Donald v Rail Corporation of New South Wales (No 5) [2015] NSWSC 1750

Donald v Rail Corporation of New South Wales (No 5) [2015] NSWSC 1750

The tender of Exhibit VD4 is rejected because the requirements for admissibility under s 64(2) Evidence Act 1995 (NSW) have not been met; no sufficient evidence has been provided to establish that calling the witness would cause undue expense, undue delay, or would not be reasonably practicable. The s 67 notice was also defective in failing to provide disclosure of other representations or state that none exist.

Parties
Plaintiff: Alan Donald; First Defendant: Rail Corporation of New South Wales; Second Defendant: Workers Compensation Nominal Insurer
Jurisdiction
Australia
Judgment Date
05 November 2015
Procedural Posture
Procedural Ruling / Interlocutory Application Regarding Admissibility of Evidence
Outcome
Tender of Exhibit VD4 rejected
Legal Topics
Hearsay, Admissibility of Evidence, Section 64 Evidence Act 1995 (nsw), Section 67 Notice Requirements
Evidence Law Hearsay Admissibility of Evidence Section 64 Evidence Act 1995 (nsw) Section 67 Notice Requirements

Case Brief

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Parties

Alan Donald

Plaintiff

Rail Corporation of New South Wales

First Defendant

Workers Compensation Nominal Insurer

Second Defendant

Procedural Posture

Procedural Ruling / Interlocutory Application Regarding Admissibility of Evidence

Legal Issues

  1. 1 Whether a statement of a witness currently overseas is admissible under the hearsay exception in s 64(2) Evidence Act 1995 (NSW)
  2. 2 Whether requirements for notice under s 67 and disclosure have been met
  3. 3 Whether s 190 waiver of rules of evidence should apply

Ratio Decidendi

The tender of Exhibit VD4 is rejected because the requirements for admissibility under s 64(2) Evidence Act 1995 (NSW) have not been met; no sufficient evidence has been provided to establish that calling the witness would cause undue expense, undue delay, or would not be reasonably practicable. The s 67 notice was also defective in failing to provide disclosure of other representations or state that none exist.

Court Disposition

Tender of Exhibit VD4 rejected

Orders

  • Exhibit VD4 may be returned to the first defendant
  • The notices will be retained