STONE V. STONE [1999] NSWSC 180

STONE V. STONE [1999] NSWSC 180

There are no circumstances shown here to restrain use of the affidavit as an abuse of process. The balance required under s.135 of the Evidence Act is generally undertaken at hearing, not in advance. Even if such a ruling could be made pre-hearing, it is not appropriate on these facts: no deliberate withholding or actual unfair prejudice established. The application to exclude the affidavit is dismissed.

Jurisdiction
Australia
Judgment Date
09 March 1999
Procedural Posture
Equity Proceedings / Interlocutory Application to Exclude Affidavit Evidence Prior to Hearing
Outcome
Application dismissed
Legal Topics
['admissibility of Affidavit' 'prejudicial Evidence' 'abuse of Process']
['equity' 'evidence'] ['admissibility of Affidavit' 'prejudicial Evidence' 'abuse of Process']

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Procedural Posture

Equity Proceedings / Interlocutory Application to Exclude Affidavit Evidence Prior to Hearing

Legal Issues

  1. 1 ["Whether an affidavit sworn by the plaintiff prior to proceedings and disclosed to the defendant after the plaintiff's death should be excluded as evidence on the grounds of unfair prejudice under s.135 of the Evidence Act 1995 (NSW) or as an abuse of process."]

Ratio Decidendi

There are no circumstances shown here to restrain use of the affidavit as an abuse of process. The balance required under s.135 of the Evidence Act is generally undertaken at hearing, not in advance. Even if such a ruling could be made pre-hearing, it is not appropriate on these facts: no deliberate withholding or actual unfair prejudice established. The application to exclude the affidavit is dismissed.

Court Disposition

Application dismissed

Orders

  • ["Defendant's Notice of Motion filed 22nd February 1999 dismissed" "Defendant to pay plaintiff's costs of the Notice of Motion" 'No order for indemnity costs' "Matter stood into Registrar's list on 16th March 1999 for directions"]