Kuypers v Ashton Coal Operations Pty Ltd & Anor (No 7)

Mr Cavanagh SC has asked Mr McKinnon whether, at the commencement of the job, and I am paraphrasing, he truly believed that Mr Thomson was a necessary part of the team to perform the work at bore-holes 3 and 4 in circumstances where Mr McKinnon had volunteered that detail in response to another question of Mr Cavanagh's.

Mr Harris QC has objected to the question on three bases. The first basis is that his belief is irrelevant. This is related to other grounds. First, the question of the contract is a legal question for me and it is the second defendant's case that the contract required the first defendant to provide the services of Mr Thomson. Secondly, whether Mr McKinnon believed that a water-bore driller was required on the job is irrelevant because that is a matter which will in the end, depend upon the interpretation of the Water Act 1912 (NSW) and the regulations made thereunder. Thirdly, the question is unfair because it does not adequately put to Mr McKinnon the occasion on which he is said to have said something else with which the question is obviously pregnant to anyone who has any experience in the everyday business of these courts.

It seems to me that, as Mr Cavanagh has submitted, the question of Mr McKinnon's credit is likely to be a live issue in the case and Mr Cavanagh is entitled to test it, including by reference to prior inconsistent statements in accordance with the provisions of s 106 Evidence Act 1995 (NSW).

Moreover, I am not of the view that the question of what Mr McKinnon thought about that matter is solely collateral. It seems to me that, whatever the contract provided in relation to the provision of the services of a class 4 water-bore driller is not the beginning and end of the matter. It seems to me that there are questions of causation which depend upon the competence of SCD to perform this work, whatever the relevant regulatory scheme within which it had to be performed. That being so, I am of the view that the question is a relevant one.

It also seems to me that it is fair enough as an introductory question for counsel for the first defendant to put it to the witness, even somewhat belligerently, that the matter he volunteered does not represent a belief honestly held by him, and that is an obvious preliminary question to the cross‑examination in relation to what I anticipate senior counsel believes will be prior inconsistent statements. I propose to allow the question.