David Joe v THE STAR PTY LIMITED [2022] NSWDC 362

District Court New South Wales

Medium Neutral Citation: David Joe v THE STAR PTY LIMITED [2022] NSWDC 362 Hearing dates: 25 May 2022 Date of orders: 25 May 2022 Decision date: 25 May 2022 Jurisdiction: Civil Before: Montgomery DCJ Decision: (1) question allowed. Catchwords: EVIDENCE – re-examination – defendant objection of no notice of facts and circumstances – leading question Category: Procedural rulings Parties: David Joe, Plaintiff The Star Pty Limited, Defendant Representation: Counsel: Mr Kelly SC, Counsel for the Plaintiff Mr Afshar, Counsel for the Defendant

Solicitors: GOH Lawyer, Solicitors for the Plaintiff Gadens, Solicitors for the Defendant File Number(s): 2020/00207783

Judgment EX TEMPORE

Application for leave to adduce further evidence from Mr Lie; see transcript p 135 1. HIS HONOUR: Defendant objection to questioning of plaintiff in re-examination on basis of lack of notice of the facts and circumstances of Mr Lie receiving money from the plaintiff. 2. In his affidavit evidence of 16 March and 7 June 2021, the plaintiff contained statements of conversations in which he informed the defendant's officers at the time of their coming to follow their processes on the jackpot having arrived "It's my money." The plaintiff case, when you say "no notice" and speak of it as if it is recent invention in this hearing, has therefore been that it was his money being wagered, both in pleading and in affidavit evidence. 3. In the conduct of the trial, the course chosen by the defendant was not to rest with the plaintiff's affidavit evidence, including a contemporaneous statement made that it was his money which was being gambled (I should say wagered, for the purposes of the dispute at law) but to challenge that, at no point during the course of his arriving at the casino to the delivery of the jackpot did he give funds to Mr Lie, a proposition the plaintiff accepted. 4. The cross-examination proceeded to put to the plaintiff that at no point in his affidavit did he say that he did so fund Mr Lie. In the course of that evidence, the plaintiff was plainly willing to accept that he did not provide money during that time in the casino, but plainly denied that it was not his money being wagered. As I spoke to yesterday when this objection arose in relation to re-examination, evidence arose out of cross-examination of the plaintiff funding the wager. Evidence was of that already available from the passage I have just referred to in his affidavit in any event. 5. Your challenge went only to the timing of the funding, the proposition which the plaintiff has had in the case from the outset, and in your cross examination, repeated was that he funded the wagering. And, I granted the leave also because you challenged it on the basis of credit. It was evidence arising from cross-examination and it was a challenge to his credit. He was permitted to re-examine. 6. So, it is in the case already, by those passages of his affidavit, of a conversation with the officers of the casino at the time of the jackpot. It is evidence in the case, from the affidavit of Mr Lie, to those same conversations. I have not been taken to the further evidence. I understand, however, by those affidavits in reply, the defence puts the claim made that at the time of the jackpot the plaintiff said it was his money in contest. The plaintiff seeks to lead evidence that the conversation was to the contrary - you are nodding your head - to say Mr Lie was claiming that it was his wager. 7. So, with respect, it is entirely expected in the contest as these parties have approached each other, and as you ignited it in cross-examination, for this to be evidence in the contest. 8. I will allow the leave sought by Mr Kelly SC for the plaintiff.