Brett Dawson wrote:
> 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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