Supreme Court of NSW|1995-11-13|Before: Bignold J, Kirby P

The Council of The Municipality of Burwood v Harvey Nos. Ca 40269/93; Lec 30684/91 Courts and Judges - Environmental Planning and Assessment - Waiver [1995] NSWSC 149 (13 November 1995)

COURT IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL KIRBY P(1), MAHONEY(2) AND COLE(3) JJA HRNG SYDNEY, 23 and 24 February 1995 #DATE 3:4:1995 #ADD 13:11:1995

Solicitors for the Appellant: Forbes-Smith and Company

Before the Court is an appeal against orders of the Land and Environment Court of New South Wales constituted by Bignold J. That court ordered that the Council of the Municipality of Burwood (the Council) (the appellant) to pay Ms Linda Harvey (the respondent) the sum of $561,000.00, as the market value of a property known as No. 33 Russell Street Strathfield, together with an amount for stamp duty, legal and related expenses of acquiring a replacement property and statutory interest pursuant to s 126A of the Public Works Act 1912.

The order of compensation was made in Class 3 of the jurisdiction of the Land and Environment Court. An appeal to this Court lies; but it is limited to an appeal on a question of law. See Land and Environment Court Act 1979, s 57. In such an appeal, this Court is required, upon allowing the appeal, to remit the matter to the Land and Environment Court for determination by that Court in accordance with its decision, or to make such other order in relation to the appeal as seems fit.

An appeal against orders for compensation for a property resumption 4. Several grounds of appeal were advanced in the amended notice of appeal, designed to re-agitate various legal arguments which were argued at first instance. Put briefly, the Council argued that Bignold J had erred in law in:

Determining that the application of the Local Government Act 1919, which incorporated the Public Works Act 1912, s 124, required or permitted the determination of the value of the resumed land as part of an "agglomerated" site with adjoining properties which had earlier been acquired (in all but one case, voluntarily) to create an open space for use as a park;

Allowing a specified amount for "risk factors", determined by reference to whether the site would have been developed as an isolated site or as an agglomerated site; and

Allowing compensation moneys to cover stamp duty and legal expenses. Cf. Albany and Ors v The Commonwealth (1976) 12 ALR 201 (HC), 236.

Much time before this Court was taken up on the foregoing grounds of appeal, particularly those relating to the application of the provisions of the applicable statute governing the ascertainment of the compensation to be paid by the Council. Much time was also taken upon the application of the statutory enactment of the Pointe Gourde principle which obliges that compensation, in a case such as this, must be based upon the market value of the subject land disregarding the impact on that value occasioned by the proposed public works, whether that impact be an increase or decrease in the land's value. See Pointe Gourde Quarrying and Transport Co. Limited v Sub-Intendant of Crown Lands (1947) AC 565 (PC), 572; Housing Commission of New South Wales v San Sebastian Pty Limited and Ors [1978] HCA 28; (1978) 140 CLR 196, 206. Cf Haig v The Minister Administering the National Parks and Wildlife Act 1974, Court of Appeal, (NSW), unreported, 21 February 1995; (1995) NSWJB 20. As it had done in the primary hearing, so before this Court the Council urged that its earlier acquisition of adjoining properties could not be said (for the applicable statutory provision any more than for the common law principle) to be steps in the later resumption of the subject property belonging to the respondent.

There were various alternative arguments on this issue which it is not necessary to elaborate. It is not necessary, because the remaining ground of appeal, upon which the Council relies, attack, fundamentally, the fairness of the trial in which the orders challenged were made. This attack was not voiced, at least in any clear terms, during the primary hearing. Nor, indeed, was it expressed in the original grounds of appeal filed in this Court for the Council. Only subsequently, in a further amended notice of appeal, filed without objection in August 1994, did the Council raise the ground of appeal which, in my view, is decisive. It reads:

"10. That His Honour erred in law in denying to the Appellant Council natural justice in that his intervention into the

proceedings was such as to deny to the Appellant Council a fair trial."

Various other grounds of appeal, in addition to those stated above, were either expressly abandoned or not argued. The respondent filed a cross-appeal. This asserted that the Council had failed to "act fairly, honestly, honourably and efficiently" in making arrangements for part, or interim, payment of the compensation awarded and had thereby denied the respondent income and had "deprived (her) of equity". For this reason, the respondent sought an increase of compensation "from a figure of $561,000 to a figure closer to $750,000". She opposed return of the proceedings to the Land and Environment Court on the ground: "... that the appellant has dragged this matter out already for more than 4 years, unfairly and unnecessarily, causing the defendant financial loss, damages and ill-health...".

Upon the hearing of the proceedings in this Court, and in support of the cross-appeal, the respondent moved the Court to receive fresh evidence which related, amongst other things, to valuations of properties in the vicinity of the subject land received since the primary hearing. The Court reserved its decision upon the motion. In the view which I take of the proper disposal of the appeal, neither the cross-appeal nor the motion for enlargement of the evidence, falls to be determined. Accordingly, it is not necessary to clarify precisely what each of these processes required. In my view, and with respect to the primary judge, the trial miscarried in a fundamental way. It is necessary for this Court to order a re-trial, unfortunate though that course is in proceedings which now have a very long history.

The history, upon one view, commences in 1976 when the Council began a series of voluntary acquisitions of properties in Russell Street, Strathfield for the purpose of developing a small suburban park. In May 1987, the respondent purchased the subject premises in Russell Street. The resolution of the Council to resume those premises compulsorily was approved on 28 June
The Government Gazelle notice resuming the premises was published on 17 February 1989. The respondent was notified soon after. She was later informed of her right to recover compensation. She had acquired the subject property for a price of $120,000. She was not content with the Council's offer of compensation. This led to the proceedings in the Land and Environment Court. They commenced in 1991. The Registrar of that Court in December 1991 fixed two days, 16 and 17 July 1992, for the hearing at which the Land and Environment Court would determine authoritatively the compensation payable. Unfortunately, in the events which occurred, the hearing lasted, in all, eleven days.

The Council was represented throughout the hearing by Mr J. Levy, solicitor. The respondent was not legally represented. However, Bignold J permitted the respondent's husband, Mr De Souza, to act as her agent. Mr De Souza is not a legal practitioner. Part of the meandering course which the proceedings took in July 1992, August 1992 and February 1993 must be attributed to the failure of the representatives of the parties efficiently and economically to identify the issues for determination and to present evidence and argument addressed to those issues. In this, the case was not unique: see Coombwood Pty Ltd v Baulkham Hills Shire Council, Court of Appeal (NSW) unreported, 28 March 1995.

A complaint of excessive judicial intervention in the trial 11. The Council put its complaint about the conduct of the hearing in the Land and Environment Court in three distinct, but related, ways: (a) That the number, character and tone of the judicial interventions, recorded in the transcript, gave rise to a reasonable apprehension of bias on the part of the primary judge. It was argued that a fair-minded observer would conclude that the judge had formed opinions which might have affected his determination of the issues between the parties in a way unfairly to the Council. Cf. R v Watson; Ex parte Armstrong [1976] HCA 39; (1976) 136 CLR 248, 262; Livesey v New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288, 293; Vakauta v Kelly [1989] HCA 44; (1989) 167 CLR 568, 585; SandM Motor Repairs Pty Limited and Ors v Caltex Oil (Australia) Pty Limited and Anor (1988) 12 NSWLR 358 (CA), 373; Australian National Industries Limited v Spedley Securities Limited (in liq) and Ors (1992) 26 NSWLR 411 (CA), 420;

(b) That there has been a departure from the rules of procedural fairness ("natural justice") governing the conduct of the trial by reason of the excessive interventions in the conduct of the proceedings on the part of the primary judge; and

(c) That, by reason of the number, character and tone of the interventions of the primary judge, the trial miscarried so that there was never conducted, as the law envisages and requires, a true hearing and determination of the processes

filed in the Land and Environment Court by the respective parties.

It will be seen that the relevant ground of appeal (ground 10), set out above, does not express (at least clearly) the three different ways in which the Council ultimately argued its case before this Court on this issue. No objection was taken to the differing ways in which the same essential idea was presented. Keeping in mind that the respondent was not legally represented before this Court, it is essential to ensure that she should not suffer any procedural unfairness herself in the attempt of the Court to come to grips with the argument advanced by the appellant complaining about the conduct of the primary hearing. I can see no relevant prejudice. The various ways in which the Council expressed its complaint, represented differing ways of giving voice to the one essential objection to the conduct of the primary hearing. This was, in effect, that the primary judge, in his understandable and laudable efforts to assist the respondent, who was not legally represented before him, had, in effect, gone too far. He had intervened too much. He had become caught up in the apparent advocacy of the respondent's case. And he had relinquished the judicial function which the law assigned to him and required him to observe.

At a call-over of the proceedings in advance of the hearing of the appeal, I called to the attention of the respondent the provisions of the Suitors' Fund Act 1951. Although a substantial investment asset was at stake (the respondent never having actually lived in the subject premises), she chose, as was her right, not to be legally represented in the Land and Environment Court. She there enjoyed a substantial success. The Suitors' Fund Act 1951 would, in effect, have ensured that most of the costs of legal representation of her interests in this Court, even if she were to lose, would be covered. This was explained to her. Although it was not strictly proved, the respondent told the Court at the beginning of the appeal that she had sought to obtain legal advice but apparently without success. Mention was made of her endeavours to retain a Melbourne solicitor. Why this was thought necessary was not explained. The respondent did not seek an adjournment of the hearing of the appeal. She wanted the appeal (and her cross-appeal and motion) to be heard immediately. All that she asked was that Mr De Souza should be allowed to speak for her.

Despite the efforts of the Court to explain the problems which she was facing in the appeal, the respondent might not have had a full understanding of the peril in which she stood, namely that she might lose the judgment entered in her favour by Bignold J. A court cannot require a party to have legal representation. So long as that party is a natural person, with apparent capacity to represent that party's own interests, he or she can do so. Cf Bay Marine Pty Ltd v Clayton Country Properties Pty Ltd (1986) 8 NSWLR 104 (CA),
The right of any natural person to advance, in person, a cause and to have access to the courts in that way is a valuable civil right. Advice may be given about the wisdom of securing legal representation. But such representation cannot be required, at least in the ordinary civil case and with a party apparently of full legal capacity as was the case here.

In the result, as Bignold J had done, the Court sought to meet the respondent's perception of her interests by allowing Mr De Souza to speak on her behalf as she requested. The Court did not have the assistance of a legal practitioner to advocate the respondent's cause, either in the technical and substantive grounds of appeal raised by the Council or upon the threshold challenge to the fairness and lawfulness of the proceedings at first instance. Before this Court, after the preliminary enquiry about representation was made and answered, the hearing proceeded in a conventional way.

Principles governing control of excessive judicial intervention 16. A number of points may be made concerning the considerations which the Court will keep in mind in considering complaints such as are advanced by the Council in this case about the conduct of the primary hearing:

A judicial officer enjoys a wide discretion in the conduct of court proceedings. Appellate supervision (particularly in appeals limited to questions of law) will show restraint and respect for the primacy of a judicial officer conducting a trial. This is done out of recognition of the extremely large variety of circumstances which have to be taken into account in the conduct of a trial in ensuring that it proceeds to its result fairly and produces orders which dispose of the controversy justly and in accordance with law. Appellate courts also recognise the variety of the personalities and dispositions of those who constitute the judiciary. Some judicial officers are, by personality and disposition, more inclined to intervene in proceedings than others. The appearance of justice and fair procedures does not impose a monochrome uniformity upon judicial conduct such that only one style of conducting proceedings is permitted. There are special restraints in the conduct of criminal trials. Cf. Titheradge v The King [1917] HCA 76; (1917) 24 CLR 107, 116; X v Y (No. 2) (1954) VLR 715 (SCV), 718; R v Delaney [1955] VicLawRp 8; (1955) VLR 47 (FCV), 50. But in civil proceedings there is much greater room for variety and innovation. T.D. McCawley, "Judicial Intervention in the Examination of Witnesses" (1957) 31 ALJ 529, 530;
A number of considerations which have affected the conduct of civil proceedings in recent times also affect the approach which will be taken by an appellate court to a complaint of excessive judicial intervention in the conduct of a civil trial. These considerations include: (a) The increasing realisation of the significance of the significance of the public costs involved in the conduct of court proceedings and of the obligation of judicial officers, at least to some extent, to take an active part to prevent the injustices which may occur to parties and to the public as a result of the inefficient conduct of trials; (b) The increasing number of litigants in person who, for default of legal aid, lack of confidence in legal representation or otherwise by choice, present their own cause and represent themselves;

(c) The creation of expert tribunals with specialised judges and other members, novel standing rights and modified procedures aimed to facilitate, if not actually to encourage, persons to pursue, or defend, their legal rights without the necessity of securing qualified legal practitioners to represent them; and (d) The heightened awareness of all courts of the requirements of fair procedure including the requirement that parties and essential witnesses, whose evidence may be disbelieved, qualified or in some way affected by a contrary proposition, should have the fair opportunity of answering such proposition before a final decision is made. The rule in Browne v Dunn (1893) 6 R 67 (HL) and its local applications and expositions, has had a greater effect upon court procedures in recent times than was earlier the case. See e.g. Payless Superbarn (NSW) Pty Ltd v OGara (1990) 19 NSWLR 551 (CA), 552, 560; Boston Clothing Co. Pty Ltd v Margaronis (1992) 27 NSWLR 580 (CA), 590. This development has imposed increased duties upon judicial officers conducting trials, to ensure that the trial does not miscarry for the failure of procedural fairness involved in a want of compliance with the rule. It has been suggested that the rule in Browne v Dunn has little application in the Land and Environment Court because each party's case will nearly always be apparent in advance through the exchange of reports, affidavits, statements etc. See T.F.M. Naughton, Land and Environment Court Law and Practice, 2-1324 (para 2.3315). Whilst that might ordinarily be the case, it is less obviously applicable in a case, as here, where one of the parties was not legally represented and much of the evidence was elicited by oral testimony taken over eleven hearing days;

Notwithstanding the foregoing, which sustains an increasingly active role on the part of judicial officers today, a judicial officer observing the conventions of the Australian courts must conform to certain restraints which have been accepted as inherent in the judicial office and necessary to the manifestly neutral determination of controversy in a court of law. In a well-known passage in Jones v National Coal Board [1957] EWCA Civ 3; (1957) 2 QB 55 (CA), Denning LJ, at 64, chartered the limits by reference to the metaphor of the lay-out of a courtroom. Advocacy is for the bar table. The judicial officer sits on an elevated bench, not to promote a sense of self-importance, but to symbolise his or her removal from the fray. Such removal is designed to promote both the appearance and actuality of neutrality and independence of the parties which are the hallmarks of the judicial office:

"The judge's part in all this is to harken to the evidence, only himself asking questions of witnesses when it is necessary to clear up any point that has been overlooked or left obscure; to see that the advocates behave themselves seemly and keep to the rules laid down by law; to exclude irrelevancies and discourage repetition; to make sure by wise intervention that he follows the points that the advocates are making and can assess their worth; and at the end to make up his mind where the truth lies. If he goes beyond this, he drops the mantle of a judge and assumes the robe of an advocate; and the change does not become him well."

There are also reasons of a practical and substantive character which reinforce the traditional distance, neutrality and limited intervention which have been the features of judicial conduct in our system of justice. They include the need, every day, to win the confidence of the litigants and their acceptance that the judicial officer has approached the controversy presented to the court with detachment and equal attention to the arguments of each party. The losing party, in particular, must not be left with a sense of grievance that the judicial decision-maker has taken on the cause of, or become too close to, its opponent. To this traditional explanation may be added one offered by Sir Robert Megarry in his "Temptations of the Bench" (1978) 16 Alberta L Rev 406, 409. The judicial officer must be aware of the "perils of self-persuasion". So long as he or she retains a distance and is relatively circumspect in interventions in the conduct of the trial, the appearance, and the actuality, of self-persuasion will be diminished. If a party feels that the decision-maker is not neutral, but has taken on the cause of its opponent, the central point of judicial decision-making will have been lost. The losing party will not only be disappointed. It will be disturbed at the apparent failure of the judicial institution to operate as intended and expected. Interventions, put forward provisionally, to test evidence and to invite further persuasion are perfectly permissible. See e.g. In the marriage of Lonard (1976) 26 FLR 1, (FFC) 10-11. But interventions which suggest a partisan opinion are intolerable. They attack the integrity of the judicial process which is the ultimate foundation of the judiciary's authority and of community acceptance of its orders. See Tousek v Bernat (1961) 61 SR(NSW) 201 (FC), 209;

The foregoing general principles are well-known. They provide the framework within which decisions in individual cases of complaint against excessive judicial intervention must be made. Determining whether judicial intervention has crossed the line from the permissible to the impermissible requires an exercise of judgment by the appellate court. Sometimes it is difficult to explain, with precision, why a case falls upon one side of the line rather than another. Upon such questions judicial minds will sometimes differ. See e.g. Government Insurance Office of New South Wales v Glasscock, Court of Appeal, unreported, 19 February 1991; (1991) NSWJB 11. Standards of restraint differ as much amongst appellate judges as amongst those at trial. And the ultimate question is whether the conduct complained of has undermined the fairness of the trial so as to render it, in law, no trial at all. A fundamental departure from the rules of procedural fairness has been held to involve an error of law authorising correction in an appeal so limited. See eg Escobar v Spindaleri and Anor (1986) 7 NSWLR 51 (CA), 57, 59. See also E.H. Cochrane Limited v Ministry of Transport (1987) 1 NZLR 146 (NZCA). Some of the earlier judicial attempts to define where the line is drawn, by reference to an ideal of judicial silence, must now be read as subject to the changing circumstances of litigation, heightened pressures on the courts and a growing acceptance that complete silence on the part of a judicial officer may actually sometimes work an injustice. See Vakauta v Kelly [1989] HCA 44; (1989) 167 CLR 568, 571; Galea v Galea (1990) 19 NSWLR 263 (CA), 278f. Nevertheless, the line, although not always bright, will ultimately be reached where it can be said with assurance that the judicial interventions in a particular case were excessive. That point may be expressed in terms of apparent bias; departure from due process and procedural fairness; or invalid conduct of the trial. But the essential point will be the same. The parties are then held not to have had a trial at all, as our system of law guarantees them. Subject to what follows, the appellate court must then order a new trial to repair such a serious default;
There are at least two categories of exception for the provision of relief where a court is of the opinion that excessive intervention on the part of a judicial officer has been established: (a) The first is where the appellate court is convinced that the interventions, although excessive, did not prevent a fair trial from being had or cause a reasonable apprehension of bias to arise. This, for example, was the opinion of the majority of the Court in Ardvark Security Services Pty Limited v Ruszkowski, Court of Appeal (NSW), unreported, 19 March 1993; (1993) NSWJB 38; and

(b) The second is where the appellate court concludes that the party complaining waived an objection to the manner of the conduct of the proceedings at trial or is estopped by its conduct from later complaining about the suggested irregularity of the trial. The earlier controversy as to whether it was open to an individual party to waive the public's interest in the conduct of a manifestly fair trial was settled by the High Court of Australia in Vakauta v Kelly (above). It must now be accepted that in Australia, there is no reason why "in authority or in principle a litigant who is fully aware of the circumstances from which ostensible bias might be inferred, could not be capable of waiving the right later to object to the judge continuing to hear and dispose of the case". See Vakauta, ibid, 587. There seems no reason to doubt that this principle applies in respect of objections to the way a trial has proceeded which were not raised when there was still time to retrieve the situation but were kept in abeyance until an appeal. As Blair CJ pointed out in R v Power (1940) St R Qd 111, it may perhaps be understandable that counsel will usually be reluctant unwilling to object to questioning by a judge who then has himself to decide the propriety of his own questions. But "it is not only unfair to the judge himself, but may

seriously affect the (party) upon an appeal". See ibid, 120. Cf. Power v The King 15 ALJ 100 (HC); Hinton v Mill (1991) 57 SASR 97 (SC), 100; Preston v Carmody and Ors (1993) 53 IR 206 (FC), 218; Varga v Scigliano Court of Appeal (NSW), unreported, 6 February 1995. In such cases the party affected must take courage and raise the objection. Otherwise a risk is run that the appellate court may hold that the party has waived its objection to the way the judicial officer conducted the proceedings.

Instances of excessive judicial intervention 17. I turn from these principles to the case in hand. The appellant acknowledged that Bignold J was perfectly entitled, indeed obliged, to give assistance to the respondent and to Mr De Souza, they being both without legal qualifications. The appellant also accepted that such assistance would properly involve, in the rather technical area of the law involved in this case, a certain amount of technical advice and guidance to ensure that attention was addressed by the respondent not simply to a vague feeling of the inadequacy of the compensation offered, but to the proper application of the relevant statute and of the principles of valuation law which have accumulated around its sparse words.

The appellant also conceded that, in a specialised court such as the Land and Environment Court, some measure of latitude in the judicial control of the proceedings would be permissible to facilitate well-targeted evidence and submissions. The appellant accepted that the primary judge was entitled, perhaps obliged, to assist the respondent and Mr De Souza to conform to the Browne v Dunn principle and any other procedural rules designed to prevent a miscarriage of the trial. Especially at the outset of the case, the appellant accepted that, without the assistance of a legal representative for Ms Harvey, his Honour was entitled to ask more questions than might otherwise have been conventional, to direct questions to the Council, its representative and witnesses in such a way as to bring out evidence that would otherwise have been presented in Ms Harvey's case by a trained lawyer or an experienced valuer.

The complaint of the Council was that Bignold J's interventions went far beyond the above. They were much too frequent, were not confined to the beginning of the trial, were not limited to mere clarification of the evidence, and became increasingly energetic, numerous and even belligerent and argumentative when addressed to the Council's witnesses. They raised issues of credit and irrelevant questioning which tended to demonstrate the adoption of the role of an advocate and the surrender of that of a judicial officer.

The Court was taken through the transcript of the trial. My own impression is that the questions asked at the beginning of the hearing, e.g. of Mr Riley and Mr Finlay, valuers, called by the respondent, although numerous, were understandable and seemingly addressed to seeking clarification of the case which was being presented on behalf of the respondent. However, once Mr Hubbard, the valuer for the Council was called, his Honour became involved in an extremely detailed cross-examination. The cross-examination of the witness became very lengthy. It extended, often uninterrupted, over many pages. In the case of Mr Hubbard, it did not merely seek to clarify the methodology which he had adopted (which would have been permissible). It ended with what reads very much like an attack on the witness's conclusions and an attempt to extract admissions that the methodology which he had adopted was improper and the conclusions which he had drawn, fatally flawed.

As I have said, the questioning proceeded over numerous pages. It is not possible to incorporate it all in these reasons. It began in earnest during Mr Hubbard's examination-in-chief when his Honour appears to have taken the questioning out of the hands of Mr Levy, the solicitor for the Council. Thus, between pages 132 and 143 of the appeal book, Mr Levy was able to ask only four questions. The balance of 124 questions were asked by his Honour. Mr De Souza intervened from time to time, seemingly to give some support to lines of questioning which his Honour was advancing. At one stage, Mr Levy, whose witness Mr Hubbard was, is actually recorded as saying, apparently plaintively and apologetically: "MR LEVY: If I might intervene, your Honour."

Bignold J was perfectly polite and impeccably courteous, both to Mr Levy and to Mr De Souza. But he simply took over the conduct of the trial. The same pattern appeared, with judicial questions for pages on end, during the evidence of Mr Hubbard. See e.g. Tpt 147-151, 188-196, 203-206, 228-233.

Apart from the multitude of questions, there is a further concern that an impartial observer might have thought that his Honour and Mr De Souza were engaged in an inappropriately symbiotic activity: "(HIS HONOUR) Q. And - you have put it back into the land value as well. You've doubled up. Haven't you?

MR DE SOUZA: Excuse me which ones are you looking --?

Q. But it's a mistake to have an adjustment for improvements of ten per cent on land value in your summation method when you've already dealt with a difference in terms of the size of the structure and the different value you've attributed to it on a per-per square metre basis?

Q. That ten per cent shouldn't be in the adjustment should it?

Q. So far as it is concerned with the summation method?

Q. With that noisy railway line? Within a stone's throw of it? Are you serious - are you seriously suggesting that that rear

one-way street access right on the railway line would render the sale property ten per cent more valuable, land for land,

Q. That's your opinion? Thank you. Anyway you then need to do that adjustment all over again wouldn't you? Because you've inflated --

Q. --you've inflated your adjustment by at least ten per cent error--

Q. Would you like to do that in the witness box? Tell me what the right answer should be. And I suggest to you you've done that consistently in every analysis?

Q. Yes. All of your analyses - on the summation method are wrong because they double-up--

And later: "(HIS HONOUR) Q. Yes. Given your $60,000 for the improvements, if you did all of those adjustments again by taking out the ten per cent error I would - I don't think you need do it. I think you'd go over two-fifty thousand every time. Would you agree with that?

A. Can I check my main two sales which I believe are more relevant?

MR DE SOUZA: May I just refresh your memory your Honour?

It is fairly clear that his Honour felt that he was duty bound to ask the questions which Mr De Souza should have asked. This appears from the following exchange: "HIS HONOUR: Yes thank you Mr Hubbard. Now Mr De Souza do you wish to cross-examine? Time is very short. Are you able to do it now?

An adjournment of five minutes ensued. But the cross-examination of Mr Hubbard then proceeded over two further sitting days. It extended to nearly 100 pages of transcript. Again, many of the questions were asked by the judge himself. Passages of judicial questions extend unbroken over many pages. Those questions are certainly not confined, as Denning LJ suggested they might be, to eliciting facts or clarifying matters left unclear by the parties. Many of them are framed in apparently combative mode. Take the following illustrations: "(HIS HONOUR) Q. Did you consider the operation of the San Sebastian principle in reaching that opinion?

Q. Would that affect your valuation of the subject land?

Q. Now that I've drawn your attention to San Sebastian principle, do you agree that you were right to proceed on the basis that you should not acknowledge any legal possibility of the resumed land being amalgamated with the council adjoining land which was also reserved for open space purposes under the Burwoo(d) Planning Scheme as was told you in the council's brief, exhibit 4? You look at the plan, annexed to exhibit 4, I'll show you it, you'll see that the council has said that those four lots including the subject land were reserved for open space under the Burwood Planning Scheme and that all but the subject land had since been acquired by the council?

A. Yes. Well, we provided council with preliminary advice and they instructed us to proceed with what we've done your Honour.

Q. Now that I've drawn your attention, do you know the San Sebastian principle?

(There followed a description of the principle.) HIS HONOUR: Mr Hubbard I want to be entirely fair to you and of course to the council, I'd like you, over lunch, to consider whether your approach to assign no value reflecting residential flat development potential of the subject land, I want you to reflect on whether that valuation approach is correct having regard to the principles contained in San Sebastian--

HIS HONOUR: I appreciate they're your instructions. I now (want) you, as a valuer, to reflect over lunch whether you had in fact applied the correct valuation principles and I draw to your attention the provisions of section 124 of the Public Works Act. Section 116 of the Environmental Planning Assessment Act and the decision of the High Court in San Sebastian and the Housing Commission of New South Wales which Mr Levy will no doubt be able to get you a copy of if you need to look at it I think it's reported in volume 140 CLR ... I want you to reflect on whether, in the light of those principles, you are correct in ignoring any residential flat development potential for the subject land, particularly, in its identification with the land acquired by the council adjoining also acquired for public open space purposes. Would you be able to do that over the lunch?

After lunch, the solicitor for the Council put submissions to his Honour, who then continued in a lengthy dialogue with Mr Hubbard, recording: "HIS HONOUR: ... Mr Levy has put to me that this line of questioning is out of Court or going beyond the agreement of the parties, (but) it is simply seeking to understand the processes of Mr Hubbard's mind which led him to the view that 5 Lyons Street Strathfield was not a comparable sale because if it was a comparable sale, it was superior and part and parcel of its superiority lay in his opinion, in its ability to amalgamate with sites next door. Now that's a matter which is perfectly legitimate to perceive. ..."

Shortly thereafter, his Honour indicated in a lengthy, uninterrupted passage, his intention to put certain matters to the witness. Later still, his Honour's questioning of Mr Hubbard (interrupting the cross-examination by Mr De Souza) became specially energetic: "HIS HONOUR: Q. Forget that by the summation method which you have done to test your--

Q. --direct comparable sales approach, you are left with the startling I should have thought proposition that those two modest 1930 vintage semi-detached cottages could be worth $260,000 as improvements. That just has to be stated to be rejected as absolute folly doesn't it?

Q. They wouldn't come within coo-ee of $260,000, not within coo-ee. Now what does that tell you, as you say we appreciate that valuation is necessarily imprecise and--

Q. --about your valuation of $250,000 for the subject land?

A. Well based on that sale, that is not supported but--

A. No, but the questions that I have as I've outlined is that you know it's different to the subject. You're making adjustments, you're making great adjustments for time.

Q. Yes, but I thought you were fairly confident with the 3.5 per cent.

Q. I mean really the only key to analysis on a summation approach is that if you are right, that the subject land was worth $ 180,000 and 29 and 29A is almost a twin piece of land, ... then your sale shows that your land value of S180,000 upon a summation method cant possibly be correct.

A. No, on the basis that the subject was an investment property as well. I still believe that the other sales that I--

Q. What if these are investments that go bad? That sort of investment where the investor wouldn't have a clue?

A. No, I just believe that the other sales are more relevant to the exercise."

I will not extend these reasons with a similar analysis of the questioning of the other witnesses, Messrs Rollinson, Smith and Drummond. Mr Hubbard was recalled on two occasions. There followed still more lengthy interrogation of him by the learned judge. That questioning (Tpt 370ff) even intruded into the "alleged" advice given to the valuer by the Council's legal advisors. By the last phase of the evidence (Tpt 553-559, 580-588, 645-647, 669-676 and 693696), the learned judge was clearly challenging the credibility of Mr Hubbard in a way which, to say the least went beyond the normal perceptions of the proper function of a judicial officer of our tradition.

Making all allowance for the significant difficulty of presiding in a case upon a technical matter in which his Honour had expertise which the respondent and Mr De Souza lacked, it is clear that the acceptable line to which I previously referred, was crossed. Whether this is then categorised in terms of the appearance of bias, a departure from procedural fairness or the failure of the trial to amount to a hearing, as envisaged by law, matters not in the way this appeal has proceeded. My own preference is to express what occurred in terms of the third description. It was simply not a hearing of a proceeding before the Land and Environment Court such as the Act of Parliament establishing that Court contemplated.

The defects were not waived or excused by lack of protest 30. Mr De Souza, for the respondent, sought to justify what had occurred by reference to section 38(2) of the Land and Environment Court Act 1979. That reads: "38(2) In proceedings in class 1, 2 or 3 of the Court's jurisdiction, the Court is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate and as the proper consideration of the matters before the Court permits.

(3) Subject to the rules, and without limiting the generality of subsection (2), the Court may, in relation to proceedings in class 1, 2 or 3 of the Court's jurisdiction, obtain the assistance of any person having professional or other qualifications relevant to any issue arising for determination in the proceedings and may receive in evidence the certificate of any such person."

It is clear that s 38(3) of the Act has no relevance. The course of obtaining the assistance of an expert was not adopted in this case. In form, the matter proceeded as the hearing of contested applications. Therefore, the question is whether s 38(2) of the Act authorises the unusual course which was followed. In my view, it does not. Provisions such as s 38(2) have been common in statutes creating specialised tribunals. A similar provision appeared for many years in the Workers' Compensation Act. Thus the 1926 Act of that name, s 36(3) provided: "(3) The decisions of the Commission shall be upon the real merits and justice of the case and it shall not be bound to follow strict legal precedent."

Notwithstanding this provision, which permitted some degree of flexibility (see Coates v Commissioner for Railways (1964) NSWR 1292 (FC), 1299), it could not authorise a departure from the powers and duties of a judicial body established by the Act. See Thomas v Airlines of New South Wales Pty Ltd (1964-5) NSWR 88 (FC), 94f.

The Land and Environment Court was not created as an administrative tribunal, but as a superior court of record. See Land and Environment Court Act 1979, s 5(1). Section 38(2) of its Act is designed to afford a measure of flexibility in the conduct of proceedings. But in such a court it cannot have been Parliament's intention to provide an extensive jurisdiction to depart from the procedures normal to a superior court of record in this country and especially where the consequence is an apparent departure from procedural fairness. See Australian Broadcasting Tribunal v Bond and Ors [1990] HCA 33; (1990) 170 CLR 321, 366. The objects of the section include the provision of a facility to the specialised court in the admission of evidence, such as upon Council codes and policies, subjective notions of taste, decorum and opinion in relation to local amenities and the conduct of Council officers. Its purpose is not to override the requirements of procedural fairness or to sanction large departures from the ordinary rules governing the conduct of proceedings by a judicial officer in a court.

When the Court informed Mr De Souza of the principle of waiver referred to in Vakauta, he embraced that principle and relied upon it on behalf of the respondent. I arranged for copy of Vakauta to be provided to the respondent. So it was. Of course, I accept as I must, the determination by the High Court that the principle of waiver is available. But was there waiver in this case? Certainly, Mr Levy did not (except in one minor intervention) protest at the extent of the judicial questioning by the primary judge. As I have said, the early drafts of the notice of appeal did not even contain reference to this point. That reference appears only to have come when counsel were retained, read the transcript and reached the view that the judicial interventions were so excessive that the trial had miscarried.

It was said that Mr Levy's failure to object could be explained by the difficulty which a solicitor in particular faced in raising an objection in a superior court to the conduct of a judge who will decide the case. This is scarcely a proper excuse for silence on the part of a legal practitioner. The duty of counsel to represent clients with courage and the need for courts to "do more than pay lip service to the duty" was emphasised by Handley JA in Glasscock (above), at 11. The same duty descends upon a solicitor advocate. So much is made plain by, amongst other things, the recent amendments to the Legal Profession Act providing for a common rank of legal practitioner.

In Grhovac v Government Insurance Office of New South Wales (1991) NSWJB 107, this Court allowed an appeal where it concluded that the judge of trial had undertaken "an inquisitorial cross-examination of the plaintiff' and had made adverse comments reflecting on the plaintiff s credit without any evidentiary basis being shown. It was held that the failure of counsel at the trial to object to the excessive judicial cross-examination did not amount to a waiver of the plaintiff s right to a new trial. Handley JA, after noting that it was "not clear whether a litigant can waive his right to a civil trial conducted in accordance with the common law adversarial system", held that "the evidence of ostensible bias in his Honour's reasons for judgment revived the plaintiff's right to challenge his Honour's judgment on that ground based on his earlier conduct and also gave rise to a fresh basis for such a challenge". There is no evidence of actual bias in the reasons of Bignold J in this case. To that extent, it is necessary to return to the question whether a litigant, by its solicitor, can waive a right to a trial conducted in accordance with the conventional methodology. It is unnecessary, in this case, to resolve that question. Some of the dicta in Vakauta would tend to suggest that waiver of such a right may be possible. But it would need to be conscious. And a point would be reached where the default was so large, and the departure from orthodox conduct so substantial, that notions of waiver have no application.

Allowing that it is possible to waive particular interventions and comments, it seems unlikely that a litigant can waive the entitlement to a mode of trial which Parliament has envisaged when establishing a court such as the Land and Environment Court. One can no more accord jurisdiction to the donee of statutory power to act in an unauthorised way by waiver, than one can by contract. See Coombwood Pty Limited v Baulkham Hills Shire Council, Court of Appeal (NSW), unreported, 28 March 1995.

The failure of Mr Levy to object, still less to ask his Honour to disqualify himself, is certainly unfortunate. In some circumstances, such a failure would be fatal to a later complaint on appeal. But not, I think, in this case. There was no appreciation on the part of the Council, nor any conscious decision, to waive objection to the way in which this trial was conducted. If the matter stood at the borderline, such a failure could deflect this Court from disturbing the orders under appeal if otherwise they were correct. But the conduct of these proceedings was so unconventional and involved so many interventions by the learned judge that I do not believe that the principles of waiver (or estoppel or election) can save the hearing. There was such a serious departure from ordinary standards, that the failure of Mr Levy to lift his voice in protest cannot deprive his client of the point, the protest now being voiced to this Court. As some of the passages set out above demonstrate, the questioning of witnesses was such as to put them at a serious disadvantage. Questioning by an opponent is one thing. But so strong is our convention and expectation of judicial neutrality, that combative questioning by a judicial officer can intimidate a witness and affect his or her willingness to adhere to fact or opinion, as otherwise the witness might. This is one of the recognised reasons for judicial restraint in questioning. It is a reason why questions, when asked, should ordinarily be put in a manner designed to elicit information, not to score a point. Point-scoring can be left to the advocates or the parties, however convinced the judicial officer might be that he or she would be able to do better.

There remains a question in this case, as in Aardvark Security Services Pty Limited v Ruszkowski (above), whether, although the interventions were excessive, they were not such as to prevent a fair trial or cause a reasonable apprehension of bias. It is enough for me to say, for reasons which will already be apparent, that I do not believe such a conclusion can be reached.

Finally, it should be mentioned that Mr De Souza conceded, in opening his submissions, that he and his wife had been "surprised" at the extent of Bignold J's intervention. He suggested that, to understand his Honour's course, the Court needed to understand the history of the case and the alleged delays and difficulties which had been unjustly occasioned to the respondent by the conduct of the Council. Whilst this might appear a justification to the respondent and to Mr De Souza, it is not a justification in law. Indeed, the more the judge was convinced that the Council's approach was erroneous, its valuers unconvincing and the premises of their conclusions faulty, the more important it became that he should exhibit restraint to uphold both the reality and appearance of a fair trial, to allow the Council to dissuade him from his tentative opinion, and to avoid the peril of self-persuasion. Conclusion: a new trial must be had

This trial miscarried. This is a most unfortunate conclusion to reach, having regard to the eleven days of court time involved in the trial, the delay in the resolution of the cause that will be occasioned and the fact that some of the problems undoubtedly arose out of the want of full assistance by the parties to Bignold J at the first trial. It is also unfortunate because I am convinced that his Honour was endeavouring to reach a conclusion which was both legally accurate and just. Nonetheless, the procedures adopted to achieve those ends were not acceptable by the high standards of our law. At the new trial, the respondent will have the opportunity to present such of the evidence which she urged this Court to admit, as is found by the Land and Environment Court to be relevant to the retrial.

I gave some consideration to whether, in the hope of avoiding further delays, I should answer the remaining substantive complaints about the approach adopted by Bignold J which were voiced in the other grounds of appeal. For a number of reasons, I have concluded that I should not. In the eye of the law, the first trial did not conform to the requirements of a fair and lawful trial. The evidentiary footing for the determination of the legal questions might change on a second trial. One of the complaints of the Council was that its approach to the valuation of the subject land was rejected out of hand and not properly considered. Because of the conclusion which I have reached, it is important that nothing should be done to pre-empt the Council's right to have its case heard and determined at trial in the orthodox way. It was said that the point raised by this case is one which has arisen in other claims. The Court was told that some of those claims are making their way to this Court. We can safely await their arrival. If any point is truly urgent, the Court will expedite that hearing.

Late further hearing and application for disqualification 43. Following the conclusion of oral argument, the Court received a written application by Ms Harvey to the effect that it should relist the case for further oral argument. Although no such application had been made, or foreshadowed, when the appeal was first ordered to stand for judgment, having regard to the submission and to the fact that Ms Harvey was not represented by a legal practitioner, the Court acceded to her request. The proceedings were relisted.

Further written submissions were received, principally addressed to the issue of waiver. The Court heard Mr De Souza expound his arguments on behalf of Ms Harvey. At the end of his further oral submissions, Mr De Souza affirmed that he had concluded what he wished to say to the Court. Ms Harvey was present throughout the proceedings. Notwithstanding Mr De Souza's affirmation, the Court gave both parties a short further interval within which to present any additional written submissions which might occur to them. This step was taken out of recognition of the particular disadvantages which an unrepresented litigant has in marshalling arguments and submissions.

Within the time limited for the further written submissions, a submission was received from Ms Harvey advancing a late request that I should disqualify myself from completing my function in this case. The written submission proceeds to assert that the Court is "not considering natural justice to the respondent"; "has not read the written submissions of the respondent"; "abhors litigants in person no matter from what background they come"; and is "minded to deprive (her) of the 'fruits of victory' of the win in the Land in the Environment Court for which (she) waited six long years". Ms Harvey repeats the contention, stated orally by Mr De Souza, that it is wrong "morally and ethically" for the appellant to claim a denial of natural justice when it had simply orchestrated "a clever plan to cheat and defraud" the respondent "with the assistance of their legal representatives". It is stated that ground 10 was "cleverly cooked up" as an after-thought by counsel for the appellant. Various other complaints are made concerning delay in the prosecution of the appeal, the provision of records and submissions and my own action in granting the appellant leave to add ground 10. No challenge was earlier made to that order. No mention of a challenge was made before or when the appeal hearing commenced. On the contrary, the whole appeal proceeded to conclusion upon the footing that the order was properly made. The respondent joined issue in argument upon the order. In my view, the order was correctly made. It is too late now, at the very last moment, to challenge it in late written submissions which were permitted for entirely different purposes.

I reject the contention (never stated in oral argument) that I was biased against the respondent or that an observer, or the parties, might have a reasonable apprehension of bias. I also reject the contention that I abhor litigants in person. I acknowledge their night to present their cases. Sometimes they do so with skill. Sometimes they succeed. Without taking over the conduct of the case, I strive, without exception, to ensure that they have a full chance to say to the Court whatever they wish, relevant to the Court's function. I endeavour to ensure that they appreciate the matter in issue which may determine the case, particularly where it may do so adverse to their interests. So I did in this case. The transcript will record what transpired in the hearing of the appeal. I will not be deflected by this late application from performing my judicial duty. See Re JRL; Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342,

I have every sympathy for the predicament in which the respondent (and her husband) find themselves. The excessive judicial intervention found by this Court, was not, at least directly, of their making. The appellant, although legally represented at the trial, did not, in a timely manner, raise the point before Bignold J as it could and should have done. Although the costs of the first trial should be committed to decision by the Land and Environment Court, it would be entirely within the discretion of that Court, in ordering the costs of the first trial, to take into account that it miscarried through no direct fault of the respondent (or her husband) and despite the opportunities which the appellant's representative earlier had to express its protest. The case took too long at the first trial. Its resolution has been too long delayed. It may be hoped that the Land and Environment Court will give the retrial expedition and (as Mahoney JA has observed) focus attention more sharply upon the matters actually in dispute.

Sympathy for the respondent cannot encourage the Court to sanction the procedures followed in this case. I would say to the respondent, in the words of Denning LJ, for the English Court of Appeal in Jones v National Coal Board [1957] EWCA Civ 3; (1957) 2 QB 55 (CA) at 64f: "Such are our standards. They are set so high that we cannot hope to attain them all the lime. In the very pursuit of justice, our keenness may outrun our sureness, and we may trip and fall. That is what has happened here. A judge of acute perception, acknowledged learning and actuated by the best of motives, has nevertheless himself intervened so much in the conduct of the case that one of the parties ... has come away complaining that he was not able properly to put his case; and these complaints are, we think, justified."

Orders 49. The following orders should be made:

Appeal allowed;

Cross-appeal dismissed; 3. Set aside the judgment of the Land and Environment Court (Bignold J); 4. Order that the proceedings be returned to the Land and Environment Court for re-hearing. The costs of the first trial to be determined by the Judge of the Land and Environment Court hearing the second trial; 5. Order that the respondent pay the appellant's costs of the appeal but have, in respect thereof, a certificate under the Suitors' Fund Act 1951; and

Order that there be no costs of the cross-appeal or of the motion of the respondent to enlarge the evidence. JUDGE2 MAHONEY JA On 7 May 1993 Bignold J determined that the value of, or the compensation to be paid for, a cottage resumed by the Council was $561,000. The Council has appealed to this Court on the ground that there has been an error of law.

The proceedings to date have exhibited some curious features. The cottage in question was purchased by Ms Harvey on 6 May 1987 for $120,000. It was resumed on 17 February 1989, some twenty-one months later. The Council offered as compensation $250,000 and subsequently $290,000. The offer was refused. To determine what compensation should be awarded, there was a hearing which, it is agreed, took place on some eleven days and had been preceded various interlocutory procedures. Ultimately, Bignold J concluded that, if the land was to be valued on the basis that its best use was for the erection of a multiple dwelling building on the land alone, its value was $462,000. If it was to be valued on the basis that its best use was for the erection of a multiple dwelling building on that land and adjoining land, its value was $561,000. Bignold J adopted the second basis of valuation and quantified the compensation at $561,000. His conclusion was that though Ms Harvey had purchased the land at auction for $120,000, it was, some twenty-one months later, worth nearly five times that amount.

The basis of valuation adopted by the learned judge, namely, that the land should be valued upon the basis that it had the relevant potential to be used for the erection of a multiple dwelling building upon a parcel of land constituted by the aggregation of the subject land and other adjoining land, was, it was suggested, a basis which had not been suggested by either party to the proceeding. It was a basis which was developed by the judge during the hearing. His Honour questioned the valuers called by the parties, and in particular Mr Hubbard, the valuer called by the Council, at great length. He elicited the approach which each of them had adopted to the valuation of the property, evolved from their answers a different basis of valuation, put that basis to, inter alia, the valuer Mr Hubbard and pressed it on him.

I am inclined to the view that that basis of valuation was wrong. However, for the reasons to which I shall refer, it is not necessary to express a final conclusion upon that question. The Council has submitted that, for another reason, the orders made by the judge must be set aside. They have submitted that the judge, during the period of the hearing, intervened to such an extent, in respect of such matters, and in such a manner that the orders ultimately made by him are affected by an error of law within the terms of the Land and Environment Court Act 1979 s 57.

If a judge intervenes too much in the conduct of the proceeding before him, the result may be that the proceeding will be held to have miscarried and that his orders will be set aside. The main principles relating to "the appearance of impartial justice" were referred to by the High Court in Vakauta v Kelly [1989] HCA 44; (1989) 167 CLR 568 at 570572, 575-576, 584 et seq. A number of the recent authorities relating to judicial intervention were collected and analysed by Kirby P in Galea v Galea (1990) 19 NSWLR 263 at 277 et seq. These principles apply to proceedings in the Land and Environment Court. The Land and Environment Court is a Court constituted by the Land and Environment Court Act 1979. Section 38 of that Act provides: "38. (1) Proceedings in Class 1, 2 or 3 of the Court's jurisdiction shall be conducted with as little formality and technicality, and with as much expedition, as the requirements of this Act and of every other relevant enactment and as the proper consideration of the matters before the Court permit.

(2) In proceedings in Class 1, 2 or 3 of the Court's jurisdiction, the Court is not bound by the rules of evidence but may inform itself on any matter in such manner as it

thinks appropriate and as the proper considerations of the matters before the Court permits.

(3) Subject to the rules, and without limiting the generality of subsection (2), the Court may, in relation to proceedings in Class 1, 2 or 3 of the Court's jurisdiction, obtain the assistance of any person having professional or other qualifications relevant to any issue arising for determination in the proceedings and may receive in evidence the certificate of any such person.

(4) In proceedings in Class 1, 2 or 3 of the Court's jurisdiction, the Court may, in respect of a matter not dealt with by this Act or the rules, give directions as to the procedure to be followed at or in connection with the hearing.

(5) In this section, a reference to the Court includes a reference to the assessor or assessors directed under section 36 to hear and dispose of proceedings."

To the extent that that Act provides for conduct of proceedings in the Court in a manner which would not be acceptable in an ordinary court, that is to be taken into account in determining the applicability of such principles in the instant case. But in my opinion, a provision such as s 38 does not produce the result that the principles referred to in such cases are irrelevant in proceedings in the instant Court.

A trial judge may, of course, intervene during the course of the proceeding before him, by way of questioning of witnesses and otherwise. What he may properly do in this regard will depend upon, for example, the need to clarify answers, to remove obscurities and generally to ensure the fair conduct of the proceeding.

As I said in Aardvark Security Services Pty Ltd v Ruszkowski (Court of Appeal, 19 March 1993, unreported): "A judge must, of course, remain conscious of his role of judge and the need to preserve both the substance and the appearance of what that involves. Ordinarily, justice will be more likely to be achieved if the questioning of witnesses is left to the parties. But circumstances may arise in which it will be appropriate that the judge intervene in the questioning or that he himself ask questions. Witnesses may become confused or overborne or otherwise evidence may be given which, from the transcript alone, may be misleading or, at least, not give a true picture of the effect of what was said. I would not exclude the possibility that, subject to appropriate limits, a judge should intervene to ensure that the trial proceeds justly and will be seen to have done so.

Experience suggests that ordinarily this may best be done at the end of the examination of a witness. But circumstances may require that the judge intervene or ask questions at other times."

The need to ensure that what will appear upon the transcript of the proceeding will provide an accurate and unambiguous picture of what occurred at the trial has recently been referred to by the High Court in M v The Queen (1994) 69 ALJR 83 at 93, per Brennan J.

The excessive intervention by a judge may produce unacceptable results or may lead to the appearance of justice not having been done according to law. It may do so in various ways. Excessive questioning by a judge, particularly if directed to producing particular answers or if directed to discrediting a particular witness may evidence actual bias on the part of the judge: see Vakauta v Kelly [1989] HCA 44; (1989) 167 CLR 568 at 571. Absent actual bias, it may yet create an unacceptable appearance of bias or prejudice, within the principles referred to in Livesey v New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288. The trial may miscarry because what was done resulted in the conduct of the case being taken out of the hands of the parties. It is, within appropriate limits, the right of the parties to conduct proceedings in the manner which they believe likely to serve their purposes and if the judge, by questioning or other intervention, deprives them of their right to do so, there may be a miscarriage of the proceedings. The result of intervention may be that the issues tried are not the issues proposed by the parties but issues which the judge himself has proposed and adopted. It is, of course, not wrong for a judge during the course of a trial to conclude that the issues, as the parties have presented them, are not really the issues which the material placed before him poses for decision and he may, in such a case, draw this to the attention of the parties. But, again within proper limits, parties are entitled to have a proceeding determined upon the issues which the pleadings have established or such issues as they have properly seen as arising from the facts. It is not necessary for present purposes to pursue further the extent to which, for example, other issues may be substituted or the rights of the parties are to be qualified.

Where a judge intervenes excessively the result may be produced, or may appear to have been produced, that the proceeding is determined according to an issue which has been selected by the judge and, having been selected, espoused and pursued by him. In such a case, it may appear that the judge has not merely posed issues for determination but has, in the manner of an advocate, espoused and pursued them. In such a case, the result may be that the judge has, or appears to have, failed to decide the issues impartially. The result of his interventions may be that he has, or gives the appearance of having, prejudged the issues which have been posed for decision. It may be to "leave one or more of the parties with the feeling that the trial has not, in the relevant sense, been 'fair'": see Tousek v Bernal (1959) 61 SR (NSW) 203 at 209 per Owen J: see generally Government Insurance Office of New South Wales v Glasscock (Court of Appeal, 19 February 1991, unreported).

These do not, of course, state exhaustively the difficulties which may arise from excessive intervention. But, in the light of the submissions made in this and other such cases, it is proper to note that the vices which may be produced by excessive intervention are of different kinds and, in determining whether what has been done in the instant case is unacceptable, it is relevant to determine what is the precise vice which the intervention has produced.

If there has been excessive intervention, such intervention may result in an error of law within provisions such as s 57 of the Land and Environment Court Act. In earlier times, distinctions were made between errors which resulted in the verdict being reversed and errors requiring a new trial. Those distinctions were, of course, appropriate to the procedures then adopted in common law trials. The procedures now followed are different. I think it has been and should be generally accepted in this Court that excessive intervention of this kind should be categorised as an error of law within such a provision. In my opinion, the present case was such a case.

Mr Webster for the Council referred the Court in detail to the questions and the interventions recorded in the transcript. Mr Webster said, and it is of course proper to accept, that his Honour's interventions were courteous and well intentioned. But he submitted that the result of them was, in the end, unacceptable. He suggested, in effect, that the judge's interventions moved from questions asked to clarify what the valuers and others had done to interventions questioning the correctness of what they had done, the acceptability of the approach adopted, and the propriety of a valuer proceeding in a particular way. They involved the reformulation of the bases of valuation, suggestions or directions to the parties as to what the real issues were or should be, and advice to the representative of Ms Harvey as to the steps that should be taken, by way of production of documents and otherwise, in the pursuit of her case. I do not think it necessary to examine in detail the multiple references recorded by Mr Webster in this regard. I agree with Kirby P that notwithstanding his Honour's courtesy and purpose in intervening, in the end the extent of the intervention was unacceptable. It led to the proceeding being determined upon issues formulated by the judge and apparently espoused by him, pursued to the extent that the conduct of the proceeding was effectively taken out of the hands of the parties.

I do not think that the vices produced by what was done were waived by the Council so as to prevent it taking objection now to what was produced by them.

It is settled that, special cases apart, a party who otherwise would be entitled to object to what a judge has done, may waive that right of objection. See Vakauta v Kelly at 572, 577, 586. But in order to determine whether what was done in the particular case constitutes waiver it is necessary first to determine what is the nature of the waiver alleged and what is said to give rise to it.

It cannot, I think, be suggested that Mr Levy, for the Council, had an actual or subjective intention to waive the right to object to the end result produced by what the judge did. There was, of course, no express waiver and in my opinion it is not to be inferred from what was said and done that Mr Levy had the actual or subjective intention to waive. Therefore, if there is a waiver, it is one which is to be imputed to or imposed upon the Council. It is necessary to consider whether what took place warrants such a consequence being so imposed.

As I have suggested, the fact that a judge has intervened in the conduct of a case is not of itself the reason why the orders made by him are set aside. They are set aside because the intervention has produced a particular result and that result is unacceptable. As I have indicated, intervention may produce vices of different kinds and it is, I think, necessary to determine what was the vice produced by the particular intervention and whether it is such that the orders made cannot stand. Similarly, in deciding whether a party has waived the right to object to a particular intervention, it is necessary to decide what the intervention was, what was the vice or injustice produced by it, and how and when objection could have been taken to it at the trial.

If the matter may be put in general terms, and to that extent inaccurately, the interventions in the present case took place incrementally; the vice or injustice which it produced lies, not so much in any individual intervention, but in the sum total of all of them. In referring to what occurred at the trial, Mr Webster, for the Council, emphasised the incremental nature of his Honour's interventions. As he submitted, no objection can or should be taken to a judge of the Land and Environment Court clarifying the bases on which valuers have formulated their valuation: that is often done and may well be beneficial. Other interventions occurred to which, standing alone, no objection could or should be taken: the judge, by questions, raised for consideration the correctness of the bases adopted by the valuers. But, as Mr Webster suggested, the interventions ultimately moved beyond such matters, to the extent that the judge appeared effectively to assume the formulation of this important part of the case and the pursuit of the issues arising from it. It was, in a sense, the end result of what was done which made what was done unacceptable. Mr Webster, in his submissions, properly accepted the qualifications which must be imposed upon general characterisations of what took place at the trial. However, his submissions indicated, in my opinion correctly, the substantial thrust of what took place.

I come now to consider whether what occurred was such that the Court should impute to the Council the waiver of objections which otherwise it could have taken.

A party who has the right to object on such a ground may not (I state the matter compendiously) "stand by". The reason for this was made clear by Brennan, Deane and Gaudron JJ in the majority judgment in Vakauta v Kelly [1989] HCA 44; (1989) 167 CLR 568. Their Honours at 572; said: "Where such comments which are likely to convey to a reasonable and intelligent lay observer the impression of bias have been made, a party who has legal representation is not entitled to stand by until the contents of the final judgment are known and then, if those contents prove unpalatable, attack the judgment on the ground that, by reason of those earlier comments, there has been a failure to observe the requirement of the appearance of impartial judgment. By standing by, such a party has waived the right subsequently to object. The reason why that is so is obvious. In such a case, if clear objection had been taken to the comments, at the time when they were made or the judge had then been asked to refrain from further hearing the matter, the judge may have been able to correct the wrong impression of bias which had been given or alternatively may have refrained from further hearing. It would be unfair and wrong if failure to object until the contents of the final judgment were known were to give the party in default the advantage of an effective choice between acceptance and rejection of the judgment and to subject the other party to a situation in which it was likely that the judgment would be allowed to stand only if it proved to be unfavourable to him or her."

In the present case, objection could in principle have been taken during the trial and before the judge reserved his decision. There was - the matter be considered conceptually

a time at which the judge crossed the line between the permissible and the impermissible: he moved from clarifying what valuers did to criticism of their approach and of the formal propriety of it. A time was reached during the trial at which the sum total of what was done warranted the conclusion that he had taken the conduct of the case to himself, reframed the issues, and/or given the impression that he was interested to pursue a particular result. In principle, objection could have been taken at that point; it was not. No objection was taken until the notice of appeal was formulated and the matter was presented to this Court.

Notwithstanding this, I am of opinion that waiver should not be imputed. The reason why the law intervenes in such cases is not conceptual but practical. Where there has been, as the result of judicial intervention, a miscarriage of the trial, the law will not require parties to abide such injustice unless there be a sufficient reason. In the present case, there was no intention to waive. Waiver should, in my opinion, be imputed only if it would be unjust to both parties to allow the Council to take objection at this stage to what occurred.

If it be that there was no actual acceptance of what the judge did but, essentially, a failure on the part of the Council to appreciate the overall effect of what the judge had done and to take objection to it at the trial, then such default as there was on the part of the Council derives from the failure of its legal representative at the trial to appreciate what had occurred and what could be done. In the end, I do not think that unacceptable injustice would be produced by allowing the Council at this stage to take the present objection.

I am conscious of the evils of re-trial: a fortiori, those evils exist in a case which has already extended over some eleven days. The courts have long stigmatised the evils of re-trial: see, eg, Hoyts Ltd v O'Connor [1928] HCA 7; (1928) 40 CLR 566 at 576; Kakhyl v Labouchere (1908) 2 KB 325 at 327. But, had the Council's representative at the trial taken objection when, at or towards the end of it, the overall effect of what the judge had done became apparent, the result of that would have been a re-trial. As I have indicated, what occurred was not a conscious decision to accept the result of the interventions but failure to appreciate the necessity then and there to object to the result of what they produced.

In some cases, where a right to election has arisen, the right will be lost where, notwithstanding that the party did not intend to exercise the election and was not conscious of the night to do so, a party has acted in a way which is justifiable only if the election has been exercised in a particular way: see, eg, in a different context Sargent v ASL Developments Pty Ltd [1974] HCA 40; (1974) 131 CLR 634; Champtaloup v Thomas (1976) 2 NSWLR 264. That principle should not, I think, govern the present case. What is here in question is whether the interests of justice require that a miscarriage of the trial should cause the orders made to be vacated. There is, in a sense, a public interest involved.

For these reasons, I am of opinion that the orders made should be set aside.

The result of my conclusions is that there must be a rehearing before the Land and Environment Court. I am, as I indicated during the hearing of the appeal, loath to direct such a result. It is now, as Ms Harvey's husband Mr de Souza has pointed out, some five years since the resumption. A substantial sum has already been paid by the Council and a further sum remains in Court. But the issues in the present case must now be abundantly clear, sufficiently at least to allow the matter to be brought to an end shortly. If it is necessary for the matter to be reheard, it is to be hoped that the parties will co-operate so as to reduce the hearing time and produce an early result.

I agree with the orders proposed by Kirby P. JUDGE3 COLE JA This is an appeal by the Council of the Municipality of Burwood (the Council) from a decision of Bignold J delivered 7 May 1993. The Council had resumed land owned by the respondent, Linda Harvey. His Honour's task was to determine the quantum of compensation payable by the Council to Miss Harvey for the resumed land. His Honour determined that the compensation for land be $561,000 plus an amount for stamp duty, legal and related expenses of acquiring a replacement property to the same market value, plus statutory interest payable in accordance with s.126A of the Public Works Act 1912.

The Council had contended that the appropriate valuation was $290,000.

Council's initial grounds for appeal filed 4 August 1993, raised 9 grounds of appeal. A Further Amended Notice of Appeal filed by leave on 24 August 1994 raised a tenth ground, namely,: "That his Honour erred in law in denying to the Appellant Council natural justice in that his intervention into the proceedings was such as to deny to the Appellant Council a fair trial."

Before this Court grounds 5, 6, 7, and 9 were abandoned. Written submissions and argument were received on the other grounds.

If ground 10 is upheld, the matter must be remitted to the Land and Environment Court for a new hearing. It is thus convenient to deal with that ground first.

The Council's complaint was, in brief, that the trial judge intervened in the conduct of the trial in the following impermissible manners:

(a) He entered into "the arena" so as to become an advocate for the respondents, thus denying the Council a fair trial; (b) the judge's comments and questions were such that an impartial lay observer would reasonably apprehend that his Honour was biased against the appellant. (c) he intervened to an excessive extent beyond that permitted to a judge; (d) he, by questioning and intervention, exhibited what would be perceived by an independent observer as "bias" or "partiality"; and (e) he took over the running and conduct of the respondent's case, directed that issues different to those advanced by the litigants be addressed, cross-examined severely and at length Council's witnesses, and gave advice to the respondent regarding the calling for documents.

The trial lasted 11 days. The respondent was not legally represented, but was, with the court's permission, represented by her husband. The Council was represented by its solicitor.

The parties and their experts initially approached the valuation exercise upon the basis that the "highest and best use" of the resumed land was as a dual occupancy residential site. As the transcript and his Honour's judgment ((1) Appeal Book, page 1423) made clear, his Honour regarded that approach as erroneous. His Honour's view was that the highest and best use of the land was as: "A residential flat development potential fully reflecting the assumed 2C1 zoning ... of the resumed land either as (i) an isolated site, accommodating 6 x 2 bedroom flats or (ii) part of an agglomerated site contributing thereto the equivalent of 6 x 2 bedroom flats."

In substance the Council's complaint is that the Judge by his questioning and approach took over the respondent's case, refashioned it to accord with his view of the highest and best use of the land, encouraged the respondent to amend its approach, permitted, or perhaps, required the valuers for the parties to amend their approach accordingly, and ultimately made a finding which accorded with his initial view of the highest and best use of the land. AB this was achieved by excessive intervention, questioning and cross-examination. This was said to be a significant and impermissible departure from the judicial role.

Any reading of the transcript supports entirely the Council's complaint. I do not think it necessary to recount in detail his Honour's interventions and cross-examination. It is sufficient to demonstrate the extent to which the Judge intervened by recording the circumstances of the evidence given by Mr Hubbard, the Council's valuer. He gave evidence which encompassed 331 pages of transcript. Apart from lesser interventions, what can only be described a cross-examination by the trial judge extended for appropriately 70 complete pages of transcript. There were at least nine occasions on which the questioning of the Judge continued without interruption for between five and nine pages of transcript. During these periods of questioning, which was in truth at many times hard cross-examination, the respondent's case was refashioned to accord with the Judge's view, ultimately found, that the valuation should be made as I have indicated.

Whilst one recognises that a Judge may seek to accommodate some difficulties arising from a party being unrepresented, the transcript of the proceedings displays a gross departure from permissible standards of judicial intervention in proceedings. By no standard could the trial be regarded as either fair nor seen to be fair. ((2) Galea v Galea (1990) 19 NSWLR 263 at 281-2 per Kirby P.). A reasonably informed fair minded observer would have a reasonable apprehension that justice may not have been done. ((3) Livesey v NSW Bar Association [1983] HCA 17; (1983) 151 CLR 288 at 293-4). A fair minded person observing these proceedings would have entertained a reasonable apprehension of prejudgment.

It follows, in my view, that, subject to the question of waiver. The judgment of Bignold J must be set aside and there must be a new trial.

Notwithstanding the gross interference with the conduct of the trial by the Judge, and his effective refashioning of the respondent's claim achieved through significant cross-examination of witnesses, the solicitor for the Council made no complaint at the trial. Indeed ground 10 was not added until a Further Amended Notice of Appeal was filed some two years after the trial concluded. The ground was raised when Mr Webster, Counsel for the appellant, was provided with a copy of the transcript some months before the appeal came on for hearing. The question thus is whether the appellant has waived its right to object to the Judge's conduct at the trial, including his excessive interventions and cross-examination.

The question of waiver of an objection on the ground of bias was addressed by the High Court in Vakauta v Kelly ((4) [1989] HCA 44; (1989) 167 CLR 568 at 577, 586). It is clear there can be such a waiver. As Dawson J said: "Where a party in civil litigation, being aware of the circumstances giving rise to a right to object, allows the case to continue for a sufficient time to show that he does

not presently intend to exercise that right, he may be held to have waived it." ((5) Vakauta v Kelly (1989) 167 CLR at 579; see also Toohey J at 587).

Silence, thus may, but not necessarily does, constitute waiver.

This is not a case involving circumstances, such as association between the judge and a party or witness, known to a party which might give rise to a reasonable perception of bias, nor is it a case involving specific remarks or specific instances of conduct in respect of which it would be reasonable to require a party proposing to object to the judge continuing to sit because of perceptions of bias to make objection or otherwise be deemed to have waived the right to do so. It involves a much more pervasive and continuous intrusion into the conduct of the proceedings and a refashioning of them to accord with the judge's perception of correct principles of valuation.

In my view the reality is that the effect of the Judge's interventions and preconceptions could not be known until judgment was delivered. I regard the conduct of this trial as such a departure from permissible judicial standards of intervention that it would be wrong to imply waiver of the right to object to the conduct of the Judge from the silence of the solicitor for the Council and thus to deny the Council a fair trial. A reading of the transcript makes apparent that the Judge so dominated and took control of the proceedings that the prospect of any objection to the manner in which the Judge was intervening in the proceedings being effective was illusory. Silence will not, in all circumstances, constitute waiver. In my view it is necessary to consider the circumstances of the trial in determining whether it is reasonable for a party to be held to have waived his right to a fair trial by silence. In this instance, in my view, it is not.

In those circumstances there must be a new trial. It becomes unnecessary to address the other grounds of appeal.

The appeal should be upheld. The matter should be remitted to the Land and Environment Court for further hearing by a judge other than Bignold J. The respondent should pay the appellant's costs but, if qualified, should have a certificate pursuant to the Suitors' Fund Act.

Environment Court Act 1979

Local Government Act 1919

Parks and Wildlife Act 1974

Environment Court Act 1979

Local Government Act 1919

Parks and Wildlife Act 1974

The Council of The Municipality of Burwood v Harvey Nos. Ca 40269/93; Lec 30684/91 Courts and Judges - Environmental Planning and Assessment - Waiver [1995] NSWSC 149

At a glance

Court

Decision date

Before

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Judgment (152 paragraphs)

The Council of The Municipality of Burwood v Harvey Nos. Ca 40269/93; Lec 30684/91 Courts and Judges - Environmental Planning and Assessment - Waiver [1995] NSWSC 149 (13 November 1995)

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Legislation Cited (10)

Cases Cited (23)