Lowe v Lang [1999] NSWSC 801

New South Wales Supreme Court CITATION : Lowe v Lang [1999] NSWSC 801 revised - 26/06/2000 CURRENT JURISDICTION : Equity FILE NUMBER(S) : 1082/96 HEARING DATE(S) : 28 July 1999 JUDGMENT DATE : 28 July 1999

Michael Campbell Lowe (P) PARTIES : Barry Arthur Lang (D1) Erolgreen Pty Ltd (D2) JUDGMENT OF : Hamilton J

COUNSEL : P T Taylor (P) P J Deakin QC and P R Stockley (D1 & 2) SOLICITORS : Baldock Stacy & Niven (P) Kenny Spring (D1 & 2) CATCHWORDS : EVIDENCE [226] - Witnesses - Re-examination - General principles - In respect of credit - Admissibility of statement of witness out of Court ACTS CITED : Evidence Act 1995 ss 39, 105 & 108 CASES CITED : Drabsch v Switzerland General Insurance Co Ltd [1999] NSWSC 765 Wojcic v Incorporated Nominal Defendant [1969] VR 263 DECISION : Question of re-examination allowed.

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

HAMILTON J

WEDNESDAY, 28 JULY 1999

1082/96 MICHAEL CAMPBELL LOWE v BARRY ARTHUR LANG and EROLGREEN PTY LIMITED

HIS HONOUR: 1 In this matter the following question has been asked of in re-examination of the plaintiff Michael Lowe: "In the period from 30 October through to November and December 1991, do you recall telling any person about the conversation or the matters discussed in the conversation with Barry Lang on 30 October 1991?"

It has been objected to. The way in which the matter arise arises is as follows. The crux of the case is a conversation which occurred on 30 October 1991 in which Mr Lowe says, but the defendant Barry Lang denies, that Mr Lang made an offer to pay part of the royalties to Mr Lowe if a quarry were established on Mr Lang's property ("the October conversation"). In cross-examination of Mr Lowe, Mr Deakin, of Queen's Counsel for the defendants, put to him that at a considerably later time he heard discussions about royalties from the quarry with certain neighbouring landowners and that he had not thought of royalties before hearing that later conversation. There is no doubt in my mind that that amounted to a challenge to Mr Lowe that he had fabricated his version of the vital October conversation. On the surface of it, it seems to me that that the contentious question in re-examination, obviously designed to elicit from the witness prior statements consistent with his account of the October conversation, did arise from cross-examination. 2 Mr Deakin QC has submitted that this is not so, and that this question, if to be asked at all, ought have been asked in chief. He says that that is so because it has been plain from the start of the case that it was denied that the October conversation contained any mention of royalties. Some prior statements made by the plaintiff consistent with his version of the October conversation have in fact been put in in evidence in chief. Some of those statements made by the plaintiff were deposed to by other witnesses, but one at least has been deposed to by the plaintiff himself. Those statements I admitted through the exception contained in s 64(3) of the Evidence Act 1995 ("the Act"), without direct adversion to s 108. I should say that, in view of the ruling I am about to give on this question in re-examination, those statements by the plaintiff already in evidence, were they in truth not admissible at the time and on the basis on which I admitted them, they would now be admissible under s 108. 3 Returning to the question that I am now dealing with, it seems to me that, even if it were earlier implicit in the way the case was conducted, that the October conversation had not contained the vital matter which Mr Lowe asserts, and Mr Lang denies, and that Mr Lowe was wrong in his evidence and it ought not be accepted, in my view that does not prevent the direct challenge put to him in cross-examination being an assertion of fabrication by him and having effect as such in relation to the admissibility of evidence. 4 It seems to me that this has two effects in that regard. The first is, I have recently indicated in a judgment delivered by me in Drabsch v Switzerland General Insurance Co Ltd [1999] NSWSC 765 that a broad approach should be taken to the matter allowable in re-examination, under s 39 of the Act as at common law, on the basis of the authorities that I collected in that judgment. It seems to me that the contentious question is clearly admissible in re-examination under those principles: see particularly Wojcic v Incorporated Nominal Defendant [1969] VR 263. Any possibility that it should be rejected under the rule in s 105 of the Act (prohibiting evidence going to credibility only) is removed by the provision of s 108(1). If the evidence falls within s 108(1) it may be asked without the leave of the Court, as at common law. In my view, therefore, the question is admissible in re-examination without leave. 5 For the reasons that I have given the question is allowed.