Commonwealth Bank v Iinvest (No 5)

[2017] NSWSC 438

Supreme Court

New South Wales

Medium Neutral Citation:	Commonwealth Bank v Iinvest (No 5) [2017] NSWSC 438
Hearing dates:	6 February 2017
Date of orders:	06 February 2017
Decision date:	06 February 2017
Jurisdiction:	Common Law
Before:	Campbell J
Decision:	Direct counsel to ask the questions of Mr Storie in this crossexamination in a nonleading fashion.
Catchwords:	CIVIL PROCEDURE – counsel cross-examining his instructing solicitor – whether leading questions are permitted in cross-examination in consideration of s 42 of the Evidence Act 1995 (NSW) – whether the witness has an interest consistent with an interest of the cross-examiner – whether the witness is sympathetic to the party conducting the cross-examination – held that leading questions are to be disallowed in cross-examination EVIDENCE – cross-examination – leading questions in cross-examination – the Court’s discretion to disallow leading questions in cross-examination – consideration of s 42 of the Evidence Act 1995 (NSW) – held that leading questions are to be disallowed
Legislation Cited:	Evidence Act 1995 (NSW) Uniform Civil Procedure Rules 2005 (NSW)
Category:	Procedural and other rulings
Parties:	James Harker-Mortlock (Applicant) J H M Pty Ltd (Second Applicant)   Iinvest Pty Ltd (in liquidation) (First Respondent) Commonwealth Bank of Australia (Second Respondent)
Representation:	Counsel: P King (Applicant) Ms Cheeseman SC with J White (Respondent) Solicitors: Roderick Alexander Ian Storie (Applicant) Campbell Hudson (Respondent)
File Number(s):	2013/108514

Ex tempore judgment - Revised

1. I am conducting a voir dire into whether a second report of Mr Firth, a chartered accountant, prepared on 3 February 2017, is a “supplementary report” within the meaning of the Rules and therefore admissible as an exception to the exclusionary rules which make it impermissible to tender experts’ reports unless they are served in accordance with directions previously made by the Court.

2. In this case Davies J, as the possession list judge, made orders back in 2015 for the service of an expert's report. Mr White, who objects to the tender of the second report, has read part of two affidavits of Mr Roderick Storie, Mr Harker‑Mortlock's solicitor, in support of his objection to the admission of the report. Mr King of counsel has asked to cross‑examine Mr Storie.

3. Mr White has applied for the disallowance of leading questions by Mr King to Mr Storie and he has called in aid the considerations set out in s 42(2)(b) and (c) of the Evidence Act 1995 (NSW).

4. There is no doubt, on one basis, that the instructing solicitor for a party has an “interes”t, so far as lawyers have “interests” in the case, consistent with the “interest” of the cross‑examiner.  Moreover, the witness is likely to be sympathetic to his own plight.  However, quite properly, Mr White has not sought to impugn in any way Mr Storie's reputation or his fitness or propriety to be an officer of this Court. The argument is that it would be best, if there is to be cross‑examination, that I hear it from the horse's mouth, as it were, rather than in a leading fashion.

5. I accept Mr King's argument that Mr Storie is unlikely to be swayed by leading questions and that there is no reason for me to suppose anything other than that he would be entirely and robustly honest in the evidence that he gives in answer to the questions asked.  Even so, I think there is a question of appearance in matters like this and it is probably better, in terms of the appearance of the thing, if non‑leading questions were asked and doubtless, although this is neither here nor there, such an approach may enhance the persuasiveness of the answers that are in fact elicited.

6. I accede to Mr White's application that leading questions be disallowed and I would ask Mr King to ask the questions of Mr Storie in this cross‑examination in a non‑leading fashion.

**********

Decision last updated: 19 April 2017