Jones v Dyldam Developments Pty Ltd & Anor [2007] NSWSC 752

New South Wales Supreme Court

CITATION : Jones v Dyldam Developments Pty Ltd & Anor [2007] NSWSC 752

HEARING DATE(S) : 27 June 2007

JUDGMENT DATE : 13 July 2007

JURISDICTION : Common Law

JUDGMENT OF : Simpson J

DECISION : The admission of the evidence tendered on behalf of the first defendant is refused.

CATCHWORDS : EVIDENCE – voir dire – admissibility of evidence – request for documents pursuant to subpoena and notice to produce – failure to comply – evidence sought to be tendered through witness – whether evidence should be rejected on discretionary grounds under s 135

LEGISLATION CITED : Evidence Act 1995 s 135

Warren Jones (Plaintiff) PARTIES : Dyldam Developments Pty Ltd (First Defendant) Samorto 13 Pty Ltd (in liq) (previously known as Sydney Bricklaying Construction Pty Ltd) (Second Defendant)

FILE NUMBER(S) : SC 20355 of 2006

A Lidden SC/J de Greenlaw (Plaintiff) COUNSEL : J Graves SC (First Defendant) M J Jenkins (Second Defendant)

Bale Boshev (Plaintiff) SOLICITORS : Hicksons (First Defendant) Home Wilkinson Lowry (Second Defendant)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION PROGRESSIVE LIST

Simpson J

13 July 2007

20355/06 Warren Jones v Dyldam Developments Pty Ltd & Anor

INTERLOCUTORY JUDGMENT: Reasons for excluding evidence 1 HER HONOUR: An issue has arisen concerning the admissibility of evidence on behalf of the first defendant. It is necessary to set out a little background. 2 The plaintiff claims to have been injured on 20 February 2003 during the course of his employment as a bricklayer's labourer on a building site in Conie Avenue, Baulkham Hills. The first defendant was the builder and occupier of the premises; the second defendant was a bricklaying company of which the plaintiff was an employee. 3 There is no dispute that the plaintiff now suffers from a very serious back disability and consequential psychiatric and/or psychological disturbance. So much was evident during the course of two days over which he gave oral evidence. On many occasions it was necessary to adjourn for short periods in order to allow the plaintiff to compose himself, or because he needed to use the toilet. He walks with the aid of a walking stick. I was able to observe what I accept to be genuine and severe physical discomfort. No contrary suggestion was made during the course of his cross-examination. He alternately sat and stood to give his evidence. He frequently lost concentration. I set out these matters because they have a relevance to the issue which I now have to decide. 4 The plaintiff's case is that he suffered his injury on the date in question when he was pushing a wheelbarrow laden with cement to deliver it to bricklayers. He said that, having safely delivered two wheelbarrow loads of cement, he was in the process of delivering a third. A bobcat was working nearby on the site and caused a disturbance to the ground surface. He said that as he pushed the wheelbarrow it slipped into an excavation which had been caused by the bobcat, pulling him over, as a result of which he suffered the injury. 5 The plaintiff was extensively cross-examined. Eventually it was put to him that his account of what had occurred on the day was "a fiction". 6 On the third day of the trial (which was fixed for four days) a witness was called on behalf of the first defendant. This was Mr Heath Fayad. Mr Fayad produced a very large book, referred to as a journal. It was said to be a journal maintained on behalf of the first defendant and various other companies which, presumably, form part of a group of building companies. It records, apparently, the names of all employees of the companies within the group and identifies, with reference to dates listed sequentially, where and when they worked. The journal, became exhibit VD1. Cursory examination of it suggests that it contains a great deal of information accessible to those who are familiar with the signs and symbols used, but quite inaccessible to those without inside knowledge. The journal was produced in order to establish, through Mr Fayad, that, on 20 February 2003, no bobcats were located on the Conie Avenue site. This was to be done by establishing, through the records in the book, that no bobcat drivers had been employed at the Conie Avenue site on that day. Admission of evidence to that effect could cast considerable doubt upon the plaintiff's account of the circumstances in which he sustained the injury to his back. 7 Tender of the evidence drew an immediate objection from senior counsel for the plaintiff. This was based on what was said to be non-compliance with a subpoena issued on behalf of the plaintiff to the first defendant on 23 June 2006 and returnable on 10 July 2006. Mr Fayad's evidence was therefore taken on a voir dire. The present judgment concerns whether that evidence ought to be admitted in the trial. 8 Clause 7 of the Schedule to the subpoena required production of: "Documents relating to the personnel, wage and work records of all bobcat drivers who worked on site at 12-14 Conie Avenue Baulkham Hills New South Wales during any period of construction." 9 As the evidence eventually disclosed, all that was produced in relation to this clause of the subpoena was a document, on the first defendant's letter head, which opened with the words: "The following shows a list of various bobcat drivers who worked at 12-18 Conie Avenue, Baulkham Hills."