FEDERAL COURT OF AUSTRALIA

National Auto Glass Supplies (Australia) Pty Limited v Nielsen & Moller Autoglass (NSW) Pty Limited (No 7) [2007] FCA 582

EVIDENCE – discretion to limit the use to be made of evidence following its admission where an order has been made excusing a witness under cross-examination from giving further evidence in the case

Evidence Act 1995 (Cth) s 136

National Auto Glass Supplies (Australia) Pty Limited v Nielsen & Moller Autoglass (NSW) Pty Limited (No 5) [2007] FCA 569

Australian Competition and Consumer Commission v Lux Pty Limited [2003] FCA 949

The Larrakia People v Northern Territory [2003] FCA 1175

NATIONAL AUTO GLASS SUPPLIES (AUSTRALIA) PTY LIMITED ACN 081 814 342, MAGGIE YEUNG LO AND HARVEY HUI OUYANG v NIELSEN & MOLLER AUTOGLASS (NSW) PTY LIMITED ACN 107 721 595, JACK J MOLLER AND CARL MOLLER

NSD 2596 OF 2005

GRAHAM J

13 APRIL 2007

SYDNEY

THE COURT ORDERS THAT:

1.                  No further use may be made by any party of the affidavit or oral evidence of the second respondent.

2.                  There be no costs order against the first or third respondents in respect of the applicants’ Notice of Motion filed 12 April 2007.

3.                  The second respondent pay the applicants’ costs thrown away by reason of his failure to attend for examination on the resumption of the proceedings on 12 April 2007 on an indemnity basis.  Such costs may be taxed and shall be payable forthwith.

4.                  The costs of the applicants of their Notice of Motion filed 12 April 2007 which occupied approximately one and a half hours of hearing time this afternoon be the applicants’ costs in the proceedings as against the second respondent.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     The trial in this matter commenced on 4 December 2006.  On 8 December 2006 the applicants closed their case.  The first witness for the respondents was the second respondent, Mr Jack Moller.  His evidence-in-chief was given on 11 December 2006.  His cross-examination commenced shortly thereafter and continued until lunchtime on 12 December 2006.  Upon the resumption of the hearing on the afternoon of 12 December 2006 the second respondent complained of a sense of dizziness and loss of balance which occurred shortly before lunch on 12 December 2006. 

2                     The net result of what then followed was that the cross-examination was not finished on 12 December.  No cross-examination was undertaken on 13 December and the proceedings were adjourned to 12 April 2007 on 14 December.  On 13 December the Court was informed that it was likely that the second respondent’s cross-examination would occupy a further two hours. 

3                     In the course of the second respondent’s case his affidavit of 24 November 2006 was read, subject to rulings on objections that had been taken to parts thereof.  Indeed, most of the affidavit was rejected. 

4                     The applicants have by Notice of Motion filed on 12 April 2007 moved the Court today for an order that the oral and affidavit evidence given in the proceedings by the second respondent be excluded from the evidence received in the proceedings.  This application has been made following the making of an order earlier today on the second respondent’s application to be excused from giving further evidence in the case, which was successful (see National Auto Glass Supplies (Australia) Pty Limited v Nielsen & Moller Autoglass (NSW) Pty Limited (No 5) [2007] FCA 569).  The relief sought has been sought in accordance with s 136 of the Evidence Act 1995 (Cth) which provides:

‘136     The court may limit the use to be made of evidence if there is a danger that a particular use of the evidence might:

(a)        be unfairly prejudicial to a party; or

(b)        be misleading or confusing.’

5                     Senior counsel for the applicants draws the attention of the Court to, amongst other decisions, that of R D Nicholson J in Australian Competition and Consumer Commission v Lux Pty Limited [2003] FCA 949 and the decision of Mansfield J in The Larrakia People v Northern Territory (‘The Larrakia People’) [2003] FCA 1175.  From these authorities the applicants draw the principle that the discretion conferred by s 136 to limit the use to be made of evidence is not foreclosed by the admission of the evidence.  They further rely upon the authorities mentioned to support the proposition that whether it is appropriate to exercise the discretion after the admission of evidence depends entirely on the circumstances of the trial as they have developed and that evidence will be unfairly prejudicial where a party is denied the opportunity to cross-examine the source of the evidence.

6                     As expressed by Mansfield J in The Larrakia People, one aspect of unfair prejudice may be the lack of a proper opportunity to cross-examine the person whose evidence is sought to be admitted.  In this case the relevant evidence in relation to which relief is sought has been admitted. 

7                     Prayer for relief 1 seeks an order limiting the use of the entirety of the second respondent’s evidence in the applicants’ case against not only the second respondent, but also the first respondent, which is not presently represented, and the third respondent, who is before the Court in person as, indeed, Mr Jack Moller was prior to the luncheon adjournment today.

8                     Counsel for the applicants accept that if an order is made limiting the use to be made of Mr Jack Moller’s evidence which precludes the use of any of that evidence, then what is sauce for the goose is sauce for the gander.  The applicants accept that they may not have the advantage of any parts of Mr Jack Moller’s evidence that are favourable to them and that that is part of the price which has to be paid for the order which they seek, which deprives both Mr Jack Moller and the other respondents from having the benefit of any of the evidence given by Mr Jack Moller.  Mr Jack Moller has chosen not to be present in Court to resist the relief sought by the applicants in relation to the case against him.

9                     Mr Carl Moller has been heard on the application to limit the use to be made of Mr Jack Moller’s evidence in the case against Mr Carl Moller.  Mr Carl Moller was invited to direct the Court’s attention to the irremediable harm that would be done to Mr Carl Moller’s case were the evidence of Mr Jack Moller to be excised.  My understanding from Mr Carl Moller’s response was that the evidence of his father was particularly important but that there was nothing relevantly in Mr Jack Moller’s evidence that could not be covered by Mr Carl Moller’s own evidence.  He indicated to me that the evidence of Mr Jack Moller was corroborative rather than irreplaceable.

10                  Were this matter to go further, an appellate court may well be under a greater handicap than the Court as presently constituted were the evidence of Mr Jack Moller to stand, an appellate court being deprived of the opportunity to form any assessment of the weight of the evidence given thus far, either in chief or in cross-examination.  It seems to me that without the opportunity being afforded to the applicants to complete their cross-examination of Mr Jack Moller, there is a danger that the use of his evidence might be unfairly prejudicial to the applicants or be misleading or confusing.

11                  The submission is put by counsel for the applicants that the prejudice suffered by their clients is effectively shared by the other respondents, and in particular Mr Carl Moller, who have not had an opportunity to cross-examine Mr Jack Moller either.  If the boot were on the other foot and the applicants wanted the evidence of Mr Jack Moller in but Mr Carl Moller wanted the evidence out, counsel for the applicants concede that they could not be heard to argue that the evidence should remain available for use by them. 

12                  In my opinion it would be appropriate to exercise the Court’s discretion and limit the use to be made of Mr Jack Moller’s evidence by excluding it from any further use in the proceedings.

13                  The only other substantive relief sought by the applicants on the hearing of the Notice of Motion filed 12 April 2007 was prayer for relief 6A which, in the light of events that have occurred during the course of the day, is no longer pressed. 

14                  This leaves for consideration prayers for relief 5 and 4 which deal with the costs thrown away yesterday and the costs of the motion filed 12 April 2007 which have occupied time this afternoon.  In relation to the costs thrown away yesterday, I have in earlier judgments delivered today made it clear that a whole hearing day was lost yesterday which in large measure can be attributed to the failure by Mr Jack Moller to appear before the Court yesterday: (a) as a party; and (b) as a witness then currently under cross-examination.

15                  I note that, notwithstanding Mr Jack Moller’s medical condition, he found himself in a condition that he was able to attend Court today, inform the Court of his intentions and wishes and then to withdraw.  Had he done so yesterday, some of the time wasted could have been usefully employed.  More importantly, Mr Jack Moller did not pay either the applicants or the Court the courtesy of informing them in advance of his intentions and wishes in relation to the future conduct of the proceedings against him.  He has done so today for the first time. 

16                  Notwithstanding the fact that Mr Jack Moller claims to be a pensioner without means, he has at times demonstrated a degree of belligerence towards the applicants which is perhaps natural for a litigant in person but is, in my view, unwarranted.

17                  His parting words to the Court today were indicative of the belligerence which from time to time he has demonstrated.  In relation to the costs of his application today to be excused from giving further evidence in the case, his parting words were:

‘I will not be here [meaning at 2.15 pm today] and I wish them Buckley’s luck.’

18                  In my opinion, it is appropriate to order that the second respondent pay the applicants’ costs thrown away by reason of his failure to attend for examination on the resumption of the proceedings on 12 April 2007 on an indemnity basis.  Such costs should be taxable and payable forthwith and I will order accordingly. 

19                  In relation to the costs of and incidental to the motion this afternoon which has resulted in the order being made limiting the use of Mr Jack Moller’s evidence, it seems to me that the appropriate order is that the applicants’ costs of the motion this afternoon, which has occupied approximately an hour and a half, should be the applicants’ costs in the proceedings. 

Associate:

Dated:         23 April 2007