Comlaw (No 62) Pty Ltd v Owens

[2003] VSC 16

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 7227 of 2001

COMLAW (NO 62) PTY LTD and ORS	Plaintiff
v
SUZANN JANET OWENS	Defendant

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JUDGE:	Nettle J
WHERE HELD:	Melbourne
DATE OF HEARING:	11 February 2003
DATE OF RULING	11 February 2003
CASE MAY BE CITED AS:	Comlaw (No. 62) Pty LTd v Owens
MEDIUM NEUTRAL CITATION:	[2003] VSC 16

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr P. Riordan	Moores Legal
For the Defendant	Mr S. Wilmoth	Ms S.J. Owens

HIS HONOUR:

1. Application is made by Mr Wilmoth on behalf of the defendant to call a witness out of turn, before Mr Wilmoth opens his case, because the witness hails from Queensland, and cannot with convenience be here other than today.

1. In support of the application Mr Wilmoth has handed to me a draft witness statement of John Paul O’Rourke, in which reference is made to diaries which were retained by Mrs Garms, but are thought now to be in the possession of the police, and also files relating to each of Mrs Garms’ solicitors, about the shredding of documents said to have been engaged in by Mrs Garms some time ago. 

1. The application is opposed on amongst other bases that the evidence proposed to be adduced is inadmissible and Mr Riordan on behalf of the plaintiff has put three submissions in support of that contention.  First, he submits that the reference which is made to the diaries in the witness statement infringes the secondary evidence rule, inasmuch as it is not established that the diaries are no longer in existence, or cannot be obtained by reasonable steps.  Secondly, he submits that the evidence at its highest is no more than a reflection upon the credit of evidence already given by Mrs Garms, that notes which are in the court book between pages 79 and 106 were made by her more or less contemporaneously with the matters to which they relate, from papers and other records which were then in her possession, and thus the evidence is merely a collateral attack upon her credit.  Thirdly, he submits that the witness statement is in the form of conclusionary statements or expressions of opinion which as a matter of form are inadmissible.

1. Mr Wilmoth on behalf of the defendant concedes the efficacy of those objections, and I too think them to be correct.  For that reason I would not be prepared to receive evidence in the form in which it is set out in the draft witness statement of John Paul O’Rourke. 

1. In the result, I do not consider that it is appropriate that Mr O’Rourke be called out of turn, and the application that he be so called will be refused with costs.

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