4 CLR 1692 Page 121907 WL 12437 (HCA), 14 ALR 89, 7 SR (NSW) 821(Cite as: 4 CLR 1692)succeed? Counsel said, Yes. That is quite foreign tomy notions as to the nature of an action for deceit.It was attempted by the plaintiffs alternatively toshow that there was evidence of the value of theproperty as a whole; that you take the contract andthere you find a price fixed by the parties, and,assuming that to be a fair price for the property,you are then at liberty to say that if therepresentation had been true it would have beenworth much more. But the fallacy of that isobvious. If you look for the price in the contractyou look for the property in the contract, and theproperty in the contract does not include theproperty which is now being sued upon. Therefore,if you say that the property in the contract is sold ata fair price, that ends the matter. But if you wish toprove that the property in the contract was worthmuch less than the price paid, then to establish thedamages sustained you must bring evidence to thateffect. Therefore, it is perfectly consistent with theevidence given by the plaintiffs that they havesuffered no loss, or even that they have made agood bargain. If they have, then they have notaltered their position for the worse, andconsequently have failed to maintain the threeessentials in an action of deceit, namely, lossoccasioned by action which they were induced totake by reason of the defendants' fraud.With regard to the question of evidence I agreewith what has been already said. It seems to methat the section in question was intended to regulatethe rule of law which enables a party, not to bringwhat I may call original evidence in support of hiscase, but evidence breaking down and discreditinga witness called by his opponent. It would be asingular thing if this class of evidence could begiven by the defendant to contradict a witness ofthe plaintiff on the first part of the plaintiffs' case,and should not be open to him when the plaintiffcalls a witness to rebut the case made by thedefendant. The object of such evidence is, not tosupport the party's case, but to break down or*1718 discredit a witness who has given evidenceon the other side. The witness may be askedwhether he did not previously make a statementcontrary to the testimony which he is then giving.The fact that he had done so would not be regardedas evidence for the other side on the issues in thecase, but as tending to break down the evidence ofthe side calling the witness so far as it dependedupon the credibility of the witness. He may beasked whether he had received a bribe to giveevidence. If he had, that would simply break downhis evidence; or he may be asked whether he hadnot been convicted of some offence. These aresome of the recognized means of discrediting awitness. But a proper foundation has to be laid forthe contradiction by a proper cross- examination. Astrong case showing that is Hemming v.Maddick(1). There a witness had made an affidaviton behalf of the plaintiff, and it was sought to putin a statement in writing made by the witness to thedefendant's solicitor which was alleged to beinconsistent with the affidavit. It was held that theonly purpose for which such a document could beused was to discredit the witness who made it, andthat, if it were used for that purpose, the witnessought to have been cross-examined, and then thedocument might have been put in his hand and hemight have been cross-examined upon it. It seemsto me that that being the law the evidence may beused at any stage of the case.For these reasons I agree with the judgmentproposed by the Chief Justice.Appeal allowed with costs. Verdict for theplaintiffs on the first count set aside, and verdictentered for the defendants.Solicitors, for the appellants, J. A. Busby byColquhoun & Bassett.Solicitors, for the respondents, Minter, Simpson &Co.C. A. W.FN(1) 41 Ch. D., 348.FN(2) Sedgwick's Ruling Cases on Measure ofDamages, p. 553.FN(1) 3 Macq. H.L. Cas., 783.FN(2) 17 Ch. D., 301, at p. 312.FN(3) (1903) 1 Ch., 586.FN(4) 4 Q.B.D., 678.FN(5) L.R. 1 C.P., 559.FN(6) 117 U.S., 415.Copr. © West 2004 No Claim to Orig. Govt. Works
4 CLR 1692 Page 131907 WL 12437 (HCA), 14 ALR 89, 7 SR (NSW) 821(Cite as: 4 CLR 1692)FN(2) 41 Ch. D., 348, at p. 370.FN(1) (1903) 1 Ch., 586, at p. 605.FN(2) (1904) A.C., 342.FN(3) 4 Q.B.D., 678.FN(4) 4 Q.B.D., 678, at p. 681.FN(5) 4 Q.B.D., 678, at p. 684.FN(6) 2 C.P.D., 469.FN(7) 3 Macq. H.L. Cas., 783, at p. 798.FN(1) 22 L.J. Ch., 559, at p. 562.FN(1) 117 U.S., 415.FN(2) 117 U.S., 415, at p. 417.FN(1) (1903) 1 Ch., 586.FN(1) L.R. 5 H.L., 561.FN(2) L.R. 5 H.L., 561, at p. 568.FN(1) (1892) 2 Q.B., 534.FN(2) 8 Ex., 725, at p. 731.FN(1) 29 Ch. D., 459, at p. 482.FN(2) 6 C.B. (N.S.), 453.FN(3) 18 L.T.N.S., 293, at p. 295.FN(4) 2 Sm. L.C., 68.FN(1) L.R. 7 Ch., 395.(c) <strong>Thomson</strong> Legal and Regulatory Limited ABN64 058 914 668END OF DOCUMENTFN(1) 2 Raym. (Ld.), 1118.FN(2) 2 Raym. (Ld.), 1118, at p. 1120.FN(3) 20 Ch. D., 1, at p. 15.FN(4) 6 Cl. & F., 232.FN(5) 20 Ch. D., 1, at p. 16.FN(6) 20 Ch. D., 1, at p. 21.FN(7) 41 Ch. D., 348, at p. 369.FN(1) 20 Ch. D., 27, at p. 44.Copr. © West 2004 No Claim to Orig. Govt. Works
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