Lamru Pty Limited v Kation Pty Limited
[2013] NSWSC 195
•13 March 2013
Supreme Court
New South Wales
Medium Neutral Citation: Lamru Pty Limited v Kation Pty Limited [2013] NSWSC 195 Hearing dates: 13.03.2013 Decision date: 13 March 2013 Jurisdiction: Equity Division Before: Lindsay J Decision: Application to conduct further cross examination (of a witness cross examined before the Registrar whose decision was under review) refused
Catchwords: EVIDENCE - witnesses - cross-examination - application for review of a decision of a registrar - applicant sought further cross-examination of a witness who gave evidence before the registrar - whether further cross-examination of that witness should be allowed. Legislation Cited: Uniform Civil Procedure Rules 2005, rule 49.20 Cases Cited: Tomko v Palasty (No 2) (2007) 71 NSWLR 61; [2007] NSWCA 369 at [6]-[10], [17], [33]-[34] and [46]-[53] Texts Cited: - Category: Interlocutory applications Parties: Lamru Pty Limited (Plaintiff/Respondent)
Kation Pty Limited (3rd Defendant/Applicant)Representation: MW Young SC (Plaintiff/Respondent)
Lyons & Lyons Solicitors (Plaintiff/Respondent)
Corporate Network Legal Solicitors (3rd Defendant/Applicant)
File Number(s): 2002/0061144
Judgment - EX TEMPORE (revised)
I have before me an application for review of a decision of a registrar in which the nature of the proceedings is governed by rules 49.19 and 49.20 of the Uniform Civil Procedure Rules 2005: Tomko v Palasty (No 2) (2007) 71 NSWLR 61; [2007] NSWCA 369 at [6]-[10], [17], [33]-[34] and [46]-[53]. By his decision, the registrar refused an application for security for costs.
The evidence adduced on the hearing of the application for review includes the whole of the evidentiary material before the registrar, together with an affidavit read by the applicant for review.
The applicant for review has made an application to the court for such leave as may be necessary, or otherwise for a direction which would permit him, to undertake further cross-examination of a witness on the other side of the record who gave evidence before the registrar.
It is agreed between the parties that, in the context of rules 49.19 and 49.20, the Court has jurisdiction, in an appropriate case, to allow cross-examination of the type presently sought.
In exercising the discretion residing in the Court, regard should be had to the fact that a fully contested hearing did take place before the registrar leading to his determination, and forensic decisions were made in the course of that hearing.
An application for review should not be taken as an opportunity to overcome deficiencies arising from forensic decisions made during such a hearing before the registrar.
Whether or not the terms of rules 49.19 and 49.20 themselves govern the decision that has to be made on the application for further cross-examination, I am mindful of the fact that the Court is presently dealing with an interlocutory application and that (as the parties accept) there is no "right" to cross-examination as such.
I am not minded to permit further cross-examination of the witness. It seems to me that to do so would be to go further than is necessary, and reasonably necessary, for a fair determination of the application for review. Weighed in the balance, the interests of justice are against allowing further cross examination of the type proposed. The applicant had, and took, a fair opportunity to cross examine the witness before the registrar.
So, I decline to make any order or to give any direction which would have the consequence that Mr Lamb would be required to submit to further cross-examination on his affidavit sworn 19 June 2012.
Decision last updated: 14 March 2013
2
1