Geekay Export & Import Co Ltd v. Garnets Electronics Ltd
Read the full judgment text of HCA 8997/1982 on BabelCite. This High Court CFI judgment.
1. My ruling is required upon an application made by Mr. Chan for the plaintiff to put before me an affirmation by a Mr. S.S. Sachdeva of Commercial Street, London although the application is, in fact, to have the affirmation admitted as a statement under Order 38 rule 21. Originally, when notice was served upon the defendant, it was said that the affirmation was to go in pursuant to Order 38 rule 2, but that was in error. The defendant served a counter notice under Order 38 rule 2, also in erro
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HCA008997/1982
IN THE HIGH COURT OF JUSTICE BETWEEN
________ Coram: Hon. Mantell J. Date of Hearing: 22nd May, 1984. Date of Delivery of Ruling: 22nd May, 1984. ________ RULING _______ 1. My ruling is required upon an application made by Mr. Chan for the plaintiff to put before me an affirmation by a Mr. S.S. Sachdeva of Commercial Street, London although the application is, in fact, to have the affirmation admitted as a statement under Order 38 rule 21. Originally, when notice was served upon the defendant, it was said that the affirmation was to go in pursuant to Order 38 rule 2, but that was in error. The defendant served a counter notice under Order 38 rule 2, also in error, but I am asked to deal with the application as though it was made properly, as it should have been, under Order 38 rule 21. 2. This gentleman made his affirmation in April when he was visiting Hong Kong. He has since gone back to the United Kingdom. He is certainly now beyond the seas, and so the basis for the application is there; but I have to consider whether or not the statement ought to be admitted notwithstanding the fact that it is in defective form in not stating the reason why the witness is unable to attend and notwithstanding the fact that there is a counter notice. 3. This witness, whose affirmation I have seen de bene esse, deals with matters which are in issue in this case and in the ordinary way, of course, it would be right for the defendant to have the opportunity of cross-examining him upon his evidence. Is there then some reason why that ordinary rule should be avoided in this case? I think not. It is not a case of it being beyond the power of the plaintiff to have the witness here in court. Indeed, that might have been achieved in a number of ways, the most obvious being by having the case transferred to the fixture list to be heard at a time when it was convenient for Mr. Sachdeva to be present. No such application has been made nor was any consideration given apparently to having him examined prior to the hearing before me. It is a matter for my discretion. I am reluctant to shut out evidence but, I think, in the circumstances, I am bound to exercise my discretion against the plaintiff on this particular application.
Representation: Petrus Chan instructed by Edward C.T. Wong & Co. for plaintiff. Nicholas Pirie instructed by Wong, Hui & Souza for defendant. |