4.22: Considerations for security for costs order
4.23: Contents of security for costs order
6.20: Form of questioning and transcript
6.7: Questioning on affidavit in support, response and reply to application
13.18: Types of affidavit

Case Summary

The Plaintiff applied for Summary Judgment against the Defendants and the Defendants cross-applied for Security for Costs pursuant to Rules 4.22 and 4.23. The Defendants filed an Affidavit in support of their Security for Costs Application, upon which the Affiant was cross-examined by the Plaintiff. This Decision dealt with the limits on exploration of the merits of underlying litigation when cross-examining on an Affidavit in support of a Security for Costs Application.

Rooke ACJ discussed the law governing Security for Costs Applications, and in particular the limits of cross-examination on an Affidavit filed in support of such. Rooke ACJ considered Rule 13.18(3) which requires that an Affidavit used in support of an Application that may dispose of all or part of a claim, must be sworn on the basis of the personal knowledge. However, His Lordship determined this Rule did not apply to Applications under Rule 4.22, because such Applications do not end the Action (without further contingencies taking place).

Associate Chief Justice Rooke noted that Rule 4.22 governs Security for Costs, but that, for the purposes of this Application, Rule 4.22(c) was most relevant. Rule 4.22(c) states that in considering a Security for Costs Application, the Court will take into account “the merits of the action in which the application is filed”.

The regard to the limits on cross-examination, Rooke ACJ listed the following governing principles:

  1. an objection to a question as being previously “asked and answered” is a valid objection, except where new information is revealed that calls for revisiting previous testimony;
  2. repetitive and abusive questions are not allowed;
  3. on cross-examination on an Affidavit, a witness has no obligation to attest to information outside their knowledge or to inform themselves on matters outside their control;
  4. hypothetical questions may be posed, but they cannot become speculative or unrealistic, and cannot go beyond the pleadings or ask for comments on other persons’ actions or inactions;
  5. questions need not be confined to the “four corners of the Affidavit”, but must be relevant to the underlying Application;
  6. in determining the relevance and materiality of both questions and undertaking requests, the effort required to answer must be proportionate to the benefits of the answers;
  7. as implied by Rules 6.7 and 6.20, cross-examination on an Affidavit is different from Questioning under Part 5 of the Rules, and must not be used as a gate into the field of examination for discovery; and
  8. undertakings should only be directed on a cross-examination on an Affidavit where the Affiant has referred to information or documents in the Affidavit, or could only have made assertions contained in the Affidavit after reviewing same, and there is greater restraint in direction undertakings than in the context of questioning for discovery.

With these principles in mind, and turning back to Rule 4.22(c), Rooke ACJ stated that, in the context of a Security for Costs Application, “the depth of the cross-examination and undertakings as to the merits must be severely curtailed…because otherwise…it would ‘defeat the whole rationale’ for [the Application]”.

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