PAO v Thomas William Grealy [2013] NSWSC 675

PAO v Thomas William Grealy [2013] NSWSC 675

The application was refused because the plaintiff provided no evidence of the witnesses' alleged infirmity beyond bare assertion, the trial could be listed soon, witness statements would preserve the evidence and allow the defendants to decide whether cross-examination was required, and taking evidence separately would have no demonstrated utility while risking extra expense, delay, and impairment of the trial judge's assessment of credit. The proposed orders were not in the interests of justice and could be inimical to the just, quick and cheap resolution of the proceedings.

Jurisdiction
Australia
Judgment Date
30 May 2013
Procedural Posture
Common Law Proceeding; Application for Taking Evidence Otherwise Than at the Trial Pursuant to UCPR 24.3 / Plaintiff's Notice of Motion Filed 9 May 2013
Outcome
Plaintiff's notice of motion filed 9 May 2013 dismissed; directions made for service of witness statements and listing; costs of the application to be the plaintiff's costs in the proceedings.
Legal Topics
['order for Examination of Witnesses' 'taking Evidence Otherwise Than at Trial' 'witness Statements' 'aged or Frail Witnesses' 'case Management']
['civil Procedure'] ['order for Examination of Witnesses' 'taking Evidence Otherwise Than at Trial' 'witness Statements' 'aged or Frail Witnesses' 'case Management']

Case Brief

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Procedural Posture

Common Law Proceeding; Application for Taking Evidence Otherwise Than at the Trial Pursuant to UCPR 24.3 / Plaintiff's Notice of Motion Filed 9 May 2013

Legal Issues

  1. 1 ['Whether the Court should order evidence to be taken otherwise than at the trial from witnesses said to be aged and frail pursuant to UCPR 24.3.' "Whether the plaintiff demonstrated utility or necessity for taking the witnesses' evidence separately before trial." 'Whether the proposed orders would be in the interests of justice and consistent with the just, quick and cheap resolution of the proceedings.']

Ratio Decidendi

The application was refused because the plaintiff provided no evidence of the witnesses' alleged infirmity beyond bare assertion, the trial could be listed soon, witness statements would preserve the evidence and allow the defendants to decide whether cross-examination was required, and taking evidence separately would have no demonstrated utility while risking extra expense, delay, and impairment of the trial judge's assessment of credit. The proposed orders were not in the interests of justice and could be inimical to the just, quick and cheap resolution of the proceedings.

Court Disposition

Plaintiff's notice of motion filed 9 May 2013 dismissed; directions made for service of witness statements and listing; costs of the application to be the plaintiff's costs in the proceedings.

Orders

  • ["Plaintiff's notice of motion filed 9 May 2013 is dismissed." 'Direct the plaintiff to serve statements from all witnesses that are to be called at the trial within seven days.' 'Direct the defendants to serve statements from all witnesses that are to be called at the trial within 14 days thereafter.' 'Grant...