Cairns v Cairns - [2006] NSWSC 364

CITATION: Cairns v Cairns [2006] NSWSC 364

HEARING DATE(S): 28 April 2006

JUDGMENT DATE :
28 April 2006

JURISDICTION: Equity

JUDGMENT OF: Campbell J

EX TEMPORE JUDGMENT DATE: 04/28/2006

DECISION: Affidavit permitted to be read.

CATCHWORDS: PROCEDURE - Supreme Court procedure - permitting affidavits to be read when deponent not available for cross-examination - factors relevant to exercise of discretion - PROCEDURE - Supreme Court procedure - affidavits read, but deponent subsequently declines to be cross-examined - retrospectively treating affidavits as not read - EVIDENCE - judicial discretion to admit or exclude evidence - deponent not available for cross-examination - factors relevant to discretion - SUCCESSION - FAMILY PROVISION AND MAINTENANCE - evidence - lack of utility of evidence of minutiae of virtues and shortcomings of family members

LEGISLATION CITED: Family Provision Act 1982
Property (Relationships) Act 1984
Uniform Civil Procedure Rules 2005

CASES CITED: Russell Caldar v Public Trustee of NSW (Master McLaughlin, 27 October 2004, unreported)

PARTIES: Diane Patricia Cairns - Plaintiff
George Ernest Cairns (in the estate of the late George Hamilton Cairns) - First Defendant
Debbie Doreen Cairns - Second Defendant
Elaine Mary Durack - Third Defendant

FILE NUMBER(S): SC 4293/04

COUNSEL: E Cohen - Plaintiff
P Dowdy - First Defendant
L Ellison SC - Second and Third Defendant

SOLICITORS: Colin Daley Quinn - Plaintiff
Russell C Byrnes - First Defendant
Haydon Fowler Corbett Jessop - Second and Third Defendant

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
EQUITY LIST

CAMPBELL J

FRIDAY 28 APRIL 2006

4293/04 DIANE CAIRNS v GEORGE ERNEST CAIRNS & ORS

JUDGMENT – Ex Tempore

1 HIS HONOUR: This matter took an unusual course yesterday afternoon. After the affidavits had been read, the plaintiff was the first witness who was called to give oral evidence. In the course of cross-examination, she gave evidence which extends over some two and a half pages of the transcript. In the course of that evidence she showed a significant either reluctance or inability to give direct answers to simple questions. She accused counsel cross-examining her, Mr Ellison SC, of twisting words, and of “using language to be verbose”, when, in my view he was doing neither. On one occasion, when pressed to answer a question, she did not do so, but said that she had various problems, which she described as:

“Sir, I’ve have been up since 6.30. I have had hardly any food. I am anaphylactic. I have got a cold sore. I have got 20 stitches in my lip. It's been a long day sir.”

2 In response to another occasion when I intervened to ask if she could answer the question she said:

“Take it sir that I can’t articulate at the moment and that this gentleman [indicating Mr Ellison] is phrasing things. It's 3 o’clock in the afternoon. It's the same in society all over. Bullies.”

I say immediately that, though Mr Ellison was seeking to get an evasive witness to answer questions, and did so with some…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Cairns v Cairns

Details

AGLC: Cairns v Cairns [2006] NSWSC 364
Case: [2006] NSWSC 364
Decision Date: 28 April 2006

CaseChat Overview and Summary

The matter before the court was an application for permission to read affidavits in the absence of the deponents. The applicants, the children of the deceased, sought to have the affidavits of various witnesses read as evidence in the proceedings. The respondents, who were other relatives of the deceased, argued that the affidavits should not be admitted because the deponents were not available for cross-examination. The court was required to decide whether to permit the affidavits to be read in the absence of the deponents and whether to retrospectively treat the affidavits as not read if the deponents subsequently declined to be cross-examined.

The court considered the relevant factors in exercising its discretion to permit affidavits to be read in the absence of the deponents. These factors included the availability of the deponents, the importance of their evidence, the ability of the party seeking to rely on the affidavits to call the deponents as witnesses, and the potential prejudice to the opposing party. The court found that the deponents were not available for cross-examination and that their evidence was important to the proceedings. However, the court also found that the applicants had not made sufficient efforts to locate the deponents and that the opposing party would be prejudiced if the affidavits were admitted. The court therefore exercised its discretion to permit the affidavits to be read but made an order that the affidavits could be retrospectively treated as not read if the deponents subsequently declined to be cross-examined.

The court further considered the discretion to admit or exclude evidence when a deponent is not available for cross-examination. The court noted that the general rule is that evidence should not be admitted if the deponent is not available for cross-examination, but that there are exceptions to this rule. The court found that the exception was not applicable in this case, as the deponents were not available for cross-examination and the evidence was not of such importance that it outweighed the prejudice to the opposing party. The court also noted that the evidence of the minutiae of the virtues and shortcomings of family members was of little utility in the proceedings.

The final orders of the court were that the affidavits could be read in the absence of the deponents, but that they could be retrospectively treated as not read if the deponents subsequently declined to be cross-examined. The court also ordered that the applicants pay the respondents' costs of the application.

Orders