3WJ Pty Ltd & Anor v Kanj [2008] NSWCA 321

3WJ Pty Ltd & Anor v Kanj [2008] NSWCA 321

The trial judge erred by refusing to allow evidence of alleged suborning on the mistaken basis that it was required to be pleaded, and further erred in granting leave for cross-examination under s 38 of the Evidence Act 1995 without properly considering or addressing the factors in s 192(2), necessitating a new trial.

Parties
First Appellant: 3WJ Pty Limited; Second Appellant: Mahmoud Awada; Respondent: Jamal Kanj
Jurisdiction
Australia
Judgment Date
24 November 2008
Procedural Posture
Appeal / Judgment on Appeal From District Court
Outcome
Appeal upheld
Legal Topics
Credibility of Witnesses, Surprise Rule, Pleading of Fraud, Prior Inconsistent Statement, Cross Examination of Own Witness
Evidence Credibility of Witnesses Surprise Rule Pleading of Fraud Prior Inconsistent Statement Cross Examination of Own Witness

Case Brief

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Parties

3WJ Pty Limited

First Appellant

Mahmoud Awada

Second Appellant

Jamal Kanj

Respondent

Procedural Posture

Appeal / Judgment on Appeal From District Court

Legal Issues

  1. 1 Whether the trial judge erred in refusing to allow appellants to call evidence of alleged suborning of a witness
  2. 2 Whether the trial judge erred in permitting cross-examination of a party’s own witness under s 38 of the Evidence Act 1995 and considering prior inconsistent statements

Ratio Decidendi

The trial judge erred by refusing to allow evidence of alleged suborning on the mistaken basis that it was required to be pleaded, and further erred in granting leave for cross-examination under s 38 of the Evidence Act 1995 without properly considering or addressing the factors in s 192(2), necessitating a new trial.

Court Disposition

Appeal upheld

Orders

  • The appeal is upheld.
  • The judgment of Johnstone DCJ is set aside.