The High Court has reiterated that cross-examination will not generally be permitted on an interlocutory application, or where there is no conflict of fact on the affidavits.

In McCarthy v Murphy,[1] the defendant mortgagor was not permitted to cross-examine the plaintiff (a receiver) or a bank employee who swore a supporting affidavit.

Background

There were two motions before the court:

  1. the receiver’s motion seeking to restrain the defendant interfering with the receivership; and
  2. the defendant’s motion seeking to cross-examine the receiver and a bank employee who swore a supporting affidavit.

The basis for the defendant’s application to cross-examine was that he wanted to question:

  • the plaintiff about his conduct of another, unrelated receivership; and
  • the bank employee about whether his mortgage had been subject to any securitisation scheme.

The court noted that:

  • it has discretion to permit cross-examination on any petition, motion or other application;[2]
  • normally, permission will only be granted if there is a conflict of fact on the affidavits that it is necessary to resolve;[3] and
  • on an interlocutory application it is unnecessary and indeed inappropriate for the court to seek to resolve any conflict of fact.[4]

Accordingly, on the basis that it was unnecessary and indeed inappropriate, in an interlocutory application, to seek to resolve any conflict of fact in relation to the issues the defendant had sought to raise, the Court refused the application for leave to cross-examine.

In this case, the defendant sought to use cross-examination as a fishing expedition to seek information regarding any possible securitisation of his loan.

The judgment reiterates well known principles but makes it clear that leave to cross-examine is unlikely[5] to be granted in proceedings generally heard on affidavit, such as:

  • interlocutory applications;
  • where there is no conflict on the affidavits; or
  • where resolution of such conflicts as arise on the affidavits is not required to determine the issue before the court.