opportunity to establish its challenge to the privilege.
MR McDONALD: Can I just respond by saying this? It is not appropriate to be running a trial within a trial about discovery. My learned friends’ instructing solicitors had the opportunity and did have a summons issued to deal with questions in relation to discovery and privileged documents. All these arguments should have and could have been aired at that time. Mr Lawrence Skipworth-Michell swore an affidavit in opposition to the application, Justine Cathcart swore an affidavit in opposition to the application. Both of those witnesses could have been required…
….
HER HONOUR: … I have [an affidavit] by Justine Cathcart dated 5 February 2013.
MR McDONALD: Yes. My learned friend tells me that is the one.
HER HONOUR: Yes. Do you want to have a look at that?
MR KORMAN: I have it, Your Honour.
HER HONOUR: Thank you. Yes. Yes. Thank you.
MR McDONALD: I can’t recall the contents precisely, but the point is both Skipworth-Michell and Ms Cathcart could have been cross-examined on the contents of their affidavits to adduce evidence as to whether or not the documents were privileged or not or other documents were subject to privilege or there could have been a separate application issued in relation to documents that weren’t just the Echelon documents.
Now, that could have been done. It should have been done. It was done in part. And what we’re seeing now is a trial within a trial which is taking up a considerable amount of court time devoted to those issues. So we say that’s inappropriate. And, secondly, the witness’s evidence clearly establishes, in my view, the basis for the privilege. And I also restate my earlier objection about the relevance of the cross-examination.
HER HONOUR: And why do you say it’s not relevant?
MR McDONALD: Well, to the facts in issue Your Honour. The relevance of this cross-examination is to try and discover or to try and find that there might be other documents. The relevance of this cross-examination is not directed to the facts in issue.
HER HONOUR: And as to credit? Well, I mean, because they were referred to.
Mr McDONALD: Well, credit, you know, credit is a collateral issue. Sure you can ask questions about it, but you’ve got to lay the foundations and point to where it’s going.
HER HONOUR: Yes. I don’t propose to allow the questions, and I’ll publish my reasons later.
MR KORMAN: Yes, Your Honour.
HER HONOUR: Could you call Ms Cathcart please.
MR KORMAN: So it’s no questions going to the anticipated date of litigation?
HER HONOUR: Yes.
MR KORMAN: Yes, Your Honour.[58]
[58]Transcript pp 1252 – 1257.
Transcript pages 1261 -1269 (27 February 2014 – day 18)
69 Later that morning and contrary to my previous rulings, counsel for the plaintiff then put the following questions to Ms Cathcart about the damages investigation report. It is necessary to set out the transcript in full because of the plaintiff’s submission that he was justified in reopening that question on the next morning.
Do you recall that one of the documents that Telstra opposed production of was the damage report that had been filed by Mr Hicks?...Yes I do.
Were you involved in a decision to claim privilege over that document? I was consulted. I was given advice to that effect.[59]
[59]Error in transcript has been corrected.
But ultimately someone had to instruct the solicitors that Telstra’s position is that they would seek….
MR McDONALD: I object to this, Your Honour. On the basis that it goes to information that’s privileged. Privileged communication.
MR KORMAN: Well, Your Honour…
MR McDONALD: And relevance.
MR KORMAN: Well the relevance one, does my friend wish to elaborate that or – if he wishes to elaborate the witness has to go out.
HER HONOUR: I think he already has. No. He’s already said it doesn’t relate to the issues.
MR KORMAN: Well does Your Honour wish to hear from me about that or will the question be allowed?
HER HONOUR: Well aren’t you asking this witness about communications between this witness and Moray Agnew?
MR KORMAN: Yes, well I’ll phrase the question differently. Was it your view that Telstra ought to oppose production of this document on the basis of privilege?
HER HONOUR: Well…
MR McDONALD: I object to the question on the basis of relevance.
MR KORMAN: Well in that case, if Your Honour wishes to hear from me the witness will have to leave the room.
HER HONOUR: Yes, thank you.
(THE WITNESS WITHDREW)
MR KORMAN: Your Honour, this question…
HER HONOUR: First of all, the damage report filed by Mr Hicks and, what, privilege has been claimed for that document or has it been subsequently released?
MR KORMAN: Yes, well what happened, and this line of questioning is going directly to credit and only to credit.
HER HONOUR: Yes.
MR KORMAN: What happened was, Mr Hicks’s damage report was dated 30 April. Ms Cathcart swore in her affidavit that in May – I’ll just say the date in May, 22 May…
HER HONOUR: 30 April which year?
MR KORMAN: 2012. So on 30…
HER HONOUR: The claim …
MR Korman: I’ll just get the documents to make sure I’m accurate.
HER HONOUR: But Mr Korman…
MR KORMAN: Yes, Your Honour.
HER HONOUR:…the claim was – I might be wrong, but the claim, I understood was lodged in May.
MR KORMAN: No , Your Honour, I’ll explain. What happened – I can’t – here we are, I have the document. The chain of events was as follows. Some time in March a call was made to Telstra.
HER HONOUR: Yes, I see.
MR KORMAN: In April, and Mr Hicks paid the three visits that he testified about yesterday.
HER HONOUR: Yes.
MR KORMAN: On 30 April a Damage Investigation Report, which is in Exhibit AD on p.3, was emailed by Mr Hicks to Justine Cathcart. So he emailed her a Damages Investigation Report on 30 April.
HER HONOUR: Yes.
MR KORMAN: In that subpoena objection hearing, Telstra filed an objection based to the production of that document, based on the fact that it was privileged.
HER HONOUR: Yes.
MR KORMAN: And maintained that objection until 13 February when a letter was sent by the solicitor offering the document with redacted portions and the redacted portion included the 30 April Damage Report. And as Your Honour will recall, that report contains certain admissions.
Now, it was only on the eve of the hearing, or on the day of the hearing, when apparently I’m told His Honour sent the parties outside to resolve the matter, that…
HER HONOUR: What day of the hearing?
142 Once again these questions arise in the context of “the anticipated date of litigation”.
143 Counsel for the defendant submitted that the defendant had legitimately raised the objection for privilege and it was appropriate for me to anticipate that further objections were going to be raised. Counsel for the defendant further submitted that it was appropriate for me to raise the objection given the situation that counsel for the plaintiff was insisting or seeking to insist that Ms Cathcart leave the court even before the substance of the objection was raised by counsel for the defendant. It was necessary for Ms Cathcart to leave the court on 11 occasions on 27 February 2014 and 8 occasions on 28 February 2014.
144 The questions put by counsel for the plaintiff were repetitive. The statement that the witness did not have to disclose privileged information on Friday morning was made in the context of evidence, objections, rulings and previous issues that had been raised in the context of the evidence given by this particular witness on Thursday.
145 In these circumstances the fair minded observer would take the view that insofar as there is some judicial intervention that it was appropriate and would not indicate bias.
E. Requiring plaintiff’s counsel to destroy the effect his own cross- examination
146 Again this submission is based on the cross-examination of Ms Cathcart and the exchange in question has to be examined in context. The relevant exchange commences at page 1349 of the transcript.
Transcript pages 1349 - 1358
MR KORMAN: Yes, Ms Cathcart – just one moment. Ms Cathcart, you there were no further emails – sorry, you stated yesterday that there were two –– an email back and forwards from Mr Skipworth on the 20 – I’ll just get your witness statement – 27 and 28 June 2012; is that correct?
HER HONOUR: What paragraph…
MR KORMAN: You state in your witness statement at paragraph 12, you stated….
HER HONOUR: Thank you.
MR KORMAN: …That Mr Skipworth sent an email on 27 June 2012. And in paragraph 13 you stated that he – you reply to the email on 28 June 2012?...Yes, I did.
Now, other than those emails your evidence was, and I’ll just find it – I had asked you whether you agreed that emails went between Telstra personnel and Echelon, and other than those emails your evidence yesterday was that you found no other emails in the vault or any other database. Do you stand by that evidence?...Yes, I do.
And neither were there any file notes of any conversations at all – I should ask you first, your evidence was that you record all your phone conversations, don’t you?...Yes.
And there was no file notes of any conversations at all with Mr Skipworth that you found in any of the materials examined at Telstra?...No.
That means that you agree that there were none?...There were none.
Yes. Now, Telstra has told the court that it will be calling Mr Skipworth-Michell to give evidence later in this trial, and it would be your position if he testified that he did in fact speak to you, that he was mistaken?
HER HONOUR: Well, sorry, that was not – I think you’ve it’s a double barrelled question, so if you could split it up, please.
....
Now if he testifies that he in fact did speak with you, you would say he was mistaken.
MR McDONALD: Your Honour, that assumes something that hasn’t occurred and may never occur and requires speculation of what another witness will or won’t say. The witness could be asked…[104]
[104]Transcript p 1350.
HER HONOUR: Did you have any instructions to put that question? I mean do you have any knowledge? I don’t want to say too much because I don’t want to stand Ms Cathcart down again.
MR KORMAN: I have a basis for the next question which is related to that and my
HER HONOUR: Could you take me to it please?
MR KORMAN: My next question?
HER HONOUR: Yes, take me to the basis.
MR KORMAN: In front of the witness you would like me to, Your Honour?
HER HONOUR: Well, can you do it so that you don’t disclose that or does it require the witness to be sent out of the room.
MR KORMAN: Well, in my submission, it does require the witness to be sent out of the room.
HER HONOUR: Sorry, Ms Cathcart, could you leave the courtroom?
(THE WITNESS WITHDREW)
Yes, Mr Korman?
MR KORMAN: My next question, Your Honour, was going to be that if Mr Skipworth-Michell says he did in fact sent emails to Telstra he would be mistaken.
HER HONOUR: But you didn’t
MR KORMAN: I know this question – the basis of the emails I do, the basis Mr Skipworth did not speak to her over a period of eight months in which she was intensively negotiating…
HER HONOUR: Just one minute, so where is the basis for saying that he sent emails…
MR KORMAN: Yes, Your Honour, I’ll take you to that and as a matter of fact I will put to her the exact dates of those emails and the basis of that, I believe Your Honour has the affidavit of Mr Skipworth-Mitchell dated 5 February.
…
HER HONOUR: I’ll have to wait for the document. Just one moment please. Now these are documents that she said she objected to the – that they were privileged.
MR KORMAN: Correct, Your Honour.
HER HONOUR: Well, if you’re going to put the question – so you’re now reading from the document that he – which is documents referred to in SM1, LSM1 and which numbers?
MR KORMAN: Yes, Your Honour, I’ll take you to each of them. If we start towards the end of them because I’m going in chronological order forward, Item 30 is an email from Telstra to Echelon dated 3 July 2012 – are we on the same list your Honour? Yes, 28, 9 July and 10 July 2012; 23, is 17 July 2012; 20, 3 August, 11, 5 and 7 September 2012, 10 is 10 September, four is 27 September; five is 27 September and perhaps working backwards Your Honour…
HER HONOUR: But these were all documents that they’ve claimed privilege.
MR KORMAN: Correct, Your Honour.
HER HONOUR: So she would be aware of that because it is in her affidavit so she wasn’t obliged to produce those.
MR KORMAN: Courrect, Your Honour.
HER HONOUR: So what was the question?
MR KORMAN: My question was, Your Honour, I initially asked whether she could confirm that “There were no emails whatsoever that you found…(reads) …in your affidavit?” She said no yesterday and she said no today and then I asked her the question about whether there were any file notes that she found on Telstra’s records but…
HER HONOUR: I understand that but to be fair to the witness….
MR KORMAN: Yes, Your Honour.
HER HONOUR…she should be referred to what you’re talking about which is contained in her affidavit so she’s disclosed that. It’s not as if she’s being evasive, it’s not as if she hasn’t told you about those emails and she’s claimed privilege over them.
MR KORMAN: Well, Your, Honour, I’ll be guided by the court. If that question is disallowed…
HER HONOUR: You’ve got to put the question in that way well to give her all the facts…
MR KORMAN: Yes, Your Honour.
HER HONOUR: I don’t know where it’s going to take you but if you want to put it that way.
MR KORMAN: I need to clarify, Your Honour, the way that I put it is not permitted, Your Honour?
HER HONOUR: Because I don’t think it’s fair to the witness because she has said in an affidavit on 5 February that there were those emails and she’s gone on affidavit to say there were those emails and she’s claimed privilege over them. So I think if you want to put it in any way to be fair to the witness you should put it on that basis.
MR KORMAN: Yes, and not on the basis that I put it.
HER HONOUR: I don’t believe the basis that you put it would be fair.
MR KORMAN: Yes, Your Honour, I’ll do that, Your Honour.
….
147 The relevant section of the transcript commences with a suggestion that Mr Skipworth-Michell would be wrong if he gave evidence that he had spoken to Ms Cathcart. Counsel for the defendant objected to that question. It is apparent from the subsequent exchange that there was no foundation for the assumed fact that Mr Skipworth-Michell had in fact spoken to Ms Cathcart. Counsel for the plaintiff then sought to rely on emails that he conceded the witness had claimed privilege over. The argument then moved back to the question of privileged emails and the affidavit of discovery. The reference to “all the facts” relates to the suggestion that the witness had not disclosed the existence of privileged documents in the affidavit (including the Echelon emails) when this was clearly inaccurate. Insofar as counsel is relying on that exchange as destroying the effect of his cross-examination, the exchange is not an example of biased behaviour but evidence of proper judicial intervention.
148 Counsel for the plaintiff then showed the witness the affidavit sworn by Ms Cathcart on 5 February 2013 and the list of documents over which the defendant claimed privilege and referred to in exhibit JC2 to that affidavit and proceeded to ask the following questions[105]:
[105]Transcript pp 1356 – 1358.
MR KORMAN: Item 23 is an email – just one moment – among others, from Echelon to Telstra dated 17 July. Item 28 is an email from Echelon to Telsta dated 9 and 10 July. And Item is an email from Telstra to Echelon dated 3 July 2012. Now, having brought that to your attention I will ask you the following question. If Mr Skipworth-Mitchell says he did in fact send emails to Telstra he would be mistaken?
MR McDONALD: I object to the question.
MR KORMAN: Yes, Your Honour.
HER HONOUR: Yes. I’m going to have to ask you to leave.
(THE WITNESS WITHDREW)
Yes.
MR McDONALD: I object on two bases. Firstly, the document flow that my learned friend just referred to clearly shows a flow of emails between Echelon and Telstra, which is contrary to the proposition that’s been put to the witness. And in relation to that…
HER HONOUR: Well, you say between Echelon and Telstra. Isn’t Skipworth-Michell from Echelon?
MR McDONALD: Yes.
HER HONOUR: Yes.
MR McDONALD: It’s just been put to the witness that there’s no emails between Skipworth-Mitchell and Telstra. The question was if Mr Skipworth-Mitchell says that there were emails between him and Telstra he would be wrong.
HER HONOUR: Yes.
MR McDONALD: Well, in fact these privileged documents clearly show a flow of emails between Echelon – and no other person but Echelon has been identified other than Mr Skipworth –Michell – and Telstra. Secondly, to put to this witness what some other witness might or might not say is impermissible. This witness can be asked, “Did you receive any emails from Mr Skipworth-Michell?” or “Do your searches reveal that Telstra received emails from Mr Skipworth-Mitchell?” But she cannot be asked on the assumption of what evidence Mr Skipworth-Michell may or may not give in these proceedings, even on the assumption that he is called.
MR KORMAN: Yes, Your Honour. I think my submission would simply be that her answer is likely to be no, he’s not mistaken.
HER HONOUR: Yes. And then where does that take you?
MR KORMAN: Well, I’m proceeding in my line of cross-examination here, which is the fact that she gave evidence yesterday that she found no emails.
HER HONOUR: But isn’t that explained – well, why can’t you ask her whether Mr Skipworth-Michell sent those emails to Telstra?
MR Korman: Is that the only permitted way?
HER HONOUR: Well, isn’t that a better way of doing it rather than a hypothetical question about what Mr Skipworth-Michell might or might not say?
MR KORMAN: Yes, Your Honour. If that’s what the court says, I will do that.
HER HONOUR: Yes, very well. Call Ms Cathcart, please.
JUSTINE MARY CATHCART, recalled:
MR KORMAN: Yes, Ms Cathcart. Would you agree that Mr Skipworth would say that he sent emails – I’m not sure if I remember the formulation.
HER HONOUR: Did Mr Skipworth-Michell send those emails to Telstra?
MR KORMAN: Yes, that’s the question? Yes, he did .
So your evidence yesterday was incorrect?...Yes my evidence yesterday was incorrect. I believe that’s because these documents were – privilege was claimed over them and I thought you were asking whether there are any additional emails in addition to those.
But you know I didn’t say additional emails, did I?...No. But that’s what I assumed.
The other question I’d like to ask you, given that there was this flurry of emails, do you still maintain that you found no file notes of any conversations with Mr Skipworth-Michell throughout the entire period in question?...I didn’t find any.
F. Advising a party how to exercise its rights
149 Counsel for the plaintiff submitted that Ms Cathcart, under cross-examination in relation to certain documents, sought my advice as to whether she, on behalf of Telstra, should assert privilege over those documents. Counsel for the plaintiff referred to several authorities which dealt with unrepresented litigants and the limits that the courts should assist such persons. However in the context of this case, these comments were made in a situation where the issues concerning privilege had been continually raised throughout the cross-examination of Ms Cathcart, during which both counsel for the defendant and Ms Cathcart had made it clear that privilege would be relied upon where appropriate.
150 The relevant parts of the transcript are[106]:
[106]Transcript pp 1317 – 1320.
MR KORMAN: But from November 2012 it was your job to instruct the solicitors, wasn’t it?...Yes it was.
And it was your duty to ensure that those instructions were based on a correct factual basis?...Yes.
And you have no idea what documents Mr Hicks had in his possession?...I had very early on. At the point I instructed I wasn’t sure but that was clarified as soon as we held our meeting with myself, Mr Hicks and Moray & Agnew.
When did you hold your meeting with yourself, Mr Hicks and Moray & Agnew?...It was shortly after proceedings were issued and we were preparing our defence.
And that time Mr Hicks told you that he had documents in his possession?...Does that go to privilege, Your Honour?
HER HONOUR: I think it does.
MR KORMAN: Well, it goes to privilege if the documents are privileged and it doesn’t go to privilege…
HER HONOUR: Well, it is. You’re asking her about what he told her during a meeting that was the subject of privilege.
MR KORMAN: Your Honour, I’ll have to have a submission to make about that. I wish to proceed with this line of questioning.
MR McDONALD: I strongly object to the line of questioning your Honour.
HER HONOUR: Thank you.
WITNESS: Do I need to leave?
HER HONOUR: Thank you.
(THE WITNESS WITHDREW)
MR KORMAN: Your Honour, just one moment. If Mr Hicks disclosed a confidential document, that document is covered by legal privilege. If Mr Hicks disclosed a non-confidential document or a document that came about not in circumstances where privilege is attached to that document it is not a confidential document and it doesn’t matter in what circumstances that non confidential document was produced.
So if Mr Hicks produced a report or an opinion or a record of a phone conversation and he happened to be sitting in a lawyer’s office, that does not protect it from discovery. So Your Honour, in my submission…
HER HONOUR: But didn’t she say Mr Hicks had given her all the documents and then it was only later on when you’re talking about – I assume yesterday or the day before that she didn’t ask him any more questions.
MR KORMAN: That was not my recollection, Your Honour. My recollection was that she made a very vague statement about something early on and then she said that there was a meeting after proceedings started between her, the lawyers and Mr Hicks and it was – then she refused to divulge whether Mr Hicks had produced any documents or not.
HER HONOUR: You’re straying into the area of asking her what occurred during the meeting which was held for the sole purpose of getting advice as to litigation. Well you can’t ask her about what occurred during that meeting.
MR KORMAN: I can ask her about what occurred at that meeting if they’re not confidential communications or confidential documents. Now, if Mr Hicks, at that meeting, at which there were also confidential communications, but if Mr Hicks produced a non-confidential document, I can ask her what did Mr Hicks produce?
HER HONOUR: What do you say, Mr McDonald?
MR McDONALD: Well firstly, Mr Hicks has already given evidence in the case and Mr Hicks, if he wasn’t he could have been cross-examined about what documents he produced or what documents he had or what documents he’s generated. That’s the first thing.
Secondly, this witness has given evidence of what inquiries she made in terms of Mr Hicks and what further documents he supplied. So what was discussed at a meeting or the origin of any other document, in my submission, is either privileged or irrelevant at this stage or has been dealt with.
MR KORMAN: Well, Your Honour, I’ve made by submission.
HER HONOUR: What was the question that you proposed to ask?
MR KORMAN: What documents did Mr Hicks produce at that meeting?
HER HONOUR: Yes, I’ll allow the question but that’s the only question depending on – we’ll have to see what happens.
…WITNESS RECALLED
MR KORMAN: Yes, Ms Cathcart, at that meeting between you, your lawyers and Mr Hicks, what documents did Mr Hicks produce?...I’m sorry, Your Honour, do I answer that?
HER HONOUR: Are you saying they’re subject to privilege?...No.
151 Ms Cathcart then gave evidence about the documents Mr Hicks produced at the meeting with the lawyers. Mr McDonald then said that “I’m content to waive privilege in relation to this”.[107]
[107]Transcript p 1320.
152 However as conceded by the plaintiff, immediately after that and after hearing the submissions made by both counsel, I permitted the questioning in relation to the documents. Counsel for the plaintiff submitted that this does not “mitigate the impression of bias” and submitted that was done cannot be undone. I do not accept his submission. The High Court authorities refer to the necessity to place the comments made by the judge into context. In this case the plaintiff’s submission is dispelled by the fact that I permitted the plaintiff to be cross-examined about those documents.[108]
[108]Johnson v Johnson (2000) 201 CLR 488, 494; Galea v Galea (1990) 19 NSWLR 263, 279.
G. Interposition of witnesses
153 Close to lunch on 28 February 2014, counsel for the plaintiff indicated that he would not complete cross-examination of Ms Cathcart until at least the end of the day. Counsel for the defendant then made an application that another witness be interposed:
MR McDONALD: Just one more thing, Your Honour, in accordance with your Honour’s timetable yesterday we had arranged for Mr Emery, we brought him up from Pakenham and he’ll be in a position to commence his evidence at 2.15.
HER HONOUR: Yes. Mr Korman?
MR KORMAN: Yes, I’m ready to proceed Your Honour.
HER HONOUR: But how long are you going to be?
MR KORMAN: I won’t be finished at 2.15, Your Honour.
HER HONOUR: Well, when are you going to be finished?
MR KORMAN: I would hope to be finished by the end of the day today, Your Honour.
HER HONOUR: Well if you’re not finished by the end of the day you won’t be allowed to cross-examine any further. I’ve given you quite a lot of latitude so enough is enough.
MR KORMAN: So I should plan my cross-examination that I must finish at 4.15?
HER HONOUR: Yes.
MR McDONALD: Your Honour, in those circumstances I make an application that Mr Emery’s evidence be interposed. Mr Emery is no longer employed by Telecom and hasn’t been for a number of years. He has mobility issues. We’ve had to arrange special transportation for him both to and from court by private taxi. He was here all day yesterday, he’ll be arriving at court fairly shortly pursuant to Your Honour’s timetable and in those circumstances we’d seek to have his evidence interposed this afternoon.
HER HONOUR: Yes, Mr Korman?
MR KORMAN: I would vigorously object to that, Your Honour. We had sought the same orders.
HER HONOUR: It’s not tit for tat, we’re talking about overarching obligations, it’s not tit for tat.
MR KORMAN; No Your Honour. I would vigorously oppose that. I would interfere with the cross-examination and although it’s not tit for tat we endured the same fate.
HER HONOUR: I’m going to exercise my discretion and I’m going to say that Mr Emery’s evidence can be interposed.[109]
[109]Transcript p 1381.
154 Counsel for the plaintiff submitted that the defendant was given the considerable advantage of having a witness interposed, when the plaintiff was denied the same opportunity to interpose a witness during Mr Denysenko’s cross-examination.
155 On that occasion, being the fourth day of the trial, counsel for the plaintiff advised the court that Mr Denysenko had a chemotherapy appointment the following Monday (10th February 2014):
MR KORMAN: Your Honour, I have to say one thing, I'm instructed that on Monday the witness has a chemotherapy appointment. Now, Your Honour may want to take it up with him, but I'm just saying if that is the case, from our point of view, in order to keep the timetable going, if Your Honour was to grant him permission to attend we could interpose some other small witnesses.
HER HONOUR: You have to reach agreement with Mr McDonald about that.
MR McDONALD: There's no way I'm going to agree to any witness being interposed before Mr Denysenko has finished his evidence.
HER HONOUR: Well, there's your answer.
MR KORMAN: Well, as far as the interposition I understand, but perhaps when I have the material to hand I'll put an application to Your Honour then on Monday to adjourn so he can attend the doctor.
MR McDONALD: If there's adequate material obviously - well, subject to obtaining instructions - but I can't see that we would in any way object to the matter …[110]
[110]Transcript pp 232-233.
156 A close reading of the transcript would suggest that counsel for the plaintiff accepted that interposition was not appropriate, and he did not press the submission. Counsel for the plaintiff did not offer details as to which witness was proposed to be interposed, and whether the witness was available.
157 After some discussion[111], it was discovered that the appointment was not for chemotherapy but for a doctor’s appointment at 10am, and Mr Denysenko was able to attend to give evidence on the same afternoon. It was arranged that Mr Denysenko would attend Court at 2.15pm and that other matters would be dealt with in the morning.
[111]Transcript pp 234, 282.
158 On the 9th day of the trial, counsel for the plaintiff advised that Mr Denysenko had an appointment for a bone scan the following Monday. Again after some discussion, counsel for the plaintiff handed up a letter from Radiation Oncology Victoria confirming Mr Denysenko’s appointment for a bone scan scheduled for 17 February 2014 at 9:45am.[112] I requested Mr Denysenko to make enquiries as to whether the appointment could be postponed and the appointment was rescheduled for the Wednesday 19 February 2014, two days after the original appointment. At this stage I warned Mr McDonald that if he had not finished cross-examination by that time, a witness would be interposed.[113]
[112]Transcript p 579.
[113]Transcript p 591.
159 Having regard to these circumstances, I cannot accept the plaintiff’s submission that the fair minded lay observer would reasonably apprehend that I had not brought an impartial mind to the issue of interposing witnesses.
160 The plaintiff’s application for interposition of a witness was made on the fourth day of the trial, just after counsel for the defendant had commenced his cross-examination. Mr Denysenko was the main witness in the trial, set to give evidence on almost every aspect of the case. It would be highly inappropriate for a secondary or expert witness to give evidence before the foundation of plaintiff’s case had been established.
161 In any event, although the interposition of a witness was not allowed at that stage, arrangements were made to accommodate Mr Denysenko’s medical appointment. The court also made efforts to accommodate Mr Denysenko’s second medical appointment, and was prepared to interpose a witness at this time if required.
162 Ms Cathcart, on the other hand, had been in cross-examination for a day and a half, despite the timetable set by the parties themselves estimating 2-6 hours would be required. Mr Emery had been brought to Court on the basis of that timetable. Ms Cathcart was only being cross-examined as to her credit, and counsel for the plaintiff had indicated that his cross-examination would continue for some time.
163 I do not accept Mr Korman’s submission that his cross examination was unreasonably interrupted. Mr Korman continued to cross-examine Ms Cathcart until the luncheon adjournment, a natural break in proceedings, before Mr Emery was interposed. This kind of break in cross-examination is not exceptional and no “considerable advantage” was afforded to the defendant by this interposition.
In any event, in relation to Mr Denysenko’s evidence, I was not able to sit on Friday morning (because of previous commitments). A mediation was held on Friday afternoon and then there was the weekend break. Mr Denysenko was not required to resume his evidence until Monday morning. There was a very substantial break in the cross-examination of Mr Denysenko as well.
164 As I stated at the time of the objection made by counsel for the plaintiff, the consideration of whether to interpose a witness is not just a matter of “tit-for-tat” but it is a discretion to be exercised by the Court having regard to the circumstances and the provisions of the Civil Procedure Act.
165 A fair minded lay observer would be aware of ordinary judicial practice. The observer would also have knowledge of all the circumstances of the trial. I do not agree that in considering these factors, a fair minded lay observer would have the impression that I was motivated by the defendant’s convenience (at the expense of the plaintiff’s), rather than any principles of case management, when exercising my discretion to decide whether to interpose a witness.
Conclusion
166 I consider that the combination of all of the above matters, do not induce in a fair-minded lay observer the reasonable apprehension that I might not bring an impartial mind to the resolution of the dispute the substance of these proceedings. For all of the above reasons, on 6 March 2014, I dismissed the plaintiff’s application that I excuse myself from further hearing the proceeding on the ground of apprehended bias.
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