Grace v Grace [2010] NSWSC 1516

Grace v Grace [2010] NSWSC 1516

Although Mr Ashton's evidence was unfavourable to the defendants, leave under s 38(1)(a) was refused because granting leave would add to the length of the hearing, the topic could and should have been dealt with in examination-in-chief, the evidence was mainly relevant to credit rather than core substantive issues, and s 38 was not intended to permit a party to undo ordinary adverse concessions elicited from its own witness in cross-examination.

Jurisdiction
Australia
Judgment Date
19 November 2010
Procedural Posture
Procedural and Other Ruling in Civil Proceedings / Application by the Defendants for Leave Under Evidence Act 1995 (nsw) S 38(1)(a) to Question Their Witness as If Cross Examining Him During the Hearing
Outcome
Decline to grant the leave sought
Legal Topics
['adverse Witnesses' 'leave to Cross Examine Own Witness' 'unfavourable Evidence' 'evidence Act 1995 (nsw) S 38' 'evidence Act 1995 (nsw) S 192']
['evidence' 'civil Procedure'] ['adverse Witnesses' 'leave to Cross Examine Own Witness' 'unfavourable Evidence' 'evidence Act 1995 (nsw) S 38' 'evidence Act 1995 (nsw) S 192']

Case Brief

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Procedural Posture

Procedural and Other Ruling in Civil Proceedings / Application by the Defendants for Leave Under Evidence Act 1995 (nsw) S 38(1)(a) to Question Their Witness as If Cross Examining Him During the Hearing

Legal Issues

  1. 1 ['Whether evidence given by Mr Ashton was unfavourable to the defendants for the purposes of Evidence Act 1995 (NSW) s 38(1)(a).' 'Whether the Court should exercise its discretion to grant the defendants leave to question Mr Ashton as if cross-examining him.' 'Whether a party who calls a witness but does not ask relevant questions in chief can obtain leave to undermine adverse evidence elicited in cross-examination.']

Ratio Decidendi

Although Mr Ashton's evidence was unfavourable to the defendants, leave under s 38(1)(a) was refused because granting leave would add to the length of the hearing, the topic could and should have been dealt with in examination-in-chief, the evidence was mainly relevant to credit rather than core substantive issues, and s 38 was not intended to permit a party to undo ordinary adverse concessions elicited from its own witness in cross-examination.

Court Disposition

Decline to grant the leave sought

Orders

  • ['Leave sought by the defendants under Evidence Act 1995 (NSW) s 38(1)(a) to question Mr Ashton as if cross-examining him is refused.']