Lewis v Nortex Pty Ltd (In Liq); Lamru Pty Ltd v Kation Pty Ltd [2003] NSWSC 335

Lewis v Nortex Pty Ltd (In Liq); Lamru Pty Ltd v Kation Pty Ltd [2003] NSWSC 335

Leave was granted because Mr Lamb's sworn evidence, admitted for the s 38 application, provided a basis for treating it as possible that Mr Potter had made a prior statement inconsistent with paragraphs 3 and 4 of his affidavit. The alleged inconsistency was important: if Mr Lewis' statement was conditional, it did not amount to an admission that stock was missing, but if it was not conditional, it inherently admitted missing stock. The proposed questioning was narrow, was directed to a central contested issue, would not unduly lengthen the hearing, and was not shown to be unfair or prejudicial when the mandatory discretionary factors were considered.

Jurisdiction
Australia
Judgment Date
16 April 2003
Procedural Posture
Evidence Application in Equity Division Proceedings / Application by Lamru Under S 38(1) of the Evidence Act 1995 for Leave to Question Its Own Witness as Though Cross Examining
Outcome
Leave granted to Lamru to question Mr Potter as though cross-examining him about whether he made a prior statement inconsistent with paragraphs 3 and 4 of his affidavit.
Legal Topics
['cross Examination of Own Witness' 'prior Inconsistent Statement' 'hostile Witness' 'leave Under Evidence Act 1995 S 38' 'admissions']
['evidence' 'civil Procedure'] ['cross Examination of Own Witness' 'prior Inconsistent Statement' 'hostile Witness' 'leave Under Evidence Act 1995 S 38' 'admissions']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Evidence Application in Equity Division Proceedings / Application by Lamru Under S 38(1) of the Evidence Act 1995 for Leave to Question Its Own Witness as Though Cross Examining

Legal Issues

  1. 1 ['Whether Lamru should be granted leave under s 38(1)(c) of the Evidence Act 1995 to question Mr Michael Potter as though cross-examining him about whether he made a prior statement inconsistent with paragraphs 3 and 4 of his affidavit.' "Whether the alleged difference between Mr Potter's affidavit evidence and Mr Lamb's account of what Mr Potter said amounted to an important alleged inconsistency." 'Whether the discretionary considerations in ss 38(6) and 192(2) of the Evidence Act 1995, and the considerations in s 135, justified refusing leave.']

Ratio Decidendi

Leave was granted because Mr Lamb's sworn evidence, admitted for the s 38 application, provided a basis for treating it as possible that Mr Potter had made a prior statement inconsistent with paragraphs 3 and 4 of his affidavit. The alleged inconsistency was important: if Mr Lewis' statement was conditional, it did not amount to an admission that stock was missing, but if it was not conditional, it inherently admitted missing stock. The proposed questioning was narrow, was directed to a central contested issue, would not unduly lengthen the hearing, and was not shown to be unfair or prejudicial when the mandatory discretionary factors were considered.

Court Disposition

Leave granted to Lamru to question Mr Potter as though cross-examining him about whether he made a prior statement inconsistent with paragraphs 3 and 4 of his affidavit.

Orders

  • ['Lamru may have leave to question Mr Potter as though it were cross examining him about whether or not he made a prior statement inconsistent with the statements in pars 3 and 4 of his affidavit.']