Lansom v Lansom [2018] NSWSC 763

Lansom v Lansom [2018] NSWSC 763

Even assuming Mr Davis' affidavit was obtained improperly because it disclosed confidential accounting advice owed to Mr Warren Lansom, the desirability of admitting it outweighed the undesirability of admitting it. Mr Warren Lansom had already given evidence, after receiving a certificate under s 128, about receiving the receipts from his son, using them for company tax deductions, and doing so on Mr Davis' advice, thereby waiving confidentiality in those matters. The affidavit was important to resolving credibility, reliability, relevant objective facts, and whether the alleged agreement between Mr Warren Lansom and Mr Wayne Lansom had been made and given effect.

Jurisdiction
Australia
Judgment Date
28 May 2018
Procedural Posture
Procedural Ruling on Evidence Objection in Possession of Land Proceedings With Cross Claim / During Cross Examination at Trial
Outcome
Objection under s 138 of the Evidence Act rejected.
Legal Topics
['exclusion of Improperly Obtained Evidence' 'affidavit Evidence' 'confidentiality' 'section 138 Evidence Act 1995 (nsw)' 'waiver of Confidentiality' 'probative Value']
['evidence' 'civil Procedure'] ['exclusion of Improperly Obtained Evidence' 'affidavit Evidence' 'confidentiality' 'section 138 Evidence Act 1995 (nsw)' 'waiver of Confidentiality' 'probative Value']

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Procedural Posture

Procedural Ruling on Evidence Objection in Possession of Land Proceedings With Cross Claim / During Cross Examination at Trial

Legal Issues

  1. 1 ['Whether parts of a late served affidavit sworn by Mr Tony Davis should be excluded under s 138 of the Evidence Act 1995 (NSW) as evidence obtained improperly or in contravention of an Australian law.' 'Whether any impropriety arising from disclosure by Mr Davis of matters subject to obligations of confidentiality was outweighed by the desirability of admitting the evidence.' 'Whether Mr Warren Lansom had waived confidentiality by his own evidence about the receipts and the advice given by Mr Davis.']

Ratio Decidendi

Even assuming Mr Davis' affidavit was obtained improperly because it disclosed confidential accounting advice owed to Mr Warren Lansom, the desirability of admitting it outweighed the undesirability of admitting it. Mr Warren Lansom had already given evidence, after receiving a certificate under s 128, about receiving the receipts from his son, using them for company tax deductions, and doing so on Mr Davis' advice, thereby waiving confidentiality in those matters. The affidavit was important to resolving credibility, reliability, relevant objective facts, and whether the alleged agreement between Mr Warren Lansom and Mr Wayne Lansom had been made and given effect.

Court Disposition

Objection under s 138 of the Evidence Act rejected.

Orders

  • ["Objection under s 138 of the Evidence Act 1995 (NSW) to receipt of Mr Davis' evidence rejected."]