Cairns v Cairns

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.