In the matter of H&C Investment Holdings Pty Ltd

The case before the court involved H&C Investment Holdings Pty Ltd, along with several plaintiffs, against certain defendants. The dispute centred on the admissibility of affidavits provided by two plaintiffs who were required to be cross-examined but did not attend the proceedings. The plaintiffs, who resided overseas, had previously had their request to give evidence via audio-visual link dismissed. The defendants argued that the plaintiffs had not taken all reasonable steps to secure their attendance and therefore their affidavits were not admissible under section 63 of the Evidence Act 1995 (NSW). The court was required to determine whether the plaintiffs had complied with the statutory requirements for admitting such evidence.

The court examined whether the plaintiffs had satisfied the conditions set out in section 63 of the Evidence Act 1995 (NSW). This section permits the admission of witness statements if the witness is unavailable and all reasonable steps have been taken to secure their presence. The court distinguished the case from Guojin Huang v Jinghong Wei [2022] NSWSC 222, where the plaintiffs had not been required to attend for cross-examination. Here, the court found that the plaintiffs had not taken all reasonable steps to secure their attendance for cross-examination, particularly given their prior refusal to give evidence via audio-visual link. The court held that the plaintiffs had not demonstrated the necessary compliance with the statutory requirements for the admissibility of their affidavits.

In light of the above findings, the court ruled that the affidavits of the second and fifth plaintiffs were inadmissible. The court's decision hinged on the plaintiffs' failure to take all reasonable steps to facilitate their attendance and cross-examination, despite being required to do so. The court concluded that the plaintiffs had not met the criteria for admissibility under section 63 of the Evidence Act 1995 (NSW). Consequently, the plaintiffs' affidavits were excluded from evidence. The court's ruling reinforced the importance of ensuring that all parties comply with procedural requirements, particularly in cases involving overseas witnesses.