Trade Practices Commission v Arnotts Ltd
[1989] FCA 366
•14 JULY 1989
CATCHWORDS
Evidence - power of Court to recall witness - discretion.
TRADE PRACTICES COMMISSION v. ARNOTTS LIMITED & ORS
No. G.1316 of 1988
Beaumont, J.
Sydney
14 July 1989
IN THE FEDERAL COURT OF AUSTRALIA )
)
| NEW SOUTH WALES DISTRICT REGISTRY ) | No. G.1316 of 1988 |
)
| GENERAL DIVISION | ) |
| BETWEEN: | TRADE PRACTICES COMMISSION Applicant |
| AND: | ARNOTTS LIMITED Respondent ARNOTT'S BISCUITS LIMITED Second respondent FLEDSPAC PTY. LIMITED Third respondent THE DICKENS CORPORATION PTY. LIMITED Fourth respondent |
MINUTE OF ORDER
JUDGE MAKING ORDER; Beaumont, J.
| DATE ORDER MADE; | 14 July 1989 |
| WHERE MADE; | Sydney |
| THE COURT ORDERS: |
1. Direct that the Trade Practices Commission use its best endeavours to recall Mr. Richard for the purpose of his being cross-exam^"ed on the handwritten document annexed to exhibit "2" in the present application.
2. The application for the recall of Mr. Brunton is refused._
Note: Settlement and entry of orders is dealt with in
Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA }
)
| NEW SOUTH WALES DISTRICT REGISTRY ) | NO. G.1316 of 1988 |
)
| GENERAL DIVISION | ) |
| BETWEEN: | TRADE PRACTICES COMMISSION Applicant |
| AND: | ARNOTTS LIMITED Respondent ARNOTT'S BISCUITS LIMITED Second respondent FLEDSPAC PTY. LIMITED Third respondent THE DICKENS CORPORATION PTY. LIMITED Fourth respondent |
CORAM; Beaumont, J. DATE : 14 July 1989
REASONS FOR JUDGMENT
(on application by Arnotts for the re^ll of witnesses for
further cross-examinationf
By letter dated 6 July 1989 to the solicitors for the Trade Practices Commission, the solicitors for Arnotts requested that two witnesses already called by the Commission be recalled for the purpose of being further cross-examined. The Commission declined to agree to the request.
On 11 July 1989, senior counsel for Arnotts applied for
directions for the recall of Mr. Brunton, an officer of the
2 .
Woolworths group of companies, and of Mr Richard, an officer of the Coles Myer group.
Senior counsel for the Commission took a preliminary point that the Court had no power to direct the recall of a witness, who, as here, had been excused from further attendance. In my opinion, the point is without substance. The general position IS explained by Cross on Evidence, Third Australian Edition, at p.378;
"The judicial power to call a witness is an inroad on the ordinary rule that the judge should not descend into the adversarial arena, and does not justify undue intrusion into the ordinary course of eliciting evidence from witnesses called by the parties. It is, however, permissible within fairly broad limits to ask questions to elucidate a witness's answers, and to recall witnesses for the same purpose {a power normally but not necessarily exercised in response to a request of witnesses may be exercised so that either he or the from the jury). The judge's power to direct the recall
parties may question them. There is little point in recalling a witness merely to repeat his evidence, at
least where a shorthand note exists; where there is none, it is within power for a judge to recall a witness for that purpose. Recall may occur after the completion of addresses."
On behalf of the Commission, it is submitted that the English cases in this area can be distinguished by reason of differences in the language of the English subpoena. In my view, nothing turns on any such differences for present purposes. A subpoena is, of course, an order of the Court addressed to a stranger to the litigation. In the present application, no order directed to any third party, i.e., no subpoena, is sought. What
IS sought IS a direction to the Commission that it use its best
endeavours to re.call the witnesses for the purpose of their cross-examination on certain matters. This is a direction sought
as between the parties to the principal proceedings. It could hardly be disputed that the Court had the power, to be exercised in a proper case, to give such a direction if the interests of justice required it, as an exercise of the Court's general control over proceedings before it.
The application for the recall of Mr. Brunton
Mr. Brunton was called to give evidence on 15 May 1989. He was examined in chief by senior counsel for the Commission and cross-examined by senior counsel for Arnotts. In the course of cross-examination, Mr. Brunton was questioned about Woolworth's practices and procedures with respect to the "deletion" or "delisting" of products. On the same day, 15 May, Arnotts requested the issue of a subpoena to Woolworths for the production of documents relating to these practices or procedures. The subpoena was issued on 15 May, calling for production on 22 May. On 13 June, Woolworths produced certain documents. Arnotts now seek to cross-examine Mr. Brunton further on these documents.
In my opinion, the application is made at such a late
stage that it must be refused.
These proceedings were commenced late last year. There were many directions hearings at which the potential issues in the case could be explored. Arnotts had the opportunity to request the issue of subpoenas before the trial. The final hearing, which commenced on 17 April, has now reached the point where the Commission is about to close its case. Arnotts must
have appreciated, at an early stage, that Woolworths' practices and procedures in "deleting" or "delisting" products was an important aspect of Arnott's defence to these proceedings. Arnotts have not sought to explain why the subpoena was not issued until the day Mr. Brunton was called. Nor was any application made by Arnotts on 15 May to defer the cross-examination until the subpoena was answered. The Commission is entitled to assume that there would be no further cross-examination of Mr. Brunton. It could be unfair to the Commission to change the position at this late stage.
The application for the recall of Mr. Richard
Mr. Richard was called by the Commission to give evidence on 10 May. On about 9 June, Arnotts became aware, for the first time, that Mr. Richard was the author of a handwritten note which is annexed to exhibit "2" in the present application. It appears that Arnotts' legal representatives were aware of the note before Mr, Richard was called but these legal representatives believed that a person other than Mr. Richard had written the note; and that, for this reason, Mr. Richard was not cross-examined on the note. In these circumstances, the failure to cross-examine Mr. Richard on the note has, in my view, been adequately explained. I think that it is fair that Arnotts should now have the opportunity to cross-examine on the note and that the Commission should endeavour to procure the recall of Mr. Richard for this limited purpose.
I make the following orders
Direct that the Trade Practices Commission use its best endeavours to recall Mr. Richard for the purpose of his being cross-examined on the handwritten document annexed to exhibit "2" in the present application.
The application for the recall of Mr. Brunton is refused.
I certify that this and the
| preceding | (4-) |
pages are a true copy of the
Reasons for Judgment herein of
his Honour Mr. Justice Beaumont.
-̂Associate
Dated: 14 July 1989
| Counsel and Solicitors | Mr. B.C. Oslington Q.C. and |
| for Applicant: | Mr. D.G. Staehli instructed by the Australian Government Solicitor |
| Counsel and Solicitors | Mr. C.A. Sweeney Q.C. and |
| for the first and second | Mr. P. Comans instructed by |
| respondents: | Clayton Utz |
| Dates of hearing: | 11, 12 and 13 July 1969 |
| Date Judgment Delivered: | 14 July 1989 |
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