CONNELL v MIROCHNA [1997] NSWCA 78

CONNELL v MIROCHNA [1997] NSWCA 78

The paragraphs objected to in Mr Connell's affidavit (3, 5, 8, and 9) were not admissible, as paragraph 3 failed to meet statutory conditions for secondary evidence, paragraphs 3 and 5 did not provide material relevant to bias, and paragraphs 8 and 9 were inadmissible for dependency and irrelevance respectively; Mr McAllister's affidavit could not be read in the absence of the witness for cross-examination, and there was no basis for further adjournment or discretion to allow admissibility.

Parties
Applicant: Connell; Respondent: Mirochna; Intervener: Minister
Jurisdiction
Australia
Judgment Date
15 December 1997
Procedural Posture
Application for Leave to Appeal / Interlocutory Motion – Determination of Admissibility of Affidavit Evidence
Outcome
Objection to admissibility of specified affidavit paragraphs upheld; McAllister affidavit excluded; further decision on striking out paragraphs deferred.
Legal Topics
Admissibility of Evidence, Applications for Leave to Appeal, Affidavit Evidence, Bias
Evidence Civil Procedure Admissibility of Evidence Applications for Leave to Appeal Affidavit Evidence Bias

Case Brief

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Parties

Connell

Applicant

Mirochna

Respondent

Minister

Intervener

Procedural Posture

Application for Leave to Appeal / Interlocutory Motion – Determination of Admissibility of Affidavit Evidence

Legal Issues

  1. 1 Whether paragraphs 3, 5, 8, and 9 of Mr Connell's affidavit are admissible in support of the application for leave to appeal
  2. 2 Whether Mr McAllister's affidavit can be read despite his absence for cross-examination
  3. 3 Whether the material offered supports any reasonable apprehension of bias

Ratio Decidendi

The paragraphs objected to in Mr Connell's affidavit (3, 5, 8, and 9) were not admissible, as paragraph 3 failed to meet statutory conditions for secondary evidence, paragraphs 3 and 5 did not provide material relevant to bias, and paragraphs 8 and 9 were inadmissible for dependency and irrelevance respectively; Mr McAllister's affidavit could not be read in the absence of the witness for cross-examination, and there was no basis for further adjournment or discretion to allow admissibility.

Court Disposition

Objection to admissibility of specified affidavit paragraphs upheld; McAllister affidavit excluded; further decision on striking out paragraphs deferred.

Orders

  • Paragraphs 3, 5, 8, and 9 of Mr Connell's affidavit rejected as inadmissible.
  • Mr McAllister's affidavit not to be read in support of the summons.