Grace v Grace

[2010] NSWSC 1515

CITATION:	Grace v Grace [2010] NSWSC 1515
HEARING DATE(S):	19 November 2010
JURISDICTION:	Equity Division
JUDGMENT OF:	Brereton J
EX TEMPORE JUDGMENT DATE:	19 November 2010
DECISION:	Decline to grant the leave sought
CATCHWORDS:	EVIDENCE – Witnesses – adverse witnesses – whether party calling witness should be given leave to cross-examine
LEGISLATION CITED:	(NSW) Evidence Act 1995, s38
CATEGORY:	Procedural and other rulings
PARTIES:	David Alexander Grace (plaintiff) Deborah Sharon Grace (first defendant) Julienne Grace (second defendant) Nevilda Holdings Pty Ltd (prov liq'r appted) (third defendant) Nevilda Investments Pty Ltd (prov liq'r appted) (fourth defendant) Dutchie Pty Ltd (sixth defendant) Phoenix Rising Investments Pty Ltd (seventh defendant)
FILE NUMBER(S):	SC 06/259566
COUNSEL:	D Williams SC w S Goodman (plaintiff) A Moses SC w D Stewart (first, second & seventh defendants)
SOLICITORS:	James Tuite & Associates (plaintiff) Clinch Long Letherbarrow Pty Ltd (first, second & seventh defendants)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BRERETON J

Friday, 19 November 2010

2006/259566 David Alexander Grace v Deborah Sharon Grace & Ors

JUDGMENT (ex tempore)

1 HIS HONOUR: Senior counsel for the defendants applies for leave, pursuant to the (NSW) Evidence Act 1995, s 38, to question Mr Ashton –who has been called by the defendants – as though he were cross-examining the witness, on the bases (1) that, for the purposes of s 38(1)(b), a matter of which the witness may reasonably be supposed to have knowledge and about which it appears to the court the witness is not (in examination-in-chief) making a genuine attempt to give evidence, or (2) that for the purposes of s 38(1)(c), the witness has at any time made a prior inconsistent statement.

2 As to the first ground (s38(1)(b), the relevant topic is the witness's alleged possession, prior to 5 June 2007, of a deed relating to the Nevilda Investments Superannuation Fund. The witness originally asserted that he only came into possession of the deed on 5 June 2007. When shown – in the course of, or under the guise of, examination-in-chief – some other correspondence, he modified his position to one which can be fairly summarised as uncertainty as to whether or not he had previously been in possession of the document. In the way in which this evidence emerged – bearing in mind in particular that it might well have been regarded as a form of cross-examination under the guise of examination-in-chief – I saw nothing to suggest at that stage that he was not making a genuine attempt to give evidence about the matter. That he has changed his position, or become less certain of it, in response to the material that was put before him does not bespeak an absence of a genuine attempt to give evidence.

3 As to the second ground (s38(1)(c)), it is true that, at first, the witness denied as I recall it, in response to a question from me – that he had had in his possession a corporate register in relation to the Nevilda Investments Superannuation Fund. He was then shown a photocopy, which tended to suggest that there was such a corporate register in his office, and then he was shown an email which he had sent which similarly suggested that such a folder had been in his office. In response to that material, he acknowledged that he must have had the corporate register.

4 But while it is therefore true that he had made a prior inconsistent statement in that respect, he acknowledged it when it was put to him in chief, and his evidence thereafter accommodated it in a way which did not suggest to me that it would be necessary or desirable to permit counsel calling him to cross-examine him – at least any further than he already has, and at least save insofar as counsel for the plaintiff is content to let it proceed without objection, which has been the position to this point.

5 I decline to grant leave pursuant to s 38 at this stage.

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