FEDERAL COURT OF AUSTRALIA National Auto Glass Supplies (Australia) Pty Limited v Nielsen & Moller Autoglass (NSW) Pty Limited (No 5) [2007] FCA 569 EVIDENCE – application by a witness under cross-examination to be excused from giving further evidence in the case Evidence Act 1995 (Cth) ss 11(1) and 41 Federal Court of Australia Act 1976 (Cth) s 58 NATIONAL AUTO GLASS SUPPLIES (AUSTRALIA) PTY LIMITED ACN 081 814 342, MAGGIE YEUNG LO AND HARVEY HUI OUYANG v NIELSEN & MOLLER AUTOGLASS (NSW) PTY LIMITED ACN 107 721 595, JACK J MOLLER AND CARL MOLLER NSD 2596 OF 2005 GRAHAM J 13 APRIL 2007 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NSD 2596 OF 2005 BETWEEN: NATIONAL AUTO GLASS SUPPLIES (AUSTRALIA) PTY LIMITED ACN 081 814 342 First Applicant MAGGIE YEUNG LO Second Applicant HARVEY HUI OUYANG Third Applicant AND: NIELSEN & MOLLER AUTOGLASS (NSW) PTY LIMITED ACN 107 721 595 First Respondent JACK J MOLLER Second Respondent CARL MOLLER Third Respondent JUDGE: GRAHAM J DATE OF ORDER: 13 APRIL 2007 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The second respondent be excused from giving further evidence in the case. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NSD 2596 OF 2005 BETWEEN: NATIONAL AUTO GLASS SUPPLIES (AUSTRALIA) PTY LIMITED ACN 081 814 342 First Applicant MAGGIE YEUNG LO Second Applicant HARVEY HUI OUYANG Third Applicant AND: NIELSEN & MOLLER AUTOGLASS (NSW) PTY LIMITED ACN 107 721 595 First Respondent JACK J MOLLER Second Respondent CARL MOLLER Third Respondent JUDGE: GRAHAM J DATE: 13 APRIL 2007 PLACE: SYDNEY REASONS FOR JUDGMENT 1 The Court is confronted with a most difficult and unusual application. 2 The applicants in the proceedings are a company engaged in the supply of glass for automobiles, such as windscreens, and two persons who are involved in that business, who were formerly directors of it. The respondents are another company engaged in the supply of glass for automobiles, such as windscreens, and two persons who either are or have been involved in that company, directly or indirectly. 3 The case is essentially a defamation case brought in this Court, federal jurisdiction relevantly being attracted by the making of certain claims for relief under the Trade Practices Act 1974 (Cth). 4 The alleged defamation is said to arise from the publication of three documents, being a facsimile, a letter to the Australian Taxation Office ('the ATO') and an email. 5 The extent of publication of the facsimile would appear to have been, on the evidence thus far, within a narrow compass. My recollection is that the applicants contend that it was transmitted to approximately 30 other parties. The evidence would tend to suggest or prove a lesser degree of transmission than that. The letter to the ATO was hand delivered and would appear to have had no wider publication than directly to the ATO. The email was transmitted to a party in Hong Kong with a copy to an associate in China. I hope I do not do an injustice to the applicants' claims by defining the nature of the defamatory publications in those terms. 6 The respondents were originally represented by solicitors and at one stage by competent counsel including senior counsel. When the matter was called on for hearing on 4 December 2006 the first respondent, the corporate respondent, was unrepresented and each of the second and third respondents appeared in person. An application was made by the respondents who appeared in person that they or one of them be allowed to represent and speak for the company. That application was refused. The hearing of the matter proceeded in December on the basis that nobody was there to speak for the company but each of the second and third respondents was present before the Court to conduct the litigation. 7 Following the reading of an affidavit, subject to rulings on objections, by the second respondent, Mr Jack J Moller, he entered the witness box at about 12:07 pm on 11 December 2006. After giving evidence-in-chief which occupied about two pages of the transcript, the cross-examination of Mr Jack Moller by junior counsel for the applicants commenced. I should interpose that at that stage, senior counsel for the applicants was detained elsewhere. The cross-examination of Mr Jack Moller proceeded until the close of business on 11 December 2006 and resumed on 12 December 2006 until the luncheon adjournment at about 12:49 pm. 8 At the adjournment I indicated that the Court would resume at 2:15 pm and requested that Mr Jack Moller be back at the Court by that time, inferentially so as to continue with his evidence. 9 I should indicate that Mr Jack Moller, the second respondent, and Mr Carl Moller, the third respondent, are father and son. My observation of Mr Jack Moller would suggest to me that he is in his mid to late 70s. I do not have the evidence presently before me but my recollection is that he may have indicated his precise age in his evidence at some stage which I think accords with my personal assessment. 10 When the Court resumed at 2:22 pm on 12 December 2006 I asked Mr Jack Moller whether he wanted to say something. His response to my question was: 'Yes. I have a heart condition called atrial flutter. It is not life-threatening but when it happens I go dizzy and I lose my balance. I felt it coming on in the last half hour in the witness box here and I fear that I may not have understood questions. I am on drugs for it and a specialist and they said when it comes on I have go [sic] to lay down for four to six hours. I just want to go home.' 11 Shortly thereafter consideration was given as to whether it may be appropriate for Mr Jack Moller to repair to a rest room on Level 17 of the Law Courts building. I asked Mr Jack Moller: 'Do you feel a need to repair to Sydney Hospital, or would you be content just to find a place where you could lie down for an hour or two?' His response was: 'My wish is to go home and be with my wife. I don't want her notified of the situation.' 12 As it transpires, an adjournment was ordered until 10:15 am on the following day, such an adjournment having been one in which counsel for the applicants acquiesced. I note that that acquiescence was at a time when senior counsel for the applicants had been able to return to the Court. 13 The hearing resumed on the following day, 13 December 2006. I made the observation to Mr Carl Moller who was present in Court that I could not see his father. Mr Carl Moller's response was: 'That is right ... unfortunately, he has taken a turn for the worse. I have just heard on the mobile phone from my mother that he is not very well at all and he will be attending a doctor today and possibility of a nervous breakdown. Therefore, I ask that he be excused at this point of time until I can get some more information for the court.' 14 I made the observation to Mr Carl Moller at the time that it would be desirable if a medical certificate from a doctor was provided at the earliest opportunity. Senior counsel for the applicants said words to the effect: 'We are very troubled by the absence of a medical certificate and we do not accept any assertion made from the bar table as to the condition of the second respondent.' 15 Shortly thereafter I observed that Mr Jack Moller was 76 years of age. I referred to a remark which I had previously made to the effect that the litigation may have an adverse effect on Mr Jack Moller's health. I continued by saying: 'Be that as it may, I am satisfied that the condition in which we observed him yesterday afternoon was not that of a person who was, if I may use the expression, "putting it on", rather, he appeared to me to be in some distress of a medical nature.' Senior counsel for the applicants said: 'We agree with that.' 16 Shortly thereafter senior counsel for the applicants informed the Court that the applicants' estimate of the further time required to cross-examine Mr Jack Moller was approximately two hours. At about 10:40 am the matter was adjourned until the following day, namely 14 December 2006. 17 The hearing on 14 December 2006 commenced with an acknowledgement by counsel for the applicants that a medical certificate had been provided. Mr Carl Moller informed the Court that he was presenting the doctor's certificate as requested and said: '… all I can really say is I just don't think he's well enough to attend court. He's not very well at all.' 18 Mr Carl Moller made an application that in the light of the medical certificate, the hearing be adjourned. The medical certificate, being a certificate of a Dr K Callan dated 13 December 2006 became exhibit AR-1 on the adjournment application. Senior counsel for the applicants applied to cross-examine the medical practitioner. That did not occur because the application made by the applicants for an order under Order 33 rule 13 of the Federal Court Rules requiring Dr Kerry Callan to attend Court and be examined on her certificate dated 13 December 2006 was not pressed. Senior counsel for the applicants proceeded to make an open offer in Court to settle the applicants' case against the second respondent, Mr Jack Moller, who, needless to say, was not present at the time. 19 On 14 December 2006 a revised form of that open offer was sent by letter to the second respondent inviting him to submit to the proposed settlement contained in that letter. It was indicated that the offer would remain open until close of business on 25 January 2007. As it transpires, that offer was rejected by Mr Jack Moller. 20 Yesterday, when the hearing of the matter resumed, senior counsel and junior counsel for the applicants appeared along with the third respondent but Mr Jack Moller, the second respondent, did not appear. During the course of the morning the open offer to Mr Jack Moller to settle the matter was revived but earlier today Mr Jack Moller informed the Court that he was not disposed to accept it. 21 Mr Jack Moller failed to communicate with the Court to advise it of his wishes, prior to his non-attendance at the continuation of the hearing yesterday, that is to say Thursday 12 April 2007. Furthermore, he failed to communicate with the solicitors for the applicants. When the matter was called for hearing yesterday Mr Carl Moller acknowledged that his father Mr Jack Moller was absent and said: '… unfortunately he does have a medical condition and I have a doctor's certificate explaining that condition and he wont [sic] be attending Court.' 22 A medical certificate of Dr Kerry Callan of 10 April 2007 was handed up but did not become evidence before the Court. A copy of it was made available to counsel for the applicants. 23 Leave was granted to the applicants yesterday to file and serve a Notice of Motion returnable before the Court at 10:15 am today seeking certain relief referrable to the non-attendance of Mr Jack Moller on 12 April and the declared attitude of Mr Jack Moller towards the further conduct of the litigation as against him, which attitude was reported to the Court by his son Mr Carl Moller yesterday. It goes without saying that Mr Carl Moller had no authority to make any admissions against the interests of his father. However, it was indicated by Mr Carl Moller that his father intended not to return to Court for the further hearing of the matter and also intended not to return to the witness box to conclude his evidence and allow the further cross-examination of himself by junior counsel for the applicants to proceed. 24 After being served with the Notice of Motion returnable for 10:15 am today and apparently hearing a report from Mr Carl Moller as to what transpired in Court yesterday, Mr Jack Moller attended Court this morning along with his son Mr Carl Moller. When he addressed the Court, Mr Jack Moller was seated and he asked if he could be permitted to remain seated as he felt that he would be unable to properly address the Court were he to be standing. Needless to say that application was acceded to. 25 Mr Jack Moller has personally informed the Court that he does not intend to return to the witness box to allow himself to be further cross-examined and that he intends to absent himself from the balance of the hearing of the matter against him. He has indicated that he does not wish to accept the revived settlement offer of 14 December 2006, nor does he wish to submit to a judgment against him; rather, he wishes to rely upon his Defence and he is content to have the matter dealt with by the Court in his absence. In an endeavour to ascertain what if any application Mr Jack Moller wished to make, it became clear that he wished to be excused from giving further evidence in the case. 26 It seemed to me that logically his application to be so excused should be addressed first and then I would allow the applicants to seek such relief as they may be advised under their Notice of Motion filed 12 April 2007. Senior counsel for the applicants agreed that it was appropriate to first address the desire of Mr Jack Moller to be excused from giving further evidence in the case. 27 Section 11(1) of the Evidence Act 1995 (Cth) ('the Evidence Act') provides: '11(1) The power of a court to control the conduct of a proceeding is not affected by this Act, except so far as this Act provides otherwise expressly or by necessary intendment. ' 28 A deliberate non-attendance by a witness before the court may well justify the institution of proceedings for contempt. It is appropriate to note that in addition to the possibility of contempt proceedings being instituted, provision is made in s 58 of the Federal Court of Australia Act 1976 (Cth) ('the Federal Court Act') in relation to offences by witnesses who refuse or fail to be sworn or to make an affirmation or who refuse or fail to answer a question that they are required by the Court to answer. Section 58 of the Federal Court Act relevantly provides: '58(2) A person appearing as a witness before the Court shall not: (a) refuse or fail to be sworn or to make an affirmation; (b) refuse or fail to answer a question that he or she is required by the Court to answer; or ... (2A) Subsections (1) and (2) do not apply if the person has a reasonable excuse. (3) Nothing in this section limits the power of the Court to punish persons for contempt of the Court, but a person shall not be punished under this section and for contempt of the Court in respect of the same act or omission.' (emphasis added) Another section in the Evidence Act may assist Mr Jack Moller in his application, namely s 41, which relevantly provides: '41(1) The court may disallow a question put to a witness in cross-examination or inform the witness that it need not be answered if the question, is: ... (b) unduly annoying, harassing, intimidating, offensive, oppressive … (2) Without limiting the matters that the court may take into account for the purposes of subsection (1), it is to take into account: (a) any relevant condition or characteristic of the witness, including age, personality and education; and (b) any mental, intellectual or physical disability to which the witness is or appears to be subject.' (emphasis added) 29 In support of his application to be excused from giving further evidence in the case, Mr Jack Moller sought to tender and rely upon the medical certificate of Dr Callan of 10 April 2007, to which reference has earlier been made. He further sought to rely upon the medical certificate of the same doctor which had become exhibit AR-1 on the application for adjournment made on 14 December 2006. The tender of each medical certificate was objected to by senior counsel for the applicants in the absence of Dr Callan to give evidence. 30 Mr Jack Moller informed the Court that at the time when he solicited and obtained the medical certificate from Dr Callan of 10 April 2007, that is to say last Tuesday, he informed the doctor that she may well be required to attend court to give evidence in respect of the matters the subject of the medical certificate. It's clear that no arrangement was put in place by Mr Jack Moller to have Dr Callan attend Court today or, for that matter, yesterday, to provide evidence as to his current medical condition. 31 When invited to consider the possibility of a 10 minute adjournment to allow Mr Jack Moller to contact Dr Callan to see whether she would be available to come to Court at some time later in the day today to give evidence, Mr Jack Moller declined the opportunity, informing the Court that doctors were busy people and they could not drop things at a moment's notice to come to Court to give evidence, or words to that effect. 32 Mr Jack Moller informed the Court that if someone wanted Dr Callan to be in Court, that party would have to subpoena Dr Callan. He declared that he did not intend to subpoena her and that if the applicants wanted her to be a witness before the Court they would have to subpoena her. In this regard it is clear that Mr Jack Moller had a complete misunderstanding as a litigant in person of the obligation of a person who wishes to establish a fact to prove it by their own evidence rather than relying upon some other party to prove it for them. In the circumstances there is no medical evidence at all before the Court in relation to Mr Jack Moller's medical condition. 33 Having said that, I am reminded of my observation on 13 December 2006 that I was satisfied that the condition in which the Court observed Mr Jack Moller on the afternoon of 12 December 2006 was not that of a person who was 'putting it on', rather he appeared to be in some distress of a medical nature. I note that, as stated above, senior counsel for the applicants agreed with that observation. When invited to address the Court on his application to be excused from giving further evidence in the case, Mr Jack Moller indicated that he was unable to address the Court orally about the matter but wished to rely upon a bundle of material which he had gathered together, in which he recorded a written submission. 34 None of the material which he relied upon by way of submission included any reports from any medical specialists whom he may have consulted. I notice that he has extracted, presumably from the internet, a number of articles addressing atrial fibrillation or flutter and the dates on which those articles were printed vary from 12 January 2007 to 17 January 2007. His signed written submission bearing today's date included: 'Further to your requests re my non appearance in court of yesterdays date I would like to make the following explanations and comments Due to my inexperience in court proceedings it was in no way my intention to flout court procedures or principles for which I apologise I was under the impression that my doctors certificate gave the full reasons for my lack of attendance and the damaging results to my health from my heart complaint which has no cure only continuing care and constant control ... Be aware that I have already been subjected to having my heart stopped by electrical shock treatment on two occasions as a last resort to bring my heartbeat back to normal pulse rates From this you will see the reason I am unable to defend myself or be involved in stressful harassment or cross examination at 77 years of age without doing myself justice or receiving the time honoured Australian tradition of a fair go The stress of having the applicants spending twice my annual pension on one days court costs is more than I can bear and understand ...' 35 The balance of the written submission included some rather offensive remarks but perhaps it's appropriate to quote one part of that section which read: 'Under no circumstances will I place my health at risk due to the whims of this pair of criminals' 36 My understanding is that in that submission, he was intending to refer to the second and third applicants. 37 Senior counsel for the applicants has helpfully put submissions to me on the possible application of s 41 of the Evidence Act and s 58 of the Federal Court Act. In relation to s 41 of the Evidence Act, the primary submission of counsel for the applicants is that the power conferred on the Court to disallow a question or to inform a witness that it need not be answered is to be addressed by the Court seriatim, so that there is no power to provide for a blanket disallowance or relief from answering all further questions. I am not sure in relation to the observation that one has to address the matter question-by-question, but am disposed to agree that, until one gets to the first question that should appropriately be disallowed or the subject of information to the witness that the question need not be answered, there is no power conferred on the Court by s 41 to simply order that a person be excused from giving further evidence in a case. 38 In relation to s 58(2) of the Federal Court Act, the submission of the applicants is that it is a section constituting an offence. It is not one directed at conferring on the Court a power to excuse a witness from giving further evidence in a case. This is true; however, it seems to me that the underlying philosophy behind s 41 of the Evidence Act and s 58 of the Federal Court Act is that there may be circumstances in which a refusal to answer questions will be permissible. It is significant that s 58(2A) of the Federal Court Act indicates that there will be no offence if the person refusing or failing to answer a question has 'a reasonable excuse'. It is also significant in addressing whether or not the Court should exercise its discretion to relieve a witness from the obligation of answering a question in cross-examination under s 41(1) of the Evidence Act that the court is entitled to have regard to any mental, intellectual or physical disability to which the witness appears to be subject. 39 It is also appropriate of course to have regard to a person's age. Fortunately, in these times there are many people who are 76 years of age who have long life expectancies. However, at 76 a person has enjoyed three score and ten years and may well be afflicted by medical disabilities which one would not expect to suffer from, if of a younger age. In my opinion, having regard to the apparent medical condition which affected Mr Jack Moller in December last year, it would be reasonable to excuse him from what would otherwise constitute an offence by refusing or failing to answer further questions in cross-examination. 40 I find the application to be excused from giving further evidence to be novel and challenging; however, in my opinion the application is one which should succeed. I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Graham. Associate: Dated: 20 April 2007 Counsel for the Applicants: S M Littlemore QC and A A Henskens Solicitors for the Applicants: Robert Yip & Co The first respondent did not appear The second respondent appeared in person The third respondent appeared in person Dates of Hearing: 4, 5, 6, 7, 8, 11, 12, 13, 14 December 2006, 12 and 13 April 2007 Date of Judgment: 13 April 2007