Federal Court of Australia

Lehrmann v Network Ten Pty Limited (Cross-Examination) [2023] FCA 1477

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to s 26 of the Evidence Act 1995 (Cth), the cross-examination of the applicant by senior counsel for the second respondent be limited to factual matters relating to topics:

(a)    not covered during the cross-examination of the applicant by senior counsel for the first respondent; and

(b)    in respect of which it is contended by the second respondent that she has a different interest in the conduct of the defence of this proceeding to that of the first respondent.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

(delivered ex tempore, revised from the transcript)

LEE J:

I    AN ISSUE ARISES

1    An issue has arisen in relation to the cross-examination of the applicant, Mr Lehrmann.

2    Mr Lehrmann brings these proceedings against two respondents, Network Ten and a journalist, Ms Wilkinson.

3    At the commencement of the trial, I raised with the parties my preliminary views as to the structure of the hearing, and the order of evidence and addresses: T9.18–14.25. In doing so, I invited senior counsel for Mr Lehrmann to indicate whether he proposed to commence his case by leading evidence in chief in relation to either: (a) all issues joined on the pleadings; or (b) only those issues upon which Mr Lehrmann bore the onus. If the latter course had been proposed and accepted, it would have required the respondents, who bear the burden of establishing substantial truth, to adduce their evidence in support of their substantial truth defence before Mr Lehrmann was required to give his account of matters relevant to the alleged rape. The relevant evidence of Mr Lehrmann would have been given later, at the same time he gave his evidence in reply (at which time he may also have sought leave to reopen his case to adduce evidence as to the conduct of the trial on the issue of damages).

4    This approach is far from unknown in defamation cases: see Roberts-Smith v Fairfax Media Publications Pty Ltd (No 13) [2021] FCA 549 (at [31]–[58] per Besanko J) and the cases there cited, in particular French v Triple M Melbourne Pty Ltd [2008] VSC 548.

5    In any event, senior counsel advised that Mr Lehrmann wished to give his account as to all aspects of his evidence when first called. This course was adopted and hence the present cross-examination by senior counsel for Network Ten, Dr Collins KC, is proceeding on the basis that the witness has given his evidence in chief on all issues in the case. The cross-examination commenced at the conclusion of his evidence in chief at 2:34pm on 23 November 2023.

6    The stated intention of senior counsel for Ms Wilkinson, Ms Chrysanthou SC, is to cross-examine Mr Lehrmann. When first apprised of that fact, I observed I did not understand any conflict in the cases of the respondents insofar as the evidence of Mr Lehrmann is concerned. Accordingly, I directed a note to be sent to me explaining the basis upon which it was asserted that cross-examination by more than one counsel should occur: T337.21–338.15. I will come to the suggested bases for further cross-examination shortly, but it is worth saying something at the outset as to the relevant procedural principles and conventions.

II    THE RULE OF PRACTICE AND THE EVIDENCE ACT 1995 (CTH)

7    There is no unfettered right to cross-examine a witness, at common law or since the passage of the Evidence Act 1995 (Cth) (EA).

8    After a detailed survey of the authorities in GPI Leisure Corp Ltd v Herdsman Investments Pty Ltd (No 3) (1990) 20 NSWLR 15, Young J (as his Honour then was) relevantly observed (at 22–23):

(1)    The only actual “right” is the right to have a fair trial.

(2)    It is the duty of the trial judge to ensure that all parties have a fair trial.

(3)    In carrying out his duties the trial judge must so exercise his discretion in and about the examination and cross-examination of witnesses that a fair trial is assured.

(4)    Ordinarily, a judge in carrying out his duty will see that the trial is conducted in the manner that is commonly used throughout the State, namely that witnesses are examined, cross-examined and re-examined.

(5)    Where there is more than one counsel for the same party, then ordinarily the judge will not permit any more than one counsel to cross-examine the same witness.

(6)    Where there are parties in the same interest, the judge will apply the same rule as stated in (5).

(7)    Where the issues are complex and there is no overlapping of cross-examination and the proposal is outlined before cross-examination begins, it may be proper for the judge to permit cross-examination of one or more witnesses by more than one counsel in the same interest notwithstanding prima facie rules (5) and (6).

9    Consistently with this conventional approach, shortly following the introduction of the EA, Lindgren J accepted in NMFM Property Pty Ltd v Citibank Ltd (No 8) [1999] FCA 266; (1999) 161 ALR 581 (at 584–585 [16]) that ordinarily, where two or more parties are in the same interest, the trial judge’s discretion will be properly exercised if not more than one counsel is permitted to cross-examine, at least on the same subject matter.

10    A decade or so later, the rationale for the rule of practice preventing two counsel from cross-examining one witness, and reasonable exceptions to the rule, were explained by the Full Court (comprising Finkelstein, Siopis and Katzmann JJ) in Canberra Residential Developments Pty Ltd v Brendas [2010] FCAFC 125; (2010) 188 FCR 140 (at 148 [44]–[45]), where their Honours noted:

44    … [the rule] can be traced back to the decision of Doe v Roe (1809) 2 Camp 280; 170 ER 1155. As Lord Ellenborough made clear, the rule is for the protection of the witness. He said (at 1156): “If this rule were not adhered to, a witness might be subject to the examination or cross-examination of as many barristers as were retained for the plaintiff or defendant, much time would be wasted, and great confusion would be introduced into proceedings at Nisi Prius”. Put another way, the common law frowns upon cross-examination by multiple counsel because of the possibility of oppression: JD Heydon, Cross on Evidence (8th ed, Butterworths, 2010) p 627.

45    Naturally the common law rule is subject to reasonable exceptions. One exception arises from the changing nature of litigation. A common feature of modern commercial litigation is for counsel on one side of the record to split their trial preparation on a topic by topic basis. The conduct of the trial often follows this split with the judge permitting both cross-examination and submissions to be divided so that counsel can deal with his/her assigned topic: see eg Eva Pty Ltd v Charles Davis Ltd [1982] VR 515. This can be an extremely efficient way in which to conduct complex litigation. All the judge need do in such circumstances is ensure there is no unfairness to the witness …

11    But notwithstanding the well-entrenched nature of the common law rule of practice, the starting point now must be the EA and, in particular, Pt 2.1, Div 3, which provides for “General rules about giving evidence” and, in particular, ss 26–28, which relevantly provide:

26    Court’s control over questioning of witnesses

The court may make such orders as it considers just in relation to:

(a)    the way in which witnesses are to be questioned; and

(b)    the production and use of documents and things in connection with the questioning of witnesses; and

(c)    the order in which parties may question a witness; and

(d)    the presence and behaviour of any person in connection with the questioning of witnesses.

27    Parties may question witnesses

A party may question any witness, except as provided by this Act.

28    Order of examination in chief, cross‑examination and re‑examination

Unless the court otherwise directs:

(a)    cross‑examination of a witness is not to take place before the examination in chief of the witness; and

(b)    re‑examination of a witness is not to take place before all other parties who wish to do so have cross‑examined the witness.

12    Properly analysed, the present question is best expressed as follows: notwithstanding counsel for Ms Wilkinson “may” question Mr Lehrmann (s 27) and that any re-examination should not occur until after both respondents who “wish” to cross-examine Mr Lehrmann have done so (s 28), should the Court order there be no, or only limited cross-examination, on the basis that to do so would be “just” (s 26)?

13    What is involved is a self-evidently broad, evaluative assessment, and in considering a direction or order there be no or limited cross-examination by Ms Wilkinson I am entitled to have regard to the conventions developed reflecting the accumulated experience of the common law in securing fair trials and guarding against unfairness. Further, I am required, by reason of s 192(2) of the EA, to take into account the following relevant considerations: (a) the extent to which the direction would be likely unduly to add to, or shorten, the length of the hearing; (b) the extent to which the direction would be unfair to a party or to a witness; (c) the importance of the relevant evidence; and (d) the nature of the proceeding.

III    THE POSITION OF MS WILKINSON

14    Ms Chrysanthou points to four matters which are said to militate against making a direction there be no or limited cross-examination of Mr Lehrmann by her.

15    First, it is said the fairest course is to allow Network Ten and Ms Wilkinson to divide the cross-examination of Mr Lehrmann, pointing to the intention for there to be “no duplication of subject matter”. Whereas cross-examination by Dr Collins has focussed on the substantial truth defence, Ms Chrysanthou’s proposed cross-examination is said to concern other issues, including identification; common law qualified privilege; s 30 of the Defamation Act 2005 (NSW) (Defamation Act) and damages (including aggravated damages).

16    Secondly, Ms Wilkinson points to the fact that Mr Lehrmann has engaged two senior counsel and two junior counsel, whereas Network Ten and Ms Wilkinson have two senior counsel and two junior counsel between them. Mr Lehrmann’s counsel have divided issues, and, it is said, “it is only fair to permit Network Ten and Ms Wilkinson to do the same”.

17    Thirdly, Ms Wilkinson wishes to advance her individual interests and is entitled to separate representation because: (a) she is an individual who has been separately sued as a party; (b) she has an entitlement to choose her own counsel; (c) the proceedings directly affect her reputation and future ability to work; (d) although still employed by Network Ten, Ms Wilkinson has neither worked nor been on air since about the time the criminal proceedings against Mr Lehrmann were discontinued and since this proceeding was commenced; (e) Mr Lehrmann has made direct allegations against Ms Wilkinson, separate and in addition to allegations against Network Ten; (f) Ms Wilkinson alleges Mr Lehrmann has engaged in a media campaign against her; (g) Ms Wilkinson contends “there is a conflict between her interests and Network Ten’s interests in the proceeding”. That conflict is not expanded upon in the submissions and, for reasons that are not entirely clear to me, reference is also made in submissions to legal advice and the fact that Network Ten accepts it should indemnify Ms Wilkinson.

18    Fourthly, it is said there are key differences between Network Ten’s pleadings and Ms Wilkinson’s pleadings, namely as to identification; common law qualified privilege (which is not pleaded by Network Ten); s 30 of the Defamation Act; and damages. Ms Wilkinson submits she principally proposes to cross-examine Mr Lehrmann on matters which Network Ten cannot.

IV    THE POSITION OF MR LEHRMANN

19    The position of Mr Lehrmann was confirmed through his senior counsel when the matter came before me this morning. As I understand it, the position taken by Mr Lehrmann is that he does not object to any cross-examination by Ms Chrysanthou should that cross-examination be limited to factual matters relevant to interests other than those being advanced by Dr Collins on behalf of Network Ten. Otherwise, Mr Lehrmann objects to any duplicative cross-examination on the same topics and the bifurcation of the cross-examination between counsel in relation to common defence issues.

V    CONSIDERATION AND THE DIRECTION

20    This is a case of great importance to those involved and the facts in issue are serious. As I remarked during oral submissions, one is not to approach cross-examination in any case, let alone a case such as this, as though it is a social cricket match where a batsman retires at 50 to give someone else a go.

21    I accept that where litigation is complex and one cross-examination may need to canvass discrete topics, there may be sound reasons for bifurcation of the cross-examination. A number of examples spring to mind: a complex class action involving allegations of different types of contravening conduct occurring over different periods; a case against directors or an auditor over a corporate collapse, which involves different audit engagement and time-dependent considerations as to whether auditing or accounting standards have been applied; or a complex scientific case where one expert gives evidence in one scientific discipline but the evidence necessarily involves some consideration of other connected, but discrete, scientific disciplines (for example, an allegation a product is carcinogenic). But even in these types of complex cases, at least in my experience, it has mostly proven unnecessary for there to be multiple cross-examinations.

22    Obviously enough, this is not such a case. The issues are of critical importance to the parties, are of public interest and are hotly contested. But whatever else may be said of this proceeding, it is not legally or factually complex by the standards of modern litigation, particularly commercial litigation. Nor is there a significant volume of documentary material.

23    The primary reason why multiple cross-examination should occur is if there is a legitimate difference in the interests of the cross-examining parties or some other reason which, taken together with all other relevant considerations, outweighs concerns as to fairness attending two cross-examinations conducted by senior silks, both of which will almost certainly involve credit attacks.

24    Ms Wilkinson’s reliance on Canberra Residential Developments v Brendas is of limited assistance. That case contains an important statement as to the content of fiduciary relationships but, relevantly for present purposes, it arose out of an unusual state of affairs. Senior counsel was not paid and no longer appeared but had not finished the cross-examination of an important witness. Junior counsel said he would not ask questions on any topic already canvassed but wished to complete the cross-examination. The respondents conceded that if junior counsel was to continue, the cross-examination would cause no injustice. As the Full Court noted, in these singular circumstances, the “surprising ruling” of the primary judge was to prevent the cross-examination being completed because of a failure to show “special circumstances”. The present situation bears no relationship to the circumstances of that case.

25    It is convenient to deal in turn with each of the four matters specifically addressed in submissions.

26    First, I take into account the fact that, as one would expect, two experienced senior counsel have discussed how topics might sensibly be divided. But the fact remains that Network Ten and Ms Wilkinson have an identical interest on the vast bulk of issues forming the basis of the defence, particularly when it comes to the evidence of Mr Lehrmann. Indeed, the precise topics of factual inquiry in relation to this witness (being facts relevant to issues where the respondents’ interests might diverge) are not immediately apparent. Put another way, in the absence of elaboration, to identify precisely what factual topics ought to be the subject of cross-examination by the second proposed cross-examiner, which would not be a proper subject of cross-examination by the first, is not easy.

27    Secondly, the fact Mr Lehrmann has engaged two senior counsel and two junior counsel is beside the point. The problem is the unfairness occasioned by cross-examination, not the mere fact each respondent has engaged fewer counsel than Mr Lehrmann. I would approach the cross-examination of a witness called on behalf of Network Ten or Ms Wilkinson in the same way.

28    Thirdly, I recognise Ms Wilkinson is interested in advancing her own viewpoint, including asking questions of any witness in circumstances where it is necessary for her counsel to do so. This is a legitimate approach but does not extend to duplicative cross-examination.

29    Fourthly, the “key differences” said to exist between Network Ten’s case and Ms Wilkinson’s case were not elaborated upon, except by making general reference to differences in the pleadings, which are relatively minor. Further, at the risk of repetition, there was no descent into the detail to identify various factual issues requiring exploration by Ms Wilkinson’s counsel, which could not be explored by Dr Collins.

30    These matters point strongly in the direction of doing what one can to prevent any duplicative cross-examination and avoiding bifurcating the cross-examination between two counsel. Moreover, to the extent I have not already mentioned them, I have also directed myself to have regard to the factors in s 192(2) of the EA. Two cross-examinations directed to broad “topics” are likely to lengthen rather than shorten the hearing; it is more efficient for one cross-examiner to canvass all common issues in dispute; there is a real risk cross-examination by two counsel concerning Mr Lehrmann’s credit would operate an unfairness (except to the extent it is necessary to secure a fair trial); and I have had regard to the evidence given by Mr Lehrmann thus far and the nature of the issues in the proceeding.

31    Having taken all of the above matters into account, I consider any cross-examination by Ms Chrysanthou should be limited in the way I have explained in these reasons. I will formulate an appropriate order to be made pursuant to s 26 of the EA during the day and provide it to counsel for their comment.

32    In order to ensure the cross-examination proceeds efficiently today, I thought I should raise this issue on Friday, 24 November 2023 to allow submissions to be made. Such a course means a decision is made in a timely way and allows Dr Collins to consider the remaining scope of his cross-examination over the course of the day.

33    There may be some present ambiguity as to the precise metes and bounds of the factual issues in respect of which Ms Chrysanthou should be permitted to ask questions. To the extent there is any residual confusion, it is best dealt with on a question-by-question basis.

Associate:

Dated:    27 November 2023