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.