mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Jones v National Coal Board [1957] 2 QB 55
Outcome: cited
As the High Court said in Stead v State Government Insurance Commission [1986] HCA 54 ; (1986) 161 CLR 141 at 145: 'The general principle applicable in the present circumstances was well expressed by the English Court of Appeal (Denning, Romer and Parker LJJ) in Jones v National Coal Board ([1957] 2 QB 55 at p 67) , in these terms: "There is one thing to which everyone in this country is entitled, and that is a fair trial at which he can put his case properly before the judge. ... No cause is lost until the judge has found it so; and he cannot find it without a fair trial, nor can we affirm it." That general principle is, however, subject to an important qualification [...]: Would further information possibly have made any difference? That qualification is that an appellate court will not order a new trial if it would inevitably result in the making of the same order as that made by the primary judge at the first trial. An order for a new trial in such a case would be a futility.' 47 Here the question is not so much whether further information could possibly have made any difference. The question is whether or not the proceedings below crossed the line described in the seminal case of Jones v National Coal Board [1957] 2 QB 55 at 63 by the English Court of Appeal who said: 'In the system of trial which we have evolved in this country, the judge sits to hear and determine the issues raised by the parties, not to conduct an investigation or examination on behalf of society at large, as happens, we believe, in some foreign countries.' 48 Their Lordships continued that Lord Greene MR had explained in Yuill v Yuill [1945] P 15 at 20: '... that justice is best done by a judge who holds the balance between the contending parties without himself taking part in their disputations[.] If a judge, said Lord Greene, should himself conduct the examination of witnesses, "he, so to speak, descends into the arena and is liable to have his vision clouded by the dust of conflict".' That was, of course, said in the context in which a judge was not allowed to call witnesses (see Jones v National Coal Board [1957] 2 QB at 64). These considerations may not be entirely apposite for the Federal Magistrates Court if r 15.04 is a valid exercise of the rule-making power. Certainly, as noted above, there will be situations for example (and I do not intend to be exhaustive) in which that court is called upon to exercise its jurisdiction in which it may be necessary or desirable for the court to have information from witnesses, particularly in cases involving the Family Law Act 1975 (Cth) where welfare of a child may be in issue and where the relevant parties before the court may each have interests which the court regards as not properly able fully to inform it of what might be in the overall best interests of the child.
Case: Paal Wilson &amp; Co A/S v Partenreederei Hannah Blumenthal [1983] 1 AC 854
Outcome: referred to
At the end of the day, if the absence of a witness occurs and this affects the quality of the evidence properly before the court, the result will still be fair as between the parties, if the judge acts on that limited material, even though it may be thought to be unsatisfactory. The latter, but not the former, consequence may be the fault of the parties in their selection of the evidence or it may be that the parties have each decided that the witness would be of no assistance (cp: Paal Wilson &amp; Co A/S v Partenreederei Hannah Blumenthal [1983] 1 AC 854 at 920H-921C per Lord Roskill; DA Ipp 'Judicial Intervention in the Trial Process' (1995) 69 ALJ 365 at 373-375). 29 In any event, the trial judge in admitting Ms Frank's evidence, to the extent that he considered the basis of its admissibility at all, did no more than express a view that it was relevant. There was no necessity to admit that evidence. The circumstances of the proceedings were unexceptionable and raised no occasion on which it could be said that it was appropriate, on any of the tests above, to admit Ms Frank's evidence in the way in which his Honour did. 30 I am satisfied that Ms Frank's evidence was not properly received and that in the circumstances there was no basis for the trial judge to have admitted or used Ms Frank's evidence. 31 The issue assumes increased significance because in his Honour's reasons for judgment, having referred to the admission of the material from Ms Frank's affidavit ([2005] FMCA 463 [8]) his Honour considered the allegations made by the appellant on the Briginshaw [v Briginshaw [1938] HCA 34 ; (1938) 60 CLR 336 at 361-362 per Dixon J] standard ([2005] FMCA 463 at [32]). His Honour noted that required him to have a high degree of satisfaction that the events alleged by the appellant happened. His Honour found as supporting his conclusion that he did not have that high degree of satisfaction. Among other things, he relied on the fact that the appellant had made no complaint about Mr Xiao's alleged conduct until more than twelve months afterwards although she had been expressly given the opportunity to make a complaint in 2002 ([2005] FMCA 463 at [32]). 32 A fair-minded observer sitting in the court room might wonder why, when the University was represented, it had not led any evidence from Ms Frank, yet his Honour had gone through the papers and had found an affidavit by her and had then identified parts of it as being 'relevant' and as ' effectively confirm[ing] ' that the appellant had not, in any written material lodged with the University, raised any allegations against Mr Xiao in 2002. By saying ' I think for completeness I should receive paragraphs 1, 2, 3 of Sybille Frank's affidavit of 10 January 2005 for the purposes of today's proceedings' his Honour was deciding of his own motion to admit material which no party had put before him as her, his or its evidence at the hearing. Ms Frank was not required to be present or to be available for cross-examination.
Case: Preston v Carmody (1993) 44 FCR 1
Outcome: cited
I do not consider that any question of waiver of his Honour's conduct can be imputed to Ms Huang. She was not to know that what his Honour did was extraordinary. Nor did counsel for the University intervene to suggest that what his Honour proposed to do was inappropriate. In Vakauta v Kelly [1989] HCA 44 ; (1989) 167 CLR 568 at 572 Brennan, Deane and Gaudron JJ held that waiver was the consequence of a legally represented party failing to object to judicial conduct reasonably capable of being regarded as conveying an apprehension of bias. Their Honours did not explore the position for an unrepresented party but in Preston v Carmody (1993) 44 FCR 1 at 14 Wilcox J referred to the principle they had identified and said: 'But the principle to which their Honours referred is not limited to cases where the relevant party is legally represented. It was applied by the New South Wales Court of Appeal in relation to a litigant in person in Wentworth v Rogers (No 12) (1987) 9 NSWLR 400 at 421-422. Where a person is not legally represented or advised, it will always be necessary to consider whether he/she had the knowledge necessary to found waiver.
Case: R v Esposito (1998) 45 NSWLR 442
Outcome: referred to
I am of opinion that a fair-minded person could reasonably have apprehended that his Honour was seeking to assist the respondents' cases by introducing the evidence. Excessive judicial intervention in proceedings sometimes raises issues of fact and degree as to how far a judge is or is not entitled to go. Thus Wood CJ at CL noted that the line that a trial judge walks when asking questions of a witness is a narrow one ( R v Esposito (1998) 45 NSWLR 442 at 472B-C; see too Galea v Galea (1990) 19 NSWLR 263 esp at 280-282 per Kirby ACJ). But the issue here really is whether a fair-minded person could reasonably have apprehended that his Honour's introduction and use of Ms Frank's evidence indicated that he was not being impartial.
Case: R v Soma [2003] HCA 13 ; (2003) 212 CLR 299
Outcome: cited
The circumstances in which a judge may call a witness of his or her own motion, absent a statutory power, have been the subject of considerable judicial discussion (see JD Heydon, Cross on Evidence (7 th Australian ed) at [17080]-[17100]). In Shaw v The Queen [1952] HCA 18 ; (1952) 85 CLR 365 at 379, Dixon, McTiernan, Webb and Kitto JJ said that in Titheradge v The King [1917] HCA 76 ; (1917) 24 CLR 107 the High Court had denied that a presiding judge in a criminal trial had power to call a witness if he (or she) thought that the imperative demands of justice so required. Dawson J affirmed that view in Whitehorn v The Queen [1983] HCA 42 ; (1983) 152 CLR 657 at 684 where he said that Shaw v The Queen [1952] HCA 18 ; (1952) 85 CLR 365 had held that Titheradge v The Queen [1917] HCA 76 ; (1917) 24 CLR 107 was authority for the proposition that no distinction was to be drawn in Australia between criminal trials and civil actions with regard to the power of a judge to call a witness. However, Gibbs CJ and Brennan J, reserved their positions on this issue (152 CLR at 660). Gibbs CJ, Mason, Murphy, Wilson and Dawson JJ returned to the issue in R v Apostilides [1984] HCA 38 ; (1984) 154 CLR 563 at 575 saying of the conduct of criminal trials: 'Save in the most exceptional circumstances, the trial judge should not himself call a person to give evidence.' That position appears to have been reaffirmed by Gleeson CJ, Gummow, Kirby and Hayne JJ in R v Soma [2003] HCA 13 ; (2003) 212 CLR 299 at 309 [29] .
Case: Re Refugee Tribunal ex parte Aala [2000] HCA 57 ; (2000) 204 CLR 82
Outcome: applied
As Gaudron and Gummow JJ noted in Re Refugee Tribunal ex parte Aala [2000] HCA 57 ; (2000) 204 CLR 82 at 116-117 [80] - [81] it is sufficient that a denial of natural justice deprives the appellant of the possibility of a successful outcome (applying Stead v State Government Insurance Commission [1986] HCA 54 ; (1986) 161 CLR 141 at 147). Their Honours went on to quote with approval from Megarry J in John v Rees [1970] Ch 345 at 402: 'As everybody who has anything to do with the law well knows, the path of the law is strewn with examples of open and shut cases which, somehow, were not; of unanswerable charges which, in the event, were completely answered; of inexplicable conduct which was fully explained; of fixed and unalterable determinations that, by discussion, suffered a change.'
Case: Re Ruddock; Ex parte Applicant S154/2002 (2003) 201 ALR 437
Outcome: referred to
I have anxiously given consideration as to whether it could be said that his Honour's conduct could have made no difference (see e.g. Goldsmith v Sandilands (2002) 190 ALR 370; [2002] HCA 31 ; Re Ruddock; Ex parte Applicant S154/2002 (2003) 201 ALR 437 at 444 [28]-[29]; [2003] HCA 60) but I have come to the conclusion the course his Honour took is so irregular that the breach of the rules of procedural fairness cannot be regarded as not possibly having affected the outcome. A different judicial officer may have taken a different view as to the appellant's credibility and that of Mr Xiao and if that had happened, the outcome may have been different.
Case: Shaw v The Queen [1952] HCA 18 ; (1952) 85 CLR 365
Outcome: discussed
The circumstances in which a judge may call a witness of his or her own motion, absent a statutory power, have been the subject of considerable judicial discussion (see JD Heydon, Cross on Evidence (7 th Australian ed) at [17080]-[17100]). In Shaw v The Queen [1952] HCA 18 ; (1952) 85 CLR 365 at 379, Dixon, McTiernan, Webb and Kitto JJ said that in Titheradge v The King [1917] HCA 76 ; (1917) 24 CLR 107 the High Court had denied that a presiding judge in a criminal trial had power to call a witness if he (or she) thought that the imperative demands of justice so required. Dawson J affirmed that view in Whitehorn v The Queen [1983] HCA 42 ; (1983) 152 CLR 657 at 684 where he said that Shaw v The Queen [1952] HCA 18 ; (1952) 85 CLR 365 had held that Titheradge v The Queen [1917] HCA 76 ; (1917) 24 CLR 107 was authority for the proposition that no distinction was to be drawn in Australia between criminal trials and civil actions with regard to the power of a judge to call a witness. However, Gibbs CJ and Brennan J, reserved their positions on this issue (152 CLR at 660). Gibbs CJ, Mason, Murphy, Wilson and Dawson JJ returned to the issue in R v Apostilides [1984] HCA 38 ; (1984) 154 CLR 563 at 575 saying of the conduct of criminal trials: 'Save in the most exceptional circumstances, the trial judge should not himself call a person to give evidence.' That position appears to have been reaffirmed by Gleeson CJ, Gummow, Kirby and Hayne JJ in R v Soma [2003] HCA 13 ; (2003) 212 CLR 299 at 309 [29] .
Case: Titheradge v The King [1917] HCA 76 ; (1917) 24 CLR 107
Outcome: applied
The circumstances in which a judge may call a witness of his or her own motion, absent a statutory power, have been the subject of considerable judicial discussion (see JD Heydon, Cross on Evidence (7 th Australian ed) at [17080]-[17100]). In Shaw v The Queen [1952] HCA 18 ; (1952) 85 CLR 365 at 379, Dixon, McTiernan, Webb and Kitto JJ said that in Titheradge v The King [1917] HCA 76 ; (1917) 24 CLR 107 the High Court had denied that a presiding judge in a criminal trial had power to call a witness if he (or she) thought that the imperative demands of justice so required. Dawson J affirmed that view in Whitehorn v The Queen [1983] HCA 42 ; (1983) 152 CLR 657 at 684 where he said that Shaw v The Queen [1952] HCA 18 ; (1952) 85 CLR 365 had held that Titheradge v The Queen [1917] HCA 76 ; (1917) 24 CLR 107 was authority for the proposition that no distinction was to be drawn in Australia between criminal trials and civil actions with regard to the power of a judge to call a witness. However, Gibbs CJ and Brennan J, reserved their positions on this issue (152 CLR at 660). Gibbs CJ, Mason, Murphy, Wilson and Dawson JJ returned to the issue in R v Apostilides [1984] HCA 38 ; (1984) 154 CLR 563 at 575 saying of the conduct of criminal trials: 'Save in the most exceptional circumstances, the trial judge should not himself call a person to give evidence.' That position appears to have been reaffirmed by Gleeson CJ, Gummow, Kirby and Hayne JJ in R v Soma [2003] HCA 13 ; (2003) 212 CLR 299 at 309 [29] . 23 In Titheradge v The King [1917] HCA 76 ; (1917) 24 CLR 107 at 116, Barton J said that where the right of a judge to call a witness exists and R v Apostilides [1984] HCA 38 ; (1984) 154 CLR 563 at 575 [5] accepts that it does in the conduct of a criminal trial it must be exercised with extreme caution. He continued (24 CLR at 116): 'In a civil case there must either be the consent of the parties or an acquiescence on their part from which the strong inference is consent.' Isaacs and Rich JJ said (24 CLR at 118) that the observations of Fletcher Moulton LJ in In re Enoch and Zaretzky Bock &amp; Co's Arbitration [1910] 1 KB 327 were of general application to the administration of justice both civil and criminal. His Lordship denied the power of a judge to call a witness against the will of a party ([1910] 1 KB at 332, 333; see too per Powell J in Clark Equipment Credit Australia Ltd v Como Factory Pty Ltd (1988) 14 NSWLR 552 at 567F-568A and IF Sheppard, 'Court Witnesses A Desirable or Undesirable Encroachment on the Adversary System?' (1982) 56 ALJ 234 at 235) but accepted that where the parties acquiesced in a witness being called by the judge, a judge may do so provided that the parties have a right to cross-examine.
Case: Whitehorn v The Queen [1983] HCA 42 ; (1983) 152 CLR 657
Outcome: referred to
The circumstances in which a judge may call a witness of his or her own motion, absent a statutory power, have been the subject of considerable judicial discussion (see JD Heydon, Cross on Evidence (7 th Australian ed) at [17080]-[17100]). In Shaw v The Queen [1952] HCA 18 ; (1952) 85 CLR 365 at 379, Dixon, McTiernan, Webb and Kitto JJ said that in Titheradge v The King [1917] HCA 76 ; (1917) 24 CLR 107 the High Court had denied that a presiding judge in a criminal trial had power to call a witness if he (or she) thought that the imperative demands of justice so required. Dawson J affirmed that view in Whitehorn v The Queen [1983] HCA 42 ; (1983) 152 CLR 657 at 684 where he said that Shaw v The Queen [1952] HCA 18 ; (1952) 85 CLR 365 had held that Titheradge v The Queen [1917] HCA 76 ; (1917) 24 CLR 107 was authority for the proposition that no distinction was to be drawn in Australia between criminal trials and civil actions with regard to the power of a judge to call a witness. However, Gibbs CJ and Brennan J, reserved their positions on this issue (152 CLR at 660). Gibbs CJ, Mason, Murphy, Wilson and Dawson JJ returned to the issue in R v Apostilides [1984] HCA 38 ; (1984) 154 CLR 563 at 575 saying of the conduct of criminal trials: 'Save in the most exceptional circumstances, the trial judge should not himself call a person to give evidence.' That position appears to have been reaffirmed by Gleeson CJ, Gummow, Kirby and Hayne JJ in R v Soma [2003] HCA 13 ; (2003) 212 CLR 299 at 309 [29] .
Case: Yuill v Yuill [1945] P 15
Outcome: cited
So, it is vital to guard against an absolute prohibition of a judge's power of calling witnesses because some circumstances in which courts exercise jurisdiction are not wholly adversarial. But the power, according to the authorities to which I have referred, exists to prevent, not occasion, a miscarriage of justice which the judge perceives would otherwise occur. Before forming such a view, over the opposition of the parties and, where appropriate, their legal representatives, a trial judge would obviously need to consider whether the conscious choice of the parties not to call the witness properly can be overborne by the court while preserving the appearance and actuality of judicial impartiality. For a judge to use his or her power to override the choice of the parties as to what evidence they will adduce in order that the judge may decide their dispute is a drastic step which must only be available even in civil proceedings '... in the most exceptional circumstances' ( R v Apostilides (1984) 154 CLR at 575 [5]). The exercise of such a power removes the court from its usual and necessary position outside, and places it within, the forensic arena (cp: Yuill v Yuill [1945] P 15 at 20). 48 Their Lordships continued that Lord Greene MR had explained in Yuill v Yuill [1945] P 15 at 20: '... that justice is best done by a judge who holds the balance between the contending parties without himself taking part in their disputations[.] If a judge, said Lord Greene, should himself conduct the examination of witnesses, "he, so to speak, descends into the arena and is liable to have his vision clouded by the dust of conflict".' That was, of course, said in the context in which a judge was not allowed to call witnesses (see Jones v National Coal Board [1957] 2 QB at 64). These considerations may not be entirely apposite for the Federal Magistrates Court if r 15.04 is a valid exercise of the rule-making power. Certainly, as noted above, there will be situations for example (and I do not intend to be exhaustive) in which that court is called upon to exercise its jurisdiction in which it may be necessary or desirable for the court to have information from witnesses, particularly in cases involving the Family Law Act 1975 (Cth) where welfare of a child may be in issue and where the relevant parties before the court may each have interests which the court regards as not properly able fully to inform it of what might be in the overall best interests of the child.
Case: Fencott and Others v Muller and Another [1983] HCA 12 ; (1983) 152 CLR 570
Outcome: cited
Gibbs J made similar observations in Fencott and Others v Muller and Another [1983] HCA 12 ; (1983) 152 CLR 570 at 591: 'It is now established by Philip Morris v. Brown that once a federal court is invested with jurisdiction with respect to a matter, it may determine all the questions which form part of that matter, even though they are questions which it would have no jurisdiction to entertain if they arose in separate proceedings.' At 593 his Honour continued: 'The question whether one claim is inseverable from another, so that both are part of one matter, is a question of fact and degree. The Constitution , however, makes it clear that the attached claim must be part of the matter that attracts jurisdiction; closeness of association is not enough.' 32 Two observations may be made. First, the facts and evidence relating to the claim of the Moskalevs' alleging discrimination are different to those relating to the administrative review of the Department's decision pursuant to its Priority Housing Policy and are not 'inseverable' (see: Gibbs J in Fencott v Muller 152 CLR 593). The Court accepts the submission of the Department that there was no requirement for it to adduce evidence of its procedures relating to the operation of the Housing Appeals Committee in view of the only matter before Driver FM, namely the claim of discrimination. The order requires the Department to undertake a merits review of its determination in relation to the Moskalevs' application for priority housing when such question did not arise either as a federal or as an associated matter. 33 Second, the request of the Moskalevs' to be placed on the priority housing list did not constitute a separate 'matter' for the exercise of the Court's jurisdiction. The claim for such order was ancillary to the claim of discrimination under the HREOC Act. Accordingly s 18 of the FMA cannot be used as a source of jurisdiction to justify the order. 34 The order could have been justified under s 46PO(4) of the HREOC Act had a finding of unlawful discrimination been made. In the absence of any finding of unlawful conduct by the Department there was no jurisdiction under s 15 of the FMA which could support the order and the request to be placed on the priority housing list does not constitute an 'associated matter' under s 18 of the FMA. It follows that the order was made ultra vires.
Case: In Re the Judiciary Act 1903-1920 and In Re The Navigation Act 1912-1920 [1921] HCA 20 ; (1921) 29 CLR 257
Outcome: cited
Section 18 of the FMA provides a source of jurisdiction in associated 'matters'. A 'matter' must be a justiciable dispute and not merely a legal proceeding. In In Re the Judiciary Act 1903-1920 and In Re The Navigation Act 1912-1920 [1921] HCA 20 ; (1921) 29 CLR 257 at 265 the majority, having considered an argument that the word 'matter' in s 76 of the Constitution referred only to a legal proceeding, said: 'We do not accept this contention; we do not think that the word " matter" in sec. 76 means a legal proceedings, but rather the subject matter for determination in a legal proceedings. In our opinion there can be no matter within the meaning of the section unless there is some immediate right, duty or liability to be established by the determination of the Court.' See also: The Queen v Kirby and Others; Ex parte Boilermakers' Society of Australia [1956] HCA 10 ; (1956) 94 CLR 254 at 272-274; The Queen v The Trade Practices Tribunal and Others; Ex parte Tasmanian Breweries Proprietary Limited [1970] HCA 8 ; (1970) 123 CLR 361 per Kitto J at 374; Re Wakim; Ex parte McNally 198 CLR [10].