Palmer v McGowan

1. The respondent have leave to re-examine Mr John Robert Quigley, notwithstanding he was excused as a witness on 9 March 2022. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

LEE J: 1 After hours, and eleven days ago, my chambers received an unusual communication from the solicitors for Mr McGowan. It was in the following terms: We wish to bring to his Honour's attention an issue concerning the evidence given by Mr Quigley under cross-examination in these proceedings on 9 March 2022. In broad terms, it has been brought to our attention that Mr Quigley wishes to have attention drawn to what he says are mistakes in his evidence. In light of this, please let us know whether his Honour considers it appropriate to make any directions. Mr Palmer's solicitor is copied to this correspondence. 2 Mr Palmer's solicitors responded half an hour later as follows: We wish to record that the email below was sent without our consent (or even prior knowledge) and that we object to the email having been sent in those circumstances. For the avoidance of any doubt, given that we were not consulted about it (or even given prior notice of it), Mr Palmer does not at this stage join in the request in the second paragraph of that email. 3 Before going further, I should remark that it appears to have become increasingly common for communications to be made to chambers without first having secured the consent of the opposing party to the content and dispatch of the communication. This is despite the Court deprecating this practice and entreating practitioners to ensure that communications with chambers should not occur without prior notification and consent (outside what might be described as an administrative or listing enquiry, or an ex parte application). If such consent is denied or unreasonably delayed, then a request should be made to list the proceeding and raise the relevant issue in open Court, or request leave to do so by email communication. 4 In any event, returning to the substance of the communication received from Mr McGowan's solicitors, my Associate explained that if there was to be any application to adduce further evidence from a witness (after the witness was excused) to clarify evidence already given by that witness, that application should be made in open Court. 5 The reason why the response from my Associate was made in these terms ought to be explained. 6 Mr Quigley was called as a witness by Mr McGowan and gave evidence in chief, largely by way of affidavit, on 9 March 2022. He was extensively cross-examined. At the conclusion of the cross-examination, I invited senior counsel for Mr McGowan, Mr Walker SC, to re-examine the witness, but was told there was no re-examination: T538.44. The witness was then excused and, shortly thereafter, the proceeding was adjourned part-heard to be later re-listed to receive a documentary tender and then to receive written and oral submissions. 7 The application for Mr Quigley to give further evidence was said, at least initially, to be for "leave to adduce further evidence in the form of an affidavit of John Robert Quigley sworn 17 March 2022 (Quigley Affidavit)". This application arose in circumstances explained by an affidavit of one of the solicitors acting for Mr McGowan, Mr Timothy Donisi (which was received by the Court on the voir dire) as follows: On Tuesday, 15 March 2022 Clayton Utz [Mr McGowan's solicitors] received notice that Mr Quigley wanted to file a correcting affidavit in relation to his oral testimony given in this matter on 9 March. On 17 March 2022 Mr David Grace QC, who I understand to be retained by Mr Quigley, sent Clayton Utz a copy of the Quigley Affidavit. The Quigley Affidavit identifies mistakes Mr Quigley says were made during his oral testimony. A copy of the Quigley Affidavit was subsequently provided by Clayton Utz to the Applicant/Cross-Respondent's solicitor and by the Respondent/Cross-Claimant's Senior Counsel to the Applicant/Cross-Respondent's Senior Counsel. As at the time of swearing this affidavit, the Applicant/Cross-Respondent has refused to consent to the Quigley Affidavit or its contents being disclosed to this Honourable Court. (Emphasis added). 8 Subject to three important matters, the present application might best be seen as an application to re-examine a witness after the invitation to re-examine the witness had been declined, and the witness was thereafter excused. The first matter is that the further proposed evidence has been prepared following the involvement of a lawyer acting for the witness; the second matter is that the further proposed evidence has been reduced to affidavit form; and the third matter is that senior counsel for Mr McGowan explained that the further proposed evidence, at least in some respects, goes beyond evidence which is usually able to be adduced by way of re-examination (which is consistent with the emphasised portion of the affidavit of Mr Donisi above). As to the last of these matters, I do not presently understand the extent to which the further proposed evidence extends beyond usual constraints, because the Quigley Affidavit is not before the Court on the voir dire or otherwise. 9 The application is, at least in my experience, a singular one. 10 When one considers the objects of re-examination, if all that was being sought was to allow Mr Quigley to be re-examined notwithstanding he had previously been excused, then the resolution of the application would be straightforward. Those objects (and the common law limits on re-examination) are helpfully set out in Heydon J D, Cross on Evidence (13th ed, LexisNexis, 2021) (at 728-731), as follows: The purpose of re-examination is not merely to remove ambiguities and uncertainties, but is allowed wherever an answer in cross-examination would, unless supplemented or explained, leave the court with an impression of the facts, whether facts in issue or facts relating to credibility, which is capable of being construed unfavourably to the party calling the witness and which represents a distortion or incomplete account of the truth as the witness is able to present it. Leading questions may not be put, any more than they may be put in chief; previous consistent statements can only be put to the witness if rendered admissible by the terms of the cross-examination, or as statements in documents made admissible in civil proceedings by statute, or to refresh memory. … The most important rule is that the re-examination must be confined to matters arising out of the cross-examination, and new matter may only be introduced with the leave of the judge. … The rule is sound in principle because it prevents the admission of inadmissible evidence in re-examination, under the guise of dealing with points emerging from the cross-examination, and any hardship that the rule may occasion can be mitigated by the judge. … Questioning in re-examination of a witness with a view not to removing ambiguities or uncertainties, nor explaining answers in cross-examination, but to destroying the effect of the answers in cross-examination, may be rejected. (Citations omitted). 11 The Court is not engaged in some sort of game: if the current state of the evidence needs to be clarified to give a complete impression, then such clarification should be allowed, a fortiori if the current state of the evidence represents a distortion, or incomplete account of the truth as Mr Quigley is able to present it. The fact that Mr Quigley was excused should not stand in the way of receiving such evidence. 12 But despite not being a game, it is an adversarial contest with rules, which reflect the accumulated experience of the common law. 13 Counsel for Mr Palmer have made it plain that Mr Quigley is a witness whose credit is squarely in issue. The notion of a witness being cross-examined as to his credit and thereafter preparing an affidavit, on the basis of advice given by senior counsel retained by him, with the intention that this affidavit is then to be read in the trial, is as strange as it sounds. I would not allow such an unprecedented course to be adopted, primarily because it is unfair to the cross-examining party. Notwithstanding this, I was initially attracted to the prospect of granting leave generally for Mr Quigley to be recalled to give further oral evidence in person to explain the "mistakes" in his initial evidence, upon the condition that he then be subject to further cross-examination. But upon reflection, I do not think that this course is optimal for the following reasons. 14 Section 39 of the Evidence Act 1995 (Cth) (Act) deals with limits on re-examination and provides that: 39 Limits on re‑examination On re-examination: (a) a witness may be questioned about matters arising out of evidence given by the witness in cross-examination; and (b) other questions may not be put to the witness unless the court gives leave. 15 Subject to what I consider, in all the circumstances, to be the unimportant fact that Mr Quigley was excused, Mr McGowan does not require leave to ask Mr Quigley questions about matters arising out of cross-examination to the extent those questions qualify or explain his evidence in cross-examination (including any subjective considerations going to Mr Quigley's mental state at the time of giving answers in cross-examination): see Drabsch v Switzerland General Insurance Co Ltd [1999] NSWSC 765 (at [5] per Hamilton J). 16 Further, it is implicit in s 39 of the Act, that questions that go beyond matters arising out of evidence given by Mr Quigley in cross-examination may be put to him in re-examination if the court gives leave. As Odgers explains in Uniform Evidence Law (16th ed, Lawbook Co, 2021) (at 225 [EA.39.150]): Section 192 [of the Act] deals with the grant of leave generally and permits the court to give leave "on such terms as the court thinks fit". Whenever a court is considering giving leave, permission or a direction under the Act, "in all cases the court must take into account the matters prescribed by s 192(1)", as well as "matters which may be relevant in a particular case" [Stanoevski v The Queen (2001) 202 CLR 115 at [41] (per Gaudron, Kirby and Callinan JJ)]. Relevant considerations would include any forensic disadvantage suffered by the cross-examiner in having to conduct cross-examination without the evidence having been adduced in chief. Of course, if the evidence in question could not have been adduced in chief, the argument for a grant of leave would be strong. If re-examination is permitted under this provision, it would be appropriate to permit further cross-examination on the matters which are the subject of re-examination. 17 It does not seem to me that I should deal with the issue of leave to receive further evidence of Mr Quigley in the abstract. Rather I should allow him to be re-examined should Mr McGowan wish and, should any specific question posed (and objected to) require leave, I should then consider whether leave or permission should be granted to ask the specific question by reference to the mandatory s 192 factors and any other relevant consideration. 18 I will now proceed to make orders facilitating the conduct of any re-examination of Mr Quigley and the completion of the evidence generally. I certify that the preceding eighteen (18) numbered paragraph are a true copy of the Reasons for Judgment of the Honourable Justice Lee.