Lakatoi Universal Pty Ltd v Langley Alexander Walker

[1999] NSWSC 1340

CITATION:	Lakatoi Universal Pty Ltd & Ors v Langley Alexander Walker & Ors [1999] NSWSC 1340
CURRENT JURISDICTION:
FILE NUMBER(S):	50035/98; 50109/98; 50110/98
HEARING DATE(S):	19/10/99, 20/10/99
JUDGMENT DATE:	20 October 1999
PARTIES :	50035/98 Lakatoi Universal Pty Ltd & Ors v Langley Alexander Walker & Ors 50109/98 Ensile Pty Ltd v Walker Consolidated Investments Pty Ltd 50110/98 Ensile Pty Ltd v Walker Consolidated Investments Pty Ltd
JUDGMENT OF:	Einstein J

LOWER COURT JURISDICTION:	Compensation Court
LOWER COURT FILE NUMBER(S) :
LOWER COURT JUDICIAL OFFICER:

COUNSEL :	RJ Ellicott QC, VRW GRay, AE Galasso, SD O'Campo (Plaintiffs) AB Shand QC, DPF Officer QC, RJ POwell, CJ Leggat (Defendants)
SOLICITORS:	Gye & Associates (Plaintiffs) Perkes & Stone (Defendants)
CATCHWORDS:	Practice and procedure - Cross examination - Application to permit cross-examination by two counsel - Courts discretion whether to permit application to cross-examine by two counsel - Principles governing discretion - Importance of continuity of counsel present during cross-examination to the exercise of the discretion to permit - Importance of the nature of witness sought to be cross-examined - Application to permit cross-examination of witness by two counsel allowed
CASES CITED:	Doe v Roe (1809), 2 Camp. 280; 170 E.R. 1155 Eva Pty Limited v Charles Davis Limited (1982) VR 515 GPI Leisure v Herdsman Investments (No 3) (1990) 20 NSWLR 15 Hadid v Australis Media [unreported Supreme Court of New South Wales, Sperling J, 11 November 1996] Phillips v Phillips (1966) 1 NSWR 49
DECISION:	I allow the application in the terms in which it was made, and grant leave to the defendants to further cross-examine Mr Hogarth by either Mr Officer QC or Mr Powell, on areas and materials previously not covered by the cross-examination of Mr Shand, but permitting further cross-examination on credit generally.

- 15 -

THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION - COMMERCIAL LIST

EINSTEIN J

WEDNESDAY 20 OCTOBER 1999
REVISED 6 JULY 2000

50035/98 - LAKATOI UNIVERSAL PTY LTD & 3 ORS v LANGLEY ALEXANDER WALKER & 6 ORS

50110/98 - ENSILE PTY LTD v WALKER CONSOLIDATED INVESTMENTS PTY LTD & 2 ORS

50109/98 - ENSILE PTY LTD v WALKER CONSOLIDATED INVESTMENTS PTY LTD

JUDGMENT - On application to allow further cross-examination of Mr Hogarth by either Mr Officer QC or Mr Powell of Counsel; see page 405 of the Transcript.

1    HIS HONOUR: There are presently before the Court several sets of related proceedings being heard together concerning dealings between the parties relating to extensive land holdings at Helensburgh in New South Wales. Those dealings led to the creation of a joint venture relationship under a written heads of agreement document executed between 11 November and 1 December, 1993 pursuant to which an agreement called the 'Helensburgh Unit Trust Holders Agreement', dated 6 April, 1994 was entered into. Central to the disputes between the parties at a factual level are the circumstances in which attempts were made to secure the rezoning of the Helensburgh lands so as to allow a substantial portion thereof to be developed as a residential subdivision. A principal claim to relief pursued by the plaintiffs arises by reason of the failure to secure the rezoning of the subject land. The summons and other pleadings identify a number of other claims to relief and defences to those claims. 2    It is not presently appropriate to outline the particular issues raised by the pleadings save to recognise that the plaintiffs rely upon a number of causes of action extending to cover rectification claims, to implied terms, a representational case, fiduciary obligations, and breaches of statutory duty. 3    It is also appropriate to recognise, as is not controversial, that there have been filed and/or are sought to be relied upon by the respective parties, a large number of complex statements. In the case of Mr Hogarth, who is the principal lay witness sought to be called on behalf of the plaintiffs, his first statement of late December 1998 runs for one hundred and sixty-one paragraphs over one hundred pages. In some cases conversations which Mr Hogarth gives evidence of in that statement, run to many many pages; in each instance and in the first person. 4    The application presently before the Court is an application by the defendants recorded at transcript page 269 point 15 as: "An application to allow further cross-examination of Mr Hogarth by either of Mr Officer QC or Mr Powell of Counsel on areas and materials previously not covered by the cross-examination of Mr Shand". 5    That application has been clarified to the extent that it is not proposed that both of Mr Officer QC and Mr Powell be entitled to continue the cross-examination. The application is for only one of Mr Officer QC or Mr Powell to be permitted to continue the cross-examination. 6    The application has been brought forward informally by agreement with the bases of the application at a factual level being stated from the bar table, and subject to qualification on some interrogation by Mr Ellicott of Senior Council for the plaintiffs, has been accepted as to the facts which are not in contention. 7    Essentially the matters of fact which the defendant relies upon in relation to the application are these: Firstly, as from 22 October 1999 or shortly thereafter, Mr Shand will be unavailable to appear in this or any other case for medical reasons and will be so unavailable until the end of 1999. That matter is accepted by Mr Ellicott as a given for the purposes of the contested application. 8    The second of the matters of fact stated by Mr Powell from the Bar table is that prior to the commencement of the hearing on 21 September 1999 (not 20 September 1999 - 20 September having originally been the date fixed for commencement of the hearing but that date having been vacated in circumstances to be later referred to in the judgment), the defendants' solicitors were aware that Mr Shand would not be available after 22 October 1999 for those medical reasons. 9    In relation to that stated matter of fact Mr Ellicott enquired as to when Mr Shand was briefed, to be informed that Mr Shand was briefed on 11 August 1999, and Mr Ellicott enquired whether or not at the time when Mr Shand was briefed it was appropriate for the Court to accept that he then informed his instructing solicitors that he would not be available on and after 22 October 1999. At transcript page 274.26-31 Mr Shand accepted that that was the case. 10    The third fact stated by Mr Powell from the Bar table was that prior to the commencement of the hearing on 21 September 1999, Mr Shand was of the view that his cross-examination of Mr Hogarth would be lengthy and, secondly, that the cross-examination would easily be concluded in the period between commencement of the hearing and 22 October 1999. 11    In that regard Mr Ellicott interrogated at the Bar table on that proposition. At transcript page 276.11 Mr Ellicott elicited, and I will proceed upon the basis, that insofar as Mr Shand's view that the cross-examination would easily conclude in the period 20 September to 22 October is concerned, this meant that, and in fact Mr Shand formed that view based on the proposition that, the Court would be sitting from the commencement of the hearing to 22 October without the breaks which the Court has had and which will later be referred to in the judgment. I proceed upon that basis as an agreed given in the circumstances of the application. 12    It is necessary to traverse in some detail the precise days on which the Court has been sitting following commencement of the hearing, the reasons why the Court did not sit on certain days, and the dates when the parties agreed, or the Court informed the parties, that the Court would not be able to sit on those days. 13    As I understand it, and save for one or two areas of some slight uncertainty, I do not understand either party to take exception with the following general statement of fact. I proceed to set out what I understand generally to be the matrix against which the application is to be adjudicated. 14    The proceedings were fixed for hearing in February or March 1999. They were, the Court has been informed, set down for approximately six weeks. 15    The proceedings were fixed to commence on Monday, 20 September 1999. 16    On or about 13 September 1999 Rolfe J, who is the List Judge, determined that I would be hearing these proceedings. The parties were informed of that fact on about 14 September 1999. 17    The matter was in the applications list on 10 September on an occasion when a question had arisen as to whether or not the defendants may wish to make an application, were Rolfe J to have been the trial Judge. The parties were informed on that day that no decision had yet been made as to who the trial Judge would be. It eventuated that there never had been any possibility or concern, as I understand it, but that Rolfe J could have heard this case. [although at some stage the defendants appeared to have been concerned that Rolfe J may have known Mr Hogarth] As I presently understand the position, Rolfe J does not know Mr Hogarth and the Mr Hogarth whom Rolfe J had at some stage mentioned he may have known was certainly not the Mr Hogarth who is the plaintiffs' principal lay witness. 18    As soon as I was notified that I would be hearing the proceedings, the parties were informed. I understand from Mr Powell that the parties were so informed on about 14 September. It is likely that on 14 September or thereabouts I would have made plain to the parties what my usual pre-trial directions are and, to the best of my recollection, that procedure was followed in this case. 19    Mr Powell has informed the Court that to the best of his recollection it was the Thursday, 16 September 1999, that I informed the parties that the proceedings would not be able to start on the 20th but would, in fact, begin on the 21st. I do not understand that to be an issue between the parties. I was unable to commence the hearing on the 20th for reasons unassociated with the parties, and the hearing began on the 21st. 20    I will interrupt the giving of this interlocutory judgment by pointing out that in the course of giving the judgment, Mr Ellicott has handed me a copy of his instructing solicitors' note of the events of 13 September, which note makes plain that it was on that day, that Monday, that I informed the parties that I was to be the trial Judge and that the proceedings would commence on the Tuesday, and I informed the parties then that the proceedings would be heard until they finished and made plain that the Court would not sit during the week of 4 October. Those then are the precise facts which I accept, there being this file note of Mr Ellicott's instructing solicitor. 21    On the same day, that is to say 13 September, this file note records that I informed the parties that I expected that on 8 October Hunter J would resume the Construction List, but indicated that I would quite likely not be able to hear the proceedings on two Fridays, namely 24 September and 1 October. 22    In the event, as the parties are aware, I was unable to give the parties any hearing time on either 24 September or 1 October, being otherwise on those days engaged in hearing Building and Construction List matters, or Commercial List matters, in the respective applications' lists. 23    The Court did not sit during the week of 4 October and the cross-examination by Mr Shand of Mr Hogarth commenced on Monday, 11 October. It continued on Tuesday, 12 October, from 12.16pm; on Wednesday, 13 October; and on Friday, 15 October, from 11.40am. It proceeded on Tuesday of this week, 19 October, and has proceeded this morning, Wednesday, 20 October. 24    The parties had originally contemplated a view taking place, which was to have taken place on 11 October, but for a reason associated with the unavailability of an expert wishing to participate on the view, the date for fixing the view was changed from 11 October to 14 October, and the whole of that day was taken with a view. 25    When the proceedings on Friday, 15 October, commenced, which was at about 11.40am, Mr Shand announced that he could not participate in the case beyond the end of this current week, and that substitute Queen's Counsel had agreed to take over his role. He indicated that Mr Officer QC would become leading counsel for the defendants and that Mr Shand would not be able to finish his cross-examination by the end of this current week and, subject to there being no retracing of cross-examination steps taken by Mr Shand, indicated that Mr Officer, subject to the leave of the Court, would seek to complete the cross-examination of Mr Hogarth. 26    It is then necessary to also recognise that there were, in fact, had the Court sat every day between 20 September and 22 October, not including Monday, 4 October (which was a public holiday), some twenty-four days. The defendants have pointed out that the non sitting days since then have been ten days; namely, 20 September, that is the day when the proceedings were first due to commence; 24 September and 1 October, when the Court was engaged in applications in the Construction List and Commercial List; 4 to 8 October, already referred to; 14 October, the visit to Helensburgh; and 18 October, which is the Monday of this last week. 27    In relation to the 18 October situation, what occurred was that the day was anticipated by the Court to be a continuance of the cross-examination. As the transcript records, at the joint request of senior counsel for both parties the Court stayed off the Bench on Monday, 18 October, and recommenced the hearing on the morning of Tuesday, 19 October, on the joint application of the parties. 28    The openings and motions have taken some seven days; namely, the plaintiffs' opening 21, 22, 23 and part of 27 September; the defendants' opening part of 27 September and 28, 29 and part of 30 September; and motions to set aside subpoenas being heard during the balance of 30 September. 29    The application to permit cross-examination by an additional counsel of Mr Hogarth in fact commenced during the morning of 19 October. At that point in time it was correct to say that Mr Hogarth's cross-examination had taken some three days and approximately 36 minutes, those days being Monday, 11 October; Tuesday, 12 October, from 12.16pm; Wednesday, 13 October; and Friday, 15 October, from 11.40am. It is further accurate to say that by the end of this week, when Mr Shand leaves this case, Mr Hogarth's cross-examination will have taken approximately six days. 30    The further matter of fact which requires to be recognised is that Mr Shand has been, as announced sometime ago, unavailable to cross-examine on Wednesday, Thursday and Friday afternoon of this week. That unavailability is announced to the Court as occurring by reason of a personal matter, a non professional matter, and as a personal obligation related to another person's health. The defendants have, through Mr Powell, stated that this could not have been known to the defendants until recently. 31    In relation to when Mr Shand first announced that he would be unavailable on Wednesday, Thursday and Friday afternoon of this week, to the best of my recollection I was informed of that fact privately with Mr Ellicott some little time ago. I cannot be precise on what day. On whatever occasion, I simply indicated that I would do whatever counsel jointly agreed and determine any application which may be made where there was disagreement. I accept what Mr Ellicott's recollection seems to be that it was probably last week that this matter was first raised in court by Mr Shand. 32    In those circumstances the plaintiffs oppose the application for leave to be granted for further cross-examination of Mr Hogarth. 33    In support of the application, Mr Powell submits that there are special circumstances and these circumstances are put in this fashion: The first is submitted to be Mr Shand's unavailability for medical reasons. In short, Mr Powell submits that there is a distinction to be made between unavailability for this reason or unavailability by reason of a counsel having an inconsistent commitment by way of another court case, for example, or another brief. 34    The second of the suggested special circumstances relies upon the amount of evidence which Mr Hogarth traverses in his statement, in statements in reply, and in statements which were only received by the defendants after the commencement of the hearing. In that regard the defendants draw attention to the fact that notwithstanding the directions with respect to statements, a statement of 3 October 1999 was received by the defendants on 5 October 1999, this being a statement said to be in reply by Mr Hogarth and covering some 103 pages. The defendants also rely upon a further statement filed in court on 11 October, which is a shorter statement by Mr Hogarth seeking to make certain amendments to his statement in reply. 35    The third suggested special circumstance is that, given the issues and complexities of the case, the evidence that Mr Hogarth has given, and the cross-examination when concluded by Mr Shand, the cross-examination of Mr Officer, if it is permitted, it is submitted, could not be said to have been or be oppressive to Mr Hogarth. 36    The final matter relied upon by the defendants is that in the circumstances outlined in terms of the date history of the proceedings "it was reasonable for the legal advisers of the defendants to believe that the cross-examination of Mr Hogarth would be concluded in the period 20 September to 22 October 1999". [Transcript page 273] 37    Mr Powell, in submission, has drawn the Court's attention to the decision of Young J in GPI Leisure v Herdsman Investments (No 3) (1990) 20 NSWLR 15, in particular to a passage at page 24, where his Honour said:

"I am quite sure that there is no hard and fast rule of law or practice which compels me to say that only Mr Hughes QC, as the senior of the two counsel, can cross-examine any particular witness. This is because first, I do not think there is such a rule other than a guide to how a judge should exercise his or her discretion, but also I do not think that strictly speaking the present parties can be said to be in identical interests as if they were joint defendants.

In all the circumstances my view is that a fair trial will be assured in accordance with the ruling that I have made, that Mr Hughes and Mr Archibald may agree between themselves who will go first in cross-examination, both may cross-examine, but there is to be no material overlapping in the cross-examination of the senior counsel."

38    Mr Powell submits, and I accept, that the question is one for exercise by the Court of its discretion and that the Court exercises its discretion in determining how to ensure that a fair trial will be assured. Mr Powell, as I understood it, in his submissions accepted that there are circumstances in which cross-examination by more than one counsel can clearly be regarded as oppressive. 39    Mr Ellicott accepts that the principle is clear; namely, that the Court's function is to administer justice between the parties and in carrying out that function to be fair. Mr Ellicott submits that for this reason the Court has, by and large, and subject to special circumstances and exceptional circumstances, generally turned its face against allowing more than one counsel to cross-examine a particular witness. Mr Ellicott submits that those who wish to have the Court exercise a discretion to permit more than one cross-examination, must show that special circumstances exist. 40    Mr Ellicott submits that the defendants knew of the limitations on Mr Shand's time and availability to continue this case and refrained from announcing that matter to the plaintiffs or to the Court until last Friday. That does seem to be a given circumstance, no doubt on my understanding of the matrix of fact. 41    Mr Ellicott submits that with their chosen counsel, the defendants have then pursued the cross-examination in the manner that they saw fit, and have used up generally the time available. That is to say Mr Shand's available time. Mr Ellicott submits that the defendants could have informed the Court and the plaintiffs of this difficulty, and that for example it may have then been the case that no view would have taken place on the day when the view did take place. The submission is that the problem which has now emerged must have been obvious, and must have been obvious for sometime. 42    Mr Ellicott submits that this is not a case of a counsel falling ill. Mr Ellicott submits that the Court cannot take into account the personal circumstances which the defendants assert require Mr Shand to be absent from the court on Wednesday afternoon, Thursday afternoon and Friday afternoon of this week. That being, on Mr Ellicott's submission, not a material matter. 43    Mr Ellicott draws the Court's attention to a number of authorities, and in particular in relation to one type of special circumstances the decision of Beach J in Eva Pty Limited v Charles Davis Limited (1982) VR 515 where Beach J held that there were shown to be special circumstances to permit departure from the established practice. In that case such special circumstances accepted by the Court were that the magnitude and complexity of the matters to be investigated in the various actions made it highly improbable that one counsel could so familiarise himself with every aspect of the issues to be investigated so as to be able to adequately prepare and conduct the cross-examination of the principal witness in relation to those matters. His Honour also took into account the fact that the matters sought to be dealt with by senior counsel were clearly defined, and did not overlap the other issues in the actions which would result in no duplication of cross-examination provided that junior counsel proposed to follow senior counsel confined himself to those special issues. 44 Mr Ellicott draws attention to the fact that when the case was set down for hearing, the plaintiffs are said to have announced as their estimate of hearing time, four weeks, and the defendants six weeks. Mr Ellicott submits that on any view there has been time in a six week case to have had a six day cross-examination. His submission is that having regard to the way in which the cross-examination has been conducted the Court should hold that it would be oppressive for Mr Hogarth to be exposed to a further cross-examination. Mr Ellicott further points out that whilst the terms of the application are to allow further cross-examination on areas and materials not previously covered by Mr Shand in his cross-examination, a parameter of the defendants' application is to permit cross-examination on credit. Mr Ellicott's submission is that it will be impossible for Mr Officer or Mr Powell, depending on which of those members of the bar would cross-examine, to keep out of issues credit. 45 Mr Ellicott draws particular attention to portions of the judgment of Beach J including the following appearing at page 517:

There is then a reference to the decision of Doe v Roe (1809), 2 Camp. 280; 170 E.R. 1155 and I quote:
“There was two counsel for the plaintiff - the junior having called the witness, who seemed disposed to shuffle and prevaricate - the leader interposed and was proceeding to examine him. Counsel on the opposite side contended that this was irregular and that although where there were several counsel on the same side they might arrange among themselves by whom the witnesses should be examined yet that when the examination of a witness was begun by one gentleman, the others had no right to put a question. They might privately suggest questions proper to be put but could not address any directly to the witness. If this rule were not adhered to, a witness might be subject to the examination or cross-examination of as many barristers as were retained for the plaintiff or defendant. Much time would be wasted and great confusion would be introduced into proceedings at nisi prius. Ellenborough, Lord C.J.: ‘Convenience certainly requires that the examination of a witness should be carried on entirely by the gentlemen who begins it and several counsel clearly cannot be permitted to put questions to the same witness, one after another, in the manner apprehended, but, I think the leading counsel has a right, in his discretion, to interpose and to take the examination into his own hands - very unpleasant consequences might follow if this were not allowed. If a gentleman, it being his first appearance in a court of justice, should be much embarrassed in the course of examining a witness - it would be hard if it were in the power of the opposite party to prevent his leader from stepping in to his relief. And other occasions may be imagined when it may be very important that the gentleman who conducts the cause should have the privilege of putting questions to a witness originally called by a co-adjuter. In the present state of the Bar there is no danger of this privilege being abused’.”
The passage in Wigmore, supra, continues:-
“This rule has been recognised in judicial rulings generally and also in a few statutes doubtless also in many local rules of court. It is, of course, subject to reasonable exceptions allowable in the trial court’s discretion. Moreover, it ought not to apply to the examination of another witness nor of the same witness at another stage or by a separate party in the same stage nor to any process but that of putting the questions to the witness”.

46    Mr Ellicott also draws attention to the reference by Beach J to Phillips v Phillips, to be found at page 518 of the decision in Eva. One passage of that judgment I note commencing at page 519, includes an excerpt from the judgment of Alan J in Phillips v Phillips (1966) 1 NSWR 49 where the Court had stated:

“It is, I think, obvious, and as is made clear in the authorities to which I have been referred, that there are many reasons why this should prima facie be adhered to. It is true that in the particular case of an emergency, perhaps through illness or other event which renders it impracticable or undesirable in the interests of justice, or, indeed, impossible, in the events which have happened, for the same Counsel to continue his examination or cross-examination that in such a case, the Court would allow any other Counsel, properly briefed and appearing in the proceedings, to assume the responsibility of continuing the particular examination or cross-examination, even though this be already commenced and incomplete. One only has to consider the circumstances of sudden illness, loss of voice or other emergency which remove from the party’s representation the Counsel whom he or she had had up to that point. But it does seem to me to require some particular occasion to justify this situation.”
His Honour then referred again to the case of Doe v Roe, supra, and continued:
“It will be seen therefore that this authority does contain suggestions to some extent in support of both Counsel but it seems to me that it does support the proposition that there should be, in a particular case, some special circumstances sufficient to require the Court to allow a proceeding, which is a departure from established practice. Long-established practices are, I suppose, not likely to be departed from, yet, in the interests of overall justice, may on occasion have to be controlled and made amendable to the exigencies of the occasion.”

47    Without being exhaustive in relation to Mr Ellicott's submissions, he pointed out importantly, as he submitted, that the defendants did not inform the plaintiffs or the Court of the problem, or looming problem with Mr Shand's availability until very late in the piece. Also that in his submission, it was not possible to sever in a fashion which would not be oppressive to Mr Hogarth, the probable topics for further cross-examination, and that in the context of the case, and bearing in mind the mode of cross-examination, on Mr Ellicott's submission, the defendants have had sufficient time to complete their cross-examination. 48    Neither counsel took the Court to the precise head of jurisdiction of the Court in exercising its undoubted discretion to permit or disallow further cross-examination. That power may be simply part of the inherent power of the Court. There are presently two particular sections of the Evidence Act which may well apply. The first is s 11 (1) of the Act which provides that the power of a court to control the conduct of a proceeding is not affected by the Act, except so far as the Act provides otherwise expressly or by necessary intent. The other section is s 26, which provides that the Court may make such orders as it considers just in relation to the way in which witnesses are to be questioned, and the presence and behaviour of any person in connection with the questioning of witnesses. 49    In Hadid v Australis Media [unreported Supreme Court of New South Wales, Sperling J, 11 November 1996], his Honour apparently dealt with an example of a situation where the s 26 power could be utilised in a civil case where a number of parties had the same interest. The footnote to Odgers Third Edition Uniform Evidence Act page 64 states that Sperling J considered that the power in this regard derived from s 11. 50    For obvious reasons it is unnecessary for the Court to go further into the question of the power of the Court in relation to exercising a discretion one way or another. 51    To my mind, of some particular importance in relation to the mode in which the Court's discretion should here be exercised is the fact that the litigation is complex, involves very large sums of money, and involves important claims in relation to the credit of various material witnesses. Additionally to be taken into account is the fact that a second amended summons was propounded on 21 September, and a third amended summons on 27 September. 52    Importantly it seems to me, to be included as part of the Court's consideration of the subject application, is the matter of the arrival of the late statements by Mr Hogarth, and particularly the 3 October one hundred and three paragraph statement. 53    Whilst the Court endeavours to keep a level playing field by giving directions for the service of statements by particular dates during a conventional timetable leading up to a hearing, it is not uncommon for one party or the other during the hearing to seek to add to earlier statements, whether by lay witnesses or by experts. This experience requires the Court to adjudicate disputes. From time to time no leave to rely upon late statements is granted, and from time to time leave is granted, and sometimes, subject to conditions. In every circumstance it is my understanding that the Court will adjudicate applications for amendment of a summons, or a defence, or a cross-claim, or a defence to cross-claim, and will adjudicate an application for leave to rely upon and file and read a late statement, on an instant specific basis. That requires the Court to inquire as to possible prejudice of the opposing party, and requires the Court to embark upon a fairly delicate exercise of, at the same time, permitting each party to have their full day in court, and ensuring that there is no grave prejudice to a recipient party in terms of making any such order. 54    I have come to the clear conclusion in the present circumstances that the application by the defendants for leave to further cross-examine, subject to constraints, should be allowed. I take into account importantly the fact that Mr Powell of junior counsel for the defendants has been in court every day during the hearing up to this point in time, and that it cannot be said that if Mr Powell is to further cross-examine, such further cross-examination would be without a very full and detailed understanding of the whole of the course of both the addresses, as well as the cross-examination to this point in time, as well as the particular documents on which Mr Hogarth has cross-examined. For the same reason, if Mr Officer is to conduct the further cross-examination, I would not permit that exercise in the absence of Mr Powell as his junior, for the reason that Mr Powell would know when and if objections were taken by Mr Ellicott to a line of cross-examination and generally, when and how Mr Officer's questions may offend the obviously important consideration that ground already covered in cross-examination by Mr Shand, be not recovered. To my mind the constraints, the subject of the application as made, namely to allow further cross-examination by either one of Mr Powell or Mr Officer QC, and on areas not previously covered by Mr Shand, are a sufficient protection to the plaintiffs to avoid oppression in the circumstances. When and if cross-examination on areas of credit is sought to be pursued by whichever counsel is to further cross-examine, the Court will entertain, depending as it arises, objections by the plaintiffs, should it appear that the cross-examination by reason of that already carried out by Mr Shand, is oppressive to Mr Hogarth. 55    It is certainly the case that the Court's exercise of the discretion in this case takes very much into account the voluminous nature of the statements put on by Mr Hogarth, and the voluminous nature of the materials now before the Court subject in certain cases to objections which may or may not be pursued of Exhibits PX and DX. 56    The type of case with which the Court is presently dealing is beset with enumerable issues of fact, and enumerable sub issues of fact, and enumerable issues of credit. In a real sense, one of the plaintiffs' attempts in the case is to have the Court determine as a matter of probability, what are the prospects that had the Commission of Inquiry into the Helensburgh lands been conducted in a particular way the decision may have been otherwise than in fact the decision was. That very circumstance ought make plain the unusual nature of these proceedings, and the fact that the Court must strain to give each party, not only in relation to cross-examination, but in relation to calling of evidence, address, and generally the procedures which the forensic entitlements of the parties permit, a full opportunity to each have their day in court. Had Mr Hogarth been a minor witness in the scheme of things, the decision on discretion may have been very differently exercised. Mr Hogarth, together with one or two other of the plaintiffs witnesses, and together with two or three possibly of the defendants' witnesses, are the principal, as it were, lay witnesses who give evidence in relation to conversations and negotiations and communications which cover literally a number of years. 57    Finally, it is important to note that to my mind the fact that the defendants have not informed the Court or the plaintiffs of precisely what are the areas upon which the new counsel will cross-examine, ought not of its own result in the application be dismissed. That having been said, I have taken account of the general estimate by Mr Powell and/or Mr Shand that it is likely that the remaining cross-examination will take approximately two days. At the end of two days I will entertain a further application, if it is pursued by Mr Ellicott, for the Court to then peremptorily, regardless of the then state of the cross-examination, debar further cross-examination. Again, any such application will be determined on its then merits. The Court exercising its discretion in this fashion should not be read by the defendants as in any fashion permitting the defendants to traverse the same ground, or to in effect to have a second attempt to cross-examine on areas not legitimately said to be "materials or areas not previously covered by Mr Shand in his cross-examination". 58    For those reasons, I allow the application in the terms in which it was made, and grant leave to the defendants to further cross-examine Mr Hogarth by either Mr Officer QC or Mr Powell, on areas and materials previously not covered by the cross-examination of Mr Shand, but permitting further cross-examination on credit generally.

I certify that paragraphs 1 - 58
are a true copy of the reasons
for judgment herein of
the Hon. Justice Einstein
given on 20 October 1999
and revised on 6 July 2000

___________________
Susan Piggott
Associate

6 July 2000

Last Modified: 04/18/2001