Searle v Keayes - [1994] FCA 970

JUDGMENT No.

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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

- 2 -

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…

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.

Continue reading Searle v Keayes

Details

AGLC: Searle v Keayes [1994] FCA 970
Case: [1994] FCA 970
Decision Date: 23 Nov 1994

CaseChat Overview and Summary

In the case of Searle v Keayes, the applicant, Bronwyn Searle, sought relief from the Federal Court of Australia against Peter Keayes and several other respondents. Searle filed the application after Keayes, initially unrepresented, cross-examined several witnesses but later obtained legal representation through the New South Wales Bar Association's pro bono scheme. Searle's counsel opposed Keayes's application to recall and further cross-examine Searle and a principal witness, Mr Paterson, arguing that the cross-examination had already been extensive and that recalling the witnesses would result in unnecessary delay and expense.

The legal issues before the court involved the principles governing the recall of witnesses for further cross-examination, particularly in cases where a party, initially unrepresented, has had ample opportunity to cross-examine witnesses. The court had to determine whether special circumstances existed that would warrant a departure from the established practice of limiting cross-examination to one representative per party, and whether the potential disruption and expense to the parties and witnesses justified recalling them for further examination.

Justice Tamberlin, in delivering the judgment, noted that the first respondent, Keayes, had already been granted a full and unrestricted opportunity to cross-examine Searle and Mr Paterson. Despite the respondent's late application for further cross-examination, the court recognised the significant inconvenience and cost that would be incurred by recalling the witnesses from Tasmania. Additionally, the court considered that the respondent, being a professional accountant with substantial experience, had been involved in the dispute from its inception and had ample time to prepare for the cross-examination. Weighing these factors, Justice Tamberlin concluded that no special circumstances existed to warrant a departure from the usual practice and dismissed the application for further cross-examination with costs awarded against the respondent.

Orders