Donald v Rail Corporation of New South Wales (No 9) [2015] NSWSC 1936

Donald v Rail Corporation of New South Wales (No 9) [2015] NSWSC 1936

Because Mr Bamford's statement had been served under a direction to which r 31.4 applied but Mr Bamford was not called to give evidence, the first defendant required leave to tender the statement. The Court controlled receipt of the statement under r 31.4(4) and granted leave to tender it against the second defendant on the condition that the plaintiff be permitted to rely on paragraph 28.

Jurisdiction
Australia
Judgment Date
10 November 2015
Procedural Posture
Procedural and Other Ruling / Application by the First Defendant for Leave to Tender a Witness Statement During the Hearing
Outcome
Leave granted to the first defendant to tender the statement of John Murray Bamford dated 17 September 2015, on condition that the plaintiff be permitted to rely upon paragraph 28.
Legal Topics
['admissibility of Witness Statement' 'tender of Witness Statement Where Intended Witness Not Called' 'uniform Civil Procedure Rules 2005 (nsw) R 31.4(4)' 'leave to Put Witness Statement in Evidence']
['evidence' 'civil Procedure'] ['admissibility of Witness Statement' 'tender of Witness Statement Where Intended Witness Not Called' 'uniform Civil Procedure Rules 2005 (nsw) R 31.4(4)' 'leave to Put Witness Statement in Evidence']

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Procedural Posture

Procedural and Other Ruling / Application by the First Defendant for Leave to Tender a Witness Statement During the Hearing

Legal Issues

  1. 1 ['Whether the first defendant required leave to tender the statement of John Murray Bamford where the second defendant had served the statement but did not propose to call him as a witness.' 'Whether leave should be granted to tender the statement against the second defendant, and on what condition.']

Ratio Decidendi

Because Mr Bamford's statement had been served under a direction to which r 31.4 applied but Mr Bamford was not called to give evidence, the first defendant required leave to tender the statement. The Court controlled receipt of the statement under r 31.4(4) and granted leave to tender it against the second defendant on the condition that the plaintiff be permitted to rely on paragraph 28.

Court Disposition

Leave granted to the first defendant to tender the statement of John Murray Bamford dated 17 September 2015, on condition that the plaintiff be permitted to rely upon paragraph 28.

Orders

  • ['Grant leave to the first defendant to tender the statement of John Murray Bamford dated 17 September 2015.' 'The statement is tendered against the second defendant.' 'The plaintiff is permitted to rely upon the content of paragraph 28 of the statement.']