Supreme Court New South Wales Medium Neutral Citation: N M Rural Enterprises Pty Ltd v Rimanui Farms Ltd [2012] NSWSC 62 Hearing dates: 13 February 2012 Decision date: 14 February 2012 Jurisdiction: Common Law Before: Harrison J Decision: Application dismissed with costs Catchwords: PROCEDURE - defendants' application to recall witness for further cross-examination - where proceedings have been protracted - whether grant of leave would be likely to add unduly to the length of the hearing - whether grant of leave would be unfair to a party or witness - leave refused Legislation Cited: Evidence Act 1995 Cases Cited: Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation (1983) 1 NSWLR 1 Browne v Dunn (1893) 6 R 67 N M Rural Enterprises Pty Ltd v Rimanui Farms Ltd [2011] NSWSC 1561 Category: Procedural and other rulings Parties: N M Rural Enterprises Pty Ltd (Plaintiff) Rimanui Farms Ltd (First Defendant) Gil Gil Farming Pty Ltd (Second Defendant) Lloyds Syndicate No 1243 (Third Defendant) Representation: J E Maconachie QC with S B Docker (Plaintiff) T J Hancock with J P Donohoe and A T Martin (First Defendant) B Loukas (Second Defendant) G T W Miller QC with D A Lloyd (Third Defendant) TurksLegal (Plaintiff) Webb and Boland (First Defendant) Doyle Wilson (Second Defendant) Riley Gray-Spencer (Third Defendant) File Number(s): 2003/93179 Judgment 1HIS HONOUR: On 15 December 2011 I granted leave to the plaintiff to call Mr Skaines: see N M Rural Enterprises Pty Ltd v Rimanui Farms Ltd [2011] NSWSC 1561. Mr Skaines was a loader or mixer who had assisted Mr Taylor to load chemicals into aircraft for spraying on fields of cotton and sorghum sown on Telleraga by the plaintiff. Mr Taylor gave evidence that one of the aeroplanes involved was loaded with a herbicide containing glyphosate as the active ingredient instead of a fertiliser called microsol and that Mr Skaines had conversations with Mr Taylor about this. Mr Skaines was called and gave his evidence on 8 February 2012. Among other things he denied that he made any mistake of the sort alleged by Mr Taylor or that he had a conversation with Mr Taylor in which he admitted it. 2Yesterday the first and third defendants applied separately by notices of motion for leave to recall Mr Skaines for further cross-examination. The first defendant's application was supported by an affidavit of Brendan Anthony George Moylan sworn 13 February 2012, which was read without objection. He was not cross-examined. The expressed basis for the first defendant's application was a concern that arose "following exchanges with the Court as to allegations that certain matters were not put to Mr Skaines" and a corresponding concern "about the application of the rule in Browne v Dunn and whether matters not put to Mr Skaines will limit [the first defendant's] ability to make [its] final submission". Mr Moylan proffered the view that the first defendant had to "make an application to recall Mr Skaines to put various allegations directly to him". 3The third defendant's application was supported by an affidavit of Michael Adam Park, which was also read without objection. Mr Park was not cross-examined. Mr Park's affidavit sets out the basis for the third defendant's application. The following paragraphs are instructive in that regard: "6. I spoke to Mr Lloyd either later in evening of 6 February 2012 or early in the morning of 7 February 2012 and he said to me words to the following effect: 'I think that Skaines' evidence combined with the evidence of Taylor raises a very strong possibility that Skaines deliberately loaded Wipeout into LIU believing that the Krui glyphosate job was going ahead. I am meeting [Mr Hancock] to discuss that'. 7. I said: 'I will see you there'. 8. Later on 7 February 2012 I attended a conference with Mr Lloyd, Mr Hancock and Mr Donohoe. There was general discussion of the proposed cross-examination of Mr Skaines, which included a discussion that Mr Hancock was going to cross-examine Mr Skaines first and that the other defendants may not be given leave to cross-examine on the same topics. 9. I was present in Court on 8 February 2012 for the further hearing of these proceedings. After Court had concluded or before Court the following morning, Mr Lloyd said to me words to the following effect: 'I am a bit concerned that the various ways we are going to submit Skaines could have come to make the error were not specifically put to him. I wrote out a number of propositions in court about this on a piece of paper to be put to Skaines and gave it to [Mr Hancock] but he said he thought he did not need to put the propositions to Skaines because Skaines denied that there was any glyphosate on the tarmac. He might be right but I am annoyed that I did not stand up on the spot and ask to cross-examine Skaines to put those propositions. I am worried that a Browne v Dunn point will be taken against us'. 10. On 10 February 2012 I was in Court for the further hearing of these proceedings when Mr Maconachie QC made the following submissions... 'MACONACHIE: Of course it does. One can intellectualise any number of possibilities about any scenario if one tries hard to do so, and Mr Ghirardello tried. Boy did he try. Not even his agile mind got to that point, your Honour. And it was never suggested to Mr Pay that incorrect instructions were given to the staff. It was never suggested to Mr Skaines that that occurred and it was never suggested to Mr Taylor that that is how it occurred and if it had been put, there might have been the simplest of simple explanations, but it not having been put, you cannot consider it. It would be wrong in principle to do so... We have reflected on the hypothesis that your Honour referred to before lunch and notwithstanding my principal submission that interesting but it wasn't put to anybody and therefore it is not in play...' 11. On 12 February 2012 I spoke to Mr Lloyd and he said to me words to the following effect: 'I think we should make an application to recall Skaines, in light of the submissions made by the plaintiff on Friday'." 4During the course of the applications to recall Mr Skaines, it occurred to me that some more particular focus upon what it was that concerned the defendants, and what it was they hoped to achieve by cross-examining him further, might be aided by circulation to me and the parties of the precise questions that it was proposed he would be asked. In response to that suggestion, the third defendant produced a document containing the following questions: 1. Is it likely, if you assume that there was a Krui station glyphosate job booked for 23 November 2000, that you had an aircraft load sheet for that job on 23 November 2000? 2. Is it likely, if you make that assumption about the Krui station glyphosate job, that you might have deliberately loaded Wipeout into LIU on 23 November 2000 by following the aircraft load sheet for the Krui station job? 3. Is it possible that there was an aircraft load sheet for the Telleraga job in your hands on 23 November 2000 that contained an error? 4. That error may have been that it wrongly recorded the chemical to be loaded? 5. Is it possible that you mixed up the product to be loaded into LIU on 23 November 2000 and inadvertently loaded Wipeout into LIU instead of Microsol? 6. You agreed with Mr Hancock that the Telleraga aircraft load sheet you probably had in your hands on 23 November 2000 is not the one you were shown by Mr Hancock. The aircraft load sheet that was in your hands on 23 November 2000 was destroyed by you or Mr Taylor as part of an attempt to cover up your loading error. 7. The position is that you know you made a loading error on 23 November 2000 by loading five loads of Wipeout into LIU and you are lying when you deny it to protect your reputation. 5As I understand the position, those questions, with one exception, cover the areas that the first defendant would also wish to put to Mr Skaines. That exception relates to the first defendant's desire to ask Mr Skaines whether or not he knew the difference between the colours of Wipeout and Microsol in November 2000. 6All parties referred to s 192 of the Evidence Act 1995 . The section is as follows: " 192 Leave, permission or direction may be given on terms (1) If, because of this Act, a court may give any leave, permission or direction, the leave, permission or direction may be given on such terms as the court thinks fit. (2) Without limiting the matters that the court may take into account in deciding whether to give the leave, permission or direction, it is to take into account: (a) the extent to which to do so would be likely to add unduly to, or to 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, permission or direction is sought, and (d) the nature of the proceeding, 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." Submissions 7Mr Lloyd who, with Mr Miller QC, has at all times appeared for the third defendant, indicated, perhaps somewhat curiously in those circumstances, that the failure to ask Mr Skaines the questions referred to in cross-examination was his fault. He submitted that it would be "a tragedy" if that error led to prejudice to the third defendant subsisting in an inability to ask the proposed questions. He also submitted that this was a case in which any prejudice to the plaintiff was co-extensive with any further costs that the plaintiff may incur if the application were granted so that an appropriate costs order would ameliorate that prejudice entirely. Somewhat counter intuitively, it was also submitted that any Browne v Dunn submissions that the plaintiff might wish to make, and which the current applications were intended to meet, were devoid of substance in any event, so that the plaintiff would not be deprived of any currently vibrant or worthwhile forensic advantage if the contentious points were put to Mr Skaines as proposed. Finally, it was contended that if the questions now proposed to be put to Mr Skaines had been asked when he was here on 8 February 2012, it could hardly be said that any significant prejudice could have been occasioned to the plaintiff and that in all likelihood the questions would have been asked and answered without provoking any particular controversy. 8That last submission needs to be understood in the context of the plaintiff's submissions in opposition to the applications. Mr Maconachie QC emphasised that the genesis of the applications was undoubtedly a concern generated in the defendants' camp by remarks made by me during the course of his final submissions in reply. This discussion is adequately captured in the sections of the transcript identified in and annexed to Mr Moylan's affidavit. In short, the plaintiff contends that the questions foreshadowed open up a whole series of inquiries about Pay's Air's system of work in loading and organising the work in preparation for loading aircraft prior to spraying that necessarily invites the prospect of recalling Mr Pay and Mr Taylor and reviving the application to call Mr Hazelwood. This is said to be so having regard to the evidence about whether or not Mr Skaines had a copy of a load sheet that was completed with the details necessary for him to know precisely what job he was loading and what chemicals were required for which plane. 9The plaintiff also argued that if the Browne v Dunn submissions that the defendants wished to avoid were in truth devoid of substance, the application did not satisfy s 192(2)(c) of the Evidence Act in the sense that the evidence in question was of little or no importance. (I note in this last respect that Mr Maconachie did not resile from an expressed intention to rely upon his Browne v Dunn submissions in due course, should the current applications be unsuccessful). 10The plaintiff also submitted that at least some of the proposed questions were objectionable. For example, questions 3, 4 and 5 were said to amount to an invitation to Mr Skaines to speculate and that as such would inevitably be rejected. Question 6 was also said to contain an element of speculation, at least to the extent that it imported the suggestion that Mr Taylor destroyed the load sheet to which it refers. 11Mr Hancock supported Mr Lloyd's submissions in aid of the application. Consideration 12When I permitted the application to call Mr Skaines I did so in the context of a desire to be able to decide the apparent contest that had emerged between him and Mr Taylor concerning the events at Krui airstrip on 23 November 2000. I considered then and I remain of the view that an issue as significant as that thrown up by the defendants, contending that Pay's Air was responsible for the whole of the damage caused to the crops on Telleraga in total exoneration of the defendants and as a complete answer to the plaintiff's case, should be decided by reference to the best evidence available and not in reliance upon inferences available from decisions made or not made in the course of the trial. 13To some extent that general approach supports the granting of leave to the defendants in the present application. That is so until the nature of the evidence sought to be adduced is considered and the circumstances that led to the application are examined. What the defendants wish to do is to propound a series of possibilities concerning the cause of the alleged mistake that occurred at Krui by reference to documents in Mr Skaines' hands at the time and, in a related sense, with particular emphasis upon the methods and practices adopted by Pay's Air, with which Mr Skaines and Mr Taylor were nominally expected to comply. It does seem to me that these concerns were generated by my discussion with Mr Maconachie in terms of the transcript to which the first defendant draws attention. For better or worse, Mr Park's conversation with Mr Lloyd on 8 February 2012 did not appear to achieve any particular significance until following Mr Maconachie's submissions delivered two days later. Mr Skaines had departed the witness box and it was reasonable to assume that all issues touching and concerning the differences between him and Mr Taylor had been covered. 14Moreover, there is some force in the submission that the proposed questions potentially give rise to the need to recall Mr Taylor and Mr Pay and to reconsider the application to call Mr Hazelwood. There is more than a slight flavour of a suggestion that the Pay's Air procedures may have been faulty, either because they were at the heart of the alleged mistake or were inculpated in that they facilitated the fraud said to have been perpetrated by the alleged conspiracy between Mr Taylor and Mr Skaines to cover it up. 15As I indicated during submissions, I have had cause to give long and careful consideration to the vexed question of what happened at Krui on 23 November 2000 and whether or not it is inculpated in the damage to the Telleraga crops or is otherwise capable of assisting me to understand whether there is a viable and competing explanation for the case for which the plaintiff contends. The "Pay's Air did it" theory was brought forward later in the day than most other parts of the defendants' cases, and presumably with a comprehensive and comprehensible, as opposed to an argumentative and speculative, factual theory to support it. The difficulty with so much of this case and the way that it has proceeded is that there has emerged an almost never ending tendency to descend into ever increasing detail in response to any or all nuances arising from the latest evidence, with the result that more and more rabbits are being chased into more and more burrows with the questionable benefit of hindsight and afterthought. This is as much a product of ingenuity on the part of all counsel and solicitors as it is of anything else but it is no more productive of efficient litigation for that. 16It seems to me that there must come a time in all cases, and that there must come a time in this case, when enough really is enough. I note in this particular respect that Mr Skaines has been at court on two occasions, first when he was here in the hope of giving evidence if possible and secondly when he was here to give evidence in fact. He has no interest in any party to these proceedings and is employed by a third party as a machine operator in a mine in a remote area of Queensland near where he lives. Travelling to Sydney is undoubtedly disruptive to him and to his employer although no submissions were made on his behalf about that. I am concerned about making an order that he return having regard to the question of whether or not it would be unfair to him to do so. He is employed in a responsible position from which he should not again be diverted without very good cause and his personal and professional conveniences are important matters for consideration in that respect. I think that the point has been reached when it is presumptively unfair to expect Mr Skaines to come to Sydney for this case on a third occasion. 17I am also not satisfied that the questions that are proposed for his consideration are highly important, having regard to the matters that I am required to take into account. In particular is this so when it is recalled that Mr Skaines was cross-examined at length and in detail about what documents he had, or may or should have had, in his possession when the aircraft were being loaded, and what those documents contained or did not contain as the case may be. Presumably some detailed analysis and consideration of these documents by the defendants' legal teams will have preceded the cross-examination of Mr Skaines about them. The proposed questions are in one sense an example of the desire ever further to refine and dissect the evidence with the benefit of some more thought about it. If the questions are important now, they were presumably important when Mr Skaines was here. The true worth of the evidence that the defendants hope to elicit falls to be judged by reference to the forensic decisions made then and not after comments from me might have prompted further thought. I am also doubtful that some of the questions would survive an objection by the plaintiff, so that the whole exercise is potentially disproportionate to the time and expense involved. 18I was referred to the decision of Hunt J in Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation (1983) 1 NSWLR 1 and his Honour's consideration of the rule in Browne v Dunn . At 16 his Honour said this: "It has in my experience always been a rule of professional practice that, unless notice has already clearly been given of the cross-examiner's intention to rely upon such matters, it is necessary to put to an opponent's witness in cross-examination the nature of the case upon which it is proposed to rely in contradiction of his evidence, particularly where that case relies upon inferences to be drawn from other evidence in the proceedings. Such a rule of practice is necessary both to give the witness the opportunity to deal with that other evidence, or the inferences to be drawn from it, and to allow the other party the opportunity to call evidence either to corroborate that explanation or to contradict the inference sought to be drawn. That rule of practice follows from what I have always believed to be rules of conduct which are essential to fair play at the trial and which are generally regarded as being established by the decision of the House of Lords in Browne v Dunn (1894) 6 R 67." 19Then at 23 his Honour continued in these terms: "In many cases, of course, counsel for the party calling the witness in question will be alert to the relevance of the other material in the case to be relied upon for the challenge to the truth of the evidence given by his witness or to the credit of that witness, and in those circumstances counsel will be able to give his witness the opportunity to deal with that other material in his own evidence in chief. But sometimes quite properly he might not be aware either of the other material or of its relevance; or for quite legitimate tactical reasons he may prefer his opponent to be the first to raise the matter, and then deal with it in re-examination or (if allowed) in his case in reply. But at some stage during the course of the evidence, the witness must be given a proper opportunity to deal with the material to be relied upon for the challenge. If he has not been given that opportunity during the course of his own evidence, the situation may in some cases be remedied by his recall." 20In the present case it seems to me that no counsel were alert to the further evidence. The plaintiff's counsel were not alert to it because the issues foreshadowed in the proposed questions had not specifically, as opposed to generally or vaguely, presented themselves in the case. If the defendants' counsel were alert to it, then one would have expected that what have been described as "the various ways we are going to submit Skaines could have come to make the error" would be likely to have shown themselves as part of the cross-examination of Mr Pay and the evidence in chief of Mr Taylor. With very great respect, I think that the correct analysis is more probably that reflected in Mr Moylan's evidence, and that the significance of the matters that on one view should have been put to Mr Skaines only became apparent during the exchanges between Mr Maconachie and me. By this time Mr Skaines had returned to Queensland and I was expressing the need for some guidance as to just how so egregious a mistake as the one that the defendants allege could have actually unfolded given the number of individuals who must have been involved and other things that ought to have highlighted the error if there was one. 21I think that this case has to end. I have been informed on more than one occasion before that it would do so by a specified day. At present that day is today. I think that consistently with that prediction, that is what in fact should happen. Decision 22The application for leave to recall Mr Skaines is refused with costs. ********** 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. Decision last updated: 15 February 2012