Smith By His Litigation Guardian Smith v Aircraft Maintenance Services Australia Pty Ltd

In this matter before Egan J of the Federal Circuit Court of Australia, the applicant, Mr Smith, by his litigation guardian, sought to rely on an affidavit. The respondent, Aircraft Maintenance Services Australia Pty Ltd, applied to exclude this affidavit on the grounds that Mr Smith was suffering from Alzheimer's disease and would be unable to be cross-examined at any hearing.

The central legal issue before the Court was whether the affidavit of Mr Smith should be admitted into evidence, notwithstanding his inability to be cross-examined, and in light of section 135 of the *Evidence Act 1995* (Cth). This required the Court to balance the probative value of the affidavit against any potential unfair prejudice to the respondent.

Egan J reasoned that section 64 of the *Federal Circuit Court of Australia Act 1999* (Cth) permits the Court to give such weight as it thinks fit to affidavit evidence when the deponent cannot be cross-examined. The Court noted that much of Mr Smith's affidavit was not objected to by the respondent. Furthermore, the respondent intended to call three witnesses who could give evidence on the disputed issues, both by affidavit and orally, and could address any internal inconsistencies in Mr Smith's affidavit. The Court distinguished cases concerning unfair prejudice in a jury context, finding them of little relevance to a trial before a judge alone. Applying the principles from *R v Suteski* and *Ordukaya v Hicks*, the Court concluded that the inability to cross-examine was not necessarily decisive and that unfair prejudice had not been established.

The Court ordered that the affidavit of Mr Smith be admitted into evidence.