Sherman, David v Peabody Coal Ltd [1998] FCA 141

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY ni 2335 of 1998

BETWEEN: David Sherman

Applicant

AND: Peabody Coal Limited

Respondent

JUDGE: moore j

DATE: 27 february 1998

PLACE: SYDNEY

REASONS FOR RULING The following is a ruling I made on 18 December 1997 in relation to the admissibility of certain evidence: I have given further consideration to the admissibility of the evidence of Reverend Richer, which I think is the appropriate focal point for my consideration of the argument that was put this morning about the tendency evidence … [H]aving regard to the terms of s 97 of the Evidence Act 1995 (Cth), the question of the admissibility of the evidence of Reverend Richer has to be assessed having regard to evidence adduced or to be adduced by the parties seeking to adduce the evidence. I would take that to mean that in the present case I should pay regard not only to the evidence of the incident on 6 November 1996 but also the evidence of incidents … in which Mr Sherman had been involved in exchanges with people in positions of authority. However, notwithstanding the need to consider not only the events of 6 November 1996 and the events of 15 January 1995, I am not satisfied that the evidence of the events of 15 January 1995 would have significant probative value, which is the touchstone or at least one of the touchstones created by s 97 of the Act. There are, I accept, a number of similarities between the incident in January 1995 and later incidents. They have a common feature, at least on one view of the evidence, of Mr Sherman being confronted by people in authority who have conducted themselves in a way that he disapproves of and him then saying things that may be treated as abusive and/or threatening. However, there are dissimilarities which in my view lead to the conclusion I earlier expressed that the evidence of the incident in January 1995 does not have significant probative value. In summary, those points of difference are the status of Reverend Richer in that he was a chaplain, plainly a person who in the community one would expect to maintain a moral code of the highest order. That has a bearing on the second feature which I view as a point of difference, namely how it is that he came by the information that Mr Sherman believed, and it would seem reasonably believed, he had repeated. That is, he came by the information as part of the counselling of others though not, I should add, the counselling of Mr Sherman. The third point of difference concerns the nature of the information. I was taken at length to passages in the cross-examination of Reverend Richer. I gained the impression, indeed the clear impression that Reverend Richer had disclosed to others concerned the role of Mr Sherman in the breakdown of a family in the community. There appears to have been a general reluctance on the part of those involved in the proceedings, so I was informed by Mr Christie this morning, to articulate with any precision what the nature of Mr Sherman's involvement was or any details about the matter. Nonetheless, it appears to me that the evidence suggests, as I indicated a moment ago, that Mr Sherman had a role of some significance in the breakdown of this family, which led to the counselling of others by Reverend Richer. Those three features of the incident in January 1995 would tend to suggest to me that the reaction of Mr Sherman and what he said to Reverend Richer would not provide evidence of a significant probative value in relation to what he said to others in the workplace more than 12 months later in relation to incidents, though while in themselves important, were not of the same fundamental character as the matter that Mr Sherman believed Reverend Richer had disclosed to others. For that reason I propose to reject the tender of his evidence. I certify that this and the preceding two (2) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore