Page:Lehrmann v Network Ten Pty Limited (Trial Judgment).pdf/66

document or not?

MR WHYBROW: Yes, your Honour. We engaged in some preliminary discussions as to whether or not it might be able to be tendered and then simply made submissions on some of the matters, including some new matters without a Browne v Dunn point being taken.

HIS HONOUR: Yes.

MR WHYBROW: But some of those matters are so significant that it's our ---

HIS HONOUR: Well, one of the – well, I think I will have to hear argument about that because one of the things I did – and you may recall this – I did offer, I think on more than one occasion, the applicant to seek third party discovery, and I was told that, notwithstanding I was open – and that would have meant that this document would have been discovered by the third party, and secondly, also what would have been discovered is matters relating in Part 2 of that list when certain things were deleted. Now, I was told expressly you did not want that order. So this – you would have had a list of documents well in advance.

You would have been able to inspect this deed well in advance of the hearing, but a forensic decision was made by the applicant, notwithstanding, I said I was prepared to make such an order not to seek it. So in a sense, you're the author of your own misfortune in relation to that, it coming up during the hearing, so that's one thing I would want assistance about when it came to any application to bring a witness back to cross-examination, but I'm not going to determine that application now or hear you further in relation to it, because, no doubt, not only will – there may be some evidence about that. There may be all sorts of argument about it, but I just raise that because that, in my mind, is quite relevant a consideration. In any event, there's no reason why the document can't be tendered, so a document – unless there's any objection?

MS CHRYSANTHOU: Your Honour, so long as it doesn't prejudice our ability to oppose any application under section 46, it's tendered without objection, because we do oppose any application under section 46 to recall the witness, and we don't want it to be said that not objecting to the document in any way prejudices our ability to oppose that application, if it's persisted in.

HIS HONOUR: Well, I've provided you judicial advice, so ---

MS CHRYSANTHOU: Well, I object if the tender of the document is in aid of recalling the witness under section 46.

HIS HONOUR: Well, no, it's admissible and I'm going to receive it.

MS CHRYSANTHOU: Yes, your Honour.

DR COLLINS: We understood it to be implicit in the exchange between your Honour and Mr Whybrow that the argument about whether Ms Higgins ought be recalled, was an argument for an other day… I didn't mean literally another day.

HIS HONOUR: And the confidentiality issue will certainly be dealt with today. So that will become – the deed of settlement and release between the Commonwealth of Australia v Brittany Higgins will now become exhibit 59.

EXHIBIT #59 DEED OF SETTLEMENT AND RELEASE BETWEEN THE COMMONWEALTH OF AUSTRALIA AND BRITTANY HIGGINS

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