FEDERAL COURT OF AUSTRALIA International Relief and Development Inc v Ladu [2013] FCA 1216 Citation: International Relief and Development Inc v Ladu [2013] FCA 1216 Parties: INTERNATIONAL RELIEF AND DEVELOPMENT, INC v GODFREY EMMANUEL LADU File number: VID 522 of 2012 Judge: KENNY J Date of judgment: 19 November 2013 Catchwords: PRACTICE AND PROCEDURE – Application for leave to confer with witness before re-examination – witness under oath – leave granted. Legislation: International Arbitration Act 1974 (Cth) Evidence Act 1995 (Cth) Cases cited: State v Khan [2004] FJHC 72 Wentworth v Rogers (No 10) (1987) 8 NSWLR 398 Books cited: Annesley R, Good Conduct Guide: Professional Standards for Victorian Barristers (Victorian Bar, 2006) Gowans G, The Victorian Bar: Professional Conduct, Practice and Etiquette (The Law Book Company Limited, 1979) Sheppard I, "Communications with Witnesses Before and During Their Evidence" (1987) 3 Australian Bar Review 28 Boulton W, Guide to Conduct and Etiquette at the Bar of England and Wales (6th ed, Butterworths, 1975) Coombs J, "Re-examination" in New South Wales Bar Association (ed), Bar Practice Course Materials (New South Wales Bar Association, 2007) Heydon JD, Cross on Evidence (9th Australian edition, LexisNexis Butterworths, 2013) Other sources: Victorian Bar Incorporated Practice Rules Code of Conduct of the Bar of England and Wales (8th edition) Date of hearing: Determined on the papers Place: Melbourne Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 53 Counsel for the Applicant: D Crennan Solicitor for the Applicant: Cornwall Stodart Counsel for the Respondent: M Stirling Solicitor for the Respondent: Zindilis Lawyers IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY GENERAL DIVISION VID 522 of 2012 BETWEEN: INTERNATIONAL RELIEF AND DEVELOPMENT, INC Applicant AND: GODFREY EMMANUEL LADU Respondent JUDGE: KENNY J DATE OF ORDER: 19 NOVEMBER 2013 WHERE MADE: MELBOURNE THE COURT ORDERS THAT: 1. Leave is granted for counsel for the respondent to confer with the respondent on the topics set out in subparagraphs 3 (a) to (f) (inclusive) of the document entitled "Memorandum of the Respondent concerning Ladu Re-examination" filed on 9 September 2013. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY GENERAL DIVISION VID 522 of 2012 BETWEEN: International Relief and DEVELOPMENT, Inc Applicant AND: GODFREY EMMANUEL LADU Respondent JUDGE: KENNY J DATE: 19 NOVEMBER 2013 PLACE: MELBOURNE REASONS FOR JUDGMENT INTRODUCTION 1 These proceedings were commenced by an application for the enforcement of an arbitral award under s 8(3) of the International Arbitration Act 1974 (Cth) ('IAA'). The applicant, International Relief and Development, Inc ('IRD'), seeks an order that a foreign arbitral award made on 21 July 2011 in pursuance of an arbitration agreement between it and Godfrey Emmanuel Ladu be enforced and entered as a judgment of the Court. Mr Ladu has resisted IRD's application on several grounds, namely: (1) that he was not given proper notice of the appointment of the arbitrator; (2) that he was not given proper notice of the arbitration proceedings; (3) that he was otherwise unable to present his case in the arbitration proceedings; and (4) that to enforce the award would be contrary to public policy in that a breach of the rules of natural justice has occurred in connection with the making of the arbitral award. 2 It is unnecessary to traverse the complete history of either the application in this court or of the arbitral award. It suffices to note that both are complicated. 3 These reasons are concerned with a matter that has arisen in the course of the hearing. Leave is sought for the respondent's counsel to confer with the respondent, after the respondent's cross-examination and for the purposes of re-examination, in relation to several credit matters, which have been put to him by counsel for IRD. For the reasons stated below, I would grant leave for counsel for Mr Ladu to confer with Mr Ladu on the topics set out in subparagraphs 3(a) to (f) (inclusive) of the document entitled "Memorandum of the Respondent concerning Ladu Re-examination" filed on 9 September 2013 ('9 September 2013 memorandum'). PARTIES' SUBMISSIONS 4 In this 9 September 2013 memorandum, counsel for Mr Ladu submitted that: Depending on what instructions are received from Ladu: (a) the respondent will seek to lead further evidence from [him] in re-examination, probably including the tendering of documents; and (b) the respondent may also wish to call other brief evidence from witnesses, including the tendering of documents. The credit issues which IRD has raised against Ladu, and which the respondent's counsel wishes to confer with Ladu about to explore what rebuttal evidence might be adduced are: (a) that Ladu has fabricated exhibit GL 49 to his affidavit [CB 890-921] for the purposes of assisting his case, being documents which Ladu stated were obtained from "the South Sudan Register of Companies, the Department of Justice and the Ministry of Legal and Constitutional Affairs"; he stated they were "copies of government documents regarding the Company [then listed as (a) to (e)] … I have obtained from the above bodies in South Sudan": see paragraph 8 of his affidavit at [CB 886]. (b) alternatively, that there are discrepancies between part of exhibit GL 49 (the Ladu Brothers Company Memorandum and Articles at [CB 898-921]) and exhibit "A1" which is said to be a copy of a Ladu Brothers Company Memorandum and Articles provided to Sagora by the South Sudan Register of Companies; (c) that Ladu's evidence concerning Ladu Brothers Company documents is said to be inconsistent with proposed exhibits MFI 1 and MFI 2 (and perhaps GL 49); (d) that Ladu signed an undated Completion Certificate on behalf of Ladu Brothers Company [CB 469]; (e) that Ladu prepared, or provided information for the preparation of, aspects of the Ladu Brothers Company profile dated February 2007 which related to him [CB 495-531]; and (f) that approximately $22,000 of additional funds came into Ladu's CfC account between 30 October 2010 [CB 130] and 1 March 2011 [CB 131] which is not explained by IRD wages which were in the approximate sum of $2,000 per week. 5 The 9 September 2013 memorandum further submitted that, in the circumstances, it was just that counsel be permitted to confer with Mr Ladu prior to re-examination because: (1) IRD had not notified him of the "Sagora evidence" (including exhibits "A1", "MFI 1" and "MFI 2") until the running of the trial; and (2) the application came to trial on affidavit, without pleadings, particulars or discovery. The memorandum continued that he "could not have foreseen the matters raised by Sagora and the specific credit attacks which have been made, including the documentation put forward under the proposed exhibits". The memorandum concluded: The respondent should be entitled to lead all relevant evidence (by calling witnesses or tendering documents) to answer allegations put to him in cross-examination which are said to go to his credit. What particularly concerns the respondent is that the applicant might submit that credit findings should be made against Ladu in circumstances where Ladu cannot call response witnesses (such as the person from the bodies referred to in 3(a)) or subpoena or tender relevant documents (for example, the files held by the bodies referred to in 3(a) to answer the allegations put against him [))]. 6 There may be more issues signalled in these short submissions than simply leave to take instructions. This is perhaps reflected in the fact that, in its written response dated 17 September 2013 ('17 September response'), IRD opposed the grant of leave sought by Mr Ladu sought on the ground that "[t]he matters raised by the respondent … do not provide any reasonable basis for the Court allowing Counsel for the respondent to confer with his client after cross examination and for the purposes of re-examination in relation to matters of credit". On the contrary, IRD contended that these matters "properly relate to the respondent reopening or recalling Mr Ladu to give further evidence in chief". IRD continued: Any application to re-open the case requires leave of the Court and the respondent should provide a basis for the Court granting leave together with the appropriate affidavit material. If the respondent's legal representative wishes to recall Mr Ladu, he should give evidence in chief and be subject to cross examination in the ordinary course. I discuss this contention further below. APPLICATION FOR LEAVE TO CONFER 7 In this case, it may be inferred that counsel for Mr Ladu considers that Mr Ladu has given evidence in cross-examination on the topics mentioned in his submissions (see [4] above) that may disadvantage his case. Counsel evidently considers that he has insufficient knowledge about these topics to re-examine without first conferring with Mr Ladu. This is, so it seems to me, implicit in his submission that he may wish to adduce "further evidence" from Mr Ladu in re-examination. 8 The occasion for the leave application is informed by reference to the rules that govern the conduct of barristers in court. Rule 46 of the current Practice Rules of the Victorian Bar (to which the parties' counsel belong) provides: A barrister must not confer with any witness (including a party or client) called by the barrister on any matter related to the proceedings while that witness remains under cross-examination, unless: (a) the cross-examiner has consented beforehand to the barrister doing so; or (b) the barrister: (i) believes on reasonable grounds that special circumstances (including the need for instructions on a proposed compromise) require such a conference; and (ii) has, if possible, informed the cross-examiner beforehand of the barrister's intention to do so; and (iii) otherwise does inform the cross-examiner as soon as possible of the barrister having done so. 9 A little more is said on this subject in Roisin Annesley's Good Conduct Guide: Professional Standards for Victorian Barristers, published by the Victorian Bar in 2006 and currently displayed on the Bar's website. In particular, paragraphs [8.47]-[8.49] of this publication read as follows: 8.47 While a witness is under cross‑examination a barrister may not confer with the witness, even if the witness is a client or party to the proceeding. There are two exceptions to the Rule: (a) if the cross‑examiner has consented beforehand; and (b) if the barrister believes on reasonable grounds that there are special circumstances which necessitate a conference and the barrister has informed the cross‑examiner beforehand of the barrister's intention or as soon as possible after the barrister having done so. 8.48 Special circumstances which may necessitate a conference could be: (a) the compromise of a proceeding; (b) the need to advise a client against the risk of self‑incrimination; (c) during lengthy cross‑examination, the need to retain a new expert; or (d) instructions for a bias application. 8.49 However, counsel should exercise great caution even in such special circumstances and should always endeavour to communicate with his or her opponent where the circumstances permit. 10 There may be a question as to what extent, if at all, rule 46 of the Victorian Bar Practice Rules applies where the cross-examination of the relevant witness has apparently concluded and re-examination is about to commence. To determine the present matter, it is, however, unnecessary to say anything further about this subsidiary question. 11 Whilst a rule of the kind now found in rule 46 of the Victorian Bar Practice Rules has not always been acknowledged in Victoria (see Gregory Gowans, The Victorian Bar: Professional Conduct, Practice and Etiquette (The Law Book Company Limited, 1979) at 75), similar rules or practices have traditionally been followed in other common law jurisdictions. That is, there has been a rule or practice in other Australian jurisdictions, the United Kingdom and at least some other common law countries that counsel would not speak with his or her own witness whilst that witness was under oath (or, perhaps, only cross-examination) at least without leave of the court or the consent of the opposing party (or, perhaps, without informing either the Court or the opposing party): see Ian Sheppard, "Communications with Witnesses Before and During Their Evidence" (1987) 3 Australian Bar Review 28 ('Sheppard') at 36-38. 12 For example, in State v Khan [2004] FJHC 72, the High Court of Fiji had occasion to say: There is no doubt at all, that there is a long-established rule of practice at the Bar, that counsel must not talk to witnesses once they have taken the oath. This rule is often found in legal codes of conduct. It is not found in the Fiji "Rules of Professional Conduct and Practice" (annexed to the Legal Practitioners' Act 1998) but appears for instances in the Queensland Ethical Rules which provide inter alia: "Counsel should not speak to a witness (other than an expert witness) whose cross- examination has begun but has not been completed." Boulton (Conduct and Etiquette at the Bar Butterworths (1971)) says (at p. 12): "Save with the consent of counsel on the other side or by leave of the tribunal, it is improper for counsel to communicate directly or indirectly with a witness, whether or not his client, once such a witness has begun to give evidence, until his evidence is concluded." This rule derived originally from the Senate of the Four Inns of Court of London. It is the body responsible for the discipline of barristers in England and Wales and the rule prohibiting communication with a witness on oath appears to have emerged because of the principle that once a witness takes the oath he or she is the court's witness and is the property of neither party to the proceedings. (emphasis in original) 13 Later editions of William Boulton's monograph repeat this rule: see, for example, A Guide to Conduct and Etiquette at the Bar of England and Wales (6th ed, Butterworths, 1975) at 14. The United Kingdom Bar Standards Board's Code of Conduct for practising barristers currently reiterates the rule, stating in rule 705(c) that: A barrister must not: … except with the consent of the representative for the opposing side or of the Court, communicate directly or indirectly about a case with any witness, whether or not the witness is his lay client, once that witness has begun to give evidence until the evidence of that witness has been concluded. 14 In contrast to the position in the United Kingdom, rule 46 of the Victorian Bar's Practice Rules expressly mentions only a limitation on communication "while that witness remains under cross-examination" and does not expressly refer to the possibility that the consent or leave of the Court may be sought in circumstances such as the present. Today, however, leave applications like the present one are not infrequently made in this Court by members of the Victorian Bar in the same way as they are made in other Australian jurisdictions. See, for example, John Coombs, "Re-examination" in New South Wales Bar Association (ed) Bar Practice Course Materials (New South Wales Bar Association, 2007), <http://www.nswbar.asn.au/docs/professional/prof_dev/BPC/course_files/Re-examination%20-%20Coombs%20QC.pdf.> 15 Courts in this country have regularly proceeded on the assumption that they have power to grant the leave of the kind sought by counsel for Mr Ladu, whether as an incident of the power to control their own proceedings or otherwise. The approaches of judges to applications for leave to confer have apparently varied over time. Some judges have granted leave almost as a matter of course; others have not done so: see, for example, Sheppard at 37-38. What is more, irrespective of the local Bar Rules, the Evidence Act 1995 (Cth) ('the Evidence Act') confers power to control the presence and behaviour of others (including barristers) in connection with the questioning of witnesses. Section 26(d) of the Evidence Act specifically provides that a court "may make such orders as it considers just in relation to … the presence and behaviour of any person in connection with the questioning of witnesses". The fact that in the course of the hearing the Court directed Mr Ladu as to his communications whilst under oath underscores the desirability of his counsel's obtaining leave to confer. 16 Broadly speaking, in the past, the standard has been the general 'justice of the case'. Today, s 192 of the Evidence Act provides an organising framework for considering leave issues. Section 192 states that "[i]f, because of this Act, a court may give any leave … the leave … may be given on such terms as the court thinks fit"; and, "without limiting the matters the court may take into account in deciding whether to give the leave … it is to take into account": (a) the extent to which to do so would be likely to add unduly to, or shorten, the length of the hearing; and (b) the extent to which to do so would be unfair to a party or to a witness; and (c) the importance of the evidence in relation to which the leave … is sought; and (d) the nature of the proceedings; and (e) the power (if any) of the court to adjourn the hearing or to make another order or to give a direction in relation to the evidence. It is unnecessary to decide whether in fact this provision applies in relation to the current leave application. It suffices to say that, whether or not I am bound to do so, I take into account the considerations to which it refers. The listed factors as well as other matters relevant in the particular case all bear on the justice of the case. Nature of the proceedings 17 I begin with the nature of the proceedings. As noted already, the proceedings commenced with an application by IRD for the enforcement of an arbitral award under s 8(3) of the IAA. IRD seeks an order that a foreign arbitral award made against Mr Ladu be enforced and entered as a judgment of the Court. Mr Ladu has resisted the enforcement of the award on the basis that he was not given proper notice of the appointment of the arbitrator or of the arbitration proceedings or was otherwise unable to present his case at the arbitration proceedings; and on the basis that a breach of the rules of natural justice occurred in connection with the making of the award: see IAA, s 8(5)(c), (7)(b) and (7A). Importance of the evidence 18 The evidence that counsel for Mr Ladu may wish to elicit in Mr Ladu's re-examination may be important to answers in cross-examination that would, unless supplemented or explained, leave the court with an impression of the facts relating to his credibility that are capable of being construed unfavourably to Mr Ladu and perhaps represent a distorted or incomplete account of the truth as he has thus far been able to present it. Plainly enough, his counsel will not wish to ask questions in re-examination on topics touching these facts in the absence of appropriate information from Mr Ladu. Without putting these questions, however, Mr Ladu may not be given an opportunity to provide a complete account and to correct any consequential distortion in his evidence that has arisen in the course of cross-examination. Another order or direction? 19 As already noted, IRD has contended that the matters raised by Mr Ladu "properly relate to the respondent reopening or recalling Mr Ladu to give further evidence in chief". I discuss and reject this contention below at [46]. If Mr Ladu sought to give further evidence in chief, then Mr Ladu would require the Court's leave to do so; but this is not what is presently being sought. 20 It is not suggested that the Court might deal with the matter in some other way, by adjournment or other order or direction. Fairness to Mr Ladu and IRD 21 A central consideration in relation to the grant of leave is that of fairness. In this regard, it is necessary to have regard to the context in which the leave is sought. 22 Earlier this year, a trial date was fixed for 30 May 2013. This date was vacated on 28 May 2013, as a result of what both parties acknowledged was an increase in the complexity and volume of the affidavit evidence. Amongst other things, both parties agreed that it was likely that witnesses in the United States, Peru and South Sudan would be required to attend by video-conference for cross-examination. Orders were made to accommodate the increased complexity of the foreshadowed trial and the matter was re-listed for 5 and 6 September 2013. As it happened, shortly prior to these latter dates, on 29 August 2013, the parties advised that it "has become apparent that a two day hearing will not be sufficient." The extended time for hearing was, it was said, necessary to manage witness testimony by video-conference in different geographical locations (and time-zones). A further hearing day was fixed in consequence. 23 The trial proceeded on 4, 5 and 6 September 2013 and it has not concluded. The hearing was punctuated with periods of delay and the rearrangement of the order of witnesses in response to technical difficulties presented by the video-conferencing facilities, different time-zones, and the limited availability of witnesses in remote locations at different points throughout the hearing. 24 The occasion for Mr Ladu's application for leave to confer is mostly a result of the order in which witnesses were called and IRD's late foreshadowed reliance on the additional evidence of Benjamin Sagora. I note, before descending to details, that, during the hearing, counsel for both parties agreed that matters of this kind would, without some attention, create difficulties for Mr Ladu. 25 When the hearing began on 4 September, the parties had agreed on a timetable that contemplated that there would be 7 witnesses (each of whom would be cross-examined on their affidavits previously filed) and that closing submissions would be completed before 1.00 pm on 6 September. Mr Ladu was a proposed witness and, unlike 5 of the other proposed witnesses, he was available to give evidence in person in Melbourne. In order to make the most efficient use of the three hearing days, it was agreed at the outset that Mr Ladu's evidence be split over two days, with other witnesses interposed, in order to accommodate their time-zones, remote locations or limited availability. 26 Mr Sagora's name did not appear on the witness list at the commencement of the trial. When, however, IRD called its first witness, Mr Matechak, the significance of Mr Sagora's absence from this list was exposed. The Court was informed that Mr Sagora was the Managing Partner of a South Sudan law firm that IRD had retained in an employment termination proceeding between Mr Ladu and IRD (which has some relevance to the arbitration proceedings resulting in the contested arbitral award). Counsel for Mr Ladu successfully objected to the admission into evidence of a letter from Mr Sagora to Mr Matechak regarding this employment termination proceeding. Counsel for IRD accepted that there was no evidence that Mr Sagora was an "unavailable witness" in the sense used in s 63 of the Evidence Act and initially stated that he would: … get some instructions as to whether, for example, we can contact Mr S[a]gora and get him just to give one discrete bit of evidence about that letter and its contents. 27 Mr Matechak also mentioned Mr Sagora in additional evidence in chief in the course of outlining his efforts to contact a Mr AK Lado, another potentially unavailable witness. Also on 4 September, Mr Matechak referred to Mr Sagora in the course of cross-examination as having informed him (Mr Marechak) that he had examined the file and could say that Mr Ladu's lawyer, a Mr Mulla, had been given notice of the arbitration proceeding. 28 This latter evidence explains why, towards the close of the hearing on 4 September, counsel for IRD stated that his instructions were that: … we are hoping that [Mr Sagora] would be able to give some short viva voce evidence in relation to his file. He's the solicitor who was the partner in charge of that case … And we have a letter from him, so he's in the mix. 29 Counsel for Mr Ladu did not object at this point or earlier to the potential introduction of Mr Sagora into the witness list. Instead, he asked for "a short written outline, even if it's not an affidavit, of what he's going to say" and "copies of any documents which he's to provide". IRD's counsel agreed that he would attend to these matters and indicated that he hoped to call Mr Sagora on the following afternoon, 5 September. 30 During the morning of 5 September, the Court was informed that Mr Sagora was not available to give evidence that day. On that day, IRD did not provide Mr Ladu with any statement of what Mr Sagora might say or the documents he might provide. Instead, counsel for IRD indicated that IRD desired to hold over Mr Sagora until after Mr Ladu had concluded his evidence. Counsel for IRD stated that: I hope to finish the cross-examination of Mr Ladu by lunchtime; so that by the end of today, the only remaining issue, and I apologise for this, is the late entrance, so to speak, that is Mr S[a]gora. His circumstances were that he was in court this afternoon our time so he wasn't able to give evidence; but he's very happy to assist the court and to give evidence, and I think he's available tomorrow afternoon. Again, counsel for Mr Ladu did not object to this course. Instead, Mr Ladu's counsel called Mr Ladu as his first witness. 31 As it turned out, Mr Ladu's cross-examination by counsel for IRD extended into the third day of the hearing, on 6 September. The present difficulty began to emerge during the cross-examination of Mr Ladu on 5 September when counsel for IRD reached what he described as an "awkward moment". This moment arose when he put questions to Mr Ladu relating to the provenance of particular documents and also questioned him about a signature on the basis that it was his. These documents were documents "GL49", which Mr Ladu described (in his 11 July 2013 affidavit) as documents that he had obtained from the South Sudan Register of Companies, the Department of Justice and the Ministry of Legal and Constitutional Affairs. The cross-examination was ultimately designed to challenge the authenticity of the documents that Mr Ladu had exhibited as "GL 49". 32 Shortly after this line of questioning commenced, counsel for IRD requested that an issue be discussed in the absence of Mr Ladu. In the absence of Mr Ladu, the following exchange occurred: MR CRENNAN: Thank you, your Honour. The reason – wanted to have voir dire, your Honour – is because we've reached what my young son would call an awkward moment. That awkward moment is due to a number of factors. Firstly, we are intending to call Mr S[a]gora tomorrow. I haven't been able to speak to Mr S[a]gora yet, but will be this evening. So I will be in a better – I will be better placed to give Mr Stirling a summary of his evidence. But one thing I do know is that these documents, or versions of them, have been sent to us by Mr S[a]gora. And the document that I – exhibit A1 comes from Mr S[a]gora. So I don't want to be putting Mr Ladu in an unfair position. HER HONOUR: Yes, I can see the problem. MR CRENNAN: Yes. So I think I will move on from this suite of documents for the moment, and if Mr Ladu, I guess, wishes to – it's a bit of an – it's also a bit awkward because it's a bit unclear what this proceeding is, and who goes first and so on, because, as I said in the opening, it's really a proceeding driven by the opposition. So it's like an opposition to a patent proceeding, where the opposer goes first. So, anyway, putting all that to one side, I think if Mr Ladu wants to give any further evidence, having heard Mr S[a]gora's evidence, perhaps, that's the best way of dealing – but it is – it will be going to credit and will be going to the ..... HER HONOUR: I understand that. I think you made that very clear. Mr Stirling, that probably is the best way to deal with it. MR STIRLING: We're content with that. HER HONOUR: Are you happy with that? All right. I don't want to prevent Mr Ladu from giving an explanation as to what has happened. And there is a danger, if Mr Crennan goes on, that he won't have all the necessary matters before him, in order to explain fully. MR STIRLING: The difficulty from our side is that because we don't have S[a]gora's statement, and we don't have any documents that he might rely on, and we haven't been given in advance, for example, this document, I've had no opportunity of taking these matters up with my witness – my client, as you ought to be able to do in a proceeding, to ask him questions about this and that and see [-] HER HONOUR: No, I appreciate that. MR STIRLING: And then deal with it. So that's the difficulty that we have, but hopefully we can get over that by calling him after Mr S[a]gora if matters are raised. HER HONOUR: Yes. I think we're all aware of the nature of the difficulty you face, and whatever appears appropriate to remedy that difficulty will be done. I think the best course – I agree. I think the simple answer is, right now, to move on to a different area, to see what Mr S[a]gora is likely to say by way of evidence. Mr Crennan will no doubt tell you, and if you need to make any application as a result of that, well, you will, no doubt. MR STIRLING: With that, your Honour – and the other thing that might happen is that we need to speak to Mr Ladu after cross examination, before re-examination. HER HONOUR: That's what I envisaged. That's what I had meant by, if you need to make any application, you will make it. You may want to make an application to me, too. MR CRENNAN: Consent to that application, as long as it was confined and direct. HER HONOUR: All right. … . As already indicated, at the close of 5 September, Mr Ladu's cross-examination was not complete. 33 The situation apparently became further complicated when IRD eventually made contact with Mr Sagora. At the commencement of court on 6 September, counsel for IRD stated Mr Sagora had been contacted overnight and, in consequence, his witness summary had been prepared and that it was intended that he give evidence. Counsel for IRD explained that: The questions that Mr S[a]gora's evidence will go to are the provision of documents to Dr Mulla during the 14 June hearing, Mr Lad[o] being a witness not available … And some documents which are the annexures that Mr S[a]gora has attained from the Sudan Register of Companies, and you will recall that I was cross-examining Mr Ladu about some differences between one of those documents and one of the documents in the exhibits to his last affidavit. 34 Around 8:30 am on the morning of 6 September, IRD's solicitor had emailed a document entitled "Witness Summary For Benjamin Sagora" to my associate. This email was copied to Mr Ladu's solicitor. Counsel for Mr Ladu was apparently given a copy of this document sometime before court resumed that morning. The witness summary stated that Mr Sagora would give evidence that: 1. He is a principal of Sagora & Co Advocates in Juba, South Sudan. 2. During 2011, Mr Alfred K Lado was an advocate employed by Sagora & Co Advocates. 3. He was directly supervising Mr Lado during the Ladu v IRD court proceeding, 376/2011 in Juba. 4. He believes that Mr Lado delivered the following documents to Dr Mulla, Mr Ladu's legal representative at the South Juba Governate Court before Judge Philip Gladio Wanie on 14 June 2011: (a) a copy of the employment contract between IRD and Mr Ladu; (b) a copy of the IRD code of conduct; (c) the IRD letter to Dr Mulla dated 11 April 2011; (e) the IRD letter to Dr Mulla dated 11 May 2011; (e) the IRD letter to Dr Mulla dated 9 June 2011; and (f) Mr Ladu's Australian Passport. 5. Mr Lado has left Sagora & Co Advocates and Mr Sagora has had no recent contact with him. 6. He wrote a letter dated 21 May 2013 to Mr Jason Matechak of IRD and the contents of that letter are true and correct (CB 860). 7. He requested copies of documents that related to Ladu & Brothers Company Limited from the South Sudan Register of Companies. He received three documents from the South Sudan Register of Companies in June 2013. The documents are attached at Annexure A, B and C to this witness summary. 35 The annexed documents included documents apparently purporting to be the Memorandum and Articles of Association of Ladu & Brothers Company Limited dated 6 September 2006 (which was "A1"), as well as "MFI 1" and "MFI 2". 36 The first 6 paragraphs related to the provision of documents to Mr Ladu's lawyer in South Sudan (a Dr Mulla) and the unavailability of IRD's lawyer (a Mr Lado). They do not give rise to any matter that might require Mr Ladu's counsel to confer with him. The need to confer arises from the final paragraph and the related course of cross-examination of Mr Ladu. 37 On 5 September (as already noted) and again on 6 September, Mr Ladu was cross-examined on various documents annexed to his own affidavit, including some that he said he had obtained from the relevant authorities in South Sudan. Particularly on 6 September, Mr Ladu was cross-examined about the differences between these documents and other documents, including "A1", "MFI 1" and "MFI 2". This cross-examination was apparently informed by the previous evening's conversation with Mr Sagora. In this way, counsel for IRD apparently sought to lay the ground for impugning Mr Ladu's credit. 38 Counsel for Mr Ladu has not objected to IRD calling Mr Sagora. After some discussion at the hearing on 6 September, it was agreed that Mr Sagora and Mr Mulla (Mr Ladu's lawyer in South Sudan) should give evidence by way of video-conference, when that might be arranged. Counsel for IRD stated that, in the meantime, an affidavit would be made by Mr Sagora and filed in the proceeding. No such affidavit has yet been filed in the Court. 39 It was in this context that counsel for Mr Ladu stated: [A]t the conclusion of Mr Ladu's evidence I will be asking your Honour for the opportunity to confer with him about credit matters which have been raised in cross-examination and to seek instructions from him in relation to a range of matters with a view to, of course, seeking his instructions and seeing what evidence we may wish to put on in relation to rebutting credit attacks made against Mr Ladu. Can I give you one example. They say, "If you look at your account between the end of October and the end of 2010," I think I have it. And then the end of February 2011 they say there's $22,000 unexplained surplus in that account which would not be explained if your normal pay from IRD went in. That would look to be right on the face of it. I don't know what the answer to that is. I don't know what Mr Ladu's instructions might be, whether there's an inheritance that has come in here, he won TattsLotto, who knows. I don't know what he might say, but it means that we would need to get his instructions on that, get bank statements in relation to that and to explore the point – and whether they will want an affidavit about it, I don't know, but it wouldn't be a case of being able to continue with his re-examination this afternoon, it's more complicated than that. 40 In addition to seeking leave to confer with Mr Ladu, counsel for Mr Ladu also indicated that he was contemplating "inquiries of other persons in relation to the allegations which are now put that he was in fact a director of Ladu & Brothers Company in February 2011 and in answer to the allegations that he has in fact fabricated in the case". 41 The hearing was adjourned on the basis that counsel for Mr Ladu would provide a note about leave to confer with Mr Ladu. As appears from the foregoing, IRD filed a response opposing the leave Mr Ladu sought. In the meantime, it has proved difficult to fix on another hearing date convenient for the Court and the parties. A date has now been fixed for 27 November 2013. 42 Broadly speaking, so far as the topics identified in subparagraphs 3(a) to (c) of Mr Ladu's 9 September 2013 memorandum are concerned (see [4] above), the question of fairness to Mr Ladu turns on the fact that, at the time his cross-examination began, his counsel could not reasonably have anticipated that Mr Ladu's credit would be challenged on the basis that he had fabricated documents marked GL49. This is because, prior to Mr Ladu's cross-examination, there was nothing to alert him to the possibility that Mr Sagora would be called by IRD to give evidence about documents that Mr Sagora had obtained from the relevant South Sudan authority that allegedly differed from Mr Ladu's documents in material respects. The foregoing account indicates that the present difficulty has arisen from the fact that Mr Sagora was not on the witness list when the trial opened; that IRD had not given an outline of his evidence to Mr Ladu's lawyers before Mr Ladu was cross-examined; and that Mr Sagora had not been called to give evidence before Mr Ladu's cross-examination began. 43 The topics identified in subparagraphs 3(a) to (c) of Mr Ladu's 9 September 2013 memorandum may properly be the subject of re-examination. This is because it is open to counsel for Mr Ladu to question him in re-examination about matters arising out of evidence given by Mr Ladu in cross-examination: see Evidence Act, s 39(a). Other questions may not be put to the witness unless the court gives leave: s 39(b). The purpose of re-examination is not just to remove ambiguities and uncertainties arising in cross-examination. Re-examination is allowed when an answer in cross-examination would, unless supplemented or explained, leave the court with an impression of the facts, including facts relating to credibility, which are capable of being construed unfavourably to the party calling the witness and represent a distorted or incomplete account of the truth as the witness has been able to present it: see J D Heydon, Cross on Evidence (9th Australian edition, LexisNexis Butterworths Australia, 2013) at [17605] - [17610]); also Wentworth v Rogers (No 10) (1987) 8 NSWLR 398 at 409. As already noted, I accept that counsel for Mr Ladu would not wish to re-examine on these topics without adequate instructions and it may work considerable unfairness to Mr Ladu not to have his counsel take up these topics. 44 As the forgoing account shows, so far as the evidence of Mr Sagora is concerned, the awkwardness that has arisen is not of Mr Ladu's making. Further, Mr Ladu, not IRD, is at risk should Mr Ladu seek to abuse the opportunity to confer with his counsel. If Mr Ladu should give evidence in re-examination that, for one reason or another, is open to doubt, then IRD will have the opportunity to bring this to my attention and, if I were so persuaded, then it would tell against accepting his evidence. 45 In opposition to the grant of leave, IRD's response was to the effect that it had indicated on 4 September that it would take steps to locate Mr Sagora to give evidence about the matters raised in the letter annexed at Tab 34 of the affidavit of Mr Matechak of 27 May 2013. Whilst this much may be accepted, it fell a long way short of providing adequate notice prior to trial that Mr Sagora would be called, particularly when the expanded ambit of the evidence IRD now proposes to adduce through him is borne in mind. As the above account shows, the ambit of the evidence that IRD proposes to adduce from Mr Sagora has steadily increased as the hearing has progressed. It does not seem to me that IRD gain much from the fact that the letter annexed at Tab 34 was the subject of a successful objection, since its objectionable nature ought to have been apparent to IRD in the first place. 46 As noted above, IRD also contended that the leave being sought (i.e., leave to confer) was not properly described as leave sought for re-examination. IRD apparently anticipates that the questions that counsel for Mr Ladu will put in re-examination will not be questions about matters arising out of Mr Ladu's evidence in cross-examination; rather, they will be framed to lead further evidence in chief from Mr Ladu. The latter questions cannot be put in re-examination – unless leave to do so has been given. The time has not yet come, however, to assess the questions that counsel for Mr Ladu may wish to put to Mr Ladu. Presently, the questions that counsel for Mr Ladu may wish to put to Mr Ladu in re-examination are unframed. If any are to be put on the relevant topics, they cannot be determined until Mr Ladu's counsel has conferred with him. When counsel's questions are put to Mr Ladu in court, their true character will be ascertainable. If IRD considers that, as put, the questions are not questions for re-examination, then IRD will have the opportunity to object. Of course, the Court may, pursuant to s 39(b) of the Act, grant leave to put questions that are not "matters arising out of evidence given by the witness in cross-examination", although, if any application for leave were sought, the matters set out in s 192(2) of the Evidence Act (set out at [16] above) and any other relevant matters would then fall for consideration. 47 In these circumstances, fairness considerations would indicate that counsel for Mr Ladu should have leave to confer with Mr Ladu before his re-examination about the matters identified in subparagraphs 3(a) to (c) of the 9 September 2013 memorandum. 48 In this memorandum, counsel for Mr Ladu has also indicated that he lacks adequate instructions with respect to an undated Completion Certificate and information relating to the Ladu Brothers Company profile dated February 2007. IRD has responded that Mr Ladu has had notice of these matters since 14 September 2011. I accept that the explanation for counsel's lack of instructions with regard to these two matters is less compelling, but I also accept counsel's integrity as a member of the Bar. I therefore accept his assessment that he lacks sufficient instructions. For the reasons already stated, there would be unfairness to Mr Ladu in these circumstances if his counsel were unable to confer with him, which outweighs any prejudice to IRD. In these circumstances, fairness considerations would indicate that counsel for Mr Ladu should have leave to confer with Mr Ladu before his re-examination about the matters identified in subparagraphs 3(d) and (e) of the 9 September 2013 memorandum (set out at [4] above). 49 Finally, counsel for Mr Ladu has indicated that he lacks adequate instructions with respect to the $22,000 of additional funds that came into Mr Ladu's account between 30 October 2010 and 1 March 2011. IRD asserted that this was not a topic proper for re-examination because, although the subject of cross-examination, IRD did not ultimately rely on this evidence on the question of credit. Re-reading the transcript may leave some room for doubt as to the significance of this cross-examination. If relied on in any way, there would be unfairness to Mr Ladu in these circumstances if his counsel, whose integrity I have accepted, were unable to confer with him on the topic. This unfairness outweighs any corresponding prejudice to IRD. Counsel for IRD should make it clear that IRD does not rely on this matter for any purpose if IRD is to maintain that there should be no re-examination on the topic. As things currently stand, fairness considerations would indicate that counsel for Mr Ladu should have leave to confer with Mr Ladu before his re-examination about the matters identified in subparagraph 3(f) of the 9 September 2013 memorandum (set out at [4] above). Whether the grant of leave would add unduly to or shorten the hearing 50 The hearing of this matter is not scheduled to resume until 27 November. The grant of leave ought not interfere with this arrangement. There is no reason to suppose that any questions that counsel for Mr Ladu will wish to put to Mr Ladu in re-examination as a consequence of conferring with him will unduly add to or shorten the hearing. Conferring about other witnesses 51 In the 9 September 2013 memorandum, counsel for Mr Ladu indicated that, depending on the information received by him after conferring with Mr Ladu, it was possible that Mr Ladu might wish to call other witnesses. This may be read as indicating that, as IRD submitted, Mr Ladu had more in mind in making this present application than merely giving instructions to his counsel for re-examination. It is difficult to see how a wish to confer about additional witnesses could ordinarily constitute a basis for appropriately conferring after cross-examination and before re-examination. In the ordinary course, it might be thought that any discussion about other witnesses could wait until after re-examination. I do not, however, accept IRD's reading of the 9 September 2013 memorandum in this regard. The alternative reading of these submissions (which I prefer) is that the author (counsel for Mr Ladu) was merely signalling the possibility that, in obtaining the information necessary for re-examination from Mr Ladu, it might also appear that other witnesses were desirable. I accept that, in the context of this application, this was all that was intended. 52 The question of further witnesses has not yet arisen. There is no application before the court to permit Mr Ladu to call further witnesses; and it is therefore unnecessary to say anything further about this possibility at this stage. Conclusion 53 Taking into account the above considerations, I would grant leave for counsel for Mr Ladu to confer with Mr Ladu on the topics set out in subparagraphs 3(a) to (f) of the respondent's 9 September 2013 memorandum before Mr Ladu's re-examination on 27 November 2013. I certify that the preceding fifty three (53) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kenny. Associate: Dated: 19 November 2013