Donald v Rail Corporation of New South Wales (No 9)

[2015] NSWSC 1936

Supreme Court

New South Wales

Medium Neutral Citation:	Donald v Rail Corporation of New South Wales (No 9) [2015] NSWSC 1936
Hearing dates:	20 – 23; June 2015; 2 – 5; 9 – 10 November 2015
Date of orders:	10 November 2015
Decision date:	10 November 2015
Jurisdiction:	Common Law
Before:	Campbell J
Decision:	Grant leave to the first defendant to tender the statement of John Murray Bamford dated 17 September 2015
Catchwords:	EVIDENCE – admissibility of witness statement against serving party – where serving party does not propose to tender statement
Legislation Cited:	Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited:	Sevic v Roarty (1998) 44 NSWLR 287
Category:	Procedural and other rulings
Parties:	Alan Donald (Plaintiff) Rail Corporation of New South Wales (First Defendant) Workers Compensation Nominal Insurer (Second Defendant)
Representation:	Counsel: DR Campbell SC with S Longhurst (Plaintiff) RJ Burbidge QC with A Casselden (First Defendant) M Windsor SC with R Perla (Second Defendant) Solicitors: Acorn Lawyers (Plaintiff) Hicksons Lawyers (First Defendant) Moray & Agnew Lawyers (Second Defendant)
File Number(s):	2010/349997

ex tempore judgment (revised)

1. Mr Burbidge QC tenders a statement of John Murray Bamford dated 17 September 2015.  Mr Bamford is, or at the material time was, the guiding mind of the second defendant.  When this matter was adjourned, I made directions for the exchange of statements from witnesses expected to be called during this second tranche of hearing.  In compliance with that direction, Mr Bamford's statement was served by the solicitors for the second defendant on the first defendant and the plaintiff.  As happens in litigation, intentions change, and the second defendant will not call Mr Bamford.

2. In my opinion, the service by the second defendant's solicitors on each other active party was in compliance with a direction made by me to which r 31.4 Uniform Civil Procedure Rules 2005 (NSW) applies. Sub rule (4) is in the following terms: "if an intended witness to whose evidence a witness statement relates does not give evidence, no party may put the statement in evidence at the hearing except by leave of the court." Now, clearly Mr Bamford has not given evidence. It seems to me that if the first defendant wishes to tender the statement, it requires leave.

3. Mr Windsor SC does not have any objection to the tender of the statement and Mr Burbidge, to put things in context, says that the statement is only tendered against the second defendant. Mr Campbell SC objects to the tender of the statement contingently, unless he can rely upon the content of [28]. Paragraph 28 relates to a conversation Mr Bamford said he had with a Mr Jim Iordanidis, who gave evidence before me just yesterday. In that paragraph Mr Bamford says that Mr Iordanidis told him that Mr Donald had suffered an injury on 13 May 2008. Indeed, the conversation between the two men, according to Mr Bamford, happened at 2:30 pm on that date.

4. Mr Campbell cross‑examined Mr Iordanidis about that conversation and Mr Iordanidis denied it had taken place.  The thrust of his evidence was that Mr Donald left the railways because he let him go because he found Mr Donald was an unsatisfactory employee because he was aggressive and argumentative at work.  His evidence is to the effect that he heard nothing about any injury until he had a conversation with Mr Bamford much later, in about September 2008.

5. The purpose of sub-rule (4), I think, is to protect the position of each party upon whom a statement has been served.  Although there is no obligation on the party serving the statement to call the author as a witness, it seems to me that the service of the statement is likely to create, I hesitate to use the expression, a legitimate expectation, that person will be called to give evidence and the other parties will have the opportunity to cross‑examine the witness.  That is why the rule is couched as it is and subjects the receipt of the statement into evidence to the court's control.

6. It is significant, I think, that the rule emphasises that no party may put the statement in evidence at the hearing except by leave of the court.  It is an everyday occurrence in the courts that an opposing party may wish to use evidence served against the serving party.  Subject to the law relating to legal professional privilege, it frequently arises that a document served may be sought to be tendered, as I have said, against the server.  That is what has happened here.  It just happens that Mr Windsor does not make any claim of privilege in respect of the statement and I make no comment about whether such would be maintainable, but I refer to the line of authority, including Sevic v Roarty (1998) 44 NSWLR 287.

7. Given the statement is within my control in accordance with the provisions of sub-rule 4, I am prepared to grant leave to Mr Burbidge to tender it against Mr Windsor on condition that Mr Campbell be permitted to rely upon the content of [28].

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Decision last updated: 16 December 2015