Luxon v SC (Melbourne) Pty Ltd (No 2) [2016] NSWSC 1417

Luxon v SC (Melbourne) Pty Ltd (No 2) [2016] NSWSC 1417

Based on the history of discovery, patterns revealed in the discovered documents, and five documented examples, there are reasonable grounds for being fairly certain that further relevant documents exist which Sony has not disclosed. The verification of discovery is weakened by repeated supplementary discovery, and missed reports strongly suggest non-disclosure. Accordingly, leave should be granted to cross-examine the deponent of the discovery affidavit.

Jurisdiction
Australia
Judgment Date
23 September 2016
Procedural Posture
Notice of Motion Procedural Application in Proceedings for Damages / Interlocutory Application; Ruling on Motion to Cross Examine Affidavit Deponent
Outcome
Plaintiffs' application granted. Orders made for cross-examination, attendance of witness, costs directions, and listing for directions.
Legal Topics
['discovery' 'affidavit Verification' 'cross Examination of Deponent']
['civil Procedure'] ['discovery' 'affidavit Verification' 'cross Examination of Deponent']

Case Brief

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Procedural Posture

Notice of Motion Procedural Application in Proceedings for Damages / Interlocutory Application; Ruling on Motion to Cross Examine Affidavit Deponent

Legal Issues

  1. 1 ['Whether there are reasonable grounds for being fairly certain that there are other relevant documents which ought to have been disclosed by Sony.' 'Whether leave should be granted to cross-examine the deponent of an affidavit verifying discovery.']

Ratio Decidendi

Based on the history of discovery, patterns revealed in the discovered documents, and five documented examples, there are reasonable grounds for being fairly certain that further relevant documents exist which Sony has not disclosed. The verification of discovery is weakened by repeated supplementary discovery, and missed reports strongly suggest non-disclosure. Accordingly, leave should be granted to cross-examine the deponent of the discovery affidavit.

Court Disposition

Plaintiffs' application granted. Orders made for cross-examination, attendance of witness, costs directions, and listing for directions.

Orders

  • ['David Harris, Technical Manager employed by the Second Defendant, is to attend the Supreme Court of NSW to give evidence on a day assigned by the Court.' 'Leave for the First and Second Plaintiffs to cross-examine David Harris in respect of his Affidavit sworn 20 July 2015 and Affidavits of Discovery sworn 8...