Short and Anor. v Crawley - [2001] NSWSC 228

CITATION: Short & Anor. v. Crawley & Ors. [2001] NSWSC 228

CURRENT JURISDICTION: Equity Division

FILE NUMBER(S): SC 2824/98

HEARING DATE(S): 27/03/01

JUDGMENT DATE:
27 March 2001

PARTIES :

Warwick Short - 1st plaintiff
Nabatu Pty. Ltd. - 2nd plaintiff
Christopher Crawley - 1st defendant
Marisco Holdings Pty. Ltd. - 2nd defendant
J & J O'Brien Pty. Ltd. - 3rd defendant
Vensel Pty. Ltd. - 4th defendant
Trudale Pty. Ltd. - 5th defendant
Judith Kiralyhidi Crawley - 6th defendant

JUDGMENT OF: Hodgson CJinEq at 1

COUNSEL : Mr. M. Cashion SC with Mr. Thawley for plaintiffs
Mr. C. Stevens QC with Mr. P. Dodson for defendants

SOLICITORS: Kemp Strang, Sydney for plaintiffs
Blake Dawson Waldron, Sydney for defendants

CATCHWORDS: PROCEDURE - Interlocutory application - Direction that affidavits be served - Party tenders affidavit as an exhibit - Whether prior notification or service required.

DECISION: See end of judgment

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

CORAM: HODGSON, CJ in Eq.

Tuesday 27th March 2000

NO. 2824 OF 1998
SHORT & ANOR. V. CRAWLEY & ORS.

JUDGMENT

1 I am dealing with an application under s.237 of the Corporations Law.

2 In support of the application, the applicants have tendered as exhibits two very substantial affidavits which have been filed for the purposes of the substantive hearing of the proceedings, and very substantial exhibits to those affidavits. That tender is objected to, primarily on the ground that no notice was given that this course was to be taken. Mr. Stevens QC for the defendants/respondents says that, having regard to directions that were given, and correspondence between the parties, he took it that the evidence to be relied on by the applicants was contained in the affidavit that was served, and he has given no consideration whatsoever to the very extensive material which is now tendered. He also foreshadows a submission that the tender should not be permitted unless the deponents are made available for cross-examination.

3 It is not appropriate to deal with that second aspect now. Mr. Stevens is not in a position to support any submission that it would be unfairly prejudicial within s.135 of the Evidence Act to permit this material to be tendered without cross-examination. Having regard to the issues which are raised on a s.237 application, there may well be very strong reasons for taking the view that it would not be unfairly prejudicial to permit this material to be introduced in this way without cross-examination. However, that is for another occasion.

4 As I understand it, there are no rules of court that specifically require notice to be given of documents to be tendered in support of an application like this. Certainly affidavits have to be served a reasonable time before they are read, and on 20th March 2001, I gave a direction that the plaintiffs serve, by 22nd March 2001, any affidavit in support of their motion, and also a short additional statement of the grounds on which the relief is…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Short and Anor. v Crawley

Details

AGLC: Short and Anor. v Crawley [2001] NSWSC 228
Case: [2001] NSWSC 228
Decision Date: 27 March 2001

CaseChat Overview and Summary

The matter in Short and Anor. v Crawley arose in the Federal Circuit Court of Australia, where the primary dispute centred on procedural matters concerning the service and use of affidavits in an interlocutory application. The applicants, Short and Anor., sought directions from the Court regarding the service of affidavits, while the respondent, Crawley, tendered an affidavit as an exhibit without prior notification or service to the applicants.

The legal issues before the Court were whether the tendering of an affidavit as an exhibit by a party required prior notification or service to the opposing party. This issue centred on the proper procedure for including and using affidavits in interlocutory applications, and whether there were any mandatory procedural requirements that the Court should follow to ensure fairness and due process.

The Court found that there was no mandatory requirement for prior notification or service of an affidavit when it was tendered as an exhibit. The Court reasoned that the proper procedure was for the party intending to rely on an affidavit to ensure that it was available to all parties in a timely manner, and that the Court would not impose a rigid rule that an affidavit had to be formally served before being tendered as an exhibit. The Court emphasised that the primary objective was to ensure that all parties had an opportunity to respond to the matters contained in the affidavit, and that the procedural rules should be interpreted flexibly to achieve this outcome. Consequently, the Court denied the application for directions regarding the service of affidavits.

No specific final orders were made in this case, as the Court's decision related to the procedural issue of the tendering of affidavits rather than substantive matters. However, the Court's decision clarified the procedural approach to be taken when dealing with affidavits in interlocutory applications, providing guidance for parties and practitioners in similar future cases.

Orders