SCR o 40 - Evidence generally

Question 1

40.02 Evidence of witness (evidence generally)

Answer 1

Except where otherwise provided by any Act or these Rules, and subject to any agreement between the parties, evidence shall be given—

• on an interlocutory or other APPLICATION, by AFFIDAVIT;
• at the TRIAL of a proceeding commenced by WRIT, ORALLY;
• at the TRIAL of a proceeding commenced by OM, by AFFIDAVIT.

Question 2

40.03 Contrary direction as to evidence (evidence generally)

Answer 2

Court can order evidence to be given otherwise (i.e orally on an application or trial commenced by OM, and by affidavit in a trial commenced by writ).

Question 3

40.04 Examination on affidavit

Answer 3

Where an AFFIDAVIT is filed in any proceeding, the Court may order—

• that the DEPONENT BE EXAMINED before the Court; and
• that the deponent attend for that purpose at such time and place as it directs.

If deponent DOES NOT ATTEND for examination where ordered or required, the Court may order that the affidavit be not received into evidence.

A party to a proceeding commenced by OM on whose behalf an affidavit is filed is responsible for causing the deponent to attend at trial for examination, if another party serves notice a reasonable time before the trial commences.

Question 4

40.05 Evidence of particular facts

Answer 4

The Court may order that evidence of any particular fact be given at any stage in such manner as it directs, including by statement on oath, or production of documents / copies.

Question 5

40.07 Deposition as evidence

Answer 5

No deposition taken in a proceeding shall be admissible as evidence at trial UNLESS—

• the deposition was taken pursuant to a Court order AND
• either (X)—

o the person against whom the evidence is offered consents; or

o the deponent is dead or is unfit by reason of the deponent’s bodily or mental condition to attend the trial and testify as a witness; or

o the deponent is out of Victoria and it is not reasonably practicable to secure the deponent’s attendance; or

o the deponent cannot with reasonable diligence be found; AND

• the party who applies to have the deposition received into evidence has given reasonable notice to the other party.