Palermo Seafoods Pty Limited v Lunapas Pty Limited (No 3)

Palermo Seafoods Pty Limited (the applicant) sought leave from the Court of Appeal of New South Wales to issue subpoenas in appeal proceedings against Lunapas Pty Limited and others (the respondents). The subpoenas were intended to obtain further evidence relevant to the appeal.

The primary legal issue before the court was whether the applicant had demonstrated that the evidence sought by the proposed subpoenas could not, with reasonable diligence, have been obtained at the trial. This question arose in the context of an application for leave to issue subpoenas in appeal proceedings, which typically requires a higher threshold to be met than for subpoenas issued at first instance.

Leeming JA dismissed the application, reasoning that the applicant had failed to establish that the evidence sought by the subpoenas could not have been obtained with reasonable diligence at the trial. The court applied the principle that, in the absence of such a demonstration, leave to issue subpoenas for further evidence in appeal proceedings will generally be refused.

Consequently, the notice of motion filed by Palermo Seafoods Pty Limited was dismissed, and the applicant was ordered to pay the respondents’ costs of that motion.