Canon Finance Australia Limited v Reliance Medical Practice Pty Ltd & Ors (No 6) [2018] NSWSC 1809

Canon Finance Australia Limited v Reliance Medical Practice Pty Ltd & Ors (No 6) [2018] NSWSC 1809

MFI 7 and paragraphs 1 to 9 of Dr Beckwith's affidavit were admissible because the affidavit was not hearsay but explained how MFI 7 came into his possession, and MFI 7 was admissible as a business record under s 69 Evidence Act 1995 (NSW). Although the material was not strictly evidence in reply and the cross-claimants would otherwise be splitting their case, fairness required leave to re-open because MFI 7's relevance only became apparent after the documents later tendered as Ex 1D1 were produced and tendered. MFI 7's potentially significant probative value was not substantially outweighed by unfair prejudice under s 135, particularly because the cross-defendants would be given an...

Jurisdiction
Australia
Judgment Date
22 November 2018
Procedural Posture
Civil Procedure; Procedural and Other Ruling / Application by Cross Claimants to Re Open Their Case in Chief and Tender Recently Obtained Evidence After Cross Defendants' Final Addresses
Outcome
MFI 7 and paragraphs 1 to 9 of Dr Beckwith's further affidavit were ruled admissible; the cross-claimants were granted leave to re-open their case in chief for that limited purpose; directions were made for further evidence, subpoenas, mention, and costs were reserved.
Legal Topics
['re Opening a Case in Chief' 'admissibility of Business Records' 'hearsay' 'evidence in Reply' 'notice to Produce' 'section 135 Unfair Prejudice' 'adjournment']
['civil Procedure' 'evidence'] ['re Opening a Case in Chief' 'admissibility of Business Records' 'hearsay' 'evidence in Reply' 'notice to Produce' 'section 135 Unfair Prejudice' 'adjournment']

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Procedural Posture

Civil Procedure; Procedural and Other Ruling / Application by Cross Claimants to Re Open Their Case in Chief and Tender Recently Obtained Evidence After Cross Defendants' Final Addresses

Legal Issues

  1. 1 ["Whether MFI 7 and paragraphs 1 to 9 of Dr Beckwith's further affidavit of 22 November 2018 were admissible." "Whether the additional evidence was properly evidence in reply or required leave to re-open the cross-claimants' case in chief." 'Whether MFI 7 should be excluded under s 135 Evidence Act 1995 (NSW) because its probative value was substantially outweighed by unfair prejudice.' 'Whether fairness and the interests of justice required an adjournment and directions allowing the cross-defendants to respond to the new evidence.']

Ratio Decidendi

MFI 7 and paragraphs 1 to 9 of Dr Beckwith's affidavit were admissible because the affidavit was not hearsay but explained how MFI 7 came into his possession, and MFI 7 was admissible as a business record under s 69 Evidence Act 1995 (NSW). Although the material was not strictly evidence in reply and the cross-claimants would otherwise be splitting their case, fairness required leave to re-open because MFI 7's relevance only became apparent after the documents later tendered as Ex 1D1 were produced and tendered. MFI 7's potentially significant probative value was not substantially outweighed by unfair prejudice under s 135, particularly because the cross-defendants would be given an...

Court Disposition

MFI 7 and paragraphs 1 to 9 of Dr Beckwith's further affidavit were ruled admissible; the cross-claimants were granted leave to re-open their case in chief for that limited purpose; directions were made for further evidence, subpoenas, mention, and costs were reserved.

Orders

  • ['Rule that MFI 7 and paras 1 to 9 of the further affidavit of Dr Beckwith of 22 November 2018 are admissible.' 'Grant leave to cross-claimants to re-open their case in chief for the sole purpose of leading the evidence referred to in Order 1.' 'The first and third cross-defendants to file and serve any further...