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[2011] NSWSC 203
Supreme Court of NSW
2011-03-11
Harrison J
Original judgment source is linked above.
Judgment 1HIS HONOUR : The first defendant moves the Court by notice of motion filed in court on 11 March 2011 for the following relevant orders: (1)1. An order that a witness in the proceedings, Oliver Taylor, be recalled. (2)An order pursuant to s 38(1) Evidence Act 1995 that the first defendant have leave to question Oliver Taylor, a witness in the proceedings, as though the first defendant were cross-examining the witness, about: (a)evidence given by the witness that is unfavourable to the first defendant, or (b)a matter of which the witness may reasonably be supposed to have knowledge and about which it appears to the Court the witness is not, in examination in chief, making a genuine attempt to give evidence, or (c)whether the witness has, at any time, made a prior inconsistent statement. (3)An order pursuant to s 38(1) Evidence Act that the first defendant have leave to question Oliver Taylor about matters relevant only to the witness's credibility. 2Section 38 of the Evidence Act is relevantly in these terms: " 38 Unfavourable witnesses (1) A party who called a witness may, with the leave of the court, question the witness, as though the party were cross-examining the witness, about: (a) evidence given by the witness that is unfavourable to the party, or (b) a matter of which the witness may reasonably be supposed to have knowledge and about which it appears to the court the witness is not, in examination in chief, making a genuine attempt to give evidence, or (c) whether the witness has, at any time, made a prior inconsistent statement. (2) Questioning a witness under this section is taken to be cross-examination for the purposes of this Act (other than section 39). (3) The party questioning the witness under this section may, with the leave of the court, question the witness about matters relevant only to the witness's credibility. (4) Questioning under this section is to take place before the other parties cross-examine the witness, unless the court otherwise directs. (5) If the court so directs, the order in which the parties question the witness is to be as the court directs. (6) Without limiting the matters that the court may take into account in determining whether to give leave or a direction under this section, it is to take into account: (a) whether the party gave notice at the earliest opportunity of his or her intention to seek leave, and (b) the matters on which, and the extent to which, the witness has been, or is likely to be, questioned by another party. (7) ..." 3The first defendant's application is supported by an affidavit of its solicitor Brendan Anthony George Moylan sworn 10 March 2011. The facts are not in dispute and are for present purposes as follows. 4Mr Taylor was called by the third defendant to give evidence on 15 December 2010. The first defendant has a common interest with the third defendant and only asked Mr Taylor questions in chief. His evidence is relevant to the issue concerning the loading of aircraft operated by Pay's Air on 23 November 2000 at the Krui airstrip. One of those aircraft sprayed the same fields on the plaintiff's property "Telleraga" that the plaintiff alleges were damaged by the herbicide glyphosate that drifted from the first defendant's property "Boonaldoon" on 24, 25 and 26 December 2000. 5The first defendant contends that Mr Taylor's evidence about how Pay's Air aircraft were loaded, what they were loaded with, and what occurred on the Krui airstrip on 23 November 2000 is relevant to determining the issue of whether what was sprayed from a Pay's Air plane on that day was the cause, or a possible cause, of the damage to the plaintiff's crops. An expert witness for the first and third defendants, Mr Ghirardello, has given evidence of a conversation with Mr Taylor on 2 January 2001 about what occurred at Krui on 23 November 2000. He has produced notes that purport to be notes of that conversation. 6The plaintiff obtained an affidavit from Mr Taylor sworn on 27 November 2010. In that affidavit, Mr Taylor disagrees with Mr Ghirardello's account of their conversation. When asked to serve all of its evidence in reply, the plaintiff disclosed the existence of Mr Taylor's affidavit, but sought an order that it not be disclosed to the defendants. The first defendant sought an order that the affidavit be served on it. The plaintiff offered to permit the first defendant's counsel to see the affidavit subject to certain undertakings. That offer was refused. The plaintiff produced the affidavit to me at the hearing of the application. I read that affidavit and subsequently dismissed the first defendant's application on 13 December 2010. 7The third defendant called Mr Taylor on 15 December 2010. The first defendant sought leave to cross-examine him, but agreed to call him as a witness in its own case and asked him questions in chief without knowledge of what Mr Taylor had said in his affidavit. The plaintiff then cross-examined Mr Taylor with knowledge of the contents of his affidavit. The contents of Mr Taylor's affidavit were ultimately disclosed to the defendants on 9 March 2011. 8Part of Mr Taylor's evidence given on 15 December 2010 was as follows: "Q. Do you have a recollection of being at work for Pay's Air on 23 November 2000? A. Yes. Q. What do you recall about that day? A. I went in early to work to set up all the chemicals and product for the jobs for that day which I normally done on every job. Then I went away to an airstrip away from Krui and they started the job off Krui, and I got back there at 2.45 in the afternoon and helped finish the job that was ongoing.
Q. You left the premises after setting up the job? A. Yes. Q. About what time did you leave the premises? A. About 7.30. Q. So between 7.30am and 2.45pm you have no knowledge of what was going on? A. No. Q. On the Krui airstrip? A. No." 9Paragraphs 14 to 16 of Mr Taylor's affidavit were in these terms: "14. There are two possibilities in relation to the work on 23 November 2000, being: (a) The Kamilaroi job was done from Moomin airstrip which was about 30 km west of Krui airstrip and was one of the satellite airstrips Pay's Air used in November 2000. (b) The Kamilaroi job was done from Krui airstrip as well. 15. Although I cannot recall exactly, my best recollection is that the Kamilaroi job was done from Moomin. I say this because I recall that the Tellerega job had already started by the time I got to Krui. I will set out my recollections about this below. If the Kamilaroi job was done from Moomin, I would not have got back to Krui until about 2pm, being after the Kamilaroi job finished. 16. If, however, the Kamilaroi job was done from Krui, Mick and I would have both worked on both jobs together. This was our invariable practice. Also, the Kamilaroi and the Tellerega jobs would have occurred from different mixing stations, because they were using different chemical supplied by different suppliers and were jobs for different customers." 10The first defendant contends in these circumstances that Mr Taylor should be recalled because his affidavit contains statements that are inconsistent with the evidence that he gave to the Court on 15 December 2010. Had the affidavit been disclosed to the first defendant at that time, it would have had an opportunity to make an application pursuant to s 38 before Mr Taylor's evidence had been completed. The first defendant submitted that it was precluded from making such an application because I had declined to order the plaintiff to serve Mr Taylor's affidavit, and the first defendant did not know what it contained. The first defendant submitted that the dictates of justice required that Mr Taylor be recalled in order to ensure that the first defendant received a fair hearing: ss 56 and 58 Civil Procedure Act 2005 . 11The first defendant acknowledged that the fate of the application to recall Mr Taylor and the s 38 application went hand in hand. The s 38 application was based on two propositions. First, that Mr Taylor was an unfavourable witness for the first defendant as contemplated by s 38(1)(a): his evidence conflicted with the evidence of Mr Ghirardello about the conversation between them at the Krui airstrip in January 2001. Secondly, that Mr Taylor had made a prior inconsistent statement as contemplated by s 38(1)(c): Mr Taylor's affidavit is inconsistent with his 15 December 2010 evidence. 12The first defendant acknowledged that it first gave notice of its intention to seek leave under s 38 on 4 March 2011. It contended that it could not reasonably have been required to decide whether to make the application to cross-examine Mr Taylor until it had had the opportunity to see his affidavit that had been embargoed by my 13 December 2010 order. Given the attack on Mr Ghirardello's credit in cross-examination on behalf of the plaintiff, notice of intention was given before the completion of his evidence and in the first defendant's submission as soon as possible at the end of his cross-examination. 13The first defendant contended that whereas the plaintiff's cross-examination of Mr Ghirardello directly placed his truthfulness in issue, Mr Taylor has not been similarly tested. It was contended that I will be faced with the task of having to decide whether Mr Ghirardello or Mr Taylor is telling the truth, but without the benefit of having Mr Taylor's evidence and credibility properly tested unless or until he is recalled. That is said to be highly undesirable and potentially unjust to the first defendant. 14Moreover, the evidence is said to be very important because the plaintiff has established through the evidence of Mr Ward and Mr Pay, that Pay's Air sprayed the very fields which the plaintiff alleges were damaged with an unidentified 'product' on the day before the first defendant commenced its spraying on Boonaldoon. The first defendant is concerned that unless Mr Taylor is cross-examined, it may be estopped from submitting that his evidence should be accepted: Seymour v Australian Broadcasting Commission (1990) 19 NSWLR 219 at 236 as follows: " Browne v Dunn provides an illustration of one of the ways in which a trial may miscarry. Where, in a civil case, a witness is not cross-examined, it may normally be assumed that the evidence of that witness is not in contest. Therefore, as was there decided, in such a case a party who has not cross-examined a witness will not normally be entitled to submit in address that the witness's evidence should not be accepted. But the circumstances of the particular case may negative such an assumption. Whether it is right to make such an assumption will depend upon, for example, whether counsel has at the time, given an adequate reason for not cross-examining the witness or otherwise made it clear that it is not a proper case in which to make that assumption: ibid at 71 per Lord Herschell LC. It may be that the witness's evidence is fanciful or such as not to warrant cross-examination: ibid at 79 per Lord Morris; or that cross-examination is foregone for other adequate reasons, for example, delicacy: see Phipson on Evidence , 12th ed, (1976) par 1543 at 618-619 and Halsbury's Laws of England 4th ed, vol 17, par 278 at 194. Similarly, failure to cross-examine a witness may not found such an assumption or render the course of the trial unfair if it is clear from the manner in which generally the case has been conducted that his evidence will be contested." 15I was also referred to what was said by Bergin J in Multiplex Constructions Pty Ltd v HSH Hotels (Australia) Ltd [2003] NSWSC 1069; (2004) 20 BCL 321 at [52] ff. 16The significant point of difference on this application between the first defendant and the plaintiff was whether s 38(1)(a) or (c) could be satisfied. Mr Hancock of counsel who, with Mr Donohoe and Mr Martin each of counsel, appears for the first defendant, made the following submission: "If I deal with the question of unfavourability, because there are three bases upon which a witness might be recalled under section 38 ... Unfavourability, knowledge and prior inconsistent statement. This application is put firmly and primarily on the basis of section 38(1)(c), namely that the witness Oliver Taylor who was called on 15 December 2000 by both the third defendant and the first defendant, is a witness who has made a prior inconsistent statement. That prior inconsistent statement is contained in the affidavit which is exhibit 1 on the application. And it is identified with precision at paragraph 16, 17 and 18 of Mr Moylan's affidavit... The application is also put on the basis that Mr Taylor is a witness who is unfavourable to the defendants. The unfavourability is to be inferred from the evidence that he gave, the whole of which is annexed to Mr Moylan's affidavit. " 17The first defendant submitted that, on the one hand, Mr Taylor has shown himself to be a witness who says to the Court on oath "I wasn't there", and in an affidavit sworn two weeks previously says, "I can't remember". The substance of the application is that the first defendant should be permitted to cross-examine Mr Taylor on his credibility on those matters that are derived from his recollection as he sets them out in paragraphs 14, 15 and 16 of his affidavit. It was said to be those inconsistencies that satisfied the requirements of s 38(1)(c). 18Although the application based upon s 38(1)(a) was not abandoned, it is fair to say that it was advanced with less emphasis than the application under s 38(1)(c). 19In Kanaan v Regina [2006] NSWCCA 109 at [83], the Court said this: "[83] Section 38 of the Evidence Act abrogated the common law relating to hostile witnesses, by enabling a party calling a witness to obtain leave to question his own witness as though cross-examining that witness about evidence which is unfavourable to that party - in order, for example, to establish that the witness has made a prior inconsistent statement. The word "unfavourable" means merely "not favourable", and it is no longer necessary for the party seeking leave to demonstrate that either the witness or the evidence given is hostile to that party: Regina v Souleyman (1996) 40 NSWLR 712 at 715; or that the unfavourable evidence was unexpected: Regina v Adam (1999) 47 NSWLR 267 at [99]. Leave to cross-examine, once granted, does not permit the Crown to undertake a general cross-examination; it is restricted initially to the ground on which leave was granted: Regina v Le at [55]. However, it may range more widely: Ibid at [59], [63]. In the present case, for example, it would have permitted not only cross-examination on any prior inconsistent statement made by Mrs Zahabe in order to prove that the prior statement was true and that the evidence given was false, and also to suggest that bias in favour of the appellants was the reason for the inconsistency: Ibid at [67]." 20In R v Pantoja [1998] NSWSC 565 at 51 the Court said this: "Although the heading to s 38... is 'unfavourable witnesses', the section itself refers to 'evidence' given by a witness and... leave can be granted to cross-examine a witness on part only of his evidence if it is unfavourable to the party calling him or inconsistent with a prior statement made by the witness, even though the rest or most of the rest of the witness's evidence is favourable to the party calling him." 21The provision does not permit general cross-examination: see R v Hogan [2001] NSWCCA 292. However, in R v Le [2002] NSWCCA 186; (2002) 54 NSWLR 474 at [67], Heydon JA said: "[67] In my opinion, on the true construction of s 38, leave may be granted under s 38 to conduct questioning not only if the questioning is specifically directed to one of the three subjects described in s 38(1), but also if it is directed to establishing the probability of the factual state of affairs in relation to those subjects contended for by the party conducting the questioning or the improbability of the witness's evidence on those subjects. In establishing the probability or improbability of one or other state of affairs, the questioner is entitled to ask questions about matters going only to credibility with a view to shaking the witness's credibility on the s 38(1) subjects." 22In Klewer v Walton [2003] NSWCA 308 at [20], Hodgson JA expressed the view that evidence that was simply "neutral" did not come within the meaning of the word "unfavourable" in s 38(1)(a). In Adams v The Queen [2001] HCA 57; (2001) 207 CLR 96 at [27] it was said that: "[27]... There appears much to be said, however, for the view that to give evidence which, at best, is unhelpful to the party calling it, and to do so without "making a genuine attempt to give evidence", is to give evidence "unfavourable" to that party." 23Mr Maconachie of Queen's Counsel who, with Mr Docker of counsel, appears for the plaintiff, contended that Mr Taylor's evidence was not unfavourable to the first defendant as properly understood, nor had he made a prior inconsistent statement. However, his first submission was that the orders sought should be refused on discretionary grounds. He said this: "Another matter, going to discretion, and one which is of considerable importance is that it was [the defendants] who chose to call Mr Taylor before they chose to call Mr Ghirardello. The burden of the order made by your Honour was to ensure that Mr Ghirardello was cross-examined about what Mr Taylor had told him before Mr Ghirardello saw what Mr Taylor said... (Markus v Provincial Insurance Co Ltd)... trying to find out the truth of the matter. For reasons that no doubt were of importance to [the defendants] Mr Taylor was called before Mr Ghirardello was called. Accordingly, by that very forensic decision, they put themselves in a position whereby they couldn't see the document before Mr Ghirardello gave his evidence. If they had taken the other course, that is to say, I will call Mr Ghirardello first then I will call Mr Taylor, they would have been in a position whereby after Ghirardello had been cross-examined they could have successfully made an application to see the affidavit without any constraints of any kind and would have had the opportunity then to determine whether there were or were not any inconsistencies that might have permitted them to cross-examine him, so that forensic decisions made for forensic purposes can't assist the application: they can only go to the discretionary questions or issues which your Honour has to deal with." 24The plaintiff submitted in any case that there was no inconsistency. Mr Taylor's qualified statements, such as that he could not remember exactly , or that he gave evidence according to his best recollection was no more and no less than what witnesses do on a regular basis. This was said to be "not even close to being an inconsistency". Mr Taylor had not relevantly made a prior inconsistent statement. 25The plaintiff's submissions on the question of unfavourable evidence were just as blunt. Mr Maconachie said: "Merely calling somebody who gives evidence that you don't like cannot attract the unusual circumstance of leave being given to cross-examine. It would stand the orderly presentation of cases on [its] head." 26The plaintiff contended that parties to litigation invariably have some opportunity to speak to witnesses before they are called in their case. There is no suggestion in this application that the first defendant did not have an opportunity to speak to Mr Taylor before he gave evidence. If the evidence that Mr Taylor then gave was evidence that is against the first defendant's case, that cannot of itself amount to unfavourable evidence because it must necessarily have been anticipated that that is what he would say. The decision was made to call the evidence anyway. The plaintiff submitted that unfavourability must carry with it some idea of evidence that is given but which it was not expected or anticipated would be unfavourable. There must be some element of surprise, because otherwise the operation of the provision would be inconsistent with the common law system of the presentation of cases in an orderly fashion. 27Moreover, the plaintiff submitted that the so-called unfavourability did not in any event arise out of anything said by Mr Taylor in his affidavit, but out of the evidence that he gave in chief. No application was made then for him to be cross-examined as an unfavourable witness at that time. The evidence he gave was accepted without complaint at that point. This was said to be important because of the requirement that questioning under s 38 is to take place before the other parties cross-examine the witness, unless the Court otherwise orders: s 38(4). 28Finally, the plaintiff submitted that "absolutely central" to this case is the question of whether or not what was put into the aircraft on 23 November 2000 was Microsol or glyphosate. The plaintiff emphasised that there was not a single mention of the word glyphosate in Mr Taylor's discussion with Mr Ghirardello and, that being the case, cross-examining Mr Taylor about whether the difference between what he said in the affidavit under the umbrella of " I can't recall exactly but my best recollection is " was destined to be of little moment in the scheme of this case.
Consideration 29It is important in my view to bear in mind the nature of the comparison that has necessarily been identified in this application. That is the comparison between what Mr Ghirardello said occurred and what Mr Taylor said occurred in early 2001. Mr Ghirardello says that he spoke to Mr Taylor in February 2001. He made notes of the conversation. The notes are now in evidence. Mr Ghirardello has been cross-examined at considerable length about his recollections of the conversation, among many other topics. His credit has been challenged concerning the particular conversation in question. 30It will be recalled that before Mr Taylor gave evidence, a discussion took place, which the transcript recorded as follows: "LLOYD: Thank you your Honour, for dealing with those objections in chambers. That means that we're now in a position to call Mr Oliver Taylor who is here and outside court. There's one thing to save time, and I want to say to your Honour for the benefit of my learned friends Mr Maconachie and Mr Docker. I've had the benefit of a conference with Mr Taylor this morning. We had prepared an outline of his evidence which he has seen. There are parts of it with which he agrees and parts of it with which he disagrees. What I had proposed is to take him through that outline to save some time and get him to identify parts that he disagrees with and then make an application to your Honour under section 38 of the Evidence Act for what will be some very brief cross-examination about his recollection in relation to those parts that he disagrees with. HIS HONOUR: I'm intrigued at how the statement came to be prepared with which he doesn't agree. LLOYD: It's based on Mr Ghirardello notes. MACONACHIE: It's an unusual course for my learned friend to adopt whether the outline of evidence is adopted and if it isn't. If it isn't the evidence should be taken viva voce in the ordinary way. HIS HONOUR: Subject to, if the statement contains material with which he doesn't agree and to which he will not attest, but a statement from him is proposed to be tendered and relied upon. Wouldn't the preferable course be to excise or redact those matters that he will not agree with. MACONACHIE: He is effectively being cross-examined by the people calling him. It's put in front of him, a version prepared by someone else and he is asked does he agree with it or not. HIS HONOUR: I was suggesting this happen outside court. If they wanted to proffer a statement by him and he said I'll sign off on the following, then that's effectively, the third defendant or the party may choose not to call him or rely upon a statement. LLOYD: I'm content to adopt that. It's just the difficulties of time resulted in my not having done that. I'm content to do it. I met with him at 20 past 9 and took the time before court to go through it. " 31It was clearly the case that before Mr Taylor was called, the third defendant at least appreciated that there was a dissimilarity between Mr Ghirardello's version and Mr Taylor's version of what occurred and what was said when they met at the airstrip in January 2001. Mr Taylor then proceeded to give his evidence, which included the following: "Q. Have you met a gentleman by the name of Fred Ghirardello? A. Yes. Q. Do you remember when? A. I remember talking to him probably in January, some time around as far as I can remember. Might have been late, it might have been earlier. I just recall the name because it's a pretty easy sort of name you can remember. Q. When you say January, do you know which year? A. No. Q. Was it a fairly short period after the Telleraga job? A. I'd say yes. Q. I'm just trying to explore with you Mr Taylor whether, in your recollection, it was likely to be January 2001 or January in a later year? A. Probably 2001 as far as I can remember. As I said it was a long time ago. Q. To be fair, that would put it some time around 2 months after the Telleraga job? A. Yes. Q. Do you have a recollection of what occurred when you met Mr Ghirardello? A. Yes, I just thought he was a - we often got people in there who just come in and take photos of the aeroplanes and check things out, how things work, and I thought it was just banter with someone coming in to have a look around. Q. Dealing with that meeting with Mr Ghirardello, is your memory of that meeting based on your recollection or do you have a note? A. No, just partially got a recollection, bits and pieces of it. Q. It's just what you can remember sitting here telling his Honour? A. Yes. Q. Have you made a statement in relation to that meeting in writing? A. Not in writing - yes I have, sorry. Q. When did you make that statement? A. Two to 3 weeks ago. Q. What were the circumstances in which that statement was prepared? A. It was done after an interview. Q. Who was that interview with? A. With Turks Legal. Q. Do I understand it to be the position that that is the first time that you prepared a statement dealing with the events of the meeting with Mr Ghirardello? A. Yes. Q. You don't have a note? A. No. Q. Do you have anything recorded in a diary - A. No. Q. - in relation to that meeting? A. No. Q. Going back to the events at Krui on 23 November 2000, are you relying on your memory in relation to what you've told his Honour about what occurred on that day? A. Yes. Q. Do you have a note of what occurred on that day? A. No. Q. Have you made a statement in writing in relation to what occurred on that day? A. No.
Q. Mr Taylor, we're now talking about the events of 23 November 2000. I think I'd asked you whether you'd made a statement about the events of that day? A. No. Q. Your answer to that question is? A. No. Q. That you haven't made a statement? A. Hadn't made in statement in November, no, on that day.
Q. Mr Taylor, have you ever made a statement in writing about the events of 23 November 2000? A. In November or recently? Q. At all? A. Yes, recently I've given a statement. Q. Is that the same statement that you gave to Turks that you told his Honour about a little while ago? A. That's the statement I made while I was with Turks in an interview. Q. Dealing with the January meeting with Mr Ghirardello, do you recall where that meeting occurred? A. Yes, it was outside near the jet fuel storage tank, sitting on the fuel line. Q. Did you see what Mr Ghirardello was doing during that? A. He was just leaning on the drum and speaking to me and then he went off to one side and he started scratching a label off a container, and come back and started talking again." 32Immediately following that evidence Mr Hancock made an application, as the following extract reveals: "HANCOCK: I wish to exercise my right to cross-examine this witness, but I want 5 minutes to have a conference with my client. This material is new to me. I acknowledge the difficulty that I should make this sort of application in the interests that I stand in, but my right to cross-examine subject to your Honour's direction is well established, in my respectful submission. HIS HONOUR: Aren't you in the same interest on this? HANCOCK: I am, but I have the right to cross-examine nevertheless subject to your Honour's direction as to how that cross-examination might proceed. One matter, which I wish to discuss with my learned friends, is whether a) I should cross-examine, and b) whether that cross-examination should for instance, be restricted to my asking non leading questions. It may be very brief but I would seek your Honour's leave." 33After a short adjournment, Mr Hancock returned to inform the Court that he had reached an agreement with the plaintiff that if he tendered Mr Taylor as a witness in the first defendant's case, the plaintiff would not object to the first defendant asking him some questions in chief. That is what occurred. As promised, that evidence was brief. In addition to the extracts referred to earlier, and upon which the first defendant specifically relies for the present application, Mr Taylor's evidence-in-chief for the first defendant was as follows: "Q. Mr Taylor, you told Mr Lloyd that you went to work for Pay's in November 2000. Do you remember that? A. No, I was working for Pay's in November 2000. Q. You were working for them. When did you commence working for them? A. About 11 months before that. Q. About December of the previous year? A. Yes. Q. Had you worked for Pay's Air until February 2001? A. Yes. Q. And you haven't ever worked there since? A. No. Q. Have you had any cause to recollect the events of 23 November 2000 since you left Pay's Air? A. No. Q. Not until you recently had a conference with Turks Legal? A. Yes. Q. You told us that you do have a recollection of what occurred at Pay's on 23 November 2000? A. Yes. Q. Have you seen any documents that have enabled you to bring that day back to mind? A. Yes I have. Q. What documents have you seen? A. I've seen the pilot's work sheet and mixer's work sheet. Q. Is your name on the mixer's work sheet? A. Yes. Q. You told us that you set up the job and left the premises. Is that right? A. That's correct. Q. You got back at 2.45? A. That's correct. Q. That's a precise time, isn't it? A. Yes. Q. Have you refreshed your memory about that time from a document? A. No because on that document with both names on it, the commissions were shared on every job regardless of whether one mixer was there or one mixer was in Sydney, everything was shared. Both names went on the mixer's docket at all times. That's why my name is on that document. Q. I think you've misunderstood my question. You've told the Court that you got back at 2.45pm? A. Yes. Q. How do you know? A. Because I was sitting behind the pilot when he filled his VDO sheet out, when I got out of the back of the aeroplane. Q. Have you seen a copy of that VDO sheet recently? A. No. Q. You recall him filling out the sheet, do you? A. They fill it out as soon as they land, the sheet is filled out, they take the readings off their gauges. Q. You're quite sure that time was quarter to 3 in the afternoon? A. Yes 2.45. Q. What, particularly, about the flight or the pilot or the filling out of the sheet tells you it was 2.45? A. I'm just assuming it's 2.45 because that's what time I recollect. Q. Up until that time, you weren't on the premises? A. No." 34Mr Ghirardello gave evidence with the benefit of notes that he made of the conversation with Mr Taylor. By way of comparison, Mr Taylor had no reason to return to the events of late November 2000 and early 2001 until recently, and he made no notes of it for any purpose. The first time that he was asked to recall these events was when interviewed by the plaintiff's solicitors in the way that he described. In my opinion, these matters helpfully inform a consideration of the questions of whether or not Mr Taylor was unfavourable to the first defendant and whether or not any prior statement made by him can accurately be described as inconsistent. 35With respect to the submissions proffered by the first defendant, it does not seem to me either that the evidence given by Mr Taylor, which the first defendant contends is unfavourable, can properly be described in that way, or that the prior statements made by Mr Taylor that are said to be inconsistent with his later evidence are truly inconsistent. I say that in the sense that the evidence given by Mr Taylor on 15 December 2010 before me, and the nominated paragraphs of his formerly embargoed affidavit sworn 27 November 2010, contain differences that are largely insignificant or reasonably explicable as artefacts of an imperfect recollection. I would not have thought that the nominated material showed Mr Taylor to be unfavourable to the first defendant, or to have made a relevant prior inconsistent statement. I consider that the plaintiff's submissions about this appear to have some force. 36However, there are some aspects of the evidence that do trouble me, and which require some evaluation for the purposes of the present application. Putting aside for the moment the question of whether or not the defendants should have called Mr Taylor after they called Mr Ghirardello, there is material in Mr Taylor's affidavit that might have led the first defendant to adopt a different course if it had not been held back from them when Mr Taylor was called. In this respect I refer specifically to the material deposed to in paragraphs 17 to 23 inclusive and 27 to 41 inclusive of Mr Taylor's affidavit. When Mr Taylor was called to give evidence the first defendant did not have a copy of that affidavit. It contains, among other things, paragraphs that are specifically identified or described as responses to paragraphs in Mr Ghirardello's 7 September 2010 affidavit. It was clearly evidence in reply. Many of Mr Taylor's responses are to the effect that he does not recall the things that Mr Ghirardello has referred to. I am not certain that the words "I do not recall" as they appear in Mr Taylor's affidavit are always a description of Mr Taylor's capacity to remember. For example, he sometimes goes on to say things like "I doubt I would have remembered exactly" or "I definitely did not show him any delivery docket". Later in his affidavit Mr Taylor specifically denies several matters that Mr Ghirardello has deposed to in his affidavit. 37It is likely, or at least possible, that the first defendant would have taken a different approach to the decision whether or not to call Mr Taylor, and if so at what stage of the evidence, if it had had access to Mr Taylor's prior affidavit. It is trite to observe that Mr Taylor's affidavit is a solemn document, to the contents of which he has attested on oath. When Mr Taylor was called, the first defendant was unaware that he had deposed to matters that were in conflict with what Mr Ghirardello was on record as saying and potentially in conflict with the evidence that Mr Ghirardello might then reasonably have been expected to adhere to in court. The decision to call Mr Taylor on 15 December 2010 as a witness in the first defendant's case was made in circumstances that did not include possession of his 27 November 2010 affidavit. A decision not to call him in the first defendant's case was likely to have provoked the plaintiff to call him in reply. Indeed, the discussion about his affidavit and the decision I made arose in the context of whether the plaintiff could refrain from serving some of its evidence in reply, and specifically Mr Taylor's affidavit, in the interests of justice, and in particular so that the plaintiff could keep its powder dry before it had cross-examined Mr Ghirardello. 38I am not certain that the evidence from the witness must always be unexpected or surprising in the way suggested by the plaintiff, although the idea that it should be of that character before s 38 operates would appear to accord with common sense. However, in this case, I consider that the evidence was surprising and unexpected. That can be tested by asking whether or not the first defendant would have called Mr Taylor in its case if it had had his affidavit before deciding to do so. In my opinion, the most likely answer to that question is "no". Mr Taylor's denials in paragraphs 33, 34 and 37, and the potential significance of the matters that he was unable to recall in several other paragraphs, but which Mr Ghirardello apparently does recall, make this clear. 39My decision to embargo Mr Taylor's affidavit in those circumstances produced a forensic advantage to the plaintiff at the time, even if the anticipated significance of that advantage did not on one view ultimately achieve the heightened level of expectation created by the preceding debate about it. Subject to any other particular discretionary considerations weighing against it, I consider that it would be at least potentially unjust to the first defendant if I were not now prepared to permit the first defendant to cross-examine Mr Taylor in the circumstances. I consider that Mr Taylor has given evidence that is unfavourable to the first defendant. That emerges at least from a comparison between the evidence he gave in court and his affidavit of 27 November 2010, which the plaintiff has nominated as evidence that it wishes to rely upon in reply. I also consider that one or more of the matters deposed to by Mr Taylor in his affidavit clearly amounts to a prior inconsistent statement.
Discretion 40The first defendant's application comes after Mr Taylor's cross-examination by the plaintiff. The terms of s 38(4) rather suggest that an opportunity to consider whether to direct otherwise will ordinarily have been afforded to the Court before the application is determined. Obviously the scope for me to make a decision about questioning Mr Taylor under s 38 or the order of cross-examination if an order is to be made has now been wholly constrained. 41The first defendant says that the earliest opportunity it had for the purposes of s 38(6) was when it received the embargoed affidavit in March this year. The plaintiff says that the contents of Mr Taylor's affidavit were offered to the defendants last December and could have then informed their decision about whether or not to make the present application. The offer was not unconditional, however, and was limited to counsel for the first defendant. In any event, the prospect that someone might make an application under s 38 was foreshadowed by the third defendant as earlier discussed, so that the prospect of it occurring in some form or another was not wholly unexpected. For reasons that I consider will be apparent, having regard to the way I have assessed the present application, "the earliest opportunity" in my view for the purposes of s 38(6)(a) was not before the first defendant received Mr Taylor's affidavit in March 2011.
Conclusion 42It remains to consider the form of the leave that should be granted. In this regard I am required to consider the terms of s 192 of the Evidence Act , which is as follows: " 192 Leave, permission or direction may be given on terms (1) If, because of this Act, a court may give any leave, permission or direction, the leave, permission or direction may be given on such terms as the court thinks fit. (2) Without limiting the matters that the court may take into account in deciding whether to give the leave, permission or direction, it is to take into account: (a) the extent to which to do so would be likely to add unduly to, or to shorten, the length of the hearing, and (b) the extent to which to do so would be unfair to a party or to a witness, and (c) the importance of the evidence in relation to which the leave, permission or direction is sought, and (d) the nature of the proceeding, and (e) the power (if any) of the court to adjourn the hearing or to make another order or to give a direction in relation to the evidence." 43I am informed that the time required for cross-examination of Mr Taylor by the first defendant would not exceed half a day. That does not seem to me to be an unreasonable burden to impose having regard to the length of time taken by this case so far. The hearing will not in my view be unduly extended by the grant of leave I have proposed. The grant of leave will not in my opinion be unfair to any party but a failure to permit cross-examination of Mr Taylor may on the contrary be unfair to the first defendant. I have not received submissions about whether or not the course I propose will or may be somehow unfair to Mr Taylor. The evidence is also potentially of importance for the reasons that I have already discussed. 44I have not heard the parties on the question of the costs of this application. It occurs to me that the further evidence of Mr Taylor in the scheme of the case as a whole, together with submissions from the parties after that has occurred, will better inform the outcome of any application for costs by any party. I propose, therefore, to reserve the costs of the present application.
Orders 45In the circumstances I consider that the following orders should be made: (1)Order that Oliver Taylor be recalled to give evidence. (2)Grant leave pursuant to s 38 Evidence Act 1995 to the first defendant to cross-examine Oliver Taylor with respect to his affidavit sworn 27 November 2010 and his evidence given on 15 December 2010. (3)Reserve costs.
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 28 March 2011
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[1998] NSWSC 565
(2001) 207 CLR 96
(2002) 54 NSWLR 474
(1990) 19 NSWLR 219
(1996) 40 NSWLR 712
(1999) 47 NSWLR 267