Morse v Riley

[2014] NSWSC 212

Supreme Court

New South Wales

Medium Neutral Citation:	Morse v Riley [2014] NSWSC 212
Hearing dates:	11 March 2014
Decision date:	11 March 2014
Jurisdiction:	Common Law
Before:	Schmidt J
Decision:	First Plaintiff not to be excused from cross-examination at the hearing of the motion.
Catchwords:	PROCEDURE - order that first plaintiff be excused from cross examination sought - order refused
Legislation Cited:	Law Reform (Miscellaneous Provisions) Act 1944 (NSW)
Category:	Interlocutory applications
Parties:	Joanna Louise Morse (First Plaintiff) Joanna Chapman Investments Pty Ltd (Second Plaintiff) Michael Thomas Riley (First Defendant/Cross-Claimant) Julie Anne Riley (Second Defendant) LawCover Insurance Pty Limited (Cross-Defendant)
Representation:	Counsel: Mr T Molomby SC with Ms M Fraser (Plaintiffs) Mr J Downing (Cross-Defendant) Solicitors: Castagnet Lawyers (Plaintiffs) HWL Ebsworth Lawyers (Cross-Defendant)
File Number(s):	2011/177707
Publication restriction:	None

EX TEMPORE Judgment

1. HER HONOUR: Having heard the parties, it must be concluded that the first plaintiff cannot be excused from cross-examination at the hearing of the motion. It does seem to me that, having regard to what is in issue between the parties on the motion which arises from the provisions of the Law Reform (Miscellaneous Provisions) Act 1944 (NSW) and, in particular, the provisions of s 6(4), which includes a proviso in terms that:

"No action shall be commenced in any Court, except with the leave of that Court, leave shall not be granted in any case where the Court is satisfied that the insurer is entitled, under the terms of the contract of insurance, to disclaim liability and that any proceedings, including arbitration proceedings, necessary to establish that the insurer is so entitled to disclaim, have been taken."

the requirement that the first plaintiff be available for cross-examination at the hearing of the motion is a reasonable one. Steps can be taken by the parties to arrange for that cross-examination to be undertaken by way of telephone, given the first plaintiff's physical difficulties, so that hurdle can be overcome in a practical sense.

1. It seems to me, given what appears to be common ground between the parties, that the first plaintiff's statement, on which reliance will be placed in order to support the joinder sought by way of the motion, does fairly leave open the possibility that her evidence will also be relevant to the question of whether or not the circumstances are such that the claim falls within the proviso in s 6(4), to which I have earlier referred. That is what LawCover seeks to establish.

1. It seems to be common ground between the parties that the circumstances are such that the first defendant, who has filed a submitting appearance, has clearly admitted negligence. That there is a possibility that the conduct involved is more serious, namely dishonest conduct which, under the relevant policy, would entitle the insurer to disclaim liability is a possibility which LawCover is entitled to explore in cross-examination.

1. In those circumstances, the issue in relation to which cross-examination of the first plaintiff would assist the Court, the question posed in the plaintiff's submissions at paragraph 2, is clearly answered. Notwithstanding the plaintiff's physical difficulties, it seems to me that justice does demand in this case that the plaintiff not be excused from cross-examination at the hearing of the motion.

1. The parties have liberty to approach.

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