CONNELL v MIROCHNA [1997] NSWCA 78

CONNELL v MIROCHNA SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

PRIESTLEY JA and POWELL JA 15 December 1997

[1997] NSWCA 78

Priestley JA. The proceedings which are before the Court this morning were initiated by Mr Connell following the unsuccessful conclusion, from his point of view, of proceedings at first instance. The nature of the judgment against him was such that he required leave to appeal before he could proceed with an appeal.

A summons for leave to appeal was filed and is presently supported or sought to be supported by two affidavits which Mr Connell wished to read. Also listed before the Court today were motions filed by the Minister who has been given leave to intervene as a party in these proceedings.

The first affidavit which Mr Connell sought to read was that of himself which bears the Court received stamp of 11 November 1997; although I mention this just in case it is necessary to identify it at any stage, it appears to have been re-sworn on 17 November this year. Counsel for the Minister objected to paragraphs 3, 5, 8 and 9 of Mr Connell's affidavit. He also asked that an order be made pursuant to part 38 of the Supreme Court Rules that,what he submitted was scandalous, irrelevant or otherwise oppressive matter in those paragraphs be struck out.

Paragraph 3 concerns a notebook which, according to what Mr Connell says in the paragraph, was in his hands on 13 April this year. The notebook has not been put before the Court. The evidence about it in paragraph 3 is in the nature of secondary evidence; the admission of which is now governed by the Evidence Act, 1995; a particularly relevant part of which, for present purposes, is the Dictionary, as it is called, at the end of the Act which contains a part 2 and within the part 2 a clause or section S which lays down the conditions which must be fulfilled before secondary evidence of the contents of a document which is not produced can be put before a court.