Queensland Judgments


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  • Unreported Judgment

Spillane v Commonwealth Bank of Australia


[2002] QSC 300




Townsville No 1 of 2002







(ACN 123 123 124)



DATE 11/09/2002


HER HONOUR: A trial was conducted in the matter of Spillane v. The Commonwealth Bank of Australia before me sitting with a jury in Townsville commencing on 29 July this year. The trial ran for four days but concluded early on 1 August when at the request of both parties I was obliged to abort the trial because of misbehaviour by one of the jurors.

The trial had reached the stage where all of the witnesses had given oral evidence apart from one expert accountant who was being called by the plaintiff. The reason why that witness had not given his evidence was merely because his report in final form was not yet ready and the parties had consented to his evidence being heard out of order. Indeed his evidence would have been heard by the court had it not been for the fact that because of the haste in which the final report was produced there were insufficient copies for the jury when that witness came to Court.

I was informed during that trial that negotiations have occurred and now continue between the parties about whether or not the facts and opinions set out in the expert report are disputed. If they are not disputed then the evidence will be the report. If they are disputed I am informed and accept that the evidence will be the report, with whatever other evidence-in-chief the plaintiff wishes to lead from that witness, short cross-examination and the likelihood then that the defendant would wish to call a witness about whatever matter it is that remains in dispute about that report.

Apart from that matter all of the evidence was led. The evidence was led by way of oral evidence given by witnesses who with, as I recall it, one exception were present physically in Court. That one exception was a witness who gave evidence on the telephone because of his absence overseas. There appeared to be no disadvantage to either party by that witness giving his evidence in that way.

This directions hearing is to determine the form in which evidence will take when the trial commences before me on the 23rd of this month, which is less than two months after the trial was conducted before me with the jury in Townsville.

When the trial was aborted the situation was that the trial was a Townsville matter in the Townsville Registry and the plaintiff required a jury. The matter was in due course set down before Justice Cullinane in Townsville. Some two weeks after the trial had commenced on 29 July, the plaintiff gave notice that he no longer required a jury, so the trial was to be before a Judge alone. Justice Cullinane was however obliged to disqualify himself because of his knowledge of particular persons who were witnesses in the trial and so the matter was set down before me.

The parties have today told me that they are content, indeed they wish to, have the matter transferred to Brisbane for their own purposes although as I said to them I am more than happy to hear the matter in Townsville but as both parties wish it to be transferred to Brisbane I will agree to that and order its transfer to Brisbane.

So I now find myself in the situation where I have heard all of the evidence apart from that of one witness and the matter is to be tried before me again. So the question is in what form that trial should take. It does seem to me to be unnecessary that the witnesses who have already given evidence will be obliged to come to Court again and give the same evidence and be cross-examined in the same way.

It may be that there are forensic differences in the way in which counsel approach a trial before a Judge alone or a trial before Judge and jury but the fact is that the evidence that is admissible is exactly the same and the Judge is in the same position of having observed the witnesses and heard their evidence. I do not feel in any worse position with regard to evaluating the evidence having heard it when a jury was there than I would if a jury were not there.

It is important that matters in this Court are, in accordance with Rule 5, conducted justly and expeditiously. As Rule 5(1) says, “The purpose of these rules is to facilitate the just and expeditious resolution of the real issues in civil proceedings at a minimum of expense.”

A retrial which involved calling all of the same witnesses, as it appears it would, to give all of the same evidence before the same Judge appears to me would not be expeditious and nor can I see that it would facilitate the just resolution of the real issues at a minimum of expense. I have not made my final determination of any of the matters in the case. That awaits the completion of the evidence and the submissions of the parties.

It appears to me that both the just and expeditious resolution of the matters in issue in this particular proceeding would be assisted by requiring the evidence in the first trial to be evidence in the trial to commence before me on the 23rd of September. Of the arguments put forward by Mr Watson against this process one of them is that the plaintiff's counsel may have made an application to recall the plaintiff to deal with certain matters that were raised in the defendant's case. If that be so that application can be made before me in the trial that commences on the 23rd of September.

There appears to me to be no utility in having all of the witnesses give the evidence they have already given and being cross-examined on the same matters. It appears to me that the just and expeditious resolution of this case inevitably means that I should rule that the evidence given in the first trial be evidence in this trial. If any party wishes to make an application to lead additional evidence then they are free to do so.

Mr Watson has submitted that to make such an order would be not to comply with Rule 367(4)(h) which says that, “The Court may have regard in making its ruling to the requirement that each party must be given reasonable opportunity to lead evidence and cross-examine witnesses.” In my view no party has been denied the opportunity to lead evidence and cross-examine witnesses. Evidence has been led in full, witnesses have been cross-examined in full and as I have said if there is any additional evidence that any party wishes to lead then they can always make application before me to do so.

In the circumstances I am ruling that the evidence in the trial to commence before me on the 23rd of September consist, in the first instance, of the evidence which was given before me on the first trial on the 29th, 30th, 31st of July and the 1st of August.

HER HONOUR: Costs be costs in the cause.

HER HONOUR: The trial will commence before me on the 23rd of September in Brisbane. I order the transfer of the file to Brisbane and I direct that the evidence of the expert accountants may be given by telephone. I also direct that if any party wishes to recall any of their witnesses or to call any other witnesses, the plaintiff give notice of any witnesses it wishes to call or recall by 4 p.m. on Tuesday 17 September and that the defendant give similar notice by 4 p.m. on Wednesday 18 September.


Editorial Notes

  • Published Case Name:

    John William Spillane v Commonwealth Bank of Australia

  • Shortened Case Name:

    Spillane v Commonwealth Bank of Australia

  • MNC:

    [2002] QSC 300

  • Court:


  • Judge(s):

    Atkinson J

  • Date:

    11 Sep 2002

Litigation History

No Litigation History

Appeal Status

No Status