Lambard & Lambard

[2021] FedCFamC1F 180

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Lambard & Lambard [2021] FedCFamC1F 180  

File number(s):

SYC 2664 of 2020

Judgment of:

MCCLELLAND DCJ

Date of judgment:

21 October 2021

Catchwords:

 FAMILY LAW – PRACTICE AND PROCEDURE – Where counsel seeks permission to cross-examine same witness – Whether it is oppressive for two counsel representing parties with aligned interests to both cross-examine a witness – Application allowed – Section 41 Evidence Act 1995 (NSW) qualifies counsel’s right to cross-examine – Cross-examination should not traverse areas already covered in first cross-examination.

Legislation:

Evidence Act 1995 (NSW) ss 26, 41.

Family Law Act 1975 (Cth) div 12A.

Cases cited:

Bathurst Regional Council v Local Government Financial Services Pty Ltd [2011] FCA 1181

Canberra Residential Development Pty Ltd v Brendas (2010) 188 FCR 140

Eva Pty Ltd v Charles Davis Ltd (1982) VR 515

GPI Leisure Corp Ltd v Herdsman Investments Pty Ltd (No 3) (1990) NSWLR 15

Parbery and Anor v QNI Metals Pty Ltd and Ors [2018] QSC 83

Division:

Division 1 First Instance

Number of paragraphs:

19

Date of hearing:

12–15, 18–22 October 2021

Place:

Sydney (via videolink)  

Counsel for the Applicant:

Ms Lioumis

Solicitor for the Applicant:

McAuley Hawach Lawyers

Counsel for the First Respondent:

Ms Gillies SC

Solicitor for the First Respondent:

Linden Legal

Counsel for the Second Respondent:

Mr Kenny with Ms Tabbernor

Solicitor for the Second Respondent:

Matthews Folbigg Pty Ltd

Counsel for the Third Respondent:

Mr Harper

Solicitor for the Third Respondent:

Mitchell Lawyers

ORDERS

SYC 2664 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS LAMBARD

Applicant

AND:

MR LAMBARD

First Respondent

MS DABELL

Second Respondent

MS M LAMBARD

Third Respondent

ORDER MADE BY:	MCCLELLAND DCJ
DATE OF ORDER:	21 OCTOBER 2021

THE COURT ORDERS THAT:

1.Counsel for the Second Respondent is entitled to cross-examine the First Respondent, the father, following the conclusion of counsel for the Applicant’s cross-examination of the father, provided that the cross-examination:

(a)is limited to questions in respect of the period subsequent to the interim orders made on 26 May 2020; and

(b)will not traverse areas already covered in counsel for the Applicant’s previous cross-examination of the same witness.

Note:   The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

EX TEMPORE REASONS FOR JUDGMENT

MCCLELLAND DCJ:

INTRODUCTION

1. During the course of the final hearing of this matter, which remains part heard and for which I will deliver separate reasons, an issue regarding cross-examination of one of the parties arose.

2. The final hearing concerns the parenting arrangements for the child, and for which there are four parties to the proceedings, being the applicant mother, the first respondent who is the child’s father, the second respondent who is the maternal grandmother, and the third respondent, the paternal grandmother.

3. Counsel for the maternal grandmother has given notice that he seeks to cross-examine the father and, indeed I anticipate, the paternal grandmother, following on from the cross-examination by counsel for the mother. This is in circumstances where the mother and maternal grandmother have provided the Court with a joint Minute of Order that they seek in the proceedings.

4. By way of context, senior counsel for the father and counsel for the paternal grandmother indicated they would have some concerns with this, but clarified this morning that they are not objecting to that cross-examination occurring. They are simply providing notice, as I understand it, that the cross-examination should not traverse areas that have been covered by the cross-examination conducted by the mother’s counsel. If that is the case then I think everyone, to use the vernacular, is on the same page in respect to the issue, but to avoid doubt, I will clarify my decision as follows. 

5. Counsel for the maternal grandmother indicated that he was essentially seeking to cross-examine in respect of events that have occurred from 1 January 2020. In response to an issue raised by me, counsel for the maternal grandmother accepted that a more appropriate timeframe for cross-examination may be from the date of the interim orders made on 26 May 2020 which, broadly expressed, allowed for the child to spend time with the maternal grandmother, who, at that point, was located in a different state to the child.

6. At the time of making those orders, it was anticipated that the time the child would spend with the maternal grandmother would also occur in the presence of the mother. Nonetheless, the beneficiary of that interim order was the maternal grandmother. I am satisfied that this is an appropriate cut off point. That is not to say that each and every question asked by counsel for the maternal grandmother will be allowed. That will depend on its context. 

   RELEVANT PRINCIPLES

7. I have been helpfully referred by the parties to a number of decisions, including most relevantly, Canberra Residential Development Pty Ltd v Brendas (2010) 188 FCR 140 (“Brendas”). I have made reference, also, to Bathurst Regional Council v Local Government Financial Services Pty Ltd [2011] FCA 1181 (“Bathurst”), and been referred to the case of Eva Pty Ltd v Charles Davis Ltd (1982) VR 515, as well as a further decision of GPI Leisure Corp Ltd v Herdsman Investments Pty Ltd (No 3) (1990) NSWLR 15 (“GPI Leisure”). Also of relevance is the decision of the Supreme Court of Queensland in Parbery and Anor v QNI Metals Pty Ltd and Ors [2018] QSC 83 (“Parbery”), at [18].

8. These cases acknowledge a longstanding common law principle that it may be oppressive for two counsel representing parties with aligned interests to both cross-examine a witness. Reference has been made, in those authorities, to the practice only being permitted in exceptional circumstances, and often in the context of complex commercial litigation.

9. My analysis of the law is, stated broadly, that s 26 of the Evidence Act 1995 (NSW) (“the Act”) permits a party to ask questions – in other words, to cross-examine another party – and that is a right that prima facie counsel for the maternal grandmother has. This right is, however, subject to s 41 of the Act. I agree with the submission of counsel for the paternal grandmother that s 41 qualifies that right in a number of respects, including by providing that a question which is oppressive is not allowable and, in determining what is oppressive, it is appropriate to have regard to the common law.

10. In that context, I refer to Bathurst at [7]–[9], which discusses the principles of the decision that counsel for the maternal grandmother has referred me to: GPI Leisure. That decision emphasises the purpose and intent of these principles – be they common law or statutory – as placing a duty on me, as the trial judge, to ensure that all parties have a fair trial, including in respect to the manner in which examination and cross-examination of witnesses is conducted. As stated in that case, where there is more than one counsel for the same party, ordinarily, the judge will not permit any more than one counsel to cross-examine the same witness, and that includes where certain parties have aligned cases. 

    CONSIDERATION

11. However, these principles need to be applied in the context of parenting proceedings where the principles for the conduct of parenting proceedings are set out in Division 12A of the Family Law Act 1975 (Cth). While the Court is not acting as an inquisitorial body, there are also authorities that the proceedings are not strictly inter parties. Essentially, the Court is receiving evidence and inviting submissions in a process that is just and fair to both parties and which will assist the Court to determine what is in the best interests of the child.

12. Moreover, while I accept that situations where there has been some relaxing of the common law restriction on the cross-examination of a witness by counsel representing parties with aligned interests, are usually in the context of complex commercial litigation, that is not universally the case. In that respect, in GPI Leisure at 22–23, Young J set out 13 points to assist in considering this issue. They are as follows:

    (1)The only actual “right” is the right to have a fair trial.

    (2)It is the duty of the trial judge to ensure that all parties have a fair trial.

    (3)In carrying out his duties the trial judge must so exercise his discretion in and about the examination and cross-examination of witnesses that a fair trial is assured.

    (4)Ordinarily, a judge in carrying out his duty will see that the trial is conducted in the manner that is commonly used throughout the State, namely that witnesses are examined, cross-examined and re-examined.

    (5)Where there is more than one counsel for the same party, then ordinarily the judge will not permit any more than one counsel to cross-examine the same witness.

    (6)Where there are parties in the same interest, the judge will apply the same rule as stated in (5).

    (7)Where the issues are complex and there is no overlapping of cross-examination and the proposal is outlined before cross-examination begins, it may be proper for the judge to permit cross-examination of one or more witnesses by more than one counsel in the same interest notwithstanding prima facie rules (5) and (6).

    (8)It may be that in the interests of time or to prevent “torture” of the witness or for other good reasons, a judge may in special circumstances limit cross-examination. Such a situation would occur where, for instance, there was only a fixed amount of time before an event occurred and a decision was essential before that event occurred.

    (9)It is usually not proper to indicate at the commencement of the hearing that cross-examination will be limited to X minutes subject to the right to make an application for an extension, although such a ruling might be justified if time was limited. It would, however, appear to be proper for the judge to say, at any stage during the cross-examination, that he would, unless convinced that the cross-examiner was being of more assistance to the court, curtail cross-examination in Y minutes time. This power would of necessity be used sparingly.

    (10)Group cross-examination either by all counsel cross-examining the witness at one time or a group of witnesses being cross-examined by one counsel at the same time is not a procedure that should be permitted.

    (11)In all proceedings, the court has a duty to prevent cross-examination purely for a collateral purpose or to “torture” the witness.

    (12)In interlocutory proceedings, especially proceedings for an interlocutory injunction, the collateral purpose rules must be looked at very closely because ordinarily it is not proper to permit counsel to go on a fishing expedition and all that the plaintiff need show is a prima facie or strongly arguable case on the merits. Cross-examination on laches, balance of convenience etc is, of course, in a different plight.

    (13)Ordinarily a judge should permit cross-examination of all witnesses by all counsel unless one or more of the above rules apply.

13. It is my view that this case falls within the category described at the seventh point above.

14. As counsel for the maternal grandmother said, the length of the party’s affidavits, the volume of written material that has been provided and the length of time allocated to this case is evidence enough regarding the complexity of this case. In summary, while there is reference to exceptional circumstances being required in the context of complex commercial litigation, the principle was not there confined by Young J to complex commercial litigation, nor was such a limitation imposed by the Supreme Court of Queensland in Parbery where, at [18], it was said:

    … Although there would likely be a division of tasks between counsel such that particular counsel might have carriage of different parts of the proceeding, necessitating different counsel to speak on different issues, that is not uncommon in large and complex proceedings such as the present. …

15. Young J then subsequently referred to Brendas, to which reference has also been made. 

16. Again, that reference in Parbery does not confine the principle to commercial cases and, indeed in that case, it was determined that the process could be managed to ensure that there was “no prejudice to the defendants” at [18].

17. That is the touchstone running through the consideration of this issue. My obligation as a trial judge is to ensure that all parties have a fair opportunity to present their respective cases, and that neither party is the subject of oppressive cross-examination.  Having regard to the above authorities, I am satisfied that this obligation is fulfilled with the division proposed by counsel for the maternal grandmother – that is, that he will ask the father and, I anticipate, the paternal grandmother, questions in respect to the period subsequent to the making of the interim orders in these proceedings in 2020, together with issues going to what I have previously invited the parties to address me on relating to the authority of U & U (2002) 211 CLR 238, concerning the respective proposals of the parties for living and day to day arrangements for the child in the event of the Court making the orders the parties are respectively seeking. In summary, I am satisfied, on its face, that division of cross-examination topics can occur without causing oppression or prejudice to the father or the paternal grandmother.

18. Nonetheless, I will keep in the forefront of my mind the issue raised by counsel for the father, that this does not give an open licence to each and every question. It may well be that some questions arise where objection may be appropriate, including on the basis that it traverses areas previously covered by cross-examination conducted by counsel for the mother.

    CONCLUSION

19. In summary to assist the parties, in advance of the issue arising, I determine that counsel for the maternal grandmother will be entitled to proceed, after counsel for the mother concludes her cross-examination, to ask questions of the father in respect to those matters to which I have earlier referred.

I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Deputy Chief Justice McClelland.

Associate:

Dated:       20 January 2022