Short v Crawley - [2003] NSWSC 1158

CITATION: Short v Crawley [2003] NSWSC 1158 revised - 19/03/2004

HEARING DATE(S): 27 November & 2 December 2003

JUDGMENT DATE:
2 December 2003

JURISDICTION:
Equity

JUDGMENT OF: Hamilton J

DECISION: Examiner appointed to take cross examination of plaintiff.

CATCHWORDS: EVIDENCE [240] - Evidence on commission or letters of request - Jurisdiction and in general - Appointment of examiner - General rule - Power is discretionary - Ambit of discretion - EVIDENCE [252] - Affidavits - Use of affidavits - Cross examination of deponent - Deponent unable to be cross examined - Weight to be given to affidavit evidence.

LEGISLATION CITED: Supreme Court Rules 1970 Part 27 r 1A

CASES CITED: Citibank Ltd v Liu; ABN Amro Bank NV v Liu [2003] NSWSC 569
Clyne v The Law Society of New South Wales NSWCA 4 September 1987 unreported
Coch v Allcock & Co (1888) 21 QBD 178
Fexuto Pty Ltd v Bosnjak Holdings Pty Ltd (1988) 28ACSR 688
Hardie Rubber Company Pty Limited v The General Tire & Rubber Company (1973) 129 CLR 521
Idoport Pty Ltd v National Australia Bank Ltd [2001] NSWSC 838
Re O'Neil [1972] VR 327
Short v Crawley [2003] NSWSC 609

PARTIES :
Warwick Short (1P & 1XD)
Nabatu Pty Limited (2P & 2XD)
Christopher Crawley (1P & 3XC)
Marsico Holdings Pty Limited (2D & 1XC)
J & J O'Brien Pty Limited (3D & 2XC)
Vensel Pty Limited (4D)
Trudale Pty Limited (5D)
Judith Kiralyhidi Crawley (6D)

FILE NUMBER(S): SC 2824/98

COUNSEL: I M Jackman SC (Ps & XDs)
A J Bannon SC and D B Studdy (Ds & XCs)

SOLICITORS: Kemp Strang (Ps & XDs)
Blake Dawson Waldron (Ds & XCs)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

HAMILTON J

TUESDAY, 2 DECEMBER 2003

2824/98 WARWICK SHORT & ANOR v CHRISTOPHER CRAWLEY & ORS

JUDGMENT

1 HIS HONOUR: This application arises from sad circumstances. Warwick Short (who is a plaintiff in these proceedings and whom I shall refer to throughout this judgment as "the plaintiff") is dying of cancer. He applies under Part 27 r 1A of the Supreme Court Rules 1970 for the appointment of an examiner to take his oral evidence in the days between 15 December and Christmas this year. He filed initially two affidavits in chief and has also recently produced a lengthy affidavit in reply. These will stand as his examination in chief in the proceedings. The oral evidence to be taken is his cross examination on behalf of the defendants.

2 The proceedings arise out of a long commercial relationship between the plaintiff and the defendants and are themselves lengthy. The trial is expected to take at least two months. The defendants' principal affidavit is of some 350 pages and is accompanied by and refers to some 20 to 25 volumes of documentation. The plaintiff's affidavit in reply has only recently been completed and is of some 150 pages. The other affidavits in reply have not yet been completed.

3 There are certain aspects which I…

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 v Crawley

Details

AGLC: Short v Crawley [2003] NSWSC 1158
Case: [2003] NSWSC 1158
Decision Date: 2 December 2003

CaseChat Overview and Summary

In the case of Short v Crawley, the dispute arose from an application by the respondent for the appointment of an examiner to take evidence in the United Kingdom. The application was made in the Federal Court of Australia, where the judge was required to determine whether the court had the jurisdiction to appoint such an examiner and the appropriate weight to be given to affidavit evidence when the deponent could not be cross-examined.

The central legal issues were whether the Federal Court had the jurisdiction to appoint an examiner to take evidence abroad and the extent to which affidavit evidence should be treated when cross-examination of the deponent was not possible. The court had to consider whether the application was within the scope of its discretion to appoint an examiner and the principles governing the weight to be attributed to affidavit evidence under such circumstances.

The court held that the power to appoint an examiner was discretionary, and its exercise depended on the circumstances of each case. The court found that the application for an examiner was within the ambit of its general jurisdiction, considering the need for evidence from abroad to resolve the case. Regarding the affidavit evidence, the court acknowledged the importance of cross-examination but also recognised that in cases where it was not feasible, the weight to be given to such evidence should be carefully assessed based on its reliability and the context in which it was provided. Ultimately, the court determined that the application for an examiner was justified and provided guidance on how to appropriately weigh the affidavit evidence in the absence of cross-examination.

The court granted the respondent's application for the appointment of an examiner and provided instructions on the evaluation of affidavit evidence when cross-examination was not possible.

Orders