Jones v Dyldam Developments Pty Ltd & Anor [2007] NSWSC 752

Jones v Dyldam Developments Pty Ltd & Anor [2007] NSWSC 752

The evidence tendered on behalf of the first defendant through Mr Fayad was excluded, as the plaintiff had been denied a fair opportunity to investigate and prepare for the evidence due to the first defendant's repeated failure to comply with production requests, and the undue waste of time and prejudice to the plaintiff would outweigh the probative value, particularly given his physical condition and the circumstances of the trial.

Parties
Plaintiff: Warren Jones; First Defendant: Dyldam Developments Pty Ltd; Second Defendant: Samorto 13 Pty Ltd (in liq) (previously known as Sydney Bricklaying Construction Pty Ltd)
Jurisdiction
Australia
Judgment Date
13 July 2007
Procedural Posture
Interlocutory Application / Admissibility of Evidence During Trial
Outcome
The admission of the evidence tendered on behalf of the first defendant is refused.
Legal Topics
Admissibility of Evidence, Compliance With Subpoena, Discretion Under S 135 Evidence Act, Fairness in Litigation
Evidence Law Admissibility of Evidence Compliance With Subpoena Discretion Under S 135 Evidence Act Fairness in Litigation

Case Brief

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Parties

Warren Jones

Plaintiff

Dyldam Developments Pty Ltd

First Defendant

Samorto 13 Pty Ltd (in liq) (previously known as Sydney Bricklaying Construction Pty Ltd)

Second Defendant

Procedural Posture

Interlocutory Application / Admissibility of Evidence During Trial

Legal Issues

  1. 1 Whether evidence tendered on behalf of the first defendant should be admitted
  2. 2 Whether failure to comply with subpoena and notice to produce justifies exclusion of evidence under s 135 of the Evidence Act 1995

Ratio Decidendi

The evidence tendered on behalf of the first defendant through Mr Fayad was excluded, as the plaintiff had been denied a fair opportunity to investigate and prepare for the evidence due to the first defendant's repeated failure to comply with production requests, and the undue waste of time and prejudice to the plaintiff would outweigh the probative value, particularly given his physical condition and the circumstances of the trial.

Court Disposition

The admission of the evidence tendered on behalf of the first defendant is refused.

Orders

  • Evidence tendered through Mr Fayad concerning the presence or absence of bobcat drivers on the Conie Avenue site on 20 February 2003 is excluded.