Lehrmann v Network Ten Pty Limited (Cross-Examination) [2023] FCA 1477

Lehrmann v Network Ten Pty Limited (Cross-Examination) [2023] FCA 1477

Because Network Ten and Ms Wilkinson had an identical interest on the vast bulk of issues concerning the applicant's evidence, the differences in their interests and pleadings were not sufficiently elaborated, the case was not legally or factually complex by modern litigation standards, and two broad cross-examinations by senior counsel risked lengthening the hearing and unfairly subjecting the applicant to duplicative credit attacks, it was just under s 26 of the Evidence Act 1995 (Cth) to limit any cross-examination by senior counsel for Ms Wilkinson to factual matters not covered by Network Ten and relating to topics on which Ms Wilkinson contends she has a different interest.

Jurisdiction
Australia
Judgment Date
27 November 2023
Procedural Posture
Defamation Proceeding / Interlocutory Ruling During Trial on Whether Counsel for Both Respondents Should Be Permitted to Cross Examine the Applicant
Outcome
Cross-examination by senior counsel for the second respondent was permitted only on a limited basis.
Legal Topics
['court Control Over Questioning of Witnesses' 'cross Examination by Multiple Counsel' 'fair Trial' 'substantial Truth Defence' 'qualified Privilege' 'identification' 'damages']
['evidence' 'defamation' 'civil Procedure'] ['court Control Over Questioning of Witnesses' 'cross Examination by Multiple Counsel' 'fair Trial' 'substantial Truth Defence' 'qualified Privilege' 'identification' 'damages']

Case Brief

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Procedural Posture

Defamation Proceeding / Interlocutory Ruling During Trial on Whether Counsel for Both Respondents Should Be Permitted to Cross Examine the Applicant

Legal Issues

  1. 1 ['Whether senior counsel for the second respondent should be permitted to cross-examine the applicant after cross-examination by senior counsel for the first respondent.' 'Whether any cross-examination by the second respondent should be prohibited or limited to avoid duplicative cross-examination and unfairness to the witness.']

Ratio Decidendi

Because Network Ten and Ms Wilkinson had an identical interest on the vast bulk of issues concerning the applicant's evidence, the differences in their interests and pleadings were not sufficiently elaborated, the case was not legally or factually complex by modern litigation standards, and two broad cross-examinations by senior counsel risked lengthening the hearing and unfairly subjecting the applicant to duplicative credit attacks, it was just under s 26 of the Evidence Act 1995 (Cth) to limit any cross-examination by senior counsel for Ms Wilkinson to factual matters not covered by Network Ten and relating to topics on which Ms Wilkinson contends she has a different interest.

Court Disposition

Cross-examination by senior counsel for the second respondent was permitted only on a limited basis.

Orders

  • ['Pursuant to s 26 of the Evidence Act 1995 (Cth), the cross-examination of the applicant by senior counsel for the second respondent be limited to factual matters relating to topics: (a) not covered during the cross-examination of the applicant by senior counsel for the first respondent; and (b) in respect of which...