THE VICTORIAN BAR CONTINUING PROFESSIONAL DEVELOPEMENT PROGRAM. Do I have to put it? The operation of the rule in Browne v Dunn in civil cases.

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1 THE VICTORIAN BAR CONTINUING PROFESSIONAL DEVELOPEMENT PROGRAM Do I have to put it? The operation of the rule in Browne v Dunn in civil cases. The statement of the rule. 1. What is usually called the rule in Browne v Dunn (which is how it will be described in this paper) has been set out as follows: It is accepted as a rule of professional practice in this State [New South Wales, but there is no relevant difference in Victoria] that there is a general requirement, subject to various qualifications, that a cross-examiner put to an opponent s witness the matters in respect of which, or by reason of which, it is intended to contradict the witness s evidence The Australian Edition of Cross on Evidence 2 uses a definition of the rule taken from the decision of Hunt J in Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation 3 as follows: 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 trial and which are generally regarded as being established by the decision of the House of Lords in Browne v Dunn (1894) 6 R It is interesting to note that in the leading English text on the law of evidence, Cross and 1 R v Birks (1990) 19 NSWLR 677 at 686 per Gleeson CJ (with whom McInerney J agreed) 2 J D Heydon Cross on Evidence Australian Edition LexisNexis Looseleaf [17435] 3 Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation [1983] 1 NSWLR 1 4 Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation above at 16 per Hunt J.

2 Page 2 Tapper of Evidence 5 there is a comment that the rule is taken very seriously in Australia (presumably compared to England and Wales). 6 This is borne out by the fact that the analysis of the rule in that book occupies a single paragraph, whereas in the Australian edition of Cross on Evidence the analysis of the rule occupies several pages. 7 A similar observation has been made in an academic article in the New Zealand Law Review, 8 where the learned author observes that of all jurisdictions it may be that Australia is most strongly wedded to the rule. 4. The rule does not appear to have any operation in the United States. 9 It is not referred to in Wigmore. 10 The origins of the rule. 5. As the definition makes clear, the rule appears to have been established by the decision of the House of Lords in Browne v Dunn. 11 In that case Lord Herschell LC said as follows: Now, my Lords, I cannot help saying that it seems to me to be absolutely essential to the proper conduct of a cause, where it is intended to suggest that a witness is not speaking the truth on a particular point, to direct his attention to the fact by some questions put in cross-examination showing that that imputation is intended to be made, and not to take his evidence and pass it by as a matter altogether unchallenged, and then, when it is impossible for him to explain, as perhaps he might have been able to do if such questions had been put to him, the circumstances which it is suggested indicate that the story he tells ought not to be believed, to argue that he is a witness unworthy of credit. My Lords, I have always understood that if you intend to impeach a witness you are bound, whilst he is in the box, to give him an opportunity of making any explanation which is open to him; and, as it seems to me, that is not only a rule of professional practice in the conduct of a case, but is essential to fair play and fair dealing with witnesses. Sometimes reflections have been 5 Colin Tapper Cross and Tapper on Evidence, Twelfth Edition, Oxford University Press 6 Colin Tapper Cross and Tapper on Evidence, Twelfth Edition, Oxford University Press page 314, footnote J D Heydon Cross on Evidence Australian Edition LexisNexis Looseleaf [17435] [17460] 8 Richard Mahoney Putting the Case against the Duty to Put the Case [2004] New Zealand Law Review 313 at , footnote 37. The article also notes that the rule is so ingrained in Australia as to have its own nickname: the puttage rule. 9 See Bulstrode v Trimble [1970] VR 840 per Newton J at 846; Richard Mahoney Putting the Case against the Duty to Put the Case [2004] New Zealand Law Review 313 at Wigmore Evidence in Trials at Common Law 3 rd Edn Little Brown and Company Browne v Dunn (1893) 6 R 67

3 Page 3 made upon excessive cross-examination of witnesses, and it has been complained of as undue; but it seems to me that a cross-examination of a witness which errs in the direction of excess may be far more fair to him than to leave him without cross-examination, and afterward to suggest that he is not a witness of truth, I mean upon a point on which it is not otherwise perfectly clear that he has had full notice beforehand that there is an intention to impeach the credibility of the story which he is telling. Of course I do not deny for a moment that there are cases in which notice has been so distinctly and unmistakably given, and the point upon which he is impeached, and is to be impeached, is so manifest, that it is not necessary to waste time in putting questions to him upon it. All I am saying is that it will not do to impeach the credibility of a witness upon a matter on which he has not had any opportunity of giving an explanation by reason of there having been no suggestion whatever in the course of the case that his story is not accepted Lord Halsbury said as follows: My Lords, with regard to the manner in which the evidence was given in this case, I cannot too heartily express my concurrence with the Lord Chancellor as to the mode in which the trial should be conducted. To my mind nothing would be more absolutely unjust than not to cross-examine witnesses upon evidence which they have given, so as to give them notice, and to give them an opportunity of explanation, and an opportunity very often to defend their own character, and, not having given them such an opportunity, to ask the jury afterwards to disbelieve what they have said, although not one question has been directed either to their credit or to the accuracy of facts they have deposed to Lord Morris said as follows: My Lords, there is another point upon which I would want to guard myself, namely, with respect of laying down any hard-and-fast rule as regards cross-examining a witness as a necessary preliminary to impeaching his credit. In this case, I am clearly of opinion that the witnesses, having given their testimony, and not having been cross-examined, having deposed to a state of facts which is quite reconcilable with the rest of the case, and with the fact of the retainer having been given, it was impossible for the plaintiff to ask the jury at the trial, and it is impossible for him to ask any legal tribunal, to say that those witnesses are not to be credited. But I can quite understand a case in which a story told by a witness may have been so incredible and romancing a character that the most effective cross- 12 Browne v Dunn above at Browne v Dunn above at 76-77

4 Page 4 examination would be to ask him to leave the box. I therefore wish to it be understood that I would not concur in ruling that it was necessary, in order to impeach a witness s credit, that you should take him through the story which he has told, giving him notice by the questions that you impeached his credit The other speech in the case was given by Lord Bowen, who did not comment on this aspect of the matter. 9. It is interesting to note that none of the judges cite any authority for the proposition for which the case has become well known. Nevertheless Lord Herschell LC says that the proposition has always been his understanding. 10. The following has been said about the decision in Browne v Dunn: It is plain that their Lordships, whilst recognising and affirming a rule of practice in the terms in which they expressed themselves, also recognised the need for flexibility in its application. That need arises from the very nature of the subject matter which it concerns. The central purpose of the rule is to secure fairness in the conduct of adversary proceedings. That consideration provides the best guide, both to the practical requirements of the rule in a given case, and to the consequences which may properly flow from its nonobservance, including the remedies that are available to deal with a problem so created Despite its significance, it has been acknowledged that the rule has at different times been formulated in different ways and that its correct formulation may be a matter for debate. 16 It has also been observed that reliance on the rule seems often to be attended more with ignorance than understanding. 17 It has even been said that diametrically opposed views are held within the profession upon the existence of the rule, 18 however there does not seem to be any real doubt that the rule exists in Victoria. 14 Browne v Dunn above at R v Birks above at Bulstrode v Trimble [1970] VR 840 per Newton J at Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation above at 16. That remark has been described as a masterpiece of judicial understatement. See Mahoney Putting the Case Against the Duty to Put the Case above referring to Glissan, Cross-examination Practice and Procedure (2 nd edn, 1991) Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation above at 26

5 Page It has been held that the very subject matter of the rule, indicates a need for a degree of caution, which the speeches in Browne v Dunn indicate. It has been said that crossexamination is an art, and the means that may be legitimately employed to cut down the effect of the evidence of a witness or a party upon fair notice of a point are multifarious. 19 The rationale for the rule. 13. It has been held that the rule in Browne v Dunn has two aspects: first, it is a rule of practice designed to achieve fairness to witnesses and a fair trial between parties; and secondly it is a rule relating to weight and cogency of evidence. 20 The first of these aspects means that the rule is based on general principles of fairness. 21 The second aspect of the rule means that if a witness is not cross-examined on a particular matter, then that will very often (but not inevitably) be a very good reason for accepting that witness s evidence on the matter. That has been said to be a matter of common sense It has been held to not be the law in Victoria, that where evidence of a witness on a particular matter is allowed to pass without cross-examination, but evidence of a substantial character is called by the opposite party in direct contradiction of the former evidence, that the judge or jury is required to accept the former evidence. 23 Further, Barwick CJ, in a dissenting judgment has said that the fact that a party was not directly cross-examined on their evidence does not mean that the other party admitted or accepted that evidence or that the jury were bound to accept it. 24 In the same case, however, Gibbs J, who was in the majority, said that if it had been intended to suggest that the party was not speaking the truth, she should have been cross examined on that matter so that she might have had an opportunity of explanation R v Birks above at Bulstrode v Trimble above at Bullstrode v Trimble above at Bullstrode v Trimble above at Bulstrode v Trimble above at Precision Plastics Pty Ltd v Demir (1975) 132 CLR 362 at Precision Plastics Pty Ltd v Demir above at 370

6 Page It has also been held not to be the law in Victoria that where evidence of a witness on a particular matter is allowed to pass without cross-examination that the cross-examining party, as a matter of law, is precluded from adducing or relying on contradictory evidence The rule requires notice to be given of a proposed attack on a witness or a witness s evidence where that attack is not apparent to the witness and does not require that there be put to the witness every point upon which their evidence might be used against them or the party who calls them. 27 Notice of the relevant attack need not necessarily occur in crossexamination so long as it is otherwise clear that it will be made. 28 The rule will not be transgressed where the witness is on notice that his version is challenged or that an inference may be drawn against him and such notice may be found in the pleadings, in an opening or the manner in which a case is conducted The reasons for the rule have been set out as follows: Firstly, it gives the witness the opportunity to deny the challenge on oath, to show his mettle under attack (so to speak), although this may often be of little value. Secondly, and far more significantly, it gives the party calling the witness the opportunity to call corroborative evidence which in the absence of such a challenge is unlikely to have been called. Thirdly, it gives the witness the opportunity both to explain or to qualify his own evidence in the light of the contradiction of which warning has been given and also, if he can, to explain or to qualify the other evidence upon which the challenge is to be based. 30 Consequences of a failure to comply. 18. It has been said that: Since the rule is designed to prohibit the unfair conduct of trials, it is obvious that breaches of it may occur in many different circumstances and no uniform sanction can be laid down. Depending on the nature of the infraction, the remedy is essentially a matter in the 26 Bulstrode v Trimble above at White v Flower & Hart (1998) 156 ALR 169 per Goldberg J at White v Flower & Hart above at White v Flower & Hart above Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation above at 23

7 Page 7 discretion of the trial judge. In extreme cases, he may feel that it is proper to discharge the jury. More often than not, however, he will conclude that the abuse is adequately dealt with, as on this occasion, by instructing the jury that the offending counsel had engaged in unfair tactics and by authorising his opponent to turn this to forensic advantage. On appeal, as happened in Browne v Dunn, the Court will be inclined to disregard a submission on the evidence which was not tested by putting questions to the party best able to deal with it: Precision Plastics Pty Ltd v Demir (1975) 132 CLR 362 at 370. But, in my opinion, it is going altogether too far to contend that evidence which would otherwise be relevant to a conclusion for which one party contends should be disregarded because its implications have not been put to the party against whom the inference is to be drawn. In my opinion, the trial judge would have been entitled to refuse such a direction and his failure to give it does not entitle the plaintiff to a new trial In many cases, the consequences of a failure to comply with the rule can be remedied by the recall of the relevant witnesses, so as to give them an opportunity of explaining their earlier evidence in the light of the contradictions later made or proposed to be made An infringement of the rule does not mean that the contradictory evidence cannot be considered, but it is a matter of weight for the Court to take into account. 21. The High Court has said as follows: Reliance on the rule in Browne v Dunn can be both misplaced and overstated. If the evidence in the case has not been completed, a party genuinely taken by surprise by reason of a failure on the part of the other to put a relevant matter in cross-examination, can almost always, especially in ordinary civil litigation, mitigate or cure any difficulties so arising by seeking or offering the recall of the witness to enable the matter to be put Where matters are not put to a plaintiff or his witnesses and then evidence is called in contradiction of that evidence and the plaintiff is invited to seek leave to re-open his or her case and lead evidence to comment on the subsequent evidence and that invitation is not 31 Seymour v Australian Broadcasting Commission (1977) 19 NSWLR 219 at 225 per Glass JA (with whom Reynolds JA agreed). 32 Bulstrode v Trimble above at MWJ v R [2005] 222 ALR 436 at per Gummow, Kirby and Callinan JJ as referred to in Pasqualotto v Pasqualotto [2013] VSCA 21 at [258] by Whelan J

8 Page 8 taken up, there may be no consequence from the infringement of the rule It may be legitimate to draw appropriate conclusions from counsels failure to put in crossexamination some matter to which their witnesses subsequently depose, but it is a process of reasoning fraught with peril and should be used only with much caution and circumspection because there may be many explanations of the omission which do not reflect on the credibility of witnesses, for example counsel misunderstanding his instructions, witnesses failing to co-operate, looseness in framing questions or the matter simply being overlooked It sometimes occurs that where matters are not put to a witness and then contradictory matters are led from a party, that party will be cross-examined about whether they told their lawyers about these matters in order to give rise to an allegation of recent invention. 36 Such a question is not permitted as it seeks information that is the subject of legal professional privilege. Such questions should not be put and objections to them should be upheld. 37 The application of the rule. 25. So much for the statement of the rule. Like so many matters in the law, the rule can be readily enough stated, but its application can be very difficult. The rule must be considered by Counsel in almost every trial. The rule is a broad one. And it is rooted in considerations of fairness, the uncertainty of which are manifest. 26. Some of the uncertainties in the application of the rule have been identified. They are: (a) Is the rule only engaged when Counsel submits that a witness is lying, or is it 34 Housden v Boral Australian Gypsum Limited [2015] VSCA 162 at [147] per Santamaria JA with whom Tate and McLeish JJA agreed 35 R v Birks above at 691, relying on R v Manunta (Court of Criminal Appeal, South Australia, unreported 28 July 1989) per King CJ 36 R v Birks above at R v Birks above at 702

9 Page 9 engaged when the suggestion is that the witness is honestly mistaken? (b) Is it sufficient to comply with the rule to ask some general questions in cross examination or must the cross-examiner put to the witness every detail of their evidence that will be challenged? (c) What circumstances comprise knowledge such as to relieve the cross-examiner of the obligation otherwise imposed by the rule? One of the reasons that it is important to understand the application of the rule is that failure to comply with it is an easy way for Counsel s conduct of the case to adversely affect the potential outcome of a case for a client, whatever the merits of a case. Further, it is an area in which Counsel can delight in seizing on one another s omissions. To that extent, the rule can have feint echoes of the system of pleading prior to the reforms of the mid nineteenth century As with other aspects of the law, its operation is elucidated by an examination of how the rule has been applied in previous decisions. 29. An obvious place to observe how the rule is applied in in Browne v Dunn itself. Mr Dunn was a solicitor. He was not on good terms with Mr Browne. He had his clerk draw up a document authorising him to appear before a Magistrate to apply for an order against Mr Browne on the basis that he had seriously annoyed the signatories of the document and had endeavoured to provoke a breach of the peace. The document was signed by 9 people. Mr Browne subsequently sued Mr Dunn for defamation. At the trial 7 of the 9 signatories of the 38 Mahoney Putting the Case Against the Duty to Put the Case above at In Sir William Holdsworth A History of English Law Vol 9 page 309 the learned author said as follows about that system: In so far as these decisions secured this result they did good service. But often they were merely records of the misplaced ingenuity of the judges and pleaders in picking holes in particular pleadings. The repetition of these decisions led to an anxiety to make pleadings so clear that they could not be misunderstood by the most hostile and ingenious critic; and this desire was, as the Common Law Procedure Commissioners pointed out in 1851, to a large extent answerable for the tautology, verbosity, and length, which disfigured pleadings during the sixteenth and later centuries.

10 Page 10 document gave evidence. One had died and one was not called. 30. At trial Mr Browne contended that the document was a sham and that Mr Dunn did not draw it up because he had information that people had the ground of complaint and wanted to retain him as a solicitor, but that it was produced to annoy and injure Mr Browne. The signatories who gave evidence gave evidence that they had genuinely engaged Mr Dunn. Two were not cross examined at all and the remainder were only cross examined as to the merits of their various quarrels with Mr Browne. 31. The jury found for Mr Browne and Mr Dunn appealed. The Court of Appeal set aside the verdict and entered judgment for Mr Dunn. Mr Browne appealed to the House of Lords. The appeal was dismissed unanimously. It is clear from the judgment of the House of Lords that the propositions submitted by Mr Browne ought to have been put to the witnesses. Lord Halsbury said that it would be outrageous if he were asked to disbelieve them after the way their cross examination was conducted In Bulstrode v Trimble 41 Mr Bulstrode alleged that a motor vehicle collision between him and Mr Trimble was caused by the negligence of Mr Trimble. Mr Trimble counterclaimed alleging that the collision was due to Mr Bulstrode s negligence. Pursuant to a provision under the rules applicable to the court of petty sessions, Mr Bulstode relied on an affidavit to stand as his evidence in chief. Mr Trimble did not object to that course, although he could have done so under the rules. At the hearing, Mr Bulstrode s affidavit was tendered and Mr Trimble was called to give evidence and cross examined. The stipendiary magistrate found for Mr Trimble. 33. Mr Bulstrode appealed. He submitted that the failure by Mr Trimble to object to him giving his evidence by affidavit was the equivalent of an omission to put Mr Trimble s version to Mr 40 Browne v Dunn above at Bulstrode v Trimble above

11 Page 11 Bulstrode. 34. Newton J dismissed the appeal. He held that Mr Bulstrode s solicitor chose to conduct the case without producing Mr Bulstrode to give oral evidence and in those circumstances it was not open for Mr Bulstrode to complain that he was unfairly dealt with. Newton J did not accept that where evidence is allowed to pass without cross examination, but evidence is called by the opposite party in contradiction, that the judge or jury is required to accept the former evidence. 35. In Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation, 42 Allied was incorporated in 1966 for the purpose of purchasing a rural property. The directors of Allied were property developers and their family companies and another company were the shareholders. Some of the property was subdivided and sold in Further contiguous property was acquired in 1970 and the property was subdivided and sold in 1973 and 1974 for a profit. The profits were assessed as income and there was an objection to the assessment which was unsuccessful. 36. The issue at trial was whether the dominant purpose of Allied in acquiring the land was to resell it at a profit. The directors and shareholders gave evidence denying that the dominant purpose in acquiring the properties was to re-sell them at a profit. The Commissioner gave a number of reasons why the Court should disbelieve that evidence, including that the directors and shareholders were doing a number of developments and were doing them over time and kept the development of the relevant land in wraps until it was prudent to subdivide and develop it. This was referred to as the staged development. Allied submitted that at no time did Counsel for the Commissioner put to Allied s witnesses the staged development theory on which the Commissioner relied to contradict the witness s evidence denying any dominant purpose to re-sell for a profit. 42 Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation above

12 Page Hunt J held that the rule in Browne v Dunn had not been complied with. His Honour held that the consequence of that was not that he could not accept the evidence led on behalf of the taxpayer, but that it would usually be unfair to reject evidence upon which there has been no relevant cross-examination and that the case was one such case In Precision Plastics Pty Ltd v Demir 44 Ms Demir s hand was badly injured while working for Precision Plastics. She gave evidence that she would otherwise have continued working until she was 55. She was not cross examined on that answer. Gibbs J said that that evidence was not inherently incredible. He said that in those circumstances the jury, acting reasonably, were bound to accept her evidence, uncontradicted and unchallenged in cross examination. 45 Stephen J agreed in the judgment of Gibbs J and McTiernan J and Murphy J agreed in the result. Barwick CJ said expressly that the fact that Ms Demir was not cross examined about that evidence neither means that Precision Plastics admitted or accepted that evidence nor that the jury were bound to accept it In Seymour v Australian Broadcasting Commission, 47 Mr Seymour was a solicitor. The ABC broadcast two programs about fraudulent land sales which alluded to his involvement. He sued for defamation. The ABC pleaded justification to the claim. At trial it was submitted that 6 separate acts of Mr Seymour gave rise to the inference of his involvement in the fraud. Mr Seymour contended on appeal that that interpretation had not been suggested to him. The Court of Appeal agreed that one of the 6 matters, a letter written by him, ought to have been put to him, however the trial Judge had instructed the jury that the conduct was unfair. As to the other five matters, the Court of Appeal found that from the moment the defendant filed its defence of justification, it must have been apparent to Mr Seymour that the ABC was suggesting that any assertion by him that he was not involved in the fraud ought not be accepted. The Court held that it was not necessary for each of them to be put to him in turn 43 Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation above at Precision Plastics Pty Ltd v Demir above 45 Precision Plastics Pty Ltd v Demir above at Precision Plastics Pty Ltd v Demir above at Seymour v Australian Broadcasting Commission above

13 Page 13 for the purpose of obtaining a denial of that implication. The Court held that the suggestion that the conduct was motivated in a particular way was so manifest that it was not necessary to waste time in putting questions upon it In White Industries (Qld) Pty Ltd v Flower & Hart 49 White Industries sought costs against the solicitors who had acted for an opposing party in litigation. It was alleged that the proceeding was commenced and maintained in the belief that the client had no or substantially no prospects of success and was commenced and maintained for an ulterior purpose of delaying the time when their client would have to pay White Industries. White Industries tendered a number of opinions and advices from Flower & Hart and Senior Counsel briefed on their behalf to support the proposition that the proceeding was instituted for the purpose of delaying payment. Flower & Hart contended that the Court should not draw inferences from those documents because none of the contents of the advices and opinions were put to Flower & Hart or their Counsel when they gave evidence. 41. It is stated in the judgment that when Senior Counsel for White Industries concluded his cross-examination of Flower & Hart s Senior Counsel, the Court raised this issue with him and gave him the opportunity to consider whether he wanted to cross-examine on those matters. Senior Counsel declined the invitation. The Court asked Senior Counsel for Flower & Hart if he wished to say anything and he did not wish to do so. 42. Ultimately the Court found that on the basis of the case stated, White Industries amended statement of facts and contentions, the affidavits filed, the contentions of fact and law and the opening, Flower & Hart and all its witnesses were on notice that White Industries was seeking to rely on the opinions and advices and that it was not unfair of White Industries to invite the Court to draw inferences adverse to Flower & Hart and its Senior Counsel. The Court held this was not a case where Flower & Hart were ambushed in final submissions by the reliance of White Industries on evidence, the existence of which they were unaware of. 48 Seymour v Australian Broadcasting Commissioner above at per Glass JA with whom Reynolds JA agreed 49 White Industries (Qld) Pty Ltd v Flower & Hart above

14 Page 14 Further, Flower & Hart never said anything about being taken by surprise In Li v Toyota Motor Corporation Australia Ltd 51 Mr Li sued Toyota in relation to a workplace injury. Mr Li called a consultant ergonomist. Toyota later sought to rely on a risk assessment prepared by Toyota but which it had not cross-examined the ergonomist about. The ergonomist did not refer to the risk assessment in his first report. Toyota s own ergonomist prepared a report and made reference to the risk assessment. Mr Li s ergonomist prepared a critique of the report of Toyota s ergonomist, in which he said If risk assessments on Line 5A have been carried out they should be produced for evaluation. Nothing was done by Mr Li s expert ergonomist to obtain the risk assessment. When Mr Li s ergonomist was cross-examined, no cross-examination was directed towards the contents of the risk assessment. 44. The Court held that there was no obligation on Counsel for Toyota to cross examine Mr Li s ergonomist about the contents of the risk assessment. No evidence was led from the ergonomist relating to the risk assessment, notwithstanding that Mr Li s case related to an inadequate work system. There was nothing to challenge as the ergonomist chose to ignore the document, notwithstanding his knowledge of its existence. The Court held that any failure to deal with the risk assessment was the fault of Mr Li s legal advisers and ergonomist and there was no breach of the rule In Messade v Baires Contracting Pty Ltd 53 Counsel for the defendant failed to put some propositions to an expert psychiatrist that were contained in the opinion of the psychiatrist that the defendant proposed to call. This was conceded by Counsel for the defendant and it was sought to recall the plaintiff s expert psychiatrist. That leave was granted by the Court without hesitation White Industries (Qld) Pty Ltd v Flower & Hart above at Li v Toyota Motor Corporation Australia Ltd [2010] VSC Li v Toyota Motor Corporation Australia Ltd [2010] VSC 450 at [18]-[23] 53 Messades v Baires Contracting Pty Ltd [2011] VSC Messade v Baires Contracting Pty Ltd [2011] VSC 75 at [9] [11]

15 Page In Kuhl v Zurich Financial Services Australia Ltd. 55 Mr Kuhl suffered injuries in the course of his employment with Transfield. Mr Kuhl brought claims against companies which had been involved with the work he was doing with Transfield. As they had been deregistered their insurers stood in their place. The trial Judge found that Mr Kuhl answered his own Counsel s questions in chief about how his arm had been drawn into the vacuum hose by deliberately concealing material adverse to his case and favourable to the insurers. An allegation of suppression of evidence was not put to Mr Kuhl in cross-examination. The High Court held that had the finding of the trial Judge been put in final address without being raised in crossexamination there would have been a breach of the rule in Browne v Dunne and the remedies might have included a refusal by the judge to accept or entertain the submission or a recall of Mr Kuhl to the witness box to deal with the allegation. In those circumstances the High Court held that the trial Judge should either have made the challenge himself or had no regard to that aspect of Mr Kuhl s evidence Pasqualotto v Pasqualotto 57 was a case in which a son sued his parents for negligence as a result of a back injury that he allegedly suffered while picking tobacco for them. A jury found for the son, but found that he had been contributorily negligent to the extent of 70%. 48. One of the grounds of appeal was that the trial judge should not have permitted a neurosurgeon to give evidence which contradicted the son s evidence about his mother s attendance at consultations because the substance of that evidence had not been put to the son. This issue was important because it was a significant matter relied upon by the son in order to meet the parents case that he was responsible for the injury because he had been warned not to go back to farm work. The son sought to establish that the parents, as a result of the mother s attendance at consultations with the neurosurgeon, were aware of advice or warnings the neurosurgeon gave the son. 55 Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR Kuhl v Zurich Financial Services Australia Ltd above at per Heydon, Crennan and Bell JJ 57 Pasqualotto v Pasqualotto above

16 Page The alleged breach of the rule was raised by the son s Counsel when the neurosurgeon gave evidence. The son s Counsel objected to evidence of the mother s attendance at appointments being led. The questions were allowed and the trial Judge mentioned to the son s Counsel the possibility of recalling the son pursuant to the Evidence Act. The son s Counsel said that that would be a tactically disastrous course, although the Court of Appeal said it could not see why that was so and the son s Counsel never explained why. 50. The trial Judge later agreed that there had been a breach of the rule, but on a number of occasions invited the son s Counsel to recall the son. He also addressed the issue of weight in appropriate terms in his charge to the jury. No application for discharge of the jury was ever made. The Court held that the only other course open to the trial Judge was the exclusion of the evidence, which the Court described as extreme. The ground of appeal based on the rule was rejected. 51. In Chong v CC Containers Pty Ltd 58 a Kain and a Neale amongst others were alleged to have conspired to injure the respondents. Inferences were drawn against Kain on the basis that he had given a false explanation. Neale did not give evidence but it was found that he had aligned himself with Kain s false account and adverse inferences were drawn against him as a result. Neale s Counsel cross examined Kain at trial. The Court of Appeal held that because of the operation of the rule in Browne v Dunn if there were matters touching upon Kain s explanation of the relationship with Neale that were disputed, Counsel was obliged to identify them. An inference could be drawn from the absence of any challenge to Kain s explanation and the further cross-examination which invited Kain to elaborate on his explanation. In the absence of such a challenge, the trial Judge was entitled to treat Neate as taking no issue with the accuracy of Kain s account. The inference to be drawn from the application of the rule in Browne v Dunn enabled the Court of Appeal to conclude that the thrust of Kain s false account was adopted by Neale Chong v CC Containers Pty Ltd [2015] VSCA Chong v CC Containers Pty Ltd [2015] VSCA 137 at [201]-[204] per Redlich, Santamaria and Kyrou JJA

17 Page In Thompson v National Australia Bank Limited & Ors, 60 Mrs Thompson had a house which was subject to a mortgage to NAB. Mrs Thompson let the house to Mr Geminder. NAB sold the house to the Heffernans. Mrs Thompson claimed that her agreement with Mr Geminder included a term that Mr Geminder would do all acts and execute such documents as were necessary and proper to ensure that the Thompsons would not lose control of the property to NAB. Claims were also made in estoppel and in tort. 53. It was submitted that Mrs Thompson breached the rule in Browne v Dunn in a number of instances, including by reason of the fact that Mr Thompson gave evidence of a conversation with Mr Geminder on 12 November Mr Geminder gave evidence that he did not recall any conversation with Mr Thompson on that date. Mr Thompson s account was not put in any greater detail in cross-examination. Mr Geminder alleged that that was in breach of the rule. Mrs Thompson alleged that Mr Geminder was on notice of the allegation, including in affidavits filed in the proceeding. The trial Judge rejected that and said that the failure to put Mr Thompson s version weakened the cogency of the Thompson s case. 61 Some conclusions. 54. In a paper delivered to the Victorian Bar Compulsory Continuing Legal Education Program on 10 September 2004 entitled Closing Address Justice Nettle said as follows: Neither judge nor jury will look favourably upon counsel who desists from calling a witness a liar to his face, and then so calls him in the course of final address. As in many other areas of the conduct of a trial, much will depend on the nature of the tribunal and the nature of the case. So, for example, the exceptions to the rule may be applied more liberally in the sorts of cases that are dealt with in federal courts and non-curial tribunals than they are in a civil jury or cause in a state court. Err on the side of caution. Until and unless there is a clear contrary indication, assume that puttage is required. 60 Thompson v National Australia Bank Ltd [2016] VSC Thompson v National Australia Bank Ltd [2016] VSC 495 at [76] [77]

18 Page There is no reason to query any part of that recommendation. 56. It is clear that, at least in this country, while a failure to comply with the rule in Browne v Dunn will not prevent a party from calling evidence contrary to that called by the other side s witnesses and strictly a Court is not obliged to accept evidence that is not challenged, there is a very good prospect that unchallenged evidence will be accepted and a failure to put one s witness s version of events makes it likely that the other side s witness will be preferred. It does not appear that the rule is confined to when a witness is lying and will apply where the witness is mistaken and even when the witness simply does not recall. 62 Further, while it should not be strictly necessary to put every detail of the evidence that is going to be challenged, Counsel must create a situation where it is fair to make the submissions in final addresses that they will wish to make. 57. Thus, as with so many other aspects of the conduct of a case, Counsel will be assisted by having a clear idea as to what they would wish to say in closing addresses in order to ascertain the extent to which, as a matter of fairness, they are obliged to challenge the evidence. One should challenge the evidence sufficiently so that when one makes the submissions one wishes to make in closing addresses, there can be no suggestion that the relevant witnesses were not made aware that their evidence would be challenged in those terms. Further, as Justice Nettle also observed in his paper, in terms of the extent to which a witness is on notice sufficient to remove the obligation to comply with the rule, it will need to be perfectly clear that the witness s version of events is opposed. 58. The course followed by Counsel for White Industries in White Industries (Qld) Pty Ltd v Flower & Hart 63 was found by the Court to be entirely correct, but that is not to say that it was not courageous. The trial Judge may have taken a different view of whether the witnesses were on notice of the allegation and if he had done so, the result of the case could have been adversely affected. Less experienced and able Counsel might be minded to take a more 62 Thompson v National Australia Bank Ltd [2016] VSC 495 at [76] [77] 63 White Industries (Qld) Pty Ltd v Flower & Hart above

19 Page 19 cautious approach, especially in the face of a warning from the trial Judge. 59. The cases also suggest that the rule should not be used as a game to be played for forensic advantage. If the rule is breached and that breach can be cured by the recall of a witness, that should be done, rather than seeking a check mate in final addresses Where Counsel is going to challenge a witness s honesty in closing submissions, special attention must be taken to comply with the rule. As Justice Nettle observed in his paper, if one is going to call a witness a liar in final address, one should do so in cross examination. It should not be done indiscriminately, but if there is a proper basis to do so, and that submission will be made in final address, it must be done. 61. Of course, one should bear in mind that advocacy should be as economical as it sensibly can be, and this includes cross-examination. Further, the Civil Procedure Act imposes an obligation on Counsel to facilitate the just, efficient, timely and cost effective resolution of the real issue in dispute. 65 Nevertheless the obligation to comply with the rule in Browne v Dunn is a very serious obligation on Counsel and the failure to comply with it can have adverse consequences on a client s case. Accordingly it should be prominent in Counsel s mind when preparing a cross-examination and when conducting a cross-examination and Counsel should be alert to comply with it. Charles Shaw Chancery Chambers 24 July See, for example, Li v Toyota Motor Corporation Australia Ltd above; Messade v Baires Contracting Pty Ltd above; Pasqualotto v Pasqualotto above 65 Section 7 Civil Procedure Act 2010 (Vic)