Palmer v McGowan (No 4)

[2022] FCA 292

FEDERAL COURT OF AUSTRALIA

Palmer v McGowan (No 4) [2022] FCA 292

File number:	NSD 912 of 2020
Judgment of:	LEE J
Date of judgment:	28 March 2022
Catchwords:	EVIDENCE – novel application in relation to a witness who has sworn an affidavit to correct “mistakes” made in cross-examination – where there was no re-examination of the witness – affidavit should not be received – re-examination of witness should be allowed despite discharge of witness – consideration of the limits of re-examination – deferral of any question of leave to adduce further oral evidence to the time of re-examination
Legislation:	Evidence Act 1995 (Cth) ss 39, 192
Cases cited:	Drabsch v Switzerland General Insurance Co Ltd [1999] NSWSC 765
Heydon J D, Cross on Evidence (13th ed, LexisNexis, 2021) Odgers S, Uniform Evidence Law (16th ed, Lawbook Co, 2021)
Division:	General Division
Registry:	New South Wales
National Practice Area:	Other Federal Jurisdiction
Number of paragraphs:	18
Date of hearing:	24, 28 March 2022
Counsel for the Applicant / Cross-Respondent	Mr B Dean
Solicitor for the Applicant / Cross-Respondent	Sophocles Lawyers
Counsel for the Respondent / Cross-Claimant	Mr B W Walker SC with Mr N Bender
Solicitor for the Respondent / Cross-Claimant	Clayton Utz

ORDERS

NSD 912 of 2020

BETWEEN:

MR CLIVE FREDERICK PALMER

Applicant / Cross-Respondent

AND:

MR MARK MCGOWAN

Respondent / Cross-Claimant

ORDER MADE BY:	LEE J
DATE OF ORDER:	28 MARCH 2022

THE COURT ORDERS THAT:

1.The respondent have leave to re-examine Mr John Robert Quigley, notwithstanding he was excused as a witness on 9 March 2022.

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

REASONS FOR JUDGMENT
(Delivered ex tempore)

LEE J:

1. After hours, and eleven days ago, my chambers received an unusual communication from the solicitors for Mr McGowan. It was in the following terms:

   We wish to bring to his Honour’s attention an issue concerning the evidence given by Mr Quigley under cross-examination in these proceedings on 9 March 2022. In broad terms, it has been brought to our attention that Mr Quigley wishes to have attention drawn to what he says are mistakes in his evidence.

   In light of this, please let us know whether his Honour considers it appropriate to make any directions.

   Mr Palmer’s solicitor is copied to this correspondence.

2. Mr Palmer’s solicitors responded half an hour later as follows:

   We wish to record that the email below was sent without our consent (or even prior knowledge) and that we object to the email having been sent in those circumstances.

   For the avoidance of any doubt, given that we were not consulted about it (or even given prior notice of it), Mr Palmer does not at this stage join in the request in the second paragraph of that email.

3. Before going further, I should remark that it appears to have become increasingly common for communications to be made to chambers without first having secured the consent of the opposing party…