Australian Building and Construction Commissioner v Albert (No 2) [2021] FCA 799

Australian Building and Construction Commissioner v Albert (No 2) [2021] FCA 799

The Court overruled the objection, holding that the proposed re-examination did not necessarily infringe the prohibition on leading questions and that the evidence did not constitute credibility evidence for the purposes of s 108 of the Evidence Act. However, as the evidence arose out of matters raised in cross-examination and as Mr Andrew's memory might be refreshed by a contemporaneous file note, leave was granted under s 32(1) for him to use the File Note to revive memory during re-examination.

Jurisdiction
Australia
Judgment Date
15 July 2021
Procedural Posture
Civil / Interlocutory Ruling on Evidence Objection During Re Examination
Outcome
Objection overruled; leave granted for memory revival under s 32(1) Evidence Act.
Legal Topics
['re Examination' 'leading Questions' 'credibility Evidence' 'prior Consistent Statement' 'reviving Memory From Document']
['evidence Law' 'employment Law' 'industrial Relations'] ['re Examination' 'leading Questions' 'credibility Evidence' 'prior Consistent Statement' 'reviving Memory From Document']

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Procedural Posture

Civil / Interlocutory Ruling on Evidence Objection During Re Examination

Legal Issues

  1. 1 ['Whether the objection to re-examination with reference to the File Note should be sustained.' 'Whether the proposed re-examination constituted impermissible leading questions under s 37 of the Evidence Act 1995 (Cth).' 'Whether the use or tender of the File Note was permissible under s 39, s 108(1), s 108(3), or s 32 of the Evidence Act 1995 (Cth).']

Ratio Decidendi

The Court overruled the objection, holding that the proposed re-examination did not necessarily infringe the prohibition on leading questions and that the evidence did not constitute credibility evidence for the purposes of s 108 of the Evidence Act. However, as the evidence arose out of matters raised in cross-examination and as Mr Andrew's memory might be refreshed by a contemporaneous file note, leave was granted under s 32(1) for him to use the File Note to revive memory during re-examination.

Court Disposition

Objection overruled; leave granted for memory revival under s 32(1) Evidence Act.

Orders

  • ["The objection taken by the respondents during re-examination to questions about and the tender of Annexure 'DA12' (File Note) is overruled." 'Leave is granted under s 32(1) of the Evidence Act for Mr Andrew to revive his memory from the File Note.']