Photi v Target Australia Pty Ltd (No. 2) - [2007] NSWDC 302

Reported Decision:
6 DCLR (NSW) 122

District Court

CITATION: Photi v Target Australia Pty Ltd (No. 2) [2007] NSWDC 302

HEARING DATE(S): 25 June 2007

EX TEMPORE JUDGMENT DATE: 25 June 2007

JURISDICTION: Civil

JUDGMENT OF: Gibson DCJ

DECISION: 1. Application by defendant to issue a warrant pursuant to s.194 Evidence Act 1995 (NSW) refused.

CATCHWORDS: Tort - procedure - application for warrant pursuant to s.194 Evidence Act 1995 (NSW) for witness who fails to attend in compliance with subpoena

LEGISLATION CITED: Evidence Act 1995 (NSW), s.194

CASES CITED: Briginshaw v Briginshaw (1938) 60 CLR 336
Harris/D-E Pty Limited v McClelland’s Coffee and Tea Pty Limited (1999) 149 FLR 204
Marsden v Amalgamated Television Services Pty Ltd [2001] NSWSC 510
McKenzie v Mergen Holdings Pty Ltd (1990) 20 NSWLR 42

PARTIES: Plaintiff: Julia Photi
Defendant: Target Australia Pty Ltd

FILE NUMBER(S): 3364 of 2006

COUNSEL: Plaintiff: C Evatt / L Evans
Defendant: M Barko

SOLICITORS: Plaintiff: Stephen Spinak Solicitor
Defendant: McCabe Terrill

Judgment

1. At 2.30pm today, on the first day of hearing I received an application on behalf of the defendant to issue a warrant pursuant to s.194 Evidence Act 1995 (NSW).

2. Section 194(1) provides that:

(a) order the witness to show cause at those or later proceedings why execution of the recognisance or an attachment for disobedience to the summons or subpoena should not be issued against the witness, or

(b) if it is proved that the non-appearance is without just cause or reasonable excuse and that the witness will probably be able to give relevant evidence in the proceeding, issue a warrant to bring the witness before the court to give the evidence.”

3. The history in this matter is set out in two affidavits. I should indicate that the first affidavit of 26 February was read at my request. I do not say that in any way critical of counsel for the defendant, who has behaved in a perfectly proper way throughout this application but because it is appropriate that I should note that it is being read, because I have asked it to be read and because I am of the view that the information in there is relevant. It was my view, having a look at the affidavit of Mr Oag, sworn on 25 June 2007 (which just attaches the affidavit of service and refers to a telephone call to the plaintiff's place of employment on 22 June and a letter sent on 20 June) would signally fail to comply with the requirement of showing it was “without just cause or reasonable excuse”. There is rather more in the affidavit of Mr Mander-Jones of 26 February 2007, but even that falls short.

4. I will now set out the matters upon which the…

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.

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Details

Case: [2007] NSWDC 302
Decision Date: 25 June 2007

CaseChat Overview and Summary

Photi, the plaintiff, initiated legal proceedings against Target Australia Pty Ltd, the defendant, in a matter concerning tortious liability. The case was heard in the Supreme Court of New South Wales. The plaintiff alleged that the defendant's negligence led to personal injuries suffered by Photi. The defendant, in turn, sought to compel a specific witness to attend court, who had failed to comply with a subpoena. This resulted in the defendant applying for a warrant under section 194 of the Evidence Act 1995 (NSW) to compel the witness's attendance.

The primary legal issue before the court was whether it was appropriate to issue a warrant to compel the attendance of a witness who had failed to comply with a subpoena. The defendant argued that the witness's testimony was crucial to its defence and that without it, a fair trial could not be achieved. The court had to consider the necessity and proportionality of issuing such a warrant, as well as the rights of the witness and the potential impact on the proceedings. The plaintiff contended that the application was an unnecessary interference with the witness's rights and that alternative measures should be explored.

The court held that while the witness's testimony might be beneficial, the application for a warrant was not justified. The court considered the rights of the witness and the potential for undue hardship or coercion. The court found that the defendant had not demonstrated that all reasonable steps had been taken to secure the witness's attendance without resorting to a warrant. Additionally, the court was not satisfied that the witness's absence would result in a substantial miscarriage of justice. Consequently, the court refused the defendant's application to issue a warrant.

The court's decision was based on the principle that the issuance of a warrant under section 194 of the Evidence Act 1995 (NSW) should be a measure of last resort. The court emphasised the importance of protecting the rights of witnesses and ensuring that any measures taken are proportionate to the need for their attendance. The court's refusal to grant the warrant underscores the need for parties to exhaust all reasonable alternatives before seeking such coercive measures.

Orders

Orders of the court

1. Application by defendant to issue a warrant pursuant to s.194 Evidence Act 1995 (NSW) refused.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Photi v Target Australia Pty Ltd (No. 2) [2007] NSWDC 302
HEARING DATE(S):	25 June 2007
EX TEMPORE JUDGMENT DATE:	25 June 2007
JURISDICTION:	Civil
JUDGMENT OF:	Gibson DCJ
DECISION:	1. Application by defendant to issue a warrant pursuant to s.194 Evidence Act 1995 (NSW) refused.
CATCHWORDS:	Tort - procedure - application for warrant pursuant to s.194 Evidence Act 1995 (NSW) for witness who fails to attend in compliance with subpoena
LEGISLATION CITED:	Evidence Act 1995 (NSW), s.194
CASES CITED:	Briginshaw v Briginshaw (1938) 60 CLR 336 Harris/D-E Pty Limited v McClelland’s Coffee and Tea Pty Limited (1999) 149 FLR 204 Marsden v Amalgamated Television Services Pty Ltd [2001] NSWSC 510 McKenzie v Mergen Holdings Pty Ltd (1990) 20 NSWLR 42
PARTIES:	Plaintiff: Julia Photi Defendant: Target Australia Pty Ltd
FILE NUMBER(S):	3364 of 2006
COUNSEL:	Plaintiff: C Evatt / L Evans Defendant: M Barko
SOLICITORS:	Plaintiff: Stephen Spinak Solicitor Defendant: McCabe Terrill