Supreme Court New South Wales Medium Neutral Citation: Kuypers v Ashton Coal Operations Pty Ltd & Anor (No 7) [2015] NSWSC 1186 Hearing dates: 4, 5 August (Evidence on Commission); 7, 10 – 14, 17 – 18 August 2015 Date of orders: 18 August 2015 Decision date: 18 August 2015 Jurisdiction: Common Law Before: Campbell J Decision: Question allowed Catchwords: PROCEDURE – civil – admissibility of question asked in cross examination – whether question is relevant and fair Legislation Cited: Evidence Act 1995 (NSW); Water Act 1912 (NSW) Category: Procedural and other rulings Parties: Benjamin Kuypers (Plaintiff); Ashton Coal Operations Pty Ltd (First defendant); Silver City Drilling (NSW) Pty Ltd (Second defendant) Representation: Counsel: B. Dooley SC with M. Perry (Plaintiff); R.A. Cavanagh SC with Ms D.J. Dinkha (First defendant); A.R. Harris QC with I.D. Roberts SC and S.L.C. Flett (Second defendant) Solicitors: Taylor & Scott Lawyers (Plaintiff); Curwoods Lawyers (First defendant); Lee Legal Group (Second defendant) File Number(s): 2012/393861 revised extempore judgment 1. Mr Cavanagh SC has asked Mr McKinnon whether, at the commencement of the job, and I am paraphrasing, he truly believed that Mr Thomson was a necessary part of the team to perform the work at bore-holes 3 and 4 in circumstances where Mr McKinnon had volunteered that detail in response to another question of Mr Cavanagh's. 2. Mr Harris QC has objected to the question on three bases. The first basis is that his belief is irrelevant. This is related to other grounds. First, the question of the contract is a legal question for me and it is the second defendant's case that the contract required the first defendant to provide the services of Mr Thomson. Secondly, whether Mr McKinnon believed that a water-bore driller was required on the job is irrelevant because that is a matter which will in the end, depend upon the interpretation of the Water Act 1912 (NSW) and the regulations made thereunder. Thirdly, the question is unfair because it does not adequately put to Mr McKinnon the occasion on which he is said to have said something else with which the question is obviously pregnant to anyone who has any experience in the everyday business of these courts. 3. It seems to me that, as Mr Cavanagh has submitted, the question of Mr McKinnon's credit is likely to be a live issue in the case and Mr Cavanagh is entitled to test it, including by reference to prior inconsistent statements in accordance with the provisions of s 106 Evidence Act 1995 (NSW). 4. Moreover, I am not of the view that the question of what Mr McKinnon thought about that matter is solely collateral. It seems to me that, whatever the contract provided in relation to the provision of the services of a class 4 water-bore driller is not the beginning and end of the matter. It seems to me that there are questions of causation which depend upon the competence of SCD to perform this work, whatever the relevant regulatory scheme within which it had to be performed. That being so, I am of the view that the question is a relevant one. 5. It also seems to me that it is fair enough as an introductory question for counsel for the first defendant to put it to the witness, even somewhat belligerently, that the matter he volunteered does not represent a belief honestly held by him, and that is an obvious preliminary question to the cross‑examination in relation to what I anticipate senior counsel believes will be prior inconsistent statements. I propose to allow the question. ********** 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: 21 August 2015