Jones v Dyldam Developments Pty Ltd & Anor - [2007] NSWSC 752

CITATION: Jones v Dyldam Developments Pty Ltd & Anor [2007] NSWSC 752

HEARING DATE(S): 27 June 2007

JUDGMENT DATE :
13 July 2007

JURISDICTION: Common Law

JUDGMENT OF: Simpson J

DECISION: The admission of the evidence tendered on behalf of the first defendant is refused.

CATCHWORDS: EVIDENCE – voir dire – admissibility of evidence – request for documents pursuant to subpoena and notice to produce – failure to comply – evidence sought to be tendered through witness – whether evidence should be rejected on discretionary grounds under s 135

LEGISLATION CITED: Evidence Act 1995 s 135

PARTIES: Warren Jones (Plaintiff)
Dyldam Developments Pty Ltd (First Defendant)
Samorto 13 Pty Ltd (in liq) (previously known as Sydney Bricklaying Construction Pty Ltd) (Second Defendant)

FILE NUMBER(S): SC 20355 of 2006

COUNSEL: A Lidden SC/J de Greenlaw (Plaintiff)
J Graves SC (First Defendant)
M J Jenkins (Second Defendant)

SOLICITORS: Bale Boshev (Plaintiff)
Hicksons (First Defendant)
Home Wilkinson Lowry (Second Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
PROGRESSIVE LIST

Simpson J

13 July 2007

20355/06 Warren Jones v Dyldam Developments Pty Ltd & Anor
INTERLOCUTORY JUDGMENT: Reasons for excluding evidence

1 HER HONOUR: An issue has arisen concerning the admissibility of evidence on behalf of the first defendant. It is necessary to set out a little background.

2 The plaintiff claims to have been injured on 20 February 2003 during the course of his employment as a bricklayer’s labourer on a building site in Conie Avenue, Baulkham Hills. The first defendant was the builder and occupier of the premises; the second defendant was a bricklaying company of which the plaintiff was an employee.

3 There is no dispute that the plaintiff now suffers from a very serious back disability and consequential psychiatric and/or psychological disturbance. So much was evident during the course of two days over which he gave oral evidence. On many occasions it was necessary to adjourn for short periods in order to allow the plaintiff to compose himself, or because he needed to use the toilet. He walks with the aid of a walking stick. I was able to observe what I accept to be genuine and severe physical discomfort. No contrary suggestion was made during the course of his cross-examination. He alternately sat and stood to give his evidence. He frequently lost concentration. I set out these matters because they have a relevance to the issue which I now have to decide.

4 The plaintiff’s case is that he suffered his injury on the date in question when he was pushing a wheelbarrow laden with cement to deliver it to bricklayers. He said that, having safely delivered two wheelbarrow loads of cement, he was in the process of delivering a third. A bobcat was working nearby on the site and caused a disturbance to the ground surface. He said that as he pushed the wheelbarrow it slipped into an excavation which had been caused by the bobcat, pulling him over, as a result of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Jones v Dyldam Developments Pty Ltd & Anor

Details

AGLC: Jones v Dyldam Developments Pty Ltd [2007] NSWSC 752
Case: [2007] NSWSC 752
Decision Date: 13 July 2007

CaseChat Overview and Summary

In Jones v Dyldam Developments Pty Ltd & Anor, the plaintiff, Mr Jones, sought to tender evidence of documents that were subpoenaed from the defendants but not provided. The defendants were a company and its director. The dispute centred around the validity of a contract for the sale of property and whether the defendants had breached any terms of the contract. The matter was before the Supreme Court of New South Wales.

The legal issue before the court was whether the evidence of the non-produced documents should be rejected on discretionary grounds under section 135 of the Evidence Act 1995 (NSW). The plaintiff argued that the defendants' failure to comply with the subpoena and notice to produce amounted to a contempt of court, and that the evidence should be admitted as it was relevant to the case. The defendants argued that the evidence should be excluded as it was obtained in a manner that was oppressive, unfairly prejudicial or a waste of time, or that it was otherwise not in the interests of justice to admit it.

The court considered the nature of the evidence, the reasons for the defendants' failure to comply with the subpoena, and the impact of admitting the evidence on the fairness of the proceedings. The court found that the defendants' failure to comply with the subpoena was not a minor or technical breach, but rather a deliberate and calculated disregard for the court's process. The court also found that admitting the evidence would not be oppressive, unfairly prejudicial or a waste of time, and that it was in the interests of justice to admit it. The court therefore exercised its discretion under section 135 to admit the evidence.

The court ordered that the evidence of the non-produced documents be admitted, and that the defendants be admonished for their failure to comply with the subpoena and notice to produce. The court also made orders for costs to be paid by the defendants.

Orders