Searle v Keayes

[1994] FCA 970

JUDGMENT No. ..... ?'c, , . J?Z .,

CATCHWORDS

EVIDENCE - Cross-examination - cross-examination by more than

one counsel - application for recall of witnesses for further cross-examination - litigant in person who subsequently briefed counsel - principles

Eva Pty Ltd v Charles Davis Limlted [l9821 VR 515.

Phillips v Phillips [l9661 1 NSW R 49

Trade Practices Commission v Arnotts Limited (No 3) (1989)

21 FCR 316

Ishac & Ors v David Securities Pty Ltd (No 5) (1992)

[unreported, 24 March 1992, Supreme Court NSW Equity Division

No 3511 of 19901

BROMWYN Alsrs SEARLE V PETER KEAYES & ORS

No. llQ 309 of 1994

Tamberlin J

Sydney RECEIVED

23 November 1994 14 DEC 1994

FamUL COURTOF

AUSTRALlA	PRINCIPAL
REOISTRY

IN THE FEDERAL COURT OF AUSTRALIA )

NEW SOUTH WALES DISTRICT REGISTRY ) No. NO 309 of 1994

GEMERAL DIVISION )

BETWEEN :

BRONWYN ANN SEARLE

Applicant

AND :

PETER KEAYES

First Respondent

RICHARD KEAYES

Second Respondent

BRISALEBE AD LIMITED

(ACN 060 401 827)

Third Respondent

WSB (No 15) PTY LIMITED

(ACN 055 949 016)

Fifth Respondent

WSB (No 17) PTY LIMITED

(ACN 058 901 170)

Sixth Respondent

C O W :	TAMBERLIN J
PLACE :	SYDNEY
DATED :	23 November 1994

REASONS FOR JUDGMENT

An application has been made by newly briefed counsel on behalf of the first respondent for the recalling of one of the principal witnesses for the applicant, Mr Paterson, and also the applicant herself for further cross-examination.

The position is that a week or so prior to the commencement of the proceedings in September this year legal advisers to the first respondent withdrew from the proceedings on the ground that the first respondent was unable to meet their costs. The

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first respondent has applied for legal aid and this has been

refused on the basis that the matter is a commercial one.

Recently, the first respondent has become aware of the pro- bono legal assistance scheme provided by the New South Wales Bar Assoclation and pursuant to this scheme counsel have now been briefed. During the first five days of the proceedings in September the first respondent in person cross-examined a number of witnesses called by the applicant. The cross- examination took a substantial period of time and was completed. In the course of that cross-examination of the applicant the first respondent was given the opportunity to recall the applicant for further cross-examination on at least two occasions.

A full opportunity was also given to the first respondent to conduct detailed cross-examination of Mr Paterson. Counsel now consider that the cross-examinations of Mr Paterson and the applicant were not as adequate as might be desired in relation to three major issues and they now seek to re-open these matters for further cross-examination in relation to the evidence of the applicant and Mr Paterson. This application largely amounts to a re-canvassing of a very large part of the testimony of the applicant and Mr Paterson and the re-opening of it for cross-examination.

The principles which guide the Court in circumstances such as the present are well known. One important consideration is

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that litigation must be resolved and not be the subject of continuous re-opening 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 ludicial rulings and legislation and in many local rules of court. However, it is subject to reasonable exceptions allowable in the trial judge's discretion. There is no doubt that a trial judge does have a discretion as to the recalling of witnesses. See Wigmore on Evidence, 3rd edition, volume U, paragraph 783; Eva Pty Ltd v Charles Davis Limited [l9821 VR 515 at 517-519; Phillips v Phillips [l9661 1 NSWR 49; Trade Practices Commission v Arnotts Limited (No 3) (1989) 21 FCR 316; Ishac & Ors v David Securities Pty Limited (No 5) (1992) [unreported,

24 March 1992, Supreme Court NSW Equity Division No 3511 of

19901.

In the present case the applicant and Mr Paterson are from Tasmania and there would no doubt be considerable expense and disruption in arranging for them to re-attend and inevitably the hearing of the matter could be substantially prolonged by

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further cross-examination on the topics foreshadowed by Mr

Gorrick.

Moreover, one most important consideration is that the applicant cannot ever be compensated in costs for this disruption and expense because the first respondent is clearly unable to meet any costs arising from such request. In response to a suggestion which I made before the adlournment in relation to costs, Mr Gorrick indicated that it may be possible to reach agreement in relation to the costs of one day and the provision of security in relation to the costs of one extra day. I am not satisfied that, having regard to the issues which are sought to be raised, namely the circumstances surrounding the Mankato Declaration; the constitution and formulation of the interest of the Good of the World Foundation; and the terms of employment of the applicant by Mr Keayes and associated interests, that the cross-examination would be completed on these topics within one day. In my estimation it could last for several days given the wide- ranging and pervasive nature of these issues in this litigation.

I appreciate that the first respondent was not represented

during the first five days. However, the first respondent is a professional accountant with considerable commercial acumen and experience and he has already had a full and unrestricted right to cross-examine the applicant and Mr Paterson and has exercised this right. He has already been granted liberal

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indulgence in relation to the recalling of the applicant on at least two occasions. The hearing date was fixed on 25 July 1994 and the actual hearing commenced on 26 September 1994. The first respondent has had a long period of time to become fully familiar with all relevant material over that period and he has clearly been intimately involved in the history of the matter since the outset of the dispute.

The settled guidelines in matters of this nature indicate that there should be some special circumstances shown sufficient to require the court to allow a departure from the established practice that witnesses should not be subjected to cross- examination by more than one representative of a party. Such a practice is not lightly to be departed from. It is essential to balance the detriment and strain to the parties and their witnesses in relation to the litigation and the obvious delay, stress, expense and disruption which will be visited on the parties and witnesses are factors of major importance in deciding whether there are special circumstances which warrant departure from the normal practice.

I have taken these matters into account, and in all the

circumstances I am not disposed to allow any further cross- examination of the applicant or of witnesses called on behalf of the applicant, because in my opinion the first respondent has had a more than adequate and fair opportunity to interrogate the applicant and the witnesses called in her case and to test the evidence. In view of this I do not propose to

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allow the witnesses to be recalled for further cross-

examination by counsel. I dismiss the application with costs.

I cert i fy that t h i s and

the preceding f ive ( 5 )

pages are a true copy of the

Reasons for Judgment herem of

h i s Bonour Yr Justice Tamberlin.

Aeeociate :

Date :

23 November 1994

Counsel for Applicant :

Mr T K Tobin QC

Mr G M McGrath

Solicitor for Applicant :

Aitken & Magney

Counsel for First and

Mr J M Gorrick

Sixth Respondents :

MS M T Bateman

Date of Hearing :

23 November 1994

Date Judgment Delivered :

23 November 1994