Tauri By His Tutor Carmelle Skipper v Janlin Circuses Pty Limited T/As Stardust Circus (No 2)

[2019] NSWSC 637

Supreme Court

New South Wales

Medium Neutral Citation:	Tauri By His Tutor Carmelle Skipper v Janlin Circuses Pty Limited T/As Stardust Circus (No 2) [2019] NSWSC 637
Hearing dates:	29 May 2019
Date of orders:	29 May 2019
Decision date:	29 May 2019
Jurisdiction:	Common Law
Before:	Rothman J
Decision:	Application granted.
Legislation Cited:	Evidence Act 1995 (NSW), s 190
Category:	Procedural rulings
Parties:	Tauri By His Tutor Carmelle Skipper (Plaintiff) Janlin Circuses Pty Limited T/As Stardust Circus (Defendant)
Representation:	Counsel: Mr Sheldon (Plaintiff) Ms Chapman (Defendant)   Solicitors:
File Number(s):	2004/00192285

EX TEMPORE Judgment

1. HIS HONOUR: There are two aspects to the application that is before the Court. One aspect is that the plaintiff wishes to adduce evidence as to the earning of Caesar, that is the earnings or earning capacity of Caesar, the brother of the plaintiff as a comparable to the possible earnings of the plaintiff. I do not understand that the plaintiff's case alters from an assessment of the economic loss otherwise than by reference to the average weekly earnings. Nevertheless, the plaintiff should have the capacity so to do.

2. If the application were to have been made, I probably would have made orders under s 190 of the Evidence Act 1995 (NSW), given that the evidence is by way of a payslip in circumstances where the person, whose payslip it is, is not otherwise available in Sydney. Having said that, it seems to me that the evidence is being adduced almost for the purpose of allowing the defendant to cross-examine. The defendant says there are documents on which it would seek to rely on the cross-examination.

3. That does not surprise me, but I do not see at this stage why those documents could not be the subject of description. Everyone is here. Presumably, they are the documents that have already been the subject of cross-examination in relation to prior witnesses, and I do not think anyone is under any misapprehension as to the substance of the documents.

4. Bearing in mind my duty to facilitate the just, quick and cheap resolution of the real issues between the parties, and the fact that we are talking about a witness, not the plaintiff, in circumstances where, if the witness's credit is impugned in the absence of positive evidence to the contrary, I am not sure what that does to the defendant's case or its answer to the plaintiff's case.

5. In the circumstances, it seems to me to be that the appropriate course is to allow the evidence to be adduced by telephone and if, in fact, there is a substantial issue that arises in the course of the cross-examination, requiring that to be terminated, then an application can be made and the Court will deal with it at that point in time.

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Decision last updated: 19 April 2022