Douglas v Mikhael (No 2) [2024] NSWCA 61

Douglas v Mikhael (No 2) [2024] NSWCA 61

Leave to issue the proposed subpoenas was refused because the application was made very late without adequate explanation and would almost certainly require adjournment of the imminent appeal hearing; the subpoenas lacked a legitimate forensic purpose because the existing grounds of appeal did not challenge the...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
20 March 2024
Procedural Posture
Civil Procedure Subpoenas Leave to Issue Subpoena in Court of Appeal / Notice of Motion Dated 15 March 2024 Seeking Leave to Issue Subpoenas Before the Appeal Hearing
Outcome
Leave to issue subpoenas refused; proposed order 3 of the appellant's notice of motion dismissed; costs of the motion to be costs in the cause.
Legal Topics
['leave to Issue Subpoenas' 'subpoenas in the Court of Appeal' 'further Evidence on Appeal' 'legitimate Forensic Purpose' 'fishing Expedition' 'delay']
['civil Procedure' 'evidence' 'appellate Procedure'] ['leave to Issue Subpoenas' 'subpoenas in the Court of Appeal' 'further Evidence on Appeal' 'legitimate Forensic Purpose' 'fishing Expedition' 'delay']

Source-derived case record

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Procedural Posture

Civil Procedure Subpoenas Leave to Issue Subpoena in Court of Appeal / Notice of Motion Dated 15 March 2024 Seeking Leave to Issue Subpoenas Before the Appeal Hearing

Legal Issues

  1. 1 ['Whether the appellant should be granted leave to issue three proposed subpoenas shortly before the appeal hearing.' 'Whether the proposed subpoenas had a legitimate forensic purpose.' 'Whether any material obtained under the proposed subpoenas had a realistic possibility of being admitted as further evidence on appeal.']

Ratio Decidendi

Leave to issue the proposed subpoenas was refused because the application was made very late without adequate explanation and would almost certainly require adjournment of the imminent appeal hearing; the subpoenas lacked a legitimate forensic purpose because the existing grounds of appeal did not challenge the primary judge's conclusion about the alleged 2015 Agreement and the proposed use was only as to credit absent an unidentified future amendment; the subpoenas were too broad and amounted to a fishing expedition; and there was no realistic possibility that the Court of Appeal would admit any material obtained as further evidence, particularly where such evidence could have been...

Court Disposition

Leave to issue subpoenas refused; proposed order 3 of the appellant's notice of motion dismissed; costs of the motion to be costs in the cause.

Orders

  • ['Leave to issue subpoenas refused.' "Proposed order 3 of the appellant's notice of motion dated 15 March 2024 dismissed." 'Costs of the motion dated 15 March 2024 be costs in the cause.']