Supreme Court New South Wales Medium Neutral Citation: Visscher v Maritime Union of Australia (No 4) [2013] NSWSC 1572 Hearing dates: 28 October 2013 Decision date: 28 October 2013 Jurisdiction: Common Law Before: Beech-Jones J Decision: Answers to interrogatories admitted. Catchwords: EVIDENCE - tender in re-examination of document cross examined upon - no question of principle. Legislation Cited: Evidence Act 1995 Category: Procedural and other rulings Parties: Timothy Visscher (Plaintiff) Maritime Union of Australia (Defendant) Representation: Counsel: T. Molomby SC, Ms L. Goodchild (Plaintiff) R.K. Weaver (Defendant) Solicitors: Roderick Storie Solicitors (Plaintiff) Slater & Gordon (Defendant) File Number(s): 2011/339947 EX TEMPORE Judgment As to tender of portions of document headed "Statement in Answer to Interrogatories"; see transcript p 441 1During the course of the cross examination of Mr Nielsen, the safety officer for the Maritime Union of Australia (the "MUA"), he was taken to various interrogatories the answers to which he had verified on behalf of the MUA. At the conclusion of his cross examination, counsel for the MUA, Mr Weaver, sought to tender the questions and answers to which he was taken, together with the documents that were said support the answers which are annexed to the interrogatories. 2Only one aspect of that proposed tender was controversial, namely, part of the answer to question 2. Question 2 is structured in the following manner. It opens with the words "Did you at the time of the placing of the first matter complained of on the website, believe that it was true of the plaintiff?" Then are set out the six imputations that were originally pleaded in relation to the first matter complained of. Mr Nielsen answered "yes" to all of those questions. In other words, he stated that he believed that each of those imputations was true. 3Question 2 also specified that if he answered "yes" to any of those imputations, he should then provide various items of information said to support his belief in their truth. Consistent with the answers that he gave in the answers to the interrogatories, Mr Nielsen set out the material said to support his belief in the truth of the imputations. 4The gravamen of the cross examination focused on the first part of the question which stated, or assumed, that he had placed the first matter complained of on the website. It emerged during his evidence that Mr Nielsen denied that he placed the first matter complained of on the website. In fact he stated in his evidence that he had never seen the first matter complained of until being shown it in cross examination last Friday. One way of construing Mr Nielsen's answers is that in effect he did not focus on that assumption of question 2 in the interrogatories, but instead focused upon the specific matters that asked him what he believed. 5Mr Weaver seeks to tender the questions and answers on the basis of they having been shown to Mr Nielsen in cross examination and that presumably his answers could only be properly assessed in the context in which he was shown the interrogatories. Section 45(3) of the Evidence Act 1995 gives the Court a discretion to admit a document in these circumstances, but does not define the limits or prescribe the criteria for the admission of the material. At the very least it would extend to such material as the witness was taken to and which would enable their answers to be considered in context. Adopting that narrow view of s 45(3) for present purposes only, I do think that the additional part of question 2 is material that should be admitted so as to enable a consideration of the entirety of Mr Nielsen's answers on this topic. In particular, prima facie it appears to assist in understanding his explanation or rationale for answering questions that contained an assumption that he placed the first matter complained of on the website when he now states in his evidence that he did not. 6In those circumstances I will admit the following parts of the document headed "Statement in Answer to Interrogatories": the entirety of the first page, the entirety of the second page, the entirety of the third page, that part of the fourth page up to and including the end of question 3A, question 8 and answer 8A on page 6, and the material attached which is referable to answer 8A and question 10 and answer 10A on page 7. That part of the document will be admitted and marked as exhibit 3. ********** 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: 30 October 2013