Jermen v Shell Co & Anor [2004] NSWSC 168

Jermen v Shell Co & Anor [2004] NSWSC 168

Leave was granted because, despite the affidavit being served very late and contrary to the Court's procedures, no real, tangible or irremediable prejudice to the plaintiff was identified. Procedural fairness could be secured by permitting the plaintiff to tender evidence in response, entertaining any appropriate adjournment application, ruling later on specific objections to the affidavit, and imposing costs consequences for the late service.

Jurisdiction
Australia
Judgment Date
16 March 2004
Procedural Posture
Interlocutory Decision / Defendants' Application for Leave to File in Court and Read the Affidavit of Robert Slater as Expert Evidence After Late Service
Outcome
Affidavit of Robert Slater admitted; leave granted for the affidavit to be filed in court and read, subject to specific objections to be ruled upon in due course.
Legal Topics
['late Evidence' 'admissibility of Affidavit' 'expert Evidence' 'procedural Fairness' 'prejudice' 'costs' 'browne V Dunn']
['civil Procedure' 'evidence'] ['late Evidence' 'admissibility of Affidavit' 'expert Evidence' 'procedural Fairness' 'prejudice' 'costs' 'browne V Dunn']

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Procedural Posture

Interlocutory Decision / Defendants' Application for Leave to File in Court and Read the Affidavit of Robert Slater as Expert Evidence After Late Service

Legal Issues

  1. 1 ['Whether the defendants should be granted leave to file in court and read the affidavit of Mr Robert Slater as expert evidence notwithstanding late service.' 'Whether the late service of the affidavit caused tangible or irremediable prejudice to the plaintiff.' 'Whether procedural fairness could be secured by allowing reply evidence, entertaining any adjournment application, and making appropriate costs orders.']

Ratio Decidendi

Leave was granted because, despite the affidavit being served very late and contrary to the Court's procedures, no real, tangible or irremediable prejudice to the plaintiff was identified. Procedural fairness could be secured by permitting the plaintiff to tender evidence in response, entertaining any appropriate adjournment application, ruling later on specific objections to the affidavit, and imposing costs consequences for the late service.

Court Disposition

Affidavit of Robert Slater admitted; leave granted for the affidavit to be filed in court and read, subject to specific objections to be ruled upon in due course.

Orders

  • ["Leave granted to have Mr Slater's affidavit filed in court." 'Counsel for the defendants allowed to read the affidavit, subject to specific objections to be articulated and ruled upon in due course.']