Helena Jenny Movsas v Donald William Gordon & 6 Ors [2004] NSWSC 1005

Helena Jenny Movsas v Donald William Gordon & 6 Ors [2004] NSWSC 1005

Paragraph 12 of Ann Margaret Armstrong's affidavit was hearsay and, in circumstances where Donald William Gordon could not be expected to give useful or reliable evidence in cross-examination, admitting the hearsay statement would create a real practical problem of actual and perceived fairness. There was no apparent way for the plaintiff to challenge what Mrs Armstrong said in that paragraph, so its use was likely to be unfairly prejudicial to the plaintiff and the paragraph was rejected.

Jurisdiction
Australia
Judgment Date
26 October 2004
Procedural Posture
Equity Division Probate List Proceeding Concerning the Estate of Beryl Dalwood / Evidentiary Objection During Hearing
Outcome
Evidence rejected.
Legal Topics
['hearsay Evidence' 'admissibility of Evidence' 'unfair Prejudice' 'testamentary Capacity' 'witness Incapable of Cross Examination']
['evidence' 'probate and Succession'] ['hearsay Evidence' 'admissibility of Evidence' 'unfair Prejudice' 'testamentary Capacity' 'witness Incapable of Cross Examination']

Case Brief

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Procedural Posture

Equity Division Probate List Proceeding Concerning the Estate of Beryl Dalwood / Evidentiary Objection During Hearing

Legal Issues

  1. 1 ["Whether paragraph 12 of Ann Margaret Armstrong's affidavit was inadmissible hearsay." 'Whether the hearsay evidence could be admitted under s 64 of the Evidence Act because Donald William Gordon was unable to give evidence in a meaningful way.' 'Whether admission or use of the evidence would be unfairly prejudicial to the plaintiff under ss 135 and 136 of the Evidence Act.']

Ratio Decidendi

Paragraph 12 of Ann Margaret Armstrong's affidavit was hearsay and, in circumstances where Donald William Gordon could not be expected to give useful or reliable evidence in cross-examination, admitting the hearsay statement would create a real practical problem of actual and perceived fairness. There was no apparent way for the plaintiff to challenge what Mrs Armstrong said in that paragraph, so its use was likely to be unfairly prejudicial to the plaintiff and the paragraph was rejected.

Court Disposition

Evidence rejected.

Orders

  • ['Paragraph 12 of the affidavit of Ann Margaret Armstrong sworn 19 February 2004 rejected.' 'Angus Donald Gordon appointed as next friend of Donald William Gordon, with the order to take effect from 25 October 2004.']