Order 40 - Evidence Generally Flashcards
Definition 40.01 (one definition) - proceeding commenced by writ
In this Order, unless the context or subject matter otherwise requires, “a proceeding commenced by writ” includes—
(a) a proceeding in respect to which r 4.07(1) order’s been made
(b) a trial or inquiry under Order 50;
(c) an assessment of damages or value under Order 51.
Evidence of witness 40.02 (how)
Contrary direction as to evidence 40.03
Except as otherwise provided by any Act / these rules, and subject to any agreement between the parties, evidence shall be given:
(a) By affidavit in interlocutory proceeding / other application
(b) Orally in trial of proceeding commenced by writ
(c) Affidavit on trial of proceeding commenced by OM
But court can order otherwise (40.03), eg order (1)(a) evidence be given orally on the hearing of interlocutory/other application in any proceeding or at the trial of a proceeding commenced by OM
(b) by affidavit at trial of proceeding commenced by writ
(2) Where Court makes order under para (1)(a), it may direct that party on whose application the order is made give such notice as it thinks fit to the other parties of the oral evidence the party proposes to adduce
(3) Where the Court makes an order under paragraph (1)(b), it may order that the deponent shall attend at the trial to be examined or that the deponent’s attendance be dispensed with.
Examination on affidavit 40.04 (can order deponent be examined)
(1) Where affidavit is filed in any proceeding, Court (a) may order deponent be examined before the Court (b) may order that the deponent attend for that purpose at such time/place as it directs.
(2) Unless Court otherwise orders, party to proceeding commenced by OM on whose behalf an affidavit is filed in the proc shall cause the deponent to attend at the trial of the proc to be examined if notice that such attendance is required is served on the party by any other party a reasonable time before commencement of the trial. (3) If they don’t attend, court can order affidavit not be received into evidence.
Evidence of particular facts 40.05 (in such manner as it directs)
(1) The Court may order that evidence of any particular fact shall be given at the trial or at any other stage of a proceeding in such manner as it directs. (2) eg, by (a) statement on oath of information and belief; (b) by production of documents or entries in books; (c) by production of copies of documents or entries in books
Revocation or variation of order 40.06
The Court may, at or before the trial of any proceeding, revoke or vary any order made under Rules 40.03 to 40.05.
Deposition as evidence 40.07
(1) No deposition taken in proceeding shall be admissible as evidence at trial of proceeding unless (a) taken pursuant to order made under 41.01(1)(a)-(b) (order for W examination); and
(b) (i) person against whom evidence offered consents, OR (ii) deponent is dead or unfit by reason of deponent’s bodily or mental condition to attend trial and testify as a witness, OR (iii) deponent is out of Victoria and it is not reasonably practicable to secure their attendance, OR (iv) unfindable w reasonable diligence; AND
(c) party applying to have deposition received into evidence has given reasonable notice of the application to the other party
(2) deposition purportedly signed shall be receivable without proof of person’s signature
(3) unless Court otherwise orders:
(a) evidence of (1)(b) facts can be given by affidavit, (b) may be made from belief in the facts, if the grounds for the belief are given
Proof of court documents 40.08
(1) doc purporting to have court seal admissible w/o further proof
(2) office copy of document filed in or issued out of court shall be admissible to same extent as original would’ve been.
(3) Document purporting to be sealed with Court seal and to be a copy of a document filed in or issued out of the Court shall be admissible as an office copy of the latter document without further proof.
Evidence of consent 40.09
The consent of a person to act in a particular capacity, whether as trustee, receiver or otherwise, or to be added as a plaintiff shall be sufficiently evidenced by a written consent signed by that person, dated and verified by the indorsed certificate of a solicitor.
Defamation 40.10
D in proceeding for libel/slander who has not by their defence alleged the truth of the complained of statement shall not, except by leave of the Court at the trial, give evidence in chief re:
(a) mitigation of damages
(b) circumstances of publication; or
(c) character of plaintiff
unless the D gives particulars of the evidence to the P by notice served not less than seven days before trial.
Subsequent use of evidence at trial 40.11 (that taken at trial can be used at any subsequent stage)
Court may order that any evidence that has been taken at the trial of a proceeding may be used at any subsequent stage of that proceeding.
Attendance and production 40.12 (court can order attendance/production, not require privileged production)
(1) Court may in any proceeding make an order for:
● (a) Attendance of any person for purpose of being examined
● (b) Attendance of any person and production by person of any thing or document specified /described in order
● (c) production by any corporation of any document or thing specified/described in the order
(2) Order may be made for attendance before/production to Court or any officer, examiner, etc person authorised to take evidence
(3) shall not require production of something that could be objected to on ground of privilege
View 40.13
The Court may inspect, or, on a trial with a jury, may authorise the jury to inspect any place, process or thing.
