38Unfavourable witness

### 38 Unfavourable witness > > (1)  A party who called a witness, with the leave of the court, may 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](#GS39@EN) . > > > (3)  The party questioning the witness under this section, with the leave of the court, may 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, 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)  A party is subject to the same liability to be cross-examined under this section as any other witness if – > > > > > > (a) a proceeding is being conducted in the name of the party by or on behalf of an insurer or other person; and > > > > > > > (b) the party is a witness in the proceeding.