LINDSAY-OWEN V. LAKE & ORS. [2000] NSWSC 1046

LINDSAY-OWEN V. LAKE & ORS. [2000] NSWSC 1046

The objection was rejected because s.32 of the Evidence Act 1995 did not prevent affidavit evidence being prepared with reference to relevant documents, the Evidence Act did not exclude affidavit evidence and applied only so far as its terms were applicable, Mrs Lake's affidavits disclosed her recollection reasonably clearly and fairly, and it was too late to require oral evidence instead of the affidavit.

Jurisdiction
Australia
Judgment Date
09 November 2000
Procedural Posture
Equity Division Proceedings Involving an Evidentiary Objection / Objection to Mrs Lake's Affidavit Sworn 3 August 2000
Outcome
Objection dismissed; evidence allowed in affidavit form.
Legal Topics
['affidavit Evidence' 'refreshing Memory' 'use of Documents by Witnesses' 'applicability of Evidence Act 1995 to Affidavits and Witness Statements' "solicitor's File Note"]
['evidence' 'civil Procedure'] ['affidavit Evidence' 'refreshing Memory' 'use of Documents by Witnesses' 'applicability of Evidence Act 1995 to Affidavits and Witness Statements' "solicitor's File Note"]

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Procedural Posture

Equity Division Proceedings Involving an Evidentiary Objection / Objection to Mrs Lake's Affidavit Sworn 3 August 2000

Legal Issues

  1. 1 ["Whether Mrs Lake's affidavit sworn 3 August 2000 should be rejected because it was prepared by reference to a solicitor's file note and contained comments on matters raised in that file note." 'Whether s.32 of the Evidence Act 1995 applies to evidence given by affidavit or witness statement.' 'Whether the Evidence Act 1995 applies to affidavit or witness statement evidence so far as its terms are applicable.' 'Whether s.34 of the Evidence Act 1995 applies to documents used by a witness before giving evidence to revive memory.']

Ratio Decidendi

The objection was rejected because s.32 of the Evidence Act 1995 did not prevent affidavit evidence being prepared with reference to relevant documents, the Evidence Act did not exclude affidavit evidence and applied only so far as its terms were applicable, Mrs Lake's affidavits disclosed her recollection reasonably clearly and fairly, and it was too late to require oral evidence instead of the affidavit.

Court Disposition

Objection dismissed; evidence allowed in affidavit form.

Orders

  • ["The evidence in Mrs Lake's affidavit sworn 3 August 2000 is allowed."]