Quach v Butt

Case [2017] ACTCA 4


SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL

Case Title:

Quach v Butt

Citation:

[2017] ACTCA 4

Hearing Date:

22 December 2016

DecisionDate:

Reasons Date:

22 December 2016

15 February 2017

Before:

Refshauge J

Decision:

1.  The application be dismissed.

2.  The appellant be ordered to pay the respondent’s costs.

Catchwords:

PRACTICE AND PROCEDURE – INTERLOCUTORY APPEAL – Leave to Appeal from the Supreme Court – single justice sitting in the Court of Appeal – leave to appeal against orders setting aside subpoenas – appeal against dismissal of – no legitimate forensic purpose for the material requested – application for leave to appeal dismissed – order for costs made

PRACTICE AND PROCEDURE – APPEAL – Supreme Court appeal against dismissal by Magistrates Court of application for issue of subpoenas in appeal – subpoenas - setting aside subpoenas – need for legitimate forensic purpose for subpoenas – application for leave to appeal dismissed

Legislation Cited:

Civil and Administrative Tribunal Act 2013 (NSW), s 60

Civil Procedure Act 2005 (NSW), s 98
Court Procedures Act 2004 (ACT), ss 7, 9, Item 26 of Pt 1.2 of Sch 1
Customs Act 1901 (Cth)
Domestic Violence and Protection Orders Act 2008 (ACT), ss 7, 11, 12, 14(1)(c), 118(2)(n)
Health Care Complaints Act 1993 (NSW), s 90B
Judiciary Act 1903 (Cth), s 35
Legal Profession Act 2004 (NSW), s 31
Legal Profession Uniform Law Application Act 2014 (NSW), s 76
Legal Profession Uniform Law (NSW), s 172
Magistrates Court Act 1930 (ACT), s 214
Narcotic Drugs Act 1967 (Cth)
Supreme Court Act 1933 (ACT), ss 37E, 37E(4)

Domestic Violence and Protection Orders Regulation 2009 (ACT), regs 69, 93

Legal Profession Regulation 2005 (NSW), regs 111B, 111B(1)(c)(ii)

Court Procedures Rules, rr 1721, 5001, 6604, 6609, Sch 4, Pt 2.17

Cases Cited:

Arrow International Australia Ltd v Konstrukt Pty Ltd [2012] ACTCA 37; 7 ACTLR 48

Associated Dominion Assurance Society Pty Ltd v John Fairfax and Sons Pty Ltd (1952) 72 WN (NSW) 250
Australian Competition and Consumer Commission v Maritime Union of Australia [2001] FCA 1549; 114 FCR 472
Briginshaw v Briginshaw (1938) 60 CLR 336
BRJ v Council of New South Wales Bar Association (No 2) [2016] NSWSC 228
Capital Property Projects (ACT) Pty Ltd v Planning and Land Authority (ACT) [2008] ACTCA 9; 2 ACTLR 44
Clyne v New South Wales Bar Association (1960) 104 CLR 186
Commissioner of Australian Federal Police v Razzi (1991) 101 ALR 425
Commonwealth Bank of Australia v Hattersley [2001] NSWSC 60; 5 NSWLR 333
Eastman v The Queen [2000] HCA 29; 203 CLR 1
Environment Protection Authority v Taylor Woodrow (Australia) Pty Ltd (No 2) (1997) 97 LGERA 368
Fernando v Medical Complaints Tribunal [2004] TASSC 130
Garnett v Bradley (1878) 3 App Cas 944
Gerlach v Clifton Bricks Pty Ltd [2002] HCA 22; 209 CLR 478
GJ v AS (No 3) [2015] ACTCA 31
Grooms v Toohey [2012] ACTSC 28; 7 ACTLR 1
Health Care Complaints Commission…

Continue reading Quach v Butt

Sign in free to access the full text

Details
AGLC
Quach v Butt [2017] ACTCA 4
Case
[2017] ACTCA 4
Decision Date

CaseChat Overview and Summary

Refshauge J of the Supreme Court of the Australian Capital Territory considered an application for leave to appeal against orders that set aside subpoenas. The applicant, Quach, sought to appeal the decision of a single judge of the Court of Appeal who had dismissed an appeal against the Magistrates Court's refusal to issue subpoenas. The core of the dispute revolved around whether the material sought by the subpoenas had a legitimate forensic purpose.

The primary legal issue before Refshauge J was whether the applicant had demonstrated sufficient grounds to warrant leave to appeal the dismissal of the appeal against the Magistrates Court's decision. This required the court to assess whether the original application for the subpoenas, and subsequently the appeal against their setting aside, had been properly founded on a need for material with a legitimate forensic purpose.

Refshauge J reasoned that the applicant had failed to establish that the material sought by the subpoenas possessed a legitimate forensic purpose. Without such a purpose, the subpoenas were correctly set aside by the Magistrates Court, and the subsequent dismissal of the appeal against that decision by the Court of Appeal was also upheld. The court applied the principle that subpoenas must be issued for a proper forensic purpose, meaning they must be directed at obtaining evidence relevant to the issues in dispute in the proceedings.

Consequently, Refshauge J dismissed the application for leave to appeal and ordered the appellant to pay the respondent’s costs.

Orders

Orders of the court

1. The application be dismissed.

2. The appellant be ordered to pay the respondent’s costs.

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.