Gitarro and Gitarro and Ors - [2008] FamCA 358

FAMILY COURT OF AUSTRALIA

GITARRO & GITARRO AND ORS

[2008] FamCA 358

FAMILY LAW – RULING - course of evidence - cross-examination of witnesses - order of cross-examination - fairness and questions of forensic advantage.

Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth)

APPLICANT:

MRS GITARRO

RESPONDENT:

MR GITARRO

SECOND RESPONDENT:

G PTY LTD and
M GITARRO

FILE NUMBER:

MLF

2754

2005

DATE DELIVERED:

7 MAY 2008

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

RULING OF:

THE HONOURABLE JUSTICE CRONIN

HEARING DATE:

7 MAY 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT:

MR LEVINE

SOLICITOR FOR THE APPLICANT:

ISSAC BROTT & CO

COUNSEL FOR THE RESPONDENT:

MR GRANT

SOLICITOR FOR THE RESPONDENT:

PEARSONS

COUNSEL FOR THE INTERVENOR:

MR WOOD

SOLICITOR FOR THE SECOND RESPONDENT:

GLEZER LANTERI & ASSOCIATES

Orders

That for the purposes of cross-examination of the husband, counsel for the wife cross-examine first.

IT IS NOTED that publication of this judgment under the pseudonym Gitarro & Gitarro and Ors is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 2754 of 2005

MRS GITARRO

Applicant

And

MR GITARRO

Respondent

And

G PTY LTD and M GITARRO

Second Respondent

RULING

On 6 May 2008, I made a ruling in this trial which is into its sixth day. Mr Levine of Counsel indicated exception to my ruling and I indicated I would give written reasons. These are those reasons.
The wife is the applicant in the proceedings. The husband is the first respondent and his brother is the second respondent. The brother was joined as a result of orders that I made in 2007.
It would be an understatement to say that the proceedings are heavily contested.
The substantive issue is whether property in the control of the husband’s brother (and/or his corporate entities) is property of the parties for the purposes of a division under s 79 of the Family Law Act 1975 (Cth) (“the Act”). Obviously, for that purpose, the brother has been joined as a party.
The wife’s case has closed. This issue for determination arose after the respondent husband had completed his evidence in chief. I invited Mr Levine on behalf of the wife to commence cross-examination of the husband and he requested that Mr Wood of Counsel on behalf of the husband’s brother go first. Mr Wood objected on the basis that he was still to ascertain what it was that his client was to meet. Mr Levine said that allowing Mr Wood to cross-examine last would give the brother an unfair forensic advantage. I ruled that there would be no departure from the order that I determined namely that the wife’s counsel cross-examine first followed by Mr Wood.
Chapter 16 of the Family Law Rules 2004 sets out that the court make any order about the conduct of a trial. That particular rule is expansive. However Rule 16.05(2) says that the court must not make an order that detracts from:
(a)the attainment of justice;
(b)each parties’ entitlement to a fair and just hearing; or
(c)each party being given a reasonable opportunity to adduce evidence, cross-examine and re-examine witnesses, and to address the court.
Clearly, the rules of the court are there for the smooth management of trials but need to be tailored to each case to ensure that justice is done.
Section 26 of the Evidence Act 1995 (Cth) gives the court control over the questioning of witnesses. That provision permits the court if it considers just, to make an order about the way in which witnesses are questioned and the order in which parties may question a witness.
Section 28 of the Evidence Act simply sets out that unless the court otherwise directs, cross-examination of a witness is not to take place before the examination in chief of that witness.
Section 26 is governed by the overall discretionary power set out in s 192 of the Evidence Act. That provision reads:
Leave, permission or direction may be given on terms
(1) If, because of this Act, a court may give any leave, permission or direction, the leave, permission or direction may be given on such terms as the court thinks fit.
(2) Without limiting the matters that the court may take into account in deciding whether to give the leave, permission or direction, it is to take into account:
(a)the extent to which to do so would be likely to add unduly to, or to shorten, the length of the hearing; and
(b)the extent to which to do so would be unfair to a party or to a witness; and
(c)the importance of the evidence in relation to which the leave, permission or direction is sought; and
(d)the nature of the proceeding; and
(e)the power (if any) of the court to adjourn the hearing or to make another order or to give a direction in relation to the evidence
In respect of s 192(2), it is hard to know what impact on the length of the trial, an order that one party or the other cross-examine first. Mr Wood of Counsel on behalf of the husband’s brother maintained that until such time as he had heard the cross-examination of the husband, he would not know what the case was of the wife having regard to the absence of a very clear picture in her affidavit and her own evidence of absence of knowledge of the transactions which are very much in dispute. Although the wife had filed what was tantamount to a pleading, this is not a court of pleadings and one is entitled to rely upon the documents filed by the parties to indicate what case they are conducting. Mr Levine says that by requiring him to cross-examine first, a forensic advantage is lost to the wife because the brother will know what the wife’s argument is after the husband is tested and will therefore have an opportunity to “shore up” his case. I reject that view on the basis that this is not a court run on the basis of “trial by ambush”. All parties are required to not only provide their evidence in affidavit form but also to provide frank and full disclosure of documents. Having managed this case for over a year now, I am aware of the extensive arguments about discovery. In addition, the wife’s lawyers have provided two volumes of documents which have been described as a “court book” so there can be no suggestion that there is anything about which the husband’s brother could obtain a forensic advantage except in circumstances where the husband departed from his evidence in chief. It must also be remembered that the evidence in chief of the husband was led by Mr Grant of Counsel on the basis of answering all of the assertions of the wife most of which were not contained in an affidavit. Ironically, many of the assertions of the wife arose out of cross-examination by Mr Grant.
It is therefore difficult for me to say that either course would add or shorten the length of the hearing but I suspect it is more likely to shorten the proceedings if Mr Wood knows what it is that his client has to meet.
I acknowledge that there is an argument about forensic advantage but having regard to the fact that I have extensive powers under s 41 of the Evidence Act in relation to improper questions as well as the power under s 42 to disallow leading questions of a witness whose interest is consistent with the interest of the cross-examiner or who is sympathetic to the cross-examiner, it seems to me that there is no unfairness to the wife. I do not see that requiring the wife’s counsel to cross-examine first prevents an exploration of the evidence to ascertain the truth having regard to the fact that the wife has provided a court book and indicated that it is to those documents that the husband will be taken.
In the circumstances, I see no unfairness to the wife in having her counsel cross-examine first.

I certify that the preceding Thirteen (13) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate: Elizabeth Hore

Date: 7 May 2008