3WJ Pty Ltd v Kanj

Case [2008] NSWCA 321

New South Wales


Court of Appeal


CITATION: 3WJ Pty Ltd & Anor v Kanj [2008] NSWCA 321
HEARING DATE(S): 24 November 2008
JUDGMENT OF: Allsop P at 1, 33, 44; Hodgson JA at 40; Ipp JA at 2
EX TEMPORE JUDGMENT DATE: 24 November 2008
DECISION: 1. The appeal is upheld.
2. The judgment of Johnstone DCJ is set aside.
3. The matter is remitted to the District Court for a new trial.
4. The respondent to pay the appellants' costs of the appeal.
5. The costs of the trial to be at the discretion of the trial judge who hears the remitted trial.
CATCHWORDS: EVIDENCE - credibility - surprise rule - where trial judge refused to allow the appellants to call witnesses impugning credibility of respondents' witness - whether pleadable accusation of fraud - EVIDENCE - prior inconsistent statement - cross examination of own witness - whether trial judge had regard to matters set out in s 192 of the Evidence Act 1995
LEGISLATION CITED: Evidence Act 1995
Suitors' Fund Act 1951
CATEGORY: Principal judgment
CASES CITED: Baulderstone v Gordion Runoff [2008] NSWCA 243
Ghazal v GIO (1992) 29 NSWLR 236
Ghazal v GIO of NSW (1992) 20 NSWLR 336
Glover v Australian Ultra Concrete Floors Pty Limited [2003] NSWCA 80
Inzaurralde v GIO (Court of Appeal, 28 October 1992, unreported)
Jazairy v Najjar [1999] NSWCA; (1999) 27 MVR 4398
Kirby v Sanderson Motors Pty Limited [2002] NSWCA 44; (2001) 54 NSWLR 135
R v Reardon [2002] NSWCCA 203
Regina v Le [2002] NSWCA 186
Stanoevski v R [2001] HCA 4; (2001) 202 CLR 115
PARTIES: 3WJ Pty Limited (First Appellant)
Mahmoud Awada (Second Appellant)
Jamal Kanj (Respondent)
FILE NUMBER(S): CA 40016/08
COUNSEL: N C Hutley SC; A P Quinlivan (Appellant)
M L Williams SC; D M Macfarlane (Respondent)
SOLICITORS: A R Conolly & Company (Appellants)
Carroll & O'Dea Lawyers (Respondent)
LOWER COURT JURISDICTION: District Court
LOWER COURT FILE NUMBER(S): 1219/04
LOWER COURT JUDICIAL OFFICER: Johnstone DCJ
LOWER COURT DATE OF DECISION: 18 December 2007





                          CA 40016/08
                          DC 1219/04

                          ALLSOP P
                          HODGSON JA
                          IPP JA

                          24 NOVEMBER 2008
3WJ PTY LTD & Anor v Jamal KANJ
      Judgment

1 ALLSOP P: I will ask Ipp JA to deliver the first judgment.

2 IPP JA: This appeal turns on issues involving the law of evidence.

3 The respondent, Mr Kanj, was the plaintiff below. The first appellant, 3WJ Pty Ltd, was the first defendant and the second appellant, Mr Awada, an employee of 3WJ, was the second defendant. Mr Kanj was injured at the premises of 3WJ when he fell two or three metres from the back of a truck while loading it. He alleged that he fell because a forklift, negligently driven by Mr Awada, collided with the truck. He claimed damages for his injuries from 3WJ and Mr Awada.

4 The appellants denied liability. They contended that the forklift did not collide with the truck and did not cause Mr Kanj’s fall. Whether the forklift…

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3WJ Pty Ltd v Kanj [2008] NSWCA 321
Case
[2008] NSWCA 321
Decision Date

CaseChat Overview and Summary

3WJ Pty Ltd and others (the appellants) appealed to the Court of Appeal of New South Wales against a decision of Johnstone DCJ in the District Court. The dispute concerned allegations of fraud, and the central issue on appeal was the trial judge's refusal to permit the appellants to call witnesses to challenge the credibility of a key witness for the respondents.

The Court of Appeal was required to determine whether the trial judge erred in refusing to allow the appellants to adduce evidence impugning the credibility of the respondents' witness, particularly in circumstances where the accusation of fraud was pleaded. Further, the court considered whether the trial judge had regard to the relevant matters under section 192 of the *Evidence Act 1995* (NSW) when making decisions about the admissibility of evidence, including the cross-examination of a party's own witness.

The Court of Appeal found that the trial judge had misapplied the "surprise rule" and had not properly considered the principles governing the admission of evidence relevant to credibility, especially in the context of fraud allegations. The court held that the refusal to allow the appellants to call their witnesses to challenge the credibility of the respondents' witness constituted a material error. Consequently, the appeal was upheld, the judgment of the District Court was set aside, and the matter was remitted for a new trial. The appellants were awarded their costs of the appeal, with the costs of the new trial to be determined by the judge presiding over that trial.

Orders

Orders of the court

1. The appeal is upheld. 2. The judgment of Johnstone DCJ is set aside. 3. The matter is remitted to the District Court for a new trial. 4. The respondent to pay the appellants' costs of the appeal. 5. The costs of the trial to be at the discretion of the trial judge who hears the remitted trial.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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