BCEG Australia v Yu Xiao (No 2)

BCEG Australia sought damages for breach of contract against Yu Xiao. The dispute came before the Supreme Court of South Australia. The central issue was whether BCEG Australia's subpoenas, issued before the defendants had served their evidence, had the effect of subverting the operation of the Supreme Court Practice Note SC Eq 11. BCEG Australia argued that the defendants should not serve evidence until the plaintiff's case was closed. The defendants did not object to the ambit of the subpoenas, but BCEG Australia contended that the documents sought in one subpoena were not likely to be in the possession of the defendants.

The court considered the provisions of the Practice Note SC Eq 11, which provides that a party shall not serve evidence until the other party has closed their case. The court noted that the purpose of the Practice Note was to ensure that parties do not rely on evidence when making decisions about whether to call witnesses or lead other evidence, and to prevent evidence from being led in anticipation of another party's evidence. The court held that the subpoenas did not have the effect of subverting the operation of the Practice Note, as they were not served in anticipation of the defendants' evidence, and the defendants had not objected to the ambit of the subpoenas. The court also noted that the documents sought in one subpoena were not likely to be in the possession of the defendants, and therefore the subpoenas did not have the effect of subverting the operation of the Practice Note.

The court dismissed BCEG Australia's application for an order quashing the subpoenas. The court held that the defendants were entitled to serve evidence at the time they chose, and that the Practice Note did not prevent them from doing so. The court also noted that the defendants had not objected to the ambit of the subpoenas, and that the documents sought in one subpoena were not likely to be in the possession of the defendants. The court held that the subpoenas did not have the effect of subverting the operation of the Practice Note.