The quote is from Deane J as part of the Full Federal Court in Sullivan v Department of Transport (1978) 20 ALR 323, 343.
117 Although Gaudron J uttered those words in an administrative law context they have been applied to civil litigation, the most recent example being Duong v Tran [2010] NSWCA 280 [56] and see McCarthy v Law Society of NSW (1997) 43 NSWLR 42, 62.
118 In some cases, the allegation is such that the person concerned does not want to go into the witness box and be questioned about it and declines to give evidence. However, so long as the allegation is made completely clear so that the person has the opportunity to meet it by his or her own evidence or by independent evidence or by documents, it matters not that the matter was not actually put to the person in cross-examination.
119 We have a situation fairly close to that in the instant case. The utterances of the primary judge on the Thursday made it abundantly clear that her Honour felt the matter of what the appellant knew about the MRI was of critical importance to her. The appellant's counsel, for forensic reasons, decided not to put him in the witness box to answer further these matters. Of course it was possible for the respondent's counsel to seek to recall the appellant for further cross-examination. But one might ask rhetorically, why should he? There was just as much purpose in doing that as it would have been for the appellant's counsel to cross-examine the respondent on the alleged admission against interest.
120 Thus, in my view, a new trial is not justified merely because the appellant was not cross-examined on the matter.
121 Further, I am concerned with the submission which seemed to me virtually to amount to the proposition that if counsel hints to the judge that he or she will do something if the judge wishes him or her to do so and the judge does not give guidance and counsel loses the case then there has been an unfair trial.
122 At Black 402, senior counsel for the appellant said to the primary judge:
"The plaintiff has been in a depressive state on a lot of the evidence. I'll call him if your Honour wishes me to call him as to what his appreciation of the significance of it was."
123 The primary judge did not react to that except to say that she was going to allow a longer luncheon adjournment to get in touch with Dr Ghabrial.
124 It is put before us that counsel were misled by her Honour's non-reaction that it was not vital to call the appellant.
125 It must always be remembered that although in modern litigation judges play a more active role that once they did, counsel is in charge of the presentation of the case, not the judge. There is even authority for the proposition that whilst a judge should feel at liberty to mention to counsel a point of law or a recent decision which is concerning him or her, there is no obligation to do so, and indeed, the House of Lords suggested that it should not be done where experienced counsel is appearing: see Banbury v Bank of Montreal [1918] AC 626 at 661. Furthermore, the High Court has, in recent years, reminded this Court and we have reminded others, that cases are to be decided on the points and issues raised by the parties and not those which the court considers they ought to have raised; see eg Kuru v New South Wales [2008] HCA 26; 236 CLR 1.
126 Whilst it is clear from Stead and other cases, that judges must be careful not to make utterances which would reasonably mislead counsel, there is no obligation on a judge to respond to a query from counsel. As a trial judge, I often had the situation where counsel says: "If your Honour wishes, I will do X" to which my reply usually is: "That is a matter for you Mr or Ms So and So" at least unless the answer is obvious or a consensual position is reached. The wishes of the judge about a matter are really quite irrelevant. Furthermore, it is counsel who may have a good overview of the case, rather than the judge who may still be putting the pieces of the jigsaw together and not have all the pieces in the puzzle.
127 Nor is it appropriate if counsel makes a forensic decision based on his or her reading of a judge's reaction to say that the trial has miscarried because of the forensic decision based on a misconception.
128 Accordingly, to my mind there was no reason to grant a retrial because of the way counsel read the judge's reaction, or because the material on which the judge relied was not actually put to the appellant in cross-examination.
129 There remains, however, some unsatisfactory points about the judgment, namely, (a) the judge's misinterpretation of the Family Court evidence; and (b) the judge's finding contrary to the true position that she was left without an explanation for the appellant's failure to bring the MRI scan to the attention of his counsel or the court.
130 The test in Stead is whether had these problems not existed, the trial could possibly have produced a different result.
131 My view is that when one looks at all the other deficiencies in the plaintiff's evidence, his being the only substantial evidence in his favour on liability, the answer to that question is "No". I cannot see a justification for ordering the parties to go through another 11 day trial basically because of a forensic decision, which may well have been justified when it was made, turning out not to be favourable to the appellant.
132 Accordingly, in my view the appeal should be dismissed with costs.
133 HANDLEY AJA: In this appeal I have had the benefit of reading the reasons for judgment of Beazley JA and Young JA in draft.
134 The case turned on the credit of the appellant, the respondent, and the respondent's passenger, Mr Lewis. The incontrovertible facts were few and did not support the case for either party. In these circumstances the trial Judge made credit findings adverse to the appellant and dismissed his case. Appellants normally face considerable difficulties in overcoming adverse credit based findings but appellate intervention may be justified where the trial Judge has misused his or her advantage. This can occur if the trial Judge makes errors in finding other facts which are taken into account in making the critical credit findings.
135 In my judgment this is what has occurred in this case following the revelation that the appellant had had an MRI on 29 September 2008. Beazley JA has set out the relevant facts in paras [18] - [29], [37] - [38], and [42] - [47] of her judgment.
136 The trial Judge held in para [31] of her judgment that the plaintiff did not inform the Court about the MRI and in para [33] she said that she had been left without an explanation for the plaintiff's failure to bring this matter to the attention of his counsel or the Court.
137 These findings were incorrect because senior counsel for the plaintiff had informed her Honour on 6 November 2008, as recorded in the transcript, that the plaintiff had told his solicitors and counsel about the MRI on Monday 4 November and senior counsel had decided that it was then too late for the plaintiff's legal advisers to do or say anything about it.
138 The Judge may have forgotten about this explanation and she may not have had the benefit of the transcript. However, she was given an explanation which did not reflect adversely on the plaintiff's credit in any way. He was not responsible for the decision of his legal advisers to say nothing about the MRI which was not even in their possession. If any criticism were called for it should have been directed at his legal advisers.
139 Statements of senior counsel from the bar table are traditionally accepted without question. If her Honour was not prepared to accept senior counsel's explanation without sworn evidence, she should have said so.
140 The plaintiff clearly knew that he had had an MRI but it was not self-evident that he was aware of the result. Senior counsel's statement that the plaintiff was not aware of the result was not challenged either by her Honour or by his opponent. In the absence of evidence on the topic the Judge was not entitled to find that the plaintiff was aware of the result.
141 Notwithstanding the strength of the matters referred to by Young JA I must agree with Beazley JA that the Court cannot find that the Judge's errors about the MRI were immaterial and had no influence on her findings about the appellant's credit. On the contrary, the Judge said that she took this matter into account on that very question. I agree with the orders proposed by Beazley JA.
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