Dymocks v Capral [2013] NSWSC 130

Dymocks v Capral [2013] NSWSC 130

The solicitors' letter was not admissible as an admission by Mr Dalton or the second defendant because Mr Dalton was not its author and made no previous representation by or in it; the letter could not prove the truth of the asserted facts and was not a business record because it was prepared for the proceedings. In any event, its limited probative value and lack of context meant it would be prejudicial, potentially misleading or confusing, and would cause undue waste of time, so it would be excluded under s 135.

Jurisdiction
Australia
Judgment Date
20 February 2013
Procedural Posture
Procedural and Other Ruling on Admissibility of Evidence / Tender During Cross Examination Rejected
Outcome
Tender rejected
Legal Topics
['admissibility' 'admissions' 'previous Representations' 'business Records' 'discretionary Exclusion of Evidence' 'cross Examination']
['evidence' 'civil Procedure'] ['admissibility' 'admissions' 'previous Representations' 'business Records' 'discretionary Exclusion of Evidence' 'cross Examination']

Case Brief

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Procedural Posture

Procedural and Other Ruling on Admissibility of Evidence / Tender During Cross Examination Rejected

Legal Issues

  1. 1 ["Whether a redacted letter written by the second defendant's solicitors to an insurer was admissible as an admission under s 81 of the Evidence Act 1995 (NSW)." 'Whether the letter could be tendered to prove the truth of statements about when Mr Dalton recalled meetings and conversations with Dr Wallwork.' 'Whether, if otherwise admissible, the letter should be excluded under s 135 of the Evidence Act.']

Ratio Decidendi

The solicitors' letter was not admissible as an admission by Mr Dalton or the second defendant because Mr Dalton was not its author and made no previous representation by or in it; the letter could not prove the truth of the asserted facts and was not a business record because it was prepared for the proceedings. In any event, its limited probative value and lack of context meant it would be prejudicial, potentially misleading or confusing, and would cause undue waste of time, so it would be excluded under s 135.

Court Disposition

Tender rejected

Orders

  • ["The tender of the solicitors' letter was rejected."]