HARRIS/D-E PTY. LTD. V. McCLELLAND'S COFFEE & TEA PTY. LTD. & ORS. [1999] NSWSC 36

HARRIS/D-E PTY. LTD. V. McCLELLAND'S COFFEE & TEA PTY. LTD. & ORS. [1999] NSWSC 36

Although the provision of travel arrangements, hotel booking and money by 28 January 1999 was sufficient, on the present material, to satisfy the requirement that reasonable expenses be paid or tendered a reasonable time before attendance, the plaintiff had not discharged the onus of proving that the witness's non-appearance was without just cause or reasonable excuse. The two letters purportedly from a medical practitioner stating medical reasons for non-attendance prevented the Court from being satisfied, even on the balance of probabilities, that there was no reasonable excuse. Given that the evidence was not central or crucial, the plaintiff had not earlier taken appropriate steps to...

Jurisdiction
Australia
Judgment Date
05 February 1999
Procedural Posture
Civil Proceedings in the Equity Division Concerning a Plaintiff's Application for a Warrant to Bring a Subpoenaed Witness to Court / Application Heard During the Course of a Two Week Trial
Outcome
The Court did not issue a warrant at present and deferred further consideration of discretion and the form of any warrant.
Legal Topics
['subpoenas' 'conduct Money and Witness Expenses' 'service and Execution of Process' 'warrant for Non Attending Witness' 'reasonable Excuse for Non Appearance']
['evidence' 'civil Procedure'] ['subpoenas' 'conduct Money and Witness Expenses' 'service and Execution of Process' 'warrant for Non Attending Witness' 'reasonable Excuse for Non Appearance']

Case Brief

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Procedural Posture

Civil Proceedings in the Equity Division Concerning a Plaintiff's Application for a Warrant to Bring a Subpoenaed Witness to Court / Application Heard During the Course of a Two Week Trial

Legal Issues

  1. 1 ['Whether reasonable expenses of complying with the subpoena had been paid or tendered to the witness as required by Pt.37 r.3 of the Supreme Court Rules and s.32 of the Service and Execution of Process Act 1992 (Cwlth).' "Whether the plaintiff had to prove, and had proved, that the witness's non-appearance was without just cause or reasonable excuse under s.194(1) of the Evidence Act." 'Whether the Court should exercise discretion to order the arrest of the witness in Queensland and have him brought to Sydney.' 'If a warrant were to issue, what form it should take and to whom it should be directed under s.37(1) of the Service and Execution of Process Act.']

Ratio Decidendi

Although the provision of travel arrangements, hotel booking and money by 28 January 1999 was sufficient, on the present material, to satisfy the requirement that reasonable expenses be paid or tendered a reasonable time before attendance, the plaintiff had not discharged the onus of proving that the witness's non-appearance was without just cause or reasonable excuse. The two letters purportedly from a medical practitioner stating medical reasons for non-attendance prevented the Court from being satisfied, even on the balance of probabilities, that there was no reasonable excuse. Given that the evidence was not central or crucial, the plaintiff had not earlier taken appropriate steps to...

Court Disposition

The Court did not issue a warrant at present and deferred further consideration of discretion and the form of any warrant.

Orders

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