Lehrmann v Network Ten Pty Limited (Cross-Examination)

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FEDERAL COURT OF AUSTRALIA

Lehrmann v Network Ten Pty Limited (Cross-Examination) [2023] FCA 1477

File number: NSD 103 of 2023
Judgment of: LEE J
Date of judgment: 27 November 2023
Catchwords: PRACTICE AND PROCEDURE – whether counsel for both respondents should be permitted to cross-examine Mr Lehrmann – consideration of Pt 2.1 Div 3 of the Evidence Act 1995 (Cth) and the accumulated experience of the common law – no unfettered right to cross-examine a witness – prevailing consideration the need to ensure no unfairness is occasioned – cross-examination of Mr Lehrmann by counsel for Ms Wilkinson limited to topics not covered by counsel for Network Ten and factual matters relating to topics in respect of which it is contended Ms Wilkinson has a different interest to that of Network Ten
Legislation:

Evidence Act 1995 (Cth) Pt 2.1 div 3, ss 26, 27, 28, 192(2)

Defamation Act 2005 (NSW) s 30
Cases cited:

Canberra Residential Developments Pty Ltd v Brendas [2010] FCAFC 125; (2010) 188 FCR 140

French v Triple M Melbourne Pty Ltd [2008] VSC 548

GPI Leisure Corp Ltd v Herdsman Investments Pty Ltd (No 3) (1990) 20 NSWLR 15

NMFM Property Pty Ltd v Citibank Ltd (No 8) [1999] FCA 266; (1999) 161 ALR 581

Roberts-Smith v Fairfax Media Publications Pty Ltd (No 13) [2021] FCA 549
Division: General Division
Registry: New South Wales
National Practice Area: Other Federal Jurisdiction
Number of paragraphs: 33
Date of hearing: 27 November 2023
Counsel for the Applicant: Mr S Whybrow SC and Mr M Richardson SC with Mr N Olson and Mr D Helvadjian
Solicitor for the Applicant: Mark O’Brien Legal
Counsel for the First Respondent: Dr M Collins KC with Mr T Senior
Solicitor for the First Respondent: Thomson Geer Lawyers
Counsel for the Second Respondent: Ms S Chrysanthou SC with Mr B Dean
Solicitor for the Second Respondent: Gillis Delaney Lawyers

ORDERS

NSD 103 of 2023
BETWEEN:

BRUCE LEHRMANN

Applicant
AND:

NETWORK TEN PTY LIMITED ACN 052 515 250

First Respondent

LISA WILKINSON

Second Respondent

ORDER MADE BY:

LEE J

DATE OF ORDER:

27 NOVEMBER 2023

THE COURT ORDERS THAT:

1.Pursuant to s 26 of the Evidence Act 1995 (Cth), the cross-examination of the applicant by senior counsel for the second respondent be limited to factual matters relating to topics:

(a)not covered during the cross-examination of the applicant by senior counsel for the first respondent; and

(b)in respect of which it is contended by the second respondent that she has a different interest in the conduct of the defence of this proceeding to that of the first respondent.

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


REASONS FOR JUDGMENT
(delivered ex tempore, revised from the transcript)

LEE J:

I          AN ISSUE ARISES

  1. An issue has arisen in relation to the cross-examination of the applicant, Mr Lehrmann.

  2. Mr Lehrmann brings these proceedings against two respondents, Network Ten and a journalist, Ms Wilkinson.

  3. At the commencement of the…

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Details
Case
[2023] FCA 1477
Decision Date

CaseChat Overview and Summary

Lehrmann v Network Ten Pty Limited is a case before the Federal Court where the primary issue revolves around whether more than one counsel for the respondents should be permitted to cross-examine Mr. Lehrmann. The respondents, Network Ten and Ms. Wilkinson, have separate counsels who wish to cross-examine Mr. Lehrmann. The court must decide whether this is permissible under the Evidence Act 1995 (Cth) and the common law. The central legal issue pertains to the right to cross-examine a witness, considering the potential for unfairness and the protection of the witness. The court must balance the need to ensure a fair trial against the practicalities of conducting complex litigation. The court examined the principle that there is no unfettered right to cross-examine a witness, citing authorities that reinforce the trial judge's discretion in managing cross-examinations to prevent unfairness. The court noted that ordinarily, only one counsel should cross-examine a witness, but reasonable exceptions exist, particularly where litigation is complex and the bifurcation of cross-examination is necessary.

The reasoning of the court focused on the need to avoid unfairness to the witness while ensuring that all parties have a fair trial. The court considered that this case, while important, was not legally or factually complex by modern standards. The primary concern was the potential for oppression and duplication in cross-examination if more than one counsel were allowed to examine Mr. Lehrmann on the same topics. The court acknowledged that bifurcation of cross-examination can be efficient in complex cases but found that this case did not warrant such an exception due to the relatively straightforward nature of the issues and the limited volume of documentary material. The court also highlighted that there was no significant difference in the interests of the respondents that would justify multiple cross-examinations. Consequently, the court ruled that cross-examination by senior counsel for Ms. Wilkinson should be limited to factual matters not covered by counsel for Network Ten and those where Ms. Wilkinson has a different interest in the conduct of the defence.

Orders

Orders of the court

1. Pursuant to s 26 of the Evidence Act 1995 (Cth), the cross-examination of the applicant by senior counsel for the second respondent be limited to factual matters relating to topics:

(a) not covered during the cross-examination of the applicant by senior counsel for the first respondent; and

(b) in respect of which it is contended by the second respondent that she has a different interest in the conduct of the defence of this proceeding to that of the first respondent.

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

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

The stated intention of senior counsel for Ms Wilkinson, Ms Chrysanthou SC, is to cross-examine Mr Lehrmann. When first apprised of that fact, I observed I did not understand any conflict in the cases of the respondents insofar as the evidence of Mr Lehrmann is concerned. Accordingly, I directed a note to be sent to me explaining the basis upon which it was asserted that cross-examination by more than one counsel should occur: T337.21–338.15. I will come to the suggested bases for further cross-examination shortly, but it is worth saying something at the outset as to the relevant procedural principles and conventions.II THE RULE OF PRACTICE AND THE EVIDENCE ACT 1995 (CTH) There is no unfettered right to cross-examine a witness, at common law or since the passage of the Evidence Act 1995 (Cth) (EA). After a detailed survey of the authorities in GPI Leisure Corp Ltd v Herdsman Investments Pty Ltd (No 3) (1990) 20 NSWLR 15, Young J (as his Honour then was) relevantly observed (at 22–23):(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). Consistently with this conventional approach, shortly following the introduction of the EA, Lindgren J accepted in NMFM Property Pty Ltd v Citibank Ltd (No 8) [1999] FCA 266; (1999) 161 ALR 581 (at 584–585 [16]) that ordinarily, where two or more parties are in the same interest, the trial judge’s discretion will be properly exercised if not more than one counsel is permitted to cross-examine, at least on the same subject matter. A decade or so later, the rationale for the rule of practice preventing two counsel from cross-examining one witness, and reasonable exceptions to the rule, were explained by the Full Court (comprising Finkelstein, Siopis and Katzmann JJ) in Canberra Residential Developments Pty Ltd v Brendas [2010] FCAFC 125; (2010) 188 FCR 140 (at 148 [44]–[45]), where their Honours noted:44… [the rule] can be traced back to the decision of Doe v Roe (1809) 2 Camp 280; 170 ER 1155. As Lord Ellenborough made clear, the rule is for the protection of the witness. He said (at 1156): “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”. Put another way, the common law frowns upon cross-examination by multiple counsel because of the possibility of oppression: JD Heydon, Cross on Evidence (8th ed, Butterworths, 2010) p 627.45Naturally the common law rule is subject to reasonable exceptions. One exception arises from the changing nature of litigation. A common feature of modern commercial litigation is for counsel on one side of the record to split their trial preparation on a topic by topic basis. The conduct of the trial often follows this split with the judge permitting both cross-examination and submissions to be divided so that counsel can deal with his/her assigned topic: see eg Eva Pty Ltd v Charles Davis Ltd [1982] VR 515. This can be an extremely efficient way in which to conduct complex litigation. All the judge need do in such circumstances is ensure there is no unfairness to the witness …

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

The position of Mr Lehrmann was confirmed through his senior counsel when the matter came before me this morning. As I understand it, the position taken by Mr Lehrmann is that he does not object to any cross-examination by Ms Chrysanthou should that cross-examination be limited to factual matters relevant to interests other than those being advanced by Dr Collins on behalf of Network Ten. Otherwise, Mr Lehrmann objects to any duplicative cross-examination on the same topics and the bifurcation of the cross-examination between counsel in relation to common defence issues. V CONSIDERATION AND THE DIRECTION This is a case of great importance to those involved and the facts in issue are serious. As I remarked during oral submissions, one is not to approach cross-examination in any case, let alone a case such as this, as though it is a social cricket match where a batsman retires at 50 to give someone else a go. I accept that where litigation is complex and one cross-examination may need to canvass discrete topics, there may be sound reasons for bifurcation of the cross-examination. A number of examples spring to mind: a complex class action involving allegations of different types of contravening conduct occurring over different periods; a case against directors or an auditor over a corporate collapse, which involves different audit engagement and time-dependent considerations as to whether auditing or accounting standards have been applied; or a complex scientific case where one expert gives evidence in one scientific discipline but the evidence necessarily involves some consideration of other connected, but discrete, scientific disciplines (for example, an allegation a product is carcinogenic). But even in these types of complex cases, at least in my experience, it has mostly proven unnecessary for there to be multiple cross-examinations. Obviously enough, this is not such a case. The issues are of critical importance to the parties, are of public interest and are hotly contested. But whatever else may be said of this proceeding, it is not legally or factually complex by the standards of modern litigation, particularly commercial litigation. Nor is there a significant volume of documentary material. The primary reason why multiple cross-examination should occur is if there is a legitimate difference in the interests of the cross-examining parties or some other reason which, taken together with all other relevant considerations, outweighs concerns as to fairness attending two cross-examinations conducted by senior silks, both of which will almost certainly involve credit attacks. Ms Wilkinson’s reliance on Canberra Residential Developments v Brendas is of limited assistance. That case contains an important statement as to the content of fiduciary relationships but, relevantly for present purposes, it arose out of an unusual state of affairs. Senior counsel was not paid and no longer appeared but had not finished the cross-examination of an important witness. Junior counsel said he would not ask questions on any topic already canvassed but wished to complete the cross-examination. The respondents conceded that if junior counsel was to continue, the cross-examination would cause no injustice. As the Full Court noted, in these singular circumstances, the “surprising ruling” of the primary judge was to prevent the cross-examination being completed because of a failure to show “special circumstances”. The present situation bears no relationship to the circumstances of that case.