Robinson v Robinson [2019] NSWCA 180

Robinson v Robinson [2019] NSWCA 180

The subpoenas were set aside because the material sought would invite the Court of Appeal to undertake, for the first time, a trial of evidential issues said not to have been addressed below. If the appellant established a miscarriage of justice in the approval of the s 95 releases, the appropriate course would likely be remittal to the Equity Division rather than the Court of Appeal determining those evidential questions on subpoenaed material. The subpoenas therefore did not address issues properly arising on the appeal in this Court.

Jurisdiction
Australia
Judgment Date
17 July 2019
Procedural Posture
Appeal by Leave From a Judgment by Consent in the Equity Division Approving a Settlement of a Family Provision Claim Under S 95 of the Succession Act 2006 (nsw) / Notices of Motion in the Court of Appeal Concerning Leave to File an Amended Notice of Appeal and an Application to Set Aside Subpoenas
Outcome
Leave to file an amended notice of appeal was granted, and the first respondent's motion to set aside the subpoenas was granted.
Legal Topics
['appeal' 'subpoenas to Produce' 'application to Set Aside Subpoenas' 'family Provision Release' 'fresh Evidence on Appeal' 'remittal']
['civil Procedure' 'succession Law'] ['appeal' 'subpoenas to Produce' 'application to Set Aside Subpoenas' 'family Provision Release' 'fresh Evidence on Appeal' 'remittal']

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Procedural Posture

Appeal by Leave From a Judgment by Consent in the Equity Division Approving a Settlement of a Family Provision Claim Under S 95 of the Succession Act 2006 (nsw) / Notices of Motion in the Court of Appeal Concerning Leave to File an Amended Notice of Appeal and an Application to Set Aside Subpoenas

Legal Issues

  1. 1 ['Whether the appellant should be granted leave to file an amended notice of appeal dated 17 July 2019.' 'Whether subpoenas to produce directed to Bailey Dunleavy of Penmans Solicitors and to the Department of Human Services – Medicare should be set aside.' 'Whether the subpoenaed material concerned issues that would properly arise on the appeal in this Court rather than evidential issues not addressed below.' 'Whether, if there had been a miscarriage of justice in approving releases under s 95 of the Succession Act 2006 (NSW), the matter should be remitted rather than determined for the first time on appeal.']

Ratio Decidendi

The subpoenas were set aside because the material sought would invite the Court of Appeal to undertake, for the first time, a trial of evidential issues said not to have been addressed below. If the appellant established a miscarriage of justice in the approval of the s 95 releases, the appropriate course would likely be remittal to the Equity Division rather than the Court of Appeal determining those evidential questions on subpoenaed material. The subpoenas therefore did not address issues properly arising on the appeal in this Court.

Court Disposition

Leave to file an amended notice of appeal was granted, and the first respondent's motion to set aside the subpoenas was granted.

Orders

  • ['Grant the appellant leave to file in court an amended notice of appeal dated 17 July 2019.' "Costs in the appellant's notice of motion of 3 July 2019 to be costs in the cause." 'Order that the subpoenas to produce issued on behalf of the appellant directed to Bailey Dunleavy of Penmans Solicitors, filed 18 June...