Re Edelsten, G.W.; Ex parte Donnelly, M.C. v Edelsten, G.W.

[1992] FCA 405

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IN THE FEDERAL COURT OF AUSTRALIA	JUSMENT NO. ..l.uu...,.J
EXERCISING FEDERAL JURISDICTION	No NB 497 of 1988
IN BANKRUPTCY

BANKRUPTCY DISTRICT OF THE STATE OF NEW SOUTH WALES AND THE AUSTRALIAN

CAPITAL TERRITORY

RE :  GEOFFREY WALTER EDELSTEN

Bankrupt

EX PARTE:  MAX CHRISTOPHER DONNELLY

AS TRUSTEE FOR THE ESTATE OF

GEOFFREY WALTER EDELSTEN

Applicant

AND:  GEOFFREY WALTER EDELSTEN AND OTHERS

Respondents

COURT:	NORTHROP J
PLACE :	MELBOURNE
m:	2 JUNE 1992  12 JUN 1992

AUSTRALIA

EX TEMPORE REASONS FOR JUDGMENT PRINCIPAL REalSTRI

, :. ,

An unusual and fairly difficult question has arisen in

the following circumstances. Counsel for the applicant called as a witness Ruth Rowena Davoren who had sworn an affidavit at the request of the solicitors for the applicant on 8 July

1991. She was then cross-examined by Dr Edelsten, the first

respondent, and Mr Collins, counsel for the fourteenth counsel appearing for an opposing party would not be allowed to do in the cross-examination. It consisted essentially, of stating what had occurred or what the position was and then
respondent. It is fair to say that the cross-examination of

asking of the witness: 

Do you agree? Is that not so? or

words to that effect. 

One finished with the impression that,

what his version was of all these events which he sought,
then, to establish by the oath of the witness, Ruth Davoren.

in reality, Dr Edelsten was, in substance, giving evidence of witness seemed to have very little clear recollection of what had occurred and when asked questions as to what did occur, what was said or what had happened, her recollection was very,

very bad.  But in answer to questions put to her as to

statements or events, she had no hesitation in saying yes or
no as the case may be.

In re-examination, counsel for the applicant put to the

witness an affidavit sworn by her on 13 September 1991
apparently relied upon by an opposing party in this
application. Objection was taken to the witness being asked
questions about that affidavit and there then ensued argument
as to the relevance of this. It became apparent that counsel
for the applicant was seeking to establish a basis for
declaring the witness hostile so as to be allowed to conduct

the re-examination in the manner of a cross-examination to the

extent to which counsel considered it necessary for the
purpose of doing justice.

In deciding the question of whether counsel should be

allowed to put the second affidavit to the witness, it is
necessary, to some extent, to consider the principles to be
applied in deciding whether a witness should be declared
hostile or not. Normally, this question arises in
examination-in-chief where the witness gives oral evidence.
The common case is that that evidence is inconsistent with

previous statements either written or oral. In those

circumstances the person who called that witness desires to

cross-examine the witness. The principles to be applied in

cases of this kind are discussed at some length in Cross On Evidence, the Australian edition, 4th edition, in paragraph 17375. A number of authorities are cited there and it appears

hearing the matter to some extent to be influenced by the	justice. It is also apparently appropriate for the court
demeanour of the witness which would include the method of giving evidence and, I would say, in the way in which questions are answered.
The unusual feature here is that this is now arising in should cross-examination be allowed in re-examination. There is some suggestion that normally it should be in evidence-in- chief but where evidence has been given by way of affidavit, in my opinion, it is not always appropriate to equate that with the method of oral evidence being given in-chief. re-examination and the question that arises initially is, been sworn by the witness will be adhered to or whether the witness, on oath in the witness box, will adhere to the affidavit which had been sworn at the request of the applicant's solicitors.
In this case there was a suggestion made or put to the witness by Dr Edelsten that at the time she swore her first affidavit she was suffering from some form of lack of memory
natal period and this could affect her recollection and render it unlikely that what she had put in the affidavit was true or correct. The second affidavit was sworn some months later.
or depression arising from a pregnancy and in the early post could contain material which could have a bearing on the truthfulness or otherwise of her first affidavit and
indirectly her credibility as a witness generally.

that the decision to allow a witness to be cross-examined in these circumstances depends upon the question of whether the witness is deliberately withholding material evidence by

reason of an unwillingness to tell the whole truth.

The matter was also discussed by the High Court in

McLelland v Bowver (1961) 106 CLR 95 and I was referred to a lengthy passage from the joint judgment of the then Chief Justice Owen Dixon and Kitto and Taylor JJ. The principle can be expressed in different ways but one test enunciated by Sholl J in an earlier decision was whether the witness was not prepared to tell the whole truth for the advancement of

Normally, if the matter does arise in examination-in-

chief other parties have the right to cross-examine the
witness thereafter and in a case like this it may be
necessary to give further consideration to that matter if
leave to treat the witness as being hostile is given in due

course.

At the present time I am satisfied that in the interest

of justice and having regard to the affidavit - the second
affidavit, the method by which the witness was cross-examined
by Dr Edelsten and the demeanour of the witness herself, this
is a case where I should rule that counsel for the applicant
be permitted to put the second affidavit to the witness and

then see what happens thereafter.

I so order.

I certify that this and the preceding four (4) pages are a
true copy of the Ex Tempore Reasons for Judgment of the

Honourable Mr Justice R.M. Northrop.

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Date:  S- ~ ~ c - L . \ G it(%.