Supreme Court New South Wales Medium Neutral Citation: Warragamba Winery Pty Ltd v State of NSW (No 2) [2011] NSWSC 1493 Hearing dates: 8, 22 November 2011 Decision date: 22 November 2011 Jurisdiction: Common Law Before: Walmsley AJ Decision: See paragraph [23] Catchwords: Evidence; prior consistent statement Legislation Cited: Evidence Act 1995 Cases Cited: Ordukaya v Hicks [2000] NSWCA 180 Texts Cited: J Anderson, P Bayne, Uniform Evidence Law Text and Essential Cases, 2nd Ed (2009) The Federation Press Category: Interlocutory applications Parties: Warragamba Winery Pty Ltd (Plaintiff) Lionel Rupert Fowler (Plaintiff) David Gauci (Plaintiff) Ernest Hausler (Plaintiff) Vitomir Kuzmanovic (Plaintiff) Michelle Larden (Plaintiff) Bruno Lopreiato (Plaintiff) Alexander Lynch (Plaintiff) Darryl Nix (Plaintiff) Michael O'Brien (Plaintiff) Michael G Passlow (Plaintiff) Antol Plachozki (Plaintiff) Paul Quigley (Plaintiff) Richard Sheppard (Plaintiff) Russell Sheppard (Plaintiff) State of New South Wales (First defendant) Sydney Catchment Authority (Second Defendant) Representation: D Nock SC with K Odgers (Plaintiffs) L King SC with C Webster, S Gregory, N Newton (Defendants) McLachlan Chilton (Plaintiffs) Gild (Defendants) File Number(s): 2005/269559 Judgment 1As I have previously observed, the plaintiff's case involves two parts: the first is that on Christmas eve in 2001 the defendant did not act sufficiently early and adequately to stop a bushfire from spreading from Mount Hall in the lower Blue Mountains, across the Warragamba Dam the next day to the townships of Warragamba, Silverdale and Mulgoa where it burnt the plaintiffs' property; the second part is an alleged failure to warn the plaintiffs that the fire was on its way. 2One of the 15 plaintiffs is Wanda Plachozki. She signed several witness statements for these proceedings and verified them when giving evidence-in-chief. When she was cross-examined on 8 November 2011 it became apparent that in 2002 she had instructed a solicitor to prepare a statutory declaration concerning the fire. She had never made the declaration, but she told me that its contents were true. 3There were matters in it which were not in her witness statements. For example, she said in one that a son had telephoned her at 1 o'clock on Christmas Day to say that he would be delayed for lunch. In the statutory declaration, on the other hand, as to that telephone call, she added that he had said he would not be there until 3. 4In her witness statement she nominated certain times when things were said to have occurred, but conceded in cross-examination that she might possibly have been out by two and a half or three hours in her times. 5Mr King put to her a number of differences between the statutory declaration and her statements. 6None of those things in themselves seemed, on their face, to be of great consequence. Although a number of such matters was raised by Mr King, there was only one matter where it could, in my view, be said that there was an inconsistency. 7In paragraph 19 of the statutory declaration she said that at a particular time and place late on 25 December 2001 she had been asked by fire brigade members to move on from a place identified in the evidence as the Mount Shoenstatt Nuns property. That was a place she and family members had gone to wait while their own home had been under fire threat. However Ms Plachozki's witness statement relevant to that event said that she had been asked by police to move on from that place. 8I expect Mr King to submit ultimately that her statement and those from some other plaintiffs, had had certain matters left out, and, in particular, in this matter, the reference to the fire brigade, because of a desire to convey an impression that no Rural Fire Service members were present. I expect the submission to be that that was done to try to make the plaintiffs' point that the defendants did not do enough to warn the plaintiffs the fire was coming, or stop it from spreading. 9I do not understand, however, that Mr King will submit Ms Plachozki deliberately left out such material. 10Mr Nock did not re-examine his client. After she had left the witness box, he tendered the statutory declaration. Mr King objected to that course and I heard argument on the issue on 8 and 9 November and reserved my decision until today. 11Mr Nock, in argument, relied alternatively on section 45, section 64 and section 108(3) of the Evidence Act 1995. Section 45 says this: "(1) This section applies if a party is cross-examining or has cross-examined a witness about: (a) A prior inconsistent statement alleged to have been made by the witness that is recorded in a document; or (b) A previous representation alleged to have been made by another person that is recorded in a document. (2) If the court so orders or, if another party so requires, the party must produce: (a) The document; or (b) Such evidence of the contents of the document that is available to the court or to that other party. (3) The court may: (a) Examine a document for evidence that has been so produced; and (b) Give directions as to its use; and (c) Admit it, even if it has not been tendered by a party. (4) Subsection (3) does not permit the court to admit a document or evidence that is not admissible because of Chapter 3. (5) The mere production of a document to a witness who is being cross-examined does not give rise to a requirement that the cross-examiner tender the document." 12I do not consider that section 45 assists here. Although Mr Nock submitted I should admit the document into evidence, or could admit it into evidence of my own motion (s 45(3)(c)), I do not see any call for that. The fact the witness was cross-examined on it does not, of itself, mean it can be tendered, or that it should automatically go into evidence. 13Although there may be cases where such a document can go in at the insistence of the judge pursuant to s 45(3)(c), I do not consider any good reason has been given here for that course. 14I took Mr Nock to submit the witness statement was, relevantly, a prior inconsistent statement, and the Statutory Declaration a prior consistent statement. The dictionary meaning of prior inconsistent statement says: "A previous representation that is inconsistent with evidence given by the witness". I do consider the witness statement a prior inconsistent statement. I do not accept Mr King's submission, however, that it was not her representation but that of the solicitor who prepared it after she had made representations to him. It can, I think, be both, given that she conceded it was the product of what she had given her solicitor, and that it was true. The document, by being adopted, I think, became a series of her representations. I consider, subject to section 64, it is not admissible, by reason of Chapter 3. 15Section 64, which is the first alternative relied on by Mr Nock, provides an exception to Chapter 3 exclusions. It provides as follows: " 64 Exception: civil proceedings if maker available (1) This section applies in a civil proceeding if a person who made a previous representation is available to give evidence about an asserted fact. (2) The hearsay rule does not apply to: (a) evidence of the representation that is given by a person who saw, heard or otherwise perceived the representation being made, or (b) a document so far as it contains the representation, or another representation to which it is reasonably necessary to refer in order to understand the representation, if it would cause undue expense or undue delay, or would not be reasonably practicable, to call the person who made the representation to give evidence. Note. Section 67 imposes notice requirements relating to this subsection. Section 68 is about objections to notices that relate to this subsection. (3) If the person who made the representation has been or is to be called to give evidence, the hearsay rule does not apply to evidence of the representation that is given by: (a) that person, or (b) a person who saw, heard or otherwise perceived the representation being made. (4) A document containing a representation to which subsection (3) applies must not be tendered before the conclusion of the examination in chief of the person who made the representation, unless the court gives leave." 16Its purpose is to remove the obstacle of the hearsay rule where a party is unable to give evidence because, for example, of poor health: Ordukaya v Hicks [2000] NSWCA 180 at [38] per Sheller JA. As the witness gave evidence, it cannot be said she was not available, or that it would cause undue expense or delay or would not be reasonably practicable to call her. So subsection (2) has no application. 17As to (3) of section 64, here the witness herself, I am satisfied, gave evidence of the representation. She recalled making the representation about being moved on by fire brigade men and said that is what happened. If the statutory declaration goes into evidence it may have the effect, I think, of enhancing her credibility, because it was prepared at a time significantly earlier than the date her witness statement was prepared dealing with that issue and was in accord with her oral evidence after the relevant concession had been made when she was under cross-examination. 18That effect, that is of increasing her credibility or enhancing it, was seen by the authors of Uniform Evidence Law Text and Essential Cases 2nd Edition, John Anderson and Peter Bayne (The Federation Press, 2009) at 8.730 as a purpose and result of an application of section 64(3). 19I consider that there may be unfairness to the plaintiff if the document is excluded, as it affects her credit. 20Mr King submitted that the document had not been served pursuant to case management regimes but I think, in this case, there might be great unfairness to the witness by enforcing such a rule, even if, which I do not accept here, case management requirements for service of documents are intended to cover cases such as this. 21Mr Nock relied alternatively on section 108(3). It is not now necessary for me to consider that section but had it been necessary, I would have come to the view that section 108(3) is broad enough to permit the document to go into evidence to restore credit in the same way. 22So the document will be admitted and will be Exhibit AJ. ********** 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: 05 December 2011