Evans v Levy [2011] NSWCA 125

Young JA at [2]; Campbell JA & Sackville AJA agreeing:

43. Indeed, the problem goes deeper than merely giving insufficient details. The Court is entitled to take the view that if a witness could have given the Court appropriate details and evidence, but has not done so even though legally represented, then the Court can assume that the person involved is not in a position to go any further than she did: Commercial Union Assurance Co of Australia Limited v Ferrcom Pty Ltd (1991) 22 NSWLR 389 at 418-419 per Handley JA. This is because, if the witness could have gone further and provided relevant details, then the most obvious reason for not doing so was that those details could not be provided. In the instant case, the primary judge did not draw such an inference but it could have been drawn. Again, it must be said that if plaintiffs in these cases are to be properly served, the Court must be given sufficient details of the claim and sufficient evidence to back up that claim.

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