Dario J

6.14: Appeal from master’s judgment or order
7.3: Summary Judgment (Application and decision)
13.18: Types of affidavit

Case Summary

The Defendants appealed a Master’s Decision which had dismissed their Application for Summary Dismissal of the Plaintiff’s claim. On appeal, the Plaintiff and Defendants each sought the admission of new Affidavit evidence.

Following the consideration of Rule 6.14(3), Dario J. noted that the relevant test to admit new evidence on appeal is one of relevance and materiality, and held that the Affidavits advanced by the parties met this test.

The Defendants also argued that the Plaintiff’s Affidavit submitted in response to the Application for Summary Dismissal contained impermissible hearsay evidence. The Respondent argued the same in respect of the Defendants’ Affidavit in support of the Application for Summary Dismissal. Dario J. noted that Rule 13.18(3) only stipulates requirements for the Applicant’s evidence in the context of Summary Dismissal. Specifically, it requires that an Applicant “provide evidence of matters within the personal knowledge of the affiant, not evidence based on hearsay”. Accordingly, Dario J. held that the Plaintiff’s hearsay evidence was permissible, while the Defendants’ was not.

Finally, Dario J. considered whether Master Prowse incorrectly found that Summary Dismissal was not available to the Defendants. After analysing the Defendants’ arguments for dismissal, Dario J. opined that there was insufficient information to meet the test for Summary Dismissal, and upheld the Master’s Decision.

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