Citibank Ltd v Liu; ABN Amro Bank Ltd v Liu [2002] NSWSC 886

Citibank Ltd v Liu; ABN Amro Bank Ltd v Liu [2002] NSWSC 886

Leave was granted because the medical evidence showed virtually no doubt that the second defendant had terminal liver cancer and there was no reason to doubt the opinion that cross-examination would be inhumane and possibly harmful. The plaintiffs' proposed inference-related condition was not imposed because untested evidence would in any event be discounted to the appropriate extent and the operation of the proposed condition could not be assessed before the relevant evidence and circumstances were apparent; the plaintiffs were protected by liberty to apply to revoke the order or attach conditions up to the close of evidence.

Jurisdiction
Australia
Judgment Date
23 September 2002
Procedural Posture
Equity Division Civil Proceedings / Final Pre Trial Directions; Second Defendant's Motion Under Part 38 R 9(3) of the Supreme Court Rules 1970 for Leave to Use Affidavits at Trial Without Attending for Cross Examination
Outcome
Leave granted to use affidavits without cross-examination of deponent; conditions not attached but liberty reserved to apply to revoke or attach conditions to leave.
Legal Topics
['affidavit Evidence' 'cross Examination' 'leave to Use Affidavits' 'conditions on Leave' 'witness Illness']
['civil Procedure' 'evidence'] ['affidavit Evidence' 'cross Examination' 'leave to Use Affidavits' 'conditions on Leave' 'witness Illness']

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Procedural Posture

Equity Division Civil Proceedings / Final Pre Trial Directions; Second Defendant's Motion Under Part 38 R 9(3) of the Supreme Court Rules 1970 for Leave to Use Affidavits at Trial Without Attending for Cross Examination

Legal Issues

  1. 1 ['Whether the second defendant should be granted leave under Part 38 r 9(3) of the Supreme Court Rules 1970 to use three affidavits at trial although he would not attend for cross-examination.' "Whether leave should be subject to the plaintiffs' proposed conditions concerning adverse inferences and later variation or rescission."]

Ratio Decidendi

Leave was granted because the medical evidence showed virtually no doubt that the second defendant had terminal liver cancer and there was no reason to doubt the opinion that cross-examination would be inhumane and possibly harmful. The plaintiffs' proposed inference-related condition was not imposed because untested evidence would in any event be discounted to the appropriate extent and the operation of the proposed condition could not be assessed before the relevant evidence and circumstances were apparent; the plaintiffs were protected by liberty to apply to revoke the order or attach conditions up to the close of evidence.

Court Disposition

Leave granted to use affidavits without cross-examination of deponent; conditions not attached but liberty reserved to apply to revoke or attach conditions to leave.

Orders

  • ['The second defendant be at liberty to use on the hearing of these proceedings his affidavits sworn 24 and 30 November 1999 and 12 August 2002.' 'The plaintiffs have liberty to apply to revoke this order or for conditions to be attached thereto up to the close of evidence.']