Porter v Dyer [2021] FCA 1459

Porter v Dyer [2021] FCA 1459

The Notice to Produce was set aside because the documents sought were not relevant to the issues raised by grounds 1, 3 and 6 of the appeal. Ground 1 would be determined on the material before the primary judge concerning whether the second Hooke affidavit was properly allowed to be read; ground 3 would be determined by reference to the primary judge's reasoning and the evidence before him; and ground 6 was a reference to the conclusion reached at first instance and did not show relevance of the documents sought. Any error would be demonstrated by reference to the record already before the Court.

Jurisdiction
Australia
Judgment Date
17 November 2021
Procedural Posture
Practice and Procedure; Notice to Produce Documents on Appeal / Application to Set Aside the Appellant's Notice to Produce to the First Respondent Dated 14 October 2021
Outcome
The Appellant's Notice to Produce to the First Respondent dated 14 October 2021 was set aside with costs.
Legal Topics
['notice to Produce' 'appeal' 'relevance of Documents' 'abuse of Process']
['practice and Procedure'] ['notice to Produce' 'appeal' 'relevance of Documents' 'abuse of Process']

Case Brief

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Procedural Posture

Practice and Procedure; Notice to Produce Documents on Appeal / Application to Set Aside the Appellant's Notice to Produce to the First Respondent Dated 14 October 2021

Legal Issues

  1. 1 ["Whether the Appellant's Notice to Produce to the First Respondent dated 14 October 2021 should be set aside." 'Whether documents not before the primary judge had apparent relevance to grounds 1, 3 and 6 of the notice of appeal dated 24 June 2021.']

Ratio Decidendi

The Notice to Produce was set aside because the documents sought were not relevant to the issues raised by grounds 1, 3 and 6 of the appeal. Ground 1 would be determined on the material before the primary judge concerning whether the second Hooke affidavit was properly allowed to be read; ground 3 would be determined by reference to the primary judge's reasoning and the evidence before him; and ground 6 was a reference to the conclusion reached at first instance and did not show relevance of the documents sought. Any error would be demonstrated by reference to the record already before the Court.

Court Disposition

The Appellant's Notice to Produce to the First Respondent dated 14 October 2021 was set aside with costs.

Orders

  • ["The Appellant's Notice to Produce to the First Respondent dated 14 October 2021 be set aside with costs."]