The Judge intervened to remind Counsel that these matters had been previously
covered and that Rongotai’s cross-examination was achieving nothing of relevance
before the specialist Tribunal. The adjournment, they say, was in response to
Counsel’s questions and the Tribunal, given the apparent failure to get its position
across, took an adjournment and returned telling Counsel what was expected from
questions in cross-examination. This, the lessees say, was reasonable.
[106] It is not objectionable that a Judge controls the extent of cross-examination, if
it is repetitive45 or irrelevant. However, the way in which a Judge intervenes should
avoid rudeness, be courteous and civil.46 The manner in which the Judge dismissed
the reference to the case raised by Rongotai’s Counsel may not have been polite or
courteous, but I am unable to assess whether the Tribunal was being unduly harsh or
injudicious in requiring Counsel to keep cross-examination relevant and to the point.
[107] Mr Sullivan also submits that all Counsel, from the most experienced QC to
junior Counsel were given similar treatment across the four rating objections hearings.
This, Counsel say, is demonstrated in the transcript where the Tribunal actively
engages with all Counsel, not just Rongotai, and that all Counsel were subjected to the
Tribunal’s strong questioning. They submit it was a robust style of hearing, with a
Judge who had a “very interventionist style”, even for a Commission of Inquiry. Mr
Sullivan submits that the Judge adopted the socratic method during all submissions
and took over sections of questions of Counsel regularly.
[108] Ms McKechnie urges the Court to consider the judicial conduct of the Tribunal
in the round, noting that the Tribunal did not spare Bunnings from criticism during the
hearing, nor did it favour the opposing Counsel. Three examples were identified. The
45
Section 85(1) Evidence Act 2006 allows a Judge to disallow any question the Judge considers
“needlessly repetitive.” It encompasses judicial controls on witness examination … to ensure the
just and orderly conduct of trials and the rational ascertainment of facts” as contained in s 6(a):
see Elisabeth McDonald and Scott Optican (eds) Mahoney on Evidence Act and Analysis (4th ed,
Thomson Reuters, Wellington, 2018) at [EV85.03].
46
Shimon Shetreet and Sophie Turenne Judges on Trial: The independence and accountability of
the English judiciary (2nd ed, Cambridge University Press, Cambridge, 2013) at [5.25]. The
authors canvass cases on judicial rudeness. In England, the nature of the rudeness by the Bench
has been considered by the Courts, particularly in criminal trials. In R v Ptohopoulos (1968) Crim
LR 52, a rude interruption by the Judge to defence Counsel on the basis he is wasting time with
irrelevant questions to prosecution witnesses may not justify quashing a conviction. The question
is whether the Judge’s conduct disparaged Counsel, not his case: see R v Hircock [1970] 1 QB
67.