Wright v Optus Administration & Anor (No 4) [2013] NSWSC 1716

Supreme Court New South Wales

Medium Neutral Citation: Wright v Optus Administration & Anor (No 4) [2013] NSWSC 1716 Hearing dates: 12/11/13 Decision date: 12 November 2013 Jurisdiction: Common Law Before: Campbell J Decision: I reject the question Catchwords: EVIDENCE - admissibility of question Legislation Cited: Evidence Act 1995 (NSW) Category: Procedural and other rulings Parties: Glen Wright (plaintiff) Optus Administration Pty Ltd (first defendant) IPA Personnel Pty Limited (second defendant) Representation: Counsel: RA Cavanagh SC with CJ Callaway (plaintiff) JB Simpkins SC with DF Villa (first defendant) W Reynolds (second defendant) Solicitors: Firths (plaintiff) Hunt & Hunt (first defendant) Sparke Helmore Lawyers (second defendant) File Number(s): 2009/297493

Ex Tempore Judgment 1Mr Simpkins of senior counsel, who appears for the first defendant with Mr Villa, is asking a series of questions of the plaintiff, Mr Wright, relating to his capacity to conduct a business from home by way of fabricating, or assembling, horse blankets and dog coats. 2The line of questioning commenced by reference to some documents prepared by Mr Wright (which have been admitted as exhibit 1D1) in which, for the purpose of his workers compensation case, he made representations to his case manager that he might be able to carry on such a business, and seeking funding from the workers compensation insurer for that purpose. Those questions were first asked during cross-examination yesterday afternoon. The topic has been revisited this morning. 3During the course of answering questions Mr Wright has said that he no longer believes he could successfully run such a business, and one reason that he has given for that is that when he sold some horses he had, he attempted to market some accessories for those horses on eBay and, to summarise his evidence, he mucked up the transactions because of mental difficulties, which he implies are due to his mental condition. I am yet to see any medical evidence in the case, I interpolate. 4Senior counsel is in the process of testing the reliability of that assertion. It is clear from the tone and manner of this part of the cross-examination that he is sceptical of the veracity of those answers. Senior counsel has in the course of the cross-examination asked the witness to provide his eBay details, and Mr Wright has said in response to those questions initially that he is having trouble remembering them off the top of his head, although he could obtain them from his computer. Counsel then asked a question, to the effect of, "Well, are you prepared to do that for us so we can check what you say about these things", and it is to that question that Mr Cavanagh of senior counsel objects. The objection is on the basis essentially that the question constitutes no more than fishing and, to that extent, goes beyond the permissible limits of an indulgent cross-examination. I am not suggesting that Mr Simpkins is being self indulgent; I am only suggesting that, if I have been indulgent about it, it goes beyond even those limits. 5I agree with Mr Cavanagh's submission. It seems to me that in the circumstances as I have relayed them the question really is a matter going wholly to credit. The questions have been asked about capacity to conduct a business and I accept that that issue is a material issue as to the quantum of the claim. However, in the course of the cross-examination, which I have narrated for the purpose of these reasons, I have formed the impression, from the interplay between the cross-examiner and the witness, that effectively these questions are a challenge to the witness on the basis that he is not telling the truth. It seems to me that the matter goes entirely to that collateral issue and, bearing in mind the exclusionary rule in s 102 of the Evidence Act 1995 (NSW), I should disallow the question. 6It has not been shown to my satisfaction that this question, which does not seek to elicit admissible evidence, but rather seeks to obtain information to found further investigations, falls within any of the exceptions to the credibility rule contained in Part 3.7 of that Act. Moreover, the time for investigation of the facts of the case has passed. We are now in the second day of the trial and, as I discussed with Mr Simpkins during the course of argument, there are significant procedural difficulties attendant upon allowing the matter to be adjourned while the witness remains under cross-examination, and permitting presumably Mr Simpkins's instructing solicitor to go away and undertake further investigations which may found yet further cross-examination. 7To my mind, that process is not justified at this stage. In any event, I am also of the view that had this information been sought by way of particulars, for instance, prior to the commencement of the trial and at an appropriate time during case management, it is very unlikely that the Court would have ordered this information to be provided. It may be, had discovery been exceptionally allowed in this personal injuries case, that such information might have been the subject of an order, but, even if that were so, the time for discovery has, like other interlocutory steps, long since passed. 8I propose to reject the question. I will permit counsel to continue in the conventional way to cross-examine the witness about these matters to test them, if he considers that to be an appropriate course in the exercise of his judgment. However I will proceed on the basis of the usual rule that answers to questions founded on the basis of credit will stand unless an exception is demonstrated to my satisfaction in accordance with the provisions of s 106 of the Evidence Act.