FEDERAL COURT OF AUSTRALIA
Australian Building and Construction Commissioner v Albert (No 2) [2021] FCA 799
File number(s): QUD 656 of 2019 Judgment of: COLLIER J Date of judgment: 15 July 2021 Catchwords: EVIDENCE – objection taken during course of re-examination – where witness taken to contemporaneous File Note – whether permissible re-examination under s 39 of the Evidence Act 1995 (Cth) (Evidence Act) – whether leading questions within meaning of s 37 Evidence Act – whether permissible re-examination under s 108(1) Evidence Act going to credibility of witness – whether File Note credibility evidence within meaning of s 101A Evidence Act – whether leave ought be granted under s 108(3) Evidence Act – whether leave ought be granted under s 32 Evidence Act. Legislation: Evidence Act 1995 (Cth) ss 32, 32(2)(a), 37(1), 37(3), 39, 102, 108, 108(1), 108(3)
Cases cited: Australian Building and Construction Commissioner v Albert [2021] FCA 168
Cao & Trong (No. 2) [2021] FamCA 369
Drabsch v Switzerland General Insurance Co Ltd [1999] NSWSC 765
HG v R (1999) 197 CLR 414; [1999] HCA 2
Hinton by his tutor Lesley Melba Hinton v Valiotis (No. 7) (unreported, NSW SC, Sperling J, 7 March 1997)
Ku-ring-gai Council v John David Chia (No 8) [2018] NSWLEC 170
R v Clune [1975] VR 723; [1975] VicRp 72
R v Koani (No 2) [2016] QCA 289
R v Spiteri-Ahern; R v Barber; R v Zraika (No 4) [2017] NSWSC 1278
R v Spiteri-Ahern; R v Barber; R v Zraika (No 5) [2017] NSWSC 1279
Wentworth v Rogers (No 10) (1987) 8 NSWLR 398
Wojcic v Incorporated Nominal Defendant [1969] VR 323; [1969] VicRp 40
Odgers S, Uniform Evidence Law (16th edition, Lawbook Co, 2021)
Division: Fair Work Division Registry: Queensland National Practice Area: Employment and Industrial Relations Number of paragraphs: 53 Date of hearing: 2-5, 22 March 2021 Counsel for the Applicant: Mr Y Shariff SC and Mr S Mackie Solicitor for the Applicant: K & L Gates Counsel for the Respondents: Mr CW Dowling SC and Mr CA Massy Solicitor for the Respondents: Hall Payne Lawyers ORDERS
QUD 656 of 2019 BETWEEN: AUSTRALIAN BUILDING AND CONSTRUCTION COMMISSIONER
Applicant
AND: TE ARANUI ALBERT
First Respondent
BLAKE HYNES
Second Respondent
MICHAEL RAVBAR (and another named in the Schedule)
Third Respondent
ORDER MADE BY:
COLLIER J
DATE OF ORDER:
15 JULY 2021
THE COURT ORDERS THAT:
1.The objection taken by the respondents during re-examination of Darren Steen Andrew on 4 March 2021 to questions in respect of and the tender of a File Note, being Annexure “DA12” to the affidavit of Darren Steen Andrew affirmed 25 February 2021, be overruled.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
COLLIER J:
At the hearing on 4 March 2021, during the re-examination of the applicant’s witness, Mr Darren Andrew, an objection was taken by the respondents’ Counsel to the course of the re-examination. Specifically, the respondent objected to…
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Details
- Case
- [2021] FCA 799
- Decision Date
CaseChat Overview and Summary
In the case of Australian Building and Construction Commissioner v Albert (No 2), the applicant, Australian Building and Construction Commissioner, sought to challenge an objection raised by the respondents regarding the re-examination of a witness. The dispute centred around the admissibility of a File Note taken by the witness, Darren Steen Andrew, and its use during re-examination. The court was required to decide whether the proposed re-examination was permissible under the Evidence Act 1995 (Cth) (Evidence Act).
The legal issues before the court were whether the proposed re-examination of the witness and the tender of the File Note was permissible under sections 39, 108(1), 108(3), and 32 of the Evidence Act. The applicant argued that the re-examination was permissible as it related to matters arising from the witness's cross-examination and would address credibility issues raised during the cross-examination. The respondents, however, contended that the proposed course of action would involve impermissibly leading the witness in contravention of section 37(1) of the Evidence Act.
The court considered the provisions of the Evidence Act and relevant case law, particularly the observations of Hamilton J in Drabsch v Switzerland General Insurance Co Ltd and Wilson J in Cao & Trong (No 2). The court concluded that the proposed re-examination was permissible under section 39 of the Evidence Act, as it was not limited to clarifications or explanations of ambiguities but could address issues that may leave an unfavourable impression of the facts. The court also found that the File Note could be tendered as credibility evidence under section 108(1) of the Evidence Act. Consequently, the objection taken by the respondents was overruled.
In summary, the court held that the proposed re-examination of the witness and the tender of the File Note were permissible under the Evidence Act, and the objection raised by the respondents was overruled. This decision allowed the applicant to proceed with the proposed course of action during the re-examination of the witness.
The legal issues before the court were whether the proposed re-examination of the witness and the tender of the File Note was permissible under sections 39, 108(1), 108(3), and 32 of the Evidence Act. The applicant argued that the re-examination was permissible as it related to matters arising from the witness's cross-examination and would address credibility issues raised during the cross-examination. The respondents, however, contended that the proposed course of action would involve impermissibly leading the witness in contravention of section 37(1) of the Evidence Act.
The court considered the provisions of the Evidence Act and relevant case law, particularly the observations of Hamilton J in Drabsch v Switzerland General Insurance Co Ltd and Wilson J in Cao & Trong (No 2). The court concluded that the proposed re-examination was permissible under section 39 of the Evidence Act, as it was not limited to clarifications or explanations of ambiguities but could address issues that may leave an unfavourable impression of the facts. The court also found that the File Note could be tendered as credibility evidence under section 108(1) of the Evidence Act. Consequently, the objection taken by the respondents was overruled.
In summary, the court held that the proposed re-examination of the witness and the tender of the File Note were permissible under the Evidence Act, and the objection raised by the respondents was overruled. This decision allowed the applicant to proceed with the proposed course of action during the re-examination of the witness.
Orders
Orders of the court
1. The objection taken by the respondents during re-examination of Darren Steen Andrew on 4 March 2021 to questions in respect of and the tender of a File Note, being Annexure “DA12” to the affidavit of Darren Steen Andrew affirmed 25 February 2021, be overruled.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
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Evidence
Evidence Before The Court
The applicant contended that the purpose of taking Mr Andrew to the File Note was to ask him to identify the File Note as being one made by him in the hours after events that occurred in the late evening and early morning of 23 to 24 July 2018 – events which were relevant to the issues for determination in the substantive proceeding. In summary, the applicant proposed to:(a)have Mr Andrew read and identify the File Note;(b)ask Mr Andrew questions in re-examination which would be answered by reference to matters contained in the File Note;(c)tender the File Note as part of Mr Andrew’s evidence pursuant to s 108(1) of the Evidence Act 1995 (Cth) (Evidence Act), or alternatively, pursuant to s 108(3) of the Evidence Act; and(d)if necessary, seek to revive Mr Andrew’s memory from the File Note and to read out relevant passages of the File Note pursuant to s 32 (1) and s 32 (3) of the Evidence Act. The applicant further submitted that its proposal with respect to the File Note ought be allowed because:(1)It was permissible re-examination under s 39 of the Evidence Act.(2)Assuming that Mr Andrew identified the File Note, the course proposed by the applicant was permissible re-examination under s 108(1) of the Evidence Act going to the credibility of Mr Andrew’s evidence. The File Note could be tendered on that basis. (3)If it is necessary, which the applicant submitted it was not, then, in the alternative to s 108(1) of the Evidence Act, leave ought be granted for the re-examination to continue and for the File Note to be tendered under s 108(3) of the Act, as it was a prior consistent statement and it had been suggested during cross-examination, and presumably would be suggested in closing submissions either directly or by implication, that Mr Andrew’s evidence had been re-constructed, was the result of suggestions, or had been fabricated.(4)In the alternative, an application for leave under s 32(1) of the Evidence Act ought be granted because the cross-examination of Mr Andrew on particular topics showed that he was now unable to recall certain facts, and the File Note was a contemporaneous note of the type contemplated by s 32 of the Act from which he is permitted to revive his memory. The respondents’ overall position was that, having regard to the way in which the applicant had explained its proposed course, such a course was not permissible, unless the Court granted leave pursuant to s 32 of the Evidence Act, as the course proposed by the applicant involved impermissibly leading the witness in contravention of s 37(1) of the Evidence Act. On 5 March 2021, I made orders requiring the parties to exchange written submissions with respect to this objection and related issues. These submissions were further articulated by way of oral argument before me on 22 March 2021. Before turning to issues raised by the present objection I note by way of background that in Australian Building and Construction Commissioner v Albert [2021] FCA 168 (interlocutory judgment) I ruled that evidence in the File Note and equivalent evidence of other witnesses was admissible as evidence in chief. I also note that, notwithstanding this ruling, the applicant chose not to press that evidence as evidence in chief.CONSIDERATION
Decision
Reasons for decision
Before turning to issues raised by the present objection I note by way of background that in Australian Building and Construction Commissioner v Albert [2021] FCA 168 (interlocutory judgment) I ruled that evidence in the File Note and equivalent evidence of other witnesses was admissible as evidence in chief. I also note that, notwithstanding this ruling, the applicant chose not to press that evidence as evidence in chief.CONSIDERATION Part 2.1 Division 4 of the Evidence Act deals with examination in chief and re-examination. In particular, s 39 of the Evidence Act provides:Limits on re-examinationOn re-examination (a) a witness may be questioned about matters arising out of evidence given by the witness in cross-examination;(b) other questions may not be put to the witness unless the court gives leave. The ambit of s 39 was discussed by Hamilton J in Drabsch v Switzerland General Insurance Co Ltd [1999] NSWSC 765 at [4]-[5], as follows:4… It seems to have been the intention of the legislation to repeat the common law as to re-examination: see the Report of the Australian Law Reform Commission on Evidence, ALRC 26, Vol 1, pars 628-9; Odgers' Uniform Evidence Law (3rd ed, 1998) [39.3]. The section seeks to achieve this end by employing the expression "matters arising out of evidence given by the witness in cross examination".5 Authorities have made plain that the re-examiner is not limited solely to eliciting clarifications or giving explanations where there is an ambiguity, but is allowed:“... wherever an answer in cross examination would, unless supplemented or explained, leave the court with an impression of the facts, whether facts in issue or facts relating to credibility, which is capable of being construed unfavourably to the party calling the witness and which represents a distortion or incomplete account of the truth as the witness is able to present it.” These observations of Hamilton J were more recently adopted by Wilson J in Cao & Trong (No 2) [2021] FamCA 369 at [12]-[21], as follows:17.The Court of Appeal of New South Wales in Wentworth v Rogers (No. 10) made observations about the common law rule of evidence relating to re-examination. It was held as follows by the Court of Appeal –It is well established that it is proper in re-examination to elicit from the witness facts which explain away or qualify facts which have been elicited in cross-examination which are prejudicial to the witness' credit or from which prejudicial inferences could be drawn: R v Phair [1986] 1 Qd R 136 at 137; Wojcic v Incorporated Nominal Defendant [1969] VicRp 40; [1969] VR 323 at 326. The rule marches in tandem with the related principle that when a witness has been cross-examined as to part of a written or oral statement made by him, examining counsel becomes entitled to prove in re-examination such other parts of the statement as are necessary to explain or qualify it; Meredith v Innes [1930] NSWStRp 84; (1930) 31 SR (NSW) 104 at 112; 48 WN 5 at 6-7.18. The Evidence Act commenced operation in 1995.19.In Drabsch v Switzerland General Insurance Co Ltd Hamilton J made observations about re-examination. It is as well to record them. His Honour said the following –5.Authorities have made plain that the re-examiner is not limited solely to eliciting clarifications or giving explanations where there is an ambiguity, but is allowed:“... wherever an answer in cross-examination would, unless supplemented or explained, leave the court with an impression of the facts, whether facts in issue or facts relating to credibility, which is capable of being construed unfavourably to the party calling the witness and which represents a distortion or incomplete account of the truth as the witness is able to present it:”Cross on Evidence (Aust ed, 1996) par 17,605; Wojcic v Incorporated Nominal Defendant [1969] VicRp 40; [1969] VR 323 at 326; Wentworth v Rogers [No 10] (1987) 8 NSWLR 389 at 409; and see 6 Wigmore on Evidence (Chadbourn Rev) s1896. It has been specifically decided by the Full Court in South Australia that these matters extend to subjective considerations going to the mental state of the witness at the time of answer: Reg v Lavery (No 2) (1979) 20 SASR 430 at 435 and 451, Reg v Szach (1980) 23 SASR 504 at 511-9; 566-70; 587-8. In the Evidence Act 1995 this broad approach is in my view adopted by the wording of s 39(1) and confirmed by s 108(1).6.There have been various statements in the past as to limitations upon re-examination. It has been stated that the re-examiner may not cross-examine his own witness: Phipson on Evidence (14th ed, 1990) par 12-28. This is no doubt true if it means that, having obtained an answer from a proper question in re-examination, the re-examiner attempts, particularly if by leading questions, to deflect the witness from that answer or get him to modify it. It is also sometimes said that in re-examination one cannot get the witness to alter or reverse an answer, or a clear answer, given in cross-examination, but I can find no authority for a proposition in those terms.7.Whilst modern authority rejects the proposition that re-examination is limited to clarifications and explanations of ambiguities, it may be that it is correct that, where the question in re-examination is put upon the basis of making a necessary clarification or explanation, and it appears to the Court that there is no lack of clarity or ambiguity, then the question may be rejected, particularly if the result of allowing it may well be that the Judge would feel obliged in his or her discretion to allow considerable further cross-examination as a result of the answers: see Hadid v Australis Media Ltd SCNSW Sperling J 5 November 1996 unreported; Shipp v Cameron (No 2) SCNSW Einstein J 13 October 1997 unreported.20.The decision of Kenny J in International Relief and Development Inc v Ladu was more concerned with fairness considerations of permitting counsel to have leave to confer with a witness prior to re-examination, a matter quite different to the issue for my consideration on this application.21.From the authorities surveyed above, the most expansive examination on the issue of re-examination under s 39 of the Evidence Act was given by Hamilton J. Of course, as a matter of doctrine of precedent I am not bound to follow or apply that decision. However I take his Honour’s exposition of principle to be scholarly and that I should apply it.
Ratio Decidendi
Legal Principle Established
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