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Evidence ----------------1

Dealing With Objections To Evidence

- Peter Callaghan SC, Barrister at law.

INTRODUCTIONEvidence is the factual material on which matters in

dispute between litigating or arbitrating parties are decided.Objections to evidence are assertions by one party thatmaterial proferred by another party as evidence ought notbe received by the tribunal hearing the litigation orarbitration.

Arbitrators must handle objections firmly andefficiently lest they become disruptive, if not ultimatelydestructive, of the hearing.

How objections to evidence are dealt with by thetribunal, like most things in forensic life, depends on thecircumstances. Those circumstances involveconsiderations whether the Tribunal is bound by the rulesof evidence;. whether the objection deals with an issue ofform or relevance; whether the objection is taken duringevidence in chief, cross-examination or re-examination;whether it deals with a written statement by a witness, ororal evidence; whether it is to an item of correspondenceor some other document - and so on.

RULES OF EVIDENCEIn New South Wales, the rules of evidence now

mean, mostly, the provisions of the Evidence Act 1995.Justice Giles, now of the Court of Appeal, wrote a

well known article "Dispensing with the Rules ofEvidence" (1992) 7 Aus. Bar Rev. 233, 8 BCL 88, 11 "TheArbitrator" 31 (another article dealing with this area isCampbell, "Principles of Evidence and AdministrativeTribunals" published in "Well and Truly Tried" Campbelland Waller eds, Law Book Co, 1982). In his article, GilesJ dealt with the situation arising in various statutory orconsensual contexts such as s.19(3) of the CommercialArbitration Act 1984 which provides as follows:

"Unless otherwise agreed in writing by the partiesto an arbitration agreement, an arbitrator or umpirein conducting proceedings under an arbitrationagreement is not bound by rules of evidence butmay inform himself or herself in relation to anymatter as the arbitrator or umpire thinks fit."

Another such situation is a reference pursuant to Part72 of the Supreme Court Rules, rule 8(2) ofwhich provides:

"The Referee may conduct the proceedings underthe reference in such a manner as the Referee thinksfit and that the Referee, in conducting proceedingsunder the reference, is not bound by rules ofevidence but may inform himself or herself inrelation to any matter in such a manner as theReferee thinks fit."

As is made clear in that article, despite dispensationfrdm application of the rules of evidence, a dominantoverriding obligation in the tribunal remains, and that isto iafford the parties procedural fairness. Amongst theauthorities cited by his Honour were AustralianBroadcasting Tribunal v Bond (1990) 170 CLR 320 andPochi v Ministerfor Immigration and Ethnic Affairs (1979)36 FLR 482. In the latter case at 492-493 the followingparticularly relevant and helpful passage occurs:

"The Tribunal and the Minister are equally free todisregard formal rules of evidence in receivingmaterial on which facts are to be found, but eachmust bear in mind that 'this assurance ofdesirableflexible procedure does not go so far as to justifyorders without a basis in evidence having rationalprobativeforce', as Hughes Cl said in ConsolidatedEdison Co v National Labour Relations Board(1938) 305 US 297 at 229. To departfrom the rulesof evidence is to put aside a system which iscalculated to produce a body of proof which hasrational probative force, as Evatt 1 pointed out,though in dissenting judgment, in The King v WarPensions Entitlement Appeal Tribunal; Ex parteBott (1933) 50 CLR 228 at 256: 'Some stress hasbeen laid by the present respondents upon theprovision that the Tribunal is not, in the hearing ofappeals, 'bound by any rules ofevidence '. Neitherit is. But this does not mean that all rules ofevidence may be ignored as of no account. Afterall, they represent the attempt made, through manygenerations, to evolve a method of inquiry bestcalculated to prevent error and elicit truth. Notribunal can, without grave danger ofinjustice, setthem on one side and resort to methods of inquirywhich necessarily advantage one party and

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necessarily disadvantage the opposing party. Inother words, although rules of evidence, as such,do not bind, every attempt must be made toadminister 'substantial justice '. That does notmean, of course, that the rules of evidence whichhave been excluded expressly by the statute creepback through a domestic procedural rule. Factscan be fairly found without demanding adherenceto the rules ofevidence. Diplock LJ in R v DeputyIndustrial Injuries Commissioner; Ex parte Moore[1965J 103 456 at 488 said: 'These technical rulesof evidence, however, form no part of the rules ofnatural justice. The requirement that a personexercising quasi-judicial functions must base hisdecision on evidence means no more than that itmust be based upon material which tends logicallyto show the existence or non-existence of factsrelevant to the issue to be determined, or to showthe likelihood or unlikelihood ofthe occurrence ofsome future event the occurrence of which wouldbe relevant. It means that he must not spin a coinor consult an astrologer, but he may take intoaccount any material which, as a matter ofreason,have some probative value in the sense mentionedabove. Ifit is capable ofhaving any probative value,the weight to be attached to it is a matter for aperson to whom Parliament has entrusted theresponsibility ofdeciding the issue.' Lord DenningMR in TA Miller Ltd v Minister of Housing andLocal Government [1968J WLR 992 at 995 saidmuch the same: 'Tribunals are entitled to act onany material which is logically probative, eventhough it is not evidence in a court oflaw' ... Themajority judgments in Bott's case show that theTribunal is entitled to have regard to evidence whichis logically probative whether it is legallyadmissible or not. Starke J said (50 CLR at 249­250): 'The Appeal Tribunal can obtain informationin any way it thinks best, always giving a fairopportunity to any party interested to meet thatinformation; ... it is not bound by any rules ofevidence, and is authorized to act according tosubstantial justice and the merits of the case' ...the relevance of his Honour's judgment is to befound in the procedural flexibility which it assuresto Tribunals which are statutorily freed from therules of evidence, though required to act uponmaterial which is logically probative ..."

In his article, Giles J, at 92, emphasised the importantdistinction between the stages of reception of evidenceand of evaluation of evidence as follows:

"It may be said with some confidence that where aTribunal is not bound by the rules ofevidence, it isnot required to pay regard to legal admissibility ­to rules excluding probative material - whether atthe stage ofreception ofevidence or at the stage ofits evaluation. At the state ofreception ofevidence,the criterion is whether the evidence is relevant or

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probative - not, of course, whether it necessarilyestablishes or controverts the fact orfacts in issuebut whether either alone or taken with otherevidence it tends to do so."

In ABT v Bond at 367 Deane J said:"Ifa statutory tribunal is required to actjudicially,it must act rationally and reasonably. Ofits nature,a duty to act judicially (or in accordance with therequirements of procedural fairness or naturaljustice) excludes the right to decide arbitrarily,irrationally or unreasonably. It requires that regardbe paid to material considerations and thatimmaterial or irrelevant considerations be ignored.It excludes the right to act on preconceivedprejudice or suspicion ... When the process ofdecision-making need not be and is not disclosed,there will be a discernible breach ofsuch a duty ifa decision of fact is unsupported by probativematerial. When the process ofdecision-making isdisclosed, there will be a discernible breach ofdutyiffindings offact upon which a decision is basedare unsupported by probative material and ifinferences of fact upon which such a decision isbased cannot reasonably be drawn from suchfindings offact. Breach ofa duty to act judiciallyconstitutes an error of law which will vitiate thedecision. "

EVIDENCE IN CHIEF

General PrincipleConsistently with sections 55 and 56 of the Evidence

Act all evidence that is relevant in a proceeding isadmissible in the proceeding except to the extent that isexcluded by some other provision in the Act and that theevidence that is relevant in the proceeding is evidence that,if it were accepted, could rationally affect (directly orindirectly) the assessment of the probability of theexistence of a (material) fact in issue of the proceedings.Objections, thus, will be either as to relevance or as to, torepeat a traditional term, ''form''. By ''form'' I think that itis normally meant, now in New South Wales, that one ofthe rules of exclusion in Part 3 of the Evidence Act is saidto have been transgressed.

Written Evidence in ChiefIt is becoming more common for the evidence in

chief of witnesses to be proffered in narrative, written,form either as a statement or an affidavit. From the pointof view of an arbitrator or referee, in the interest ofexpedition, it may be worthwhile making a direction thatevidence be given in that form and also to the effect thatbefore the hearing that each party should supply to theother a written note of that party's objections to the other'sevidence. The direction can sometimes be taken furtherby adding that the parties, through their legal advisers, areto confer and endeavour to resolve those objections asmuch as they can before the hearing. Objections not

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resolved between the parties are appropriate to be dealtwith at the time the statement or affidavit is tendered atthe hearing when the witness is called.

Objections to relevance are sometimes not easy todeal with, particularly in the early stages of the hearingbut some guidance is to be found in the following points:

The material facts in issue are to bedetermined by the pleadings and discussionof relevance should nearly always includereference to the pleadings.What must be guarded against is theadmission of evidence which raises an issueof no direct significance or multiple issues.Ultimately relevance has to be adjudged byappeal to logic and general experience.To minimise laborious debate on relevance itis sometimes helpful for the tribunal to forma tentative view as to relevance such that, forexample, you do not necessarily first ask theobjector to sustain the objection but ask theparty proffering the evidence something like"How do you make this evidence relevant?"or "What is the purpose of this?"Overall, unless material is patently irrelevant,a better guiding approach may be to admitthe material or admit subject to the objection.As provided in s.57 of the Evidence Act thereis now a concept of "provisional relevance"whereunder for example an arbitrator mightadmit evidence the relevance of which isdisputed subject to further evidence beingadmitted at a later stage of the proceeding thatwill demonstrate its relevance.

Sometimes, the admissibility of evidence can be atthe heart of the issue to be decided and in Dubbo BaseHospital v Jones [1979] 1 NSWLR 225 at 227, Moffitt Psaid:

"In rejecting the tender of certain evidence, thelearned trial judge determined, wrongly, as it nowappears, the very question ofsubstance which wasat issue between the parties. Ordinarily, error inrejecting evidence leads to a new trial, so as toafford an opportunity to the respondent to challengeevidence, ruled on appeal to be admissible by cross­examination, or by leading evidence in reply ... Iwould add, with respect, that, in a trial without ajury, the interests offinality and judicial economyusually will be best served by not deciding thequestion at issue upon an objection to evidence.The evidence can be admitted, so that the Courtcan determine the question at issue."

Nevertheless, if material is tendered subject toobjection or provisionally its ultimate evidentiary fateshould be made clear before the conclusion of the hearingand in Technilock (Aust) Pty Ltd vMondami Pty Ltd, SASCFull Court, 6 August 1999, [1999] SASC 320, unreported,Mullighan J warned:

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"I merely wish to make a comment about theproblem with respect to certain documentaryevidence. Rulings should usually be made as toadmissibility ofany evidence, including documents,when objections are taken. Then the parties knowwhere they stand in relation to proofoffacts in issue.What was described to us as a standing objectionto the reception of a particular type of evidenceusually only creates problems. I make no criticismof the learned trial Judge as counsel seemed to becontent with this procedure. However, it is verylikely to create problems at the end of the casebecause the parties will not then be in a position tocall other evidence should the rulings, or any ofthem, be adverse.

Also, it is necessary at the point of tender todetermine the purpose for which the evidence isadmitted. It may be inadmissiblefor some purposesbut admissible for other purposes. In the presentcase, apparently hearsay evidence was admittedwithout the purpose ofthe evidence being identified

Objections as to form will raise exclusionary rulessuch as the hearsay rule and the opinion rule and suchrules are not appropriate to cover in this article.

Oral Evidence in ChiefHere the objections have to be dealt with in the

course of the evidence while the witness is in the witnessbox. Again, objections based on relevance and form willbe taken. Additionally, however, objections may be takento the form of the questions, in other words, objectionsmay be taken to the questions rather than the evidence.

Objections should be taken by the advocates in atimely, unequivocal and polite way e.g. "I object to that"or just "Objection!". The nature of, and grounds for, theobjection, if not obvious, should then be explored in shortdebate with the advocates. The objector should alwaysbe ready to state the basis of the objection.

Remember that the objecting advocate is notnecessarily at ease in objecting. Counsel has the task aspart of his or her advocacy in the proceeding the burdenof striking a balance between keeping out damagingmaterial and avoiding creation of an adverse impressionin the tribunal by taking what might be perceived to beinsignificant objections.

An important practical point to remember is thatoften once the objection is taken the party calling theevidence will not press the matter or alternatively seek togo about that aspect of the evidence in a different way ­encourage the parties to follow such a course of actionbecause it certainly assists the flow of evidence, and itavoids the burden of decision for the tribunal.

Objections to questions in respect of examinationin chief often involve leading questions. The Dictionaryin the Evidence Act provides:

"Leading question means a question asked of awitness that:

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Then, there is the matter of unresponsive answersor volunteered statements by a witness and objection maybe taken to these. Glissan and Tilmouth say of these:

"This is one of those rare categories where eithercounsel may object: that is to say, the questioneror the opponent may seek to keep out the profferedevidence. An answer which does ·not directlyrespond to a question is objectionable asunresponsive. Where the witness' answer goesbeyond the question, the surplusage of the answeris objectionable as volunteered. The rules ofevidence and fairness to witnesses do not requirethe examiner, or the cross-examiner, to accept anystatement the witness cares to make in answer to aquestion which is asked, whether responsive to thequestion or not."

Erroneous QuestionsA question is objectionable if it contains a mis­statement or distortion of evidence or if it is aninaccurate repetition of a witness' previousevidence. Any question which contains this flawmust be objected to immediately, so that the error,mis-statement or distortion is not perpetuated inthe evidence of the transcript."

events or conversations extending over a lengthyperiod oftime are in issue. The aim ofobjection isto keep the evidence clear and avoid generality.

Duplicitous QuestionsA duplicitous question asks two (or more) questionsdisguised as one. It is objectionable for the reasonthat a simple answer (yes/no) will be unclear orpartially inaccurate. Any such question can berephrased by asking two or more separatequestions, each limited to a simple proposition. Onoccasion (but rarely) duplicity can be let go fortactical advantage.

Argumentative QuestionsA question which invites the witness not to giveinformation but to argue with the examiner isobjectionable and should always be objected toeither as argumentative or as comment.

Unresponsive material and volunteered materialwhich is objectionable should be disregarded; there isauthority that such comments can be struck out: R v Shaw(1917) 34 WN 150 at 152.

CROSS-EXAMINATIONLeading questions may be asked in cross­

examination but nevertheless, as for example noted in s.41of the Evidence Act, there are still improper questions.That section provides:

"(1) The court may disallow a question put to awitness in cross-examination, or inform thewitness that it need not be answered, if thequestion is:

the Court gives leave; orthe question relates to a matter introductoryto the witness's evidence; orno objection is made to the question and (the)other party to the proceeding is representedby a lawyer; orthe question relates to a matter that is not indispute; orifthe witness has specialised knowledge basedon the witness's training study or experience- the question is asked for the purpose ofobtaining the witness's opinion about ahypothetical statement offacts being facts inrespect of which evidence has been, or isintended to be, given. "

(c)

(e)

(d)

Under s.37 leading questions must not be put to awitness in examination in chief (or in re-examination)unless:

"(a)(b)

Unintelligible QuestionsAny question is objectionable as to form if it is notexpressed with clarity and in terms that callfor andpermit a precise answer. So any question which ison its face confusing, misleading, vague orambiguous is objectionable on that ground. Suchquestions are frequently encountered where several

(a) directly or indirectly suggests a particularanswer to the question; or

(b) assumes the existence ofa fact the existenceofwhich is in dispute in the proceeding andas to the existence of which the witness hasnot given evidence before the question isasked. "

"General or Unspecific Questions(These) ... call for a long narrative response, (or)... are asked at too general a level. Either isobjectionable. General questions which call forlong, narrative answers deprive the opposing partyofthe opportunity to object, and invite uncontrolledand potentially inadmissible or unresponsiveevidencefrom the witness. There is a broadjudicialdiscretion to disallow such questions ... they do notclearly direct the witness' mind to an issue and socreate an unfairness to the witness.

Normally, advocates are reasonably sensible aboutleading questions e.g. opposing Counsel might say as theevidence comes into a contentious area something like "Iask myfriend not lead on this topic" and also, Counsel forthe party taking the evidence will often voluntarily rephrasethe question (but it should always be remembered that aleading question even if withdrawn and not answered mayhave already had the effect of prompting the witness inrelation to the answer sought).

Glissan and Tilmouth, Advocacy in Practice giveother types of objectionable questions (pp170-172) and Ireproduce some of those:

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(a) misleading; or(b) unduly annoying, harassing,

intimidating, offensive, oppressive orrepetitive.

These areas are appropriate for a cross-examiner todeal with. The first three of them depend on such mattersas the opportunities for, and powers of, observation of thewitness, the witness's accuracy ofrecollection and capacityto communicate and as such, are probably not part of thecredibility rule, strictly viewed. They are, however, matterswhich go very much to the weight of evidence.

(2) Without limiting the matters that the court maytake into account for the purposes of sub­section (1), it is to take into account:(a) any relevant condition or

characteristic ofthe witness, includingage, personality afJd education; and

(b) any mental, intellectual or physicaldisability to which the witness is orappears to be subject. "

RE-EXAMINATIONThe purpose of re-examination is to remove

ambiguities and uncertainties, and to supplement andexplain matters arising out of cross-examination. Leadingquestions may not be put and the overriding restriction onre-examination is that a witness may be questioned onlyabout matters arising out of evidence give by the witnessin cross-examination and other questions may not be putto the witness unless the tribunal gives leave (EvidenceAct s.39).

DOCUMENTSObjections can be taken to documents which are

tendered as evidentiary material on the same basis as tooral (or written) evidence by witnesses. The same rulesofrelevance and exclusion apply. A handy way of avoidingproblems with the tender of documents is to direct theparties to prepare an agreed bundle of documents beforehearing. An agreed bundle of documents is, in any event,a handy tool for the efficient conduct of a hearing.Contentious documents may be included by arrangementand their evidentiary can be argued and ruled on duringthe hearing.

General discretion to limit use ofevidence136. The Court may limit the use to be made of

evidence ifthere is a danger that a particularuse of the evidence might:(a) be unfairly prejudicial to a party; or(b) be misleading or confusing."

RENEWAL OF TENDERA properly persistent advocate may, before the

conclusion of the hearing, renew the tender of evidencewhich has already been rejected unless the advocate iscavilling with an explicit and considered ruling. This ispermissible particularly if the tender is coupled withsubmissions based on other developments in the hearingafter the original tender. A serious tender such as thiswould well deserve a short statement of reasons forrejecting the renewed tender, if rejection were to be itsfate; this would explain to a reviewing Court why you feltthat the evidence should be kept out. Reasons for rulingsas evidence generally are appropriate for only significantmatters. This is another example, like revisiting at theend of the hearing material admitted subject to objection!relevance or provisionally, of tidying up the evidentiaryrecord.

Section 135 was called in aid in O'Brien v Gillespie(1996) 41 NSWLR 549 at 557-8 to sustain the rejectionof opinion evidence which went more to the ultimate issueand to advocacy in support of the party who called theexpert. The judge felt that it would cause or result in anundue waste of time as envisaged in s.135.

GENERAL DISCRETION TO EXCLUDE OR LIMITUSE OF EVIDENCE

Sections 135 and 136 of the Evidence Act provide:"135. The court may refuse to admit evidence if its

probative value is substantially outweighedby the danger that the evidence might:(a) be unfairly prejudicial to a party; or(b) be misleading or confusing; or(c) cause or result in undue waste of

time.

(self-

observation (perception);memory;narration;bias, interest or corruption;prior conviction;prior bad acts (bad character);prior inconsistent statementscontradiction);specific error (contradiction);reputation for veracity.

8.9.

The matters of other objectionable types of questionand unresponsive answers to evidence, as dealt with above,are very much applicable in cross-examination.

Relevance in cross-examination takes on a widerambit because cross-examination as to credit or credibilityis permitted. Under the Evidence Act it is provided thatevidence relevant only to a witness's credibility is notadmissible but that that rule, which is the credibility rule,does not apply to evidence adduced in cross-examinationof a witness if the evidence has substantial probative value(s.102). In a paper which he delivered at a seminarconducted by the NSW Bar Association in 1964, Simos J(as he now is) listed 'nine common techniques ofimpeachment ofwitnesses" (Glass, Seminars on Evidenceat pI64):

1.2.3.4.5.6.7.

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QUESTIONS BY TRIBUNALObjections can of course be made to·questions by

arbitrators or referees who must be sufficiently disciplinedsuch that certainly they form no adverse view of theobjector or his client and that the objection is ruled uponin accordance with law. You may recall that Cole Jdelivered a paper to this Chapter in November 1990"Arbitrators and permissible Questions" 9 The Arbitrator198. In that paper he included various citations two ofwhich I repeat in part to assist your appreciation ofobjections to questions you might ask as arbitrators orreferees:

Lord Denning, Jones vNational Coal Board [1957]2 QB 55 at 63-4:

"In the system of trial which we have evolved inthis country, the judge sits to hear and determinethe issues raised by the parties, not to conduct aninvestigation or examination on behalf of societyat large, as happens, we believe, in some foreigncountries. Even in England, however, a judge isnot a mere umpire to answer the question 'how'sthat?'. His object, above all, is tofind out the truth,and to do justice according to law; and in the dailypursuit ofit the advocate plays an honourable andnecessary role ... If a judge, said Lord Greene,should himself conduct the examination ofwitnesses, 'he, so to speak, descends into the arenaand is liable to have his vision clouded by the dustof conflict' ... Yes, he must keep his visionunclouded. It is all very well to paint justice blind,but she does better without a bandage around hereyes. She should be blind indeed to favour orprejudice, but clear to see which way lies the truth:and the less dust there is about the better. Let theadvocates one after the other put the weights intothe scales - the 'nicely calculated less or more' ­but the judge at the end decides which way thebalance tilts, be it ever so slightly. So firmly is allthis established in our law that the judge is notallowed in a civil dispute to call a witness whomhe thinks might throw some light on the facts. Hemust rest content with the witnesses called by theparties. So also it is for the advocates, each in histurn, to examine the witnesses, and notfor the judgeto take it on himself lest by so doing he appears tofavour one side or the other. And it is for theadvocate to state his case as fairly and strongly ashe can, without undue interruption, lest thesequence ofhis argument be lost. The judge's partin all this is to harken to the evidence, only himselfasking questions ofwitnesses when it is necessaryto clear up any point that has been overlooked orleft obscure; to see that the advocates behavethemselves seemly and keep to the rules laid downby law; to exclude irrelevancies and discouragerepetition; to make sure by wise intervention thathefollows the points that the advocates are makingand can assess their worth; and at the end to make

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up his mind where the truth lies. Ifhe goes beyondthis, he drops the mantle of a judge and assumesthe role of an advocate; and the change does notbecome him well. Lord Chancellor Bacon spokeright when he said that: 'Patience and gravity ofhearing is an essential part ofjustice; and an over­speaking judge is no well-turned cymbal'."

Kirby P in Galea v Galea (19990) 19 NSWLR 263at 281:

"1. The test to be applied is whether the excessivejudicial questioning orperjorative commentshave created a real danger that the trial wasunfair. If so, the judgment must be set aside

2. A distinction is drawn between the limits ofquestioning or comments by a judge whensitting with a jury and when sitting alone in acivil trial. Although there is no relevantdistinction, in principle, between the judicialobligation to ensure a fair trial whatever theconstitution of the court, greater latitude inquestioning and comment will be acceptedwhere a judge is sitting alone. This is becauseit is conventionally inferred that a trainedjudicial officer, who has to find the factshimself or herself, will be more readily ableto correct and allowfor preliminary opinionsformed before the final decision is reached

3. Where a complaint is made of excessivequestioning or inappropriate comment, theappellate court must consider whether suchinterventions indicate that afair trial has beendenied to a litigant because the judge hasclosed his or her mind to further persuasion,moved into counsel's shoes and 'into the perilsofself-persuasion' ...

4. The decision on whether the point ofunfairness has been reached must be made inthe context ofthe whole trial and in the lightof the number, length, terms andcircumstances of the interventions. It isimportant to draw a distinction betweenintervention which suggests that an opinionhas been finally reached which could not bealtered by further evidence or argument andone which is provisional, put forward to testthe evidence and to invite further persuasion

5. It is also relevant to consider the point atwhich the judicial interventions complainedofoccur. A vigorous interruption early in thetrial or in the examination ofa witness may

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6.

be less readily excused than one at a laterstage where it is designed for the legitimateobject ... namely ofpermitting the judge tobetter comprehend the issues and to weighthe evidence of the witness concerned. Bythe same token, the judge does not know whatis in counsel's briefand the strength ofcross­examination may be destroyed ifa judge, in adesire to get to what seems crucial, at anystage prematurely intervenes by puttingquestions ...

The general rules for conduct of a trial andthe general expression of the respectivefunctions of judge and advocate do notchange. But there is no unchangingformulation of them. Thus,... at least inAustralia, in this jurisdiction and in civiltrials, it has become more commonforjudgesto take part than was hitherto conventional.In part this change is a response to the growthoflitigation and the greater pressure ofcourtlists. In part, if reflects an increase inspecialisation ofthe judiciary and in the legalprofession. In part, it arises from a growingappreciation that a silent judge maysometimes occasion an injustice by failing toreveal opinions which the part affected thenhas no opportunity to correct or modify. Inpart, it is simply a reflection ofthe heightenedwillingness ofjudges to take greater controlof proceedings for the avoidance of theinjustices than can sometimes occur fromundue delay or unnecessary prolongation oftrials deriving in partfrom new and differentarrangements for legal aid. The conduct ofcriminal trials, particularly with a jury,remains subject to different and morestringent requirements ... "

spent travelling over ground readily understood bythe arbitrator. If a technical matter arises fordebate, there is nothing wrong with the arbitratorstating his understanding ofthe technical issue, orexpressing a provisional view concerning atechnical matter he is at liberty to indicate that viewto the parties as a provisional view and subject tothe evidence, and invite the parties to lead evidenceor put submissions to him if they wished to seek topersuade him to a different view. Indeed, if anarbitrator is proposing to make a finding basedupon his own technical knowledge, he ought tomake known that view to the parties so as to enablethe party against whom the finding is to be made tocomment upon it ... "

CONCLUSIONBy handling objections well the arbitrator or referee

keeps the hearing on the rails. To get away from themetaphorical, the tribunal in this way assists the advocates'orderly presentation of their cases, keeps the record of thehearing clear, and ensures that all material which may belogically probative is entered into evidence for laterevaluation. 0

Those comments have, however, to be balanced withdue regard to the special role of arbitrators and referees.Cole J's concluding comments included these:

"Some comments are worthwhile concerning theposition ofarbitrators. First, an arbitrator is in asimilar position to a judge sitting without a jury.Second, the point made by Kirby P in para 6 aboveis of importance. Arbitrators or referees are nowexpected to deal with matters before them with anefficiency and concern for length of hearing, andthus costs, which did not always exist in the past.Thirdly, arbitrators are appointed because oftheirparticular area of expertise, coupled with theirassumed impartiality. Being versed in the technicalmatters being discussed, they have anunderstanding of some aspects of evidence whichmembers ofthe judiciary, or the Bar may not have.That expertise is not to be wasted, nor is time to be