Kamm v State of New South Wales
[2016] NSWCA 339
•28 November 2016
Court of Appeal
Supreme Court
New South Wales
Medium Neutral Citation: Kamm v State of New South Wales [2016] NSWCA 339 Hearing dates: 28 November 2016 Date of orders: 28 November 2016 Decision date: 28 November 2016 Before: Payne JA Decision: (1) The applicant file and serve his summary of argument by 31 January 2017.
(2) Any expert evidence by the applicant to be filed and served by 31 January 2017.
(3) Liberty to apply on 48 hours' notice to the chambers of Payne JA.
(4) The matter is adjourned before me at 9.30am on 3 February 2017.
The Court notes the undertaking to the Court proffered by Mr Waterstreet that the applicant's summary of argument will be filed and served by 31 January 2017 and the Court also notes the undertaking concerning the provision of material confidential to Dr Lennings agreed by the parties.Catchwords: APPEAL – applicant to show cause why his application for leave to appeal should not be dismissed – failure to file amended summary of argument – issue of subpoenas – extension of time to file documents Category: Procedural and other rulings Parties: William Kamm (applicant)
State of New South Wales (respondent)Representation: Counsel:
Solicitors:
Mr C Waterstreet (applicant)
Mr B Thomson (respondent)
Aquila Lawyers (applicant)
Crown Solicitors (respondent)
File Number(s): 2016/32698 Decision under appeal
- Court or tribunal:
- Supreme Court of New South Wales
- Jurisdiction:
- Common Law division
- Citation:
- [2016] NSWSC 1
- Date of Decision:
- 8 January 2016
- Before:
- Harrison J
- File Number(s):
- 2014/195850
ex tempore Judgment (revised)
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PAYNE JA: Before the Court today is an application by Mr Kamm against the State of New South Wales. The matter has an unhappy history.
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On 8 January 2016, the primary judge delivered his decision: State of New South Wales v Kamm (Final) [2016] NSWSC 1. On 1 February 2016, a notice of intention to appeal was filed by Mr Kamm. On 7 April 2016 a summons seeking leave to appeal was filed. On 8 April, an amended draft document purporting to outline grounds of appeal was filed. On 11 April 2016, Mr Kamm filed a notice of motion in the Supreme Court, Common Law Division, seeking the issue of subpoenas for documents. That notice of motion was transferred to the Court of Appeal.
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On 19 May 2016, the Registrar of the Court of Appeal ordered that the matter be listed for directions and to hear the notice of motion. On 20 June 2016, the notice of motion was dismissed.
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On 18 July 2016, directions were made by the Registrar of this Court ordering that an updated summary of argument be filed by 12 September 2016. The matter was then listed for directions on 19 September 2016. On 19 September 2016, the Registrar listed the matter for directions on 21 November this year and ordered the applicant to serve a summary of argument by 16 October 2016 and the respondent to serve the tender bundle from the Court below by 26 September 2016. I note that this second order was complied with. The applicant did not file a summary of argument as ordered.
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On 21 November 2016, the Registrar stood the matter over to today in order for Mr Kamm to show cause why his application for leave to appeal should not be dismissed.
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Appearing before me today was Mr Waterstreet of counsel for the applicant and Mr Thomson for the respondent. There was discussion of various subpoenas which had earlier been issued by the applicant. It was agreed by Mr Waterstreet that those subpoenas had been complied with and that there was to be no pursuit of any alleged non-compliance. He indicated that he was seeking additional documents. The Court is grateful to Mr Thomson for his assistance in agreeing to make available documents sought by Mr Waterstreet relating to Dr Lennings. An undertaking for that purpose has been proffered and will be placed by me with the papers. Mr Waterstreet indicated that he sought leave to issue various additional subpoenas. The Court pointed out that for a legally represented party leave was not required, however, on the basis of the argument at least as advanced today, the Court could not see any legitimate forensic purpose in such subpoenas for the purposes of this application for leave to appeal. Nonetheless, this is not a final view and no order has been made or none was sought forbidding the issue of subpoenas.
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On the application today, an affidavit of Mr Kamm sworn 23 November 2016 was read. It appears from that affidavit that in addition to documentary issues, there had been difficulties with funding. Mr Boulten SC has now been briefed and is retained to lead Mr Waterstreet in the ultimate appeal.
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Mr Waterstreet has given the Court his personal undertaking that the applicant’s summary of argument would be filed by 31 January 2017. In that regard, the Court accepts the undertaking.
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Of course, if the summary of argument is not filed in accordance with the undertaking, submissions from the parties will then be invited as to why the matter should not be dismissed for want of prosecution when it is next before the Court.
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Given the extensive time the Court proposes to grant for filing of the summary of argument, I propose also to make orders that any expert evidence Mr Kamm seeks to rely upon also be filed by 31 January 2017. In that regard, there is one expert identified in the affidavit of Mr Kamm sworn 23 November 2016. I was not informed of any others.
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Accordingly, the Court makes the following orders:
The applicant file and serve his summary of argument by 31 January 2017.
Any expert evidence by the applicant to be filed and served by 31 January 2017.
Liberty to apply on 48 hours' notice to the chambers of Payne JA.
The matter is adjourned before me at 9.30am on 3 February 2017.
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The Court notes the undertaking to the Court proffered by Mr Waterstreet that the applicant's summary of argument will be filed and served by 31 January 2017 and the Court also notes the undertaking concerning the provision of material confidential to Dr Lennings agreed by the parties.
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Decision last updated: 05 December 2016
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