James Mark Waugh & Ors v TAFE NSW Western Institute & Anor (No 3) [2013] NSWSC 1662

James Mark Waugh & Ors v TAFE NSW Western Institute & Anor (No 3) [2013] NSWSC 1662

The plaintiff was entitled to proceed with cross-examination under s 43 about the alleged prior inconsistent statement without first satisfying the Court that the interview transcript would ultimately be admitted; s 43(2) concerns conditions for admission of the statement, s 43(3) permits reopening if necessary, and s 44 did not apply because the questioning was not about a previous representation made by another person.

Jurisdiction
Australia
Judgment Date
31 October 2013
Procedural Posture
Procedural and Other Ruling / Objection During Cross Examination in an Ex Tempore Judgment
Outcome
Objection overruled.
Legal Topics
['admissibility' 'cross Examination' 'prior Inconsistent Statement' 'evidence Act 1995 (nsw) S 43' 'reopening a Case to Adduce Evidence of a Statement']
['evidence' 'civil Procedure'] ['admissibility' 'cross Examination' 'prior Inconsistent Statement' 'evidence Act 1995 (nsw) S 43' 'reopening a Case to Adduce Evidence of a Statement']

Case Brief

Summary, issues, holding and outcome

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Procedural Posture

Procedural and Other Ruling / Objection During Cross Examination in an Ex Tempore Judgment

Legal Issues

  1. 1 ['Whether counsel could cross-examine the second defendant under s 43 of the Evidence Act 1995 (NSW) about an alleged prior inconsistent statement recorded in an interview transcript when the witness had not adopted the transcript as accurate.' 'Whether the cross-examiner had to satisfy the Court at that stage that the transcript would later be admissible in evidence.' "Whether closure of the plaintiff's lay case prevented later adducing evidence of the alleged statement if necessary."]

Ratio Decidendi

The plaintiff was entitled to proceed with cross-examination under s 43 about the alleged prior inconsistent statement without first satisfying the Court that the interview transcript would ultimately be admitted; s 43(2) concerns conditions for admission of the statement, s 43(3) permits reopening if necessary, and s 44 did not apply because the questioning was not about a previous representation made by another person.

Court Disposition

Objection overruled.

Orders

  • ["Mr McCulloch's objection is overruled and Mr Morris is allowed to follow the course upon which he has embarked."]