Harvey v Burwood Council S43/1995 [1997] HCATrans 124 (10 April 1997)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S43 of 1995

B e t w e e n -

LINDA HARVEY

Applicant

and

BURWOOD COUNCIL

Respondent

Application for special leave to appeal

TOOHEY J

GAUDRON J

McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON THURSDAY, 10 APRIL 1997, AT 12.39 PM

Copyright in the High Court of Australia

MR J.B. MASTON: If the Court pleases, I appear with my learned friend, MS R.P. RANA, for the applicant. (instructed by the applicant)

MR G.P. GEORGE: If the Court pleases, I appear on behalf of the respondent. (instructed by Forbes-Smith & Company)

TOOHEY J: Yes, Mr Maston.

MR MASTON: Your Honours, two special leave questions are raised by the applicant. The first is whether procedural provisions such as sections 38 and 39 of the Land and Environment Court Act of New South Wales empower the tribunal to inform itself and to institute inquiry of an expert witness without offending the common law rules in Jones v National Coal Board.

TOOHEY J: You mean without ever offending the principle?

MR MASTON: We would not go quite so far, your Honour, but we do submit that the dividing line is moved a great distance by these provisions. That is clear when one has regard to the origin of these procedural sections where they apply to - - -

TOOHEY J: I am sorry, I interrupted you. You were going to say there were two questions.

MR MASTON: Yes, your Honour. The second question is whether there is, in effect, an exception to the principles laid down in Vakauta v Kelly in a case where no objection was taken by an experienced legal practitioner appearing for a party and long after the judgment is handed down an objection is raised on the basis of a miscarriage of justice arising - - -

TOOHEY J: But that would not be an exception to Vakauta v Kelly, would it? It would be a question of whether it fell with Vakauta v Kelly or not.

MR MASTON: That is true, your Honour. I think your Honour put it in that case as an election between two inconsistent positions. We would say something must occur to communicate the election. In this case, it was clear that there was no communication of an election to object to anything that the judge did, in particular the questions which he asked.

Mr Justice Cole, just dealing with this second question for a moment, said that silence did not necessarily constitute waver and we would submit that that cannot stand, with respect to his Honour - - -

McHUGH J: He said "not necessarily". I mean, this sort of situation, counsel is in an extremely difficult position. You have got a judge intervening to the extent that this judge did, and that is the judge that is going to ultimately make the questions of fact. Counsel are in a very difficult position about objecting to a judge asking questions. You get the judge off side, that is the end of you on the question of facts, so counsel may think, and really it is a very difficult situation.

MR MASTON: It is actually not a case, we would submit, your Honour, of getting a judge off side. I think everybody accepted, including the judges in the Court of Appeal, that the judge was striving to achieve the correct answer and that all his questions were relevant to the matter which he was deciding. But in terms of timing, two full days of hearing followed the last set of questions which the Court of Appeal relied upon as exhibiting or giving rise to apprehended bias and the miscarriage. One and a half years after the questions were asked was the first occasion that any complaint was made about it by the respondent so that it does not appear, we would submit on the facts of this case, that anybody on the respondent's side apprehended any difficulty with the conduct of the hearing.

McHUGH J: They must have been blind, then. I have got to say I had only read about four or five pages of this transcript before it became obvious to me that you had extreme difficulties in this particular application, and the further I got into the document, the stronger that view became. I mean, this judge just took over the whole conduct. He is cross-examining witnesses, putting theories to the witnesses. I mean, irrespective of section 38, it does not entitle a judge to intervene to the extent which this judge did.

MR MASTON: The judge was confronted with a situation where neither party was approaching the valuation correctly. It was admitted by the principal valuer for the respondent that he had not taken account of the Pointe Gourde or the San Sebastian principle which is elementary in valuation matters. Now, the judge was confronted with no helpful expert evidence on the documents that had been tendered or on the oral evidence that was being elicited by my effectively unrepresented party. The question arises whether these sections were designed to allow a judge in those circumstances to intervene and take positive steps to bring about a just result and to determine just compensation.

TOOHEY J: This is a case that almost goes beyond ostensible bias. It is really a case of the primary judge simply taking over the conduct of the proceedings. I appreciate that it was argued on questions of ostensible bias. I am not suggesting it is not relevant. But a number of these questions of bias arise out of particular questions asked and particular remarks made by the primary judge, but the gravamen of this one really is that the case was virtually taken out of the hands of the parties.

MR MASTON: We would submit only to the extent which was necessary to achieve the just outcome because if the valuers were not directing their mind to the correct approach to valuation, we would submit it was a judge's duty, having regard to these procedural provisions, to take a positive step.

TOOHEY J: Except that in taking over the conduct in the way that he did, the primary judge directed his questions, and in some cases what could be regarded as his cross-examination, in a manner which, it is argued, did give rise to an appearance of bias. So the two, in a sense - one impinges on the other.

MR MASTON: The Vakauta v Kelly point would not arise if we were correct on the first question as I have framed it, namely if section 38 of the Land and Environment Court Act permitted the sort of inquiry that the judge undertook.

McHUGH J: But the judge is sitting as a judge in a superior court of record and to read section 38(2) the way you seek to read it just seems to me an impossible conclusion. You do not seriously assert that this judge could have gone out and gathered evidence himself, do you? Gone out and made surveys, and then came back with the evidence himself.

MR MASTON: We would submit that the judge was, firstly, entitled to call upon his own expertise in the area of valuation.

McHUGH J: That is one thing, yes.

MR MASTON: And we would submit that the provision allowed him to call upon the assistance of expert witnesses, either those before the court or one who was not.

McHUGH J: Could he have gone out and rung up the local Town Planner and asked him to come along, or rung up the Society of Valuers and asked them to send along a witness to his chambers to have an interview with him and then call that person?

MR MASTON: No, your Honour.

McHUGH J: Of course he could not.

MR MASTON: It needed to be done in a fair manner in the presence of both parties, which everything in this case was. But he, we would submit, was entitled to call a witness or direct that a witness be called. We would submit that comes out of these provisions.

Your Honours, they are the same provisions one finds in section 38 of this Act as appear in the Commonwealth Administrative Appeals Tribunal Act, as well as the Victorian Act. This Court has not considered the breadth of the procedural liberty that is afforded by section 38. It applies only in the Land and Environment Court to the proceedings which are able to be determined by assessors, technical assessors of that court and also the judges. So that they are in that group of proceeding under the jurisdiction of the court which are, we would submit, analogous to administrative appeals and administrative decisions that are made in, for example, development matters and building appeals for dwelling houses, residential flats and the like, where the assessors daily exercise their own expertise in making subjective judgments.

TOOHEY J: But if a judge takes over the conduct of the matter by asking questions at great length and in great detail and questions which seem to be aimed at almost a particular result, it is then that the question of ostensible bias raises its head.

MR MASTON: If the statute permitted the judge's activity in the case, then, as I think I heard discussed in an earlier case this morning, that would be permissible by force of the statute.

TOOHEY J: Do you mean that there would be no obligation to give procedural fairness to one of the parties?

MR MASTON: No, we would accept that procedural fairness applies to the conduct of the trial.

TOOHEY J: But why, any more than the obligation not to be ostensibly biased and take over the conduct of the proceedings?

MR MASTON: The procedural fairness would arise in a context such as this so as to ensure that both parties had the opportunity to see what was happening and to raise any objection to what was happening and so that they could be heard and to put anything they wished as to the procedural approach to the trial. So that it is clear to us, your Honours, that the Court of Appeal applied the same tests as were laid down in Jones v National Coal Board and described the proceeding that his Honour was dealing with as the same as that in an ordinary court, is the way they put it, and that no weight was given to section 38. If that is to remain the situation, we would submit that the efficient and expeditious dealing with cases in this administrative or quasi-administrative part of the jurisdiction of the court will be affected.

TOOHEY J: Putting the matter in that way, Mr Maston, are you saying in effect that section 38 permits the judge to conduct the proceedings in such a way as to give rise to a reasonable apprehension of bias on the part of one of the parties, because that is really the complaint here.

MR MASTON: I cannot, of course, accept that proposition, your Honour - - -

TOOHEY J: I would not have thought you had put it that way - - -

MR MASTON: But we do submit that it does move the border line between the permissible and the impermissible and if we can draw from this provision the right of the judge to step in, in a case where a just outcome is not going to emerge if it is left to the evidence that was before the court, then he is entitled - - -

GAUDRON J: There are other more conventional ways of dealing with that, are there not: to indicate the area in which you are having difficulties and adjourn the proceedings to enable the parties to consider the issue and what course they should take. That is how you deal with it.

MR MASTON: That did happen at at least one point I can recall during the trial. And also the judge, who was accepted by everybody as being courteous towards the parties, he on many occasions - and they appear in the extracts from the transcript that we have annexed - announced what he wanted to ask and, in effect, gave notice of a line of questions which he then proceeded to ask.

The other feature is - and we would not want to take time on an application such as this in going into the detail of it, but a great slab of the early transcript material that we have attached is dealing with a document which the expert valuer had prepared and put forward and it had been tendered into court. His Honour was taking it point by point and asking questions of the witness to confirm his understanding of what the document was saying and what the calculations led to. So we would submit that a large volume of the material falls into that category. Undoubtedly there are areas where his Honour embarked on fresh lines of inquiry which did not arise on the documents but which were relevant, which were courteously examined with the witness and we would submit that the witness co-operated as did his legal representative with that process.

So that we would submit that there is a proper basis to say that section 38 and the analogous provisions in other tribunals ought to be regarded as a means for facilitating additional intervention by judges and assessors in cases such as this kind.

TOOHEY J: That may well be right. The question is whether the assessment made by the Court of Appeal of what it regarded as the overstepping of the legitimate mark demonstrates an error such that this Court ought to grant special leave in order to review that decision.

MR MASTON: We have attached the relevant, so far as we can see, pages from the transcript and we have provided a sheet of analysis which I will not read to your Honours, of course, but it was an endeavour to show that every question was relevant and directed towards the establishment of the amount of just compensation.

McHUGH J: But some of it is just straight cross-examination. It is not just merely an inquiry. Material that is numbered 672 in the application book that is there, towards the end, the witness is asked a question and the judge says:

Q. Well, not necessarily?

A. No.

Q. That means yes or not?

A. No.

Q. You wouldn't want to adjust it, you regard 5 Lyons as a more valuable property -

There is no difference between the role of a cross-examiner and the role of the judge in much of this material that has been put before us.

MR MASTON: It is eliciting agreement from the witness and, presumably, it is leading to the truthful analysis of that line of inquiry there, your Honour.

McHUGH J: Yes, but that is the problem with all the judges, from Jones v National Coal Board and Boundy's Case and every other case, the judge thinks that he is doing justice and that is why the judge intervenes to the extent that he or she does. But there comes a time when the judge's intervention is so excessive that the appearance of a fair trial has gone. And the Court of Appeal found that in this particular case. It seems to me they had very strong grounds for thinking that they did. But assuming that they were wrong, it is only a question of fact, is it not?

MR MASTON: Whether there has been a miscarriage of justice or not, your Honour, we would submit would be a question of fundamental principle and law, rather than fact.

McHUGH J: This Court does not give special leave merely because it thinks that it is arguable a decision below was wrong as a matter of fact.

MR MASTON: We have submitted, your Honour, that this is a matter of general importance, not only to the Land and Environment Court and the many cases it decides every year, but also to the other tribunals.

TOOHEY J: A case that was close to the line might well raise some question of general importance, but when you have one which, in the view of the Court of Appeal was so far over the line, it is unlikely to give rise to any elucidation of the principle.

MR MASTON: The only answer I can give to that, your Honour, is firstly, we would say that the Court of Appeal, in our respectful submission, failed to give weight to section 38 and had they done so they would not have reached that conclusion and that this is a question of wider importance, as I put. If your Honours please

TOOHEY J: Thank you, Mr Maston. Mr George, we need not trouble you.

There is no sufficient reason to doubt the correctness of the decision of the Court of Appeal to return the proceedings to the Land and Environment Court for rehearing. Accordingly, the application for special leave to appeal must be dismissed.

You have no further application, Mr George?

MR GEORGE: We would apply for the costs of the application.

TOOHEY J: Can you say anything about that, Mr Maston.

MR MASTON: No, your Honour.

TOOHEY J: Special leave is refused with costs.

AT 1.01 PM THE MATTER WAS CONCLUDED