Napiat Pty Ltd v Salfinger; In the Matter of Salfinger (No 6) [2011] FCA 1298

Napiat Pty Ltd v Salfinger; In the Matter of Salfinger (No 6) [2011] FCA 1298

The respondent's affidavit evidence was rejected because he was not available for cross-examination, had made no endeavour to make himself available for cross-examination, and, in the case of the second affidavit, had filed and served it far too late and outside the Court's directions without explanation. Paragraphs 2-6 of the first affidavit were also bad in form because they did not specify with particularity the facts supporting the conclusions expressed.

Jurisdiction
Australia
Judgment Date
08 November 2011
Procedural Posture
Creditor's Petition / Evidentiary Rulings at Hearing
Outcome
The respondent's first and second affidavits were rejected, except for Exhibit "RNS#05" to the first affidavit, which was admitted into evidence and marked as Exhibit "1".
Legal Topics
["creditor's Petition" 'affidavit Evidence' 'cross Examination' 'late Evidence' 'videolink or Audiolink Evidence' 'notice to Produce']
['bankruptcy' 'evidence' 'civil Procedure'] ["creditor's Petition" 'affidavit Evidence' 'cross Examination' 'late Evidence' 'videolink or Audiolink Evidence' 'notice to Produce']

Case Brief

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Procedural Posture

Creditor's Petition / Evidentiary Rulings at Hearing

Legal Issues

  1. 1 ['Whether the respondent should be permitted to read parts of his affidavit affirmed on 18 May 2011 and filed on 20 May 2011.' 'Whether Exhibit "RNS#05" to the respondent\'s first affidavit should be admitted.' 'Whether the respondent should be permitted to read his affidavit affirmed on 2 November 2011 and filed on 3 November 2011.' "Whether affidavit evidence should be rejected because the respondent was not available for cross-examination and because the evidence was filed outside the Court's timetable."]

Ratio Decidendi

The respondent's affidavit evidence was rejected because he was not available for cross-examination, had made no endeavour to make himself available for cross-examination, and, in the case of the second affidavit, had filed and served it far too late and outside the Court's directions without explanation. Paragraphs 2-6 of the first affidavit were also bad in form because they did not specify with particularity the facts supporting the conclusions expressed.

Court Disposition

The respondent's first and second affidavits were rejected, except for Exhibit "RNS#05" to the first affidavit, which was admitted into evidence and marked as Exhibit "1".

Orders

  • ['The whole of the affidavit affirmed by the respondent on 18 May 2011 and filed herein on 20 May 2011 and the whole of the affidavit affirmed by the respondent on 2 November 2011 (covering four pages and consisting of 26 paragraphs) and filed herein on 3 November 2011 be rejected.' 'All of the annexures and...