Fairness to Mr Ladu and IRD
21 A central consideration in relation to the grant of leave is that of fairness. In this regard, it is necessary to have regard to the context in which the leave is sought.
22 Earlier this year, a trial date was fixed for 30 May 2013. This date was vacated on 28 May 2013, as a result of what both parties acknowledged was an increase in the complexity and volume of the affidavit evidence. Amongst other things, both parties agreed that it was likely that witnesses in the United States, Peru and South Sudan would be required to attend by video-conference for cross-examination. Orders were made to accommodate the increased complexity of the foreshadowed trial and the matter was re-listed for 5 and 6 September 2013. As it happened, shortly prior to these latter dates, on 29 August 2013, the parties advised that it "has become apparent that a two day hearing will not be sufficient." The extended time for hearing was, it was said, necessary to manage witness testimony by video-conference in different geographical locations (and time-zones). A further hearing day was fixed in consequence.
23 The trial proceeded on 4, 5 and 6 September 2013 and it has not concluded. The hearing was punctuated with periods of delay and the rearrangement of the order of witnesses in response to technical difficulties presented by the video-conferencing facilities, different time-zones, and the limited availability of witnesses in remote locations at different points throughout the hearing.
24 The occasion for Mr Ladu's application for leave to confer is mostly a result of the order in which witnesses were called and IRD's late foreshadowed reliance on the additional evidence of Benjamin Sagora. I note, before descending to details, that, during the hearing, counsel for both parties agreed that matters of this kind would, without some attention, create difficulties for Mr Ladu.
25 When the hearing began on 4 September, the parties had agreed on a timetable that contemplated that there would be 7 witnesses (each of whom would be cross-examined on their affidavits previously filed) and that closing submissions would be completed before 1.00 pm on 6 September. Mr Ladu was a proposed witness and, unlike 5 of the other proposed witnesses, he was available to give evidence in person in Melbourne. In order to make the most efficient use of the three hearing days, it was agreed at the outset that Mr Ladu's evidence be split over two days, with other witnesses interposed, in order to accommodate their time-zones, remote locations or limited availability.
26 Mr Sagora's name did not appear on the witness list at the commencement of the trial. When, however, IRD called its first witness, Mr Matechak, the significance of Mr Sagora's absence from this list was exposed. The Court was informed that Mr Sagora was the Managing Partner of a South Sudan law firm that IRD had retained in an employment termination proceeding between Mr Ladu and IRD (which has some relevance to the arbitration proceedings resulting in the contested arbitral award). Counsel for Mr Ladu successfully objected to the admission into evidence of a letter from Mr Sagora to Mr Matechak regarding this employment termination proceeding. Counsel for IRD accepted that there was no evidence that Mr Sagora was an "unavailable witness" in the sense used in s 63 of the Evidence Act and initially stated that he would:
… get some instructions as to whether, for example, we can contact Mr S[a]gora and get him just to give one discrete bit of evidence about that letter and its contents.
27 Mr Matechak also mentioned Mr Sagora in additional evidence in chief in the course of outlining his efforts to contact a Mr AK Lado, another potentially unavailable witness. Also on 4 September, Mr Matechak referred to Mr Sagora in the course of cross-examination as having informed him (Mr Marechak) that he had examined the file and could say that Mr Ladu's lawyer, a Mr Mulla, had been given notice of the arbitration proceeding.
28 This latter evidence explains why, towards the close of the hearing on 4 September, counsel for IRD stated that his instructions were that:
… we are hoping that [Mr Sagora] would be able to give some short viva voce evidence in relation to his file. He's the solicitor who was the partner in charge of that case … And we have a letter from him, so he's in the mix.
29 Counsel for Mr Ladu did not object at this point or earlier to the potential introduction of Mr Sagora into the witness list. Instead, he asked for "a short written outline, even if it's not an affidavit, of what he's going to say" and "copies of any documents which he's to provide". IRD's counsel agreed that he would attend to these matters and indicated that he hoped to call Mr Sagora on the following afternoon, 5 September.
30 During the morning of 5 September, the Court was informed that Mr Sagora was not available to give evidence that day. On that day, IRD did not provide Mr Ladu with any statement of what Mr Sagora might say or the documents he might provide. Instead, counsel for IRD indicated that IRD desired to hold over Mr Sagora until after Mr Ladu had concluded his evidence. Counsel for IRD stated that:
I hope to finish the cross-examination of Mr Ladu by lunchtime; so that by the end of today, the only remaining issue, and I apologise for this, is the late entrance, so to speak, that is Mr S[a]gora. His circumstances were that he was in court this afternoon our time so he wasn't able to give evidence; but he's very happy to assist the court and to give evidence, and I think he's available tomorrow afternoon.
Again, counsel for Mr Ladu did not object to this course. Instead, Mr Ladu's counsel called Mr Ladu as his first witness.
31 As it turned out, Mr Ladu's cross-examination by counsel for IRD extended into the third day of the hearing, on 6 September. The present difficulty began to emerge during the cross-examination of Mr Ladu on 5 September when counsel for IRD reached what he described as an "awkward moment". This moment arose when he put questions to Mr Ladu relating to the provenance of particular documents and also questioned him about a signature on the basis that it was his. These documents were documents "GL49", which Mr Ladu described (in his 11 July 2013 affidavit) as documents that he had obtained from the South Sudan Register of Companies, the Department of Justice and the Ministry of Legal and Constitutional Affairs. The cross-examination was ultimately designed to challenge the authenticity of the documents that Mr Ladu had exhibited as "GL 49".
32 Shortly after this line of questioning commenced, counsel for IRD requested that an issue be discussed in the absence of Mr Ladu. In the absence of Mr Ladu, the following exchange occurred:
MR CRENNAN: Thank you, your Honour. The reason - wanted to have voir dire, your Honour - is because we've reached what my young son would call an awkward moment. That awkward moment is due to a number of factors. Firstly, we are intending to call Mr S[a]gora tomorrow. I haven't been able to speak to Mr S[a]gora yet, but will be this evening. So I will be in a better - I will be better placed to give Mr Stirling a summary of his evidence. But one thing I do know is that these documents, or versions of them, have been sent to us by Mr S[a]gora. And the document that I - exhibit A1 comes from Mr S[a]gora. So I don't want to be putting Mr Ladu in an unfair position.
HER HONOUR: Yes, I can see the problem.
MR CRENNAN: Yes. So I think I will move on from this suite of documents for the moment, and if Mr Ladu, I guess, wishes to - it's a bit of an - it's also a bit awkward because it's a bit unclear what this proceeding is, and who goes first and so on, because, as I said in the opening, it's really a proceeding driven by the opposition. So it's like an opposition to a patent proceeding, where the opposer goes first. So, anyway, putting all that to one side, I think if Mr Ladu wants to give any further evidence, having heard Mr S[a]gora's evidence, perhaps, that's the best way of dealing - but it is - it will be going to credit and will be going to the .....
HER HONOUR: I understand that. I think you made that very clear. Mr Stirling, that probably is the best way to deal with it.
MR STIRLING: We're content with that.
HER HONOUR: Are you happy with that? All right. I don't want to prevent Mr Ladu from giving an explanation as to what has happened. And there is a danger, if Mr Crennan goes on, that he won't have all the necessary matters before him, in order to explain fully.
MR STIRLING: The difficulty from our side is that because we don't have S[a]gora's statement, and we don't have any documents that he might rely on, and we haven't been given in advance, for example, this document, I've had no opportunity of taking these matters up with my witness - my client, as you ought to be able to do in a proceeding, to ask him questions about this and that and see [-]
HER HONOUR: No, I appreciate that.
MR STIRLING: And then deal with it. So that's the difficulty that we have, but hopefully we can get over that by calling him after Mr S[a]gora if matters are raised.
HER HONOUR: Yes. I think we're all aware of the nature of the difficulty you face, and whatever appears appropriate to remedy that difficulty will be done. I think the best course - I agree. I think the simple answer is, right now, to move on to a different area, to see what Mr S[a]gora is likely to say by way of evidence.
Mr Crennan will no doubt tell you, and if you need to make any application as a result of that, well, you will, no doubt.
MR STIRLING: With that, your Honour - and the other thing that might happen is that we need to speak to Mr Ladu after cross examination, before re-examination.
HER HONOUR: That's what I envisaged. That's what I had meant by, if you need to make any application, you will make it. You may want to make an application to me, too.
MR CRENNAN: Consent to that application, as long as it was confined and direct.
HER HONOUR: All right. … .
As already indicated, at the close of 5 September, Mr Ladu's cross-examination was not complete.
33 The situation apparently became further complicated when IRD eventually made contact with Mr Sagora. At the commencement of court on 6 September, counsel for IRD stated Mr Sagora had been contacted overnight and, in consequence, his witness summary had been prepared and that it was intended that he give evidence. Counsel for IRD explained that:
The questions that Mr S[a]gora's evidence will go to are the provision of documents to Dr Mulla during the 14 June hearing, Mr Lad[o] being a witness not available … And some documents which are the annexures that Mr S[a]gora has attained from the Sudan Register of Companies, and you will recall that I was cross-examining Mr Ladu about some differences between one of those documents and one of the documents in the exhibits to his last affidavit.
34 Around 8:30 am on the morning of 6 September, IRD's solicitor had emailed a document entitled "Witness Summary For Benjamin Sagora" to my associate. This email was copied to Mr Ladu's solicitor. Counsel for Mr Ladu was apparently given a copy of this document sometime before court resumed that morning. The witness summary stated that Mr Sagora would give evidence that:
1. He is a principal of Sagora & Co Advocates in Juba, South Sudan.
2. During 2011, Mr Alfred K Lado was an advocate employed by Sagora & Co Advocates.
3. He was directly supervising Mr Lado during the Ladu v IRD court proceeding, 376/2011 in Juba.
4. He believes that Mr Lado delivered the following documents to Dr Mulla, Mr Ladu's legal representative at the South Juba Governate Court before Judge Philip Gladio Wanie on 14 June 2011:
(a) a copy of the employment contract between IRD and Mr Ladu;
(b) a copy of the IRD code of conduct;
(c) the IRD letter to Dr Mulla dated 11 April 2011;
(e) the IRD letter to Dr Mulla dated 11 May 2011;
(e) the IRD letter to Dr Mulla dated 9 June 2011; and
(f) Mr Ladu's Australian Passport.
5. Mr Lado has left Sagora & Co Advocates and Mr Sagora has had no recent contact with him.
6. He wrote a letter dated 21 May 2013 to Mr Jason Matechak of IRD and the contents of that letter are true and correct (CB 860).
7. He requested copies of documents that related to Ladu & Brothers Company Limited from the South Sudan Register of Companies. He received three documents from the South Sudan Register of Companies in June 2013. The documents are attached at Annexure A, B and C to this witness summary.
35 The annexed documents included documents apparently purporting to be the Memorandum and Articles of Association of Ladu & Brothers Company Limited dated 6 September 2006 (which was "A1"), as well as "MFI 1" and "MFI 2".
36 The first 6 paragraphs related to the provision of documents to Mr Ladu's lawyer in South Sudan (a Dr Mulla) and the unavailability of IRD's lawyer (a Mr Lado). They do not give rise to any matter that might require Mr Ladu's counsel to confer with him. The need to confer arises from the final paragraph and the related course of cross-examination of Mr Ladu.
37 On 5 September (as already noted) and again on 6 September, Mr Ladu was cross-examined on various documents annexed to his own affidavit, including some that he said he had obtained from the relevant authorities in South Sudan. Particularly on 6 September, Mr Ladu was cross-examined about the differences between these documents and other documents, including "A1", "MFI 1" and "MFI 2". This cross-examination was apparently informed by the previous evening's conversation with Mr Sagora. In this way, counsel for IRD apparently sought to lay the ground for impugning Mr Ladu's credit.
38 Counsel for Mr Ladu has not objected to IRD calling Mr Sagora. After some discussion at the hearing on 6 September, it was agreed that Mr Sagora and Mr Mulla (Mr Ladu's lawyer in South Sudan) should give evidence by way of video-conference, when that might be arranged. Counsel for IRD stated that, in the meantime, an affidavit would be made by Mr Sagora and filed in the proceeding. No such affidavit has yet been filed in the Court.
39 It was in this context that counsel for Mr Ladu stated:
[A]t the conclusion of Mr Ladu's evidence I will be asking your Honour for the opportunity to confer with him about credit matters which have been raised in cross-examination and to seek instructions from him in relation to a range of matters with a view to, of course, seeking his instructions and seeing what evidence we may wish to put on in relation to rebutting credit attacks made against Mr Ladu. Can I give you one example. They say, "If you look at your account between the end of October and the end of 2010," I think I have it. And then the end of February 2011 they say there's $22,000 unexplained surplus in that account which would not be explained if your normal pay from IRD went in.
That would look to be right on the face of it. I don't know what the answer to that is. I don't know what Mr Ladu's instructions might be, whether there's an inheritance that has come in here, he won TattsLotto, who knows. I don't know what he might say, but it means that we would need to get his instructions on that, get bank statements in relation to that and to explore the point - and whether they will want an affidavit about it, I don't know, but it wouldn't be a case of being able to continue with his re-examination this afternoon, it's more complicated than that.
40 In addition to seeking leave to confer with Mr Ladu, counsel for Mr Ladu also indicated that he was contemplating "inquiries of other persons in relation to the allegations which are now put that he was in fact a director of Ladu & Brothers Company in February 2011 and in answer to the allegations that he has in fact fabricated in the case".
41 The hearing was adjourned on the basis that counsel for Mr Ladu would provide a note about leave to confer with Mr Ladu. As appears from the foregoing, IRD filed a response opposing the leave Mr Ladu sought. In the meantime, it has proved difficult to fix on another hearing date convenient for the Court and the parties. A date has now been fixed for 27 November 2013.
42 Broadly speaking, so far as the topics identified in subparagraphs 3(a) to (c) of Mr Ladu's 9 September 2013 memorandum are concerned (see [4] above), the question of fairness to Mr Ladu turns on the fact that, at the time his cross-examination began, his counsel could not reasonably have anticipated that Mr Ladu's credit would be challenged on the basis that he had fabricated documents marked GL49. This is because, prior to Mr Ladu's cross-examination, there was nothing to alert him to the possibility that Mr Sagora would be called by IRD to give evidence about documents that Mr Sagora had obtained from the relevant South Sudan authority that allegedly differed from Mr Ladu's documents in material respects. The foregoing account indicates that the present difficulty has arisen from the fact that Mr Sagora was not on the witness list when the trial opened; that IRD had not given an outline of his evidence to Mr Ladu's lawyers before Mr Ladu was cross-examined; and that Mr Sagora had not been called to give evidence before Mr Ladu's cross-examination began.
43 The topics identified in subparagraphs 3(a) to (c) of Mr Ladu's 9 September 2013 memorandum may properly be the subject of re-examination. This is because it is open to counsel for Mr Ladu to question him in re-examination about matters arising out of evidence given by Mr Ladu in cross-examination: see Evidence Act, s 39(a). Other questions may not be put to the witness unless the court gives leave: s 39(b). The purpose of re-examination is not just to remove ambiguities and uncertainties arising in cross-examination. Re-examination is allowed when an answer in cross-examination would, unless supplemented or explained, leave the court with an impression of the facts, including facts relating to credibility, which are capable of being construed unfavourably to the party calling the witness and represent a distorted or incomplete account of the truth as the witness has been able to present it: see J D Heydon, Cross on Evidence (9th Australian edition, LexisNexis Butterworths Australia, 2013) at [17605] - [17610]); also Wentworth v Rogers (No 10) (1987) 8 NSWLR 398 at 409. As already noted, I accept that counsel for Mr Ladu would not wish to re-examine on these topics without adequate instructions and it may work considerable unfairness to Mr Ladu not to have his counsel take up these topics.
44 As the forgoing account shows, so far as the evidence of Mr Sagora is concerned, the awkwardness that has arisen is not of Mr Ladu's making. Further, Mr Ladu, not IRD, is at risk should Mr Ladu seek to abuse the opportunity to confer with his counsel. If Mr Ladu should give evidence in re-examination that, for one reason or another, is open to doubt, then IRD will have the opportunity to bring this to my attention and, if I were so persuaded, then it would tell against accepting his evidence.
45 In opposition to the grant of leave, IRD's response was to the effect that it had indicated on 4 September that it would take steps to locate Mr Sagora to give evidence about the matters raised in the letter annexed at Tab 34 of the affidavit of Mr Matechak of 27 May 2013. Whilst this much may be accepted, it fell a long way short of providing adequate notice prior to trial that Mr Sagora would be called, particularly when the expanded ambit of the evidence IRD now proposes to adduce through him is borne in mind. As the above account shows, the ambit of the evidence that IRD proposes to adduce from Mr Sagora has steadily increased as the hearing has progressed. It does not seem to me that IRD gain much from the fact that the letter annexed at Tab 34 was the subject of a successful objection, since its objectionable nature ought to have been apparent to IRD in the first place.
46 As noted above, IRD also contended that the leave being sought (i.e., leave to confer) was not properly described as leave sought for re-examination. IRD apparently anticipates that the questions that counsel for Mr Ladu will put in re-examination will not be questions about matters arising out of Mr Ladu's evidence in cross-examination; rather, they will be framed to lead further evidence in chief from Mr Ladu. The latter questions cannot be put in re-examination - unless leave to do so has been given. The time has not yet come, however, to assess the questions that counsel for Mr Ladu may wish to put to Mr Ladu. Presently, the questions that counsel for Mr Ladu may wish to put to Mr Ladu in re-examination are unframed. If any are to be put on the relevant topics, they cannot be determined until Mr Ladu's counsel has conferred with him. When counsel's questions are put to Mr Ladu in court, their true character will be ascertainable. If IRD considers that, as put, the questions are not questions for re-examination, then IRD will have the opportunity to object. Of course, the Court may, pursuant to s 39(b) of the Act, grant leave to put questions that are not "matters arising out of evidence given by the witness in cross-examination", although, if any application for leave were sought, the matters set out in s 192(2) of the Evidence Act (set out at [16] above) and any other relevant matters would then fall for consideration.
47 In these circumstances, fairness considerations would indicate that counsel for Mr Ladu should have leave to confer with Mr Ladu before his re-examination about the matters identified in subparagraphs 3(a) to (c) of the 9 September 2013 memorandum.
48 In this memorandum, counsel for Mr Ladu has also indicated that he lacks adequate instructions with respect to an undated Completion Certificate and information relating to the Ladu Brothers Company profile dated February 2007. IRD has responded that Mr Ladu has had notice of these matters since 14 September 2011. I accept that the explanation for counsel's lack of instructions with regard to these two matters is less compelling, but I also accept counsel's integrity as a member of the Bar. I therefore accept his assessment that he lacks sufficient instructions. For the reasons already stated, there would be unfairness to Mr Ladu in these circumstances if his counsel were unable to confer with him, which outweighs any prejudice to IRD. In these circumstances, fairness considerations would indicate that counsel for Mr Ladu should have leave to confer with Mr Ladu before his re-examination about the matters identified in subparagraphs 3(d) and (e) of the 9 September 2013 memorandum (set out at [4] above).
49 Finally, counsel for Mr Ladu has indicated that he lacks adequate instructions with respect to the $22,000 of additional funds that came into Mr Ladu's account between 30 October 2010 and 1 March 2011. IRD asserted that this was not a topic proper for re-examination because, although the subject of cross-examination, IRD did not ultimately rely on this evidence on the question of credit. Re-reading the transcript may leave some room for doubt as to the significance of this cross-examination. If relied on in any way, there would be unfairness to Mr Ladu in these circumstances if his counsel, whose integrity I have accepted, were unable to confer with him on the topic. This unfairness outweighs any corresponding prejudice to IRD. Counsel for IRD should make it clear that IRD does not rely on this matter for any purpose if IRD is to maintain that there should be no re-examination on the topic. As things currently stand, fairness considerations would indicate that counsel for Mr Ladu should have leave to confer with Mr Ladu before his re-examination about the matters identified in subparagraph 3(f) of the 9 September 2013 memorandum (set out at [4] above).
Whether the grant of leave would add unduly to or shorten the hearing
50 The hearing of this matter is not scheduled to resume until 27 November. The grant of leave ought not interfere with this arrangement. There is no reason to suppose that any questions that counsel for Mr Ladu will wish to put to Mr Ladu in re-examination as a consequence of conferring with him will unduly add to or shorten the hearing.