New South Wales Supreme Court CITATION : Tim Barr Pty Ltd v Narui Gold Coast Pty Ltd [2009] NSWSC 533 HEARING DATE(S) : 16/06/08, 17/06/08, 18/06/08, 19/06/08, 20/06/08, 23/06/08, 24/06/08, 25/06/08, 26/06/08, 27/06/08, 30/06/08, 04/07/08, 28/07/08, 29/07/08, 27/08/08, 28/08/08, 24/11/08, 25/11/08, 26/11/08, 27/11/08, 28/11/08, 10/06/09 JUDGMENT DATE : 10 June 2009 JURISDICTION : Equity Division JUDGMENT OF : Barrett J EX TEMPORE JUDGMENT DATE : 10 June 2009 DECISION : Cross-examination permitted. CATCHWORDS : PROCEDURE - cross-examination - counsel wishes to cross-examine witness on content of affidavit sworn by him in other proceedings - whether Harman v Home Office principles preclude this CATEGORY : Procedural and other rulings Harman v Secretary of State for the Home Department [1981] AC 280 CASES CITED : Hearne v Street [2008] HCA 36; (2008) 235 CLR 125 Prime Finance Pty Ltd v Randall [2009] NSWSC 361 Tim Barr Pty Pty Limited - First Plaintiff PARTIES : Timothy James Barr - Second Plaintiff Narui Gold Coast Pty Limited - Defendant FILE NUMBER(S) : SC 2762/02 COUNSEL : Mr J E Lazarus - Plaintiffs Mr I M Neil SC/Mr A C Harding - Defendant SOLICITORS : Tzovaras Legal - Plaintiffs Verekers - Defendant IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION BARRETT J WEDNESDAY 10 JUNE 2009 2762/02 TIM BARR PTY LIMITED & ANOR v NARUI GOLD COAST PTY LIMITED JUDGMENT 1 Mr Lazarus, counsel for the plaintiffs, is cross-examining Mr Tassell, the defendant's solicitor, whose affidavits of 12 and 18 May 2009 have been read on the application now before me, which is an application by the defendant for security for costs by way of a notice of motion filed on 12 May 2009. 2 The cross-examination has reached a point where Mr Lazarus wishes to put questions to Mr Tassell arising from an affidavit sworn by Mr Tassell on 9 March 2009 in support of a notice of motion filed in the Court of Appeal in proceedings 41019 of 2004 on or about that date. The affidavit has not been read upon any hearing of that notice of motion. 3 Mr Lazarus has very properly raised a concern that by embarking on that course on behalf of the plaintiffs he might be encroaching upon territory forbidden by what used to be known as the implied undertaking referable to the decision in Harman v Secretary of State for the Home Department [1981] AC 280 but is now accepted as an obligation of substantive law as described by the High Court in Hearne v Street [2008] HCA 36; (2008) 235 CLR 125. 4 Mr Lazarus now submits, however, that that difficulty does not arise. No submission to the contrary has been put by Mr Neil on behalf of the defendant. 5 The difficulty is, in Mr Lazarus' submission, avoided because Mr Tassell's affidavit of 9 March 2009, although sworn and filed in the Court of Appeal in support of the notice of motion to which I have referred, was not filed in accordance with any direction of the Court of Appeal. It was, as it were, an affidavit volunteered by the applicant under the notice of motion in order to provide evidence in support of the application, and this was so without any requirement of the Court of Appeal having been imposed. 6 That being so, Mr Lazarus submits, and I accept, the affidavit falls outside the class of documents to which the obligation of substantive law discussed in Hearne v Street relates. 7 In the joint judgment of Hayne, Heydon and Crennan JJ, the following appears at [96]: "Where one party to litigation is compelled, either by reason of a rule of court, or by reason of a specific order of the court, or otherwise, to disclose documents or information, the party obtaining the disclosure cannot, without the leave of the court, use it for any purpose other than that for which it was given unless it is received into evidence. The types of material disclosed to which this principle applies include documents inspected after discovery, answers to interrogatories, documents produced on subpoena, documents produced for the purposes of taxation of costs, documents produced pursuant to a direction from an arbitrator, documents seized pursuant to an Anton Piller order, witness statements served pursuant to a judicial direction and affidavits." 8 It will thus be seen that the affidavit created and filed in the circumstances to which I have referred falls outside the categories mentioned here. In particular, the opening words are not satisfied or attracted in that the plaintiffs were not "compelled, either by reason of a rule of court, or by reason of a specific order of the court, or otherwise" to put forward the information contained in the affidavit (see also Prime Finance Pty Ltd v Randall [2009] NSWSC 361 at [31] – [32]). 9 My ruling therefore is that Mr Lazarus may embark upon the course of cross-examination he proposes without departing from the obligation of substantive law discussed in Hearne v Street. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.