Australian Petroleum Pty Ltd v Parnell Transport Industries Pty Ltd

HIS HONOUR: 1 At the completion of the evidence of Robert Walter Kellar, in the course of re-examination, counsel sought to elicit from him evidence to the general effect that in his statement, now received in evidence, and in particular par 8.4 of his statement of 17 February 1999, there was an error which he wished to correct. 2 The error became apparent because cross-examination revealed that the net price after freight costs for the cargo which he was referring to as the one which would, upon certain hypotheses, have been forgone, was not 21.97 cents per litre but 23.71 cents per litre. The consequence of his acknowledgment, in the absence of any further evidence, would be that the loss which the applicant claims would be considerably less than otherwise asserted. 3 I ruled that that matter could not properly be explored in re-examination because it did not arise out of the cross-examination and it would be unfair to the cross-examiner. I indicated I would entertain an application for leave to recall Mr Kellar or to reopen his evidence-in-chief to deal with the topic, so that the normal process of cross-examination and re-examination could be pursued. Such an application has been made. 4 The affidavit of Mr Kellar in support of the application positively asserts that a mistake was made by him in par 8.4 of his statement and that he now wishes to correct his evidence. He wishes to state that the export sale which Ampol would have forgone is not the sale there referred to, but another sale called the Astra sale, which involved the sale of both diesel and jet fuel. He has in that affidavit explained how the error which he asserts came about. 5 He has been cross-examined on the affidavit. Counsel for the respondents has submitted that, as a result of that cross-examination, no error has been demonstrated. I am sure I do injustice to the sophistication of the submission in putting it this way: it was contended that the information which is now said to be available and to have given rise to the error was previously identified as correct information, and that decisions were taken as to the terms of earlier draft versions of Mr Kellar's statement without the error now asserted, and which identified the relevant transaction which would have been forgone as the one referred to in par 8.4 of the statement he wishes to correct; thus, counsel for the respondents contended, there was no error to be corrected. 6 I do not think I can draw that conclusion on the evidence at present. Those earlier statements were draft statements. The error asserted is an error about what Mr Kellar wishes to say in his evidence to the Court. It may be the subject of challenge, but that is what he wishes to say. I am prepared to accept that an error has been made by him in the giving of his evidence in the manner which he describes in his affidavit. 7 It then becomes, in my view, a matter of discretion in all the circumstances and in the interests of justice to determine whether to accede to the application. I am satisfied that the Court has power to do so. That power is not necessarily from s 192 of the Evidence Act 1995 (Cth), but at common law. The operation of the common law where the Evidence Act 1995 does not speak is preserved by s 8 of the Evidence Act 1995, in turn giving effect to the provisions of ss 79 to 80 of the Judiciary Act 1901 (Cth). In either event, the discretion is the same, and the considerations relevant are likely to be the same. 8 I have borne in mind the submissions of Mr Wells QC as to unfairness to the respondent if I allow this evidence now to be given. I am not satisfied that the evidence would be futile or that it would have no material bearing on the final decision in the case. It may or may not do so. Mr Wells, on the basis of the cross-examination on this application, has made submissions that that will be so, but I will have to hear submissions at the end of the case before finally deciding that question. 9 I have also considered the claims of prejudice. It is true that permitting Mr Kellar to be recalled will involve some additional time and effort because of the material relied upon in the application. There has been an apparent waiver of client legal privilege by the applicant in respect of communications touching upon the particular topic which is referred to in par 8.4 of the statement of 17 February 1999. It has been acknowledged that documents required to be produced, which might otherwise have been the subject of client legal privilege on that topic, will be produced. It has also been acknowledged that the applicant will acquiesce in any application by Mr Wells for the further cross-examination of Mr Kellar to be deferred while those documents are produced and considered by him. 10 There is therefore simply the time and inconvenience and, to some smallish degree I suspect, the additional expense involved in permitting Mr Kellar to give further evidence. The other aspect of prejudice which Mr Wells highlighted was the difficulty of disentangling evidence on the application from evidence in the case and disentangling - to use his word again - the role of the solicitors and counsel for the applicant in the proofing process and in the process which came to result in Mr Kellar's final statement. 11 It is really a matter for the solicitors and counsel for the applicant in the light of the evidence which I propose to admit, whether they seek to call any other evidence in the trial. At present I am not satisfied that there is a sufficient prejudice to the respondent by permitting Mr Kellar's additional evidence to be adduced to warrant on that ground the refusal of the application. On the other hand, I bear in mind that the application was made promptly upon the completion of Mr Kellar's evidence. It was made before the close of the applicant's case generally. I do not think the additional time which it will involve will be in the scheme of this trial undue. 12 I therefore propose to allow Mr Kellar to be recalled to adduce evidence in terms of his affidavit of 10 March 1999. Upon that occurring, as his additional evidence-in-chief, I will give Mr Wells the opportunity to cross-examine him further and he may do so to the extent to which he wishes now and to the extent to which he may wish to do so in light of some of the matters which he explored in his cross-examination on the application. 13 I propose, subject to any objection or additional submission, to receive as evidence in the trial the evidence on the application itself and I propose, again subject to any additional submission, to receive as evidence in the trial exhibits RR1 and RR2 received on the application.