This was an Application to strike for delay pursuant to Rule 4.33.

The Court noted that Rule 13.18(3) provides that if an Affidavit is used in support of an Application that may dispose of all or part of a claim, the Affidavit must be sworn on the basis of the personal knowledge of the deponent. The Court also noted that Rule 13.18(3) has been treated as a restatement of the best evidence rule.

The Court emphasised that a Rule 4.33 Application is a “final Application” in that it may dispose of all or part of a claim. As such, a high standard of evidence is required. The supporting Affidavit on this Application was based entirely on hearsay, and the Court noted that hearsay evidence may be received in a final Application if it meets those criteria and would otherwise be admissible at Trial. The Court noted that the Applicant should swear to the events that are not reflected on the Court file. Some of this may be based on information and belief, given that the Applicant may not be privy to every event on the file.

The Court ultimately dismissed the Application, having found that the Applicant had failed to establish a prima facie case with personal firsthand evidence, or evidence that would otherwise be receivable at Trial.