Callaghan, B. & Ors v Federated Clerks Union of Australia & Ors [1987] FCA 304

CATCHWORDS

EVIDENCE - witness - whether court has power to recall.

BERNADETTE CALLAGHAN & OTHERS v FEDERATED CLERKS UNION OF AUSTRALIA AND OTHERS

No. Q13 of 1986 No. Q7 of 1986

Gray J 26th March 1987 Brisbane

IN THE FEDERAL COURT OF AUSTRALIA

) ) QUEENSLAND DISTRICT REGISTRY ) No. Q13 of 1986 ) No. Q7 of 1986 )

INDUSTRIAL DIVISION

BETWEEN:

BERNADETTE CALLAGHAN & OTHERS Applicants AND

FEDERATED CLERKS UNION OF AUSTRALIA AND OTHERS

Respondents

JUDGE: GRAY J.

DATE: 26TH MARCH 1987 EX TEMPORE REASONS FOR JUDGMENT

In this matter the applicant's case has been closed, and those respondents who have appeared at the trial have embarked upon their evidence. Part of the evidence led on behalf of the applicants was evidence from a witness Bernadette Ann Callaghan. She was cross-examined by Dr. Jessup of counsel for the respondents. Dr. Jessup now seeks to have Ms. Callaghan recalled for further cross-examination by him. Mr. Hampson Q.C., who appears with Mr. Amerena for the applicants, objects to this

course of action.

Initially, Mr. Hampson suggested that the court had no power at all to recall a witness. It does appear to be well

established that, in a civil case, a judge may not call a witness

-~-2-

not previously called, unless the parties consent - see In re

Enoch and Zaretsky, Bock & Co.'s Arbitration, [1910], 1 K.B. 327.

There does, however, appear to be an exception to that rule ina case in which the witness has already been called and is recalled by the judge. The existence of the exception is well supported by two authorities.

In Fallon v. Calvert [1960] 2 Q.B. 201, the Court of Appeal dealt with a case in which an official referee had directed the defendant to attend before him. At p. 205 in the judgment of the Court of Appeal, after dealing with the rule that it is not open to the court to call a witness of its own motion without the consent of the parties, Pearce L.J., (as he then was)