Case: Browne v Dunn (1893) 6 R 67
Outcome: considered
I should indicate that Mr Miller was not cross-examined upon his report of 30 August 2007 by any of the creditors, supporting creditors or the Australian Securities and Investments Commission ('ASIC') (which was given leave to intervene in these proceedings). APM contended that in these circumstances, because of the rule in Browne v Dunn (1893) 6 R 67, I should ignore the criticisms made of his report, or give APM the opportunity to recall Mr Miller to address the criticisms. 25 I accept that the rule in Browne v Dunn (1893) 6 R 67 has an important function to play in the course of a trial, as recently made clear by the Full Court in Jardein Pty Ltd v Stathakis [2007] FCAFC 148 , at [27] to [33]: Where a party intends to contradict or challenge the testimony of an opposing party's witness, the party is obliged to put that witness on notice that his or her account will be challenged: Browne v Dunn (1893) 6 R 67. This gives the witness an opportunity to respond to the allegations. The reason this is done is as a matter of basic fairness. See Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation [1983] 1 NSWLR 1 per Hunt J. Adherence to the rule in Browne v Dunn also gives the party calling the witness the chance to adduce supporting evidence which might not otherwise have been led. Compliance with the rule requires only that the substance of the contrary version is put to the witness, and not every detail of the challenge: White Industries (Qld) Pty Ltd v Flower &amp; Hart (a firm) (1998) 156 ALR 169 at 217 per Goldberg J. In a civil case the consequences of a failure to observe the rule will vary. However, they will usually be related to the central object of the rule which is to secure fairness. In Seymour v Australian Broadcasting Commission (1977) 19 NSWLR 219 Mahoney JA said (at 236 237): "This kind of problem may arise at different times in the litigation. It may arise during the trial. Thus, where a party fails to cross-examine a witness at all or on a particular matter, it may be prudent for the trial judge at the time to draw the attention of counsel in an appropriate way to the effect this may have on the later conduct of the trial. It may be that the question arises at a later stage in the trial when counsel seeks to call evidence contradicting the witness or discrediting his evidence, or seeks to address upon the basis that the witness' evidence is untrue. The trial judge may then have to determine what course should be followed. Sometimes the interests of justice may be served by having the witness recalled for cross-examination. Sometimes the circumstances may be such that the only way in which justice can be achieved is by directing that, for example, it is not open to counsel, in address, to make such suggestion. What is to be done will depend, as I have said, upon the circumstances of the case." A possible consequence of a breach of the rule may be that the party in breach will be prevented from suggesting that the witness' testimony should be disbelieved. Another possible consequence will be the exclusion of evidence that challenges the witness' account with respect to those matters upon which there was no cross-examination. A third possible consequence will be to permit the witness to be recalled so that the breach can be remedied. One thing is clear. The rule is not simply to be ignored. The rule in Browne v Dunn has not been abrogated under the uniform Evidence Acts: Heaton v Luczka (unreported, New South Wales Court of Appeal, 3 March 1998) per Beazley JA. Indeed, s 46 of the Evidence Act 1995 (Cth) specifically enables the recall of a witness where there has been a breach of the rule and therefore implies its continued existence. 28 In any event, whilst I accept that the rule in Browne v Dunn may apply to expert testimony, there is no rule of law requiring that evidence not challenged in cross-examination be accepted. In this case, APM has an onus of proof to establish solvency. The legal approach to such a task is well established on the authorities. The real attack in this case was that Mr Miller's evidence as to solvency should not be accepted as it was based upon incomplete records and unsubstantiated source material, a mistaken approach to what needs to be shown to prove solvency, and the fact that the qualifications made to the report were such that the conclusion of "marginal" solvency could not be accepted by this Court. It seems to me that all a cross-examiner would have put to Mr Miller on this basis would be the very qualifications to his report Mr Miller himself acknowledged, which in themselves show his report of 30 August 2007 could not satisfy the Court as to solvency. APM and Mr Miller have not been unfairly treated. APM came to Court bearing the onus of proof as to solvency, but in my view has failed to provide the "fullest and best" evidence of its financial position.