Dalby v State of New South Wales [1999] NSWSC 27 (10 February 1999)

Last Updated: 11 February 1999

NEW SOUTH WALES SUPREME COURT

CITATION: Dalby v State of New South Wales [1999] NSWSC 27

CURRENT JURISDICTION: Common Law

FILE NUMBER(S): 12818/93

HEARING DATE{S): 8 February 1999

JUDGDMENT DATE: 10/02/1999

PARTIES:

Bruce Dalby (Plaintiff)

State of New South Wales (Defendant)

JUDGMENT OF: Studdert J

LOWER COURT JURISDICTION: Not Applicable

LOWER COURT FILE NUMBER(S): Not Applicable

LOWER COURT JUDICIAL OFFICER: Not Applicable

COUNSEL:

A.J. Leslie QC/P.J. Mooney (Plaintiff)

P.R. Garling SC/S.D. Kalfas (Defendant)

SOLICITORS:

Steve Masselos & Co (Plaintiff)

Crown Solicitor's Office (Defendant)

CATCHWORDS:

Application to cross examine before jury on evidence before an arbitrator

ACTS CITED:

Arbitration (Civil Actions) Act, 1983, s 18

DECISION:

Application refused

JUDGMENT:

IN THE SUPREME COURT

OF NEW SOUTH WALES

COMMON LAW DIVISION

STUDDERT J

Wednesday 10 February 1999

12818/93 BRUCE DALBY v STATE OF NEW SOUTH WALES

JUDGMENT

1 HIS HONOUR: In the course of his cross examination of the plaintiff in these proceedings, but in the absence of the jury, Mr Garling of Senior Counsel sought a ruling as to whether he ought to be allowed to cross examine the plaintiff about answers he gave in the course of cross examination on a hearing at arbitration that preceded this hearing but which related to the same subject matter as this cause. I now publish my reasons for refusing Mr Garling's application.

2 In the course of making his submissions Mr Garling referred the Court to answers which the plaintiff gave in cross examination before the arbitrator which were inconsistent with answers that he gave before the jury during the evidence elicited from him. Mr Garling submitted that having regard to s 43 of the Evidence Act, 1995 the cross examination contemplated should be permitted.

3 Section 18(1) of the Arbitration (Civil Actions) Act, 1983 provides for finality of the award of an arbitrator, but s 18(2) provides machinery for a re-hearing if an order is sought for that purpose "by a person aggrieved by the award". In the present case an order was sought and obtained pursuant to s 18(2) and hence the present proceedings before this Court. Section 18(3) is of particular significance having regard to the nature of the present application. It provides:

"Where an order is made under sub-section (2):

(a) the award that gave rise to the order ceases to have effect; and

(b) ...the action to which the order relates shall be heard and determined in the Court as if it had never been referred to an arbitrator."

(Emphasis added)

4 My attention was drawn to an unreported decision of Finlay J in Najdavonic v Brown (22 September 1992) in which his Honour held that the effect of sub-s (3) was to prevent either party on a re-hearing from "using any of the material, including the transcript of evidence, before the arbitrator (unless, of course, by consent to facilitate the hearing)".

5 That decision was considered in the Court of Appeal by Priestley A-P in Macdougall & Anor v Curlevski (1996) 40 NSWLR 430. Whilst his observations in Macdougall were strictly obiter, his Honour tentatively expressed his concurrence with the ruling of Finlay J.

6 I have had the advantage of considering the reasons for the decision reached by Finlay J on 22 September 1992. His Honour referred to the Second Reading Speech that preceded but related to s 18(3) of the statute. What the Attorney General said about that sub-section was this:

"The third proposal also relates to re-hearings. It is a practical requirement of the system that on a re-hearing the court must have no regard to anything that happened on the arbitration and, in general terms, the Act says so. The intent has been always that the introduction of compulsory arbitration should not frustrate the right of a party to insist on ultimately getting the action fully heard in the court in which it was commenced."

7 It seems to me that it would be contrary to the objective expressed by the Attorney General and to the language of the sub-section itself if the plaintiff could now be cross-examined about evidence that he gave before the arbitrator. The language of sub-s (3) is plain. This hearing is to proceed as though the action "had never been referred to an arbitrator". If the defendant was to be permitted to cross examine the plaintiff in the way in which it wishes to cross examine the plaintiff, sub-s (3) in my opinion would be contravened.

8 I respectfully agree with the ruling of Finlay J in Najdanovic and having regard to the language of s 18(3) I do not permit Mr Garling to cross examine the plaintiff about evidence he gave on the arbitration proceedings.

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LAST UPDATED: 10/02/1999