NMFM Property Pty Ltd v Citibank Ltd (No 8) - [1999] FCA 266

FEDERAL COURT OF AUSTRALIA
NMFM Property Pty Ltd v Citibank Ltd (No 8) [1999] FCA 266
PRACTICE AND PROCEDURE – right to cross-examine – parties “in the same interest” – sequence of cross-examinations.
EVIDENCE - right to cross-examine – parties “in the same interest” – sequence of cross-examinations.
Evidence Act 1995 (Cth) ss 11, 26, 42
GPI Leisure Corp Ltd v Herdsman Investments Pty Ltd (1990) 20 NSWLR 15
Tedeschi v Singh [1948] 1 Ch 319
NMFM PROPERTY PTY LIMITED (formerly called “National Mutual Property Services (Australia) Pty Ltd”) v CITIBANK LIMITED (formerly called “Citibank Savings Limited”)
NG 765 of 1994
LINDGREN J
12 MARCH 1999
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NG 765 OF 1994

BETWEEN:

NMFM PROPERTY PTY LIMITED (formerly called “National Mutual Property Services (Australia) Pty Ltd”)
First Applicant

NATIONAL MUTUAL ASSETS MANAGEMENT LIMITED
Second Applicant

THE NATIONAL MUTUAL LIFE ASSOCIATION OF AUSTRALASIA LIMITED
Third Applicant

AND:

CITIBANK LIMITED (formerly called “Citibank Savings Limited”)

Respondent

  FIRST CROSS-CLAIM
CITIBANK LIMITED (formerly called “Citibank Savings Limited”)
Cross-Claimant

[Lance Kelly Financial Management Pty Ltd, removed as a party]
First Cross-Respondent

LANCE KELLY
Second Cross-Respondent

[Dennis Jones & Company Pty Limited, removed as a party]
Third Cross-Respondent

DENNIS JONES
Fourth Cross-Respondent

TONY BAHR
Fifth Cross-Respondent

ALAN J BLEE
Sixth Cross-Respondent

[Wayne Fitcher, removed as a party]
Seventh Cross-Respondent

NORMAN KIRBY
Eighth Cross-Respondent

PAUL KENNEDY
Ninth Cross-Respondent

PETER KINROSS
Tenth Cross-Respondent

JAMES NAUGHTON
Eleventh Cross-Respondent

[D Rodstead, removed as a party]
Twelfth Cross-Respondent

[G Blaiklock, removed as a party]
Thirteenth Cross-Respondent

ERIK JAMES BUTTARS
Fourteenth Cross-Respondent

ROMMEL HACOPIAN
Fifteenth Cross-Respondent

CRAIG BYRON ROBERTS
Sixteenth Cross-Respondent

ANNA WASS
Seventeenth Cross-Respondent

ALLAN STEWART CRAWFORD
Eighteenth Cross-Respondent

PERMANENT TRUSTEE COMPANY LIMITED
Nineteenth Cross-Respondent

AMERICAN HOME ASSURANCE COMPANY
Twentieth Cross-Respondent

LAWRENCE C GRIMA

Twenty-first Cross-Respondent

  SECOND CROSS-CLAIM
LANCE KELLY
Cross-Claimant

CITIBANK LIMITED (formerly called “Citibank Savings Limited”)

Cross-Respondent

  THIRD CROSS-CLAIM
DENNIS JONES
Cross-Claimant

CITIBANK LIMITED (formerly called “Citibank Savings Limited”)
Cross-Respondent

JUDGE:

LINDGREN J

DATE:

12 MARCH 1999

PLACE:

SYDNEY

REASONS FOR JUDGMENT (No 8)
(ruling on right to cross-examine and sequence of cross-examinations)

Yesterday afternoon, Mr Loxton of counsel called the first of his clients to give evidence. This was the fifteenth cross-respondent, Rommel Hacopian. His evidence in chief was in affidavit form. After the reading of his affidavit, questions arose as to whether Mr Kelly SC for the applicants (I will refer to them loosely, both individually and collectively, as “NM”) should be allowed to cross-examine Mr Hacopian, and, if so, whether he should be required to cross-examine before Mr Rayment QC, senior counsel for the respondent (“Citibank”).
Citibank submitted that NM and Mr Hacopian were in the same interest and that Mr Kelly should be permitted only to lead evidence in chief from him. In the alternative, and for the same reason, Citibank submitted that Mr Kelly should be obliged to cross-examine first.
I ruled that Mr Kelly should be at liberty to cross-examine Mr Hacopian and to do so after Mr Rayment, but I reserved leave…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1999] FCA 266
Decision Date: 12 MARCH 1999

CaseChat Overview and Summary

NMFM Property Pty Limited and others brought an action against Citibank Limited, among others, in the Federal Court of Australia, seeking contribution or indemnity for sums paid to investors under a negative gearing package. Citibank cross-claimed against various individuals and entities, including the Kelly/Jones Associates, for contribution or indemnity. A deed of settlement was later entered into, resulting in a radical reconstitution of the proceeding, with NMFM continuing only against Citibank. The primary legal issues before the Court were whether NMFM had the right to cross-examine a witness, Rommel Hacopian, and if so, the sequence of cross-examinations.

The Court found that NMFM did not have a right to cross-examine Mr Hacopian but did have a right to a fair trial. The Court accepted that ordinarily, a trial judge's discretion would be properly exercised by allowing all parties other than the one who called a witness to cross-examine them. However, the Court held that it was not inappropriate to allow NMFM to cross-examine Mr Hacopian in the circumstances of this case, as Citibank's position was adequately protected by the Court's discretion under the Evidence Act 1995 (Cth). Regarding the sequence of cross-examinations, the Court ruled that Mr Rayment, representing Citibank, should cross-examine Mr Hacopian first, reserving leave for him to apply to cross-examine further after Mr Kelly's cross-examination was concluded. The Court also stated that the issue of the sequence of cross-examinations could be reviewed in respect of other Kelly/Jones Associates based on the experience gained from Mr Hacopian's cross-examination.

The Court's final orders were that NMFM was permitted to cross-examine Mr Hacopian after Mr Rayment, and Mr Rayment was to cross-examine Mr Hacopian first, with leave reserved for him to apply to cross-examine further after Mr Kelly's cross-examination was concluded. The sequence of cross-examinations for other Kelly/Jones Associates would be reviewed based on the experience gained from Mr Hacopian's cross-examination.

Orders