Willis v Trequair [1906] HCA 32

Willis v Trequair [1906] HCA 32

Where defendants demonstrate that a material witness relevant to their case is out of the jurisdiction and cannot be procured to attend, and there is no sufficient contrary evidence, a commission for their examination abroad should issue as of course, unless the opposing party can satisfy the Court to the contrary. The order granting the commission was properly made, and interfering with it was unwarranted.

Parties
Appellant / Defendant: Mary Willis; Appellant / Defendant: Patrick Rea; Respondent / Plaintiff: Trequair
Jurisdiction
Australia
Judgment Date
24 May 1906
Procedural Posture
Appeal / Appeal From Full Court of Supreme Court of New South Wales, Interlocutory Judgment
Outcome
Appeal allowed.
Legal Topics
Commission to Examine Witnesses Abroad, Discretion in Granting Commission, Appeals From Interlocutory Orders
Civil Procedure Evidence Commission to Examine Witnesses Abroad Discretion in Granting Commission Appeals From Interlocutory Orders

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 2 Authorities cited 17 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Parties

Mary Willis

Appellant / Defendant

Patrick Rea

Appellant / Defendant

Trequair

Respondent / Plaintiff

Procedural Posture

Appeal / Appeal From Full Court of Supreme Court of New South Wales, Interlocutory Judgment

Legal Issues

  1. 1 Whether the appellants were entitled to a commission to examine a co-defendant, W. N. Willis, in South Africa under sec. 4 of the Witnesses Examination Act 1900 (NSW).
  2. 2 Whether an appeal lies to the High Court from an interlocutory judgment under sec. 35 of the Judiciary Act 1903.

Ratio Decidendi

Where defendants demonstrate that a material witness relevant to their case is out of the jurisdiction and cannot be procured to attend, and there is no sufficient contrary evidence, a commission for their examination abroad should issue as of course, unless the opposing party can satisfy the Court to the contrary. The order granting the commission was properly made, and interfering with it was unwarranted.

Court Disposition

Appeal allowed.

Orders

  • Order of A. H. Simpson Chief Judge in Equity restored.
  • Appeal from A. H. Simpson's order dismissed with costs.