Donald v Rail Corporation of New South Wales (No 3) [2015] NSWSC 1674

Supreme Court New South Wales

Medium Neutral Citation: Donald v Rail Corporation of New South Wales (No 3) [2015] NSWSC 1674 Hearing dates: 20 – 23 June 2015; 2, 3 November 2015 Date of orders: 03 November 2015 Decision date: 03 November 2015 Jurisdiction: Common Law Before: Campbell J Decision: I admit the whole of Exhibit VD1 as Exhibit 1D7, and Exhibit VD2 as Exhibit 1D8 Catchwords: EVIDENCE – admissibility of email thread – where one email is said to contain an admission by plaintiff's solicitor Category: Procedural and other rulings Parties: Alan Donald (Plaintiff) Rail Corporation of New South Wales (First Defendant) Workers Compensation Nominal Insurer (Second Defendant) Representation: Counsel: DR Campbell SC with S Longhurst (Plaintiff); RJ Burbidge QC with A Casselden (First Defendant); M Windsor SC with R Perla (Second Defendant)

Solicitors: Acorn Lawyers (Plaintiff); Hicksons Lawyers (First Defendant); Moray & Agnew Lawyers (Second Defendant) File Number(s): 2010/349997

ex tempore judgment (revised) 1. Mr Burbidge has tendered in the hearing Exhibits VD1 and VD2. There is no controversy about Exhibit VD2. Exhibit VD1 consists of an exchange of emails between the solicitor for the first defendant and the solicitor for the plaintiff about the plaintiff's use of the prescription medication Panadeine Forte, which was the subject of my judgment yesterday, refusing the first defendant's application to have the plaintiff recalled for further cross‑examination. 2. Exhibit VD1 consists of a printout of a series of six emails between the solicitors about that topic. I think it is fair to say that some of the information provided by the plaintiff's solicitor is contradictory; however, the final email at 4.40 pm on 28 October 2015 contains, I will call it for present purposes, an admission that the plaintiff has not taken any prescription pain killing medication since the last Dr Ajam script. The last Dr Ajam script was filled on 27 March 2015 as Exhibit VD2 establishes. 3. As ever with admissions, their evidential value depends upon their context and their surrounding circumstances. Without making any finding at this time, which would be entirely premature, about the weight and effect that should be given to the admission contained in the 4.40 pm email or whether, as Mr Burbidge QC submits, a more significant admission is to be garnered from looking at the whole of the exchange, for those are a matter that I will have to decide in due course, it does seem to me that the whole exchange is admissible because the other emails provide the context in which the admission in the 4.40 pm email was given or made. Having said that, as I ruled yesterday, that admission, if it be such, is consistent with the oral testimony given by the plaintiff under cross‑examination, even if, potentially, it seems inconsistent with the general statements made in his evidential statement (Exhibit A1). 4. I admit the whole of Exhibit VD1 as Exhibit 1D7, and Exhibit VD2 as Exhibit 1D8.