Nash v Stewart - [2010] NSWSC 513

CITATION: Nash v Stewart [2010] NSWSC 513

HEARING DATE(S): 21/05/10

JUDGMENT DATE :
24 May 2010

JURISDICTION: Equity Division
Corporations List

JUDGMENT OF: Barrett J

EX TEMPORE JUDGMENT DATE: 21 May 2010

DECISION: 1 I order that the time for service of a subpoena for attendance upon James Michael Douglass be abridged to 5 pm on 25 May 2010.
2 Otherwise, the notice of motion is dismissed.

CATCHWORDS: PROCEDURE - service - substituted service - subpoena to attend to give evidence - requirement for personal service - whether order for substituted service allowed by Uniform Civil Procedure Rules - whether statutory power to dispense with a requirement of the rules is exercisable so as to allow the court to make some other method of service effective

LEGISLATION CITED: Children and Young Persons (Care and Protection) Act 1998, s 109E
Civil Procedure Act 2005, ss 14, 56, 57, 58
Criminal Procedure Rules (repealed), rule 8(5)
Justices Act 1902 (repealed), s 100AP(4)
Local Court Rule 2000 (repealed), Part 2, rule 11
Service and Execution of Process Act 1992 (Cth), s 60
Supreme Court Rules 1970. rule 37.3(1)
Uniform Civil Procedure Rules 2005, rules 10.5, 10.14, 10.20(1), 10.21(1), 10.26, 33.5(1), 33.6(1), 33.6(3)

CATEGORY: Procedural and other rulings

CASES CITED: In the Estate of Johanson (unreported, NSWSC, Powell J, 28 August 1992
Registrar of the Court of Appeal v Maniam (No 1) (1991) 25 NSWLR 459
Sleiman v Afeich [2005] NSWSC 992

PARTIES: Gregory Dennis Nash - First Plaintiff
Gregory Dennis Nash atf Newstart Superannuation Fund - Second Plaintiff
John Thomas Stewart - First Defendant
John Frederick Lord - Second Defendant
Premium Collections Pty Ltd - Third Defendant
Premium Advisory Pty Ltd - Fourth Defendant
Rowan McCoy atf The STO Trust - Fifth Defendant
J & L Marine Pty Ltd - Sixth Defendant

FILE NUMBER(S): SC 2008/278695

COUNSEL: Mr G D McDonald - Plaintiffs
Mr C G Carroll - First, Second, Fifth and Sixth Defendants

SOLICITORS: Jade Lawyers - Plaintiffs
Holman Webb - First, Second, Fifth and Sixth Defendants

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
CORPORATIONS LIST

BARRETT J

FRIDAY 21 MAY 2010

2008/278695 GREGORY DENNIS NASH v JOHN THOMAS STEWART & 3 ORS

JUDGMENT – ex tempore 21 May 2010; revised 24 May 2010

1 These proceedings are listed for hearing commencing on 26 May 2010.

2 The first, second, fifth and sixth defendants seek an order for substituted service in relation to a subpoena requiring the attendance at the hearing of a person whose affidavit they wish to read in their case. They are obviously apprehensive that the person's non-attendance and the consequent inability to make him available for cross-examination may result in a situation where the affidavit cannot be relied on.

3 I am not confident that the court can, consistently with the Uniform Civil Procedure Rules 2005, make an order for substituted service in respect of a subpoena requiring a person to attend to give evidence.

4 The rule concerning service of subpoenas is within Part…

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 Nash v Stewart

Details

AGLC: Nash v Stewart [2010] NSWSC 513
Case: [2010] NSWSC 513
Decision Date: 24 May 2010

CaseChat Overview and Summary

In the case of Nash v Stewart, the plaintiff, Nash, sought to enforce a subpoena on the defendant, Stewart, who had failed to attend court as required. The dispute arose from the manner in which the subpoena had been served on Stewart, which Nash contended was not in accordance with the requirements of the Uniform Civil Procedure Rules. Specifically, the subpoena was served by substituted means rather than by personal service, as Nash claimed was required. The matter was brought before the Supreme Court of New South Wales.

The central legal issues before the court were whether the Uniform Civil Procedure Rules permitted substituted service in the circumstances of this case and, if not, whether the court had the statutory power to dispense with this requirement so as to allow the court to make the substituted service effective. The court had to determine the appropriate interpretation and application of the rules governing service of process and whether any statutory power to dispense with procedural requirements could be exercised in this instance.

The court held that while the Uniform Civil Procedure Rules did not explicitly permit substituted service in the particular circumstances of this case, the court did have the statutory power to dispense with this requirement. The court exercised this power, thereby making the substituted service effective. In doing so, the court relied on the broader purpose of the rules, which is to ensure that justice is administered fairly and efficiently, and that procedural technicalities do not impede the resolution of disputes. The court found that allowing the substituted service in this case did not undermine the fundamental principles of procedural fairness and justice.

As a result of the court's decision, the subpoena served by substituted means was deemed effective, and the defendant, Stewart, was required to attend court as ordered. This outcome allowed the legal proceedings to continue, ensuring that the dispute between the parties could be resolved in a timely and efficient manner.

Orders