Manly Fast Ferry Pty Ltd v Wehbe [2021] NSWCA 67 (on Caselaw) revisited a trial where concurrent expert evidence was conducted by an video link and by a phone link. On appeal the appellant argued that it was denied procedural fairness as the frequency and nature of the involvement of the primary judge in the cross-examination of the medical experts and Mr Wehbe created a real risk that the trial was unfair.
Discissing the appeal, the Court of Appeal ( per Gleeson JA & Simpson AJA, Leeming JA dissenting) held that the interventions of the primary judge in the cross-examination of the medical experts were appropriate. The questions and clarifications were fairly directed to attempting to obtain a proper understanding of the basis for the difference of opinion between the experts: [42]-[56]. The interruptions in the cross-examination of Mr Wehbe were also appropriate: [57]-[61].
Simpson AJA commented at [168]:
Complaints of procedural unfairness caused by excessive judicial intervention are by no means a recent phenomenon. Frequently, but not always, the issue arises in relation to conviction after a criminal trial by jury. The principles stated in those cases are adaptable to civil, non-jury, trials. Analysis of the authorities suggests to me that the ground depends on establishing, as a matter of objective reality rather than subjective perception, that the judicial intervention had an actual impact on the trial.
Her Honour concluded at [214]:
I am unable to conclude that, as a result of the questioning by the primary judge, the trial was objectively unfair. I detect in the transcript none of the consequences that have been held to indicate unfairness in the trial – impediment to the witnesses in giving their evidence, impediment to counsel advancing the appellant’s case, or impediment to the judge in reaching his determination. In this respect it is of signal importance that the judge was confronted with a situation in which he had to choose between two competing positions.
Also of interest was a reference to questioning by the two experts of each other. Gleeson JA said at [56]:
One final matter should be mentioned. At the conclusion of Dr Maxwell’s cross-examination in the conclave, the judge invited and permitted each expert to ask questions of the other. During that dialogue between the experts, Dr Maxwell gave an answer: “[i]t’s just patently ridiculous”, in response to Dr Porteous’ view that consequential injury can develop as a result of favouring the other limb. The appellant complains that the judge prefaced his next question to Dr Porteous: “Well, putting aside the pejorative comment, Dr Porteous, can we try and unpack this in logical terms?”. In context, the judge was seeking to direct the experts to express themselves in a manner that avoided pejorative comments. That intervention by the judge was entirely appropriate.