Giddins (nee Cooper and Ryan) v Ryan

[2018] NSWSC 469

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Giddins (nee Cooper and Ryan) v Ryan [2018] NSWSC 469

Hearing dates:

12 April 2018

Date of orders:

12 April 2018

Decision date:

17 April 2018

Jurisdiction:

Common Law

Before:

Rothman J

Decision:

(1)   The defendant is relieved from compliance with the requirement to provide a Statement of Issues in accordance with Appendix B of the Supreme Court Practice Note.

 

(2)   Witness evidence, including that of the plaintiff, may be adduced by affidavit.

 (3)   The costs of today will be costs in the cause.

Catchwords:

PRACTICE AND PROCEDURE – affidavit or oral evidence – affidavit of plaintiff allowed to be used – defendant unable to comply with requirement as to Statement of Issues – practice directions made waiving need to comply with rules.

Legislation Cited:

Civil Procedure Act 2005, s 56
Uniform Civil Procedure Rules 2005, r 31.1

Category:

Procedural and other rulings

Parties:

Kylie Maree Giddins (nee Cooper and Ryan) (Plaintiff)
Robert David Ryan (Defendant)

Representation:

Counsel:
R Sheldon SC (Plaintiff)
P R Glissan (Defendants)

  Solicitors:
Turner Freeman Lawyers (Plaintiff)

File Number(s):

2015/308580

EX TEMPORE Judgment

1. HIS HONOUR: Before the Court is an application or issue relating to the manner in which evidence will be adduced at trial. The circumstances of the allegations are that the issues in this civil proceeding relate to an allegation of trespass on the person associated with, what is said to be, sexual assault by a person on his stepdaughter, who later became his adopted daughter, over a period from 1993 to 2000.

2. One of the issues in the trial is that the defendant in the proceedings was prosecuted for a criminal offence in relation to those matters and is currently serving a sentence as a consequence. Section 77 orders will need to issue, if they have not already, so that the defendant is able to attend the proceedings.

3. The second aspect is the length of time over which the trespass is said to have occurred and the denial of their occurrence by the defendant. The defendant did not give evidence in his criminal trial. The plaintiff, of course, did give evidence in the criminal trial, and was cross-examined.

4. The difficulty in a case such as this is that the incidents which give rise to liability are said to have occurred over a seven year period or thereabouts, the last of which was eighteen years ago, or a time close to that. Evidence has already been adduced and been the subject of cross-examination in other proceedings.

5. Evidence in other proceedings cannot, except with leave of the Court, or by order of the Court, be utilised in these proceedings, and I do not intend that the evidence in the previous proceedings be utilised here. I hasten to add there has been no such application, and so I am not dealing with that in any way on the basis of anything that has been put to me.

6. Nevertheless, some time ago, that is in 2016, at a time when the current proceedings were undefended, the plaintiff filed an Affidavit which, in accordance with the Rules, was presumably served. The current representative of the defendant, who at that stage was not representing the defendant nor appearing in the proceedings, was provided with a copy of the Affidavit in April 2017. The Affidavit was served pursuant to an order of the Court under the provisions of r 31.1 of the Uniform Civil Procedure Rules 2005 (“UCPR”).

7. It seems to me that there are a number of aspects to the issue which concern whether or not the affidavit should be relied on, or whether the evidence should be adduced orally. The first and, one would say major, issue with which the Court must be concerned are the provisions of s 56 of the Civil Procedure Act 2005 and following which require the Court, legal representatives and parties to facilitate the just, quick and cheap resolution of the real issues between the parties.

8. The real issues between the parties are those defined by the pleadings. In this case that is qualified by the fact that the evidence of the plaintiff is evidence that presumably is the same as or similar to the evidence that was adduced during the criminal proceedings in or about 2013, and was the subject of cross-examination and has been in the possession of the defendant and/or his representative since that time.

9. The cross-examination that occurred during the course of the criminal proceedings was by an extremely experienced criminal Counsel. Frankly, it seems to me that nothing is served by way of credit or otherwise in those circumstances by the evidence being adduced orally.

10. The plaintiff will be required to be cross-examined, and, given the nature of the defence, the only issue being whether the incidents giving rise to liability (or said to give rise to liability), occurred, the most expeditious way of dealing with the issue is to have the matter dealt with by way of affidavit evidence. There is no injustice caused by such a course, and it certainly will facilitate the quick resolution of the issues. I hasten to add it will not add to costs, given that the affidavit has already been crafted and served.

11. It is unrealistic to expect a witness in the witness box, without prompting and without reference to notes, to recollect that which occurred twenty-five years ago in the kind of detail that might be important in terms of cross-examination.

12. In all of the circumstances, notwithstanding the provisions of UCPR r 31.1, the ordinary rule that the evidence be adduced orally should not apply.

13. I order, if it hasn't already been ordered, that the evidence may be adduced by affidavit. That will allow any supplementary evidence to be adduced orally, and it will also allow the defendant, if he so chooses, to give his evidence orally, although I would prefer it if the evidence were by affidavit so that I am aware of the evidence at the time that the cross-examination occurs.

14. The Court makes the following orders:

1. The defendant is relieved from compliance with the requirement to provide a Statement of Issues in accordance with Appendix B of the Supreme Court Practice Note.

2. Witness evidence, including that of the plaintiff, may be adduced by affidavit.

3. The costs of today will be costs in the cause.

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Amendments

20 April 2018 - Plaintiff Surname spelt incorrectly - error has been rectified to correct spelling of "Giddins"

Decision last updated: 20 April 2018