Zaya v Manidis Roberts Pty Ltd and UGL Infrastructure Pty Ltd and Anor [2018] NSWSC 388

Zaya v Manidis Roberts Pty Ltd and UGL Infrastructure Pty Ltd and Anor [2018] NSWSC 388

The evidence in paragraphs 73 to 77 of Exhibit C was admissible as a potential admission by silence because it was relevant to whether the hazard was created by Mr Valletta's direction, it was reasonably open to find that Mr Valletta was the first defendant's site supervisor acting within the scope of his employment, and in the civil context it was fairly open to infer that a denial would have been expected if the allegation were false. However, because of the late evidential statement and the need to assess oral accounts and demeanour, the evidence was rejected in written form and was to be given orally.

Jurisdiction
Australia
Judgment Date
20 March 2018
Procedural Posture
Common Law Procedural Ruling in Personal Injury Proceedings / Interlocutory Evidentiary Ruling on Admissibility
Outcome
The evidence in paragraphs 73 to 77 of Exhibit C was ruled admissible, but rejected in written form and directed to be covered in oral evidence-in-chief.
Legal Topics
['admissions by Conduct' 'admissions by Silence' 'hearsay' 'relevance' 'admissibility of Evidence' 'oral Evidence in Chief']
['civil Procedure' 'evidence' 'personal Injury'] ['admissions by Conduct' 'admissions by Silence' 'hearsay' 'relevance' 'admissibility of Evidence' 'oral Evidence in Chief']

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Procedural Posture

Common Law Procedural Ruling in Personal Injury Proceedings / Interlocutory Evidentiary Ruling on Admissibility

Legal Issues

  1. 1 ["Whether paragraphs 73 to 77 of the plaintiff's supplementary evidential statement were admissible as evidence of an admission by conduct or silence by the first defendant's site supervisor." 'Whether silence in response to an allegation could amount to a previous representation and admission under the Evidence Act 1995 (NSW).' 'Whether the evidence should be received in written form or given orally in evidence-in-chief.']

Ratio Decidendi

The evidence in paragraphs 73 to 77 of Exhibit C was admissible as a potential admission by silence because it was relevant to whether the hazard was created by Mr Valletta's direction, it was reasonably open to find that Mr Valletta was the first defendant's site supervisor acting within the scope of his employment, and in the civil context it was fairly open to infer that a denial would have been expected if the allegation were false. However, because of the late evidential statement and the need to assess oral accounts and demeanour, the evidence was rejected in written form and was to be given orally.

Court Disposition

The evidence in paragraphs 73 to 77 of Exhibit C was ruled admissible, but rejected in written form and directed to be covered in oral evidence-in-chief.

Orders

  • ['The evidence set out in paragraphs 73 to 77 of Exhibit C is admissible.' 'The evidence is rejected in written form.' 'The topic is to be covered in oral evidence-in-chief.']