N M Rural Enterprises Pty Ltd v Rimanui Farms Ltd

Judgment 1HIS HONOUR: On 15 December 2011 I granted leave to the plaintiff to call Mr Skaines: see N M Rural Enterprises Pty Ltd v Rimanui Farms Ltd [2011] NSWSC 1561. Mr Skaines was a loader or mixer who had assisted Mr Taylor to load chemicals into aircraft for spraying on fields of cotton and sorghum sown on Telleraga by the plaintiff. Mr Taylor gave evidence that one of the aeroplanes involved was loaded with a herbicide containing glyphosate as the active ingredient instead of a fertiliser called microsol and that Mr Skaines had conversations with Mr Taylor about this. Mr Skaines was called and gave his evidence on 8 February 2012. Among other things he denied that he made any mistake of the sort alleged by Mr Taylor or that he had a conversation with Mr Taylor in which he admitted it. 2Yesterday the first and third defendants applied separately by notices of motion for leave to recall Mr Skaines for further cross-examination. The first defendant's application was supported by an affidavit of Brendan Anthony George Moylan sworn 13 February 2012, which was read without objection. He was not cross-examined. The expressed basis for the first defendant's application was a concern that arose "following exchanges with the Court as to allegations that certain matters were not put to Mr Skaines" and a corresponding concern "about the application of the rule in Browne v Dunn and whether matters not put to Mr Skaines will limit [the first defendant's] ability to make [its] final submission". Mr Moylan proffered the view that the first defendant had to "make an application to recall Mr Skaines to put various allegations directly to him". 3The third defendant's application was supported by an affidavit of Michael Adam Park, which was also read without objection. Mr Park was not cross-examined. Mr Park's affidavit sets out the basis for the third defendant's application. The following paragraphs are instructive in that regard: "6. I spoke to Mr Lloyd either later in evening of 6 February 2012 or early in the morning of 7 February 2012 and he said to me words to the following effect: 'I think that Skaines' evidence combined with the evidence of Taylor raises a very strong possibility that Skaines deliberately loaded Wipeout into LIU believing that the Krui glyphosate job was going ahead. I am meeting [Mr Hancock] to discuss that'. 7. I said: 'I will see you there'. 8. Later on 7 February 2012 I attended a conference with Mr Lloyd, Mr Hancock and Mr Donohoe. There was general discussion of the proposed cross-examination of Mr Skaines, which included a discussion that Mr Hancock was going to cross-examine Mr Skaines first and that the other defendants may not be given leave to cross-examine on the same topics. 9. I was present in Court on 8 February 2012 for the further hearing of these proceedings. After Court had concluded or before Court the following morning, Mr Lloyd said to me words to the following effect: 'I am a bit concerned that the various ways we are going to submit Skaines could have come to make the error were not specifically put to him. I wrote out a number of propositions in court about this on a piece of paper to be put to Skaines and gave it to [Mr Hancock] but he said he thought he did not need to put the propositions to Skaines because Skaines denied that there was any glyphosate on the tarmac. He might be right but I am annoyed that I did not stand up on the spot and ask to cross-examine Skaines to put those propositions. I am worried that a Browne v Dunn point will be taken against us'. 10. On 10 February 2012 I was in Court for the further hearing of these proceedings when Mr Maconachie QC made the following submissions... 'MACONACHIE: Of course it does. One can intellectualise any number of possibilities about any scenario if one tries hard to do so, and Mr Ghirardello tried. Boy did he try. Not even his agile mind got to that point, your Honour. And it was never suggested to Mr Pay that incorrect instructions were given to the staff. It was never suggested to Mr Skaines that that occurred and it was never suggested to Mr Taylor that that is how it occurred and if it had been put, there might have been the simplest of simple explanations, but it not having been put, you cannot consider it. It would be wrong in principle to do so... We have reflected on the hypothesis that your Honour referred to before lunch and notwithstanding my principal submission that interesting but it wasn't put to anybody and therefore it is not in play...' 11. On 12 February 2012 I spoke to Mr Lloyd and he said to me words to the following effect: 'I think we should make an application to recall Skaines, in light of the submissions made by the plaintiff on Friday'." 4During the course of the applications to recall Mr Skaines, it occurred to me that some more particular focus upon what it was that concerned the defendants, and what it was they hoped to achieve by cross-examining him further, might be aided by circulation to me and the parties of the precise questions that it was proposed he would be asked. In response to that suggestion, the third defendant produced a document containing the following questions: