HIS HONOUR: Who are you making the call to?
MR WHYBROW: Mr Zwier. I understand he's in court.
HIS HONOUR: That's not a call [to a party]. So you're seeking an order ---
MR WHYBROW: Sorry.
HIS HONOUR: --- under section 36 ---
MR WHYBROW: I apologise. Yes.
HIS HONOUR: Section 36 of the Evidence Act ---
MR WHYBROW: Yes.
HIS HONOUR: --- directed to someone who's within the confines of the court, being Mr Zwier, for production of the deed.
MR WHYBROW: Yes, your Honour.
MS CHRYSANTHOU: I object to that order being made, your Honour, on the basis of relevance.
HIS HONOUR: Well, it's apparently relevant. I mean, the witness has given evidence about what the settlement was and what it involved, including an admission of liability by the Commonwealth, and there may or may not be permissible questions based on it, but it's a much lower standard, being apparent relevance.
MS CHRYSANTHOU: Yes, your Honour.
HIS HONOUR: Yes. Mr Zwier, is there anything to produce?
MR L. ZWIER: Your Honour, I can't say I was really prepared for this moment.
HIS HONOUR: Well, here you are. You're in the spotlight.
MR ZWIER: I know. I know. I can't see that it's relevant, but I've heard your Honour's observations about that. I'm not sure, even if your Honour is inclined to make an order to require to me to produce, that–I should have it, but I would have to check.
HIS HONOUR: All right. Thank you. Yes.
MR WHYBROW: Thank you. Just excuse me one moment, your Honour. Your Honour, Ms Higgins, they're my questions in cross-examination.
225 Ms Higgins proceeded to complete her re-examination and was excused (T1033.15). I recall turning my mind at the time as to whether I should excuse the witness notwithstanding an outstanding order for production directed to her solicitor, but given my (admittedly impressionistic) perception of Ms Higgins' condition following the long cross-examination and in the absence of knowing what was in the Commonwealth Deed (and hence knowing there would be any allegation of a prior inconsistent statement), and the absence of any application, I considered it prudent to excuse her, so to relieve any concerns she may have that any further cross-examination was likely to take place.
