Carey v Carey (No 3) [2008] FCA 565

Carey v Carey (No 3) [2008] FCA 565

The Respondent's application to discharge the order requiring his attendance was dismissed because the Applicants had identified legitimate areas of cross-examination within the scope of O 15A, the Court was not satisfied that O 15A r 6 had been exhausted, and effective cross-examination, including as to credit and documents, required the Respondent's physical presence in Australia rather than examination by video link.

Jurisdiction
Australia
Judgment Date
23 April 2008
Procedural Posture
Application for Preliminary Discovery and Preservation Orders Under O 15 a Rr 6 and 12 of the Federal Court Rules 1979 (cth) / Hearing of the Respondent's Notice of Motion Filed on 9 April 2008 Seeking, Among Other Relief, Discharge of the Order Requiring Him to Attend Court for Cross Examination
Outcome
Order 4 sought in the Respondent's Notice of Motion filed on 9 April 2008 was dismissed; the remainder of the Notice of Motion was stood over; costs were reserved.
Legal Topics
['preliminary Discovery' 'preservation Orders' 'cross Examination of Deponents' 'video Link Evidence' 'abuse of Process']
['practice and Procedure'] ['preliminary Discovery' 'preservation Orders' 'cross Examination of Deponents' 'video Link Evidence' 'abuse of Process']

Case Brief

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Procedural Posture

Application for Preliminary Discovery and Preservation Orders Under O 15 a Rr 6 and 12 of the Federal Court Rules 1979 (cth) / Hearing of the Respondent's Notice of Motion Filed on 9 April 2008 Seeking, Among Other Relief, Discharge of the Order Requiring Him to Attend Court for Cross Examination

Legal Issues

  1. 1 ['Whether the order requiring the Respondent to attend Court in person for cross-examination should be discharged or varied to permit cross-examination by video link.' 'Whether cross-examination may be pursued in proceedings under O 15A of the Federal Court Rules 1979 (Cth).' 'Whether the powers conferred by O 15A r 6 had been exhausted.' 'Whether proposed cross-examination about compliance with earlier orders would be legitimate or an abuse of process.']

Ratio Decidendi

The Respondent's application to discharge the order requiring his attendance was dismissed because the Applicants had identified legitimate areas of cross-examination within the scope of O 15A, the Court was not satisfied that O 15A r 6 had been exhausted, and effective cross-examination, including as to credit and documents, required the Respondent's physical presence in Australia rather than examination by video link.

Court Disposition

Order 4 sought in the Respondent's Notice of Motion filed on 9 April 2008 was dismissed; the remainder of the Notice of Motion was stood over; costs were reserved.

Orders

  • ['That Order 4 as sought in the Notice of Motion as filed on 9 April 2008, namely an order that "the order made on 29 November 2007 requiring Ian Carey to attend at Court on (a date altered to) 1 and 2 May [2008] be discharged", be dismissed.' 'The remainder of the said Notice of Motion be stood over for hearing on...