Grace v Grace [2010] NSWSC 1515

Grace v Grace [2010] NSWSC 1515

Leave under s 38 was refused because the circumstances in which Mr Ashton modified his evidence about prior possession of the deed did not suggest that he was failing to make a genuine attempt to give evidence, and although he had made a prior inconsistent statement about possession of the corporate register, he acknowledged it and his subsequent evidence accommodated it so that further cross-examination by the party calling him was not shown to be necessary or desirable.

Jurisdiction
Australia
Judgment Date
19 November 2010
Procedural Posture
Procedural Ruling in Equity Division Proceeding / Defendants' Application for Leave Pursuant to (nsw) Evidence Act 1995, S 38 to Question Their Own Witness as Though Cross Examining
Outcome
Decline to grant the leave sought
Legal Topics
['witnesses' 'adverse Witnesses' 'leave to Cross Examine Own Witness' 'prior Inconsistent Statement' 'genuine Attempt to Give Evidence']
['evidence' 'civil Procedure'] ['witnesses' 'adverse Witnesses' 'leave to Cross Examine Own Witness' 'prior Inconsistent Statement' 'genuine Attempt to Give Evidence']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 1 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Procedural Ruling in Equity Division Proceeding / Defendants' Application for Leave Pursuant to (nsw) Evidence Act 1995, S 38 to Question Their Own Witness as Though Cross Examining

Legal Issues

  1. 1 ['Whether the witness was not making a genuine attempt to give evidence about a matter of which he may reasonably be supposed to have knowledge for the purposes of s 38(1)(b).' 'Whether the witness had made a prior inconsistent statement for the purposes of s 38(1)(c).' 'Whether leave should be granted to the defendants to question their own witness as though cross-examining him.']

Ratio Decidendi

Leave under s 38 was refused because the circumstances in which Mr Ashton modified his evidence about prior possession of the deed did not suggest that he was failing to make a genuine attempt to give evidence, and although he had made a prior inconsistent statement about possession of the corporate register, he acknowledged it and his subsequent evidence accommodated it so that further cross-examination by the party calling him was not shown to be necessary or desirable.

Court Disposition

Decline to grant the leave sought

Orders

  • ['I decline to grant leave pursuant to s 38 at this stage.']