(b) The trial judge erred in permitting Mr Kanj to cross-examine Mr El Ghazzaoui pursuant to s 38(1)(c) of the Evidence Act 1995, in allowing Mr El Ghazzaoui's prior inconsistent statements to go into evidence, and in treating representations in the prior inconsistent statements as evidence of the truth thereof.
8 I turn to the first ground, namely, that relating to his Honour's refusal to allow the appellants to call witnesses to testify that Mr Kanj had suborned witnesses.
9 Counsel appearing for the appellants at the trial put to Mr El Ghazzaoui that Mr Kanj offered to give him money to be a witness. Mr El Ghazzaoui denied this. Counsel then put to Mr El Ghazzaoui that he told Mr Kanj that, for money, he would do whatever Mr Kanj wanted. Mr El Ghazzaoui denied this. Counsel put to Mr El Ghazzaoui that Mr Kanj told him that he should say, "one of the forklift drivers knocked the truck when at work" and offered to give him $10,000. Mr El Ghazzaoui denied these propositions. The same propositions were put to Mr Kanj, who also denied them. The questions identified the occasions when the offers were made, who was present, and what was said.
10 Later, during the course of the trial, counsel for the appellants sought to call two witnesses in order to prove that Mr Kanj had attempted to persuade Mr El Ghazzaoui to give false evidence, as counsel had put to Mr El Ghazzaoui and Mr Kanj. Counsel for Mr Kanj objected to these witnesses being allowed so to testify.
11 Counsel for Mr Kanj relied on UCPR 14.14(2)(a), which provides that a party must plead any matter that, if not pleaded specifically, might take the opposite party by surprise. He submitted that the suborning of Mr El Ghazzaoui amounted to an allegation of fraud, and this needed to be pleaded because that took him by surprise. Counsel for the appellants responded that the rule was limited to matters intrinsic to the cause of action. Johnstone DCJ remarked, "I disagree and the cases make it clear that the rule extends more broadly to matters going to the conduct of the trial generally in which it could be said that the plaintiff is taken by surprise by such matters."
12 In discussing the surprise rule generally, Hodgson JA in Kirby v Sanderson Motors Pty Limited [2002] NSWCA 44; (2001) 54 NSWLR 135 at [20] stated that the rule applies to material facts relevant to the cause of action relied upon. The dishonesty of a witness, testifying in support of a cause of action or defence in which dishonesty in any form is not an element, is not a material fact that has to be pleaded. In fact, as Mahoney JA observed in Ghazal v GIO of NSW (1992) 29 NSWLR 336 at 347F-G, in a case like the present (a standard motor accident claim), where fraud is neither an element of the claim nor a defence, the fraudulent or otherwise dishonest giving of evidence "is not a pleadable matter". As is made clear in Ghazal by Kirby P at 344G-346D and Mahoney JA at 347F-348A, the obligation of a party who wishes to contend that a witness has been suborned, or has given fraudulent or otherwise dishonest testimony, is to make clear at an appropriate time that the honesty of the witness's testimony is a real issue in the trial and the witness should be fairly confronted with the allegations in question.
13 Ghazal and the earlier case of Inzaurralde v GIO (Court of Appeal, 28 October 1992, unreported) were relied upon by Mason P (with whom Sheller JA and Powell JA agreed) in Jazairy v Najjar [1999] NSWCA (1999) 27 MVR 498 at 506 where his Honour said:
"It was not incumbent upon the Nominal Defendant to plead fraud in answer to a motor negligence claim: see Inzaurralde v GIO … ; Ghazal v GIO … . But the cases just cited emphasise the duty, in fairness, to confront a plaintiff with such a contention before it is proper to rely upon it as a possible answer to an otherwise clear case of negligence, … ."
14 The situation involving a witness who is said to be suborned is different from the situation in a case such as Glover v Australian Ultra Concrete Floors Pty Limited [2003] NSWCA 80. In Glover the defence contained a plea of non-admission and the defendant sought to advance an affirmative case. The court held that the affirmative case should have been pleaded. The underlying rationale for this decision was that the affirmative case constituted material facts that should have been pleaded so as to comply with the surprise rule. That situation is to be contrasted with a case such as the present where the defendant is not advancing new circumstances to support a denial of the plaintiff's allegations in his statement of claim, but is attempting to prove, simply, that a witness has given dishonest evidence. Put in another way, the allegation that Mr El Ghazzaoui had been suborned to give dishonest evidence was not a material fact in the appellants' defence.
15 A further aspect that I would stress is that no case management issues arose. The case was not managed in the District Court. There was no exchange of statements. At trial, the issue of potential delay caused by the proposed evidence was not taken up by counsel for Mr Kanj and was not considered by the judge. His Honour dealt with the question of whether the evidence should be allowed solely on the basis of a pleading point. Because his Honour thought that the attempt to suborn the witness should have been pleaded, he refused to allow the evidence to be led.
16 The appellants were not required to plead the attempt to suborn Mr El Ghazzaoui. Indeed, it was not a pleadable allegation. His Honour's reasoning in this respect was erroneous. The evidence the appellants sought to adduce was admissible under s 106(a) of the Evidence Act and the appeal must succeed on this ground alone.
17 I now turn to the second ground of appeal.
18 When Mr El Ghazzaoui first gave evidence in chief he stated that he could not say whether the forklift moved before Mr Kanj fell "because I am not there sitting watching what people are doing." He also said that he did not see the forklift move at any time before Mr Kanj fell off the truck. Counsel for Mr Kanj then made an application under s 38 of the Evidence Act to question Mr El Ghazzaoui as if cross-examining him "on the basis of prior inconsistent statements that have been made".
19 Counsel for the appellants objected on various grounds, including that under the section there were "a number of discretionary factors to be taken into account". Counsel referred to s 192 of the Act and submitted that there should be a voir dire "to test the validity of the statement as to whether he understands and knew what he was signing at the time".
20 Johnstone DCJ, however, rejected the submissions of counsel for the appellants and granted the application. He did not give any reasons for his decision.
21 Section 38, read with s 192 of the Evidence Act, required his Honour, in deciding whether to give counsel leave under s 38 to question Mr El Ghazzaoui "as though [he] were cross-examining the witness", to take into account the matters prescribed by s 192(2): Stanoevski v R [2001] HCA 4; (2001) 202 CLR 115 at [41] per Gaudron, Kirby and Callinan JJ.
22 It is not always necessary for a judge to refer expressly to the matters set out in s 192 when making a decision to which the section applies. In R v Reardon [2002] NSWCCA 203 Hodgson JA said at [30]:
"In my opinion, unless the contrary may be inferred from the circumstances or from what a judge does say, it should be assumed that a judge hearing a case will continually be having regard, in making such decisions as in the judge's other acts and omissions during the course of hearing, to … the matters referred to in s 192(2)."