Lamru Pty Limited v Kation Pty Limited [2013] NSWSC 195

Supreme Court New South Wales

Medium Neutral Citation: Lamru Pty Limited v Kation Pty Limited [2013] NSWSC 195 Hearing dates: 13.03.2013 Decision date: 13 March 2013 Jurisdiction: Equity Division Before: Lindsay J Decision: Application to conduct further cross examination (of a witness cross examined before the Registrar whose decision was under review) refused Catchwords: EVIDENCE - witnesses - cross-examination - application for review of a decision of a registrar - applicant sought further cross-examination of a witness who gave evidence before the registrar - whether further cross-examination of that witness should be allowed. Legislation Cited: Uniform Civil Procedure Rules 2005, rule 49.20 Cases Cited: Tomko v Palasty (No 2) (2007) 71 NSWLR 61; [2007] NSWCA 369 at [6]-[10], [17], [33]-[34] and [46]-[53] Texts Cited: - Category: Interlocutory applications Parties: Lamru Pty Limited (Plaintiff/Respondent) Kation Pty Limited (3rd Defendant/Applicant) Representation: MW Young SC (Plaintiff/Respondent) Lyons & Lyons Solicitors (Plaintiff/Respondent) Corporate Network Legal Solicitors (3rd Defendant/Applicant) File Number(s): 2002/0061144

Judgment - EX TEMPORE (revised) 1I have before me an application for review of a decision of a registrar in which the nature of the proceedings is governed by rules 49.19 and 49.20 of the Uniform Civil Procedure Rules 2005: Tomko v Palasty (No 2) (2007) 71 NSWLR 61; [2007] NSWCA 369 at [6]-[10], [17], [33]-[34] and [46]-[53]. By his decision, the registrar refused an application for security for costs. 2The evidence adduced on the hearing of the application for review includes the whole of the evidentiary material before the registrar, together with an affidavit read by the applicant for review. 3The applicant for review has made an application to the court for such leave as may be necessary, or otherwise for a direction which would permit him, to undertake further cross-examination of a witness on the other side of the record who gave evidence before the registrar. 4It is agreed between the parties that, in the context of rules 49.19 and 49.20, the Court has jurisdiction, in an appropriate case, to allow cross-examination of the type presently sought. 5In exercising the discretion residing in the Court, regard should be had to the fact that a fully contested hearing did take place before the registrar leading to his determination, and forensic decisions were made in the course of that hearing. 6An application for review should not be taken as an opportunity to overcome deficiencies arising from forensic decisions made during such a hearing before the registrar. 7Whether or not the terms of rules 49.19 and 49.20 themselves govern the decision that has to be made on the application for further cross-examination, I am mindful of the fact that the Court is presently dealing with an interlocutory application and that (as the parties accept) there is no "right" to cross-examination as such. 8I am not minded to permit further cross-examination of the witness. It seems to me that to do so would be to go further than is necessary, and reasonably necessary, for a fair determination of the application for review. Weighed in the balance, the interests of justice are against allowing further cross examination of the type proposed. The applicant had, and took, a fair opportunity to cross examine the witness before the registrar. 9So, I decline to make any order or to give any direction which would have the consequence that Mr Lamb would be required to submit to further cross-examination on his affidavit sworn 19 June 2012. 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. Decision last updated: 14 March 2013