Spiteri v Visyboard Pty Ltd

[2005] VSCA 132

Victorian Court of Appeal

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Interrogate

Catchwords

1. Practice and Procedure
2. › Amendment of pleadings
3. › Amendment during trial
4. › Addition of alternative cause of action
5. › Whether prejudice to defendant from cross-examination conduct
6. › Whether questions in cross-examination constitute implicit admissions
7. › Howarth v Adey [1996] 2 VR 535
1. Practice and Procedure
2. › Trial by jury
3. › Discharge of jury after disagreement
4. › Whether judge correct to direct continuation before judge alone
5. › Right to jury trial
6. › Whether plaintiff who did not seek jury has right to insist on new jury trial
7. › Order 47.02 County Court (General Civil Procedure) Rules
8. › Juries Act 1967 (Vic), s 46(3)
1. Evidence
2. › Cross-examination
3. › Whether questions put in cross-examination constitute admissions against interest
4. › Whether conduct of case by counsel at earlier trial admissible at subsequent trial
5. › Inferences from conduct of party's case
1. Appeal
2. › Standard of appellate review
3. › Findings based on credibility
4. › Whether appellate court may interfere with trial judge's credibility findings

Quick Take

Questions put in cross-examination, while not evidence in a strict sense, form part of the conduct of a party's case and may give rise to inferences as to the party's instructions that are admissible not only at the trial where the cross-examination occurred but also at a subsequent trial. A party who did not give notice requiring jury trial under r 47.02(1) has no right to insist on a new jury trial after the jury is discharged; paying jury fees does not constitute the exercise of such a right. When assessing prejudice on a mid-trial amendment application, the court must consider whether the opposing party's cross-examination, conducted on the assumption the new claim was not being made, created irremediable prejudice through implicit admissions or assertions that could be used at a subsequent trial.