Wearne v State of Victoria (Ruling No 2)
[2016] VSC 603
•5 SEPTEMBER 2016 (Date of reasons: 8 February 2017)
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
PERSONAL INJURIES LIST
S CI 2014 06700
| GAYLENE WEARNE | Plaintiff |
| v | |
| STATE OF VICTORIA | Defendant |
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JUDGE: | JOHN DIXON J |
WHERE HELD: | MELBOURNE |
DATE OF HEARING: | 5 SEPTEMBER 2016 |
DATE OF RULING: | 5 SEPTEMBER 2016 (Date of reasons: 8 February 2017) |
CASE MAY BE CITED AS: | WEARNE v STATE OF VICTORIA (RULING No 2) |
MEDIUM NEUTRAL CITATION: | [2016] VSC 603 |
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PRACTICE and PROCEDURE – Application for leave to recall plaintiff for further evidence and cross-examination – Plaintiff suffering psychiatric injury having already spent 3 days in the witness box – Where balance of the interests of justice lay – Leave refused.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R W McGarvie QC with Mr J J Fitzpatrick | Slater and Gordon |
| For the Defendant | Ms J M Forbes QC with Ms J Frederico | Hall and Wilcox |
HIS HONOUR:
On 5 September 2016, the defendant applied to recall the plaintiff for further cross-examination. After hearing submissions from the parties, I ruled against the application stating that I would later publish my reasons for doing so. What follows are those reasons.
The defendant’s application was that the plaintiff be recalled in order that five specific propositions be put to her in cross-examination. Counsel frankly conceded that these matters ought to have been put squarely to the plaintiff when she was in the witness box but were overlooked.
The five particular topics were explained to me, although it is unnecessary to go into that detail in these reasons. It was not perfectly clear on the application whether counsel may have received further instructions after the plaintiff was cross-examined and I will proceed on the basis that that did not occur and particular propositions were not put to the witness through oversight.
The application was opposed on three bases.
Firstly, the plaintiff is a person suffering from a psychiatric injury. While the parties differed on attributing the cause and severity of that injury, the question of its existence and that it has an ongoing and present impact upon her was not in issue. She had already given evidence over the course of four days. Cross-examination of the plaintiff took place over two days and already occupies over 170 pages of transcript. She was understandably reluctant to return to the witness box. Given that the plaintiff is a psychologically vulnerable person, it was submitted that the potential emotional impact upon her of allowing further cross-examination weighed strongly against granting leave.
The defendant acknowledged that the plaintiff’s psychiatric injury impacted upon consideration of the application and made no further submission in that regard.
Secondly, it was submitted that the credit of Ms Skerry was going to be a very important matter in the resolution of the central dispute between the parties regarding the bullying claim – that is, whether what was occurring was in fact bullying, as distinct from a clash of personalities. In that regard, it was submitted that it was of the upmost importance that matters where Ms Skerry's recollection differed from the plaintiff ought to have been put in context at the time the plaintiff was initially in the witness box, and not at a later point in time.
Finally, the plaintiff submitted that for omissions to occur in the course of taking a witnesses’ evidence was in the ordinary course of events and ought not be enough, in the circumstances, to warrant further cross-examination of her. There was evidence which the plaintiff had similarly failed to call by way of oversight. There were no doubt imperfections on both sides which would become apparent upon a close inspection of the transcript with the benefit of hindsight. This is an invariable and unremarkable fact of taking evidence at trial. The plaintiff submitted that if leave was granted to the defendant, then she too ought to have leave to give further evidence.
The rule in Browne v Dunn was stated by Lord Herschell as follows:[1]
If you intend to impeach a witness you are bound, whilst he is in the box, to give him an opportunity of making any explanation which is open to him; and, as it seems to me, that is not only a rule of professional practice in the conduct of a case, but is essential to fair play and fair dealing with witnesses.
[1]Browne v Dunn (1893) 6 R 67, 70-71.
Where the defendant has omitted to put propositions that ought to have been raised with a witness but have not been squarely put, an obvious solution is to permit the recall of the witness to have the matter resolved. Leave is commonly granted by judges for this purpose because it is just and convenient to do so, even if some inconvenience is involved for a witness, for example, in having to return to court. That is particularly so in cases where the issues upon which the defendant wishes to further cross-examine arise from matters known to the defendant at the time the plaintiff gave her evidence but overlooked. This was not a case where the defendant was taken by surprise by some development after completion of the plaintiff’s evidence.
The application is resolved by adopting the course that facilitates the just, efficient, timely and cost-effective resolution of the real issues in dispute in the proceeding. The just determination of the proceeding always stands as a primary objective to be achieved in giving effect to the overarching purpose of civil litigation. As s 9 of the Civil Procedure Act 2010 explains, there are other objects to be considered where relevant. On this application, competing interests must be balanced.
First, there is the interest of having all relevant information before the court, which in this case would include the plaintiff’s answers to specific propositions that the defendant had omitted to put to her directly. This was the primary basis for the defendant’s application. It submitted the need arose simply through oversight and that any prejudice to the plaintiff could not outweigh the interest in ensuring that the litigation was resolved on the basis of all relevant evidence. I accept that this is an important consideration.
The impact on the plaintiff suffering from a psychiatric injury of having to be further cross-examined is a very important consideration. A further consideration is the avoidance of undue cost and delay and its impact on the resources of the court and of the parties in a trial where the witness has already given evidence although in the circumstances significant weight need not be given to this consideration.
The plaintiff gave her evidence in chief (87 transcript pages) for the duration of one day on 25 and 26 August, 2016. She was cross-examined (171 transcript pages) over about 2 days on 29 and 30 August 2016 and re-examined (18 transcript pages) on 30 August 2016. Cross-examination appeared comprehensive and, with due respect to counsel, ample opportunity was taken to traverse all relevant issues. If there were 5 specific issues remaining to be explored, the cross-examination would not have suffered if some other issues were explored more expeditiously.
The defendant did not dispute the plaintiff’s injury, which is described in detail in the principal judgment,[2] and was, or ought to have been, aware when cross-examination began that a person with the plaintiff’s condition would suffer an ordeal in giving evidence. From personal observation, I am satisfied that the plaintiff’s time in the witness box was an ordeal for her that might have been more effectively minimised. I do not suggest that counsel’s questioning was inappropriate either in terms of the issues raised or the approach taken towards the witness. Rather, the two days that were taken was a generous opportunity for the defendant to put its case. Given the plaintiff’s condition, it was beholden on counsel to ensure that the plaintiff was not subjected to an unreasonable ordeal and that obligation required that cross-examination be conducted efficiently and not in a piecemeal fashion.
[2]Wearne v State of Victoria [2017] VSC 25.
I am satisfied that there would be real prejudice to the plaintiff’s health if, having undergone the ordeal for which she was prepared, she was subject to a further, unexpected, spell in the witness box.
Further, having regard to the extensive court book of contemporaneous documents, reports, diary notes, meeting notes, emails and other records, the omission of the defendant to put some specific matters to the plaintiff will not ultimately prejudice the defendant to an extent that would require the plaintiff to suffer the consequences that a return to the witness box may entail.
Having regard to the fact that neither side has run a faultless examination of the plaintiff and each wants to expand on the three days of evidence that she has already given, I am unpersuaded that the desire of counsel to elicit further evidence is based in the necessity of ensuring fairness to the witness and a fair trial between the parties. Rather, counsel seek to ensure that no stone has been left unturned. There has been ample opportunity for every stone to be handled.
Considering what is required in all of the circumstances to achieve fairness to the witness and a fair trial between the parties, I was not persuaded that the overarching purpose of civil litigation required that the plaintiff should be put through the stress and anxiety of a further period in the witness box.
For these reasons I refused leave to recall the plaintiff to give further evidence.
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