Strang Patrick Stevedoring P/L v The owners of the ship Sletter (formerly the Hibiscus Trader)

[1992] FCA 845

JUDGMENT No. ...~&?IJ _2.&.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION	NO. NG 655 of 1991
BETWEEN:	STRANG PATRICK STEVEDQRING PTY. LIMITED

Plaintiff

THE OWNERS OF THE MOTOR VESSEL "SLETTER"

JFORMERLY THE "HIBISCUS TF?ADERWL

Defendant

MINUTES OF ORDER

JUDGE WAKING ORDER:	Cooper J.
WHERE MADE:	Sydney
DATE OF ORDER:	13 October, 1992
THE COURT ORDERS:

The motion, in so far as it seeks leave to rely on the affidavits of the two deponents in the absence of cross- examination by them is dismissed.

m:	Settlement and entry of orders is dealt with in
Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY	I
GENERAL DIVISION	NO. NG 655 of 1991
BETWEEN:	STRANG PATRICK STEVEDORING PTY. LIMITED

Plaintiff

AND :  THE OWNERS OF THE MOTOR VESSEL "SLETTER"
IFORMERLY THE "HIBISCUS TRADERWL

Defendant

-I	Cooper J.
PLACE :	Sydney
-	DATE :	13 October, 1992

EX TEMPORE REASONS FOR JUDGMENT

The defendant owner Karlander has by notice of motion sought leave pursuant to Order 14 Rule 9 of the Rules of Court to read the affidavits of Viggo Lotvedt and Oddvar Homdrum without either deponent being required for cross- examination.

In an affidavit of Drew Scott James, one of the

reasons put forward by the defendant owner as going to an

exercise of discretion in favour of granting the leave in the	absence of cross-examination is the cost of bringing the two
deponents from Oslo to Sydney and their accommodation here and also the cost of setting up, as an alternative, a video link between Sydney and Oslo. As between the two it is clear that the video link is cheaper. The plaintiff, via its counsel, has indicated on a previous occasion that the plaintiff would be satisfied with the opportunity to cross-examine bn the affidavits by the use of a video link. The plaintiff also had agreed to waive the necessity for the admiriistration of an oath to the deponents in Norway if that was likely to stand in the way of the cross-examination being conducted by video link.
It is submitted by Mr. Nell on behalf of the defendant owner that counsel for the applicant had previously indicated limited areas of cross-examination which it is submitted are not substantial, do not clearly arise on the pleadings, and, are limited to the question of agency as between Hetherington Kingsbury Shipping Agency and Karlander as owner of the relevant vessel.
I am satisfied that I have a discretion under Order 14 Rule 9 but there are, in my view, clear directions as to how that discretion is to be exercised.
This matter is proceeding as a trial of the action and the affidavit material is being read and relied upon in the trial and not in support of any interlocutory application.
witnesses on a trial is contained in Halsburvls Laws of The general principle as to a party's right to cross-examine Enuland, 4th Ed., Volume 17, paragraph 277 under the heading, "Evidence". There the learned authors state:

"Any party is entitled to cross-examine any other party who gives evidence, and his witnesses, and no evidence affecting a party is admissible against that party unless the latter has had an opportunity of testing its truthfulness by cross-

examination" .

l

Reference i s there made t o a u t h o r i t y i n t h a t regard.

A t paragraph 311 o f volume 17 the learned authors deal w i t h

t h e s i t u a t i o n as t o t h e cross-examination o f the deponents o f

a f f i d a v i t mater ia l and s t a t e the p o s i t i o n as fo l lowing:

"The cour t has a d i s c r e t i o n i n dec id ing whether o r n o t t o order the at tendance o f a deponent f o r cross-examinat ion, and i n

p r a c t i c e	cross-examination	does	n o t	of ten
t a k e	p lace	on	i n t e r l o c u t o r y	a p p l i c a t i o n s .

Where the r u l e s o f c o u r t provide t h a t

a f f i d a v i t s must be f i l e d , a p a r t y should

n o t be deprived o f h i s r i g h t t o c ross -

examine, and it has been s a i d t h a t only i n a very except ional case should a judge r e f u s e an a p p l i c a t i o n t o cross-examine a

deponent on his a f f i d a v i t " .

T h e Annotat ions t o Order 4 , Rule 9 i n volume 2 o f

the CCH Hioh Court and Federal Court Prac t ice make the

fo l lowing	observa t ions :
"Cross-examination The deponent may be cross-examined a s t o any m a t t e r which i s
i n i s s u e or r e l e v a n t t o the i s s u e s , and
a l s o a s t o h i s c r e d i t : see Saunders v.
Hammond (1965) QWN 39; Keogh v. Dalge ty 6
Co. L td . (1917) l 7 SR (NSW) 573; Muir v.
Harper (1900) 25 VLR 534 a t 536.
Deponent not a v a i l a b l e - " I n cases where
a f f i d a v i t s a r e chal lenged, . . . , and the

deponent i s n o t a v a i l a b l e for cross-

examinat ion, the a f f i d a v i t may either be

r e j e c t e d ,	or	i f	it	i s	r e c e i v e d ,	o n l y
s l i g h t	weight	may	be	given	to	i t s

c o n t e n t s . . .

I n p r i n c i p l e , there seems t o be no

d i f f e r e n c e between the n o n - a v a i l a b i l i t y o f a deponent for cross-examination due t o w i l f u l absence and n o n - a v a i l a b i l i t y due t o

death o r i l l n e s s . I t w i l l depend on the

p a r t i c u l a r c ircumstances i n c l u d i n g t h e na ture o f t h e proceedings whether such an a f f i d a v i t w i l l be r e j e c t e d o r i f admit ted

the weight t o be given t o i t":  Re

O ' N e i l l , decd. (1972) VR 327 a t p.333; see a l s o Shea v. Green (1886) 2 TLR 533;

Dunne v. English (1843) LR 18, Eg. 524, In the Estate of Constantine, Constantine v. Constantinides (194 7) SASR 415; Re O'Brien (1923) SASR 411".

because it has not been tested by cross-

examination".

It seems to me that the general principle ought not quickly be departed from to where affidavit material is used in circumstances such as the present case. In my view exceptional circumstances must be demonstrated for departing from the ordinary rule and in the present case I am not satisfied that such exceptional circumstances have been made out. Accordingly the motion, in so far as it seeks leave to rely on the affidavits of the two deponents in the absence of cross-examination by them is dismissed.

I record that by letter of 18 September 1992 the solicitors for the plaintiff stevedore have indicated that provided certain paragraphs are not relied upon in the affidavits, and those paragraphs are identified, then the plaintiff will not object to the reception of those affidavits

without the need to cross-examine. I will hear counsel in	relation to the question of the tender of the affidavits
without reliance on those specified paragraphs, if he so wishes.

I certify that this and the three (3)

preceding pages are a true copy of the ex tempore reasons for judgment herein of the Honourable Mr. Justice Cooper.

Date:  16 November,

Associate

Counsel for Applicant:	Mr. Street
Solicitors for Applicant:	Shaw McDonald
Counsel for Respondent:	Mr. Nell
Solicitors for Respondent:	Norton Smith
Hearing Date:	13 October, 1992, Sydney.