Claimant Must Be Available for Cross-Examination Despite Difficulties

The court denied the claimant's request to be excused from cross-examination during the hearing of a motion, citing the relevance of the claimant's evidence to the legal provisions in question. The decision was made by Schmidt J in the NSW Supreme Court on 11 March 2014.

Supreme Court New South Wales

Medium Neutral Citation: [NAME] v [NAME] [2014] NSWSC 212 Hearing dates: 11 March 2014 Decision date: 11 March 2014 Jurisdiction: Common Law Before: Schmidt J Decision: First Plaintiff not to be excused from cross-examination at the hearing of the motion. Catchwords: PROCEDURE - order that first plaintiff be excused from cross examination sought - order refused Legislation Cited: Law Reform (Miscellaneous Provisions) Act 1944 (NSW) Category: Interlocutory applications Parties: [NAME] (First Plaintiff) [COMPANY] (Second Plaintiff) [NAME] (First Defendant/Cross-Claimant) [NAME] (Second Defendant) [COMPANY] (Cross-Defendant) Representation: Counsel: [redacted] [NAME] (Cross-Defendant) Solicitors: [redacted] [NAME] (Cross-Defendant) File Number(s): 2011/177707 Publication restriction: None

EX TEMPORE Judgment 1HER HONOUR: Having heard the parties, it must be concluded that the first plaintiff cannot be excused from cross-examination at the hearing of the motion. It does seem to me that, having regard to what is in issue between the parties on the motion which arises from the provisions of the Law Reform (Miscellaneous Provisions) Act 1944 (NSW) and, in particular, the provisions of s 6(4), which includes a proviso in terms that: "No action shall be commenced in any Court, except with the leave of that Court, leave shall not be granted in any case where the Court is satisfied that the insurer is entitled, under the terms of the contract of insurance, to disclaim liability and that any proceedings, including arbitration proceedings, necessary to establish that the insurer is so entitled to disclaim, have been taken." the requirement that the first plaintiff be available for cross-examination at the hearing of the motion is a reasonable one. Steps can be taken by the parties to arrange for that cross-examination to be undertaken by way of telephone, given the first plaintiff's physical difficulties, so that hurdle can be overcome in a practical sense. 2It seems to me, given what appears to be common ground between the parties, that the first plaintiff's statement, on which reliance will be placed in order to support the joinder sought by way of the motion, does fairly leave open the possibility that her evidence will also be relevant to the question of whether or not the circumstances are such that the claim falls within the proviso in s 6(4), to which I have earlier referred. That is what [NAME] seeks to establish. 3It seems to be common ground between the parties that the circumstances are such that the first defendant, who has filed a submitting appearance, has clearly admitted negligence. That there is a possibility that the conduct involved is more serious, namely dishonest conduct which, under the relevant policy, would entitle the insurer to disclaim liability is a possibility which [NAME] is entitled to explore in cross-examination. 4In those circumstances, the issue in relation to which cross-examination of the first plaintiff would assist the Court, the question posed in the plaintiff's submissions at paragraph 2, is clearly answered. Notwithstanding the plaintiff's physical difficulties, it seems to me that justice does demand in this case that the plaintiff not be excused from cross-examination at the hearing of the motion. 5The parties have liberty to approach.

********** 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: 12 March 2014