Ordukaya v Hicks [2000] NSWCA 180
Facts: The plaintiff (Pl) brought a claim against the defendant (D) when Pl tripped on a loose paving step to D’s house. 92 yea old D (i.e. unavailable) provides evidence by affidavit (instead of in court). Pl argued it should be excluded under s 135 Evidence Act because it was impossible to test, and therefore unfairly prejudicial. The TJ excluded it, and the decision was appealed.