Emubank Pty Ld v Westpac Banking Corp

[1991] FCA 62

No. VG 306 of 1989

BETWEEN l

Applicant

- and -

Respondent

Melbourne

m:  7 February 1991

The applicant eeeka a direction that the parties exchange witneee etatemente and that evidence-in-chief at the trial be given by the tendering of euch etatemente. It would follow that evidence-in-chief would not be given viva voce in the ordinary way. Such a direction is accepted by the reepondent acl to expert witneee but oppoaed ae to lay witneeeee.

The applicant aeeke to recover loeeee euffered in reepect of loancl borrowed in foreign currency from the reepondent bank. The loan wae initially taken out in Swiee france following two diclcucleione between representatives of the applicant and officers of the bank in June 1984.	adduce evidence of diecueeione shortly prior to thie time	It also appears that ae part of its case the reepondent will
which representatives of the applicant had with other banks. It ie maid that evidence of theee discussions will show that the applicant wae "shopping around" for a foreign currency loan and that thie would be relevant to the applicant's state of knowledge and expertise about such mattere.
It appears there will also be evidence ae to subsequent diecueeione about the management of the loan and conversion into other foreign currencies. But at the heart of thie caee there will be a fundamental dispute as to what was said at the two convereatione which took place in June 1984.
I am told that the applicant propoees to call five lay witneeeee and the respondent 16 lay witnesses. It is said that if the trial ie conducted in the ordinary way it will take approximately 15 hearing daye.
Practice
It is accepted by the parties that I have power to make the direction eought. There ie no relevant rule or practice direction.
Form aome years in the commercial list of the Supreme Court of Victoria a eimilar practice hae been adopted, but I have not been told of any example in this court. There was apparently one application for a similar direction made to Sheppard J. on 30 October 1990 in N a t i o n a l ! v S-,VG173/87, but the
application wae rejected. I am told that his Honour did not give any detailed reasons for hie ruling.
ArP\nente
Mr McDonald, who appeared for the applicant, argued that the
direction eought would save considerable time and coneequently expense. He did not complain of any prejudice because of lack of notice of the subetance of.the respondent's case. The partie6 have agreed that the respondent will provide further particular6 of the convereations which took place in June 1984, although, ae I underetand it, there will be no particular6 given of the "chopping around" conversatione.
Mr Young QC, who appeared with Mr Paul Santamaria for the
respondent, contended that the direction eought would save little or no time becauee the availability of the etatemente would greatly increase the scope of cross-examination. He aleo urged that, becauee credit wae fundamental in this caee, the evidence of witnesees ehould be lead in the ordinary way.
lau&aka
Firet, I am reluctant to give a direction which might by way of precedent have an important effect on the way triale are conducted in thie court without proper collegiate conmideration by judgee of this court.
Secondly, thie ie a caee where each side knows in reasonable detail the eubstance of the caee made againet it. No complaint of ambueh hae been made.
Thirdly, evidence in chief given in answer to non-leading questione ie often of vital aeeietance to a judge who has to make findinge of fact. Eepecially ie thie eo in relation to issues as to disputed convereationa. The riek with etatemente or affidavit6 prepared by legal advieere ie that they may
happened rather than the witneee's own recollection, imperfect reflect the draftemanre logical analyeie ae to what probably
or illogical ae it may be, as to what did happen.
I am not euggeeting "coaching" in any improper way, and of course I recogniee that detailed proofe of evidence will almoat always be taken when the evidence ie given viva voce in the ordinary way, but I think there is obvious practical wiedom in the traditional practice which require6 a witneee to given evidence in the lonelineee of the witneee box.
Amonget other thinge, thie practice minimieea the risk of the witneea consciouely or otherwiae trimming his evidence to make it fit better with other evidence; hence the familiar practice of ordering witneaees out of court until they are called on to give their evidence.
I am not eo much persuaded by Mr Youngle argument that little
or no time would be eaved; obviously the time of evidence-in- chief would be eaved and I think it must remain fairly epeculative whether this would be swallowed up in more extensive crose-examination. However, for the other reasons I have given - and particularly the lack of the established
practice and the advantage of viva voce evidence in a caee
such as this - I have reached the decieion indicated.

I decline to give the direction eought. My reaaone are ae

f ollowe .

I certify that thie and the

preceding three (3) pages are a true copy of the Reaeone for Judgment of the Honourable Mr Justice Heerey

Counael for the applicant:	Mr M McDonald
Solicitors for the applicant:	Dwyer h Company
Counsel for the reepondentc	Mr N Young QC Mr P Santamaria
Solicitors for the respondent:	Malleeone Stephen Jaquee