The Judge's joke.
Speaking of judicial corruption, it could well be that the mother of all
efforts in that direction is now underway in the Federal Court, where the
case of Flower & Hart (set down for five days argument) has just concluded
after one and a half days (presumably they can go off to taxpayer funded
golf, while talking of how many judgments they are writing) But that is not
the corruption, that's just flogging pens and pencils stuff.
No, the real deal is that Callinan is a High Court justice who must be got
off the hook that Justice Goldberg put him on when he held that BOTH
Callinan (who was not sued) and the solicitors Flower & Hart (who were) were
guilty of abusing the process of the court. Here are some quotes from
Justice Hill (one of the three hearing the appeal)
"persuade us that Mr Callinan matters"
"Callinan said you CAN sue, you're not going to win"(to which the lawyer
disagreed, saying Callinan said
"they (proceedings) ought to be issued immediately"
"if you accept Callinan's evidence and there is no reason why we should not,
Meadows wrote the letter"
(Goldberg effectively said Callinan lied on oath at the trial so there
is every reason why his evidence
should not be accepted)
The President of the Federal Court pointedly emphasised the word "your" when
he said to the F&H lawyer
"YOUR proposition is that you can't get to Flower & Hart unless you get to
Callinan"
The sad thing is that the lawyers on both sides are saying that Flower &
Hart's activities are the only ones that matter and early on the Flower &
Hart lawyer said (in relation to the findings against Callinan) that this is
a "rare case, where both sides are keen to distance themselves from
responsibility for the learned Judge's findings"
Now here is the filthily corrupt bit. Goldberg had to make findings against
Callinan because in truth unless Callinan was acting "corruptly" and Flower
& Hart knew that, then they had a complete defence. It is always a
defence for a solicitor to say "I just followed the instructions of senior
counsel whom I honestly believed was acting bona fide" and that is a
complete defence UNLESS it is quite apparent that the solicitor and
barrister counsel were conspiring in a corrupt way (which of course they
were which is why Goldberg made the findings that Callinan was acting like a
rat)
And yet it seems the Federal Court will try to "set aside" the findings
against Callinan while leaving Flower & Hart on the hook (their insurer
Appiil is going ot go bust anyway?) which is against the law, really.
So that is pretty bad, but now try this. To get Callinan off the hook, they
will also say that he was never given the opportunity to explain away what
his letters and opinions said. This will be an out and out lie, but they can
get away with it because Callinan officially was not a party to the case,
and therefore was not privy to what the case was about. he was "just" a
witness. They will gloss over the fact that he swore affidavit(s) in the
Flower & Hart case setting out his evidence, and he could not have done that
without knowing what issues he was supposed to be addressing (namely his
advice to Flower & Hart)
Even Justice Hill, the most pro Callinan one on the bench from all
appearances anyway, said Justice Goldberg seemed to have assumed that
Callinan knew (what the allegations were against him)
and Hill went on to say "Quite frankly, I suspect he did...." but it seems
he will say that it is only "suspicion".
But the thing is, that at the trial, while Callinan was in the witness box
and the lawyers had finished "questioning" him in the tamest way possible
(and had not asked him to explain why he had written the burningly
incriminating letters and opinions that he had) Justice Goldberg (in front
of Callinan) pointed this out to them and asked them if they wanted to get
him to explain. Neither side did. Justice Goldberg
then spent a huge amount of time in his judgement explaining why it was fair
to assume that Callinan must have been kept quiet on explaining his letters
BECAUSE HE HAD NO EXPLANATION OTHER THAN THAT HE WAS GUILTY.
And yet, the Federal Court is going to say he was "unaware" that his
reputation was about to be shot to pieces unless he explained away what he
had written, so the finding that his letters meant what they said
(ie that the black and white of what he wrote was what he was thinking and
doing) is not a reliable "finding"
All his dirty letters and correspondence which were exposed by the hugest
fluke will thus be buried unless we refuse to let the judiciary get away
with it.
For those of you who might be anxious to know what Goldberg said (because
this is the underlying stuff one needs to know to comprehend the enormity of
the corruption the Federal Court will indulge in:
The extracts begin now:
The rule in Browne v Dunn
The rule in Browne v Dunn (supra) is a rule of fairness which requires a
party or a witness to be put on notice that a statement made by the witness
may be used against the party or witness or to be put on notice that an
adverse inference may be drawn against the witness or an adverse comment
made about the witness in order that the witness may respond to that issue
and give an explanation: Browne v Dunn (supra) 70; Bulstrode v Trimble
[1970] VR 840, 849; Karidis v General Motors-Holdens Pty Ltd [1971] SASR
422, 425 - 426; Allied Pastoral Holdings Pty Ltd v Federal Commissioner of
Taxation (1983) 44 ALR 607, 623.
The significance of the rule is that it requires notice to be given of a
proposed attack on a witness or on the witness' evidence where that attack
is not otherwise apparent to the witness. The rule does not require that
there be put to the witness every point upon which his or her evidence might
be used against him or her or against the party who calls the witness. This
is demonstrable from the judgements in Browne v Dunn (supra). At 70 Lord
Herschell LC said:
"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 dealing with witnesses."
His Lordship then referred to complaints about excessive cross-examination
and continued at 71:
"... 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 afterwards 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 that 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 at 76- 77:
"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 a 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 the facts
they have deposed to."
Lord Morris concurred with the reasons of Lord Herschell and Lord Halsbury
but did not wish to lay down a hard-and-fast rule in relation to
cross-examining a witness "as a necessary preliminary to impeaching his
credit" (79). Lord Bowen did not lay down any general principle.
It is apparent, from the judgment of Lord Herschell that notice of the
relevant attack need not necessarily occur in cross-examination so long as
it is otherwise clear that it will be made. This proposition was picked up
by Hunt J in his extensive analysis of the rule and the cases which had
considered it in Allied Pastoral Holdings Pty Ltd v Federal Commissioner of
Taxation (supra) where he said at 623:
"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 the trial and
which are generally regarded as being established by the decision of the
House of Lords in Browne v Dunn (1894) 6 R 67."
But as Hunt J pointed out at 630:
"In many cases, of course, counsel for the party calling the witness in
question will be alert to the relevance of the other material in the case to
be relied upon for the challenge to the truth of the evidence given by his
witness or to the credit of that witness, and in those circumstances counsel
will be able to give his witness the opportunity to deal with that other
material in his own evidence in chief. But sometimes quite properly he may
not be aware either of the other material or of its relevance; or for quite
legitimate tactical reasons he may prefer his opponent to be the first to
raise the matter, and then deal with it re-examination or (if allowed) in
his case in reply. But at some stage during the course of the evidence, the
witness must be given a proper opportunity to deal with the material to be
relied upon for the challenge."
The rule does not apply, in the sense that it is not 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 in the manner in which a case is conducted: Seymour v Australian
Broadcasting Commission (1977) 19 NSWLR 219, 224 - 225, 236; Jagelman v
Federal Commissioner of Taxation (1995) 31 ATR 467, 472 - 473; Raben
Footwear Pty Ltd v Polygram Records Inc (1997) 145 ALR 1, 15.
The issue here is not so much that there is an attack on the credit of the
witnesses which could not be anticipated or that Flower & Hart and its
witnesses have been ambushed. Rather the issue is that what are said to be
clear statements in letters and opinions are being used against Flower &
Hart either as admissions or in circumstances where inferences adverse to
Flower & Hart are sought to be drawn. Mr Meadows in his affidavits qualified
one of the sentences in his letter of 18 December 1986 and on that
qualification he was cross-examined. He was given the opportunity to qualify
the letter further but did not do so. Mr Callinan did not seek in his
affidavits to qualify, explain or resile from any statements in the letter
of 18 December 1986 or in his opinions and advices yet it was known to
Flower & Hart, indeed it was Mr Meadow's evidence, that Mr Callinan had
either dictated the letter or had input into it and had approved its
contents.
In my opinion, Flower & Hart and all its witnesses were on notice that White
was seeking to rely upon the letter of 18 December 1986 and the relevant
contents of the particular opinions and advices of Mr Callinan for the
purpose of establishing that Flower & Hart had the purpose of initiating the
proceeding on behalf of its client to delay payment of the amount due to
White in circumstances where it had formed the opinion that its client did
not have a case that could be won. It is not unfair, in my opinion,
therefore for White to invite the Court to draw inferences and make findings
from the letter of 18 December 1986 and the opinions and advices of Mr
Callinan adverse to him and to Flower & Hart and contrary to evidence
otherwise given by its witnesses. This is not a case where it can be said
that Flower & Hart has been ambushed in final submissions by White's
reliance on evidence, the existence of which Flower & Hart was unaware until
the evidence was completed: cf: Dolan v Australian and Overseas
Telecommunications Corporation (1993) 42 FCR 206, 210.
When senior counsel for White concluded his cross-examination of Justice
Callinan and before re-examination commenced, I drew White's counsel's
attention to the fact that he had not cross-examined Justice Callinan on a
number of the passages found in the letter of 18 December 1986 and in his
opinions and advices upon which White now seeks to rely for the purpose of
the drawing of adverse inferences and the making of adverse findings against
Flower & Hart. I raised with counsel the issue whether the rule in Browne v
Dunn (supra) required him to do so. I gave him the opportunity to consider
whether he wanted to cross-examine on these matters but he declined my
invitation. Senior counsel for Flower & Hart was asked if he wished to say
anything and he did not wish to do so. At that time I was not sure whether
the result of the cross-examination was such that the rule in Browne v Dunn
(supra) might be transgressed and I had not formed a concluded view whether
Justice Callinan and Flower & Hart were on notice as to how the letter of 18
December 1986 and the opinions and advices might be used adversely against
them. I am now satisfied for the reasons to which I have referred that they
were on notice and it was not incumbent upon counsel for White to
cross-examine further on these matters in order to be entitled to make the
submissions White now wishes to make.
Mr Callinan was asked whether the advice of 12 September 1988 accurately
reflected his instructions and understanding at the time and he said "Yes".
He was then asked whether the advice accurately reflected his views and
opinions at the time and he answered "Yes".
I have already found that Flower & Hart were on notice of the case proposed
to be made from the documents and the inferences proposed to be drawn from
them well before the commencement of the hearing. The issue certainly
crystallised at the conclusion of Justice Callinan's cross-examination when
I raised the issue with counsel for White. Counsel for Flower & Hart could
then, if thought appropriate or necessary, have applied for leave to recall
his witnesses. Flower & Hart cannot now be heard to complain about
unfairness; in my opinion there was no unfairness. Flower & Hart should be
bound by the course it adopted at trial, namely to be selective about the
documents its witnesses wished to explain or qualify: Rowe v Australian
United Steam Navigation Co Ltd (1909) 9 CLR 1, 24; Hoyts Pty Ltd v O'Connor
(1928) 40 CLR 566, 576.
SO THERE YOU HAVE IT. IT'S ON THE RECORD NOW. IN DUE COURSE WE SHALL SEE IF
THE WHITEWASH BRUSHES ARE PULLED OUT BY THE FEDERAL COURT JUDGES (I SUSPECT
JUSTICE SUNDBERG MIGHT NOT GO ALONG) AND CALLINAN IS GIVEN A LIBERAL
PLASTERING OF WHITER THAN SNOW STUFF (IT WILL NEED TO BE THICK TO COVER UP
THE BLACKNESS OF HIS DIRTY DEEDS)
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