Markisic v Commonwealth of Australia [2010] NSWCA 273
32 Whether or not a judge permits cross-examination in an interlocutory proceeding is a matter for that judge’s discretion. An appellate court will only interfere with a discretionary decision if an error of the kind referred to in House v R [1936] HCA 40; (1936) 55 CLR 499 at 504-505 is established. Further, the Courts will be slow to allow an appeal which relates to matters of practice and procedure: In the Will of Gilbert [1946] NSWStRp 24; (1946) 46 SR (NSW) 318 at 323.
Ren v Jiang [2014] NSWCA 1
11 But to return to the ultimate question, the issue is whether, in the event that Mr Guo's affidavit be read, I grant leave for him to be cross-examined. Cross-examination in support of an interlocutory application is not as of right but requires leave (contrary to the submissions which were initially made to me at the directions hearing), which leave is granted "cautiously" and normally "somewhat sparingly": see the decisions collected and applied by Kenny J in Wu v Avin Operations Pty Ltd (No 3) [2006] FCA 1321 at [18]. It is common practice not to permit cross-examination at all in interlocutory matters; see, for example, Markisic v Commonwealth of Australia [2010] NSWCA 273 at [31] (Beazley and Young JJA).
12 Freehill Hollingdale & Page v Bandwill Pty Ltd [2000] WASCA 150 bears some resemblance to the application before me. There the primary judge refused an application to cross-examine on affidavits served in support of a stay for an abuse of process. No appeal was brought from that decision, but Owen, Steytler and Miller JJ confirmed that "the discretion to permit cross-examination in interlocutory applications will be sparingly exercised": at [29] (an appeal was allowed from the primary judge's refusal to permit the stay application to be heard in advance of the trial). The different position in the United Kingdom may be seen in the authorities considered in Matthews v SPI Electricity Pty Ltd (No 6) [2013] VSC 422 at [25]- [26].
Prior v Wood [2017] FCA 193
94 I have been somewhat concerned by the primary Judge’s approach to Ms Prior’s request to crossexamine Mr Thwaites. In earlier summary judgment regimes of the kind discussed in Spencer, it was necessary only to show a barely arguable case in order to resist summary judgment. In those circumstances crossexamination was rarely appropriate. If the opposing parties, usually by affidavit, asserted conflicting factual issues, then the test was generally satisfied, and any application for summary judgment would fail. It may be that in seeking to demonstrate or disprove a reasonable prospect of success, crossexamination will be more frequently justified than was the case under earlier regimes.
95 Although, pursuant to s 26 of the Evidence Act, the Court may control the questioning of witnesses, s 27 confers a right upon a party to question a witness. Section 4 of the Evidence Act suggests that such right arises in all proceedings in federal courts. Clearly, the right is limited by considerations such as relevance. Any crossexamination of a deponent in a summary judgment application would be limited by the nature of those proceedings, and the questions to be determined. Fishing expeditions would not generally be permissible. One would expect that a party who sought to crossexamine would have to identify, with some specificity, the matters to be addressed. Such crossexamination would inevitably be limited by the nature and extent of the relevant party’s factual instructions to counsel.