In two recent decisions, the New South Wales Court of Appeal descended to, and exemplified the proper deployment of, the rule in Browne v Dunn (1893) 6 R 67 (HL), laid down by Lord Herschell 132 years ago.
In Locke v H C Loneragan & Co Pty Ltd [2025] NSWCA 166 (25 July 2025), McHugh JA – Bell CJ and Adamson JA agreeing – wrote:
[34] When Mr Locke entered the witness box, (a) the allegation that he had requested QFS to provide him with forensic accounting services was squarely in issue on the pleadings, (b) Mr Loneragan had given direct oral evidence in support of that allegation, and (c) there was a large body of contemporaneous documents from which to infer, consistently with Mr Loneragan’s evidence, that Mr Locke had requested QFS’s services. In those circumstances, the fact that Mr Locke did not give evidence denying that he had made such requests might have attracted the operation of the principles as to adverse inferences discussed in Commercial Union Assurance Co of Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389 at 418 per Handley JA, as explained in later cases such as Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361; [2011] HCA 11 at [63], fn 61 per Heydon, Crennan and Bell JJ and Nationwide News Pty Ltd v Rush [2020] FCAFC 115; (2020) 380 ALR 432 at [544] –[547]. It is true that Mr Locke did not bear the legal onus on this issue; QFS did. But in light of the body of evidence in the case, if Mr Locke had not given evidence at all, there is no doubt that QFS would have discharged its legal onus to prove the requests. Mr Locke bore a persuasive onus to answer that body of evidence. No attempt was made to do so. In the circumstances, it would have been open to infer, at least, that his evidence on that topic would not have assisted his case. The Court might also more readily draw inferences of the kind at J[161] in circumstances where Mr Locke, who would have been ideally placed to deny that he had made any such requests for services (if that were the case), failed to do so.
[35] Mr Locke’s Browne v Dunn complaint falls to be considered against that background. Although Ferrcom is concerned with principles of proof, and Browne v Dunn is principally concerned with fairness, such that they are not necessarily opposite sides of the same coin, that background does not assist Mr Locke.
[36] It is important to observe at the outset that Mr Locke’s complaint under Ground 3 is not that there was insufficient evidence to support the ultimate finding that he requested QFS to provide the forensic accounting services for which QFS sought payment. Mr Locke acknowledged that there was a wealth of evidence to support that finding (which included the direct evidence of Mr Loneragan). Instead, Ground 3 rests entirely on an asserted breach of the rule in Browne v Dunn. The gist of the complaint is that the primary judge should not have made the ultimate finding because it was based, in part, on inferences drawn from particular documents in circumstances where (although Mr Locke was cross-examined on some of the documents) the inferences sought to be drawn (in particular, that Mr Locke requested services at particular points in time) were not put directly to him.
[37] In the 132 years since Browne v Dunn was decided, the rule to which it gave its name has been subject to a good deal of elaboration, qualification and refinement. There are several reasons why it is undesirable to attempt to state the rule, or the consequences of its infringement, in comprehensive terms. First, the fundamental concern is to avoid unfairness to the witness and to the party calling the witness, and the situations in which unfairness may arise are many and varied. Secondly, at least if the issue is raised at trial, the appropriate remedy where the rule is infringed will be a question of practical justice. In that situation, depending on the nature of the breach, the remedy is essentially a matter in the discretion of the trial judge: Seymour v Australian Broadcasting Commission (1977) 19 NSWLR 219 at 225B per Glass JA (Reynolds JA agreeing); Bale v Mills (2011) 81 NSWLR 498; [2011] NSWCA 226 at [48] per Allsop P, Giles JA and Tobias AJA). The position may be different where, without warning, a trial judge makes an important adverse finding based on matters with which the witness was not given an opportunity to deal: see, eg, Kuhl at [70]–[72]. 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.
Contradicting a witness’s evidence
[38] The first category is where a party seeks to contradict the evidence given by a witness. That was the situation addressed in Allied Pastoral Holdings Pty Ltd v Cmr of Taxation [1983] 1 NSWLR 1. Hunt J stated the position as follows at 26E:
… unless notice has already clearly been given of the cross-examiner’s intention to rely upon such matters, it is necessary to put to an opponent’s witness in cross-examination the nature of the case upon which it is proposed to rely in contradiction of his evidence, particularly where that case relies upon inferences to be drawn from other evidence in the proceedings.
[39] The principal reason for this aspect of the rule is that it is unfair not to give the witness the opportunity both to explain or to qualify their own evidence, and to explain or qualify or deny the evidence relied upon to contradict it, especially where the contradiction is by way of inference. A second reason is that it gives the party calling the witness the opportunity to call corroborative evidence which might otherwise be unnecessary.
[40] To the extent that Mr Locke advanced a complaint in this category, it fails for two reasons. First, Mr Locke did not give any evidence which the inferences the primary judge drew contradicted. Secondly, even if Mr Locke had given evidence denying that he had requested QFS to provide the services for which it sought payment, his Honour’s ultimate finding to that effect would have been properly made in any event.
(emphasis added)
A link to the full decision is here.
In Smith v Blanch [2025] NSWCA 188 (15 August 2025), Kirk, Stern and McHugh JJA wrote:
[1] By a number of posts on a variety of platforms in January and February 2023 (the posts), the applicant posted messages about the first respondent (who for convenience we will refer to as the respondent) who is a transgender woman and has for 25 years been playing football, most recently for the Wingham Warriors, a community team in a small town on the Mid North Coast of New South Wales. The applicant is a spokesperson for an organisation called Binary Australia, which she says is “dedicated to upholding the reality of biological and binary sex”. The posts sometimes included a clearly identifying photograph of the respondent and (albeit without naming her) described her as the “bloke in the frock” playing for a women’s football team in Wingham. At the time the respondent was the only transgender woman on that football team.
[2] In the posts, the applicant aired, in no uncertain terms, her sincerely held beliefs that Football Australia, Football New South Wales and Mid North Coast Football should not permit transgender women to participate in women’s football and, more particularly, that the respondent should not be allowed to play women’s football. As is pellucidly clear from our summary of the posts set out below, in these posts the applicant also singled the respondent out for public attention in the applicant’s broader campaign against transgender women participating in women’s sport. The posts included photographs of the respondent which clearly identified her to anyone familiar with her appearance.
[3] In light of this conduct, on 11 February 2023 the respondent filed a police report and on 1 March 2023 sought in the Local Court an apprehended personal violence order (APVO) under s 19 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) (the Act; unless otherwise indicated, all references to sections of legislation are to the Act). In her application the respondent relied upon a number of matters, including that she feared for her safety.
[4] On 31 January 2024 Magistrate Hawkins accepted that the respondent had fears of harassment and that the conduct of the applicant amounted to harassment of the respondent, but found that that conduct, which the respondent had reasonable grounds to fear and did in fact fear, was not sufficient to warrant the making of an APVO (we describe a finding such as this last finding as a “sufficiency finding”).
[5] The respondent appealed to the District Court under s 84(2)(a1), challenging the sufficiency finding. On 4 September 2024, the applicant filed a notice that she intended to raise matters arising under the Constitution in accordance with s 78B of the Judiciary Act 1903 (Cth). In essence, she contended that she had engaged in the relevant conduct in her capacity as a political advocate for Binary Australia, this formed part of her political communications and advocacy and s 19 disproportionately burdened the constitutionally protected freedom of political communication. In response, the Attorney General of New South Wales intervened, and was joined as a party, in the proceedings (and is the second respondent in the application now before the Court). The third respondent to this application, the District Court of New South Wales, has filed a submitting appearance.
[6] On 20 December 2024 Wass DCJ upheld the respondent’s appeal and made an APVO against the applicant: Blanch v Smith [2024] NSWDC 631 (J).
…
[88] The applicant contends that the primary judge denied her procedural fairness in inferring that, in making the 21 November 2024 post, she intended to intimidate or harass the respondent when that was not put to the applicant in cross-examination. She contends that the rule in Browne v Dunn at 70 –71 precluded the primary judge from drawing such inference unless the proposition that the applicant intended harassment by that post had been put to her in cross-examination or submissions had made it “very clear” that a submission to that effect would be made if the applicant was not called to say something to the contrary. More particularly, the applicant says that it was never put to her in cross-examination in the Local Court that in the posts (which necessarily at that time did not include the 21 November 2024 post) she had intended to harass the respondent.
[89] The 21 November 2024 post was tendered at a hearing on 12 December 2024, after her Honour adjourned the proceedings on 18 October 2024, reserving judgment. Mr Shamsabad, the solicitor then representing the applicant, opposed the tender of the 21 November 2024 post on the basis of relevance and that it was not in the interests of justice that the post be admitted into evidence, but was content for the primary judge to see the post in order to rule on whether it should be admitted. In the course of submissions as to this, her Honour asked Mr Shamsabad why the post would “not be relevant in determining whether or not without a Court order the respondent would continue similar posts” and why it “wouldn’t … be fresh evidence that’s relevant to whether or not an order is required”, and said that “it is some evidence that goes to a willingness on behalf of the [applicant] to continue as she had and indeed as she has in from what I see from the Twitter post”. The following interchange then occurred:
HER HONOUR: It speaks to the fact that she doesn’t on any view think that what she did was harassment, despite a finding by the Local Court Magistrate and which would go, I would have thought to the likelihood of re-posting.
SHAMSABAD: Re-posting in what respect might I-—
HER HONOUR: In the same respect as was dealt with by the learned Magistrate.
SHAMSABAD: Your Honour I can understand the inference which your Honour wishes to draw there or could draw there. …
[90] The primary judge decided to admit the evidence and gave Mr Shamsabad the opportunity to call evidence from the applicant in response to the material, which he declined. In submissions as to the relevance of the post, counsel for the respondent contended:
I think it shows a willingness on the part of the [applicant] to keep identifying our client … [I]t is of some concern that the [applicant] is conducting herself in that manner when the appeal judgment is still pending and also after being present for oral argument. And so, we submit that as a result your Honour may not have confidence in the appropriate conduct of the [applicant] in the absence of an order being made.
[91] She also submitted that the Twitter post “again misgendered” the respondent and that “it was [the applicant’s] decision” to attach a link to the Daily Telegraph article to the post, which contains comment from the applicant (referred to at [29] above).
[92] During the hearing on 12 December 2024, it was clear that the primary judge might rely upon the 21 November 2024 post in determining whether the applicant would continue similar posts, and that “that is consistent with an intention to continue to advocate in a similar way”. The applicant contended, however, that it was nonetheless necessary, as a matter of fairness, that it be put to the applicant that she intended to intimidate or harass the respondent (we would infer either by way of cross-examination or in the course of submissions).
[93] In Browne v Dunn, Lord Herschell LC said at 70–71:
My Lords, I have always understood that if you intend to impeach a witness you are bound, whilst he is in the box, to give him an opportunity of making any explanation which is open to him; and, as it seems to me, that is not only a rule of professional practice in the conduct of a case, but is essential to fair play and fair dealing with witnesses.
[94] The rule has been described as “essentially that a party is obliged to give appropriate notice to the other party, and any of that person’s witnesses, of any imputation that the former intends to make against either of the latter about his or her conduct relevant to the case, or a party’s or a witness’ credit”: MWJ v R [2005] HCA 74; 80 ALJR 329 at [38]. In Kuhl v Zurich Financial Services (2011) 243 CLR 361; [2011] HCA 11 at [71] –[74], Heydon, Crennan and Bell JJ held that the rule in Browne v Dunn was a condition which not only applied as between the parties to litigation, but also conditioned the findings which a trial judge may make: see also MWJ v R at [39].
[95] The rule in Browne v Dunn is directed to ensuring procedural fairness in litigation: Scott v Scott [2022] NSWCA 182 at [64]; see further Locke v H.C. Loneragan & Company Pty Ltd as trustee for the Loneragan Family Trust t/as Quantum Forensic Solutions [2025] NSWCA 166 at [37]. Ultimately, where Browne v Dunn is relied upon, the question is whether, having regard to the conduct of the case as a whole, the relevant party has been put on notice that the adverse inference may be drawn: Allied Pastoral Holdings Pty Ltd v Cmr of Taxation (Cth) [1983] 1 NSWLR 1 at 16; Scott v Scott at [65] –[67].
[96] Whilst we would accept that the inference the primary judge drew as to the applicant’s intention when making the 21 November 2024 post is an imputation against her conduct such that the rule in Browne v Dunn might apply, we are not satisfied that the primary judge’s inference that the applicant intended harassment by the 21 November 2024 post, as described above, was sufficiently different as a matter of substance from the matters raised during the hearing on 12 December 2024 that it had to be specifically put to the applicant or Mr Shamsabad before the primary judge could fairly make such finding. The primary judge made it clear during the hearing that she might rely upon the 21 November 2024 post to find that the applicant intended (had a “willingness”) to continue as before, in circumstances where the learned Magistrate found that the applicant’s conduct was harassment. Those were precisely the matters relied upon by the primary judge to support the inference that the applicant intended to intimidate or harass the respondent. In these circumstances, there was no unfairness in her Honour reaching that finding.
[97] In any event, the primary judge made it clear in her reasons at J[37] that her finding as to the applicant’s intention in the 21 November 2024 post had “had no material effect on the outcome other than it may be relevant to the terms of any orders made”. That suggests that the true relevance of the primary judge’s intention was as regards the willingness of the applicant to repost, a matter that was expressly put to Mr Shamsabad at the hearing on 12 December 2024. Self-evidently, such matters could not have been put to the applicant directly as she declined the opportunity to give further evidence.
…
(emphasis added)
A link to the full decision is here.
