Petar Trajkovski v R K Findlay Pty Ltd & Anor

[2007] NSWSC 321

CITATION:	Petar Trajkovski v R K Findlay Pty Ltd & Anor [2007] NSWSC 321 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	4 April 2007
JUDGMENT DATE :	5 April 2007
JURISDICTION:	Common Law
JUDGMENT OF:	Harrison J
DECISION:	Leave to cross examine plaintiff's witness pursuant to s 38(1)(a) Evidence Act 1995 (NSW) refused
CATCHWORDS:	EVIDENCE - Evidence Act 1995 (NSW) - s 38(1)(a) unfavourable witness - application to cross examine
LEGISLATION CITED:	Evidence Act 1995 (NSW) s 38
CASES CITED:	R v Pantoja (No 1) (unreported, NSWSC, 30 October 1996) R v Adam (1999) 47 NSWLR 267
PARTIES:	Petar Trajkovski (Plaintiff) R K Findlay Pty Ltd (First Defendant) Russell K Findlay (Second Defendant)
FILE NUMBER(S):	SC 20143/2000
COUNSEL:	J Conomy with C Carroll (Plaintiff) R Sheldon (First and second defendants)
SOLICITORS:	Colin Daley Quinn (Plaintiff) Bryan Gorman & Co (First and second defendants)

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

Harrison J

5 April 2007

20143/2000 Petar Trajkovski v R K Findlay Pty Ltd and Russell K Findlay

JUDGMENT

1. HIS HONOUR: Section 38 of the Evidence Act 1995 (“the Act”) provides, in part, as follows: -

38 Unfavourable witnesses

(1) A party who called a witness may, with the leave of the court, question the witness, as though the party were cross-examining the witness, about:


(a) evidence given by the witness that is unfavourable to the party; or

(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

(c) whether the witness has, at any time, made a prior inconsistent statement.


(2) Questioning a witness under this section is taken to be cross-examination for the purposes of this Act (other than section 39).

(3) . . .

(4) Questioning under this section is to take place before the other parties cross-examine the witness, unless the court otherwise directs.

(5) If the court so directs, the order in which the parties question the witness is to be as the court directs.

(6) Without limiting the matters that the court may take into account in determining whether to give leave or a direction under this section, it is to take into account:

(a) whether the party gave notice at the earliest opportunity of his or her intention to seek leave; and
(b) the matters on which, and the extent to which, the witness has been, or is likely to be, questioned by another party.

2. In his case in chief, the plaintiff read the affidavit of Victor Robert Moor sworn 29 August 2005. Mr Moor gave opinion evidence, in the form of a report annexed to his affidavit, upon the estimated sale price of 1986 to 1989 model 911 Porsches (Coupe) in the period 1 January 1995 to 31 December 1995 and 1986 to 1989 model 911 Porsches (Cabriolet) in the period 1 January 1995 to 31 December 1995. No objection was taken to the affidavit or the report and no challenge to Mr Moor's qualifications to give such evidence was mounted.

3. Part of Mr Moor’s report, appearing at page 296 of Exhibit A, was as follows: -

Research conducted by Glass’s is based upon values for Australian Complied Vehicles; that is vehicles which have Compliance Plate Approval. Vehicles classified as "grey imports", being those that do not have Compliance Plate Approval have significantly lower values.

4. Mr Moor gave no oral evidence in chief, apart from formalities, on this or any other topic.

5. Mr Moor was cross-examined by Mr Sheldon of Counsel who appears for the defendants. Evidence given by Mr Moor during the course of that cross-examination was to the effect that an additional category of vehicle may have existed. For present purposes it is sufficient to summarise that category as including Porsche motor vehicles imported as a left-hand drive shell or as parts, or as a combination of both, constructed or assembled in Australia and ultimately fitted with an Australian Compliance Plate, not being a compliance plate attached by the original manufacturer. The burden of Mr Moor's evidence was that such vehicles would be valued in general terms more highly than vehicles classified by him as "grey imports", being those vehicles that did not have Compliance Plate Approval, but less than what he described in his report as Australian Complied Vehicles, being vehicles with Compliance Plate Approval. See T 215.29 – 216.50.

6. Following Mr Moor's cross-examination, but before any further questions were asked of him, Mr Conomy of Counsel, who with Mr Carroll, appeared for the plaintiff, made an application to cross examine Mr Moor on the topic referred to in the preceding paragraph. That application was based on upon section 38 (1) (a) of the Act, and upon Mr Conomy’s submission that the evidence given by Mr Moor was unfavourable to the plaintiff. I accept for the purposes of the present application that Mr Moor's evidence was unfavourable to the plaintiff for the reason that, even if the plaintiff were able to establish that the vehicles to be manufactured by the plaintiff would have had Compliance Plate Approval, they could not be valued in accordance with the estimates of value attached to Mr Moor's report, for the reason that they would fall, or may possibly fall, into this new category with which his original report did not deal. As Mr Moor said, "I don't know the intricacies of this case other than what I was asked to provide some input for, but if it purported to be an Australian Design Rules compliant vehicle, then it might be somewhere between the two".

7. There appears to be no doubt that if circumstances arise during cross-examination of the witness which could not fairly have been predicted, it will often be appropriate to grant leave: R v Pantoja(No 1) (unreported, NSWSC, 30 October 1996). The provision is not limited to "an unexpected eventuality" (that is, to a situation where a witness unexpectedly gives unfavourable evidence): R v Adam (1999) 47 NSWLR 267 at [99]. In deciding whether to grant leave, I am required to take into account "the extent to which to do so would be unfair to a party or to a witness" and "the importance of the evidence in relation to which the leave, permission or direction is sought" (among other things): see section 192 (2) of the Act.

8. On one view, the evidence skilfully elicited by Mr Sheldon in his cross-examination of Mr Moor, ought reasonably to have been predicted by the plaintiff, or on his behalf, before he gave his evidence. In this sense, it could not therefore be said that the evidence was given in circumstances that arose during cross-examination of Mr Moor, which could not fairly have been predicted. A grant of leave to the plaintiff to cross-examine Mr Moor on this topic would have the potential adversely to affect the apparent forensic advantage achieved by the defendant if no leave were granted. In this respect I am conscious of the extent to which a grant of leave would be unfair to the defendant.

9. On another view, I am equally conscious of the importance to both the plaintiff and the defendants of the evidence in relation to which the leave is sought. From the defendants’ point of view, it is important to leave the evidence in the state in which it now lies so as arguably to deprive the plaintiff of the opportunity to rely upon Mr Moor's evidence of valuation of vehicles fitted with what I will refer to as an original manufacturer’s Compliance Plate. From the plaintiff's point of view, it is important to have an opportunity to cross-examine Mr Moor to establish, if it can be established, that no such extra category of Australian Complied Vehicles as that apparently revealed by him in cross-examination exists, or that the value of vehicles falling within this extra category is no different, or not significantly different, to vehicles fitted with an original manufacturer’s Compliance Plate of the sort discussed by him in his report.

10. In my opinion, one would have thought, unaided by expert opinion and having regard only to the common experience of everyday commercial transactions, that motor vehicles, especially prestige motor vehicles, offered for sale not as whole vehicles substantially in the condition in which they left the manufacturer’s factory, but reconstructed or reassembled from previously deconstructed or disassembled components, would be unlikely to achieve the same price as the original item. The evidence elicited from Mr Moor in cross-examination arguably lends support to that general proposition. I do not consider that the evidence given by Mr Moor on this topic during cross-examination was exceptional or unusual or, for that reason, unexpected. It was not, in my opinion, evidence which could not fairly have been predicted.

11. Having regard to all of these matters I consider, on balance, that leave should not be granted.

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10/04/2007 - Date of decision noted on cover sheet - Paragraph(s) Cover sheet