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
Category: Procedural rulings Parties: Appellant:
Respondents:
Joseph Douglas
Fadi Mikhael
Mary Karborani
FBM Enterprises Pty LtdRepresentation: 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:
- 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.
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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
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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…
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- AGLC
- Douglas v Mikhael (No 2) [2024] NSWCA 61
- Case
- [2024] NSWCA 61
- Decision Date
CaseChat Overview and Summary
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
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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