District Court New South Wales Medium Neutral Citation: Mitchell-Innes v Willis Australia Group Services Pty Ltd [2014] NSWDC 107 Hearing dates: 15 May 2014 Decision date: 15 May 2014 Jurisdiction: Civil Before: P Taylor SC DCJ Decision: I propose not to allow evidence to be elicited that goes to matters not in the disclosed statement in respect of the witness' opinion about the plaintiff's state of intoxication, as observed on the morning of 28 October 2014. Catchwords: EVIDENCE - matters not disclosed in outline of evidence - whether leave should be granted to adduce evidence Category: Interlocutory applications Parties: Donald Mitchell-Innes (plaintiff/cross-defendant) Willis Australia Group Services Pty Ltd (ACN 006 256 908) (first defendant/cross-claimant) Willis Australia Holdings Ltd (ACN 112 435 079) (second defendant) Representation: Mr J H Pearce (plaintiff) Mr M Seck (defendants) Paul Murphy and Associates Lawyers (plaintiff) Allens Linklaters (defendants) File Number(s): 2013/148638 Publication restriction: None Judgment 1The defendants seek leave to ask questions of the witness. The matters to be asked about were not in terms disclosed in an outline of evidence provided by the defendants to the plaintiff. The plaintiff seeks to have me look at that outline of evidence, but the defendants do not consent to that approach. Because it is common ground that the outline did not disclose the matters I do not think that it is necessary or appropriate for me to look at it. 2The question is, if the matters are not disclosed in the outline of evidence provided by the defendants, whether the defendants should nevertheless be given leave to ask questions to elicit evidence of those matters. The defendants gave no reasons as to why the matters were not in the outline other than they were, perhaps, to some extent at least, related to matters that were disclosed in the outline. 3The directions of the Court do not unambiguously require evidence-in-chief to be given by affidavit or that there be no oral evidence elicited in chief. Yet it is not disputed that the plain intent of the directions were that the parties, as they have done, exchange affidavits of the evidence-in-chief and where that was not possible because of some inability to procure an affidavit, that statements or outlines of anticipated evidence be exchanged. 4If that procedure is to have efficacy and fairness, the parties must, in the ordinary case, be limited to eliciting evidence that has been foreshadowed. 5It may be that statements are sometimes obtained from potential witnesses that do not deal with all of the matters that a party might seek to elicit. I would not regard the party as being bound only to elicit those matters on the statement provided by the witness. But if a party intended to seek to elicit evidence of other matters not disclosed on a statement provided by the witness and served by the party then that party should disclose those matters to the other side at an appropriate time before the witness is called. 6That has not happened in the present case. The first disclosure occurred when a question was asked during examination-in-chief by counsel for the defendants. The particular evidence concerns the witness' experience in noticing intoxicated persons, and forming an opinion as to the state of intoxication of the plaintiff arising from observations occurring some 18 months ago. 7These are matters that could and should have been disclosed previously, if evidence from the witness of these matters was intended. Had they been disclosed, there is the possibility of contrary evidence to be considered and potentially prepared by the plaintiff. 8Nor do I think that the evidence has such probative value in respect of the issues I have to decide that justice would not be served by denying its admission. 9In the circumstances, I do not think that the omission of the defendants to disclose those matters should be overcome by a grant of leave, where the omission creates the real possibility that the plaintiff may be deprived of being able to meet that evidence. The plaintiff has foreshadowed the likelihood of applying for an adjournment. That is not a desirable course but it does underline the problem that arises if evidence sought to be elicited is not disclosed to the other side in contravention of the directed procedure. 10Accordingly, I propose not to allow evidence to be elicited that goes to matters not in the disclosed statement in respect of the witness' opinion about the plaintiff's state of intoxication, as observed on the morning of 28 October 2014. ********** 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: 22 July 2014