Randwick City Council v Athens and Anor (No 11) [2004] NSWLEC 771

Randwick City Council v Athens and Anor (No 11) [2004] NSWLEC 771

Because the proceedings were civil rather than criminal, s 65 of the Evidence Act 1995 did not apply. It was not practical to call the makers of the statements, so s 63(2) applied. Although no specific s 67 notice had been given, the affidavit containing the statements had been served approximately four months...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
30 January 2004
Procedural Posture
Civil Contempt Proceedings / Ex Tempore Evidentiary Ruling on Admissibility of Passages in an Affidavit
Outcome
Paragraph 5 of the affidavit of David Mulcahy was admitted.
Legal Topics
['hearsay Evidence' 'admissibility in Civil Proceedings' 'unavailability of Makers of Statements' 'notice of Intention to Adduce Hearsay Evidence' 'unfair Prejudice']
['evidence' 'practice and Procedure' 'contempt of Court'] ['hearsay Evidence' 'admissibility in Civil Proceedings' 'unavailability of Makers of Statements' 'notice of Intention to Adduce Hearsay Evidence' 'unfair Prejudice']

Source-derived case record

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Procedural Posture

Civil Contempt Proceedings / Ex Tempore Evidentiary Ruling on Admissibility of Passages in an Affidavit

Legal Issues

  1. 1 ["Whether s 65 of the Evidence Act 1995 applied to the admissibility of passages in para 5 of Mr David Mulcahy's affidavit sworn 1 September 2003." 'Whether s 63(2) of the Evidence Act 1995 applied because it was not practical to call the persons who made the statements.' 'Whether failure to give specific notice under s 67 of the Evidence Act 1995 prevented admission of the evidence.' 'Whether the evidence should be excluded under s 135 of the Evidence Act 1995.']

Ratio Decidendi

Because the proceedings were civil rather than criminal, s 65 of the Evidence Act 1995 did not apply. It was not practical to call the makers of the statements, so s 63(2) applied. Although no specific s 67 notice had been given, the affidavit containing the statements had been served approximately four months earlier and there was no injustice; the affidavit constituted sufficient notice. The evidence was not unfairly prejudicial and would not cause a waste of time under s 135, so para 5 of David Mulcahy's affidavit was admissible.

Court Disposition

Paragraph 5 of the affidavit of David Mulcahy was admitted.

Orders

  • ['The Court proposes to admit the para 5 of the affidavit of David Mulcahy.']