Jennifer Ann Nash v Resource Pacific Pty Limited (No 2) [2016] NSWIC 8

Jennifer Ann Nash v Resource Pacific Pty Limited (No 2) [2016] NSWIC 8

The Court held that the 10 tonne or approximately 10 tonne weight of an individual load of reject released by Reject Bin 802 was an agreed fact within s 191(1) of the Evidence Act 1995. The Flanagan affidavit was introduced only to contradict or qualify that agreed fact by suggesting a range of 8.5 to 12.5 tonnes. Leave under s 191(2) was therefore required, and after considering s 192(2) and the submissions, the Court refused leave. Because no leave was granted for the only stated use of the affidavit, it was inadmissible.

Jurisdiction
Australia
Judgment Date
06 July 2016
Procedural Posture
Occupational Health and Safety Prosecution Under S 8(2) and S 10(2) of Occupational Health and Safety Act 2000 / Procedural Ruling on Admissibility of the Flanagan Affidavit After Expert Conclave and Before Concurrent Evidence
Outcome
Leave refused; Flanagan affidavit held inadmissible.
Legal Topics
['expert Evidence' 'concurrent Evidence' 'agreed Facts' 'admissibility of Affidavit Evidence' 'leave to Contradict or Qualify Agreed Facts' 'case Management']
['occupational Health and Safety' 'evidence' 'civil Procedure'] ['expert Evidence' 'concurrent Evidence' 'agreed Facts' 'admissibility of Affidavit Evidence' 'leave to Contradict or Qualify Agreed Facts' 'case Management']

Case Brief

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Procedural Posture

Occupational Health and Safety Prosecution Under S 8(2) and S 10(2) of Occupational Health and Safety Act 2000 / Procedural Ruling on Admissibility of the Flanagan Affidavit After Expert Conclave and Before Concurrent Evidence

Legal Issues

  1. 1 ['Whether the fact that an individual load of reject released by Reject Bin 802 weighed 10 tonnes or approximately 10 tonnes was an agreed fact within the meaning of s 191(1) of the Evidence Act 1995.' 'Whether the Flanagan affidavit contradicted or sought to qualify that agreed fact by contending that the mass of an individual load may have ranged from 8.5 to 12.5 tonnes.' 'Whether leave should be granted under s 191(2) of the Evidence Act 1995 to adduce the Flanagan affidavit for that purpose.' 'Whether the Flanagan affidavit was admissible in the proceedings.']

Ratio Decidendi

The Court held that the 10 tonne or approximately 10 tonne weight of an individual load of reject released by Reject Bin 802 was an agreed fact within s 191(1) of the Evidence Act 1995. The Flanagan affidavit was introduced only to contradict or qualify that agreed fact by suggesting a range of 8.5 to 12.5 tonnes. Leave under s 191(2) was therefore required, and after considering s 192(2) and the submissions, the Court refused leave. Because no leave was granted for the only stated use of the affidavit, it was inadmissible.

Court Disposition

Leave refused; Flanagan affidavit held inadmissible.

Orders

  • ['The Court refused to grant leave to the defendant to adduce the Flanagan affidavit to contradict or qualify the agreed fact.' 'The Flanagan affidavit is not admissible in these proceedings.']