Callaghan, B. v Federated Clerks Union of Australia

[1987] FCA 304

c

CATCHWORDS

EVIDENCE - witness - whether court has power to recall.

BERNADETTE CALLAGHAN h OTHERS v FEDERATED CLERKS UNION OF

AUSTRALIA AND OTHERS

No. Q13 of 1986

NO. Q7 Of 1986

Gray J

26th March 1987

Brisbane

IN THE FEDERAL COURT OF AUSTRALIA 1 1

QUEENSLAND DISTRICT REGISTRY ) No. Q13 of 1986

) No. Q7 of 1986

INDUSTRIAL DIVISION 1

B E T W E E N :

BERNADETTE CALLAGHAN 6 OTHERS

Applicants

AND

FEDERATED CLERKS UNION OF

AUSTRALIA AND OTHERS

Respondents

JUDGE :	GRAY J.
DATE :	2 6 ~ ~ m R c n 1987

EX TEMPORE REASONS FOR JUDGMENT

In this matter the applicant's case has been closed, and

those respondents who have appeared at the trial have embarked upon their evidence. Part of the evidence led on behalf of the

applicants was evidence from a witness Bernadette Ann Callaghan.

She was cross-examined by Dr. Jessup of counsel for the

respondents. Dr. Jessup now seeks to have Ms. Callaghan recalled for further cross-examination by him. Mr. Hampson P.C., who

appears with Mr. Amerena for the applicants, objects to this

course of action.

Initially, Mr. Hampson suggested that the court had no

power at all to recall a witness. It does appear to be well

established that, in a civil case, a judge may not call a witness

I t - 2 -

not previously called, unless the parties consent - see In re

Enoch and Zaretsky, Bock 6 Co.'s Arbitration, [1910], 1 K.B. 327.

There does, however, appear to be an exception to that rule in a

case in which the witness has already been called and is recalled

by the judge. The existence of the exception is well supported

by two authorities.

In Fallon v. Calvert 119601 2 Q.B. 201, the Court of

Appeal dealt with a case in which an official referee had

directed the defendant to attend before him. At p. 205 in the

judgment of the Court of Appeal, after dealing with the rule that

it is not open to the court to call a witness of its own motion

without the consent of the parties, Pearce	L.J.,	(as he then was)
said:

"In the present case, however, the defendant has already

given evidence, and the Official Referee is conducting what amounts to a continuation of the trial, which has not yet been concluded by a final judgment. In general, a judge has power to recall a witness who has given evidence, though he would not have had power to call him initially. In Rex v. Seigle [(1911) 6 Cr.App.R. 106, C.C.A.] Hamilton J. said [Ibi . 1071: "A prisoner, when once he has made himself a witness, is liable, like any

other witness, to be recalled for the purpose of

answering such questions as the judge permits to be put

to him." Taylor on Evidence, 12th ed., para. 1477,

states: 'The judge has always a discretionary power,

with which the court above is very unwilling to

interfere, of recalling witnesses at any stage of the

trial, and putting such questions to them as the

exigencies of justice require." This passage was

approved by the Court of Criminal Appeal in Rex v.

Sullivan [[l9231 1 K.B. 47, C.C.A.] And the p r i n i

so far as civil cases are concerned, has never been

doubted. If a party chooses to give evidence, he

submits himself to the court to be asked all such

questions as justice requires until the case is

concluded."

- 3 -

That judgment was followed by the Full Court of the

Supreme Court of Queensland in Burns v. Joseph [l9691 Qd.R. 130.

In that case, one of the grounds	of appeal, set out	at page 132,
was in the following terms:

"'8. The learned trial judge acted irregularly and

without power and if he exercised a discretion he did

not do so on correct judicial principles in re-calling a

witness (viz., the plaintiff) of his own motion in the

face of an objection by Counsel for the defendant and

during the final address of Counsel for the defendant,

more particularly as the learned trial judge had

previously permitted Counsel for the plaintiff to recall

and further examine the plaintiff."

As to that ground of appeal, at p. 135, Hart J. said:

I ' do not think that ground 8 is valid. His Honour did

recall the Dlaintiff himself durina Mr. Rneioo's ~ ~,r,r ~

address, but- Fallon v. Calvert [l9661 2 Q.B. 201,

particularly at D . 205, makes it clear that his Honour

had ample power io recall a witness."

At p. 144, W.B. Campbell J. said:

"In my opinion ground 8 also fails in that,

although a judge has no power to call a witness without

the consent of the parties, he may, in general, recall a

witness who has given evidence, though he would not have

had power to call him initially: Fallon v. Calvert

[l9601 2 Q.B. 201 at p. 205. The issue of illegality

having been raised by the defendant's counsel during his

address, I consider that it was quite proper for the

learned trial judge to recall the plaintiff in order to

question him as to the existence of facts which may have

enabled His Honour to pronounce on the leaalitv of the

LUCaS J. agreed with the reasons	of both Hart	J. and W.B.
Canpbell J.

Those cases establish clearly the power of the court to

recall a witness who has already given evidence. Argument was

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then directed as to	the circumstances in which such	a recall
ought to be made.

Mr. Hampson put it that the facts of the cases

supporting the principle that the court has power to recall a

witness were exceptional. In Pallon v. Calvert, the issue

concerned a continuing proceeding before an official referee. In

Burns v. Joseph, there was the late raising of a defence of

illegality, as to which no evidence at all had been given.In my

view, there is a danger in attempting to distil1 from the facts

of individual cases the manner in which a discretionary power,

such as the present one, should be exercised. True it is that

the power is to be exercised in the interests of justice, but the

circumstances of each case will vary, so that it is not possible

to lay down particular circumstances in which the principle will

or will not operate.

In the present case, the matters about which Dr. Jessup

desires to question Ms. Callaghan arise largely from evidence

given subsequently to Ms. Callaghan leaving the witness box. In

particular, after Ms. Callaghan had given evidence, the

applicants filed in court, and relied upon, an affidavit of

Therese Pearce. Ms. Pearce was cross-examined upon that

affidavit, and it is said on behalf of the respondents that it

became apparent, in the course of her cross-examination, that she

was unable to assist the court in some matters. In consequence

of that, before he opened the case for the respondents, Dr.

Jessup did indicate to the court that there was	a matter on which
he intended to seek to recall Ms. Callaghan.

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There can be little doubt that if Hs. Callaghan is

recalled, the matters on which Dr. Jessup intends to examine go

to issues which have been raised in this case, and which, to some

extent, have been raised by evidence given after that of Ms.

Callaghan. In these circumstances, it seems to me that the need

to do justice between the parties requires that I should permit

Ms. Callaghan to be recalled, and that I should permit Dr. Jessup

further to cross-examine her about the matters that	he has
indicated.

Such a recall and further cross-examination will, of

course, be subject to the right of counsel for the applicants to

re-examine. If counsel for the applicants see the need to apply

to re-open their case, and call further evidence in consequence of the recall, no doubt due consideration will be given to that.

I therefore direct that Hs. Callaghan be recalled for

further cross-examination.

I certify that this and the four (4)

preceding pages are a true and accurate

copy of the Reasons for Judgment herein of

The Hon Hr Justice Gray

Associate Mehv;e

Dated: 26th March 1987

For the Applicants:

Hr. C.E.K. Hampson Q.C. with Hr. H.P. Amerena

Instructing solicitors: Callaghan and

Reidy

For the Respondent:

Dr. C.N. Jessup

Instructing solicitors: Hullins and Hullins