NM Rural Enterprises Pty Ltd v Rimanui Farms Limited [2011] NSWSC 203

NM Rural Enterprises Pty Ltd v Rimanui Farms Limited [2011] NSWSC 203

Given the embargo on Mr Taylor's affidavit, the first defendant was deprived of the opportunity to decide whether to cross-examine him about matters relevant to credibility or prior inconsistent statements. The evidence in the affidavit and in court was sufficiently inconsistent and potentially unfavourable such that, in the interests of justice and ensuring a fair hearing, it is appropriate to recall Mr Taylor and to grant the first defendant leave to cross-examine pursuant to s 38 Evidence Act 1995.

Parties
Plaintiff: NM Rural Enterprises Pty Ltd; First Defendant: Rimanui Farms Limited; Second Defendant: Gil Gil Farming Pty Ltd; Third Defendant: Lloyds Syndicate No 1243
Jurisdiction
Australia
Judgment Date
25 March 2011
Procedural Posture
Interlocutory Application / Ruling on Application to Recall Witness and Grant Leave to Cross Examine Under S 38 Evidence Act 1995
Outcome
Application granted in part; leave to cross-examine witness given, witness to be recalled, costs reserved.
Legal Topics
Unfavourable Witness, Cross Examination, Prior Inconsistent Statement, Credibility of Witness, Leave to Cross Examine Under S 38 Evidence Act 1995
Evidence Unfavourable Witness Cross Examination Prior Inconsistent Statement Credibility of Witness Leave to Cross Examine Under S 38 Evidence Act 1995

Case Brief

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Parties

NM Rural Enterprises Pty Ltd

Plaintiff

Rimanui Farms Limited

First Defendant

Gil Gil Farming Pty Ltd

Second Defendant

Lloyds Syndicate No 1243

Third Defendant

Procedural Posture

Interlocutory Application / Ruling on Application to Recall Witness and Grant Leave to Cross Examine Under S 38 Evidence Act 1995

Legal Issues

  1. 1 Whether Oliver Taylor should be recalled to give evidence
  2. 2 Whether leave should be granted to the first defendant to cross-examine their own witness pursuant to s 38 Evidence Act 1995
  3. 3 Whether witness is unfavourable or has made a prior inconsistent statement

Ratio Decidendi

Given the embargo on Mr Taylor's affidavit, the first defendant was deprived of the opportunity to decide whether to cross-examine him about matters relevant to credibility or prior inconsistent statements. The evidence in the affidavit and in court was sufficiently inconsistent and potentially unfavourable such that, in the interests of justice and ensuring a fair hearing, it is appropriate to recall Mr Taylor and to grant the first defendant leave to cross-examine pursuant to s 38 Evidence Act 1995.

Court Disposition

Application granted in part; leave to cross-examine witness given, witness to be recalled, costs reserved.

Orders

  • Order that Oliver Taylor be recalled to give evidence.
  • Grant leave pursuant to s 38 Evidence Act 1995 to the first defendant to cross-examine Oliver Taylor with respect to his affidavit sworn 27 November 2010 and his evidence given on 15 December 2010.