James Mark Waugh & Ors v TAFE NSW Western Institute & Anor (No 3) [2013] NSWSC 1662

Supreme Court New South Wales

Medium Neutral Citation: James Mark Waugh & Ors v TAFE NSW Western Institute & Anor (No 3) [2013] NSWSC 1662 Hearing dates: 31/10/13 Decision date: 31 October 2013 Jurisdiction: Common Law Before: Campbell J Decision: I overrule Mr McCulloch's objection and allow Mr Morris to follow the course upon which he has embarked Catchwords: EVIDENCE - admissibility - cross examination under s43 Evidence Act 1995 (NSW) - objection taken - whether document on which the witness is being cross examined under s43 need be shown to be admissible for cross examination to occur Legislation Cited: Evidence Act 1995 (NSW) Category: Procedural and other rulings Parties: James Mark Waugh (plaintiff) Juliana Waugh (plaintiff) Jonathan Waugh (plaintiff) TAFE NSW Western Institute (first defendant) Glenn Alexander Manton (second defendant) Representation: Counsel: J Morris with R Bianchi (plaintiff) M Fordham SC (first defendant) M McCulloch SC with T Berberian (second defendant) Solicitors: Burke Elphick Mead (plaintiffs) Bartier Perry Pty Ltd (first defendant) HWL Ebsworth (second defendant) File Number(s): 2012/83757; 2012/83775; 2012/91788

EX TEMPORE Judgment 1Mr Morris of counsel, who appears with Ms Bianchi for the plaintiff, has commenced to cross-examine Mr Manton, the second defendant, on the basis of a document recording an interview between Mr Manton and some officers of the first defendant, which occurred on 9 April 2009. 2Mr Manton was shown the transcript and did not adopt it as a document he could identify or, in particular, as a transcript of his interview. As I understand his evidence so far he accepts that officers of TAFE interviewed him. He is unsure whether it occurred on 9 April 2009 and he is not sure how many persons were present. He did not accept the five persons that Mr Morris asked him about, but thought there might have been four. 3The record was removed from Mr Manton and returned to counsel and Mr Morris proceeded to ask a question of Mr Manton about whether a certain question was asked and whether he answered it in a certain way. Mr McCulloch SC who appears for Mr Manton with Ms Berberian of counsel, objected. 4Mr McCulloch says that the course embarked upon by learned counsel for the plaintiff is not permissible under the Evidence Act 1995 (NSW), and in particular he argues that given the failure of his client to adopt the accuracy of the record, the cross-examiner will be unable to satisfy me that, if need be, the record will be adduced into evidence. He points out in the course of argument that, so far as lay evidence is concerned, Mr Morris has closed his case on liability. 5Mr Morris argues that the evidence he seeks to elicit through cross-examination is relevant within the meaning of s 55 and that under s 43 it is permissible for him to cross-examine Mr Manton upon what Mr Morris says is a prior inconsistent statement. He submits it is not necessary for him to satisfy me at this point that the statement will be admitted in evidence in due course. 6It is sufficient if he satisfies the conditions set out in section 43(2), first, that he has informed the witness of enough the circumstances of the making of the statement to enable the witness to identify it, and, second, he has drawn the witness' attention to so much of the statement as is inconsistent with the witness' evidence. I should say that Mr Morris says he is in the process of satisfying that second condition. 7It seems to me that Mr Morris is entitled to proceed in the manner he is undertaking. The conditions in subsection (2) are really conditions precedent to the admission of the prior inconsistent statement. Section 43(1) entitles Mr Morris to cross-examine the witness about a prior inconsistent statement whether or not the witness is given complete particulars of it, or whether or not he has shown the document to the witness. 8So far as the question about closure of the case is concerned, s 43(3) provides that a party may reopen its case for the purpose of adducing evidence of the statement, if necessary. 9I might add that in the way these matters proceed, a certain fluidity is involved compared with the old practice of when cases are closed and opened, given there is an expectation on the part of the Court that the parties will cooperate with the Court's procedures and call all of the lay evidence on both sides of the record prior to the experts being called, but I digress. 10To my mind there is no requirement that I be satisfied now at this stage that Mr Morris will be successful in getting the statement in. That requirement applies only to cases to which s 44 applies, which is concerned with a different matter. That section is concerned with the questioning of a witness about a previous representation alleged to have been made by another person. That is not this case. 11As Mr Morris in his customary frank manner concedes, if in due course he is unable to establish the admissibility of the transcript, then he might be stuck with the answers the witness gives to the questions he asks, but that is no more than the usual fortune of forensic warfare which Mr Morris is prepared to accept. 12I overrule Mr McCulloch's objection and allow Mr Morris to follow the course upon which he has embarked.