Plaintiff v Defendant

Ruling No 2 (Wednesday 9 March) - Recall of Dr Ibrahim

1 Yesterday morning (8 March) Ms Hartley who appears with Ms Cefai for the defendant raised an issue concerning her cross-examination of Dr Ibrahim, the plaintiff's treating psychiatrist. Dr Ibrahim had been called on 7 March by the plaintiff, cross-examined by Ms Hartley and then excused from further attendance.

2 The plaintiff has been examined on four occasions by Dr Kornan, a consultant psychiatrist on behalf of the defendant. Ms Hartley frankly and correctly submitted that she failed to put three key components of Dr Kornan's opinion[1] to Dr Ibrahim as the rule in Browne v Dunn[2] would require, namely;

I now feel his psychiatric presentation whilst consistent with that diagnosis, (that is, of adjustment disorder with mixed disturbance of emotional conduct), is also consistent with someone in whom he might be actually functioning much better than he indicates. His mental status presentation where he sat back in his chair with his arms in his pockets in a slightly disdainful manner did not indicate necessarily someone who was in significant distress.

The prognosis is bound up by litigation. Once litigation has been concluded he will not require further psychiatric treatment, nor in my opinion, medication. I do not see him as having any long term significant psychiatric difficulties with the possible exception of some very intermittent mild anxiety, and depression, if in fact pains persists to any degree.

Do you consider the worker to be incapacitated for employment as a result of any psychiatric injury arising out of or in the course of employment and if so, the nature of the incapacity -

Dr Kornan said:

With regards as to employment I feel from the psychiatric viewpoint he is in fact fit to work. If he cannot work on medical grounds it would be due to physical/organic factors, and such matters are outside my areas of expertise.

If you consider the worker to be incapacitated for employment as a result of a work related psychiatric injury, do you consider the incapacity is likely to persist in the foreseeable future?

I see his psychiatric presentation as being related to litigation and that a good improvement at the appropriate time in the usual way can be expected in his case after legal settlement.

3 It is those matters that Ms Hartley now seeks to put to Dr Ibrahim. Accordingly she sought the Court's leave to recall him.

4 Mr Richards, who with Ms Riddell appears for the plaintiff, did not have an opportunity to properly articulate his opposition to such a course owing to my intervention. I clarified with him this morning that if given the opportunity, he would have opposed the recall of Dr Ibrahim and objected to Dr Kornan giving evidence on the matters not put to Dr Ibrahim.

5 I should mention one other point here; Dr Ibrahim is, to put it mildly, highly reluctant to return to court and I was advised by Mr Richards this morning that absent an order compelling him to do so will not attend. I accept that he is a busy specialist and the welfare of his other patients must be a consideration. The evidence in this trial will conclude today and he has a full day consulting with patients in his rooms (as I understand the position).

6 I turn now to the rule in Browne v Dunn[3] in which Lord Herschell said:

If you intend to impeach a witness you are bound, whilst he is in the box, to give him an opportunity of making any explanation which is open to him; and, as it seems to me, that is not only a rule of professional practice in the conduct of a case, but is essential to fair play and a fair dealing with the witnesses.[4]

7 This rule holds good to the present day.[5] In this state the decision of Newton J in Bulstrode v Trimble[6] remains the guiding light in relation to applications such as this. So much is clear from what was said by the Court of Appeal in R v McDowell[7] in which Smith AJA said:

In analysing his Honour's direction and comment it is instructive to consider the discussion of the consequences of breach of the rule of Browne v Dunn in the case of Bulstrode v Trimble [1970] VicRp 104; [1970] VR 840. At 846 Newton J commented that the rule had two aspects. In its first aspect the rule Browne v Dunn is a rule of practice or procedure designed to achieve fairness to witnesses and a fair trial between the parties. In the second aspect it is a rule relating to weight or cogency of evidence.[8]

8 It is the first aspect of the rule, related to fairness, that is relevant here. It is helpful, I think, to refer to what was said in another leading case on the application of the rule, Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation,[9] in which Hunt J, dealing with the practical application of the rule, said:

A challenge made to the evidence of a witness in the course of a final address may take place in various ways. The opposing party may ask the tribunal of fact simply to disbelieve that evidence; if he has led evidence in direct contradiction of the evidence of that witness, he may then ask the tribunal of fact to accept the evidence of his own witnesses in preference to that of the witness in question; or he may point to other evidence in the case, led by either party, which tends either to contradict the evidence of that witness or destroy his credit. There are many reasons why it should be made clear, prior to final addresses and by way of cross-examination or otherwise, not only that the evidence of the witness is to be challenged but also how it is to be challenged.[10]

In many cases, of course, counsel for the party calling the witness in question will be alert to the relevance of the other material in the case relied upon for the challenge to the truth of the evidence given by his witness or to the credit of that witness, and in those circumstances counsel will be able to give his witness the opportunity to deal with that other material in his own evidence-in-chief. But sometimes quite properly he may not be aware either of the other material or of its relevance; or for quite legitimate tactical reasons he may prefer his opponent to be the first to raise the matter, and then deal with it in re-examination or (if allowed), in his case in reply. But at some stage during the course of the evidence, the witness must be given a proper opportunity to deal with the material to be relied upon for the challenge.

If he has not been given that opportunity during the course of his own evidence, the situation may in some cases be remedied by his recall. Sometimes, particularly in jury trials, a party's failure to give such an opportunity to his opponent at the proper time may in justice require a ruling that a challenge to the evidence of the witness cannot be permitted or, if such a challenge has been made without warning, either the discharge of the jury or an appropriately strong direction to the jury in order to redress the unfairness which results.

9 I now return to what is in issue in this case. I accept that the first aspect of the rule in Browne v Dunn is enlivened here, notwithstanding the plaintiff's counsel had the reports of Dr Kornan, and knew that he was to be called. However, it was still incumbent on counsel for the defendant to put those parts of Dr Kornan's opinion to Dr Ibrahim, particularly as he was the treating psychiatrist. As has been seen, this part of the rule, to ensure fairness in the course of this trial, would be frustrated by not permitting Dr Ibrahim to be further cross-examined, as it would if I prevented Dr Kornan from giving evidence.

10 Ms Hartley should be given leave to further cross-examine Dr Ibrahim on those parts of his report that I have identified. However, I think it unfair to require Dr Ibrahim to interrupt his treatment of patients particularly when it is clear he will only return if ordered to do so. The halfway house I propose is less than satisfactory but will give Ms Hartley the opportunity to put those parts of Dr Kornan's reports to Dr Ibrahim and for him to respond.

11 Yesterday I directed that Dr Kornan's report be provided to Dr Ibrahim. I now direct that Dr Ibrahim be further cross-examined and, if necessary, re-examined by teleconference in the presence of the jury. Both parties acquiesced to this procedure in the event I concluded that it was appropriate to recall Dr Ibrahim.

Ruling No 3 (Thursday 10 March) Discharge of the jury

12 On the morning of the eighth day of this jury trial, an assessment of the plaintiff's damages, three jurors raised an issue with my associate concerning interaction with the plaintiff at Flagstaff Station on the evening of the sixth and seventh days of trial.

13 I should mention that one juror, amongst the three, last night left a message with my associate who then spoke to the juror this morning before court.

14 I determined that I should question the three jurors in the presence of counsel as to the events which occurred at the station. I was told by the jurors that they had on two occasions, as I have already mentioned, on the Tuesday and the Wednesday come into contact with the plaintiff. I set out below the relevant questions and answers of the juror who had contacted my associate:[12]

15 MY QUESTION: Have you seen or observed Mr Messade outside the Court during the course of the trial?

MY QUESTION: We'll deal with the Tuesday interaction, if I can call it that. About what time of day was it?

MY QUESTION: Were you taking a train home and do I take it that you have raised this matter before because you're concerned about what happened?

JUROR 1: Not so much concerned. I don't think - I felt uncomfortable.

JUROR 1: Tuesday. On Tuesday it was just awkward. It was just awkward because, you know, at the beginning when you go into the pool room we're told you have no interaction with the plaintiffs.

JUROR 1: I just felt uncomfortable. It wasn't an issue, just felt uncomfortable.

MY QUESTION: Were you on the platform first or was he on the platform first?

JUROR 1: Well, we both - all of us were going down together, on the escalators together?

I interpolate here that the three individuals that the juror was referring to were herself and the two other members of the jury present in court.

MY QUESTION: But the extent of Tuesday is simply uncomfortable about being in the same space?

JUROR 1: Wednesday I did feel uncomfortable yesterday. I - when we left here in particular I felt ---

MY QUESTION: Were the three of you together yesterday?

MY QUESTION: So the three of you yesterday were together, yes.

JUROR 1: And - but the main issue was coming down the last escalators where (indistinct). The plaintiff was standing outside. You know with Flagstaff you either go left or you go right to your own trains there and he goes right and I just felt he was standing there staring at all of us. I did catch his eye and I know to be honest I did feel a little intimidated for a brief second and just felt uncomfortable.

MY QUESTION: Was it a case of you feeling uncomfortable?

JUROR 1: Yes, and for me personally I just, I don't think it's right (indistinct).

The juror then mentioned that she had seen the plaintiff outside court but that was not the cause of any concern; and that rather it was the interaction at the station.

MY QUESTION: After you went right down onto the platform yesterday, the three of you together, did the plaintiff go (indistinct). When you came across the plaintiff yesterday you were by yourself?

MY QUESTION: Standing at the entrance to Flagstaff, is that right?

MY QUESTION: The entrance to his platform. Did you also (indistinct) to your platform?

I also asked the juror did anything else occur other than the eye contact that she adverted to and she replied "No".

I then asked the other two jurors whether they had anything to add to the observations already made. The Foreman replied as follows:

FOREMAN: It just demonstrates firstly, that first last week absolutely no crossing of paths. There was Monday not, yesterday and Tuesday there was definitely a crossing of paths. We just wanted to bring it up to just make it noted. We don't think there's anything (indistinct). So just make a note, bring it up (indistinct) just in case for whatever reason something comes back.

I interpolate in relation to those parts that are marked indistinct that - that the Foreman rather was intimating that "we" - the jurors concerned - did not think there was anything more in it.

MY QUESTION: Do any of you think given what's occurred you cannot fairly determine this case? You, Mr Foreman, just made the point that you wanted to make sure we knew about it. Do any of you consider you could not deal with the assessment of damages in this case when (indistinct) in view of what's transpired, starting with you, Mr Foreman?

The transcript then records "indistinct", but my recollection and note is that the foreman said that the jury would determine the case on the evidence that it heard in court and his fellow jurors nodded in assent.

16 Subsequently I asked counsel whether they had any questions they wished to put to the jurors through me. Mr Richards did not wish to ask any questions but Ms Hartley requested that I ask further questions of the juror who reported feeling intimidated fleetingly on the second occasion. I declined to do so.

17 I subsequently thanked the jurors for bringing these matters to both my associate's and my attention and then, having asked them to retire to their jury room, sought submissions from counsel as to what steps, if any, should be taken in regards to the future conduct of the trial.

18 Mr Richards submitted that the jury should be discharged without verdict, notwithstanding the jurors views as to their ability to deal with the case fairly. He said that once the juror used the word intimidation in the context of an interaction with the plaintiff that, in effect, notwithstanding her own belief as to impartiality, she could not deal with the case objectively. Moreover, he contended that all the jurors now knew of the position and emphasised that this is a case in which the plaintiff's credit is an absolutely central issue.

19 Ms Hartley submitted that the jurors clearly understood the position when questioned and each was clear and positive about their respective abilities to deal with the case impartially. She said that the intimidation alluded to by the juror should have been teased out by me in the questioning of the juror and that in reality this was at worst a fleeting incident which the jurors felt obliged to report and should not result in the discharge of the jury. She submitted that any question of unfairness which might arise was cured by the jurors' own declaration as to their ability to deal with the case impartially and by directions that I would necessarily give to the jury to decide this case on the evidence alone.

20 As I mentioned in the course of discussion, I have been exceedingly troubled by this application as I am of the view that the three members of the jury truly believe they can determine this case impartially. They with their fellow three jurors have invested eight days of their valuable time in listening to and considering the evidence and now preparing to deliver a verdict.

21 For any trial judge who has sat with jury in this Court or in the County Court a decision to discharge a jury after such investment of time, concentration and effort is, I confess, a difficult, if not at times, a devastating, task. However, the paramount consideration is that the plaintiff and the defendant are entitled to a fair trial from an impartial jury and that has to be kept uppermost in one's mind.

22 I should mention one other matter and that relates to the plaintiff's conduct. When I was first appraised of this interaction I was particularly concerned that the plaintiff may in some way have deliberately orchestrated these events. After hearing the jurors I cannot be satisfied that such contact, although highly coincidental (especially on two successive days), was intentional on the part of the plaintiff. I simply do not know how it was that he came to be in the same area at the station as the jurors on these two days.

23 I return now to the question of a discharge of the jury. As I have already said, I am satisfied that each juror perceives that he or she will treat this case impartially and act on the evidence in court and no more. However, this does not resolve the issue. It is a question of whether I am persuaded that there can be a fair trial in the circumstances.

24 Originally I canvassed with counsel whether the appropriate test in such a case is akin to that in an ostensible bias application concerning the conduct or behaviour of a judge.[13] In other words, would a fair minded lay observer knowing the basic facts think the jury could not act impartially in determining the case.

25 Upon reflection, I believe that I posed the wrong test and led counsel astray. I think the proper test here is whether the trial judge is satisfied that in all the circumstances and taking into account;

(1) his or her power to give appropriate directions to the jury; and

(2) the jurors own belief in their ability to return a fair verdict on the evidence alone -

the jury will act fairly and impartially in determining the assessment of the plaintiff's damages.

26 Unfortunately, I have reached the conclusion that I cannot be satisfied this will be the case. My view is that where a juror says that she felt "a little intimidated" by the behaviour of the plaintiff, even if only fleetingly, and notwithstanding her best efforts to comply with directions I may give, there is a real risk that such a perception will influence her decision making and, arguably, the decision making of fellow jurors (two of whom were present at the station) - all of whom must now be aware of these events. I think this is all the more so when it is inevitable this issue will have been discussed by all the jurors when they reconvened this morning.

27 Ms Hartley submitted that I should have inquired more into what the juror meant by the use of the word "intimidation". Perhaps I should have, but I remain of the view, as I said in discussion, that once a juror uses such a word it is hard to escape the conclusion that the event that occurred has resulted in a lasting impact no matter how long that particular feeling actually lasted.

28 In reaching this decision I am conscious of the statements of higher courts[14] concerning directions to a jury and the confidence a trial judge should have in a jury obeying such directions. This case however is different to newspaper or media publicity cases; here there is a direct contact between the juror and the plaintiff.

29 There is another issue of some importance and that is the observations made by the jurors of the plaintiff at the station. Although this was not mentioned by the jurors there is an added risk that these three jurors may use their out of court observations of the plaintiff to inform their decision concerning the plaintiff's alleged disability. This by itself would not warrant a discharge as such encounters occur from time to time and indeed on circuit are part and parcel of court life. Generally one can rely upon a jury in this situation to conform with directions concerning the use of evidence adduced solely in court. However, here when added to the mix of a serious credit case and a number of jurors (if not the whole jury's) perception as to the events at Flagstaff it is, I think, a relevant consideration.

30 In summary, and as I hope I have conveyed most reluctantly, I have reached the view that I should discharge the jury without verdict.

Ruling No 4 (Thursday 10 March) Whether the trial should proceed without a jury

31 After I discharged the jury I heard submissions as to the future disposition of the trial.

32 Mr Richards for the plaintiff submitted that I should proceed to hear the case as a cause as provided by Rule 47.02(3). He argued that the administration of justice was best served by the hearing of this case by judge alone, as a further ten day jury trial (at least) would be avoided. He said that the balance of the trial if it proceeded before me, could be completed within the day.

33 Ms Hartley for the defendant submitted that notwithstanding considerations relevant to the administration of justice the defendant had properly sought trial by jury and was blameless in relation to the discharge of the jury. She also submitted that the plaintiff had in effect brought this situation about himself (whether intentional or otherwise). In these circumstances, the defendant should not be "punished" by losing its entitlement to a jury trial.

34 Rule 47.02(3) reads as follows:

Notwithstanding any signification under Paragraph (1), the Court may direct trial without a jury if in its opinion the proceeding should not in all the circumstances be tried before a jury.

35 In Gunns Ltd v. Marr (No 5)[15] I set out a series of principles relevant to the determination of whether a trial should proceed with or without a jury; with one slight but relevant adaptation[16] I adopt those principles.

(a) Subject to compliance with the Rules of Court a party is entitled, to seek trial by jury provided the claim is founded in contract or in tort.

(b) For that entitlement to be enlivened, it is necessary for the party seeking trial by jury to comply with the procedural requirements of r 47.02(1)(a) and (b); otherwise the trial will be before a judge sitting alone (absent an order of the Court to the contrary). Part 6 of the Juries Act 2000 (Vic) provides the statutory basis for the conduct of the trial by jury.

(c) Where a party has given notice regularly that a trial by jury is required that will be the prescribed mode of trial... unless the Court is persuaded to dispense with the jury.

(d) Notwithstanding the right of a party to opt for a jury trial, there resides in the court an overriding discretion to determine the mode of trial, regardless of the wishes of the parties.

(e) A Court may at any stage of a proceeding direct a trial without a jury if it is satisfied that it should do so.

(f) As a general rule in this State (where civil juries are still the norm in tortious injury and defamation litigation), juries should be regarded as capable of dealing with issues of legal complexity as well as difficult issues of fact.

(g) The onus in persuading a Court to dispense with a jury trial rests upon the party making that application. A court will not lightly make such an order, given the right of the other party to seek trial by jury. (I shall amend the word right to an entitlement). There must be some special reason to do so.

(h) The considerations which may influence a court to dispense with a jury trial are unfettered; the discretion may be exercised where it is warranted by the dictates of justice.

(i) Subject to the statement of general principle set out in (h), in determining whether to accede to an application to dispense with the jury, the following matters may be relevant.

- the complexity of the factual matters that the jury will need to consider

- the complexity of the legal issues relating to liability, particularly where the claim involves consideration of multiple causes of action and multiple defendants

- the complexity of the jury's task in relation to the assessment of damages

- the potential duration of the trial (although this, of itself, could never be the determining factor)

- the stage at which the proceeding or trial has reached

And those will be set out in the judgment, the one relevant for the purpose, immediate purpose of this ruling, is the stage at which the proceeding or trial is reached.

(j) A decision as to the mode of trial (by a judge alone or by jury) cannot of itself amount to a miscarriage of justice as whichever form is a trial according to law.[17]

36 Subsequently, Bell J in Bernard v. Seltsam Pty Ltd,[18] came to look at Rule 47.02. His Honour said as follows:

The courts have repeatedly stressed the importance of trial by jury in civil cases based on common law. For example, this is Jordan CJ in Commissioner for Railways v. Corben:

Trial by jury is an institution of great value. It enables the direct participation by a large body of citizens in the important branch of the business of government which is constituted by the administration of justice. And it confers upon litigants the advantage of the knowledge and experience possessed by their fellow citizens of the affairs of ordinary workaday life, which are of great value in dealing with the type of case with which a Court of common law is in the main concerned. [19]

Under r 47.02(3), the right to trial by jury under r 47.02(1) can be defeated only if the other party persuades the court that, for some special reason, the proceeding should not be tried before a jury.[20]

37 This year the Court of Appeal in Trevor Roller Shutter Service Pty Ltd v. Duane Crowe[21] was required to consider the question of dispensation by a trial judge of a jury trial in favour of trial by judge alone. Their Honours said;

First, successive decisions of this Court and its predecessor have established that a party who gives notice in accordance with the Rules has a prima facie entitlement to trial by jury, and that the party should not be deprived of such an entitlement in the absence of good cause. As was conceded by counsel for the respondent, those cases also imply that even substantial time and costs savings are not necessarily sufficient cause to deprive a party of its prima facie entitlement to trial by jury.

Secondly, although it may be that trial by judge alone takes less time and costs less than trial by jury, it does not mean that trial by judge alone is invariably the more efficient and cost effective mode of trial. As Kirby and Callinan JJ observed in Gerlach v. Clifton Brick:

...there are also countervailing advantages. Precisely because their verdicts are unpredictable, juries tend to promote settlement. Jury verdicts in civil actions also tend to promote finality. The practical necessities of jury trials also tend to discourage undue length of proceedings which has lately become a feature of much litigation...

Thirdly, allowing that there are time and cost savings associated with trial by judge alone, in this case the potential savings identified by the judge were of no greater magnitude than those which Brooking JA described in Victoria v. Psaila as 'inevitable'. As the decision in Psaila makes clear, savings of that order are not sufficient cause to deprive a party of its prima facie entitlement to trial by jury.[22]

38 I return now to the considerations relevant to this case. I readily accept that questions of significant additional costs arise here if I determine to order a re-trial with a jury. Indeed the plaintiff through his counsel says that the administration of justice will be seriously compromised if I adopt that course. However, as was said by the Court of Appeal in Crowe, even substantial time and cost savings are not necessarily sufficient to deprive a party of its entitlement to trial by jury.

39 In the course of the trial I indicated my concern as to the trial's duration in the face of the estimates given by counsel. This was particularly so when, as far as I could tell, the case was relatively simple and centred on whether the plaintiff was a believable witness. I am conscious that if I order a re-trial there is a risk of the case becoming more expansive but as Ms Hartley pointed out, the provisions of the Civil Procedure Act 2010 can be invoked to reduce court time. Perhaps I should have given greater thought to those provisions in the course of the trial.

40 However, the central issue, it seems to me, is the context in which the defendant seeks trial by jury. It contends that it has not only an entitlement to a trial by jury but more importantly, it says that it should not be deprived of that right without good cause and that this is particularly so where its conduct is, as I accept, blameless.

41 It is true that there are instances where a party desirous of a jury trial has been deprived of that entitlement without any suggestion of fault: Dunning v Altmann.[23] However, it was the complexity of that case that led to a trial by a judge alone. In other cases judges have been persuaded to determine the case where a jury has been discharged after failing to reach a proper verdict: Pezzimenti v Seamer[24]

42 However, I think the case is somewhat different here where a vital question is the credit of the plaintiff. As Ms Hartley pointed out, credit is a central issue for the determination by a judge or jury. This is quintessentially a jury task. Assessment of the worth of a witness is a matter with which juries are entrusted day in, day out in criminal and civil trials in this State.

43 If I determined to hear this case sitting alone, I would be asked to retrospectively evaluate that issue - the plaintiff's credit. That was not my role during the course of the trial. My task was, of course, to ensure a fair trial by the jury of the assessment of the plaintiff's damages. I readily accept that this point is not determinative but it is, I think, a relevant consideration.

44 Ultimately I return to the point that the primary consideration is the entitlement of the defendant to a trial by jury. If its conduct had in some way led to a discharge of the jury then it may have forfeited by its actions its entitlement to trial by jury. I have thought long and hard about the disposition of this application. Ultimately it is for the plaintiff to persuade me that there is good cause to deprive the defendant of its entitlement to a jury. Whilst I have taken into account powerful considerations in relation to the saving of costs and the effect on the administration of justice I am not persuaded that the defendant should lose its entitlement to a jury trial.

45 In other words, the plaintiff has not, to my mind, demonstrated good cause sufficient to deprive the defendant of a jury trial.

46 I reject the application on behalf of the plaintiff and I propose to order that the matter be remitted to Associate Justice Daly for refixing as soon as is practicable.

[5] See for example, MWJ v The Queen [2005] HCA 74; (2005) 80 ALJR 329, White v Flower v Hart [1998] FCA 806; (1998) 156 ALR 169, R v Birks (1990) 19 NSWLR 677; Rees v Bailey Aluminium Products Pty Ltd [2008] VSCA 244; (2008) 21 VR 478 [21].

[6] [1970] VicRp 104; [1970] VR 840.

[7] [1997] 1 VR 473.

[9] [1983] 1 NSWLR 1.

[12] Some parts of the transcript are marked "indistinct" and where possible I have endeavoured to clarify the transcript.

[13] See Ebner v Official Trustee in Bankruptcy [2000] HCA 63; [2000] 205 CLR 337 [6], [8], [24].

[14] See for instance Dupas v The Queen [2010] HCA 20; (2010) 241 CLR 237 [22]-[29].

[15] [2009] VSC 284.

[16] I have removed the reference to "right" of the party where it appears in this extract. Each party has an entitlement to a jury trial rather than a right.

[17] [2009] VSC 284 [9].

[18] [2010] VSC 305.

[21] [2011] VSCA 16.

[23] [1995] VicRp 41; [1995] 2 VR 1.

[24] [1995] VicRp 42; [1995] 2 VR 32.