I. BACKGROUND
6.1 In a letter of 9 July 1986 to the Attorney General the Chief Justice, Sir Laurence Whistler Street, KCMG, said:
Expressions of concern regarding the length of Court proceedings continue to escalate. As things stand at present, the Courts do not really have effective control over the time taken by the profession in the varying aspects of a hearing. At the same time, the public perception is that the Court, and to some extent the Government, is responsible for the cumbersomeness with which litigation proceeds on its stately way.
Our Court facilities are an expensive resource and I feel that it is uneconomic simply to deliver our facilities up to the hands of the profession once a case is called on for hearing. Judges and Magistrates need positive powers to control the scope and length of proceedings, this requirement having become particularly relevant in the modern climate of legally aided litigation.
6.2 Sir Laurence made two suggestions to redress the situation. The first gave express power to the judge “to limit or restrict the subject matters or topics or the scope of any subject matters or topics” canvassed in evidence and the second allowed the judge to direct that in some circumstances evidence in chief should be given by affidavit. The full text of the Chief Justice’s proposals appears in Appendix A. The Attorney General at that time, the Honourable T W Sheahan BA, LLB, MP, sought comment on the proposals from the Law Reform Commission. It was decided that the Commission’s comment should be given as part of this Report on the implementation of the Australian Law Reform Commission Report on Evidence.
II. EXPEDITION OF COURT PROCEEDINGS- EXISTING POWERS
6.3 There are three sources of power by which the Supreme Court might expedite proceedings:
- the inherent jurisdiction
- Supreme Court Act 1970, s82
- Supreme Court Rules, Part 26 Rule 1
A. The Inherent Jurisdiction
6.4 In Cocker v Tempest Alderson B said:
The power of each Court over its own process is unlimited; it is a power incident to all Courts, inferior as well as superior; were it not so, the Court would be obliged to sit still and see its own powers abused for the purpose of injustice. 1
This description of the powers of the courts has been approved in New South Wales in Tringali v Stewardson Stubbs & Collett Ltd.2 The powers are apparently wide enough to encompass the matters raised by the Chief Justice,3 but have never began exercised to achieve those purposes. Indeed, there are many statements in the decided cases that these powers should be exercised very sparingly. 4
B. Supreme Court Act 1970
6.5 Section 82(1) of the Supreme Court Act 1970 gives power “at any stage of the proceedings” to (a) “dispense with the rules of evidence for proving any matter which is not bona fide in dispute” and (b) to “require any party... to make admissions with respect to any document or to any question of fact” Subsection (1)(a) also allows the Court to dispense “with such rules as might cause from any commission to take evidence or arising elsewhere...”.
C. Supreme Court Rules
6.6 The Supreme Court has power under Part 26 Rule 1 “at any time and from time to time” to “give such directions and to make such orders for the conduct of any proceedings as appears convenient ...for the just, quick and cheap disposal of the proceedings”. These directions and orders may be made ‘whether or not inconsistent with the rules”.
D. Discussion
6.7 Section 82(1)(a) is taken from the Commercial Causes Act 1903 and, with Part 26 Rule 1, is clearly intended to assist the Supreme Court in expediting its proceedings. 5 However, it has been used conservatively and has never allowed the Supreme Court to gain full control of proceedings before it. There are probably two reasons for this conservatism:
- the Court has been concerned not to derogate, from the rules of natural justice; and
- deference has been paid to the very limited interpretations given to similar provisions in other jurisdictions.
III. EXPERIENCE IN OTHER AUSTRALIAN JURISDICTIONS
6 8. The earliest reported reference to use of such provisions in Australia appears in the Victorian case of Murine Eye Reinedy Co v Eldred.6 Section 25 of the Supreme Court Act 1915 (Vic) gave the Court power to make rules ‘regulating and directing the means by which particular facts may be proved and the mode in which evidence thereof may be given”.7 Dixon A.J (as he was then was) said this power was ‘very wide” and wide enough to permit “the enactment of a rule which empowers, the Court to authorise or direct the proof of facts...by some particular means not allowed by the common-law rules of evidence”.8
6.9 Equivalent powers of the Federal Court are also contained in rules made under the enabling Act.9 Although Order 33 rule 3(b) is expressed in wide terms- “to dispense with compliance with the rules of evidence where such compliance might occasion or involve unnecessary or unreasonable expense or delay...” it has been interpreted narrowly. In Pearce v Button10 Lockhart J of the Federal Court expressed the view that the power given by s59 of the Act was wide enough to “authorise a rule which empowers the court to allow the proof of facts at the hearing by some means not allowed by the rules of evidence”.11 However, he and the other two judges on the Court12 held that some limits had to be placed on the power in O33 R 3(b) to dispense with the rules of evidence. The power did not only allow the Court to dispense with the rules of evidence when necessary to facilitate proof of merely formal matters. It could be used for matters going to the “heart of the case” but where the matter was of central importance in this way “a judge should be slow to invoke” the power to dispense.13 Spender J stated the applicable principles in the following way:
The right to be heard is a major component of the principles of natural justice. Implicit in that right is the right of a party reasonably to test the case presented against it... a clear and serious breach of the requirements of natural justice occurs when a party to proceedings, on a matter central to those proceedings, is denied a fair and reasonable Opportunity to challenge what is said against it.14
Fox and Lockhart JJ expressed themselves to be in general agreement with such principles when dealing with matters which were “central to the case”.15
6.10 Similar views had been expressed on behalf of the Queen’s Bench Division of the English High Court by Bingham J in H v Schering Chemicals Ltd.16 He said:
I think that the object of the rule is to permit the proof of matters, or to facilitate the proof of matters, which, although in issue, are largely peripheral to the major issue in the action, that as to facilitate the proof of matters which are largely, although not completely formal.17
6.11 Other courts have been even more cautious in their approach to these powers. In Downs Irrigation Co-operative Association v National Bank of Australasia (No. 2),18 Andrews SPJ restricted the powers of the Queensland Supreme Court under a similar provision to the “proof of peripheral matters, or purely formal matters” and said that they did not “extend to proof contrary to rules of evidence or by way of extension of rules of evidence of matters bearing upon issues central to an action or matters”.19
IV. ANALYSIS OF EXISTING POWERS
6.12 In that it is restricted to matters “not bona fide in dispute” the power of the Court to dispense with the rules of evidence under s82 of the Supreme Court Act is limited in the same way as the powers of courts in other jurisdictions. This is the same wording as used in the rules of court interpreted in Pearce v Button and therefore the power could be expected to be interpreted in a similarly restrictive way. Thus, if the evidence to be adduced goes to an issue which is “central to the case” (the wording used by Fox J in Pearce v Button) the Court will be slow to depart from the rules of evidence.
6.13 Although not circumscribed in the same manner, the powers of the Court under the Rules and in the inherent jurisdiction are also likely to be given a limited interpretation. The powers under consideration in H v ScherinQ Chemicals Co and Downs Irrigation Co-operative Association v National Bank were not subject to the constraint that they were to be exercised only in relation to peripheral matters, yet they were interpreted as not applying to proof of matters which were central to the dispute.
6.14 The reasons for restraint were stated by Spender J in Pearce v Button. He said that the “paramount consideration” in determining whether to exercise the power to dispense was “justice between the parties”20 and he added (as quoted above) ‘the right to be heard is a major component of the principles of natural justice”. These views, in particular that parties have a right to test the case against them, have been supported in several courts.21
V. PARTY AUTONOMY AND PROSECUTION
6.15 It is reasonably clear that express provision is needed if the courts are to exercise the types of powers proposed by the Chief Justice. The question is whether it is appropriate to vest those powers in the courts.
A. Consistency of Proposals with ALRC Report
6.16 In its Interim Report the ALRC dealt with the issue under the headings Party Autonomy and Party Prosecution.22 These headings contained “two distinct principles” said to be assumed in any adversary system:
- Party Autonomy. The parties have the right to pursue or dispose of their legal rights as they wish. In addition the parties define the dispute.
- Party Prosecution. The parties have the right and the responsibility to choose the manner in which they will go forward with their case and the proof they will present to support it. The judge’s role is to evaluate passively the merits case as and when it is presented to him.23
The latter principle was said to be reflected in Australian law and reference was made to authorities which supported the view.24 The ALRC made it clear that the proposals for reform it was putting forward were made in a context in which the existing powers of judges would not change. The Commission said:
Generally, arguments for change in the judge’s powers are based on criticisms of the consequences of an adversary system. A detailed examination of that system is needed if the issues are to be dealt with satisfactorily. A reference on the trial system or on civil and criminal procedure would be required to raise issues of this nature. Any statutory statement of the law of evidence should assume the present law concerning the right or lack of right of the judge and the parties to call and question witnesses.25
6.17 The ALRC accepted, however, that both the parties and the community would make judgments about the civil trial process by reference to its efficiency and that therefore “any rules or proposals “would have to be “evaluated in the light of their effect on the time and cost of the trial”. Greater tolerance was expected in relation to the criminal law process, but in making recommendations in this field the Commission kept in mind the constraints imposed by the time and cost of litigation. 26
6.18 The Commission looked at some aspects of the powers to dispense with rules and to call for evidence by affidavit, ut only so far as they were ancillary to matters within its terms of reference.27 Thus clause 142 of the draft bill allows evidence of some limited matters to be given by affidavit (first hand hearsay, business records, tags and labels and telecommunications).28 Clause 143 permits the court to require a party to comply with a request from another party to produce documents or call witnesses where the request is reasonable. Amongst the matters the court is to take into account in making an order under cl 143 is the practicality of the request and any delay which may be caused by compliance with it. 29 Clause 147 allows the court to waive the rules of evidence in some circumstances 30 if it has the consent of the parties. Cl 147(2) imposes special restrictions in relation to obtaining the consent of the defendant in criminal proceedings, while cl 147(3) gives power to dispense with the rules of evidence in relation to those matters mentioned in cl 147(1) which are not “genuinely in dispute”. Power is also given to dispense with the rules of evidence in relation to the same matters where their application “would cause or involve unnecessary expense or delay”.31
6.19 It is clear that the proposals made by the Chief Justice go beyond recommendations made in the ALRC Report. The Commission must seek guidance from other sources.
B. Case Law
6.20 The case law is ambiguous in its treatment of the role of the judge in adversary proceedings. On the one hand there is authority that a trial is a proceeding inter partes, whether the Crown is a party or not, aid the conduct of the evidence, subject to questions of admissibility, is in principle the concern of the parties”.32 on the other hand, Lord Denning MR has said:
The judge’s part... is to hearken 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 the 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.33 (emphasis added).
6.21 There is authority to support both views of the role of the judiciary; none of it inconsistent because no court has directed itself to the broad policy issues involved. Where the powers have been interpreted restrictively the court has been dealing with the possibly serious incursion on the parties autonomy which is involved in a judges summonsing witnesses without their consent.34 By contrast there have been more expansive interpretations of judicial power when the court is undertaking a survey of judicial functions in an attempt to develop principles of a more general application.35
C. Learned Commentary
6.22 Sir Richard Eggleston is one of the few in Australia who have commented on the judicial powers to control proceedings. In an article in 1975 he suggested that judges should have power to control the cross examination of witnesses.36 As his comments were made in the context of a proposal that witnesses be permitted to present their evidence in narrative form, they are probably not of general application, although earlier in the article, he had indicated that one of the problems of the adversary system was delay occasioned by the court’s inability to control the conduct of the case.37
6.23 In a Paper published in the same journal, J. Doyle Davies QC, from Victoria, cast the responsibility for court delays elsewhere than the courts.38 He thought that it was for the profession to take active steps to reduce delays, both in proceedings in court and in pre-trial procedures. Apart from a reference to the possibility in future that judges may call for the parties’ submissions on some matters to be made in writing, instead of being delivered orally, Davies did not see the responsibility for reducing delays as lying with the court.39
6.24 What is more important to extract from these two articles, and from the contributions of other writers overseas, is the fact that the emphasis for the conduct of the proceedings is placed not on judicial responsibility but on the responsibility owed by the profession. 40 R.M. Jackson puts the point in the following way:
The responsibility of the parties is not confined to settling the issue to be decided, but extends to the preparation of the evidence and its presentation. There is no rule in civil cases that all the available evidence must be put before the court.41
At least until 1977 the judge was not regarded as able to take a very active role in the conduct of the proceedings. Indeed, it was regarded as potentially harmful to the system of justice that the judge should “descend into the arena” so as to “have his vision clouded by the dust of conflict”.42
VI. JURISDICTIONS OUTSIDE AUSTRALIA
6 25. It is interesting to note that when seeking an example of an extensive judicial discretion to control proceedings in court Fox J chose s82(1)(a) of the Supreme Court Act 1970 (NSW).43 Others regard s82 as going no further than the common law. 44
6.26 When the American Law Institute began developing the Model Code of Evidence in 1942, it said of a provision (Rule 105) that gave the judge power to control “the conduct of the trial to the end that the evidence shall be presented honestly, expeditiously and in such form as to be readily understood”... “This Rule recognises in its introductory clause the power of the judge as it exists under the English common law”. 45 The comment was not repeated in relation to Rule 303, however. Rule 303 states:
(1) The judge may in his discretion exclude evidence if he finds that its probative value is outweighed by the risk that its admission will
(a) necessitate undue consumption of time, or
(b) create substantial danger of undue prejudice or of confusing the issues or of misleading the jury, or
(c) unfairly surprise a party who has not had reasonable ground to anticipate that such evidence would be offered.
(2) All Rules stating evidence to be admissible are subject to this Rule unless the contrary is expressly stated.
In an article appended at the end of the Code, Judge J Rus-sell McElroy does claim that Rule 303 merely “follows in paths widely beaten out by common law decisions. P-aragraph (a) is right down the line with numerous common law decisions”. He cited US case law and Sir James Fitzjames Stephen as authority.46
6.27 A task force of the Uniform Law Conference of Canada in 1982 did not think Rule 105 of the 1942 US Model Code represented the common law. They rejected it as giving the trial judge “too much control”.47 The Task Force also thought a proposal put forward by the Canadian Law Reform Commission in 1972 extended the trial judge’s discretion too far, after the Commission had attempted merely “to codify the authority that the trial judge has under the present law to control the conduct of the trial”.48
Clause 58 of the Canadian Law Reform Commission’s Code read:
58. (1) Subject to this section, the parties to a proceeding have the responsibility of presenting the evidence and examining the witnesses.
(2) The judge shall exercise reasonable control over the presentation of evidence and the examination of witnesses so as to make them effective for the ascertainment of the truth, to avoid needless consumption of time, and to protect witnesses from harassment or undue embarrassment.
(3) The judge may exceptionally call, recall or examine a witness to clarify or elicit evidence if this appears essential to the just determination of the proceedings.
6.28 The more modest powers suggested by the Task Force were in the following terms:
Subject to the power of the court to exercise reasonable control over a proceeding, to protect witnesses from harassment and to avoid prolixity, the parties to a proceeding shall determine the manner in which they present the evidence and examine witnesses.49
6.29 This is the style of provision also adopted in the Uniform Rules of Evidence in the USA:
(a) Control by court. The Court shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to (1) make the interrogation and presentation effective for the ascertainment of the truth, (2) avoid needless consumption of time, and (3) protect witnesses from harassment or undue embarrassment.
(b) Scope of cross-examination. Cross-examination should be limited to the subject matter of the direct examination and matters affecting the credibility of the witness. The court may, in the exercise of discretion, permit inquiry into additional matters as if on dire-t examination.
(c) Leading questions. Leading questions should not be used on the direct examination of a witness except as may be necessary to develop his testimony. ordinarily leading questions should be permitted on cross-examination. Whenever a party calls a hostile witness, an adverse party, or a witness identified- with an adverse pity, interrogation may be by leading questions. 50
In turn this provision seems to have been justified as representing nothing more than the common law.
VII. CONCLUSION
6.30 The Commission agrees with the ALRC that the matters raised in the Chief Justice’s suggestions go well beyond the terms of its current reference on evidence. 51 This brief survey of the law and practice of the courts indicates that judges probably have the powers proposed but that they do not use them. When it examined law and practice in its courts the Canadian Law Reform Commission came to a similar conclusion, that the courts had the powers desired but chose not to use them. The Canadian Commission’s recommendation was that a provision giving express powers to expedite proceedings was necessary “because in many instances trial judges appear to be 52 in doubt about their discretionary powers”.
6.31 The matter for decision is whether express provision should be made in the terms sought by the Chief Justice. A detailed examination of the nature and function of the adversary system would be required to settle that question. As the Commission has had neither the time nor the resources to undertake such a study in the course of this reference, we make no recommendations on the issues raised.
FOOTNOTES
1. (1841) 7 M & W 5011 503-504; 151 ER 864, 865
2. (1966) 66 SR (NSW) 33S, 344.
3. H Jacob, The Inherent Jurisdiction of the Court (1970) 23 Current Legal Problems 23, 27 32- 33 sets out the background to and uses of the power; see also K Mason, the Inherent Jurisdiction of the Court (1983) 57 ALJ 449 and The Honourable Mr Justice A J Rogers, Judges in Search of Justice (1987) 10 UNSWLJ (No 1) 93.
4. Id Tringali 344-345 and the English cases mentioned therein.
5. Ritchie’s Supreme Court Procedure (NSW) 1149, 2421.
6. [1926] VLR 425.
7 A similar provision appeared in the Supreme Court Act of 1958 and it has been continued in the Supreme Court Act 1986 (Vic) s25(1)(a).
8. Id Murine Eye Remedy Co. v Eldred, 426.
9. Federal Court of Australia Act 1976, s59.
10. (1986) 65 ALR 83.
11. Id 97.
12. Fox and Spender JJ.
13. Id 97 per Lockhart J, 101 per Spender J.
14. Id 102.
15. Id 90, 101.
16. [1983] 1 All ER 849.
17. Id 8S3.
18. [1983] 1 QdR 475.
19. Id 480.
20. Id 101.
21. Downs Irrigation 477-478; H v Scherins Chemicals 853-854; Meer v Guardian Assurance Co Ltd(1964) 80 WN (NSW) 940, 943 where the evidence was admitted but comment made that “its weight will be lessened by the lack of cross-examination”.
22. ALRC 26, paras 38-44, 56-64.
23. Adopted from N. Brooks “The Judge and the Adversary System” in AM Linden (ed) The Canadian Judiciary (Osgoode Hall Law School, York University, Toronto, 1976).
24. The cases cited at ALRC 26, para 43, note 44 are: Titheradge v R (1917) 24 CLR 107; U (1952) 85 CLR 365; Richardson v R (1974) 48 ALJR 181 and Whitehorn v R (1983) 57 ALJR 809, 814 ff.
25. ALRC 26, para 43.
26. ALRC 38, para 46(d).
27. Id paras 242, 247; Draft Bill clauses 142, 143, 147, 148.
28. Matters raised in clauses 56-58 and 61-63.
29. Cl 143(4)(g).
30. In relation to Part III, Division 3- the Manner of Giving Evidence, Part V, Divisions I and 6 hearsay and evidence relevant to credibility and Part VI, Division 2 documents and the best evidence rule.
31. Cl 147(3)(b).
32. Titheradge v The King (1917) 24 CLR 107, 117 per Barton J.
33. Jones v National Coal Board (1957) 2QB 55, 64.
34. Richardson v The Queen (1974) 48 ALJR l81, 182; Whitehorn v The Queen 57 ALJR 8091 818-819.
35. Id Jones v National Coal Board; Whitehorn at 816.
36. R. Eggleston, What is Wrong with the Adversary System? (1975) 49 ALJ 428, 437.
37. Id 429-430.
38. J.D. Davies, Updating Civil Court Procedures for the 1980s (1975) 49 ALJ 380.
39. Id 386.
40. R.M. Jackson, The Machinery of Justice in England (7th ed Camb. UP 1977) Neil Brooks, id 94- 97 : P Deviln, The Judge (OUP 1981), 62.
41. Id Jackson 87.
42. Yuill v Yuill (1945) P 15, 20, quoted in Jones v NCBP 63.
43. R W Fox, Expedieicy and Truth - finding in the Modern Law of Evidence, Chapter 6 in E Campbell & L Waller, Well and Truly Tried (Law Book Co 1982) 140, 163.
44. Fox himself says the procedure used in the Commercial Court in England from 1895 was “remarkable” because “it functioned within the existing judicial and legislative framework”, id 163; Ghana Law Reform Commission, Commentary on the Evidence Decree 1975 (NRCD 323) 49 makes the comment in respect of wider powers granted in the Ghanain Code.
45. American Law Institute Model Code of Evidence (1942) 104.
46. J R McElroy, Some Observations Concerning the Discretions Reposed in Trial Judges by the American Law Institute’s Code of Evidence, Model Code (1942) id 356p 361.
47. Uniform Law Conference of Canada, Report of the Federal/Provisional Task Force on Uniform Rules of Evidence (Carswell 1982) 273.
48. Canadian Law Reform Commission, Study Paper Evidence (August 1972) Comment 2; and it’s Report - Evidence (December 1975) cl 58.
49. Id Report 273, Also used by the Institute of Law Research and Reform, Alberta, The Uniform Evidence Act 1981 (Report 37A).
50. Uniform Laws Annotated, Vol 13A, Uniform Rules of Evidence (West Pub Co, St Paul Mimm 1986) Rule 611.
5I. Referred to in 4.16 above.
52. Id note 48, Study Paper - Evidence, Comment on s1, at 1.
