CVETKOVIC & ANOR v PAREXEL INTERNATIONAL PTY LIMITED & ANOR

The application to recall Dr Peterson 61 Although the application in this respect does not seek leave to re-open the plaintiff's case, I will treat the application as one that does seek such leave as well as an order requiring Dr Peterson to return for further cross-examination. 62 The notice of motion seeks the order for the recall of the witness, notwithstanding the plaintiffs' actions in voluntarily withdrawing from the hearing. Dr Peterson retired after the plaintiffs left the courtroom (transcript, 25 August 2006, at 727). 63 In considering the application in this respect, it is relevant to have regard to the nature of the issues in the proceedings, to the affidavit evidence of Dr Peterson, which was filed and read in the proceedings and to the question of relevance. In that respect, I agree with the submission that has been made on behalf of the defendants, that a great deal of time was spent in cross-examining Dr Peterson on matters or issues that were of little and often of no relevance whatsoever to any fact in issue between the parties. 64 In order to support the application, it is necessary for the plaintiffs to identify a basis or ground upon which the power should be exercised. In this respect, it is to be noted that, as stated in the submissions for the defendants, the decision to withdraw from the hearing of the proceedings was one taken by the plaintiffs voluntarily and in full knowledge that, if they did so, the proceedings would continue in their absence, which is what occurred. 65 The defendants have submitted that the plaintiffs' conduct in refusing to accept the Court's ruling, for example, on the question of estoppel and their failure to obtain a further three days to cross-examine Dr Peterson is consistent with what the defendants maintain in respect of the substantive issues, namely, that whenever the plaintiffs could not get their way, they walked out on the former employers, the defendants. I do not, however, consider that I need to evaluate the submission for the purpose of this application. 66 Absent proper cause, conduct by a party by way of abandoning a hearing by leaving the courtroom during the cross-examination of a witness will usually preclude that party from subsequently applying for an order requiring the witness to return and to be subject to prolonged further cross-examination. 67 The overriding power of the Court is to conduct the proceedings both fairly and efficiently. By s.58 of the Civil Procedure Act 2005, the Court, in making any order of a procedural nature must seek to act in accordance with the dictates of justice. For the purpose of determining what are the dictates of justice in a particular case, it is necessary to have regard to the provisions of ss.56 and 57 of the Act and the extent to which the respective parties have fulfilled their duties under s.56(3). See in that respect, s.56(2). 68 Section 56 provides that the overriding purpose of the Act and the Rules of Court, in their application to civil proceedings, which is to facilitate the just, quick and cheap resolution of the real issues in the proceedings. 69 By s.56(3), it is provided:- "A party to civil proceedings is under a duty to assist the Court to further the overriding purpose and, to that effect, to participate in the process of the Court and to comply with directions and orders of the Court." 70 The issues in the present proceedings are quite narrow, it being the fact that the employment with the defendants was, in each case, of limited duration. In considering the application for the recall of Dr Peterson, it is necessary to have regard to the nature and the range of factual issues between the plaintiffs and the second defendant. 71 Dr Peterson swore two affidavits which were read in the proceedings being the affidavits sworn by her on 2 August 2004 and 25 October 2004. Dr Peterson was called to give evidence on 24 August 2006 and, as noted earlier, the transcript of her evidence commences at p.655. There was only very short supplementary evidence adduced from Dr Peterson recorded on pp.655 to 657 of the transcript. 72 Dr Peterson commenced her evidence at 10.30 am on 24 August 2006. The cross-examination continued throughout that day. At transcript p.712, I inquired of the first plaintiff as to how much longer he would be in cross-examination. He stated that it was difficult to estimate but that his estimate was 8 to 12 hours. The second plaintiff indicated that she would not require much more time than that. Dr Peterson was stood down on 24 August 2006 (p.713). 73 The central issues raised in Dr Peterson's affidavits, as between the plaintiff and the second defendant, may be summarised as follows:-