Aon Risk Services Australia Limited v Australian National University

1. In Expense Reduction Analysts Group v Armstrong Strategic Management and Marketing Pty Limited [2013] HCA 46; (2013) 250 CLR 303, the High Court referred with approval to Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175, stating:
   1. In Aon Risk Services Australia Ltd v Australian National University, it was pointed out that case management is an accepted aspect of the system of civil justice administered by the courts in Australia. It had been recognised some time ago by courts in the common law world that a different approach was required to tackle the problems of delay and cost in the litigation process. Speed and efficiency, in the sense of minimum delay and expense, are essential to a just resolution of proceedings. The achievement of a just but timely and cost-effective resolution of a dispute has effects not only upon the parties to the dispute but upon the court and other litigants.
2. This main purpose of the Rules is to ensure that each case is resolved in a just and timely manner at a cost to the parties and the use of judicial resources that is reasonable in the circumstances of the case. Having acknowledged these matters, it is also important that the Court does not take a pernickety view of the Rules but applies the Rules to ensure fairness. Each of these matters are relevant to the exercise of my discretion.
3. The granting of leave to recall a witness is discretionary and that discretion is guided by the interests of justice (see Gelley & Gelley [1992] FamCA 92; (1992) FLC 92-290 at 79,146). Per Suell & Suell (Re-opening) [2009] FamCA 55 ("Suell") at [9], the essential question is, is the Court more able to do justice in the facts and circumstances of the case if the application is granted?
4. The issue in respect of the leave to recall a witness if matters have not been put to the witness arises from a common law rule of fairness as identified in the Uniform Evidence Law (Stephen Odgers, Uniform Evidence Law (Thomson Reuters, 20th ed, 2025) at paragraph [EA.46.60]. The testing of evidence in dispute is referred to as the rule in Browne & Dunn (1893) 6 R 67 ("Browne & Dunn").

1. The basis of the application was that the matters contended by the father to have been in dispute were not squarely put to the mother, in accordance with his specific instructions to do so. It is this failure that has caused the prejudice the father complains of.
2. To consider whether the discretion to permit further cross-examination of the mother should occur, similar to the discretion to permit further evidence, the Court is to consider why the error in failing to test the evidence occurred.
3. It was contended on behalf of the mother that I should infer that the failure to test the evidence of the mother were forensic decisions as to how run the father's case and that counsel simply cannot be the mouthpiece for the client. The difficulty with that contention is the father has given positive evidence, by waiving his privilege, that it was not a forensic decision, but that his legal representatives failed to follow his specific instructions in respect of multiple areas of cross-examination of the evidence that he challenged.
4. It was further contended on behalf of the mother that there should not be an opportunity to further cross-examine the mother because the father is not happy with how it went the first time. Counsel for the Independent Children's Lawyer ("ICL") submitted that to permit further cross-examination of the mother would be to effectively start again. I do not accept that submission.
5. In this case, the evidence has not yet closed.
6. The question of prejudice to the mother will be overcome by permitting the cross examination of the mother on the specific areas that were identified in instructions as requiring challenge that were not challenged. The question of prejudice to the mother will be overcome by permitting the cross-examination of the mother on the specific areas that were identified in instructions as requiring challenge that were not challenged.
7. The factors which would not lean in favour of such a discretion being exercised are the prejudice to the mother as well as the impact on the proceedings and on the children.
8. As set out by Murphy J in Suell:
   1. In cases where reasons for judgment have not been delivered, the High Court has held that the primary consideration should be embarrassment or prejudice to the other side.
   2. Prejudice or embarrassment, though, is a broad concept and is not limited merely to cost or expense. The significant stress imposed upon litigants, particularly where the prior litigation history has been lengthy, has been widely recognised as an element of prejudice. Moreover, litigants have a right to expect finality in litigation.

(2009) 239 CLR 175

(2009) 40 Fam LR 690

(2013) 250 CLR 303