International Relief and Development Inc v Ladu

Link copied
Case Copied 33 min read

FEDERAL COURT OF AUSTRALIA

International Relief and Development Inc v Ladu [2013] FCA 1216

Citation:

International Relief and Development Inc v Ladu [2013] FCA 1216
Parties: INTERNATIONAL RELIEF AND DEVELOPMENT, INC v GODFREY EMMANUEL LADU
File number: VID 522 of 2012
Judge: KENNY J
Date of judgment: 19 November 2013
Catchwords: PRACTICE AND PROCEDURE – Application for leave to confer with witness before re-examination – witness under oath – leave granted.
Legislation: International Arbitration Act 1974 (Cth)
Evidence Act 1995 (Cth)
Cases cited: State v Khan [2004] FJHC 72
Wentworth v Rogers (No 10) (1987) 8 NSWLR 398
Books cited:

Annesley R, Good Conduct Guide: Professional Standards for Victorian Barristers (Victorian Bar, 2006)
Gowans G, The Victorian Bar: Professional Conduct, Practice and Etiquette (The Law Book Company Limited, 1979)
Sheppard I, “Communications with Witnesses Before and During Their Evidence” (1987) 3 Australian Bar Review 28
Boulton W, Guide to Conduct and Etiquette at the Bar of England and Wales (6th ed, Butterworths, 1975)
Coombs J, “Re-examination” in New South Wales Bar Association (ed), Bar Practice Course Materials (New South Wales Bar Association, 2007)
Heydon JD, Cross on Evidence (9th Australian edition,  LexisNexis Butterworths, 2013)
Other sources:  

Victorian Bar Incorporated Practice Rules
Code of Conduct of the Bar of England and Wales (8th edition)
Date of hearing: Determined on the papers
Place: Melbourne
Division: GENERAL DIVISION
Category: Catchwords
Number of paragraphs: 53
Counsel for the Applicant: D Crennan
Solicitor for the Applicant: Cornwall Stodart
Counsel for the Respondent: M Stirling
Solicitor for the Respondent: Zindilis Lawyers

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

GENERAL DIVISION

VID 522 of 2012
BETWEEN:

INTERNATIONAL RELIEF AND DEVELOPMENT, INC
Applicant
AND:

GODFREY EMMANUEL LADU
Respondent

JUDGE:

KENNY J

DATE OF ORDER:

19 NOVEMBER 2013

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:

1.Leave is granted for counsel for the respondent to confer with the respondent on the topics set out in subparagraphs 3 (a) to (f) (inclusive) of the document entitled “Memorandum of the Respondent concerning Ladu Re-examination” filed on 9 September 2013.

Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

GENERAL DIVISION

VID 522 of 2012
BETWEEN: INTERNATIONAL RELIEF AND DEVELOPMENT, INC
Applicant
AND:

GODFREY EMMANUEL LADU
Respondent

JUDGE:

KENNY J

DATE:

19 NOVEMBER 2013

PLACE:

MELBOURNE

REASONS FOR JUDGMENT

INTRODUCTION

  1. These proceedings were commenced by an application for the enforcement of an arbitral award under s 8(3) of the International Arbitration Act 1974 (Cth) (‘IAA’). The applicant, International Relief and Development, Inc (‘IRD’), seeks an order that a foreign arbitral award made on 21 July 2011 in pursuance of an arbitration agreement between it and Godfrey Emmanuel Ladu be enforced and entered as a judgment of the Court. Mr Ladu has resisted IRD’s application on several grounds, namely: (1) that he was not given proper notice of the appointment of the arbitrator; (2) that he was not given proper notice of the…

CaseChat AU logo

Keep reading for free

Create a free CaseChat account to read International Relief and Development Inc v Ladu and more:

  • Read every judgment in full
  • Ask AI and get answers linked to paragraphs
  • See how each paragraph was cited in later cases
  • Download judgments as PDF or Word
Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details
Case
[2013] FCA 1216
Decision Date

CaseChat Overview and Summary

International Relief and Development Inc v Ladu involved a dispute concerning the enforcement of an arbitral award against Mr Ladu. The applicant, International Relief and Development Inc, sought to enforce a foreign arbitral award made against Mr Ladu under the International Arbitration Act 1974 (Cth). Mr Ladu resisted the enforcement on grounds of procedural unfairness and breach of natural justice. The legal issues the court needed to decide revolved around whether Mr Ladu was given proper notice of the arbitration proceedings and whether there was a breach of natural justice in the making of the award. Additionally, the court had to determine whether leave should be granted for Mr Ladu’s counsel to confer with him before his re-examination, considering the potential implications for fairness and the completeness of Mr Ladu’s evidence. The court granted leave for counsel to confer with Mr Ladu on specified topics before his re-examination, balancing the need for fairness and the completeness of evidence against the procedural requirements of the Evidence Act. The decision took into account the complexity of the case, the necessity of managing international evidence, and the importance of ensuring that Mr Ladu could present a complete and accurate account of his evidence. The court emphasised that the nature of questions to be asked in re-examination would be determined once counsel had conferred with Mr Ladu, allowing for potential objections from the opposing party at that stage.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

The topics identified in subparagraphs 3(a) to (c) of Mr Ladu’s 9 September 2013 memorandum may properly be the subject of re-examination. This is because it is open to counsel for Mr Ladu to question him in re-examination about matters arising out of evidence given by Mr Ladu in cross-examination: see Evidence Act, s 39(a). Other questions may not be put to the witness unless the court gives leave: s 39(b). The purpose of re-examination is not just to remove ambiguities and uncertainties arising in cross-examination. Re-examination is allowed when an answer in cross-examination would, unless supplemented or explained, leave the court with an impression of the facts, including facts relating to credibility, which are capable of being construed unfavourably to the party calling the witness and represent a distorted or incomplete account of the truth as the witness has been able to present it: see J D Heydon, Cross on Evidence (9th Australian edition, LexisNexis Butterworths Australia, 2013) at [17605] - [17610]); also Wentworth v Rogers (No 10) (1987) 8 NSWLR 398 at 409. As already noted, I accept that counsel for Mr Ladu would not wish to re-examine on these topics without adequate instructions and it may work considerable unfairness to Mr Ladu not to have his counsel take up these topics. As the forgoing account shows, so far as the evidence of Mr Sagora is concerned, the awkwardness that has arisen is not of Mr Ladu’s making. Further, Mr Ladu, not IRD, is at risk should Mr Ladu seek to abuse the opportunity to confer with his counsel. If Mr Ladu should give evidence in re-examination that, for one reason or another, is open to doubt, then IRD will have the opportunity to bring this to my attention and, if I were so persuaded, then it would tell against accepting his evidence. In opposition to the grant of leave, IRD’s response was to the effect that it had indicated on 4 September that it would take steps to locate Mr Sagora to give evidence about the matters raised in the letter annexed at Tab 34 of the affidavit of Mr Matechak of 27 May 2013. Whilst this much may be accepted, it fell a long way short of providing adequate notice prior to trial that Mr Sagora would be called, particularly when the expanded ambit of the evidence IRD now proposes to adduce through him is borne in mind. As the above account shows, the ambit of the evidence that IRD proposes to adduce from Mr Sagora has steadily increased as the hearing has progressed. It does not seem to me that IRD gain much from the fact that the letter annexed at Tab 34 was the subject of a successful objection, since its objectionable nature ought to have been apparent to IRD in the first place. As noted above, IRD also contended that the leave being sought (i.e., leave to confer) was not properly described as leave sought for re-examination. IRD apparently anticipates that the questions that counsel for Mr Ladu will put in re-examination will not be questions about matters arising out of Mr Ladu’s evidence in cross-examination; rather, they will be framed to lead further evidence in chief from Mr Ladu. The latter questions cannot be put in re-examination – unless leave to do so has been given. The time has not yet come, however, to assess the questions that counsel for Mr Ladu may wish to put to Mr Ladu. Presently, the questions that counsel for Mr Ladu may wish to put to Mr Ladu in re-examination are unframed. If any are to be put on the relevant topics, they cannot be determined until Mr Ladu’s counsel has conferred with him. When counsel’s questions are put to Mr Ladu in court, their true character will be ascertainable. If IRD considers that, as put, the questions are not questions for re-examination, then IRD will have the opportunity to object. Of course, the Court may, pursuant to s 39(b) of the Act, grant leave to put questions that are not “matters arising out of evidence given by the witness in cross-examination”, although, if any application for leave were sought, the matters set out in s 192(2) of the Evidence Act (set out at [16] above) and any other relevant matters would then fall for consideration.

Evidence

Evidence Before The Court

I begin with the nature of the proceedings. As noted already, the proceedings commenced with an application by IRD for the enforcement of an arbitral award under s 8(3) of the IAA. IRD seeks an order that a foreign arbitral award made against Mr Ladu be enforced and entered as a judgment of the Court. Mr Ladu has resisted the enforcement of the award on the basis that he was not given proper notice of the appointment of the arbitrator or of the arbitration proceedings or was otherwise unable to present his case at the arbitration proceedings; and on the basis that a breach of the rules of natural justice occurred in connection with the making of the award: see IAA, s 8(5)(c), (7)(b) and (7A). Importance of the evidence The evidence that counsel for Mr Ladu may wish to elicit in Mr Ladu’s re-examination may be important to answers in cross-examination that would, unless supplemented or explained, leave the court with an impression of the facts relating to his credibility that are capable of being construed unfavourably to Mr Ladu and perhaps represent a distorted or incomplete account of the truth as he has thus far been able to present it. Plainly enough, his counsel will not wish to ask questions in re-examination on topics touching these facts in the absence of appropriate information from Mr Ladu. Without putting these questions, however, Mr Ladu may not be given an opportunity to provide a complete account and to correct any consequential distortion in his evidence that has arisen in the course of cross-examination.Another order or direction? As already noted, IRD has contended that the matters raised by Mr Ladu “properly relate to the respondent reopening or recalling Mr Ladu to give further evidence in chief”. I discuss and reject this contention below at [46]. If Mr Ladu sought to give further evidence in chief, then Mr Ladu would require the Court’s leave to do so; but this is not what is presently being sought. It is not suggested that the Court might deal with the matter in some other way, by adjournment or other order or direction. Fairness to Mr Ladu and IRD A central consideration in relation to the grant of leave is that of fairness. In this regard, it is necessary to have regard to the context in which the leave is sought. Earlier this year, a trial date was fixed for 30 May 2013. This date was vacated on 28 May 2013, as a result of what both parties acknowledged was an increase in the complexity and volume of the affidavit evidence. Amongst other things, both parties agreed that it was likely that witnesses in the United States, Peru and South Sudan would be required to attend by video-conference for cross-examination. Orders were made to accommodate the increased complexity of the foreshadowed trial and the matter was re-listed for 5 and 6 September 2013. As it happened, shortly prior to these latter dates, on 29 August 2013, the parties advised that it “has become apparent that a two day hearing will not be sufficient.” The extended time for hearing was, it was said, necessary to manage witness testimony by video-conference in different geographical locations (and time-zones). A further hearing day was fixed in consequence.

Decision

Reasons for decision

The question of further witnesses has not yet arisen. There is no application before the court to permit Mr Ladu to call further witnesses; and it is therefore unnecessary to say anything further about this possibility at this stage. CONCLUSION Taking into account the above considerations, I would grant leave for counsel for Mr Ladu to confer with Mr Ladu on the topics set out in subparagraphs 3(a) to (f) of the respondent’s 9 September 2013 memorandum before Mr Ladu’s re-examination on 27 November 2013.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.