QBE Insurance (Australia) Limited v Kalead Etri [2011] NSWSC 510

QBE Insurance (Australia) Limited v Kalead Etri [2011] NSWSC 510

The evidence gave rise to an irresistible inference that further documents must be available, or had been available and were no longer available, to the first, second and third defendants, and that they had not complied with their preliminary discovery obligations under McDougall J's orders. Given the time elapsed since those orders, the efficient course consistent with the overriding purpose of the Rules was to grant leave to cross-examine the defendants on their discovery affidavits and to refuse termination of the preliminary discovery process.

Jurisdiction
Australia
Judgment Date
27 May 2011
Procedural Posture
Interlocutory Applications / Plaintiffs' Notice of Motion for Leave to Cross Examine the First, Second and Third Defendants on Affidavits Verifying Lists of Documents Filed Pursuant to Preliminary Discovery Orders; Third Defendant's Notice of Motion Seeking Termination of the Preliminary Discovery Process.
Outcome
Leave granted to cross-examine; third defendant's application to terminate preliminary discovery dismissed.
Legal Topics
['cross Examination on Affidavits of Discovery' 'compliance With Preliminary Discovery Orders' 'uniform Civil Procedure Rules 2005 R 5.3' 'fraud Claim Under S 42 of the Real Property Act 1900' 'overriding Purpose of the Rules']
['practice and Procedure' 'civil Procedure' 'preliminary Discovery' 'real Property'] ['cross Examination on Affidavits of Discovery' 'compliance With Preliminary Discovery Orders' 'uniform Civil Procedure Rules 2005 R 5.3' 'fraud Claim Under S 42 of the Real Property Act 1900' 'overriding Purpose of the Rules']

Case Brief

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Procedural Posture

Interlocutory Applications / Plaintiffs' Notice of Motion for Leave to Cross Examine the First, Second and Third Defendants on Affidavits Verifying Lists of Documents Filed Pursuant to Preliminary Discovery Orders; Third Defendant's Notice of Motion Seeking Termination of the Preliminary Discovery Process.

Legal Issues

  1. 1 ['Whether leave should be granted to cross-examine the first, second and third defendants on affidavits verifying their lists of documents filed pursuant to preliminary discovery orders.' 'Whether the evidence established an irresistible inference that further documents existed, or had existed, and had not been discovered.' "Whether the third defendant's application to terminate the preliminary discovery process should be granted." 'Whether allowing cross-examination was consistent with the overriding purpose of the Rules.']

Ratio Decidendi

The evidence gave rise to an irresistible inference that further documents must be available, or had been available and were no longer available, to the first, second and third defendants, and that they had not complied with their preliminary discovery obligations under McDougall J's orders. Given the time elapsed since those orders, the efficient course consistent with the overriding purpose of the Rules was to grant leave to cross-examine the defendants on their discovery affidavits and to refuse termination of the preliminary discovery process.

Court Disposition

Leave granted to cross-examine; third defendant's application to terminate preliminary discovery dismissed.

Orders

  • ['Leave granted to the plaintiffs to cross-examine the first, second and third defendants on their affidavits verifying their lists of documents filed pursuant to the order made by McDougall J.' "Order 2 sought in the third defendant's Notice of Motion filed on 4 April 2011 is dismissed."]