I really didn’t mention much of Heydon J’s separate reasons. And for good reason. Besides the disagreement on the proper orders, they don’t really add any to the law. But they do provide some relatively well written (though lengthy) meanderings on ‘pet peeves’ of Heydon J, which read like a CPD entitled ‘Advocacy: Tips for Young Players’. I thought I’d reproduce the relevant paragraphs because it gives an interesting window into what’s happening inside Heydon J’s head. There were three main topics: evidence in chief; the meaning of ‘forum shopping’; and the problem with specialised tribunals. (Warning: they are lengthy.)
1. First, on the importance of evidence in chief (at [117]):
It would be wrong to do what the prosecution in this Court did not do – to treat the fact that Mr Kirk was called by the prosecution as a mere technicality of which the appellants have been able to take an adventitious and unmeritorious advantage at a late stage in these proceedings. The credibility of a witness in the position of Mr Kirk in relation to the defence under s 53 of the Occupational Health and Safety Act 1983 (NSW) ("the OH&S Act") is capable of being affected by the manner in which the testimony is elicited. The law grants considerable power to a cross-examiner to employ leading questions and otherwise to operate free from some of the constraints on an advocate examining in chief. It does so for particular reasons. In New South Wales at least, normally in a criminal case an advocate cross-examining an accused person will have had no contact with the witness being cross-examined before the trial, and will have no instructions about what that witness will say, apart from whatever the witness said to investigating officials acting on behalf of the State or to other persons to be called as witnesses in the prosecution case or in documents to be tendered in that case. But a cross-examiner's ordinary powers are, in a practical sense, much diminished when the witness being cross-examined is the client of the advocate conducting the cross-examination. The cross-examiner who persistently asks leading questions of a witness in total sympathy with the interests of the cross-examiner's client is employing a radically flawed technique. The technique is the more flawed when the witness is not merely in total sympathy with the client, but actually is the client. For an inevitable appearance of collusion between an advocate and a client who had many opportunities for pre-trial conferences is suggested by the persistent use of leading questions in these circumstances. It is an appearance which is likely to be ineradicable, and which is likely to cause the value of the evidence to be severely discounted. This risk is avoided if the client is giving the evidence in chief rather than under cross-examination, for the client's advocate is severely restricted in the capacity to ask leading questions in chief. Judging the credibility of a witness in the box can depend on the trier of fact making an assessment of that witness's whole character. It is a process assisted by knowing as much about the witness's character as possible. The credibility of testimony is often enhanced, and the assessment of credibility is assisted, when the testimony is given in answer to non-leading questions. Testimony given in answer to non-leading questions is the witness's own testimony, resting on the witness's own perceptions, and moulded by the witness's own values. It is not something created by the narrow, specific and carefully crafted leading questions of an advocate concerned to shield the witness's character as much as possible. On some issues in the trial in this case the prosecution bore the legal burden of proof, but on the vital s 53 issue Mr Kirk and the Kirk company bore the legal burden of proof. It would have been asking too much of human nature to have expected counsel for the prosecution to have elicited evidence from Mr Kirk on issues exclusive to the s 53 defence. That task thus lay with counsel for Mr Kirk and the Kirk company. It is a task one would expect to have been more satisfactorily accomplished from the defendants' point of view if it were done by an advocate not able to make extensive use of leading questions.
2. Secondly, if you ever wanted the legal definition of ‘forum shopping’ (at [121]):
One ground which the Full Bench assigned for not making a wider grant of leave was that the appellants' first application to the Court of Appeal, which caused the delay in the application to the Full Bench, was "forum shopping". That is an expression which the Full Bench used several times and which it borrowed from the submissions of counsel for the prosecution. The expression "forum shopping" is commonly used to describe the conduct of litigants who seek to choose among different jurisdictions, whether the courts of different nations (for example, France or New Zealand) or different states or provinces (for example, New South Wales or Victoria) or different law-districts (for example, England or Scotland) or, in a federation, a federal court exercising federal jurisdiction rather than a State court exercising State jurisdiction (for example, the Federal Court of Australia or a State court). It seems inappropriate so to describe the conduct of litigants who, aggrieved by the decision of a court of New South Wales, attempted to remedy their grievance by making an application to the highest courts in New South Wales, the Court of Appeal and the Court of Criminal Appeal. Provided there was not in place any valid legislation precluding that application, the course does not seem to be correctly describable as "forum shopping". To describe it as "forum shopping" is to treat the Court of Appeal as if it were akin to a weak early feudal monarch whose writ does not run to the demesne of a powerful territorial magnate, and to treat the Full Bench as that magnate. It is to treat the Full Bench as if it were the only proper forum, and to treat the Court of Appeal as a court which, if it has jurisdiction at all, is a most unworthy receptacle of it. It approaches an assertion of exclusive dominion over the fields within its jurisdiction. A court below the Court of Appeal in the appellate hierarchy of New South Wales courts is not in a different "forum" from the Court of Appeal. Nor is a court controllable by that Court through orders in the nature of prohibition, mandamus and certiorari on grounds of jurisdictional error.
…
The Full Bench thus appears to have operated, or accepted submissions which operated, under a misconception about the structure of the courts which sit in New South Wales. For just as this Court sits at the pinnacle of a single integrated system of courts, the Court of Appeal (or, depending on the subject-matter, the Court of Criminal Appeal) sits at the pinnacle of the system of courts in New South Wales. This misconception in relation to "forum shopping" underlies the expressions that the Full Bench employed when it spoke of the appellants' attack on s 179 of the IR Act as "merely a device to circumvent the likelihood of the Court of Appeal declining to hear the [appellants] from the outset" and when it said the appellants "felt" that "they had a better chance in another forum." The Full Bench also gave as a ground for its refusal to extend time the "settled" nature of the case law in the Industrial Court applied by the trial judge. Whether settled in that Court or not, an attempt to have a court with power to control the Industrial Court examine its merits should not have been the subject of pejorative language. The attempt was not appropriately described as "forum shopping", or as tainted by the use of "devices", or as an appeal to "chances".
3. And finally, a critique of specialised tribunals ,which is really a thinly veiled twist of the knife to the Industrial Court (at [122]):
Our legal system has often had to balance the advantages of creating specialisation over the disadvantages of doing so. It is commonly thought better, for example, that allegations of crimes be tried by judges expert in criminal law and procedure. The same is true, mutatis mutandis, of company work, bankruptcy, personal injury claims, planning law and many other categories of litigation. Sometimes the legislature elects to create separate courts for the particular litigation. Sometimes it creates separate divisions within a court. Sometimes it leaves it to the courts themselves to create appropriate lists, the precise nature of which may readily be changed from time to time. A writer in the late 20th century said:
"History teaches us to be suspicious of specialist courts and tribunals of all descriptions. They are usually established precisely because proceedings conducted in accordance with normal judicial standards of fairness are not producing the outcomes that the government wants. From the Court of Star Chamber to the multitude of military courts and revolutionary tribunals in our own century, this lesson has been repeated time and time again."However that may be, the appellants referred in submissions to the danger of conferring jurisdiction to hear criminal proceedings on courts the practitioners in which are unfamiliar with all the relevant rules. There is a related danger in that course in that the courts on which the jurisdiction has been conferred, while in some sense specialist, are not familiar with all the relevant rules. Thus a major difficulty in setting up a particular court, like the Industrial Court, to deal with specific categories of work, one of which is a criminal jurisdiction in relation to a very important matter like industrial safety, is that the separate court tends to lose touch with the traditions, standards and mores of the wider profession and judiciary. It thus forgets fundamental matters like the incapacity of the prosecution to call the accused as a witness even if the accused consents. Another difficulty in setting up specialist courts is that they tend to become over-enthusiastic about vindicating the purposes for which they were set up. Medical students usually detect in themselves at a particular time symptoms of the diseases they happen to be studying at that time. Academic lawyers interested in a particular doctrine can too often see it as almost universally operative. So too courts set up for the purpose of dealing with a particular mischief can tend to exalt that purpose above all other considerations, and pursue it in too absolute a way. They tend to feel that they are not fulfilling their duty unless all, or almost all, complaints that that mischief has arisen are accepted. Courts which are "preoccupied with special problems", like tribunals or administrative bodies of that kind, are "likely to develop distorted positions." … It may be that something like this underlay the process by which the Industrial Court adopted the construction of ss 15, 16 and 53 of the OH&S Act which the majority have rejected, and failed to notice the closely related difficulty of the unsatisfactory way the charges were pleaded.
Ouch, Heydon J, a simple “appeal allowed” would have sufficed.
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