Palace v RCR O'Donnell Griffin Pty Ltd (in liq)

Palace was the plaintiff in this proceeding against RCR O'Donnell Griffin Pty Ltd, a company in liquidation, in the Supreme Court of New South Wales. Palace sought leave to file and read the further affidavit of Cale Fryer, which contained medical records and documents, but the respondent objected on the basis that the application was one seeking final relief and the affidavit was "entirely hearsay". Palace also sought to add the respondent to the proceedings, arguing that the respondent was the proper entity to be served with a notice of claim, and to proceed against the respondent under the Corporations Act 2001. The court was required to decide whether the application was for "final relief" and whether the applicant should be granted leave to file and read the further affidavit of Cale Fryer. The court was also required to decide whether the applicant should be granted leave to add the respondent to the proceeding under the Personal Injuries Proceedings Act 2002 and to proceed against the respondent under the Corporations Act 2001.

The court found that the application was not one seeking final relief, and that an affidavit for use in an application for relief other than final relief may contain statements based on information and belief if the statement-maker sets out the sources of the information and grounds for the belief. The court granted leave for the applicant to file and read the further affidavit of Cale Fryer. However, the court dismissed the application as the applicant had not demonstrated that there was a real prospect that the respondent would be able to satisfy the requirements of section 500(2) of the Corporations Act 2001. The court found that the respondent was in voluntary liquidation and that the applicant had not demonstrated that the respondent was liable to meet the costs of the proceeding.

The applicant was granted leave to file and read the further affidavit of Cale Fryer, affirmed 5 November 2020. The application was dismissed.