MONACO and DANIELS

[2014] FCWA 34

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY LAW ACT 1975

LOCATION: PERTH

CITATION: MONACO and DANIELS [2014] FCWA 34

CORAM: WALTERS J

HEARD: 28 MAY 2014

DELIVERED : 28 MAY 2014

PUBLISHED : 3 JUNE 2014

FILE NO/S: PTW 292 of 2008

BETWEEN: MR MONACO

Applicant

AND

MS DANIELS
First Respondent

AND

MR HIGGS
Second Respondent

Catchwords:

FAMILY LAW – EVIDENCE – where the wife’s counsel seeks leave to recall witness for further cross-examination – self-represented litigant who subsequently briefed counsel – cross-examination by more than one counsel – principles – judicial discretion

Legislation:

Family Law Act 1975 (Cth)

Category: Not Reportable

Representation:

Counsel:

Applicant: Ms K Everett

First Respondent : Mr W Meredith

Second Respondent : Self Represented Litigant

Independent Children's Lawyer : Mr J Pacy

Solicitors:

Applicant: W L & K J Everett

First Respondent : William Llewellyn Meredith

Second Respondent :

Independent Children's Lawyer : Pacy Solicitors

Case(s) referred to in judgment(s):

R v Gassy (No. 3) (2005) 93 SASR 454

Searle v Keayes (1994) 126 ALR 728

Slick v Westpac Banking Corporation [2006] FCA 1712

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT - PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

1Before the Court is Ms [Daniels’] application in a case filed 22 May 2014. She seeks orders granting her legal representative, Mr Meredith, leave to recall the applicant and the second respondent for further cross-examination. Originally, the single expert, Professor Lipton, was included in the orders sought but Mr Meredith has indicated today that he is not pressing for the recall of Professor Lipton.

2The law in relation to such applications was summarised by Tamberlin J in Searle v Keayes (1994) 126 ALR 728. The factual situation in Searle v Keayes was not dissimilar to that currently before the Court. Reading from the headnote, the factual circumstances were as follows:

The first respondent was unrepresented during the first five days of proceedings between the applicant, the first respondent and others. During this period, the first respondent, in person, cross-examined a number of witnesses called by the applicant. The cross-examination was completed. The first respondent subsequently obtained legal assistance. Counsel for the first respondent applied for the recalling of the applicant and a witness who gave evidence on behalf of the applicant for further cross-examination. Counsel for the first respondent argued that cross-examination of these witnesses by the first respondent had not been adequate.

3Tamberlin J said (on p 729):

The principles that guide the Court in circumstances such as the present are well known. One important consideration is that litigation must be resolved and not be the subject of continuous reopening and prolongation. The second matter is that there has been a long tradition that only one counsel should question during a single stage in the examination of a single witness.

As Wigmore points out, this tradition rests on the wise policy of protecting the witness from undue and confusing interrogation as well as securing system and brevity by giving the control of the interrogation into a single hand. That statement by Wigmore goes on to say that this general principle has been recognised in judicial rulings and legislation and in many local rules of Court. It is subject, however, to reasonable exceptions allowable at the trial judge’s discretion. There is no doubt that the judge does have such a discretion as to the recalling of witnesses.

4There are other cases which deal broadly with the issue but none so much on point as the decision to which I have just referred. Searle v Keayes has been cited with approval in subsequent decisions: see R v Gassy (No. 3) (2005) 93 SASR 454 and Slick v Westpac Banking Corporation [2006] FCA 1712.

5In broad terms, therefore, a trial judge has a discretion as to the recalling of witnesses for further cross-examination. An important principle, as Tamberlin J has said, is that parties should not have to endure two courses of cross-examination by different counsel for the same party. In the present case, of course, the witnesses have not only been cross-examined by Ms Daniels, but also by Mr Pacy. I am also required to take into account the interests of justice and practical matters such as the possible prejudice to the parties and the need to avoid the trial being unduly delayed. Still, the Court can accede to Ms Daniels’ request if there are special circumstances which it regards as being sufficient to justify the proposed departure from the general rule.

6This trial has already taken considerable time and it has also been at great expense to the public purse. I see a difference, however, between the two witnesses who are sought to be recalled for cross-examination. Ms Daniels has deposed to being fearful of Mr Monaco (indeed, she says she is absolutely terrified of him) due to certain behaviour that occurred during the course of their relationship. The trial is not yet complete, and I have yet to form a concluded view as to whether I accept Ms Daniels’ evidence in that regard, but that is certainly her assertion. Moreover, I note that during her cross-examination of Mr Monaco, Ms Daniels did not press issues as firmly as she did with the other witnesses. Indeed, her cross-examination of Mr Higgs was extensive, as was her cross-examination of Professor Lipton. She has not indicated, for example, that she was fearful or terrified of Mr Higgs in any way and her comprehensive cross-examination of him would suggest that there are no special circumstances that would warrant recalling him.

7I see the position as being different with regard to Mr Monaco – not so much because Mr Meredith may have matters of concern that he might wish to cover prior to making a closing address, but because of the assertion made by Ms Daniels that, due to the nature of her relationship with Mr Monaco, she did not feel able to cross‑examine him effectively. On the other hand, two matters are of concern to me. Firstly, the possibility of further cross-examination of Mr Monaco delaying the proceedings unduly is a relevant consideration. Secondly, I am conscious that Mr Monaco was cross-examined at considerable length by the independent children's lawyer. Mr Pacy's cross-examination covered almost every conceivable area of dispute between Mr Monaco and Ms Daniels.

8In all the circumstances, and in order to avoid the possibility of injustice to Ms Daniels, I am prepared to give Mr Meredith an opportunity to further cross‑examine Mr Monaco– but I am not prepared to give him carte blanche, as it were, in relation to the time that is to be taken for that purpose. I will allow him to cross‑examine Mr Monaco for a maximum of two hours.

9In other words, I will dismiss Ms Daniels’ application as it relates to Mr Higgs. I will require Mr Monaco to be recalled, and allow Mr Meredith to cross-examine him for a maximum of two hours.

I certify that the preceding [9] paragraphs are a true copy of the reasons for
judgment delivered by this Honourable Court

Associate