Helena Jenny Movsas v Donald William Gordon and 6 Ors

The dispute between Helena Jenny Movsas and Donald William Gordon and six others was heard in the Supreme Court of South Australia. Helena Movsas sought damages for personal injuries sustained in a car accident that occurred in 2013. The primary legal issue before the court was whether the hearsay evidence of a witness who could not be cross-examined due to incapacity could be admitted as substantive evidence. The second issue was whether a second person could testify as to what the first incapacitated witness had said, thereby providing hearsay evidence.

The court considered the applicable statutory and common law principles governing the admissibility of hearsay evidence. It was determined that under the Evidence Act 1995 (SA), hearsay evidence is generally inadmissible unless an exception applies. The court also noted that if a witness is unable to be cross-examined due to incapacity, and no exception to the hearsay rule applies, the evidence of that witness is inadmissible. However, the court found that the second witness's testimony could be admitted under the 'availability exception' if it was in the interests of justice to do so. The court held that the second witness's evidence was relevant and reliable, and its admission was in the interests of justice to ensure a fair trial.

In conclusion, the court ruled that the hearsay evidence of the second witness was admissible under the availability exception, allowing the trial to proceed with the testimony despite the incapacity of the first witness. The court found that the evidence was reliable and relevant, and its admission was in the interests of justice. The case was remitted for further proceedings to determine the merits of the claim.