Quintano v BW Rose Pty Ltd

In the case of Quintano v BW Rose Pty Ltd, the plaintiff sought to tender a witness statement as evidence in a dispute concerning alleged personal injury sustained during a fall at a building site. The matter was before the Supreme Court of New South Wales. The central issue was whether the plaintiff's opportunity to cross-examine the witness was unfairly prejudiced by the absence of the witness, and whether the second defendant had taken all reasonable steps to locate the witness under section 63 of the Evidence Act 1995 (NSW).

The court examined whether the second defendant had fulfilled their obligation to locate the witness by retaining a process server and a private investigator, and whether additional steps, such as enquiries with the Department of Immigration, the NSW Police, and the Australian Electoral Commission, were necessary. The court also considered whether the statement could be admitted under the hearsay exception despite the witness's unavailability and the lack of notice to the plaintiff. Additionally, the court scrutinised the discretionary factors in deciding whether to exclude the evidence, such as the contemporaneous nature of the statement, the potential for contradiction by other evidence, and the reliability of the statement given it was made to the police with awareness of potential penalties for false statements.

The court concluded that the second defendant had not taken all reasonable steps to locate the witness, and the plaintiff's right to fair trial was compromised by the unavailability of the witness for cross-examination. The court also found that the tender of the statement without proper notice to the plaintiff was unfairly prejudicial, and the statement was excluded from evidence. The court ordered that the second defendant take additional steps to locate the witness and that the plaintiff be given a reasonable opportunity to cross-examine the witness if located.