When affidavit material may be relied upon by the court

 PAJ v AAK [2010] QCA 78

 

Whilst the decision is primarily concerned with the repealed Criminal Offence Victims Act 1995 (Qld), and in particular additional compensation under Regulation 1A; the President, with whom their Honours Muir and Chesterman JJA agreed,  provides guidance in respect of when affidavit may be relied upon by the court.  The Originating Application and written submissions both referred to the affidavit of Benjamin Robert Ruback containing Dr Epstein’s report, which was in contention. 

The Originating Application was formally read, but the affidavit of Benjamin Robert Ruback was not. The question was whether the learned primary judge erred in relying on the evidence of Dr Epstein.

 McMurdo P:

[23]

                        The applicant’s counsel first contends that, as he did not rely on any affidavit containing or referring to Dr Epstein’s opinion concerning the applicant at the hearing of the application, the judge erred in relying upon Dr Epstein’s evidence.

[24]

                        But as I have noted, the originating application, which the applicant’s counsel read at the primary hearing, expressly stated an intention to rely on two affidavits which contained or referred to Dr Epstein’s reports.21 That application and those affidavits were served on the respondent who was not legally represented. Whilst counsel for the applicant did not specifically read those affidavits at the hearing of the application, neither did he inform the judge that he was not relying upon them. There is authority to support the judge’s decision to rely on Dr Epstein’s evidence. In Muirfield Properties Pty Ltd v Erik Kolle & Assoc22 Brooking J observed that:

“..an affidavit filed in an action or other proceeding is an affidavit available for use in it. So in R. ex. rel. Onishenko v Nesdoly Gordon JA said, at p. 194: ‘It seems to me that when a affidavit is filed it becomes a matter of record before the Court and could be used by any party.’ Similarly in Chambers v Bryant 1843 L.J.Q.B. 139, … Williams J., in allowing a party to rely on an affidavit which he had earlier filed for a different but related purpose, observed: ‘The affidavit is on the files of the Court, and may, therefore, be used.’ ”

[25]

            In any case, the Act gives the court determining an application for compensation wide powers to receive evidence in any form the court considers appropriate.23 The unrepresented respondent had been served with Dr Epstein’s report and other material referring to it. It was by no means clear that the applicant’s counsel was not relying on that material. In those circumstances, the judge was entitled to rely on Dr Epstein’s report in determining the compensation application. It follows that the primary judge did not err in having regard to Dr Epstein’s report. This first contention is not made out.

21 See these reasons [14].

22 [1988] VR 167.

23 Section 30(3).  

Brisbane Barrister – David Cormack

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