Authorities
51 The starting point is the Evidence Act 1995 (Cth) and the question of cross-examination of deponents of affidavits generally.
52 There are a number of earlier decisions that refer to a discretion to permit cross-examination of a deponent, with such discretion to be exercised sparingly: for example, Wu v Avin Operations Pty Ltd (No 3) [2006] FCA 1321 at [18]; and the cases collected by Stewart J in Selvaratnam v St George - A Division of Westpac Banking Corporation (No 2) [2021] FCA 486 at [43]. Nevertheless, there are examples where cross-examination on an affidavit in an interlocutory matter has been permitted. These include Talacko v Talacko (No 2) [2009] VSC 444; (2009) 25 VR 613 at [15]-[16] (Habersberger J); Dale v Clayton Utz (a firm) [2012] VSC 577 at [77] (Hollingworth J); and, more recently, Re Summit Hotel Bondi Beach Pty Ltd [2023] NSWSC 295 at [44]-[45] (Robb J).
53 However, more recent decisions in this Court have emphasised the provisions of the Evidence Act, and questioned whether the issue is properly one of granting leave or whether the prima facie position is that a party is entitled to cross-examine the deponent of an affidavit.
54 In Lantrak Holdings Pty Ltd v Yammine [2023] FCAFC 156, Lee J commented on the primary judge's refusal to grant leave to cross-examine the deponent of an affidavit, observing as follows:
[27] Given the decision of the primary judge, it is unnecessary to consider the correctness of his Honour's refusal of 'leave' to cross-examine Mr Yammine on the matters canvassed in his affidavit: PJ (at [83]). In adopting that course, his Honour applied a line of authority developed in some States prior to the introduction of the Evidence Act 1995 (Cth) (EA) and its cognates and summarised by Nicholson J in Scanlon v American Cigarette Co (Overseas) Pty Ltd (No 1) [1987] VR 261 (at 272) as follows: 'there is clearly a discretion in the Court to permit cross-examination on affidavits or otherwise. In interlocutory matters ... such a discretion is normally exercised somewhat sparingly' (citation omitted). That statement has apparently been approved in this Court on numerous occasions: see Selvaratnam v St George - A Division of Westpac Banking Corporation (No 2) [2021] FCA 486 (at [43]-[45] per Stewart J).
[28] Although the point does not arise for decision (and notwithstanding it is understandable the primary judge approached the issue the way he did given the state of the authorities), the apparent difficulty with this approach is that the EA applies to interlocutory proceedings (s 4(1)(b)), s 27 provides that '[a] party may question any witness, except as provided by this Act' and s 29(1) provides that '[a] party may question a witness in any way the party thinks fit, except as provided by [ch 2 of the EA] or as directed by the court'. Although the Court has an express (s 11) and implied power to control the conduct of a proceeding (except so far as the EA provides otherwise expressly or by necessary intendment), given the terms of ch 2, it seems to me the question of whether cross-examination should occur on an interlocutory application is more properly framed as whether a direction should be made that it does not occur. When properly framed, it can be seen the mandatory considerations in s 192(2) of the EA apply to considering whether a direction ought to be made and it is difficult to understand how this can be reconciled with the notion that a form of 'leave' needs to be sought and that such 'leave' is normally granted 'somewhat sparingly'. Although as a practical matter the result may be the same (in that a direction there be no interlocutory cross-examination would no doubt often be appropriate), and with respect to those who have expressed a different view, it is not evident to me that the pre-EA approach is the right starting point or frame of analysis.
55 The position of starting with the application of s 27 of the Evidence Act was adopted by Feutrill J in Sivwright v St Ives Group Pty Ltd (No 3) [2024] FCA 833 at [18]. His Honour observed that regardless, there may be many kinds of hearings where cross-examination of the deponent of an affidavit will not be relevant or in the interests of justice, and the Court may make a direction that has the effect of preventing such cross-examination.
56 Neither Lantrak nor Sivwright were relevantly concerned with discovery.
57 As to the particular context of discovery, the usual principles applied in respect of cross-examination on an affidavit of discovery are fairly well established: see in particular Procter v Kalivis [2009] FCA 1518 at [35]-[41] (Besanko J). They were summarised by Perram J in Voxson Pty Ltd v Telstra Corporation Limited (No 10) [2018] FCA 376 as follows:
[17] Sometimes discovery is found to be deficient. For a long time it was accepted that the affidavit verifying the discovery was both conclusive and unable to be cross-examined upon. However, that is no longer the case. Besanko J reviewed the authorities in Proctor v Kalivis [2009] FCA 1518; (2009) 263 ALR 461 at 468-469 [35]-[41] and it is clear from his Honour's treatment that the modern position is:
(a) the affidavit of discovery is not conclusive;
(b) the usual remedy for deficient discovery, where it is demonstrated, is the ordering of a further affidavit of discovery; but
(c) in limited circumstances, cross-examination of the verifying deponent may be ordered.
[18] It may be that 'limited circumstances' will be shown when there is a basis for believing that the approach of the party giving discovery has, in some way, been illegitimate (Olympic Airways SA v Spiros Alysandratus & Consolidated Travel (Vic) Pty Ltd (unreported, VSC, Harper J, 26 May 1997)) or, perhaps, where the only way the deficiencies can be exposed is by cross-examination (IO Group Inc v Prestige Club Australasia Pty Ltd [2008] FCA 1147 at [50] per Flick J).
58 In Olympic Airways SA v Spiros Alysandratos & Consolidated Travel (Vic) Pty Ltd (unreported, Supreme Court of Victoria, Harper J, 26 May 1997) cross-examination on an affidavit of discovery was allowed. His Honour stated that there are good policy reasons, in general, for not allowing cross-examination on affidavits of discovery. However, Harper J observed that the circumstances of the case before his Honour were:
unusual in that here there is cogent evidence to suggest the existence of documents which one would expect, if they do or did exist, were generated by one or other of the defendants. The evidence that the documents either never existed or, if they do or did exist were never in the possession of the defendants, is (it seems to me) much less cogent. If the documents do exist but are not discovered then (given their relevance to this proceeding) an injustice might be done to the plaintiff. The only procedure available to ensure that injustice is not done, and to ensure that the processes of the Court are not abused, is cross-examination.
59 In IO Group Inc v Prestige Club Australasia Pty Ltd [2008] FCA 1147 (Flick J) the deponent of a discovery affidavit consented to cross-examination. However, reflecting on that course, his Honour said at [50]:
Notwithstanding the circumstances in which the orders were made … the unusual course of permitting cross-examination was again raised with Counsel for the Applicants and, more relevantly, Counsel for Mr Kiriakidis. Reference was made to the observations of Menzies J in Mulley v Manifold (1959) 103 CLR 341. Counsel for Mr Kiriakidis requested, and was granted, a short adjournment to obtain further instructions in light of reference being made to the unusual course being pursued. The cross-examination thereafter continued without any submissions being advanced on his behalf. As events unfolded, it was probably the only effective means whereby the Applicants could have exposed what they believed were inadequacies in the existing discovery as provided particularly by the Fourth Respondent. As a result of the cross-examination, the Applicants were proved right. An order requiring a further affidavit to be filed in respect to particular documents, without knowledge of the manifest deficiencies in the existing discovery, may well have proved as ineffective as the discovery previously provided.
60 In Guy Carpenter & Company Pty Ltd v Grove (No 2) [2011] FCA 1190, Jagot J refused an application to cross-examine deponents of discovery affidavits in relation to their compliance with orders for preliminary discovery, saying at [5]:
In Procter v Kalivis at [29]-[40], Besanko J summarised the principles applicable to challenges to affidavits of discovery. Besanko J concluded that the relevant test, including for preliminary discovery, is whether there exist 'reasonable grounds for being fairly certain that there are other relevant documents' (at [33]). If there are no such grounds, the affidavit of discovery is conclusive. His Honour also noted (at [35]) that, if such reasonable grounds exist, the usual order is to require further discovery verified by affidavit. To permit cross-examination has been described as 'unusual' (citing Olympic Airways SA v Spiros Alysandratos & Consolidated Travel (Vic) Pty Ltd (Unreported, Supreme Court of Victoria, Harper J, 26 May 1997)), being a power available in limited circumstances and only as necessary 'in order to do justice between the parties or to prevent an abuse of the Court's processes' (citing Moore J in Finance Sector Union of Australia v Commonwealth Bank of Australia Limited [2000] FCA 1389 at [16]).
61 In Watson v Kriticos (Further Discovery and Adjournment) [2023] FCA 793, Perram J revisited the issue, concluding (at [18]) that r 20.21 of the Federal Court Rules (order for particular discovery) should be understood as a statement of the principles in Procter. In other words, in limited circumstances, cross-examination of the verifying deponent may be ordered. His Honour also concluded that the standard to be applied in an application for particular discovery is whether there are reasonable grounds for being fairly certain that there are other relevant documents (at [22]).
62 The importance of discovery should not be understated and must be borne in mind in considering applications that relate to it. There may be significant consequences if discovery is inadequate. The decision in Clifton (Liquidator) v Kerry J Investment Pty Ltd trading as Clenergy [2020] FCAFC 5 (Besanko, Markovic and Banks-Smith JJ) provides a useful example of the potential consequences of inadequate discovery, noting the discussion at [190]-[205]. The Court at [192] cited Mango Boulevard Pty Ltd v Spencer [2008] QCA 274, in which Muir JA (with whom Mackenzie AJA and Douglas J agreed), in considering the primary judge's findings about the deficiencies in discovery, said at [13]:
A party's failure to comply with its obligations under the Uniform Civil Procedure Rules, including those relating to disclosure, may constitute an abuse of process even if the failure directly affects only some of the pleaded issues. An object of the rules is to ensure that all the pleaded issues between the parties to a proceeding are tried fairly. That is also the parties' entitlement. A party cannot be permitted to gain a forensic advantage by wilfully, recklessly or negligently failing to give proper disclosure on an issue of substance. Here, the failure to disclose went to an issue central to the Mango's case and also to one of the defences pleaded by Spencer, Perovich and the appellant.
63 Therefore, even if one assumes that in all of the circumstances of this litigation, the same approach should be taken as applies in relation to cross-examination of the deponent of a standard discovery verification affidavit or on an application for particular discovery, it is apparent from the authorities that it is open to the Court to permit the deponents of affidavits to be cross-examined in special circumstances. These include where there are reasonable grounds for being fairly certain that there are other relevant documents, where there is concern about the legitimacy of the discovery process, or where the only process by which the deficiencies can be exposed or to ensure that injustice is not done is by cross-examination.
64 However, as this is not an application of the nature of general discovery or particular discovery, and some of the authorities on discovery affidavits pre-date or do not address the Evidence Act, I consider it is open to take a broader approach to the need for or the nature of any 'special circumstances'. In particular, many of the authorities refer to the statutory regime that predated the current Part 20 of the Federal Court Rules (Discovery and inspection of documents), and the formal introduction of discovery by categories.
65 I prefer the view that in the context of this application, pursuant to s 27 of the Evidence Act INPEX does not require leave to cross-examine deponents of the affidavits. In the end, this was not in issue between the parties, as acknowledged at [67] below. However, whether or not cross-examination should proceed will be determined having regard to the guiding principles as to cross-examination on interlocutory applications discussed above. That the proposed cross-examination relates to document discovery is a relevant matter to take into account.
66 Regardless, this application does not turn on such procedural distinctions. There are special circumstances that would justify a grant of leave (if it were required) and that would persuade me to permit cross-examination in any event, for reasons I set out below.