Tilley Air Conditioning Pty Limited v Traminer Pty Limited [2009] NSWDC 155

New South Wales District Court

CITATION: Tilley Air Conditioning Pty Limited v Traminer Pty Limited [2009] NSWDC 155

JUDGMENT DATE: 20 January 2009

JURISDICTION: District Court of New South Wales

JUDGMENT OF: Cogswell SC DCJ

DECISION: Leave granted for the witness to refer to the document to revive his memory in court.

CATCHWORDS: CIVIL LAW - application for witness to revive memory from a document which may not itself be admissible

LEGISLATION CITED: Evidence Act 1995 s32

PARTIES: Tilley Air Conditioning Pty Ltd Traminer Pty Limited

FILE NUMBER(S): 894/06

COUNSEL: Mr T Bland (plaintiff) Mr Lowenstein (defendant)

JUDGMENT

1 Mr Lowenstein in examining a witness on the voir dire, has reached a stage where the witness has indicated that he wishes to revive his memory from a document. Mr Lowenstein has asked my leave to permit the witness to revive his memory. I am making this ruling by reference to s 32 of the Evidence Act 1995 which sets out the law regarding a witness reviving their memory in court from the use of a document.

2 I am satisfied that the witness will be unable to adequately recall information which he is being asked for without reference to the document.

3 Mr Bland's primary objection is that the document itself may eventually not become admissible. The document which Mr Maric wishes to refer to is an annexure ("B") to an affidavit sworn on 16 January 2009 which the defendant may, in due course, tender.

4 The plaintiff, through Mr Bland, has made it clear that the tender of that affidavit, including annexure B, will be objected to. Mr Bland argues that annexure B should not be used at this stage in the way that it is sought to be used because it may eventuate that annexure B is eventually rejected as evidence in the proceedings.