Trademax Australia Limited v Huang (No 2)

The plaintiff seeks an order that the defendant attend to be cross examined on his affidavits of discovery.

The defendant, who is represented in the proceedings, does not oppose the order.

The general rule is that an affidavit of discovery is conclusive, and that cross-examination on an affidavit of discovery is not permitted except in exceptional circumstances. [1] The most recent judicial consideration of this question that I have been able to locate is that of Garling J in Con Ange v Fairfax Media Publications Pty Ltd. [2] In that decision, Garling J expressed a more nuanced view than had perhaps hitherto been expressed in relation to this matter when his Honour said:

The plaintiff is a trader in financial products. The defendant is a former employee at the plaintiff's Canberra office. The plaintiff alleges that whilst employed by it, the defendant worked for another trader, FP Markets, in breach of his terms of employment.

On 22 October 2024, the defendant participated in interviews with the plaintiff's personnel in which he admitted that he had worked for FP Markets while working at the plaintiff and was working with others at the plaintiff's office to do that work for FP Markets.

On 22 October 2024, the plaintiff terminated the defendant's employment.

The following day, 23 October 2024, the plaintiff's solicitors wrote to the defendant foreshadowing that it was likely to commence proceedings against the defendant and "requiring" him not to "destroy any documents relating to" his employment with the plaintiff and his involvement with FP Markets.

On 13 November 2024, McGrath J made orders restraining the defendant from, in effect, acting in breach of his employment terms with the plaintiff for reasons published on 15 November 2024. [3]

On 29 November 2024, I made orders setting this matter down for hearing for four days commencing 5 May 2025. I also, by consent, made an order that the defendant produce by 20 December 2024 a document referred to in the "Schedule", which was in the following form:

Ultimately, on 19 February 2025, the defendant made an affidavit in which he said:

The defendant also deposed:

A short time later, on 2 March 2025, the defendant made his affidavit of discovery, in which he gave a different account of what had happened as follows:

The plaintiff is aware, from its interrogation of its own records, of communications between the defendant and FP Markets. It is therefore perhaps notable that the defendant made no reference to such documents in either of those affidavits. Some of the documents of which the plaintiff so became aware were deployed by it in the hearing before McGrath J.

Further, the defendant accepts he received commissions from FP Markets. It thus seem likely that there are documents to which he has access which would contain some record of the manner in which he dealt with those commissions.

In these circumstances there is reason to believe that the defendant may not have given a comprehensive account of the documents in his possession, or documents which were in his possession, that are of central relevance to the issues in these proceedings.

Those circumstances alone may not have been sufficient to warrant an order being made that the defendant be examined, but as the defendant does not oppose that course being taken, I am persuaded that in this particular circumstance of this case, cause has been shown.

In a slightly different context, namely, an application to examine a party served with a subpoena as to the adequacy of the party's response, I made these observations, based on earlier authority, [4] as to the limitations that might be imposed in those circumstances:

The judge hearing the cross examination of the defendant may be persuaded that some or all of those conditions should apply to the examination that is to take place.

In those circumstances, I make the orders proposed by the plaintiff:

The examination will take place before a judge other than the trial judge.