Lay (as the personal representative of the estate of the late Albert Lay) v Employers Mutual Limited and Anor (No.1) [2004] NSWDDT 25

Lay (as the personal representative of the estate of the late Albert Lay) v Employers Mutual Limited and Anor (No.1) [2004] NSWDDT 25

The affidavit was admitted because it contained representations of the deceased deponent, the affidavit sought to be tendered had been adopted by him by swearing it, the differences in earlier drafts were not so great as to suggest anything untoward in its preparation, the affidavit had been filed and in the defendants' custody for about 12 months, and the Tribunal was not satisfied that any prejudice substantially outweighed its probative value so as to justify exclusion under s 135 or restriction under s 136.

Jurisdiction
Australia
Judgment Date
15 March 2004
Procedural Posture
Civil Proceedings in the Dust Diseases Tribunal of New South Wales / Application to Tender Affidavit and Objection to Admissibility
Outcome
The affidavit of Albert Lay sworn 12 November 2002 was admitted; exclusion under s 135 and restriction under s 136 were refused.
Legal Topics
['hearsay' 'civil Hearsay Exception' 'notice to Adduce Hearsay Evidence' 'discretionary Exclusion of Evidence' 'restriction on Use of Evidence' 'affidavit Evidence of Deceased Deponent']
['evidence' 'civil Procedure'] ['hearsay' 'civil Hearsay Exception' 'notice to Adduce Hearsay Evidence' 'discretionary Exclusion of Evidence' 'restriction on Use of Evidence' 'affidavit Evidence of Deceased Deponent']

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Procedural Posture

Civil Proceedings in the Dust Diseases Tribunal of New South Wales / Application to Tender Affidavit and Objection to Admissibility

Legal Issues

  1. 1 ['Whether the affidavit of the deceased, Albert Lay, sworn 12 November 2002 should be admitted despite objection that it was hearsay.' 'Whether any failure or insufficiency of notice under s 67 of the Evidence Act prevented admission of the affidavit.' 'Whether the Tribunal should refuse to admit the affidavit under s 135 of the Evidence Act because its probative value was substantially outweighed by unfair prejudice to the defendant.' 'Whether the use of the affidavit should be restricted under s 136 of the Evidence Act.']

Ratio Decidendi

The affidavit was admitted because it contained representations of the deceased deponent, the affidavit sought to be tendered had been adopted by him by swearing it, the differences in earlier drafts were not so great as to suggest anything untoward in its preparation, the affidavit had been filed and in the defendants' custody for about 12 months, and the Tribunal was not satisfied that any prejudice substantially outweighed its probative value so as to justify exclusion under s 135 or restriction under s 136.

Court Disposition

The affidavit of Albert Lay sworn 12 November 2002 was admitted; exclusion under s 135 and restriction under s 136 were refused.

Orders

  • ['The affidavit is admitted.' 'The Tribunal does not exclude the affidavit pursuant to s 135 of the Evidence Act.' 'The Tribunal does not restrict the use of the affidavit pursuant to s 136 of the Evidence Act.' 'The documents tendered for the purposes of the admissibility argument are to be returned.']