Porter v Dyer - [2021] FCA 1459

FEDERAL COURT OF AUSTRALIA
Porter v Dyer [2021] FCA 1459

File number: NSD 612 of 2021

Judgment of: MIDDLETON J

Date of judgment: 17 November 2021

Date of publication of reasons: 22 November 2021

Catchwords: PRACTICE AND PROCEDURE – Notice to Produce documents on appeal – documents not before primary judge – documents had no relevance to matters raised in Notice of Appeal – Notice to Produce set aside

Cases cited:
Dyer v Chrysanthou (No 2)(Injunction) [2021] FCA 641

Dyer v Chrysanthou [2021] FCA 578

Division: General Division

Registry: New South Wales

National Practice Area: Other Federal Jurisdiction

Number of paragraphs: 13

Date of hearing: 17 November 2021

Counsel for the Appellant: Mr C P O’Neill

Solicitor for the Appellant: Company Giles

Counsel for the First Respondent: Ms S Chordia

Solicitor for the First Respondent: Marque Lawyers

Counsel for the Second Respondent: Ms J McKenzie

Solicitor for the Second Respondent: Kennedy Lawyers

ORDERS

NSD 612 of 2021

BETWEEN:
CHARLES CHRISTIAN PORTER

Appellant

AND:
JOANNE ELIZABETH DYER

First Respondent

SUE CHRYSANTHOU SC

Second Respondent

ORDER MADE BY:

MIDDLETON J

DATE OF ORDER:

17 NOVEMBER 2021

THE COURT ORDERS THAT:
1.The Appellant’s Notice to Produce to the First Respondent dated 14 October 2021 be set aside with costs.

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

REASONS FOR JUDGMENT
MIDDLETON J:

This is an application to set aside a Notice to Produce (the ‘Notice’) served by the Appellant on the First Respondent on 14 October 2021 for the purpose of the upcoming appeal likely to be heard in February 2022.
The Notice seeks two categories of documents. Paragraph 1 of the Notice seeks an unredacted copy of annexure LRG-2 to the affidavit of Lauren Rae Gasparini affirmed on 26 May 2021 (the ‘Annexure’). Paragraph 2 of the Notice seeks documents “relating to any meeting or conference between Mr James Murray Hooke and his solicitors in relation to the preparation of the affidavit of James Murray Hooke sworn on 10 May 2021, and referred to during the hearing of this matter at first instance on 25 May 2021 (T113:15-23)” (the ‘Hooke Call for Documents’).
In support of this application, the First Respondent relies upon a number of affidavits, the details of which I do not need to refer.
The principles to apply as to whether or not a notice to produce shall be set aside are not in contention, being: where it is an abuse of process, including where it is not served for the bona fide purpose of obtaining relevant evidence, or where documents sought to be adduced have no apparent relevance to the issues in the proceeding.
It is important to recall that the Notice relates to the appeal. It is contended by the Appellant that the Notice to Produce is relevant to grounds 1, 3 and 6 of the notice of appeal dated 24 June 2021. The Appellant says that the veracity of Mr Hooke’s…

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 Porter v Dyer

Details

AGLC: Porter v Dyer [2021] FCA 1459
Case: [2021] FCA 1459
Decision Date: 17 November 2021

CaseChat Overview and Summary

Porter commenced proceedings against Dyer seeking to recover unpaid wages. After a trial, the primary judge made orders in favour of Dyer. Porter appealed from the trial judge’s orders. The appellant sought to serve a Notice to Produce documents on the first respondent in the course of the appeal. The first respondent objected to the Notice to Produce on the basis that the documents had not been before the primary judge and were not relevant to the matters raised in the Notice of Appeal. Porter argued that the documents were relevant to the appeal. The first respondent applied to the Full Court to set aside the Notice to Produce on the basis that it was an abuse of process. The Full Court was required to decide whether the Notice to Produce was an abuse of process. The Full Court noted that the appellant was seeking to adduce evidence which was not before the primary judge and was not relevant to the matters raised in the Notice of Appeal. The Full Court held that the appellant had not demonstrated that the documents sought were relevant to the appeal. The Full Court held that the Notice to Produce was an abuse of process and set it aside. The Full Court made orders for the appellant’s costs of the application.

Orders

Orders of the court

1. The Appellant’s Notice to Produce to the First Respondent dated 14 October 2021 be set aside with costs.

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

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

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Ratio Decidendi

Legal Principle Established

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File number:	NSD 612 of 2021
Judgment of:	MIDDLETON J
Date of judgment:	17 November 2021
Date of publication of reasons:	22 November 2021
Catchwords:	PRACTICE AND PROCEDURE – Notice to Produce documents on appeal – documents not before primary judge – documents had no relevance to matters raised in Notice of Appeal – Notice to Produce set aside
Cases cited:	Dyer v Chrysanthou (No 2)(Injunction) [2021] FCA 641 Dyer v Chrysanthou [2021] FCA 578
Division:	General Division
Registry:	New South Wales
National Practice Area:	Other Federal Jurisdiction
Number of paragraphs:	13
Date of hearing:	17 November 2021
Counsel for the Appellant:	Mr C P O’Neill
Solicitor for the Appellant:	Company Giles
Counsel for the First Respondent:	Ms S Chordia
Solicitor for the First Respondent:	Marque Lawyers
Counsel for the Second Respondent:	Ms J McKenzie
Solicitor for the Second Respondent:	Kennedy Lawyers

ORDER MADE BY:	MIDDLETON J
DATE OF ORDER:	17 NOVEMBER 2021