Self-Represented Litigant being Cross-Examined Wrongly Prohibited from Taking Notes for Re-examination

In Danis v Oliveri Legal Pty Ltd [2023] NSWSC 89, Elkaim AJ, on an appeal from the Magistrates Court, upheld a ground of appeal based on apprehended (cf actual) bias by the Magistrate ruling that the self-represented plaintiff – who was suing the defendant’s solicitors for recovery of service fees – was prohibited from taking notes which would enable him to respond in re-examination.

The appeal contention of apprehended bias was wider – extending to alleged curtailment of the self-represented plaintiff’s cross-examination of one of the defendants so as to complete the trial within the allotted day – but the affirmative appeal finding was much narrower.

[22] The core of the plaintiff’s current complaints seems to arise from her Honour not giving the plaintiff enough hearing time, in particular curtailing his cross-examination of the second defendant, and a refusal to allow him or a friend, to take notes during the hearing. These complaints fall within grounds 8 and 12 of the amended summons. The relevant part of the latter ground is the asserted failure “to afford each party the opportunity to present their case”.

[23] The matter had been allocated one day for the hearing. Apparently, the Magistrate dealt with another matter for 10 minutes before commencing this hearing at about 10:10am. The plaintiff submitted that a normal hearing day is from 9.30am to 4.30pm. He is wrong. Courts do often sit prior to 10am but this is usually to deal with mentions, directions and other interlocutory matters. Courts very rarely sit after 4pm. At best the plaintiff lost 10 minutes of the hearing day that had been allocated. To that extent his complaint has no merit.

[24] More important is the curtailment of his cross-examination of the second defendant in order to ensure the matter finished by 4pm. The plaintiff said that another half an hour would have been sufficient. Based on his meandering cross-examination of the second defendant, I doubt that would have been correct. Nevertheless, the point is whether her Honour, by shortening the cross-examination, gave rise to an apprehension of bias.

[25] The defendant submitted that the Magistrate had actually attempted to assist the plaintiff rather than impede his progress. For example, her Honour told him that the contract issue was “straightforward”, depending on whether the alleged conversation had occurred or not.

[26] The Local Court is a very busy court dealing with many thousands of matters within the overall constraint of trying to achieve this objective efficiently and within the scope of s 56 of the Civil Procedure Act 2005 (NSW).

[27] Further, to have allowed the plaintiff to have continued his cross-examination would almost certainly have caused the matter to have been part heard. In a busy court the adjourned date would probably not have been the next day, but rather some months ahead.

[28] However, estimates can be unreliable, and cases may need to be part heard. An estimate which is incorrect to the extent of no more than, say two hours, is unfortunate but not unusual. In deciding whether the matter should go part heard, the court might take into account that in providing an estimate, one of the parties was self-represented. Other than perhaps vexatious litigants, self-represented parties generally have little experience in estimating hearing times.

[29] Taken alone, the Magistrate’s decision to have the case completed within the single day, while perhaps harsh, is not, without more, enough to establish apprehended bias.

[30] The action of her Honour, which I think takes the matter “over the line”, is her refusal to allow the plaintiff to take notes while being cross-examined.

[31] The refusal also extended to a friend of the plaintiff who was seated in the court.

[32] The defendants submitted that the refusal to allow notetaking was no more than an expression of her Honour’s control of her court. They said that, in respect of the plaintiff, when he entered the witness box he assumed the status of a witness, not a party. A judicial officer observing a witness would be most concerned that the witness was not diverted by constantly taking notes.

[33] Especially in a case involving the credit of a witness, the fact-finder will take the opportunity to observe the witness. A witness taking notes could well impede this exercise. I think there is some validity in this argument, but the issue must be viewed against the background of the plaintiff being self-represented.

[34] Following his cross-examination, the plaintiff would have been entitled to make some statement to the court by way of re-examination. He did not have a lawyer taking notes as a basis for a re-examination. He would have been reliant entirely on his memory.

[35] Had the Magistrate allowed him to take notes, but then seen that his notetaking was excessive, some limitation could have been imposed. However, in this case, the refusal was at the commencement of the plaintiff’s evidence and was unconditional:

DANIS: Is it possible that I take in notepad so I make notes of some, (unintelligible)?

HH: No.

[36] Regarding the friend, the refusal is less controversial because, at the time, the plaintiff was at the bar table and capable of taking a note himself. The request however was once again treated somewhat stridently. Her Honour obviously noticed a person making a note in the back of the court. She said:

Right, mam, what are you writing down back there, thank you. Now put that pen down and your notebook, thank you mam. People don’t write notes in the courtroom, put it away, thank you. I permit lawyers to write, ah, but otherwise no, thank you.

[37] The question that arises is whether these directions to the plaintiff and the person in the back of the court, combined with her Honour’s curtailment of the cross-examination, gives rise to a sustainable case of apprehended bias.

[38] I think that they do. In my view a fair-minded observer, cognisant of the fact that the plaintiff was self-represented, could reasonably apprehend that her Honour was not bringing an impartial mind to the resolution of the case; but rather was more concerned with completion of the case and not allowing distractions, such as notetaking. If the friend was helping the plaintiff, I can see no reason why that friend should have been prevented from taking a note.

[39] But much more importantly, I think disallowing the plaintiff from taking a note while in the witness box, being cross-examined, would, to the fair-minded observer, raise a real question of her Honour’s impartiality.

[40] My initial impression was that her Honour may have been entitled to the “protection” suggested by Meagher JA in Galea v Galea (1990) 19 NSWLR 263 at 283 :

In my view, if a reasonable disinterested bystander had heard the passage at arms complained of in the present case he would not have reasonably apprehended that the trial judge was prejudiced, he would only have noted that an exceptionally irritating witness had eventually succeeded in irritating the judge.

[41] Unfortunately, because as will be seen below, I think her Honour was correct in her findings about the existence of a contract, but I do not think I can “excuse” the directions given about notetaking here. While the plaintiff may have been “irritating” before entering the witness box, the case had only been running for that day and the witness, not having commenced his evidence, was flatly prevented from taking a note.

[42] I accept that a judicial officer is in charge of the court and that “the procedure to be followed at a trial of any proceedings is to be determined by the Court”: r 2.6 of the Local Court Rules 2009 (NSW). However, I know of no rule that says notes may not be taken. The current LawAccess page on the NSW Government Communities & Justice website, which gives guidance on behaviour in court, states:

You are not allowed to use a mobile phone or record anything in the courtroom but you can take notes during the hearing of your case.

(emphasis added)

While, at an overarching level his Honour’s decision is correct, there is cause for pause. One could well imagine that the note-taking litigant may use that task as a means of circumventing proper attention to answering questions asked in cross-examination. The better view, it is submitted, is that at commencement of cross-examination of the self-represented litigant, they ought be told that they can take notes for re-examination, but they should attend the question and only take any necessary note after they have answered the question, or series of questions. The cross-examiner would need to be involved in establishment of such protocol, by keeping the questions on any particular factual issue or sub-topic to no more than about 10 questions, and indicating as much during cross-examination. The issue, however, is not without procedural difficulty. If a sensible protocol is put in place by the presiding judge or magistrate – other unrelated impugned judicial conduct aside – it is difficult to believe that apprehended bias would be demonstrated.