Huang v Muse Beauty Salon Waterloo Pty Ltd; Muse Beauty Salon Waterloo Pty Ltd v Huang

[2021] NSWDC 286

District Court

New South Wales

Medium Neutral Citation:

Huang v Muse Beauty Salon Waterloo Pty Ltd; Muse Beauty Salon Waterloo Pty Ltd v Huang [2021] NSWDC 286

Hearing dates:

24 June 2021

Date of orders:

24 June 2021

Decision date:

24 June 2021

Jurisdiction:

Civil

Before:

Dicker SC DCJ

Decision:

In relation to the Notice of Motion filed on 24 June 2021:

1. The application is dismissed.

2. The costs of the Notice of Motion be reserved.

Catchwords:

PRACTICE AND PROCEDURE – cross-examination of witnesses – application to limit – factors to be considered

Legislation Cited:

Civil Procedure Act 2005 (NSW)

Cases Cited:

Wakeley v The Queen; Bartling v The Queen [1990] HCA 23; (1990) 93 ALR 79

Category:

Procedural rulings

Parties:

Yi-Ching Huang (Plaintiff 2018/00117938; Defendant 2018/00364820)
Muse Beauty Salon Waterloo Pty Ltd (Plaintiff 2018/00364820; Defendant 2018/00117938)

Representation:

Counsel:
G Campbell (Plaintiff 2018/00117938; Defendant 2018/00364820)
F Santisi (Plaintiff 2018/00364820; Defendant 2018/00117938)

Solicitors:
Goh Lawyers (Plaintiff 2018/00117938; Defendant 2018/00364820)
W B Legal (Plaintiff 2018/00364820; Defendant 2018/00117938)

File Number(s):

2018/00117938
2018/00364820

Publication restriction:

No

ex tempore Judgment

1. HIS HONOUR: Before the Court is a Notice of Motion, leave to file which was granted today to the Xie interests in proceedings 2018/364820, seeking, in substance, an order under s 62(3)(a) of the Civil Procedure Act2005 (NSW) limiting the cross‑examination of Ms Xie and Ms Bai to stipulated times and dates.

2. It is submitted by Mr Campbell, who appears on behalf of the Xie interests, that the cross‑examination of Ms Xie has been excessive and that, accordingly, the time has come for the Court to make limiting orders under s 62.

3. Section 62 of the Civil Procedure Act2005 (NSW) provides as follows:

"(1)  The Court may, by order, give directions as to the conduct of any hearing, including directions as to the order in which evidence is to be given and addresses made.

(2)  The Court may, by order, give directions as to the order in which questions of fact are to be tried.

(3)  Without limiting subss (1) and (2), the Court may, by order, give any of the following directions at any time before or during a hearing‑‑

(a) a direction limiting the time that may be taken in the examination, cross‑examination or re‑examination of a witness,

(b) a direction limiting the number of witnesses (including expert witnesses) that a party may call,

(c) a direction limiting the number of documents that a party may tender in evidence,

(d) a direction limiting the time that may be taken in making any oral submissions,

(e) a direction that all or any part of any submissions be in writing,

(f) a direction limiting the time that may be taken by a party in presenting his or her case,

(g) a direction limiting the time that may be taken by the hearing.

(4)  A direction under this section must not detract from the principle that each party is entitled to a fair hearing, and must be given a reasonable opportunity‑‑

(a) to lead evidence, and

(b) to make submissions, and

(c) to present a case, and

(d) at trial, other than a trial before the Local Court sitting in its Small Claims Division, to cross‑examine witnesses.

(5)  In deciding whether to make a direction under this section, the Court may have regard to the following matters in addition to any other matters that the Court considers relevant‑‑

(a) the subject‑matter, and the complexity or simplicity, of the case,

(b) the number of witnesses to be called,

(c) the volume and character of the evidence to be led,

(d) the need to place a reasonable limit on the time allowed for any hearing,

(e) the efficient administration of the Court lists,

(f) the interests of parties to other proceedings before the Court,

(g) the costs that are likely to be incurred by the parties compared with the quantum of the subject‑matter in dispute,

(h) the court's estimate of the length of the hearing.

(6)  At any time, the Court may, by order, direct a solicitor or barrister for a party to give to the party a memorandum stating‑‑

(a) the estimated length of the trial, and the estimated costs and disbursements of the solicitor or barrister, and

(b) the estimated costs that, if the party were unsuccessful at trial, would be payable by the party to any other party.

4. Mr Campbell has placed reliance on the joint decision of the High Court of Australia in Wakeley v The Queen; Bartling v The Queen [1990] HCA 23; (1990) 93 ALR 79 at [20] where their Honours make a number of points which may be summarised as follows:

1. The limits of cross‑examination are not susceptible of precise definition;

2. There is no general test of relevance which a trial judge is able to apply in deciding, at the start of a cross‑examination, whether a particular question should be allowed;

3. It is important in the interests of the administration of justice that cross‑examination be contained within reasonable limits;

4. A judge should allow counsel some leeway in cross‑examination in order that counsel may perform the duty of testing the evidence given by an opposing witness;

5. It is the duty of counsel to ensure that the discretion to cross‑examine is not misused.  That duty is the more onerous because counsel's discretion cannot be fully supervised by the presiding judge; and

6. There may come a stage when it is clear that the discretion is not being properly exercised. At that stage the judge should intervene to prevent both an undue strain being imposed on the witness and an undue prolongation of the expensive procedure of hearing and determining a case;

7. Until that stage is reached, cross‑examining is in the hands of counsel.

5. No doubt the principles in that case were considered by the legislature in determining the need to put a provision such as s 62 into the Civil Procedure Act. The section makes clear that any direction as to a limitation concerning cross‑examination must not detract from the principle that each party is entitled to a fair hearing and to be given a reasonable opportunity to present their case including in cross‑examination. Section 62(5) sets out a number of matters which may be considered including the subject matter and the complexity or simplicity of the case, the number of witnesses to be called, the volume of the evidence to be led, the need to place a reasonable limit on the time allowed for any hearing, the interests of parties to other proceedings as well as the costs that are likely to be incurred and the Court's estimate of the length of the hearing. At any time, the Court may, by order, direct a solicitor or barrister for a party to give to the other party a memorandum stating the estimated length of the hearing.

6. This matter, as I understand it, was given an estimate of five hearing days.  The following matters should be noted:

1. That it is proposed that all witnesses who are native Mandarin speakers will give their evidence by way of an interpreter;

2. In the Court's experience, this has the effect of often doubling the time that a case would normally take to hear;

3. The affidavit evidence which has been filed by the parties is voluminous.  It seems to be the case that virtually every possible point has been traversed in detail;

4. The case on the face of it and on the material read, involves strong feelings between the parties in relation to their respective positions;

5. Many of the matters in dispute involve oral conversations which are not easily determined by objective documentary evidence unlike in other cases;

6. Substantial time was taken up in dealing with objections to evidence.  Some time was also taken to allow the Court to become familiar with the very voluminous affidavit evidence which has been filed and read;

7. The cross‑examination so far of the first witness, Ms Xie, has been lengthy.  There is no suggestion that the estimate of about four days so far is disputed as an accurate one.  It is noted that there have been other short adjournments at the request of counsel for the Huang interests relating to other practice commitments, and by Ms Xie herself, relating to work and childcare commitments. The cross‑examination has traversed many areas, some, on their face primarily going to credit.

7. I take into account that Ms Xie has given the most affidavit evidence of the two witnesses proposed to be called in her interest, and that Ms Bai's affidavit evidence is substantially shorter.  I also take into account that Ms Xie appears to be the central witness who attended most of the crucial meetings, including one meeting where she attended with her mother.

8. It is, of course, important to take into account the words stated by the High Court in Wakeley. It is also important to take into account s 56 of the Civil Procedure Act 2005 (NSW) and the overriding purpose which must be taken into account, which is to ensure that proceedings are determined quickly, justly and cheaply. It is also relevant that the amount in issue on the claim of the Huang interests is not substantial, being about $68,000 plus interest. A higher amount is sought by the Xie interests in their claim.

9. Mr Santisi of counsel, who appears for the Huang interests, has indicated to me that on his best estimate, and assuming this application had not been made, that he would have concluded his cross‑examination by 3.40pm today, allowing 20 minutes for re‑examination.  Mr Campbell has indicated that, at present, he does not propose to have any re‑examination of Ms Xie.  The question of the length of the cross‑examination was first raised on the last day that the matter was before me, on 16 June 2021.  There have not been, prior to about a day before that, frequent objections relating to the cross‑examination. No doubt this is partly due to the fact that counsel do not wish to be seen to unduly object to avoid the perception that they are trying to inappropriately protect their witness.

10. Some of Ms Xie's answers have been lengthy and perhaps not direct, but, on the other hand, that may be partly because of frustration of the length of the cross‑examination. 

11. Taking all of these matters into account, in my view the stage has not been reached to make a formal order as sought in the Notice of Motion.  In my view, the estimates given by Mr Santisi of, in substance, a further day for Ms Xie and, at the most, two days for Ms Bai, are not of the nature that would warrant the Court intervening as sought.  The cross‑examination of Ms Xie has been lengthy.  I do not wish to be seen to be unduly critical of it, but it has sometimes involved questions being repeated, although sometimes that can be appropriate to test the witness's first answer.  It is always important to ensure that a cross‑examination occurs in a logical and clear fashion; often chronologically is the best. 

12. Although the cross‑examination has been very lengthy, the degree of evidence to be covered and the fact that the credit of the witness is of central importance, are significant factors. 

13. The cost involved in this matter is of concern to me.  It is apparent that the amount in issue is not huge and, accordingly, one would hope that proceedings would be shorter rather than longer.  However, the heat of the matter, the extent of preparation of the affidavit evidence, and the involvement of interpreters are significant matters.

14. In the end, I do not think the time has come for the orders as sought.

15. In making that decision, I take strongly into account the estimates which have been given by Mr Santisi.

16. In making my decision on the application, I should not be seen as indicating that a further application may not be appropriate at the right time if estimates have been exceeded.

17. In reviewing Ms Bai's evidence, I note that she appears to be a less central figure and that her affidavit evidence is substantially shorter.

18. I also take into account the importance of Ms Xie to the overall proceedings.

19. Accordingly, the orders I make are as follows:

In relation to the Notice of Motion filed on 24 June 2021:

1. The application is dismissed.

2. The costs of the Notice of Motion be reserved.

**********

Decision last updated: 29 June 2021