Quintano v B W Rose Pty Ltd [2008] NSWSC 955

Quintano v B W Rose Pty Ltd [2008] NSWSC 955

Because Mr Rose was unavailable, notice had been given and no point was taken on notice, the affidavit was admissible under s 63(2). The factors relied on by the second defendant went to the weight of Mr Rose's evidence rather than creating unfair prejudice sufficient to justify exclusion under s 135, particularly where Mr Wilson could respond and potentially give evidence.

Jurisdiction
Australia
Judgment Date
21 July 2008
Procedural Posture
Procedural and Other Ruling; Evidence Ruling / Tender of Affidavit in Proceedings
Outcome
Affidavit admitted as PX02.
Legal Topics
['hearsay' 'unavailable Witness' 'notice of Intention to Adduce Hearsay Evidence' 'exclusion of Evidence for Unfair Prejudice' 'affidavit Evidence']
['evidence' 'civil Procedure'] ['hearsay' 'unavailable Witness' 'notice of Intention to Adduce Hearsay Evidence' 'exclusion of Evidence for Unfair Prejudice' 'affidavit Evidence']

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Procedural Posture

Procedural and Other Ruling; Evidence Ruling / Tender of Affidavit in Proceedings

Legal Issues

  1. 1 ['Whether the affidavit of the late Mr Bernie Rose was admissible under Evidence Act 1995 (NSW), s 63 where he was unavailable to give evidence.' 'Whether the affidavit should be excluded under Evidence Act 1995 (NSW), s 135 as unfairly prejudicial because Mr Rose could not be cross-examined and the affidavit was made years after the events for litigation purposes.']

Ratio Decidendi

Because Mr Rose was unavailable, notice had been given and no point was taken on notice, the affidavit was admissible under s 63(2). The factors relied on by the second defendant went to the weight of Mr Rose's evidence rather than creating unfair prejudice sufficient to justify exclusion under s 135, particularly where Mr Wilson could respond and potentially give evidence.

Court Disposition

Affidavit admitted as PX02.

Orders

  • ['The affidavit of Mr Rose is admitted as PX02.']