Marshall v Prescott (No 1) [2013] NSWSC 1108

Marshall v Prescott (No 1) [2013] NSWSC 1108

The tender was rejected because Mr Green's affidavit was hearsay, the defendant's earlier opposition to consolidation did not create any waiver or election preventing objection, annexing the affidavit to another affidavit did not constitute substantial compliance with the notice requirement in s 67, and no proper reason was shown for dispensing with notice.

Jurisdiction
Australia
Judgment Date
12 August 2013
Procedural Posture
Interlocutory Application / Application to Tender Part of an Affidavit; Objection to Tender Heard Ex Tempore
Outcome
Tender rejected.
Legal Topics
['tender of Affidavit Sworn in Different Proceedings' 'hearsay' 'notice for Hearsay Exceptions' 'consolidation of Proceedings' 'waiver or Election']
['evidence' 'civil Procedure'] ['tender of Affidavit Sworn in Different Proceedings' 'hearsay' 'notice for Hearsay Exceptions' 'consolidation of Proceedings' 'waiver or Election']

Case Brief

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Procedural Posture

Interlocutory Application / Application to Tender Part of an Affidavit; Objection to Tender Heard Ex Tempore

Legal Issues

  1. 1 ["Whether the defendant's opposition to an earlier motion for the proceedings to be heard together amounted to an election or waiver preventing objection to the tender of Mr Green's affidavit without calling him." "Whether annexing Mr Green's affidavit as an exhibit to Mr Goldberg's affidavit was substantial compliance with the notice requirement in s 67 of the Evidence Act 1995 so as to permit admission under ss 63 or 64." 'Whether the affidavit was inadmissible hearsay in the absence of proper notice or a basis to dispense with notice.']

Ratio Decidendi

The tender was rejected because Mr Green's affidavit was hearsay, the defendant's earlier opposition to consolidation did not create any waiver or election preventing objection, annexing the affidavit to another affidavit did not constitute substantial compliance with the notice requirement in s 67, and no proper reason was shown for dispensing with notice.

Court Disposition

Tender rejected.

Orders

  • ['The tender of pp 408 to 410 of volume 3 of the proposed tender bundle is rejected.']