Welsh v Carnival PLC trading as Carnival Australia (No 1) [2016] NSWSC 1270

Supreme Court New South Wales

Medium Neutral Citation: Welsh v Carnival PLC trading as Carnival Australia (No 1) [2016] NSWSC 1270 Hearing dates: 5, 6 September 2016 Date of orders: 09 September 2016 Decision date: 09 September 2016 Jurisdiction: Common Law Before: Bellew J Decision: See [9] Catchwords: EVIDENCE – Re-examination – Whether question properly arise out of cross-examination Legislation Cited: Civil Liability Act 2002 (NSW) Evidence Act 1995 (NSW) Trade Practices Act 1974 (Cth) Cases Cited: Hadid v Australis Media Limited (No 14) (Supreme Court (NSW), 5 November 1996, unreported) R v Rogerson; R v McNamara (No 49) [2016] NSWSC 577 Texts Cited: N Williams, J Anderson, J Marychurch and J Roy, Uniform Evidence in Australia (2015) Category: Principal judgment Parties: Graham Welsh - Plaintiff Carnival PLC trading as Carnival Australia - Defendant Representation: Counsel: Mr R Royle & Ms F Graham - Plaintiff Mr M McCulloch SC & Ms T Berberian - Defendant

Solicitors: Slater and Gordon Lawyers - Plaintiff HWL Ebsworth - Defendant File Number(s): 2012/198495 Publication restriction: Nil

Judgment – EX TEMPORE (revised) 1. In the course of the cross‑examination of the plaintiff (commencing at T77 L30) counsel for the defendant asked a series of questions about a feasibility study which was conducted in respect of what has been referred to in the evidence as a land development project at Thornhill Park. 2. In the course of asking those questions, counsel for the defendant canvassed with the plaintiff those aspects of the feasibility study which he was responsible for undertaking. The matters canvassed included what the plaintiff considered was the potential of the site for development, the plaintiff's assessment of the number of lots that might be realised from the purchase of the land, as well as other factors which the plaintiff was said to have taken into account for the purposes of determining whether or not the purchase price of $16.5 million was an appropriate one. 3. The plaintiff was then cross‑examined (at T79-T80) as to costings which he calculated, and the process of subtracting, from the purchase price, the estimated construction costs. 4. In the course of re‑examination, the plaintiff was taken to the feasibility study and was asked a question, the effect of which was to elicit evidence as to what other things he did in the course of the conduct of that feasibility study. Counsel for the defendant objected to that question and submitted, in short, that it did not arise from cross‑examination so as to bring it within the terms of s. 39 of the Evidence Act 1995 (NSW) ("the Act"). Counsel for the defendant submitted, in particular, that the cross‑examination in relation to this topic, to which I have referred in broad terms, had been put succinctly, completely and with considerable particularity. He submitted that in those circumstances, there was no ambiguity or uncertainty arising from the answers given in cross‑examination which would justify the question sought to be put in re‑examination. 5. Counsel for the plaintiff submitted that it was open to him, in the light of the cross‑examination, to elicit with greater particularity evidence from the plaintiff as to what he did, and what tasks he performed, in the course of undertaking the study. 6. There is authority for the proposition that despite its broad terms, s. 39 of the Act is limited to cases in which there is a degree of ambiguity so as to justify re‑examination. In Hadid v Australis Media Limited (No 14) (Supreme Court (NSW), 5 November 1996, unreported) Sperling J made a number of observations comparing the position at common law with that under s. 39. His Honour observed, amongst other things, that at common law the purpose of re‑examination was not merely to remove ambiguities and uncertainties, and that re-examination was permitted whenever an answer in cross‑examination would, unless supplemented or explained, leave the Court with an impression which was capable of being construed unfavourably to the party calling the witness, and which therefore represented a distortion, or incomplete account, of the truth as the witness was able to present it. His Honour went on to pose the question of whether or not the terms of s. 39 of the Act were more liberal than the common law position, although his judgment did not resolve that question. I also touched upon these matters in the R v Rogerson; R v McNamara (No 49) [2016] NSWSC 577, although like Sperling J I did not have to resolve the question of whether the terms of s. 39 were more limited than the position at common law. 7. It is important when dealing with an issue such as this to look at the evidence as a whole. The authors of Uniform Evidence in Australia (at para 39‑3) make the observation that an answer given in cross‑examination may appear clear and unequivocal, but may nevertheless justify re‑examination to explain it or place it in perspective, having regard to the use that would be made of it by cross‑examining counsel. 8. In my view, notwithstanding the limitations imposed by s. 39, the proposed re‑examination in the present case ought be permitted. Whilst it is certainly the case that a number of specific matters were put to the plaintiff in the course of cross‑examination, that does not, in my view, prevent further evidence being elicited on the same subject matter in re-examination. 9. I propose, for those reasons, to allow the question.