New South Wales Supreme Court CITATION : Desmond Henry Randall v Aristocrat Leisure Limited (ACN 002 818 368) [2004] NSWSC 492 HEARING DATE(S) : 5/05/04 JUDGMENT DATE : 5 May 2004 JURISDICTION: Equity Division Commercial List JUDGMENT OF : Einstein J DECISION : Re-examination limited to identified matters. CATCHWORDS : Practice and Procedure - Re-examination PARTIES : Desmond Henry Randall (Plaintiff) Aristocrat Leisure Limited (ACN 002 818 368) (Defendant) FILE NUMBER(S) : SC 50066/03 COUNSEL : Mr B Coles QC, Mr A Fernon (Plaintiff) Mr G Lindsay SC, Mr A McGrath (Defendant) SOLICITORS : Toomey Pegg Drevikovsky (Plaintiff) Phillips Fox (Defendant) IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION COMMERCIAL LIST Einstein J Wednesday 5 May 2004 ex tempore Revised 7 June 2004 50066/03 Desmond Henry Randall v Aristocrat Leisure Limited JUDGMENT - On admissibility to adduce further evidence in re-examination (see p 216 of the transcript) 1 The position reached in the proceedings is that cross-examination has now been completed of Mr Randall. 2 Mr Coles, who appears for the plaintiff, has sought leave to re-examine and there has been objection taken to the questions which Mr Coles has announced he seeks to put in re-examination. 3 My initial reaction to certain of these questions was that if and to the extent that they fall within the ambit of the principles generally adopted by the Court when dealing with re-examination issues, the questions may be permissible to be asked only on the basis that a condition would be imposed such that Mr Lindsay, who appears for the defendant, would be in a position to and permitted to further cross-examine on those matters. 4 Generally, the questions which Mr Coles sought to put and which were the subject of some submissions were transcribed, but they included questions going to the perception of Mr Randall as to the extent of particular possibilities, the general subject matter being, and a deal of the evidence-in-chief and cross-examination traversing the particular events of December 2002 and January and February 2003 and in particular concerning information which came to Mr Randall or may have been imparted to him, either orally or in writing, generally in relation to the probabilities or possibilities that the company [for the 2002 year] would achieve the profit after tax which the market consensus is said to have anticipated. It has been clear that Mr Coles seeks to examine particularly the subjective state of mind of Mr Randall as to what extent, if at all, a particular perception amounted to a particular level or degree of possibility and like questions. 5 I have given the matter some further consideration and looked more closely at the particular questions. It is fair to say that the purpose of re-examination is not merely to remove ambiguity and uncertainty, but is allowed in the circumstances where an answer in cross-examination, unless supplemented or explained, would leave the Court with an impression of the facts whether facts in issue or facts relating to credibility, which is capable of being construed unfavourably to the party calling the witness and which represents a distortion or incomplete account of the truth as the witness is able to present it. Re-examination will as appropriate, be permitted to qualify or explain evidence of witnesses in cross-examination in certain circumstances. 6 Bearing in mind, as I have, the fact that save for one or two instances and particularly in relation to some topics otherwise than those to which I have referred, Mr Coles has not taken the Court to any transcript passages where it is put that particular identified passages show the need for and entitlement of the plaintiff to re-examine, and being reasonably conversant myself with the first two days of the transcript, I have formed the conclusion that, subject to what I am about to say, the questions which Mr Coles seeks to put should not be put on any conditional or other basis as proper re-examination in this case. 7 The matters where it seems to me Mr Coles has established an entitlement to re-examine are firstly, the matter with reference to page 170.11 [and Mr Coles will recall that that deals with the 2.2 percent shortfall in total gross margin portion of a particular document]. The second matter is that which Mr Coles will recall having taken me to in terms of profit attainment, where he used the word "elision" in explaining the particular matter which he wished to put. Mr Coles will be permitted to re-examine on those matters, there not being an occasion, it seems to me, presently for further re-examination, those being, it seems to me, within the legitimate ambit of the re-examination. 8 The decision is based upon my understanding of the proper application of the principles of re-examination and the need for the just, quick and cheap disposal of these proceedings. 9 Having said all that, I have no doubt but if that had been permitted, it is very likely Mr Lindsay, if he had been entitled to further cross-examine, may have to conduct a reasonably extensive revisiting of materials that come forward. 10 It is important in relation to any re-examination application for counsel to be able to particularly point to sections of the transcript and answers where it is that a basis of re-examination is made good for obvious reasons. I certify that paragraphs 1 -10 are a true copy of the reasons for judgment herein of the Hon. Justice Einstein given on 5 May 2004 ex tempore and revised 7 June 2004 ___________________ Susan Piggott Associate 7 June 2004 Last Modified: 06/10/2004 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.