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) said: "In the present case, however, the defendant has already given evidence, and the Official Referee is conducting what amounts to a continuation of the trial, which has not yet been concluded by a final judgment. In general, a judge has power to recall a witness who has given evidence, though he would not have had power to call him initially. In Rex v. Seigley [(1911) 6 Cr.App.R. 106, C.C.A.J] Hamilton J. sa T - 107}: "A prisoner, when once he has made himself a witness, is liable, like any other witness, to be recalled for the purpose of answering such questions as the judge permits to be put to him." Taylor on Evidence, 12th ed., para. 1477, states: "The judge has always a discretionary power, with which the court above is very unwilling to interfere, of recalling witnesses at any stage of the trial, and putting such questions to them as_ the exigencies of justice require." This passage was approved by the Court of Criminal Appeal in Rex v. Sullivan [[1923] 1 K.B. 47, C.C.A.) And the principle, 60 far as civil cases are concerned, has never been doubted. If a party chooses to give evidence, he submits himself to the court to be asked all such questions as justice requires until the case is concluded." -3- That judgment was followed by the Full Court of the Supreme Court of Queensland in Burns v. Joseph [1969] Qd.R. 130. In that case, one of the grounds of appeal, set out at page 132, was in the following terms: ""8, The learned trial judge acted irregularly and without power and if he exercised a discretion he did not do so on correct judicial principles in re-callinga witness (viz., the plaintiff) of his own motion in the face of an objection by Counsel for the defendant and during the final address of Counsel for the defendant, more particularly as the learned trial judge had previously permitted Counsel for the plaintiff to recall and further examine the plaintiff." As to that ground of appeal, at p. 135, Hart J. said: "I do not think that ground 8 is valid. His Honour did recall the plaintiff himself during Mr. Kneipp's address, but Fallon v. Calvert [1960] 2 Q.B. 201, particularly at p. 205, makes it clear that his Honour had ample power to recall a witness." At p. 144, W.B. Campbell J. said: "In my opinion ground 8 also fails in that, although a judge has no power to call a witness without the consent of the parties, he may, in general, recall a witness who has given evidence, though he would not have had power to call him initially: Fallon v. Calvert [1960] 2 Q.B. 201 at p. 205. The issue of illegality having been raised by the defendant's counsel during his address, I consider that it was quite proper for the learned trial judge to recall the plaintiff in order to question him as to the existence of facts which may have enabled His Honour to pronounce on the legality of the transaction: Rowthorn and Anor. v. Queensland Newspapers ltd. [1962] Q.W.N. . Lucas J. Campbell recall a agreed with the reasons of both Hart J. and W.B. J. Those cases establish clearly the power of the court to witness who has already given evidence. Argument was -4- then directed as to the circumstances in which such a recall ought to be made. Mr. Hampson put it that the facts of the cases supporting the principle that the court has power to recall a witness were exceptional. In Fallon v. Calvert, the issue concerned a continuing proceeding before an official referee. In Burns v. Joseph, there was the late raising of a defence of illegality, as to which no evidence at all had been given.In my view, there is a danger in attempting to distill from the facts of individual cases the manner in which a discretionary power, such as the present one, should be exercised. True it is that the power is to be exercised in the interests of justice, but the circumstances of each case will vary, so that it is not possible to lay down particular circumstances in which the principle will or will not operate. - In the present case, the matters about which Dr. Jessup desires to question Ms. Callaghan arise largely from evidence given subsequently to Ms. Callaghan leaving the witness box. In particular, after Ms. Callaghan had given evidence, the applicants filed in court, and relied upon, an affidavit of Therese Pearce. Ms. Pearce was cross-examined upon that affidavit, and it is said on behalf of the respondents that it became apparent, in the course of her cross-examination, that she was unable to assist the court in some matters. In consequence of that, before he opened the case for the respondents, Dr. Jessup did indicate to the court that there was a matter on which he intended to seek to recall Ms. Callaghan. - 5 - There can be little doubt that if Ms. Callaghan is recalled, the matters on which Dr. Jessup intends to examine go to issues which have been raised in this case, and which, to some extent, have been raised by evidence given after that of Ms. Callaghan. In these circumstances, it seems to me that the need to do justice between the parties requires that I should permit Ms. Callaghan to be recalled, and that I should permit Dr. Jessup further to cross-examine her about the matters that he has indicated. Such a recall and further cross-examination will, of course, be subject to the right of counsel for the applicants to re-examine. If counsel for the applicants see the need to apply to re-open their case, and call further evidence in consequence of the recall, no doubt due consideration will be given to that. I therefore direct that Ms. Callaghan be recalled for further cross-examination. I certify that this and the four (4) preceding pages are a true and accurate copy of the Reasons for Judgment herein of The Hon Mr Justice Gray Associate Melowe ug . law &. Dated: 26th March 1987 For the Applicants: Mr. C.E.K. Hampson Q.C. with Mr. M.P. Amerena Instructing solicitors: Callaghan and Reidy For the Respondent: Dr. C.N. Jessup Instructing solicitors: Mullins and Mullins