Tilley Air Conditioning Pty Limited v Traminer Pty Limited

[2009] NSWDC 155

CITATION:	Tilley Air Conditioning Pty Limited v Traminer Pty Limited [2009] NSWDC 155
JUDGMENT DATE:	20 January 2009
JURISDICTION:	District Court of New South Wales
JUDGMENT OF:	Cogswell SC DCJ
DECISION:	Leave granted for the witness to refer to the document to revive his memory in court.
CATCHWORDS:	CIVIL LAW - application for witness to revive memory from a document which may not itself be admissible
LEGISLATION CITED:	Evidence Act 1995 s32
PARTIES:	Tilley Air Conditioning Pty Ltd Traminer Pty Limited
FILE NUMBER(S):	894/06
COUNSEL:	Mr T Bland (plaintiff) Mr Lowenstein (defendant)

JUDGMENT

1 Mr Lowenstein in examining a witness on the voir dire, has reached a stage where the witness has indicated that he wishes to revive his memory from a document. Mr Lowenstein has asked my leave to permit the witness to revive his memory. I am making this ruling by reference to s 32 of the Evidence Act 1995 which sets out the law regarding a witness reviving their memory in court from the use of a document.

2 I am satisfied that the witness will be unable to adequately recall information which he is being asked for without reference to the document.

3 Mr Bland’s primary objection is that the document itself may eventually not become admissible. The document which Mr Maric wishes to refer to is an annexure (“B”) to an affidavit sworn on 16 January 2009 which the defendant may, in due course, tender.

4 The plaintiff, through Mr Bland, has made it clear that the tender of that affidavit, including annexure B, will be objected to. Mr Bland argues that annexure B should not be used at this stage in the way that it is sought to be used because it may eventuate that annexure B is eventually rejected as evidence in the proceedings.

5 I do not accept that argument or perhaps I should say, I do not regard it as a significant factor in the exercise of my discretion in granting leave.

6 The document was put together by Mr Maric and another officer in the company with which he works. The document Mr Maric says is reasonably accurate (the qualification “reasonably” refers to some of the estimates of overall monetary value). The information in annexure B is extracted from the records of the company. These records in turn are records which are derived from projects undertaken by the company and I am satisfied are accurate.

7 For those reasons I propose to grant the witness leave to make reference to the document to revive his memory in court. It goes without saying that this is not a ruling on the admissibility of the document.

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