When Mr Hale was cross-examined initially by Mr Eaton QC, he emphasised that he was running from the top of the goal square area for the ball and that his eyes were on the ball, he was not watching the boundary line. Mr Hale had also stated that he was not interfered with by any opposition player and that he had effectively got away from his direct opponent. He could not recall actually taking the mark, and did not believe that the umpire had signalled that the ball was out of bounds. The difficulty with the plaintiff’s own evidence on this issue is perhaps well illustrated by the following exchange in cross examination: “Did it go out on the full? I marked it and I landed on the fence. Yes? I got my hands on it and I landed on the fence. I understand that. But did it go out on the full before you got your hands to it? No. On the other hand, you don’t know where the boundary line was in relation to you when you’re attempting to mark it? Yes. Is that correct? Pardon? You don’t know where the boundary line was when you attempted to mark the ball? No, I don’t. And you’ve got no idea where - the distance that you were from the fence at the time when you attempted to mark the ball? I wouldn’t have gone for the mark if I’d known it was going to get kicked over the fence out of the way. To the question, please. You had no idea where the fence line was when you attempted to mark the ball? No.” Mr Hale was taken to answers he had given to interrogatories in this proceeding. These answers had been affirmed by Mr Hale on 12 October 2015. In substance the answers given by the plaintiff at that time varied from the evidence he had given in this proceeding in the following manner: The earlier answers describe the events leading up to the incident in following terms: “… I attempted to mark it before it was called ‘out on the full’. Players from the opposing team also attempted to mark the ball at the same time.
She specifically rejected a suggestion that the distance was either 2, 2.4 or 2.5 metres stating: “I don’t know how that could happen, because the line doesn’t change.” Ms McNaught’s evidence continued that apart from doing ground inspections she would be at the ground for other reasons, usually five nights per week, and in 2009 she had lived directly opposite the northern end of the ground. Ms McNaught agreed that the boundary line varied somewhat on the eastern side of Brook Reserve as the ground slanted up towards the playground. She did not agree that there was variance in the distance between the boundary line and the fence on the western side of the ground. Ms McNaught was not aware of any complaint or remonstration about the boundary line being too narrow in 2009 and had first learned of this allegation “towards the end of last year.” Ms McNaught had made enquiries in the week prior to the trial commencing and obtained a video of the seniors’ game taken on 20 June 2009. This included a passage where Ms McNaught’s son, who was officiating as a boundary umpire, had retrieved a ball from over the boundary line in the forward pocket area near where Mr Hale’s incident had occurred. After seeing the video shortly prior to the trial Ms McNaught had asked her son to pace out the distance between the line as it is presently and the fence. This she stated was four and a half to five metres, which was “similar” to that observed by her in 2009. Ms McNaught was cross-examined by Mr Shandell QC, who with Mr Sparrow appeared on behalf of the plaintiff, and the following evidence emerged: The ground inspection, certified by both Ms McNaught and the opposing team’s manager, signed off that the playing environment was fit for play, but the inspection was not done with the two walking together.