Cheers v El Davo (in liq) [2000] FCA 144

Cheers v El Davo (in liq) [2000] FCA 144

Although the applicants' interests and the Davis cross-respondents' interests were closely aligned in important respects, they were not identical because the Capital respondents alleged that the Davis cross-respondents induced breach of contract. The Court was not satisfied at that stage that any particular applicants' witness had an interest consistent with Mr Herskope's clients or was sympathetic to them, so it would not prevent leading questions. However, the interests of justice required Mr Herskope to cross-examine applicants' witnesses immediately after examination-in-chief so as best to elicit the truth while preserving effective confrontation by parties adversely affected by the...

Jurisdiction
Australia
Judgment Date
21 February 2000
Procedural Posture
Civil Proceeding Involving Claims and Cross Claims; Practice and Procedure Ruling / Ruling on Right to Cross Examine and Sequence of Cross Examination After the Applicants' Opening Address
Outcome
Ruling partly in favour of the respondents: the Court refused to prevent Mr Herskope from asking leading questions, but directed the sequence of cross-examination of the applicants' witnesses.
Legal Topics
['right to Cross Examine' 'leading Questions in Cross Examination' 'parties in the Same Interest' 'sequence of Cross Examination' 'court Control of Questioning Witnesses']
['practice and Procedure' 'evidence'] ['right to Cross Examine' 'leading Questions in Cross Examination' 'parties in the Same Interest' 'sequence of Cross Examination' 'court Control of Questioning Witnesses']

Case Brief

Summary, issues, holding and outcome

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Procedural Posture

Civil Proceeding Involving Claims and Cross Claims; Practice and Procedure Ruling / Ruling on Right to Cross Examine and Sequence of Cross Examination After the Applicants' Opening Address

Legal Issues

  1. 1 ['Whether counsel for the Davis cross-respondents should be prevented from asking leading questions of witnesses called by the applicants, apart from the applicants themselves.' "Whether any questioning by counsel for the Davis cross-respondents of the applicants' witnesses should take place immediately after evidence-in-chief." 'What order of cross-examination should apply as between the Boyle respondents and the Capital respondents.']

Ratio Decidendi

Although the applicants' interests and the Davis cross-respondents' interests were closely aligned in important respects, they were not identical because the Capital respondents alleged that the Davis cross-respondents induced breach of contract. The Court was not satisfied at that stage that any particular applicants' witness had an interest consistent with Mr Herskope's clients or was sympathetic to them, so it would not prevent leading questions. However, the interests of justice required Mr Herskope to cross-examine applicants' witnesses immediately after examination-in-chief so as best to elicit the truth while preserving effective confrontation by parties adversely affected by the...

Court Disposition

Ruling partly in favour of the respondents: the Court refused to prevent Mr Herskope from asking leading questions, but directed the sequence of cross-examination of the applicants' witnesses.

Orders

  • ['Mr Herskope was not prevented from asking leading questions of witnesses to be called on behalf of the applicants.' 'Mr Herskope was to cross-examine all witnesses to be called by the applicants, including the applicants themselves, immediately after they were examined-in-chief by counsel for the applicants.' 'As...