An interesting part of this decision is a question about the fairness rule in Browne v Dunn  6 R 67. The respondents submitted that because the applicant didn't put to their witnesses in cross examination that they were being untruthful, the rule in Browne v Dunn was breached and they were therefore denied procedural fairness. Murphy J considered that the respondents misunderstood the rule, and considered that because of the pleadings, witness statements and written opening that had been filed and relied on, notice had been given of the applicant's case:
The rule in Browne v Dunn
245. In reliance on the rule in Browne v Dunn  6 R 67 (“Browne v Dunn”), the respondents allege a lack of procedural fairness in that the applicants sought to impugn the credit of Mr Street and Mr Wiltshire but did not directly put to them in cross-examination that they were being untruthful. They describe the cross examination of these witnesses as “peripheral” and “willing to wound, but afraid to strike”: Reid v Kerr (1974) 9 SASR 367 at 374. They contend that Mr Street and Mr Wiltshire were not given adequate opportunity to deny that they had been untruthful in giving certain evidence, and that the respondents were therefore not adequately put on notice of the case required to be met.
246. In the formulation of the rule in Allied Pastoral Holdings Pty Ltd v Federal Commissioner of Taxation  1 NSWLR 1 at 16 (“Allied Pastoral Co v FCT”), Hunt J said:It has in my experience always been a rule of professional practice that, unless notice has already clearly been given of the cross-examiner's intention to rely upon such matters, it is necessary to put to an opponent's witness in cross-examination the nature of the case upon which it is proposed to rely in contradiction of his evidence, particularly where that case relies upon inferences to be drawn from other evidence in the proceedings. Such a rule of practice is necessary both to give the witness the opportunity to deal with that other evidence, or the inferences to be drawn from it, and to allow the other party the opportunity to call evidence either to corroborate that explanation or to contradict the inference sought to be drawn…
At 22 to 23 his Honour continued:… There are many reasons why it should be made clear, prior to final addresses and by way of cross-examination or otherwise, not only that the evidence of the witness is to be challenged but also how it is to be challenged. Firstly, it gives the witness the opportunity to deny the challenge on oath, to show his mettle under attack (so to speak), although this may often be of little value. Secondly, and far more significantly, it gives the party calling the witness the opportunity to call corroborative evidence which in the absence of such a challenge is unlikely to have been called. Thirdly, it gives the witness the opportunity both to explain or to qualify his own evidence in the light of the contradiction of which warning has been given and also, if he can, to explain or to qualify the other evidence upon which the challenge is to be based…247. In the present case I consider that the respondents incorrectly state the operation of the rule. InWhite Industries (QLD) Pty Ltd v Flower & Hart (a firm) (1998) 156 ALR 169 at 216-217 Goldberg J explained:The rule in Browne v Dunn is a rule of fairness which requires a party or a witness to be put on notice that a statement made by the witness may be used against the party or witness or to be put on notice that an adverse inference may be drawn against the witness or an adverse comment made about the witness in order that the witness may respond to that issue and give an explanation: Browne v Dunn  6 R 67 at 70;Bulstrode v Trimble  VR 840 at 849; Karidis v General Motors-Holdens Pty Ltd SASR 422 at 425–6; Allied Pastoral Holdings Pty Ltd v FCT (1983) 44 ALR 607 at 623.At 218 his Honour went on to say:
The significance of the rule is that it requires notice to be given of a proposed attack on a witness or on the witness’ evidence where that attack is not otherwise apparent to the witness. The rule does not require that there be put to the witness every point upon which his or her evidence might be used against him or her or against the party who calls the witness.The rule does not apply, in the sense that it is not transgressed, where the witness is on notice that his version is challenged or that an inference may be drawn against him and such notice may be found in the pleadings, in an opening or in the manner in which a case is conducted: Seymour v Australian Broadcasting Commission  19 NSWLR 219 at 224-5, 236; Jagelman v FCT (1995) 31 ATR 467 at 472 -3; Raben Footwear Pty Ltd v Polygram Records Inc (1997) 145 ALR 1 at 15.248. In Burke v Corruption and Crime Commission (2012) 289 ALR 150 a recent decision of the Full Court of the West Australian Court of Appeal, Buss JA (with whom Martin CJ and Mazza JA agreed) explained the rule in Browne v Dunn in the following terms at -: The rule in Browne v Dunn comprises two limbs. The first limb is that, unless notice has already clearly been given of the party's or cross-examiner's intention to rely upon such matters, a party or cross-examiner who intends to invite the court to disbelieve an opposing witness must put to the witness in cross-examination the grounds upon which the evidence is to be disbelieved. The second limb is that, unless notice has already clearly been given of the party's or cross-examiner's intention to rely upon such matters, a party or cross-examiner must put to an opposing witness in cross-examination the nature of the case upon which it is intended to rely in contradiction of the witness's evidence, especially where that case relies upon inferences to be drawn from other evidence (citations omitted).249. Particularly apposite to the present case is a passage at  where his Honour said:
 The first limb does not apply where the witness is clearly on notice of the other party's or cross-examiner's intention to invite the court to disbelieve the witness and the witness is also clearly on notice as to the grounds upon which it will be contended that his or her evidence should be disbelieved. The second limb does not apply where the witness is clearly on notice as to the nature of the case upon which it is intended to rely in contradiction of the witness's evidence.In Thomas v Van Den Yssel (1976) 14 SASR 205, Bray CJ (Jacobs and King JJ agreeing) said in relation to the general credibility of a witness (at 207):[The] principles [in Browne v Dunn] cannot…be applied without qualification to a challenge to the witness’s credit generally…[I]n many…cases the witness must know that the other side will contend that he is not telling the truth, and even in some cases that he is deliberately not telling the truth. I cannot assent to the proposition that counsel cannot argue or the court find that a witness is deliberately giving false evidence unless the witness is asked some such question as, “I put it to you that your evidence is false”, or “I suggest that that is a deliberate lie” or the like.
And at 
Where the rule has been breached, and the tribunal of fact is a judge or a magistrate, there is no requirement that the court must accept or cannot reject evidence that has not been the subject of cross-examination. A failure to cross-examine a witness on a point does not mean that any evidence adduced in contradiction cannot be taken into account. The failure to cross-examine is merely a relevant factor to be evaluated and weighed, together with all other relevant factors in the case, in deciding whether to accept or reject the witness's evidence on the point. This is especially the case where the evidence in question is contradicted by other evidence.
This case is a useful reminder than in commercial cases, often the written documentation, such as witness statements, pleadings and submissions, filed and served in the proceeding before and during the trial place the parties on notice of the case to be met, and the rule in Browne v Dunn may be satisfied, or at least relaxed, as a result.(Citations omitted.)250. The pleadings, the witness statements filed (including in the earlier interlocutory proceedings) and the written opening all set out the applicants’ version of events. The thrust of Mr Zwart’s case before me and through earlier interlocutory hearings was that the action taken against him was not because of his conduct in the meetings, but because he tagged the forklifts on safety grounds. It has always been his case that he rejected Mr Scott’s proposed temporary measures to deal with the deficiency with the beepers. The applicants’ case has always been that the respondents’ stated reasons for taking adverse action against Mr Zwart, were not their real reasons.
251. Mr Street is a party to the proceeding represented by counsel and must be taken to be aware of pleadings and the witness statements. He was obviously on notice that his version of the reasons for the adverse action was under attack. Mr Wiltshire too must have understood the same. I have no doubt that Mr Street and Mr Wiltshire understood that the applicants contended that the respondents’ stated reasons for taking action against Mr Zwart were not their real reasons. They each displayed a good understanding of the nuances of the applicants’ case. The events of 5 August, particularly the reasonableness of Mr Zwart’s conduct, were clearly at issue between the parties. It did not require to be put to each of the respondents’ witnesses that they were being untruthful in their account: see Stern and Another v National Australia Bank Ltd (2000) 171 ALR 192 at - per Hill, O’Connor and Moore JJ.
252. Nor is this a case where, having not challenged the veracity of the respondents’ evidence, the applicants surprised the respondents by producing contradictory evidence. The credit attack made on Mr Street’s and Mr Wiltshire’s evidence is largely based on inconsistencies in the respondents’ evidence, and its implausibility when seen against surrounding facts and circumstances. The evidence in the proceeding was put on by way of witness statements under a pre-trial timetable.
Post a Comment