North Australian Territory Co v Goldsborough, Mort and Co: CA 1893

The court considered the propriety of the cross examination of a witness of the statements of others. The plaintiff company in liquidation, sought rescission of a contract for the purchase of land. In the course of the liquidation and after the commencement of the action certain persons were examined under section 115 of the 1862 Act. Their depositions were then taken. A commission subsequently issued in the action for the examination of witnesses abroad, and one of the persons who had been examined under s 115 was examined under the commission on behalf of the Defendants. During this cross-examination on behalf of the Plaintiffs he was asked as to the truth of certain of his answers given in the examination under section 115, and the answers were read to him from the depositions. He said that the statements contained in them were correct. He was also cross-examined as to certain answers given by other persons who had been examined under sect.115, and those answers were read to him. The Defendants sought to inspect and copy those depositions used in the cross-examination.
Held: The defendants were not entitled to the inspection sought.
Lord Esher MR said that: ‘answers given in an examination under sect.115 never can be used as evidence or as proof, except for the purpose of contradicting a witness; they are not taken as evidence in an action, but for the purpose of obtaining information to enable the company or its liquidator to decide as to the propriety of bringing or continuing an action’. As to the depositions: ‘are in the nature of information, and there is no injustice in the fact that the person conducting a cause is in possession of information of which the other side is not.’
Lindley LJ said: ‘It is said that they are entitled because these depositions ought to have been scheduled in the Plaintiffs’ affidavit of documents as documents in their possession relating to matters in dispute in the action; but, if they had been scheduled, privilege would as a matter of course have been claimed for them, and the Defendants would never have seen them; and it would not be fair to the Plaintiffs if we were to treat these depositions as documents in their possession unprotected by a claim of privilege.’


Lord Esher MR, Lindley LJ, Cotton LJ


[1893] 2 Ch 381


Companies Act 1862 115



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Updated: 17 June 2022; Ref: scu.450440