Locke v H.C. Loneragan & Company Pty Ltd as trustee for the Loneragan Family Trust t/as Quantum Forensic Solutions [2025] NSWCA 166

The fundamental concern of the rule in Browne v Dunn is to avoid unfairness to the witness and the party calling the witness. There was no breach of the rule in this case. Mr Locke did not give any evidence that was contradicted by the inferences the primary judge drew. Nor does the rule require a cross-examiner to put to the witness every construction of the witness’s conduct that would be legally adverse to the case of the party who called the witness: at [37]-[49], [51], [56]-[62].

Seymour v Australian Broadcasting Commission

[37] … Thirdly, the parties’ forensic choices may bear on the question whether in a particular case the absence of cross-examination on a topic leads to any unfairness, and the appropriate remedy if it does. It suffices for present purposes to observe that the rule is often invoked in two broad types of situation, which tend to overlap. Both categories are said to be relevant in the present case.

[48]…The rule is not that in every case in which it is infringed, the court is prohibited from drawing any inferences that would contradict the witness’s evidence. Glass JA made a strong statement to the opposite effect in Seymour (which involved a civil jury) at 225C: “it is going altogether too far to contend that evidence which would otherwise be relevant to a conclusion for which one party contends should be disregarded because its implications have not been put to the party against whom the inference is to be drawn.” His Honour’s statement must be understood in its context, including his Honour’s observation in the same paragraph that the remedy is essentially a matter in the discretion of the trial judge; see also at 236G-237A, 237F per Mahoney JA. Ultimately, the consequences of infringing the rule will depend on the circumstances of the case including any steps that were or might have been taken to remedy the infringement, and the extent and cogency of any other evidence relevant to the matter in issue.