INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - Claim of UNLAWFUL TERMINATION - Application by employer for review of decision of JUDICIAL REGISTRAR - Complaint of conduct of Judicial Registrar at hearing - Alleged excessive intervention and partiality - Complaints not justified - Employer disavowed review by Judge of correctness of Judicial Registrar's findings - Application for review dismissed. Industrial Relations Act 1988, s377. JOSEPH SPITERI v. MONOCURE PTY LTD No. NI. 653R of 1994 CORAM: WILCOX CJ PLACE: SYDNEY DATE: 30 JUNE 1995 IN THE INDUSTRIAL RELATIONS COURT) OF AUSTRALIA ) No. NI. 653R of 1994 NEW SOUTH WALES DISTRICT REGISTRY) BETWEEN: JOSEPH SPITERI Applicant AND: MONOCURE PTY LTD Respondent CORAM: WILCOX CJ PLACE: SYDNEY DATE: 30 JUNE 1995 MINUTES OF ORDER THE COURT ORDERS THAT: 1. The application for judicial review be dismissed. Note: Settlement and entry of orders is dealt with in Order 36 of the Industrial Relations Court Rules. IN THE INDUSTRIAL RELATIONS COURT) OF AUSTRALIA ) No. NI. 653R of 1994 NEW SOUTH WALES DISTRICT REGISTRY) BETWEEN: JOSEPH SPITERI Applicant AND: MONOCURE PTY LTD Respondent CORAM: WILCOX CJ PLACE: SYDNEY DATE: 30 JUNE 1995 REASONS FOR JUDGMENT WILCOX CJ: This is an application for review of a decision of a Judicial Registrar of the Court in an unlawful termination case brought under Division 3 of Part VIA of the Industrial Relations Act 1988. Contrary to the case of the employer, Monocure Pty Limited, the Judicial Registrar found that the employment of the employee, Joseph Spiteri, was terminated by the employer, not the employee. She also found that the termination breached the requirements of s.170DC (procedural fairness) and s.170DE (substantive fairness) of the Act. She found that reinstatement was impracticable and ordered payment of compensation. Mr J Hassett, the solicitor for the employer, the applicant for review, presented his case in an unusual way. He did not wish to challenge before me the Judicial Registrar's findings of fact. He wished to attack the manner in which she conducted the proceedings and to argue that the trial miscarried, so that the Judicial Registrar's order should be set aside and the matter remitted for trial before another Judicial Registrar. During the course of discussion, I pointed out to Mr Hassett that s.377 of the Act provided for review by a Judge of a Judicial Registrar's exercise of power and this allowed a full recanvassing of the facts; I was not bound by the Judicial Registrar's findings. I inquired what were the outstanding issues in the case and offered to resolve them. Mr Hassett replied that the only live issue was the question whether the employer or the employee terminated the employment. He referred to a letter of termination given to Mr Spiteri by his client but said this did not represent the true position. He said that, in order to determine this issue, it was necessary to make findings about a particular conversation involving Mr Spiteri, on the one hand, and two officers of his client, Mr Anderson and Mr Jackson, on the other. I noted that each of these people had given evidence about the matter before the Judicial Registrar. I suggested this should be analysed and stated that, if it was necessary for me to see and hear the witnesses in order to choose between competing versions of the conversation, I would do this. However, Mr Hassett was unwilling for me to take this course. He wished to confine the review to an attack on the Judicial Registrar's handling of the case. He said that, if the attack failed, he would accept that his application be dismissed. Mr Hassett then developed his criticisms of the Judicial Registrar. The burden of those criticisms was that the Judicial Registrar conducted the proceedings in a partial manner, unduly assisting Mr Spiteri, who represented himself. Mr Hassett referred to a passage in the transcript, late in the hearing, where the Judicial Registrar is recorded as saying to Mr Spiteri "I have practically had to run the case for you". Mr Hassett submitted that this comment was accurate, that she had behaved as Mr Spiteri's advocate rather than as a judicial officer and that this had caused a miscarriage of justice. In support of his submission, Mr Hassett referred me to numerous earlier passages in the transcript. Before going to those passages, it is desirable to put into context the comment just quoted. It was made in the course of submissions about the possibility of reinstatement. Mr Spiteri put to the Judicial Registrar facts which she thought not to be covered by evidence. She pointed this out, adding "you have not been very helpful in telling me things, either. I have practically had to run the case for you". Mr Spiteri said: "I know. Well, I was told there was no solicitor required". The Judicial Registrar responded: "You do not have to, that is right, and that is why I assist people who are unrepresented, whether they be applicants or respondents. I mean, it is advantageous to me to get to the bottom of things. What else is there that you could do that you can think of?" There was then discussion about possible work. I do not propose to set out all the references given to me by Mr Hassett. I discussed them with Mr Hassett during the course of submissions. It is clear that the Judicial Registrar posed many questions to witnesses. They were all relevant. Some might properly be described as sceptical. For example, the Judicial Registrar questioned both Mr Anderson and Mr Jackson as to how they were able to give a verbatim account of the critical conversation, when they had not made contemporaneous notes. Her questions were similar to those that might have been asked by a cross-examining counsel, if there had been one. But this did not make them improper. There was a major issue about this conversation. The Judicial Registrar had to make findings about it. If she were to make satisfactory findings, it was important for her to know about notes of the conversation, circumstances of recollection etc. If Mr Spiteri had been represented, the Judicial Registrar could have expected these issues to be explored in cross-examination. But he was not. If the necessary questions were to be asked, she obviously had to do the asking. Another factual issue, apparently relevant to the question who terminated the employment, was whether Mr Spiteri cleaned out his desk of personal effects on a particular day, 12 July. Mr Jackson said he recalled seeing Mr Spiteri do this. In questioning Mr Jackson, Mr Spiteri challenged this evidence and suggested that Mr Jackson was in Melbourne on 12 July. Mr Jackson replied that he regularly travelled interstate and could not say whether he was in Melbourne that day. After more questions on the same topic, the Judicial Registrar asked Mr Hassett whether he had any records as to Mr Jackson's movements that day. He said: "No, I do not, certainly not here". The Judicial Registrar responded: "Well, obviously, you are Jones and Dunkelled, are not you?" This response not only lacks linguistic felicity; it also misunderstands the rule in Jones v Dunkel (1959) 101 CLR 298. That rule is concerned with the inference that may be drawn when a party fails to call available evidence that might be thought supportive of that party's case in chief. It has no relevance to the situation that arises where a witness is asked, in cross-examination, about the availability of a document that might assist in clearing up a matter then raised for the first time. Neither Mr Hassett nor Mr Jackson had been told that there might be a suggestion that Mr Jackson was in Melbourne on 12 July. It would have been quite unreasonable to draw an inference adverse to Mr Jackson, or his employer, from the fact that nobody had brought to court his interstate travel records. However, even if the comment indicated a misunderstanding of Jones v Dunkel, it did not indicate unwillingness by the Judicial Registrar to determine the case fairly, and by reference to the evidence. Indeed, the comment arose only because of her wish to resolve the dispute between Mr Spiteri and Mr Jackson about the latter's travel movements in the most satisfactory way - by reference to unimpeachable contemporaneous documents. I do not think the transcript of the hearing before the Judicial Registrar supports the suggestion that she ran Mr Spiteri's case for him. Certainly, she asked many questions; but always in an endeavour to clarify the evidence or to obtain additional evidence better equipping her to choose between the witnesses' versions of critical matters. She was entitled to ask these questions. She had the onerous task of determining several hotly disputed issues of fact; without the ordinary assistance of competent legal representation on each side. My only criticism of the Judicial Registrar concerns the timing of her questions. She frequently intervened during the course of an examination-in-chief or cross-examination. Even though questions are relevant and proper, frequent intervention by the presiding judicial officer is often disconcerting to a witness. Many people find it an ordeal to give evidence. It may be difficult for them to handle simultaneous questions from two directions. Sometimes it is necessary for the judicial officer immediately to intervene, to check what the witness just said or to clarify a point. Subject to that, it is generally better for a judicial officer to save questions until the end of a stage in the evidence, preferably until the end of cross-examination, or at least until there is a natural break; for example, an adjournment. However, the fact that the Judicial Registrar did not take this course in the present case does not mean that the trial miscarried. Mr Hassett does not complain that her interventions were unfair to any witness or that they prevented the eludication of the employer's case. During the course of his submissions, Mr Hassett referred to a recent decision of the New South Wales Court of Appeal, Burwood Municipal Council v Harvey (3 April 1995, not yet reported). That case involved a determination in the Land and Environment Court of New South Wales of the compensation payable to the respondent following the compulsory acquisition of land by the council. The Court of Appeal set aside the determination and returned the case to the Land and Environment Court for rehearing; the reason being that the interventions of the trial judge had caused the trial to miscarry. The case contrasts with the present case in two significant respects. First, in that case, the only right of challenge available to the appellant was an appeal on a question of law. The appellant was not entitled to have the Court of Appeal reconsider the facts of the case, still less determine the facts itself on a rehearing de novo. The second contrast relates to the scale of the interventions. It appears from the judgments in the Court of Appeal that the judge's interventions were not only numerous. They were often belligerent, when addressed to the council's witnesses, and extremely lengthy, sometimes extending continuously over many pages of transcript. Nothing like that occurred in the present case. In Burwood Municipal Council v Harvey Kirby P quoted a famous passage from the judgment of Denning LJ in Jones v National Coal Board [1957] 2 QB 55 at 64: "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." Kirby P seems to have regarded this statement as sufficient today. I do not think it is. The statement assumes competent representation on each side. It takes no account of the problem of the unrepresented (or incompetently represented) litigant. It takes no account of the list pressures that have caused most courts, including this Court, to adopt case management techniques. These, and other, features of modern litigation have had a profound effect on the judicial role, as was pointed out by Ipp J of the Western Australian Supreme Court in a recent article that should be read by everyone concerned with the conduct of litigation: see "Judicial Intervention in the Trial Process", 69 Australian Law Journal 365. Nonetheless, some things remain constant. I respectfully and unequivocally agree with Kirby P that it is a matter of critical importance that parties have confidence in the neutrality of the judicial officer; otherwise the losing party will not only be disappointed but "disturbed at the apparent failure of the judicial institution to operate as intended and expected". As the old aphorism has it, "the most important person in the courtroom is the party who is going to lose the case". Kirby P said, and again I respectfully agree, that: "(i)nterventions, put forward provisionally, to test evidence and to invite further persuasion are perfectly permissible ... But interventions which suggest a partisan opinion are intolerable (because 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." I do not think the Judicial Registrar's conduct of this proceeding transgressed these limits. Accordingly, in view of the limited review issue raised by Mr Hassett, it is appropriate for me to order that the application for review be dismissed. I propose to do so. I should add that, if I had reached the contrary opinion about the conduct of the proceeding by the Judicial Registrar, I would not have adopted the course urged by Mr Hassett. Section 377 of the Act relevantly provides: "377(1) A party to proceedings may apply to the Court to review a Judicial Registrar's exercise in the proceedings of a power delegated under section 376. An application must be made within the period prescribed by the Rules of the Court or such further period as is allowed in accordance with the Rules. (2) On an application under subsection (1) or of its own motion, the Court may review a Judicial Registrar's exercise of a power so delegated. The Court may make whatever order it considers appropriate in relation to the matter in relation to which the power was exercised. (3) ..." Subsection (2) confers wide powers on the Court in connection with a review. No doubt it would be open to a Judge to set aside a Judicial Registrar's decision and refer the case back to that Judicial Registrar for further hearing, or refer it to some other Judicial Registrar. Sometimes that may be the appropriate course. But a Judge is not required to do this. The situation is different to that which applies on an appeal against a primary judge's decision, and still more an application to set aside the decision of a statutory decision maker on a ground such as that contained in s.5 of the Administrative Decisions (Judicial Review) Act 1977. A Judge reviewing an exercise of power can determine the case himself or herself. Ordinarily, it will be appropriate to do so, the issues having been reduced and refined by the first hearing; rather than to give the task to the same or different Judicial Registrar, with the possibility of a second application for review in relation to that Judicial Registrar's decision. The application for review will be dismissed. I certify that this and the preceding ten (10) pages are a true copy of the Reasons for Judgment of his Honour Chief Justice Wilcox. Associate: Dated: 30 June 1995 APPEARANCES The Applicant appeared in person Solicitor for the Respondent: Jonathan Hassett Date of hearing: 16 June 1995