Traderight (NSW) Pty Ltd (ACN 108 880 968) and Ors v Bank Of Queensland Limited (ACN 009 656 740) (No 12) and 15 related matters

The proceedings before the Supreme Court of New South Wales involved Traderight (NSW) Pty Ltd and two other parties, who were the plaintiffs, and Bank of Queensland Limited, the defendant. The dispute pertained to the bank's refusal to produce a witness for cross-examination after the plaintiffs had read the witness's affidavit. This led to a motion by the plaintiffs seeking an order that the witness be produced for cross-examination, in accordance with the provisions of the Uniform Civil Procedure Rules (UCPR) rule 35.2.

The primary legal issue before the court was whether the bank could legally decline to produce a witness for cross-examination after the witness's affidavit had already been read by the plaintiffs. This issue required the court to interpret and apply the relevant provisions of the UCPR, specifically rule 35.2, to determine the circumstances under which a party could be compelled to produce a witness for cross-examination. The court was tasked with deciding if there were any exceptions or conditions under which the bank could refuse to produce the witness, considering the affidavit had already been read.

In resolving the matter, the court examined the principles underpinning the UCPR and the objectives of the rule in question. The court found that a party is not required to produce a witness for cross-examination if the party no longer relies on the witness's affidavit. The court emphasised that once an affidavit has been read, the opposing party has the opportunity to challenge its contents and the credibility of the witness through cross-examination. Therefore, the bank's refusal to produce the witness for cross-examination was deemed lawful as long as it no longer relied on the witness's affidavit. The court concluded that the plaintiffs' motion for the witness to be produced was without merit as the bank had not continued to rely on the affidavit.

The court's final order was that the plaintiffs' application for an order that the witness be produced for cross-examination was dismissed. The court determined that the bank was not obligated to produce the witness for cross-examination, provided it did not continue to rely on the witness's affidavit. This decision was based on the application of UCPR rule 35.2 and the principles of fairness and procedural justice inherent in the court's process.