Cairns v Cairns [2006] NSWSC 364

Cairns v Cairns [2006] NSWSC 364

The adjournment was declined because there was no medical evidence of a condition inhibiting the plaintiff's ability to give evidence and the court accepted her statement that she would never return for cross-examination. However, because the fundamental family, financial and domestic facts were largely not in dispute, the issues did not substantially require resolution by cross-examination, and the just, quick and cheap resolution of the proceedings favoured continuing, the plaintiff's affidavits were permitted to continue to be read, subject to submissions about weight arising from her refusal to be cross-examined.

Jurisdiction
Australia
Judgment Date
28 April 2006
Procedural Posture
Family Provision Act 1982 Application / Evidentiary Ruling During Hearing After Plaintiff Failed to Attend for Continued Cross Examination and Sought an Adjournment
Outcome
Affidavit permitted to be read; adjournment declined.
Legal Topics
['supreme Court Procedure' 'affidavit Evidence' 'cross Examination of Deponent' 'adjournment' 'family Provision and Maintenance' 'judicial Discretion to Admit or Exclude Evidence']
['procedure' 'evidence' 'succession'] ['supreme Court Procedure' 'affidavit Evidence' 'cross Examination of Deponent' 'adjournment' 'family Provision and Maintenance' 'judicial Discretion to Admit or Exclude Evidence']

Case Brief

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Procedural Posture

Family Provision Act 1982 Application / Evidentiary Ruling During Hearing After Plaintiff Failed to Attend for Continued Cross Examination and Sought an Adjournment

Legal Issues

  1. 1 ['Whether the plaintiff should be granted an adjournment after failing to attend court to continue cross-examination.' "Whether the plaintiff's affidavits should continue to be read where she had absented herself from cross-examination." 'What factors are relevant to permitting affidavit evidence to be used when a deponent does not attend for cross-examination.']

Ratio Decidendi

The adjournment was declined because there was no medical evidence of a condition inhibiting the plaintiff's ability to give evidence and the court accepted her statement that she would never return for cross-examination. However, because the fundamental family, financial and domestic facts were largely not in dispute, the issues did not substantially require resolution by cross-examination, and the just, quick and cheap resolution of the proceedings favoured continuing, the plaintiff's affidavits were permitted to continue to be read, subject to submissions about weight arising from her refusal to be cross-examined.

Court Disposition

Affidavit permitted to be read; adjournment declined.

Orders

  • ["The plaintiff's adjournment application was declined." "The plaintiff's affidavits were permitted to continue to be read despite her absence from cross-examination." "Counsel for the defendants may make submissions about the weight to be accorded to the plaintiff's evidence in light of her refusal to be...