Barescape Pty Ltd & Anor v Bacchus Holdings Pty Ltd & Anor (No 4) [2011] NSWSC 1269

Barescape Pty Ltd & Anor v Bacchus Holdings Pty Ltd & Anor (No 4) [2011] NSWSC 1269

Although the affidavit was served late and potential forensic prejudice existed, Mr Siderovski was a significant participant in the relevant events and the Plaintiffs/Cross-Defendants had placed weight on the fact that he was not to be called. Any prejudice from late service could be addressed by terms allowing deferred or continued cross-examination, recall of witnesses, and further cross-examination of the Cross-Claimant's witnesses. The interests of justice therefore required leave to read the affidavit.

Jurisdiction
Australia
Judgment Date
14 September 2011
Procedural Posture
Interlocutory Application / Application by the Cross Claimant for Leave to Read an Affidavit Served After the Time Fixed by the Court's Directions During the Hearing
Outcome
Leave granted on terms; costs reserved.
Legal Topics
['leave to Call Additional Witness' 'late Service of Affidavit' 'court Directions' 'case Management' 'forensic Prejudice' 'cross Examination']
['practice and Procedure' 'civil Procedure' 'evidence'] ['leave to Call Additional Witness' 'late Service of Affidavit' 'court Directions' 'case Management' 'forensic Prejudice' 'cross Examination']

Case Brief

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Procedural Posture

Interlocutory Application / Application by the Cross Claimant for Leave to Read an Affidavit Served After the Time Fixed by the Court's Directions During the Hearing

Legal Issues

  1. 1 ["Whether the Cross-Claimant should be granted leave to read the affidavit of Mr Paul Siderovski served on the thirteenth day of the hearing despite non-compliance with the Court's directions." 'Whether any prejudice to the Plaintiffs/Cross-Defendants from the late service of the affidavit could be addressed by terms, including recall of witnesses, further cross-examination, or deferral of cross-examination.' "Whether any part of Mr Siderovski's evidence should be excluded as expert evidence under UCPR r 31.28(4), or admitted by leave under the Civil Procedure Act 2005 (NSW)."]

Ratio Decidendi

Although the affidavit was served late and potential forensic prejudice existed, Mr Siderovski was a significant participant in the relevant events and the Plaintiffs/Cross-Defendants had placed weight on the fact that he was not to be called. Any prejudice from late service could be addressed by terms allowing deferred or continued cross-examination, recall of witnesses, and further cross-examination of the Cross-Claimant's witnesses. The interests of justice therefore required leave to read the affidavit.

Court Disposition

Leave granted on terms; costs reserved.

Orders

  • ["The Cross-Claimant was granted leave to read Mr Paul Siderovski's affidavit sworn 12 September 2011." 'If the Plaintiffs/Cross-Defendants wish to have cross-examination deferred to the recommencement of the matter in early 2012, they may do so.' 'If the Plaintiffs/Cross-Defendants wish to commence...