Baxter v Willis (No 3)

Having spent almost the whole of the day yesterday dealing with the defendant's objections to the affidavits of the plaintiff (in circumstances in which the defendant is not giving evidence himself, I am told by Ms Nolan), and in circumstances where Ms Nolan submitted that the plaintiff could not prove his wagering turnover in this way and the accuracy of the document was not accepted, and as it appeared that no one on behalf of the defendant had actually analysed or reviewed the document, I directed Ms Nolan to consider and review the document overnight so that I could further consider her objection this morning.

This morning, Ms Nolan informed me that she had worked between 4pm to 2am on the document, that is, exhibit DB1 and had found many errors in it. In other words, in Ms Nolan’s submission, the document could not be considered accurate, because there were many errors in it. Again, the document purports to be a copy of various betting statements for customers of the plaintiff so as to demonstrate his wagering turnover. I asked Ms Nolan to identify the many errors to which she referred from the bar table. As the transcript records, she simply refused, indicating that she would not give evidence from the bar table and she could not be directed to.

Various other statements were made during the course of a discussion over a period of 15 minutes on the issue, but in the end it is fair to say that Ms Nolan refused to identify even one error in the document, despite saying that she had spent eight hours reviewing it last night and had observed many errors. At one stage, Ms Nolan said that she made notes and didn't have the piece of paper. I said I would give her time to find the piece of paper. She did not ask for that time to do so. The only inference I can draw from the refusal of counsel for the defendant to identify any errors in the document, despite suggesting she had found many, is that there are no errors in the document.

I can think of no explanation why counsel would refuse to identify even one error which she says she found. It may be that Ms Nolan did find many errors in the document, but I can hardly make a finding that the document is inaccurate or error-ridden without some basis for doing so.

In those circumstances, I will proceed on the basis that the document, in terms of the mathematics of the statements, is correct. Whilst Ms Nolan refers to the proper way of doing things and that it is up to the plaintiff to prove things properly, it is difficult to understand how the plaintiff could prove his annual wagering turnover other than by reference to the source documents.

That is, in this case, the source documents have been provided to the defendant. I have no reason to suspect that they are inaccurate. Because of the refusal of counsel for the defendant to indicate where the errors are in the document, I am left with no reason to infer that the sums referred to in par (4) are inaccurate. It would be fair to say that I have considerable concern about the refusal of Ms Nolan to identify the errors in the document, having said that there are many errors in the document.

Be that is it may, that is not a matter which I take into account for the purposes of assessing the admissibility of pars (4) and (5).

In my view, the plaintiff having exhibited the source documents on which the total is calculated and there being no basis for concluding that the source material is erroneous, then pars (4) and (5) are admissible, that is, par (4) and exhibit DB1.