Case: Browne v Dunn (1893) 6 R 67
Outcome: discussed
Cadbury submitted that if Darrell Lea wished to challenge or qualify the conclusions reached by the witness on the basis of different factual assumptions the Rule in Browne v Dunn (1893) 6 R 67 required the cross-examiner to ask the witness whether such matters resulted in any change to his opinion. 40 As well as Browne v Dunn itself, Cadbury cited in support of this proposition the decision of the Full Court in Bush v The Queen [1993] FCA 361 ; (1993) 43 FCR 549. That case concerned an appeal from a jury's conviction of the appellant for attempted murder of his second wife and murder of her lover. Evidence was given by a Mr Saulwick of a survey of persons in the Australian Capital Territory as to their knowledge of the appellant's conviction five years earlier of the manslaughter of his first wife and the effect any such knowledge would have on their opinion as to his likely guilt of a similar offence in relation to the second wife. This evidence was adduced in support of an application for leave to challenge jurors as to cause. There was discussion at 557 by Drummond J (with whom Davies and Miles JJ agreed) critical of the usefulness of the survey. In substance his Honour found it was not useful and not a sufficient basis for its conclusion that at least one member of the jury would have connected the appellant with the 1987 killing and, for that reason, would have found the appellant guilty of the 1992 offences. Davies J at 551-552 also gave reasons for his conclusion that the survey questions were "misconceived". Mr Saulwick was cross-examined. It may be that some matters relied on by their Honours were not put to him. For example, in making the point that the sample was drawn from ACT voters and not the more limited population of the ACT eligible for jury service Drummond J said at 557: "This may or may not affect Mr Saulwick's opinion". If anything, the case seems contrary to Cadbury's argument. In any event, Browne v Dunn is not mentioned. 41 In Raben Footwear Pty Ltd v Polygram Records Inc (1997) 145 ALR 1 Tamberlin J discussed the application of the Rule in Browne v Dunn in the context of a copyright infringement case where one issue was whether a Mr Ron Lewy had, as he claimed, spoken by telephone to a German company and received certain assurances about copyright arrangements in Australia in respect of CDs which Mr Lewy's company was about to import. The trial judge had not accepted that the words were said. In the Full Court Tamberlin J said at 14-15: The submission made to this court is that because it was not specifically and expressly put to Mr Ron Lewy, in cross-examination, that the statement was not made, the rule of professional practice enunciated in Browne v Dunn (1893) 6 R 67 was breached and therefore the evidence should have been ignored or the matter reopened. The failure by his Honour to address the point was said to amount to procedural unfairness. Counsel referred to a number of decisions including Payless Superbarn (NSW) Pty Ltd v O'Gara (1990) 19 NSWLR 551 at 554 7. Ultimately, the rule in Browne v Dunn is one of procedural fairness. Whether his Honour should have taken any action in relation to the failure to put the disputed words called for the exercise of a discretionary judgment on his part. As Hunt J has pointed out, in Allied Pastoral Holdings Pty Ltd v FCT [1983] 1 NSWLR 1 at 26 7; (1983) 44 ALR 607 , the rule is designed to ensure fairness to the witness so as to enable the witness to deal with the disputed matter and perhaps to give further evidence in corroboration or to contradict any inference which may be sought to be drawn. See also Dolan v Australian &amp; Overseas Telecommunications Corp [1993] FCA 202 ; (1993) 42 FCR 206 at 207 8; [1993] FCA 202 ; 114 ALR 231 ; Marelic v Comcare [1993] FCA 599 ; (1993) 121 ALR 114 at 119 20. It is common ground that it was not expressly put to Mr Ron Lewy that the words were not said. In commercial litigation (including intellectual property matters), where issues are clearly defined, there will often be no point in formally challenging every aspect of the evidence which is contested. There will often be a large number of matters in respect of which it will be apparent from the pleadings and particulars there is clearly a contest. Where this is the case the principle need not be applied in an unduly technical way. After discussing the evidence, his Honour continued: The rule may be satisfied where the witness is on notice that the version given is disputed and such notice may come from pleadings, the opponent's evidence or opening, or from the general manner in which the case is conducted. 42 Likewise in Seymour v Australian Broadcasting Commission (1977) 19 NSWLR 219 at 236 Mahoney JA said: ...failure to cross-examine a witness may not found such an assumption or render the course of the trial unfair if it is clear from the manner in which generally the case has been conducted that his evidence will be contested. This was pointed out by Lord Herschell ([in Browne v Dunn] at 71). The nature of the defendant's case and the particulars given, and otherwise the conduct of it may make it sufficiently clear that such an assumption is unwarranted and that there has been no surprise or prejudice concerning the matter. 43 As to the application of Browne v Dunn in modern commercial litigation, see also Australian Competition and Consumer Commission v J McPhee &amp; Son (Australia) Pty Ltd (1998) ATPR (Digest) |P 46-183 at 50,323, approved on appeal: J McPhee &amp; Son (Australia) Pty Ltd v Australian Competition and Consumer Commission [2000] FCA 365 ; (2000) 172 ALR 532 at [103] - [107] . 51 Thus, quite apart from Darrell Lea's criticisms, the Court is entitled, and indeed bound, to form its own views on the evidence, including, but by no means limited to, the opinions of the Cadbury experts. It was put that by choosing not to adduce any expert evidence, Darrell Lea "effectively accepts the (Cadbury) expert evidence" and that in accordance with Browne v Dunn "Darrell Lea is now estopped from making any submissions that the expert evidence is incorrect". I do not accept this submission. In Ancher, Mortlock, Murray &amp; Wooley Pty Ltd v Hooker Homes Pty Ltd [1971] 2 NSWLR 278, a copyright infringement case concerning house plans, Street J said at 286: In view of the volume of expert evidence, and the differing views expressed by the expert witnesses, I should state the use that can properly be made of that evidence in reaching a decision in a suit such as this. The decision upon the issue of similarity is an original decision for the court itself. It is to be reached upon an assessment of such similarities and dissimilarities as appear to the court between the plans or buildings under consideration. The fact that one particular expert of the highest authority and of unimpeachable credit is permitted to swear to an opinion on similarity or dissimilarity does not relieve the court of the responsibility of forming its own opinion on this issue. In this sense the expert evidence in a suit such as the present fills a somewhat unusual role. It is almost as if each side calls an expert to argue out with counsel in examination-in-chief and cross-examination the similarity or dissimilarity which that particular expert sees between the plans and houses. By attending to the progress of this argumentative process between counsel and expert the court is enabled to perceive and more readily to appreciate the points of similarity and dissimilarity. In this way the tendering of expert evidence is of value in exposing the facets of the ultimate question to which the expert opinion evidence is directed. But the important point is that, in distinction from the judicial process in relation to expert evidence such as is normally encountered in litigation, a court in the present type of litigation is entitled, and, indeed, bound, to form and act on its own original opinion. His Honour's approach would seem to apply a fortiori in a case concerning the retail marketing of everyday consumer products.