Katter v Melhem (No 1)

Case [2014] FCA 1175

FEDERAL COURT OF AUSTRALIA

Katter v Melhem (No 1) [2014] FCA 1175

Citation: Katter v Melhem (No 1) [2014] FCA 1175
Parties: JOSEPH KATTER and SUSAN VERA KATTER v ROBERT GEORGE MELHEM
File number: NSD 1689 of 2013
Judge: WIGNEY J
Date of judgment: 31 March 2014
Catchwords: PRACTICE AND PROCEDURE – application for leave to issue subpoenas – relevant principles
Cases cited: Australian Gas Light Company v Australian Competition and Consumer Commission [2003] FCA 1101
Harrison v Charalambous [1999] FCA 902
McIlwain v Ramsey Food Packaging Pty Ltd (2005) 221 ALR 785
Re Longo; Ex parte Longo (1995) 57 FCR 523
Smith v Abbott Stillman & Wilson [2007] FCA 1256
Trade Practices Commission v Arnotts (No 2) (1989) 21 FCR 306
Date of hearing: Heard on the papers.
Date of last submissions: 21 March 2014
Place: Sydney
Division: GENERAL DIVISION
Category: Catchwords
Number of paragraphs: 27
Solicitor for the Applicant: Piper Alderman
Counsel for the Respondent: JA Hogan-Doran
Solicitor for the Respondent: Madison Marcus

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 1689 of 2013
BETWEEN:

JOSEPH KATTER
First Applicant

SUSAN VERA KATTER
Second Applicant
AND:

ROBERT GEORGE MELHEM
Respondent

JUDGE:

WIGNEY J

DATE OF ORDER:

31 MARCH 2014

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.Leave to issue the subpoenas in the form attached to the affidavit of Simon Morris sworn 10 March 2014 is refused.

2.Costs in relation to the application for leave to issue the subpoenas be the respondent’s costs in the cause.

Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 1689 of 2013
BETWEEN:

JOSEPH KATTER
First Applicant

SUSAN VERA KATTER
Second Applicant
AND:

ROBERT GEORGE MELHEM
Respondent

JUDGE:

WIGNEY J

DATE:

31 MARCH 2014

PLACE:

SYDNEY

REASONS FOR JUDGMENT

REVISED FROM TRANSCRIPT

  1. On 18 February 2014 I made orders in this matter including an order that any application for leave to issue subpoenas be made to my associate in chambers by 7 March 2014.  On 11 March 2014 an affidavit of Simon Morris sworn 10 March 2014 was filed on behalf of the applicants.  That affidavit was filed in support of an application by the applicants for leave to issue subpoenas to produce documents to three people: Katina Klonis, Saim Semaan and the Commissioner of Police.  The proposed subpoena to the Commissioner of Police is no longer pressed. 

  2. Whilst applications for leave to issue subpoenas are usually dealt with ex parte on the papers in chambers, it appears that the respondent became aware of the applicant’s application for leave to issue the three subpoenas.  He sought and obtained leave to file submissions in opposition to the grant of leave.  Those submissions were filed on 17 March 2014.  In turn the applicants were given leave to file submissions in reply.  Those submissions were filed on 21 March 2014. 

  3. On 24 March 2014 I decided that leave to…

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AGLC
Katter v Melhem (No 1) [2014] FCA 1175
Case
[2014] FCA 1175
Decision Date

CaseChat Overview and Summary

Katter v Melhem (No 1) involved an application by the applicant, Mr Katter, for leave to issue subpoenas in the Federal Court of Australia. The dispute centred on the issuance of subpoenas to compel the attendance of the respondent, Mr Melhem, and the production of documents. The application was part of a broader legal action, with the subpoenas intended to gather evidence relevant to the case.

The central legal issue before the court was whether the principles governing the issuance of subpoenas were satisfied, specifically whether the evidence sought was relevant and necessary for the just determination of the matter. The court needed to determine if the application met the stringent criteria for such leave, considering factors such as the proportionality and necessity of the evidence sought.

In its reasoning, the court examined the affidavits and submissions provided by both parties. It found that the application did not sufficiently demonstrate that the evidence sought was necessary or that the subpoenas were proportionate to the needs of the case. The court emphasised the importance of ensuring that the use of subpoenas was justified and not merely for the purposes of harassment or delay. Given these findings, the court refused the application for leave to issue the subpoenas, concluding that the applicant had not met the required threshold.

The court's orders included a refusal of the application for leave to issue the subpoenas and a direction that the costs of the application be borne by the respondent. This decision underscores the cautious approach the court takes when considering applications for subpoenas, ensuring that such applications are strictly necessary and proportionate.

Orders

Orders of the court

1. Leave to issue the subpoenas in the form attached to the affidavit of Simon Morris sworn 10 March 2014 is refused.

2. Costs in relation to the application for leave to issue the subpoenas be the respondent’s costs in the cause.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

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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