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

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Douglas v Mikhael (No 2) [2024] NSWCA 61
Hearing dates: 18 and 19 March 2024
Date of orders: 19 March 2024
Decision date: 20 March 2024
Before: Payne JA
Decision:
(1)   Leave to issue subpoenas refused.
(2)   Proposed order 3 of the appellant’s notice of motion dated 15 March 2024 dismissed.
(3)   Costs of the motion dated 15 March 2024 be costs in the cause.

Catchwords:
CIVIL PROCEDURE – Subpoenas – Leave to issue subpoena – Court of Appeal – Leave refused

Legislation Cited:
Evidence Act 1995 (NSW) s 136
Uniform Civil Procedure Rules 2005 (NSW) r 7.3

Cases Cited:
Akins v National Australia Bank (1994) 34 NSWLR 155
Chandrasekaran v Western Sydney Local Health District & Anor (No 4) [2023] NSWCA 253
Douglas v Mikhael [2024] NSWCA 601
French v Bremner [2020] NSWCA 299
Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145

Category: Procedural rulings
Parties:
Appellant:
Joseph Douglas
Respondents:
Fadi Mikhael
Mary Karborani
FBM Enterprises Pty Ltd
Representation: Counsel:
Mr A Duc (appellant)
Mr A J Munro (respondent)

File Number(s): 2023/285206
Publication restriction: Nil
Decision under appeal

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Equity

Citation:

[2023] NSWSC 979

Date of Decision:

18 August 2023

Before:

Richmond J

File Number(s):

2021/151712

JUDGMENT

On 19 March 2024, I published my reasons dealing with all but one of the grounds in a notice of motion filed on 15 March 2024 by the appellant, Mr Douglas. The history of that motion and steps in preparation for the appeal listed to be heard on 2 April 2024 are set out in that judgment: Douglas v Mikhael [2024] NSWCA 60. Following that judgment, the sole issue raised which remained outstanding was the application by Mr Douglas for leave to issue subpoenas. As I explained in my 19 March 2024 judgment, Mr Duc of counsel (who has recently been retained by Mr Douglas to appear on 2 April 2024) was not in a position on 18 March 2024 to address the application for leave to issue subpoenas. Given the imminent hearing date, the matter was stood over for hearing to 4pm on 19 March 2024. On that occasion, Mr Duc appeared for the appellant and Mr Munro for the respondent.
At the conclusion of the hearing on 19 March 2024 I made the following 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.

Reasons reserved.

These are my reasons for making those orders.

Application for leave to issue subpoenas

Because he is not represented by a solicitor, Mr Douglas requires leave of the Court before issuing a subpoena: Uniform Civil Procedure Rules 2005 (NSW) r 7.3. Proposed order 3 of the notice of motion seeks:

Leave from the Judge and the Court to Subpoena documents that are…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Douglas v Mikhael (No 2)

Details

AGLC: Douglas v Mikhael (No 2) [2024] NSWCA 61
Case: [2024] NSWCA 61
Decision Date: 20 March 2024

CaseChat Overview and Summary

In *Douglas v Mikhael (No 2)*, the appellant sought leave from the Court of Appeal to issue subpoenas. The precise nature of the underlying dispute between the parties was not detailed in the provided text, but the application concerned the ability to compel the production of documents or attendance of witnesses via subpoena.

The central legal issue before the Court of Appeal was whether to grant the appellant leave to issue the proposed subpoenas. This required the court to consider the criteria and principles governing the grant of such leave in the context of appellate proceedings.

Payne JA refused leave to issue the subpoenas. While the specific reasoning is not elaborated, the refusal indicates that the appellant failed to satisfy the necessary legal threshold for obtaining such an order. The court's decision reflects an assessment that the proposed subpoenas were not warranted or appropriate in the circumstances of the appeal.

Consequently, the Court of Appeal ordered that leave to issue the subpoenas be refused. Furthermore, proposed order 3 of the appellant’s notice of motion dated 15 March 2024 was dismissed. The costs associated with this motion were reserved and to be determined as costs in the cause.

Orders

Orders of the court

(1) Leave to issue subpoenas refused.

(2) Proposed order 3 of the appellant’s notice of motion dated 15 March 2024 dismissed.

(3) Costs of the motion dated 15 March 2024 be costs in the cause.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Douglas v Mikhael (No 2) [2024] NSWCA 61
Hearing dates:	18 and 19 March 2024
Date of orders:	19 March 2024
Decision date:	20 March 2024
Before:	Payne JA
Decision:	(1) Leave to issue subpoenas refused. (2) Proposed order 3 of the appellant’s notice of motion dated 15 March 2024 dismissed. (3) Costs of the motion dated 15 March 2024 be costs in the cause.
Catchwords:	CIVIL PROCEDURE – Subpoenas – Leave to issue subpoena – Court of Appeal – Leave refused
Legislation Cited:	Evidence Act 1995 (NSW) s 136 Uniform Civil Procedure Rules 2005 (NSW) r 7.3
Cases Cited:	Akins v National Australia Bank (1994) 34 NSWLR 155 Chandrasekaran v Western Sydney Local Health District & Anor (No 4) [2023] NSWCA 253 Douglas v Mikhael [2024] NSWCA 601 French v Bremner [2020] NSWCA 299 Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145
Category:	Procedural rulings
Parties:	Appellant: Joseph Douglas Respondents: Fadi Mikhael Mary Karborani FBM Enterprises Pty Ltd
Representation:	Counsel: Mr A Duc (appellant) Mr A J Munro (respondent)
File Number(s):	2023/285206
Publication restriction:	Nil
Decision under appeal	Court or tribunal: Supreme Court of New South Wales Jurisdiction: Equity Citation: [2023] NSWSC 979 Date of Decision: 18 August 2023 Before: Richmond J File Number(s): 2021/151712