clr/1966/1966_1_276.pdf

(1959)C.L.R Affidavit -Affidavit evideiuc 254, f o l l o w e d . to be put in at the trial—See above. P r a c t i c e - A f f i d a v i t evidence etc. etc. See above. A d m i r a l t y — E v i d e n c e by affidavit—See above. T h e plamlilVapplied f o r an order that the evidence o f E,A. o f Oslo, N o r w a y . b e given by affidavit. Defendant's counsel did not oppose the a p p l i c a t i o n w i t h regard t o the first six para­ graphs o f E.A.'s alfidavit (attached t o the said application), but he opposed the a p p l i c a t i o n w i t h regard t o paragraph 7 o f the said affidavit proposed t o be p u t in evidence. The text o f t h a t p a r a g r a p h is set out i n the R u l i n g o f the C o u r t (post). In refusing leave as to paragraph 7, the C o u r t : H e l d , ( I ) (a) the p r i n c i p l e s o n w h i c h a f f i d a v i t evidence o r c o m m i s s i o n evidence is a l l o w e d t o be put i n al the l i i a l were reviewed i n the case o f Margaret Power

(1959)C . L . R . 2 5 4 , where the English a u t h o r i t i e s were re­ v. O. Beha, viewed, i n c l u d i n g the leading cases o f Lawson v. Brake Greenwood Co. [1884] 27 C l i . D. 137 and Berdan v. [1881] 20 C h . D . 764. 276 Vacuum (h) I need not quote in extenso the general principles except this extract from the judgment in Berdan v. Greenwood (supra) . l96S v ' AKIIHUH M.I ι SVLNSkA "I'vcn if the Court should be of opinion that the refusal of a commission will prevent the evidence of the witness from being given at all, yet, if the non-attendance of the wiiness before the tubunul which has to decide the case and the consequent inability of the tribunal to observe (he denie.iiioui and hear the answers of the wilnev,. should lead lo injustice towards one of the parties, the commis­ sion ought to be refusal· ". (t ) It -hoiild. also, be staled Ihat a plaintiff Λho has cho­ sen liis Ιοπιιη lii's α he;;\ier burden to discharge than a delendiinl who is taken It* the foiuin chosen by (IK- plaintiff

(2)In considciing Ihe LOIIICIUS of paragiaph 7 n|' me pro­ posed ;il'fida\i( (note. I'he lc\l is given in the ruhiv: o! the Com I. itifia) Μ seems lo me that this is one of the cases m ν Inch il would be necessarv for such witness lo give evidence 1/iv/ lOii- bcloie Ilie trial Couii to enable the Court to ob­ serve his demeanour and hen ι his cioss-cxumiiuilioi*. I ea\c a\ to parai;itiph 7 of the proposed aflioa\it isfu\cd. ('(/scs referred to : 1 Wutgaiet Toner v. Bella

(1959)C.L.R. 254, /allow id . Lawson v. Vacuum Ihake Co. [1884] 27 Cli. D. 137. followed: Beidan v. Greenwood [IXKI] 20 Ch. Γ). 764, followed. • The following ruling was delivered by : JosuMimi s, J. . Lust, as to the plaintiffs' application dated 21st October, 1066, for an order that the cvidcr.ee of JAN A S L R U D of Stockholm, Sweden, be given by affidavit (attached lo the application, sworn on the 12th October, 1966). Defendants' counsel no longer opposes this appli­ cation and il is accordingly granted. Secondly, as to the plaintiffs' application dated 141 h Octo­ ber, 1966, for an order that the evidence of E1NAR HANLBORG-AAS of Oslo, Norway, be given by affidavit (for which purpose affidavil daled 29th September, 1966, is at­ tached lo ihe application) : Having regard to the submissions made and the course the argument has taken in these procced- 277 OsrAntirA LINJIN "• OLORGE I). Coi NVAS &. SONS LTD. 1966 Nov^21 ings, defendants' counsel stated that he does not oppose^ 6 a pp]i c a tion with regard to the first six paragraphs of Mr. ΑΚΊΗΊΜΜ.ΛΟΚΓ Hancborg-Aas' affidavit, subject to the production of the ^NSKA log-book of the vessel. Bui he opposes (he application with OSIA*I«-AL.NJI:N r e g i ) r d l o p a r a g r a p h 7 0 f t h c proposed affidavit. That par-««,™ ragraph reads as follows : D . COUNNAS & SONS LTD. " 7 - It was impossible to find other cargo to replace de­ fendants' cargo by the time the defendants cancelled their booking. The vessel was already committed to a certain route by the other cargo on board ". Mr. Haneborg-Aas describes himself in paragraph 1 of the affidavit as the 'Chief Officer* of the vessel at the mate­ rial time. The. principles on which affidavit evidence or commission evidence is allowed to be put in at the trial were reviewed in the case of Margaret Power v. O. Beha

(1959)C.L.R.

1. Thc English authorities were reviewed in thatjudgment, includ­ ing ihe leading cases of Lawson v. Vacuum Brake Co. [1884] 27 Ch. D. 137, and Berdan v. Greenwood[18B\\ 20 Ch. D.
2. I need no! quote in extenso the general principles,except this extract from thc judgment in Berdan v. Greenwood : " liven if Ihe Court should be of opinion that the refusal of a commission will prevent the evidence of the witness from being given at all, yet, if the non-attendance of the witness before the tribunal which has to decide the case, and the consequent inability of the tribunal to observe the demeanour and hear the answers of the witness, should lead to injustice towards one of the parties, the commission ought to be refused ". As was stated in Margaret Power v. Beha (supra), at page 258: " The degree of necessity which thc case involves of the witness being seen in Court, his demeanour observed, and his cross-examination heard, appears therefore to constitute thc standard which will regulate the granting or refusing of applications for an examination ". I think that it should also be slated that a plaintiff who has chosen his forum has a heavier burden to discharge than a defendant who is taken lothe forum chosen by thc plaintiff. 278 Ιη considering the contents o f paragraph 7 o f l h c proposed affidavit, it seems to me that it is hardly within the province of thc duties of a Chief Officer o f a boat to f i n d other cargo t o replace some other cargo cancelled by a customer. But, what is more important lo my mind, is (hat this is one o f the two or three main questions in issue in this case, that is to say, the issue of thc amount of damages and the mitigation o f damages. Even if thc proposed statement as.to the impos­ sibility o f finding other cargo was strictly within the sphere o f the duties o f the Chief Officer and within his own know­ ledge, I think that this is one o f those cases in which it would be necessary for such a witness l o give his evidence viva voce before the trial Court to enable the Court to observe his de­ meanour and hear his cross-examination. In these circum­ stances, I would nol be prepared to allow affidavit evidence to go in al thc trial with regard to ihe proposed statement in paragraph 7 o f Hancborg-Aas' affidavit. The order which is accordingly made in thc plaintiffs' ap­ plication (dated 14th October) is as follows :

(1)Subjeci to paragraph 2 below, the evidence as-proposed in paragraphs ), 2, J, 4, 5 and 6 o f the affidavit o f HancborgAas, dalcd 29ih September, 1966, may be given on affidavit to be produced al thc trial. The plaintiffs shall be at liberty l o read in evidence at the t i i a l o f this action the aforesaid affidavit.

(2)The leave granted in paragraph 1 above is subject t o the plaintiffs allowing facilities to the defendants to examine thc vessel's log-book prior to the date o f trial.

(3)leave is icfused for affidavit evidence to be given in respect o f paragraph 7 o f the aforesaid affidavit of Haneborg-Aas.

(4)Costs in cause bul not againsl the defendants in any event. Order 279 accordingly. 1966 Nov. 21 AKTIEBOLAOF.r SVENSKA OSTAFRlCA LlNJEN f>. GEORGE D. COUNNAS & SONS L T D .