Re the Real Estate And Business Agents Supervisory Board

[1999] WASC 127

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   RE THE REAL ESTATE AND BUSINESS AGENTS SUPERVISORY BOARD; EX PARTE CHESSON [1999] WASC 127

CORAM:   McKECHNIE J

HEARD:   16 JULY 1999

DELIVERED          :   16 JULY 1999

FILE NO/S:   CIV 1774 of 1999

MATTER                :Application for Writs of Certiorari and Mandamus to issue against, THE REAL ESTATE AND BUSINESS AGENTS SUPERVISORY BOARD

EX PARTE

SYDNEY JAMES CHESSON
Applicant

AND

THE REAL ESTATE AND BUSINESS AGENTS SUPERVISORY BOARD
Respondent

Catchwords:

Course of hearing - Whether more than one counsel for the same party may cross-examine witness

Legislation:

Nil

Result:

Application for order nisi for writ of certiorari refused

Representation:

Counsel:

Applicant:     Mr T Galic

Respondent:     Mr S W O'Sullivan

Solicitors:

Applicant:     Galic & Co

Respondent:     Ministry of Fair Trading

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

Capobianco Ex Parte Castelli, unreported; SCt of WA; Library No 980567; 28 September 1998

Doe v Roe (1809) 170 ER 1155

Perpetual Trustees WA Limited v City of Joondalup, unreported; Library No 990195; 16 April 1999

Phillips v Phillips (1966) 7 FLR 456

Case(s) also cited:

Nil

1. McKECHNIE J: This is a notice of motion for an order nisi for the issue of a writ of certiorari and a writ of mandamus against the Real Estate and Business Agents Supervisory Board on various grounds.  The notice of motion comes on before me urgently.  It was filed yesterday.  I directed that it be served on the board so that it could respond to the notice.  The reason for that, amongst others, is that the writ of certiorari relates to a hearing which is ongoing.  It is important that this Court only intervene on strong grounds in hearings which are ongoing, especially when matters of procedure are involved.

2. Having said that, of course, the mere fact that procedures are ongoing does not prevent this Court from intervening by way of prerogative relief where error appears.

3. Whether the test is as outlined by Parker J in Capobianco Ex Parte Castelli, unreported; SCt of WA; Library No 980567; 28 September 1998, or a slightly wider test, as I outlined in Perpetual Trustees WA Limited v City of Joondalup, unreported; Library No 990195; 16 April 1999, is immaterial in the resolution of this matter because I have reached the view that there is no arguable case in respect of any of the grounds made out.  In case this matter goes further I should state briefly my reasons for reaching that view.

4. The grounds are to quash the board's decision:

   "1.(a)(i) to deny the Applicant's counsel, Mr Galic an opportunity to cross‑examine Florence Emily Webb ("Webb") a witness in an inquiry pursuant to Section 102(1)(a) of the Real Estate and Business Agents Act [1978] into matters concerning the Applicant which occurred in 1990."

5. The application before the board concerns Mrs Webb who is, together with her husband, one of the principal witnesses in the application.

6. At the commencement of the hearing on 18 June 1999, appearances were announced.  At that stage, Mr Pettit of counsel was appearing for the board.  Subsequently, Mr O'Sullivan of counsel appeared for the board.  This announcement was made by Mr Chesson: "I will be representing myself, assisted by Mr Galic."

7. As the matter progressed, Mrs Webb gave evidence confined largely to the events of 8 May 1990.  She was then extensively cross‑examined for nearly a day by Mr Chesson.

8. As the matter came towards lunchtime on the second day, counsel for the board asked for an indication how long the witness was going to be.  Mr Chesson replied: "I would have thought I should be able to finish in an hour, Mr Chairman".  Then after a further short exchange, Mr Galic said: "Just to be fair with the board and my friend, I do reserve the right to cross‑examine Mrs Webb at the conclusion.  That was always my intention.  Mr Chesson does insist on running his own cross‑examination."

9. The chairman said: "Well, no.  Look, I'm not sure we're going to have two bites on this," and thereafter refused leave to Mr Galic to cross-examine.

The rule concerning cross‑examination by more than one counsel for a party

1. For at least two centuries, the law has been that, save for exceptional circumstances, once counsel commences the cross‑examination of a witness, that counsel continues the cross‑examination.  In Doe v Roe (1809) 170 ER 1155 Lord Ellenborough set out the reason which has, I think, something to do with barristers being gentlemen. That decision was followed and adopted in Phillips v Phillips (1966) 7 FLR 456 and it is sufficient perhaps to read the headnote of the judgment of Allen J where he said:

   "It is a well-established rule of practice that one counsel only may cross-examine a particular witness, whether party or otherwise, except in special circumstances requiring the court in the exercise of its discretion, to allow a departure from established practice in the interests of justice.

2. Accepting that a court, or in this case the board, has a discretion to allow cross‑examination by more than one person, it seems to me that the exercise of that discretion by the board is not a matter to which a prerogative writ can or should go.  It is a matter uniquely in the procedures of the board and to be exercised by them.

3. I might add in the circumstances of this case where it does not appear to have been indicated in advance that it was the intention of Mr Galic to cross-examine, and where cross‑examination of an elderly lady had proceeded for a lengthy period, I can well understand why the board would refuse leave in the exercise of discretion for counsel to further cross‑examine.

Subpoena to the applicant

1. Ground 1.(a)(ii) is that the board's error is to refuse to direct that a subpoena duces tecum be issued to the person named as the applicant in the inquiry, Mr Roger Vincent Hellier, to attend the inquiry.

2. It appears that Mr Hellier is an inspector who laid the formal application before the board.

3. It was conceded by Mr Galic, who appears today, that the issue of a subpoena to Mr Hellier is a discretionary matter for the board.

4. I am not persuaded that there has been a breach of the rules of natural justice or an error of law in that refusal.  The issues before the board seem to be fairly confined and it seems from the affidavit filed by Mr Chesson and the subsequent affidavit filed by Mr Rossi, on behalf of the board, that Mr Hellier would be unable to give direct relevant evidence as to the circumstances of the transaction which has given rise to the charge.

5. It appears from Mr Chesson's affidavit sworn 15 July 1999 that he would like to know on whose application the inquiry was made and believes: "… I am entitled to ask Mr Hellier various questions directed at finding out the reasons for why he made the application for an inquiry in relation to matters which occurred in 1990."

6. In my judgment those matters are strictly irrelevant to the board's consideration and determination of the application before it.  The important thing is what happened in 1990.  The motives whereby Mr Hellier proceeded would seem to me to be irrelevant, at least in these particular circumstances.

7. Ground 1.(a)(iii) is that the board erred in limiting the scope of cross‑examination of Mrs Webb by disallowing cross‑examination on certain matters which go to her credibility.  Because the transcript was supplied to me this morning, I have not been through it comprehensively.  I have, however, noted some occasions where the chairman intervened, usually after objection by the board, on matters of relevance.

8. Any court or tribunal has authority to control the general nature of cross‑examination which comes before it.  I do not know, because I have not had the chance to read, whether the board here has given Mr Chesson due or undue latitude.  However, the authority to control the length and limit the length of cross‑examination is also a matter of discretion.  It is not apparent to me that the board has so misused its discretion as to fall into error in terms of the rules of natural justice.

9. I say that because Mr Chesson cross‑examined for a considerable period and in the course of that, very effectively put Mrs Webb's credibility in issue.  Therefore it does not seem to me that there is any basis for assuming that the board in limiting, from time to time, aspects of the cross‑examination is acting on an error of law.  It may or may not have been a wrongful exercise of discretion.

10. The matters which are raised by the application are in essence matters which go to the discretion of the board.  I am entirely unpersuaded that the discretion of the board has miscarried.  Even if the discretion of the board has miscarried, in circumstances where the hearing is continuing, there would need to be a clear error of law amounting to a breach of the rules of natural justice or something similar before a writ of certiorari would issue.  A possible miscarriage of discretion is not sufficient.  For these reasons I dismiss the application.