Case Note: Landrey v Nine Network [2024]
Overview
A recent decision by the Federal Court in Landrey v Nine Network [2024] shines a new light on the importance of cross-examination. The Court also used this case as an opportunity to affirm the principle that leave should be sought to prevent cross-examination, rather than allow it.
The case involved an appeal for an extension of the one-year limitation period for a defamation proceeding pursuant to section 56A of the Limitations Act 1969 (NSW), which can extend the limitation period up to three-years. The Court ultimately found in favour of the appellant and held that it would not have been reasonable to pursue a civil defamation proceeding when a criminal trial concerning the same subject matter was already on foot.
This extension was granted largely due to the effect that concurrent trials would have had on procedural fairness for the appellant. The Court held that there was a high likelihood that cross-examination would have been required in the defamation proceeding during the initial one-year period which would have involved the same subject matter of the criminal proceeding before it had even begun. If this were to occur, the Court found that the appellant’s right to silence in the criminal trial would have been improperly affected.
Essential to this finding was the respondent’s failure to pursue the cross-examination of hearsay evidence submitted by the appellant. These documents were submitted as part of an affidavit by the appellant’s solicitor and largely included communications they had with the police and the Court, which ultimately supported a finding in the appellant’s favour. If the appellant had been cross-examined on this evidence, the respondent may have been able to prevent it from being admitted.
When Should Cross-examination be Considered?
The recent similar case of Lantrak Holdings Pty Ltd v Yammine [2023] FCAFC 156 established that during interlocutory proceedings such as this one, directions should only be made where cross-examination shouldn’t be allowed, rather than when it should. This finding was based on the wording of s 27 of the Evidence Act, which provides that “[a] party may question any witness, except as provided by this Act”. This means that the option for cross-examination will generally always be available, and that the burden is placed on the opposing party to seek leave to prevent it. This was the finding reaffirmed by the Court in the present case.
The facts of the present case also allowed for a direct comparison with the facts of Joukhador v Network Ten Pty Ltd [2021] FCAFC 37, where one party was similarly given the opportunity to request cross-examination but failed to do so. This allowed for the evidence to proceed unchallenged, despite the potential it had to affect the Court’s findings. The Court in the present case relied on this precedent, which demonstrates how important it is to cross-examine opposing evidence when the opportunity arises.
Future Considerations
Parties to an interlocutory proceeding should be aware of their right to cross-examination without the need to seek leave. Similarly, parties should also be prudent in seeking leave to prevent cross-examination where it may unnecessarily burden court procedures.
Also, when presented with the opportunity for a defamation proceeding, parties should be aware of the procedural issues that could arise if a criminal trial is already underway. This case clearly shows that it would not be considered fair to pursue both proceedings simultaneously.
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Case note co-authored by Kieran Bull, Paralegal at Elit Lawyers.