District Court New South Wales Medium Neutral Citation: David Joe v THE STAR PTY LIMITED [2022] NSWDC 361 Hearing dates: 24 May 2022 Date of orders: 24 May 2022 Decision date: 24 May 2022 Jurisdiction: Civil Before: Montgomery DCJ Decision: (1) re-examination allowed. Catchwords: EVIDENCE – re-examination – s 39(a) and (b) Legislation Cited: Evidence Act 1995 (NSW); s 39(a); s 39(b) 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 Objection to question posed to plaintiff during re-examination; see transcript p 124 <RE-EXAMINATION BY MR KELLY> Q. Just before lunch, you were asked several questions by my learned friend on the topic of you giving money to Mr Lie outside the casino? A. That's right. Q. When you answered some of those questions, you sought an opportunity to give an explanation for your assertion that you had given to Mr Lie outside the casino? A. That's correct. Q. What is the explanation that you wanted to give? 1. AFSHAR: I object. 2. HIS HONOUR: Why? 3. AFSHAR: I didn't ask the witness about giving money to Mr Lie outside the casino. I said to him - properly, in fact, directed by your Honour - whether or not his affidavit contained evidence of him giving any money to Mr Lie and he said, it didn't and it doesn't. I did not ask him - he asked for an opportunity to explain, but the question was not about Mr Joe giving money to Mr Lie. In fact, I think either my learned friend objected or your Honour directed my attention to asking the question fairly by reference to his affidavits, and I did. 4. HIS HONOUR: An answer he gave was: "Q. In your affidavit, there is no evidence that you gave cash to Mr Lie for playing in the casino? A. Yes. Not give in casino, but I did give money to Lie." 1. AFSHAR: He did that, but the question first did not invite that answer, that's the evidence that he's given. It is the extent of his evidence. There is nothing to clarify with that evidence and there was careful cross-examination and this question is not a question to clarify anything and I did not go to that topic. That does not permit my learned friend to re-examine on the topic. 2. HIS HONOUR: He also gave evidence that he did not give money in the casino - that's money to Lie - and when it was put, "You did not give him cash," he answered, "I did." And then when asked about vouchers, he agreed, "No." "There's nothing in the affidavit about you withdrawing cash or a cash cheque or money to give to Lie," and he agreed with you. And then it was put that the credit and vouchers being used were all Mr Lie's, he answered, "No, it my money. Used my platinum card. If not my money, I not use PVC." Yes, he said, "If my money, I use PVC. If not my money, I not use" - PVC is my shorthand for platinum Vantage card. The effect of his evidence is that he did not fund Mr Lie whilst in the casino, but he did fund Mr Lie. That's the extent of his evidence. 3. AFSHAR: That's the extent of his evidence and-- 4. HIS HONOUR: The question is, what is the explanation? Is that what you're pressing, Mr Kelly? 5. KELLY: Yes, your Honour. He sought to give an explanation for when it is that he gave that money. I think he sought on at least three occasions. 6. AFSHAR: That is an invitation - what my learned friend is now seeking to do, with respect, is to lead evidence in chief in circumstances where I didn't cross examine him-- 7. HIS HONOUR: Yes, but you see, the difficulty I have had in relation to doing that which is just and fair can come as no surprise, because I raised it as to parameters of the case at its very opening, which is, no matter how you wish to tailor it, the cross-examination has repeatedly put a suggestion of an arrangement. The evidence as it stands - because there is only this man's evidence - is that it is not what happened in the casino, he was wagering - this man's evidence - previously provided or otherwise provided - just give me a moment, will you? 8. Mr Afshar, it occurs to me that the cross-examination on the point of what was in the affidavit and what happened at the casino against the answers I have just taken you to is a cross-examination challenging the credibility of the witness in his evidence. On that basis, I grant leave. In my view firstly, it does arise out of evidence that he gave in cross examination and may very well fall within s 39(a), that is a witness may be questioned in re-examination about matters arising out of evidence given by the witness in cross-examination. Secondly if I am wrong in that, in my view, because of that which I have just said, I grant leave for re examination on the point under s 39(b). 9. AFSHAR: Could I then note these matters for the record, so that your Honour knows my client's position in relation to that? 10. HIS HONOUR: Yes. 11. AFSHAR: First your Honour, with respect, my learned friend has not identified any ambiguity or other clarification required in the evidence of Mr Joe to justify any of re-examination in relation to the matters about which he was cross examined. The second matter is and as a matter of justice to both parties, the evidence that is sought now to be adduced is in effect, evidence in chief of which my client has had no notice, about which the witness has never given evidence before, and which is a case that is not pleaded with specificity about the nature of payments, the date of the payments, and the arrangements whereby the payments have been made. Your Honour's discretion under s 39, I heard what your Honour has said in relation to your Honour's granting of leave, but with respect it puts my client in a position where it is now facing a case that has not been previously raised. 12. HIS HONOUR: What about arrangement? What about challenge on credit as to funding by an arrangement? It's inherent with respect as to the approach in cross-examination but more importantly the evidence in cross-examination. 13. AFSHAR: Well, your Honour, the arrangement that I put to Mr Joe with respect was different to the question that my learned friend is asking at the moment. The arrangement that I suggested to Mr Joe was to do with his entry into - I withdraw that. Mr Lie's entry into the VIP Vantage and Mr Joe, and sitting, and him sitting instead of Mr Lie in the seat in front of the relevant machine. I did suggest to Mr Joe that-- 14. HIS HONOUR: You also put several times Mr Lie was playing his own money. You did not restrict evidence given in cross - in a denial of that, his evidence in cross-examination. That is something arising from cross-examination. 15. AFSHAR: But there is no ambiguity for other - sorry, any other reason for re examination to take place out of the denial which was denial of the proposition, because if the logic of what my friend's submission is correct, then every question in cross-examination would invite further re-exanimation of matters that where as a matter of fairness, put to the witness and that with respect is not what the authorities suggest as to the very narrow confined of re-examination which is to deal with a matter that is unclear on the evidence. Mr Joe's evidence was not unclear, he rejected the proposition that I put to him as to whose money it was that was placed in the machine. 16. HIS HONOUR: From your examination, the evidence arising in cross examination is that he funded Mr Lie. That is something arising out of cross-examination upon which re-examination would be permitted. Secondly to that, if I am wrong in that, as I am now repeating myself, you challenged him on credit on a point, a point in relation to which, where it was you were challenged by counsel and I inquired of on the first day, and was not as clinically clean as you would have said the pleading made it. So, I allow it. 17. AFSHAR: If your Honour pleases. ********** Amendments 31 January 2023 - Hearing Date Correction 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: 31 January 2023