Lowe v Lang

[2000] NSWSC 308

CITATION:	Lowe v Lang [2000] NSWSC 308 revised - 19/04/2000
CURRENT JURISDICTION:	Equity
FILE NUMBER(S):	SC 1082/96
HEARING DATE(S):	28 March 2000
JUDGMENT DATE:	28 March 2000
PARTIES :	Michael Campbell Lowe (P) Barry Arthur Lang (D1) Erolgreen Pty Ltd (D2)
JUDGMENT OF:	Hamilton J

COUNSEL :	P T Taylor (P) P J Deakin QC and P R Stockley (D1 & 2)
SOLICITORS:	Baldock Stacy & Niven (P) Kenny Spring (D1 & 2)
CATCHWORDS:	EVIDENCE [228] - Witnesses - Refreshing memory - Generally - Documents used to revive memory - Whether documents sufficiently identified for production to be required under Evidence Act 1995 (NSW) s 34.
LEGISLATION CITED:	Evidence Act 1995 s 34
CASES CITED:	Lowe v Lang [2000] NSWSC 302 Lowe v Lang [2000] NSWSC 307
DECISION:	Application for production of documents refused.

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

HAMILTON J

TUESDAY, 28 MARCH 2000

1082/96 MICHAEL CAMPBELL LOWE v BARRY A LANG & 1 ORS

JUDGMENT (See transcript page 643, line 37)

HIS HONOUR:

1 Mr Deakin, of Queen's Counsel for the defendants, applies under s 34 of the Evidence Act 1995 for directions to ensure that specified documents, used by Mr Stuart as a witness otherwise than while giving evidence to try to revive his memory, are produced to the defendants. Mr Taylor, of counsel for the plaintiff, does not concede that the Evidence Act 1995 is applicable in the circumstances but, on the view that I have taken as to the merits of the present application, in any event that question does not need at the moment to be determined. The material on which Mr Deakin relies in making the application is as follows. The commencement of his cross-examination of Mr Stuart is recorded at pages 485 and 486 of the transcript and the material part is as follows:

“Q. Are the documents in front of you and that you've been referring to, a complete set of documents relevant to this matter that you've brought with you today?
A. As far as I'm aware, yes.
Q. And have you referred, in part at least, to those documents for the purposes of refreshing your memory about relevant events?
A. Yes, I have.”

2 Section 34 emphasises that the direction must be given in relation to specific documents. Those of the documents which were before the witness at the time of these answers, in respect of which privilege has been retained, and inspection refused on the ground that privilege exists, are now contained in MFI 10 and MFI 12: Lowe v Lang [2000] NSWSC 302; Lowe v Lang [2000] NSWSC 307. However, when the witness spoke of the documents in front of him, they undoubtedly included a considerable number of documents, in respect of which I have subsequently ruled that there was no privilege, and of which documents the defendants have been afforded inspection. But even if all the documents before the witness at the time of his answer had been documents of which the defendants have not yet had inspection, Mr Deakin's application on the present basis contains a difficulty which is, in my view, insuperable. That arises from the qualified manner in which the second and more important question set out above was asked, namely, whether the witness had referred "in part at least" to the totality of the documents then before him for the purpose of refreshing his memory.

3 MFI 10 still contains a considerable number of documents. These, as my earlier judgment reveals, are of quite different types. For an order to be made under s 34, the Court would have to approach those documents singly. The form of the answer that the witness had referred “in part” to the whole bundle of documents could not found in respect of any particular document an inference that he had examined that document for the purpose of reviving his memory. In those circumstances the foundation for making an order under s 34 is not made out and the application is refused. This does not, as was suggested at one stage by Mr Deakin in submissions, throw any undue onus upon the defendants. Furthermore, the witness is still in cross examination. The defendants are not in any way precluded from renewing their application upon a proper basis.

TAYLOR: Would your Honour reserve the costs of that application?

HIS HONOUR: I reserve the costs of that application.

…oOo…

Last Modified: 09/25/2000