National Auto Glass Supplies (Australia) Pty Limited v Nielsen & Moller Autoglass (NSW) Pty Limited (No 7) [2007] FCA 582

National Auto Glass Supplies (Australia) Pty Limited v Nielsen & Moller Autoglass (NSW) Pty Limited (No 7) [2007] FCA 582

Because the applicants could not complete their cross-examination of Mr Jack Moller after he was excused from giving further evidence, there was a danger that further use of his affidavit and oral evidence might be unfairly prejudicial to the applicants or be misleading or confusing. The Court therefore exercised its discretion under s 136 of the Evidence Act 1995 (Cth) to exclude that evidence from any further use in the proceedings. The second respondent's failure to attend for examination on 12 April 2007 caused costs to be thrown away, warranting an indemnity costs order payable forthwith.

Jurisdiction
Australia
Judgment Date
13 April 2007
Procedural Posture
Notice of Motion Seeking Limitation or Exclusion of Evidence Under S 136 of the Evidence Act 1995 (cth) / Trial; Application Heard After the Second Respondent Was Excused From Giving Further Evidence in the Case
Outcome
Applicants' Notice of Motion was granted in part; no further use may be made of the second respondent's affidavit or oral evidence, and costs orders were made against the second respondent.
Legal Topics
['discretion to Limit Use of Admitted Evidence' 'incomplete Cross Examination' 'unfair Prejudice' 'misleading or Confusing Evidence' 'indemnity Costs Thrown Away']
['evidence' 'civil Procedure' 'costs'] ['discretion to Limit Use of Admitted Evidence' 'incomplete Cross Examination' 'unfair Prejudice' 'misleading or Confusing Evidence' 'indemnity Costs Thrown Away']

Case Brief

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Procedural Posture

Notice of Motion Seeking Limitation or Exclusion of Evidence Under S 136 of the Evidence Act 1995 (cth) / Trial; Application Heard After the Second Respondent Was Excused From Giving Further Evidence in the Case

Legal Issues

  1. 1 ["Whether the Court should limit the use of the second respondent's affidavit and oral evidence after he was excused from giving further evidence and his cross-examination could not be completed." "Whether continued use of the second respondent's evidence might be unfairly prejudicial to the applicants or be misleading or confusing." "What costs orders should be made in respect of the second respondent's failure to attend for examination on 12 April 2007 and the applicants' Notice of Motion filed 12 April 2007."]

Ratio Decidendi

Because the applicants could not complete their cross-examination of Mr Jack Moller after he was excused from giving further evidence, there was a danger that further use of his affidavit and oral evidence might be unfairly prejudicial to the applicants or be misleading or confusing. The Court therefore exercised its discretion under s 136 of the Evidence Act 1995 (Cth) to exclude that evidence from any further use in the proceedings. The second respondent's failure to attend for examination on 12 April 2007 caused costs to be thrown away, warranting an indemnity costs order payable forthwith.

Court Disposition

Applicants' Notice of Motion was granted in part; no further use may be made of the second respondent's affidavit or oral evidence, and costs orders were made against the second respondent.

Orders

  • ['No further use may be made by any party of the affidavit or oral evidence of the second respondent.' "There be no costs order against the first or third respondents in respect of the applicants' Notice of Motion filed 12 April 2007." "The second respondent pay the applicants' costs thrown away by reason of his...