Leggett v Hawkesbury Race Club Limited (No 2) (Reopening Decision)
[2021] FCA 1657
FEDERAL COURT OF AUSTRALIA
Leggett v Hawkesbury Race Club Limited (No 2) (Reopening Decision) [2021] FCA 1657
File number(s): NSD 1554 of 2019 Judgment of: RARES J Date of judgment: 16 December 2021 Catchwords: EVIDENCE – whether leave should be granted to applicant to reopen case in-chief at close of respondent’s case – whether substantial injustice likely to be caused to respondent if leave to re-open granted – where additional witness relevant both to applicant’s primary case and to credibility of respondent’s principal witness Legislation: Evidence Act 1995 (Cth) ss 101A, 102 and 106
Fair Work Act 2009 (Cth)
Cases cited: Australian Securities and Investments Commission v Rich (2006) 235 ALR 587
Wright v Wilcox (1850) 9 CB 650; 137 ER 1047
Division: Fair Work Division Registry: New South Wales National Practice Area: Employment and Industrial Relations Number of paragraphs: 16 Date of hearing: 16 December 2021 Counsel for the Applicant: Mr M. Best Solicitor for the Applicant: Gilberts Legal Counsel for the Respondent: Mr L. King SC and Mr I. Latham Solicitor for the Respondent: The Workplace – Employment Lawyers Pty Ltd ORDERS
NSD 1554 of 2019 BETWEEN: VIVIENNE LEGGETT
Applicant
AND: HAWKESBURY RACE CLUB LIMITED
Respondent
ORDER MADE BY:
RARES J
DATE OF ORDER:
16 DECEMBER 2021
THE COURT ORDERS THAT:
1.The applicant’s application to call Kimberley Talbot to give evidence be granted.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
(REVISED FROM THE TRANSCRIPT)RARES J:
During the course of cross-examination of Greg Rudolph, the former chief executive officer of the respondent, Hawkesbury Race Club Ltd, he was asked questions about a conversation he had with Kimberley Talbot. Ms Talbot had given an outline of evidence which the solicitors for the applicant, Vivienne Leggett, had provided to the Club, but she was not called in Mrs Leggett’s case in-chief.
When counsel for Mrs Leggett commenced to cross-examine Mr Rudolph on the conversation he allegedly had with Ms Talbot, senior counsel for the Club objected on the ground that it was not relevant. Mr Best, who appears for Mrs Leggett, put to Mr Rudolph that, on 20 May 2016, a date that does not appear in Ms Talbot’s outline, he went to the Richmond Club, the organisation for which Ms Talbot worked as chief executive, to introduce himself early in his tenure at the Club. Mr Best asked Mr Rudolph whether he had said to Ms Talbot, “Do you like Vivienne Leggett?” At that point, counsel for the respondent, Mr King SC, objected.
I allowed the evidence of the conversation to be led because I took the view that it was a matter being put in cross-examination, which may or may not become relevant or go to credibility, reserving to Mr King the right to seek to have the evidence struck out as irrelevant at a later stage. Mr Best now seeks to call Ms Talbot to establish what was said between her and Mr Rudolph on, relevantly, the occasion put in cross-examination.
The legislative context
Relevantly, s 102 of the Evidence Act 1995 (Cth) provides that credibility evidence about a witness is not admissible, but s 106 relevantly provides:
106 Exception: rebutting denials by other evidence
(1)The credibility rule does not apply to evidence that is relevant to a witness’s credibility and that is adduced otherwise than from the witness if:
(a) in cross‑examination of the witness:
(i) the substance of the evidence was put to the witness; and
(ii) the witness denied, or did not admit or agree to, the substance of the evidence; and
(b) the court gives leave to adduce the evidence.
(2) Leave under paragraph (1)(b) is not required if the evidence tends to prove that the witness:
(a) is biased or has a motive for being untruthful; or
(b) has been convicted of an offence, including an offence against the law of a foreign country; or
(c) has made a prior inconsistent statement; or
(d) is, or was, unable to be aware of matters to which his or her evidence relates; or
(e) has knowingly or recklessly made a false representation while under an obligation, imposed by or under an Australian law or a law of a foreign country, to tell the truth.
Credibility evidence is defined in section 101A as follows:
101A Credibility evidence
Credibility evidence, in relation to a witness or other person, is evidence relevant to the credibility of the witness or person that:
(a) is relevant only because it affects the assessment of the credibility of the witness or person; or
(b) is relevant:
(i) because it affects the assessment of the credibility of the witness or person; and
(ii) for some other purpose for which it is not admissible, or cannot be used, because of a provision of Parts 3.2 to 3.6.
Note 1: Sections 60 and 77 will not affect the application of paragraph (b), because they cannot apply to evidence that is yet to be admitted.
Note 2: Section 101A was inserted as a response to the decision of the High Court of Australia in Adam v The Queen (2001) 207 CLR 96.
The parties’ submissions
Mr Best sought, first, to have the evidence received under the exception to the credibility rule in s 106(2) of the Evidence Act, namely that leave to adduce evidence, the substance of which had already been put to a witness in cross-examination, which the witness did not agree with or admit, was not required, because it tended to prove that the witness was biased or had a motive for being untruthful. Alternatively, Mr Best sought leave to re-open Mrs Leggett’s case in chief.
Mr King SC opposed the application to adduce her evidence on both bases. First, he contended that I now should reject the cross-examination of Mr Rudolph as not being relevant, and not supported by any evidence called by Mrs Leggett to this point in the trial. If that were not the case, he contended that Mr Best had made a deliberate forensic decision not to call evidence that clearly went to supporting Mrs Leggett’s articulated case, that she had been bullied and victimised by Mr Rudolph’s conduct from an early stage in his employment, and had decided, knowing she was available, not to call Ms Talbot before closing his case in chief so far as it depended on witnesses other than documentary tenders.
Mr King SC contended that Mrs Leggett ought be bound by the conduct of her case, and that it was impossible to say that there could be no prejudice to the Club were the evidence to be adduced, because it may be necessary, perhaps, to recall Mr Rudolph.
Consideration
It is evident that the evidence may be relevant in two ways, first, going in support of Mrs Leggett’s case, that Mr Rudolph had an animus towards her from early in his tenure, and or alternatively, going to Mr Rudolph’s credit as to how he answered questions about the conversation in cross-examination.
In Australian Securities and Investments Commission v Rich (2006) 235 ALR 587 at 591–593 [14]–[19], Austin J discussed principles as to allowing an applicant to reopen in a proceeding for a civil penalty, such as Ms Leggett claims as part of the relief she seeks here. His Honour summarised a number of principles in criminal proceedings and said that similar principles applied to a civil penalty proceeding, but less strictly. He set out a helpful statement of the relevant discretionary factors as follows at 593 [18]:
The defendants submitted a list of matters that they claimed to be relevant to the exercise of the court’s discretion to permit the plaintiff in a civil penalty proceeding to adduce further evidence after it has closed its case. I accept their list as a useful statement of relevant discretionary factors, applicable in such a case as the one before me. The list is as follows:
(a) the nature of the proceeding;
(b) whether the occasion for calling the further evidence ought reasonably to have been foreseen;
(c) the consideration of fairness that the defendant is entitled to know all of the evidence he has to meet in taking forensic decisions as to cross-examination and the nature and extent of the evidence he will himself adduce on the matters in question;
(d) the extent to which the plaintiff has embarked upon calling evidence on the issue in question in its case-in-chief;
(e) the importance of the issue on which the further evidence is sought to be adduced to the pleaded issues in the case;
(f) the degree of relevance and probative value of the further evidence sought to be adduced and its potential to involve an undue waste of time;
(g) the prejudice to the defendant in terms of delay in the completion of the proceeding and the consequential costs;
(h) the public interest in the timely conclusion of litigation; and
(i) what explanation is offered by the plaintiff for not having called the evidence-in-chief.
In J D Heydon, Cross on Evidence (12th ed, Lexis Nexis, 2020) at [17–720], the learned author noted that the rules about splitting cases or calling evidence that is not strictly in reply are likely to be applied less strictly in civil cases than in criminal ones, referring to, among other things, the decision of the Court of Common Pleas in Wright v Wilcox (1850) 9 CB 650; 137 ER 1047. There Wilde CJ stated the principle (at 657; 1050) as:
The time at which evidence is to be received must be in the discretion of the judge, the exercise of that discretion being subject to the review of the court.
His Lordship said that, in that case, he could not see that if the evidence were allowed to be led in reply it would lead to any injustice. Maule J said (at 657; 1050):
The objection to the reception of the evidence was, that it was offered too late. It would be very inconvenient to hold this to be a sufficient ground for setting aside a verdict. Cases in which the discretion of the judge must be exercised, frequently occur. When a party has closed his case, he often asks and is allowed to supply a deficiency.
(emphasis added)
Creswell and Talfourd JJ each agreed (at 658; 1050) that this issue was one in the discretion of the judge. This suggests that in civil cases at common law, there is no fixed principle. Obviously, the considerations in a case such as this, where a civil penalty is sought, also raise considerations of the kind that Austin J described in Rich 235 ALR at 593 [18]. However, Mrs Leggett does not seek only a civil penalty for contraventions of the Fair Work Act 2009 (Cth), but also seeks damages and compensation under s 545(2)(b) for the Club’s repudiation of her contract of employment and work injury damages caused to her by, she alleges, Mr Rudolph’s bullying of her in her role.
Clearly, a decision not to call Ms Talbot to give her evidence had been considered and made by counsel prior to closing Mrs Leggett’s case. On the other hand, the Club was forewarned of the nature of her evidence and Mr Rudolph has been cross-examined on it. The evidence seems to me to be relevant, both for the purpose of determining the primary case of Mrs Leggett as to Mr Rudolph’s attitude toward her from the inception of their relationship, and as to his credibility. Both parties anticipate that Ms Talbot’s evidence will not take any particular length of time, perhaps an hour, and she is ready to be called now.
Conclusion
While, as the Club says, parties ought be held to forensic decisions they make in the conduct of their case, I do not consider that there is any substantive prejudice to it in allowing Mrs Leggett to reopen to call Mrs Talbot to give this evidence in the case in chief. But if, during the course of giving her evidence, something arises which creates a prejudice that has not yet been foreseen, it will be open to me always to reject it and remove it from evidence if need be.
In my opinion, I should grant the application and I will allow Ms Talbot to be called.
I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Rares. Associate:
Dated: 28 February 2022
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