FEDERAL COURT OF AUSTRALIA CMA Corporation Limited v Rowe (No 3) [2010] FCA 1433 Citation: CMA Corporation Limited v Rowe (No 3) [2010] FCA 1433 Parties: CMA CORPORATION LIMITED (ACN 113 329 016), CMA RECYCLING PTY LIMITED (ACN 107 209 503) and CMA RECYCLING VICTORIA PTY LIMITED (ACN 005 667 103) v DOUGLAS TREVOR ROWE and WMR INVESTMENTS PTY LIMITED File number: NSD 920 of 2010 Judge: FOSTER J Date of judgment: 20 December 2010 Catchwords: PRACTICE AND PROCEDURE – whether a party who has called a witness should be permitted to recall that witness after that witness' evidence has concluded – discussion of relevant principles – tactical decision made not to ask the witness questions directed to particular topics notwithstanding that those topics were contentious and notwithstanding that the witness could have given relevant evidence – application to recall witness refused Legislation: Evidence Act 1995 (Cth) s 128 Cases cited: Brown v Petranker (1991) 22 NSWLR 717 applied Harrington-Smith (on behalf of the Wongatha People) v Western Australia (No 8) (2004) 207 ALR 483 applied Date of hearing: 10 December 2010 Date of order: 10 December 2010 Date of publication of Reasons: 20 December 2010 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 30 Counsel for the Applicants: Mr NC Hutley SC, Mr JC Giles Solicitor for the Applicants: Minter Ellison Counsel for the Respondents: Mr P Tree SC, Mr CG Juebner Solicitor for the Respondents: Madgwicks Lawyers IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 920 of 2010 BETWEEN: CMA CORPORATION LIMITED (ACN 113 329 016) First Applicant CMA RECYCLING PTY LIMITED (ACN 107 209 503) Second Applicant CMA RECYCLING VICTORIA PTY LIMITED (ACN 005 667 103) Third Applicant AND: DOUGLAS TREVOR ROWE First Respondent WMR INVESTMENTS PTY LIMITED Second Respondent JUDGE: FOSTER J DATE OF ORDER: 10 DECEMBER 2010 WHERE MADE: SYDNEY THE COURT: REFUSES the respondents' application to have Glenys Marilyn Rojo recalled for the purpose of seeking to adduce further evidence-in-chief from Mrs Rojo. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using Federal Law Search on the Court's website. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 920 of 2010 BETWEEN: CMA CORPORATION LIMITED (ACN 113 329 016) First Applicant CMA RECYCLING PTY LIMITED (ACN 107 209 503) Second Applicant CMA RECYCLING VICTORIA PTY LIMITED (ACN 005 667 103) Third Applicant AND: DOUGLAS TREVOR ROWE First Respondent WMR INVESTMENTS PTY LIMITED Second Respondent JUDGE: FOSTER J DATE: 20 DECEMBER 2010 PLACE: SYDNEY REASONS FOR DECISION 1 On 10 December 2010, which was the tenth day of the trial and the last day when evidence was to be given, the following exchange took place between Senior Counsel for the respondents and me: HIS HONOUR: Now, what's happening, Mr Tree? MR TREE: Well, I'm not presently in a position to put any more evidence before your Honour, but I'm not instructed to close the case. Can I bring your Honour up to date with where we're at. Efforts were made to contact Mr Troy Rowe, and they have been wholly unsuccessful, and indeed, Mr Rowe I think got a flight this morning at about 9.30 to go to Victoria to try and find him physically. We are confident we'll be able to track him down during the course of the day, but it seems unlikely that he would be able to be here prior to 3 o'clock I think is probably the best guess that we could put. So I anticipate being in a position to call him, but not before 3 o'clock this afternoon. And, of course, some short statement of his evidence will be prepared prior to then and provided to my friend. The second matter which has arisen after I raised a matter with your Honour yesterday afternoon, is that it appears as though an adverse inference will be sought to be drawn in relation to the failure to call evidence from Mrs Rojo as to the date upon which she undertook photocopying, and in view of that intimation from our friends, efforts are being made to have Mrs Rojo recalled. HIS HONOUR: I don't recall her giving any evidence at all about that. MR TREE: She didn't, because I didn't apprehend there was any contest that she had undertaken the photocopying. HIS HONOUR: Not just the dates; she didn't say anything about it. MR TREE: No, no, quite, but I didn't apprehend it to be said to Mr Rowe that Mrs Rojo didn't do the photocopying. That didn't seem to be an issue, and it may not be an issue, but certainly what appears to be the issue is the date upon which, if it be she, she did the photocopying. So in that regard, in view of the intimation of the submission which is ultimately going to be advanced to your Honour, efforts are being made to obtain her return. However, I am told that she is in Port Macquarie for a family Christmas function. Obviously, they celebrate it early. Efforts were made to try and interrupt her flight from Sydney to Melbourne – sorry, the other way round, from Melbourne to Sydney, and to have her break her flight in Sydney this morning, but those efforts did not succeed, and I cannot say that I have any expectation that we would be in a position to be able to recall Mrs Rojo today. Now, that means that I'm in the position where I do not presently close my case, and may not be in a position – and I don't expect to be in a position to close my case at the end of the day, even assuming Mr Troy Rowe can be obtained. 2 At the end of the day on 9 December 2010, Senior Counsel had mentioned, for the first time, that the respondents were considering calling Mr Troy Rowe as a witness in the respondents' case. Mr Troy Rowe is one of the first respondent's sons. No notice had previously been given of the possibility of Mr Troy Rowe's being called as a witness. 3 On 10 December 2010, I made directions designed to address the potential difficulties thrown up by the prospect of Mr Troy Rowe's being called as a witness. In the end, the respondents decided not to call Mr Troy Rowe. 4 The second matter raised by Counsel in the exchange which I have extracted at [1] above was the respondents' application to recall Mrs Glenys Marilyn Rojo. On 10 December 2010, I rejected that application and informed the parties that I would publish my reasons for making that decision as soon as I was able. These Reasons for Decision contain my reasons for rejecting the respondents' application to recall Mrs Rojo. 5 Mrs Rojo is currently employed by the second respondent. She performs general bookkeeping duties for that corporation and acts as an executive assistant to the first respondent (Mr Rowe) in the conduct of his and the second respondent's affairs. She describes herself as a friend of Mr Rowe. The evidence led at the trial supports that description. 6 Mrs Rojo commenced working with Southern Rocycling as a contract bookkeeper in February 2001. Southern Rocycling was the principal business name of Universal Metals Pty Limited, a corporation which, at that time, was owned and controlled by Mr Rowe. The whole of the issued capital in Universal Metals Pty Limited was sold to the first applicant in 2007. That sale transaction was completed on 4 July 2007. Mrs Rojo continued to be employed in the business after 4 July 2007. Her employment was terminated by the first applicant in mid 2010, at around the same time as Mr Rowe was dismissed by the applicants. 7 Mrs Rojo gave her oral evidence-in-chief on Wednesday, 8 December 2010 and was cross-examined on 8 December 2010 and on 9 December 2010. Her oral evidence was completed at 11.49 am on 9 December 2010. When Mrs Rojo's evidence was completed, Senior Counsel for the respondents asked that she be excused from further attendance. Senior Counsel for the applicants did not oppose that course. I acceded to the respondents' request that Mrs Rojo be excused. 8 When the trial commenced, it was not clear whether Mrs Rojo would be giving evidence. She had not provided any signed affidavit to the respondents' lawyers and no affidavit, Witness Statement or Witness Outline setting out Mrs Rojo's evidence had been filed or served upon the applicants' lawyers as at 29 November 2010. 9 On 30 November 2010, Senior Counsel for the respondents informed me that he had not finally decided to call Mrs Rojo as a witness, that no Witness Statement or affidavit from Mrs Rojo had yet been filed or served and that, if the respondents did decide to call Mrs Rojo as a witness, they might need to apply to the Court for the issue of a subpoena to give evidence addressed to Mrs Rojo in order to secure her attendance at the hearing for the purpose of giving evidence. Counsel told me that, in the event that he proposed to call Mrs Rojo, he expected to provide to the applicants' lawyers during the evening of 30 November 2010 a "draft" Witness Statement in which there would be set out the evidence that the respondents' lawyers expected that Mrs Rojo would give. 10 Counsel hinted that Mrs Rojo had been receiving her own legal advice in relation to the possibility that she might give evidence at the trial of this proceeding and in relation to her position generally. 11 The next day (1 December 2010), I was told that, if required, Mrs Rojo would attend at Court voluntarily, that she did not insist upon being served with a subpoena before she would attend and that she had provided a "draft" Witness Statement to the lawyers for the respondents. Later on the same day, I was provided with a List of the Witnesses which the respondents intended to call. Mrs Rojo was on that list. 12 At some time between 1 December 2010 and 7 December 2010, the applicants' lawyers were provided with an Outline of the evidence which the respondents' lawyers expected that Mrs Rojo would give. 13 On 7 December 2010, Senior Counsel for the respondents informed me that he had been instructed that Mrs Rojo had sworn an affidavit and that, in due course, he would seek leave to file and read that affidavit when it became available. Counsel also informed me that Mrs Rojo wished to seek the protection provided by a certificate under s 128 of the Evidence Act 1995 (Cth) (the Evidence Act) in relation to certain topics about which he proposed to question her. On 7 December 2010, I indicated to the parties that I was of the view that Mrs Rojo should give all of her evidence-in-chief orally. 14 Mrs Rojo was called as a witness on 8 December 2010. The applicants did not object to what was then proposed by Senior Counsel for the respondents. Counsel submitted that I should allow some of Mrs Rojo's evidence to be given by affidavit and some to be given orally. I agreed to that course. By 8 December 2010, Mrs Rojo had sworn an affidavit. It had been sworn on 6 December 2010. It is two and a half pages in length comprising 13 paragraphs. Paragraphs 9, 10 and 13 of that affidavit are in the following terms: CASH TRANSACTIONS 9. I have not deposed to these matters on the basis that I maintain the privilege against self-incrimination in other proceedings. RECONCILIATION 10. I have not deposed to these matters on the basis that I maintain the privilege against self-incrimination in other proceedings. … PAYMENTS TO DESPERATE FIX 13. 1 have not deposed to these matters on the basis that I maintain the privilege against self-incrimination in other proceedings. 15 I provided a certificate to Mrs Rojo under s 128 of the Evidence Act in relation to the evidence which she gave on the topics described in pars 9, 10 and 13 of her affidavit. Mrs Rojo then gave some brief oral evidence. 16 Mrs Rojo was involved in a very large number of communications which have been tendered in evidence at the hearing. She has knowledge of many matters of importance in the case. She is a confidante of Mr Rowe. 17 Her evidence-in-chief was quite brief and touched upon only a few matters. The cross-examination of Mrs Rojo by Senior Counsel for the applicants addressed only some of the topics and matters that might have been the subject of legitimate questions put to Mrs Rojo on behalf of the applicants. 18 The evidence-in-chief given by Mrs Rojo was carefully and strategically confined to only a few of the large number of matters about which she could have testified. It was brought forward in the manner which I have described at [7]–[15] above. 19 In light of the confined scope of the evidence-in-chief given by Mrs Rojo, Senior Counsel for the applicants was confronted with an important forensic decision: Would he cross-examine Mrs Rojo on all relevant topics or would he confine his cross-examination to those topics which he determined needed to be covered in light of all of the other evidence in the case and in light of the scope and content of Mrs Rojo's evidence-in-chief? It is quite clear to me that Counsel chose the latter course. The choice which he made was a legitimate one and was no doubt the product of considerable thought and discussion within the applicants' legal team. 20 On 2 December 2010, Mr Rowe swore an affidavit to which he annexed five photocopied pages being photocopied extracts from his diaries. The provenance and authenticity of the five photocopied diary entries which were annexed to Mr Rowe's affidavit sworn on 2 December 2010 became significant issues in the case from the moment that this affidavit was brought forward. 21 Extensive debate took place before me on 2 December 2010 in relation to the applicants' application for an order that the original diaries be produced. I was initially told by Senior Counsel for the respondents that the original diaries were in storage. I was then told that all but the 2010 diary had been destroyed. Subsequently, Mr Rowe was cross-examined at length about the diaries. His cross-examination commenced on 3 December 2010 and continued until 8 December 2010. It was put to him that the photocopied entries annexed to his affidavit sworn on 2 December 2010 had been manufactured by him in recent times for the purpose of assisting his case and that the entries were not a genuine record of the conversations and events mentioned in them. Mr Rowe denied this. In the course of explaining the circumstances in which those photocopies were made, Mr Rowe testified that Mrs Rojo had photocopied certain entries in his diaries at his request and that this photocopying had occurred in November 2010. 22 By 8 December 2010, when Mrs Rojo was called, it must have been obvious to the respondents and their lawyers that the applicants challenged Mr Rowe's evidence concerning his diaries and that, in particular, the applicants would argue that the entries in the photocopied extracts had been placed either in the original diaries or in a photocopy of the relevant pages in recent times. 23 On Mr Rowe's version of events, Mrs Rojo could have given evidence corroborating some aspects of his evidence concerning the diaries. She gave no evidence-in-chief which touched upon the diaries or the circumstances in which the photocopies of particular diary entries had been made. These topics were left untouched. 24 Senior Counsel for the applicants also decided not to ask any questions about the diaries in his cross-examination of Mrs Rojo. That too was a deliberate decision which was legitimately taken by Counsel in light of the evidence-in-chief given by Mrs Rojo and in light of the circumstances in which it had come forward. 25 The simple fact was that neither Counsel saw fit to touch the topic of the diaries and the photocopied extracts which had become such an important issue in the case. 26 I do not accept that there is some issue about the diaries or the photocopied extracts about which the respondents were unaware by the time Mrs Rojo entered the witness box on 8 December 2010. All of Mr Rowe's evidence about the diaries and the circumstances in which the photocopied extracts came to be selected and copied had been under intense attack both before and during the cross-examination of Mr Rowe. That attack culminated in the following question and answer: … And what I want to suggest to you is that your whole evidence, in relation to this whole topic [referring to the diaries and the photocopying of extracts], is a pack of lies, which you've had to make up as it went along, as you've been constantly confronted by the possibility that your deceit in relation to these documents would be found out by the production of the originals, and that has led you to make up this story about their destruction. That's the truth, isn't it, Mr Rowe?---That is – that is totally incorrect. 27 The decision whether leave should be granted to recall a witness who has already concluded his or her evidence lies in the discretion of the trial judge (Brown v Petranker (1991) 22 NSWLR 717 at 728 (per Clarke JA)). In Harrington-Smith (on behalf of the Wongatha People) v Western Australia (No 8) (2004) 207 ALR 483 at [121] (p 504), Lindgren J said: 121 In Brown v Petranker (1991) 22 NSWLR 717, Clarke JA, (with whom Handley JA and WaddellAJA agreed), said (at 728): It is well-settled that the decision whether leave should be granted to recall a witness who has already concluded his or her evidence lies in the discretion of the trial judge. … In my opinion there is an overriding principle which should be applied and that requires the court to inquire whether the interests of justice require that leave be granted or refused. The court's discretion should be exercised in the light of the interests of justice in all the circumstances: Australian Petroleum Pty Ltd v Parnell Transport Industries Pty Ltd [1999] FCA 339; BC9901438 at [7] per Mansfield J. 28 Some additional insight into the relevant principles can be gained from the following additional remarks made by Clarke JA in Brown at 728–729: In my opinion there is an overriding principle which should be applied and that requires the court to inquire whether the interests of justice require that leave be granted or refused. There is no rule or, as far as I am aware, practice of the court which requires a party seeking to recall a witness to show that that party has been taken by surprise. Nor is there any rule to the effect that it is only rarely that "a court will permit a witness who has completed his evidence to be recalled". On the contrary the court is concerned to consider what is just between the parties. Ordinarily the interests of justice would favour the grant of leave where the evidence sought to be adduced had been overlooked and the other party would not be prejudiced by the fact that the additional evidence is to be given after cross-examination and re-examination of the witness has been completed. On the other hand if counsel had deliberately refrained from leading the evidence when the witness was being examined in chief in the hope of gaining some tactical advantage or it appeared that the opposing party would suffer prejudice if leave was granted there would be sound reasons for rejecting the application. In my view the principle was correctly stated by Jeffrey J in Henning v Lynch [1974] 2 NSWLR 254, in the context of an application to re-open a prosecution case before the commencement of the defence case. There his Honour said (at 259): "… The applicable principle is one which in the circumstances here strongly favours the reopening of the prosecution case: where the defendant's case has not been gone into and there is ready to be tendered some additional evidence which by accident, mistake or want of foresight has not been tendered before the prosecution case is closed, it is—to use the words of Cave J in Hargreaves v Hilliam (1894) 58 JP 655, 'a very fit and proper thing to allow the evidence to be given unless there is some very good reason'." 29 In the present case, I think that a tactical or strategic decision was made by the respondents to steer clear of the whole topic of the diaries and the photocopying of them when adducing evidence from Mrs Rojo. That decision led to a similar decision being made by Senior Counsel for the applicants. His whole cross-examination was carefully crafted and relatively confined in light of Mrs Rojo's evidence-in-chief and the other evidence in the case. In my view, it would have been quite unfair to allow the topic of the diaries and the photocopied extracts to be opened up so late in the case by allowing the recall of Mrs Rojo in order to give further evidence-in-chief directed to those topics. As submitted by Counsel for the applicants, had that topic been addressed in Mrs Rojo's evidence-in-chief given on 8 December 2010, it is quite likely that the cross-examination of Mrs Rojo would have taken a radically different course. It would have been wrong of me to treat the topic as being so isolated from other matters of interest as to be susceptible to the separate treatment that would have resulted from my acceding to the respondents' application. 30 For these reasons, I refused the respondents' application to recall Mrs Rojo. I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Foster. Associate: Dated: 20 December 2010