Robinson v Robinson - [2019] NSWCA 180

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Robinson v Robinson [2019] NSWCA 180
Hearing dates: 17 July 2019
Decision date: 17 July 2019
Before: Basten JA
Decision:
(1)   Grant the appellant leave to file in court an amended notice of appeal dated 17 July 2019.

(2)   Costs in the appellant’s notice of motion of 3 July 2019 to be costs in the cause.

(3)   Order that the subpoenas to produce issued on behalf of the appellant directed to:

(a)   Bailey Dunleavy of Penmans Solicitors, filed 18 June 2019; and
(b)   Department of Human Services – Medicare, filed 18 June 2019,

be set aside pursuant to r 33.4 of the Uniform Civil Procedure Rules 2005 (NSW).
(4)   The costs of the first respondent’s notice of motion of 10 July 2019 will be costs in the proceedings in this Court.
Catchwords: CIVIL PROCEDURE – appeal – subpoenas – application to set aside – subpoena seeking evidence of capacity to enter deed – material not put before the primary judge – Court of Appeal unlikely to undertake a trial of evidence not previously considered
Legislation Cited:
Succession Act 2006 (NSW), ss 95, 96
Supreme Court Act 1970 (NSW), s 75A
Uniform Civil Procedure Rules 2005 (NSW), r 33.4
Category: Procedural and other rulings
Parties: Sarah Jane Robinson (Appellant)
Leigh Henry Robinson (First Respondent)
Timothy John Robinson (Second Respondent)
Representation:
Counsel:
Mr J E F Brown / Mr N Condylis (Appellant)
Mr A F Stevens (First Respondent)
Solicitors:
Elizabeth Fleming & Associates (Appellant)
Penmans Solicitors (First Respondent)
Teece Hodgson and Ward (Second Respondent)

File Number(s): 2018/223271
Decision under appeal

Court or tribunal:

Supreme Court

Jurisdiction:

Equity Division

Date of Decision:

17 April 2018

Before:

Pembroke J

File Number(s):

2017/120274

Judgment

BASTEN JA: There are before the Court two notices of motion in an appeal by leave from a judgment by consent in the Equity Division approving a settlement of a family provision claim under s 95 of the Succession Act 2006 (NSW). The first motion sought leave to file an amended notice of appeal; that has been agreed to and orders have been made. The amendments reflected the limited basis of the grant of leave. There is now no challenge in relation to any absence of reasons given by the trial judge for making the orders the subject of the appeal. That is understandable in circumstances where the parties before the trial judge sought the orders by consent and neither side sought reasons.
Secondly, the first respondent seeks, by notice of motion filed 10 July 2019, to set aside two subpoenas issued by the appellant on 18 June 2019 addressed to (i) the employed solicitor at Penmans Solicitors handling the matter for the first respondent, and (ii) an officer of the Department of Human Services, Medicare.
The appellant brought a claim for provision under the Succession Act with respect to her father’s estate. The principal asset in the estate was the father’s half share in a property jointly owned…

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 Robinson v Robinson

Details

AGLC: Robinson v Robinson [2019] NSWCA 180
Case: [2019] NSWCA 180
Decision Date: 17 July 2019

CaseChat Overview and Summary

In *Robinson v Robinson*, the appellant sought to appeal a decision of the primary judge concerning the setting aside of subpoenas. The dispute involved the appellant's attempt to obtain evidence regarding the capacity to enter into a deed, with the Court of Appeal considering whether to allow the introduction of material that had not been presented to the primary judge.

The central legal issue before the Court of Appeal was whether it should undertake a trial of evidence that had not been considered by the primary judge, specifically in the context of an appeal concerning the setting aside of subpoenas. This raised questions about the scope of appellate review and the circumstances under which new evidence can be introduced.

The Court of Appeal determined that it was unlikely to undertake a trial of evidence that had not been previously considered by the primary judge. Applying this principle, the Court granted the appellant leave to file an amended notice of appeal and ordered that the subpoenas issued on behalf of the appellant, directed to Bailey Dunleavy of Penmans Solicitors and the Department of Human Services – Medicare, be set aside pursuant to rule 33.4 of the Uniform Civil Procedure Rules 2005 (NSW). Costs were to be costs in the cause for the appellant's notice of motion and costs in the proceedings in the Court for the first respondent's notice of motion.

Orders

Orders of the court

(1) Grant the appellant leave to file in court an amended notice of appeal dated 17 July 2019.

(2) Costs in the appellant’s notice of motion of 3 July 2019 to be costs in the cause.

(3) Order that the subpoenas to produce issued on behalf of the appellant directed to:

(a) Bailey Dunleavy of Penmans Solicitors, filed 18 June 2019; and

(b) Department of Human Services – Medicare, filed 18 June 2019,

be set aside pursuant to r 33.4 of the Uniform Civil Procedure Rules 2005 (NSW).

(4) The costs of the first respondent’s notice of motion of 10 July 2019 will be costs in the proceedings in this Court.

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.

Medium Neutral Citation:	Robinson v Robinson [2019] NSWCA 180
Hearing dates:	17 July 2019
Decision date:	17 July 2019
Before:	Basten JA
Decision:	(1) Grant the appellant leave to file in court an amended notice of appeal dated 17 July 2019. (2) Costs in the appellant’s notice of motion of 3 July 2019 to be costs in the cause. (3) Order that the subpoenas to produce issued on behalf of the appellant directed to: (a) Bailey Dunleavy of Penmans Solicitors, filed 18 June 2019; and (b) Department of Human Services – Medicare, filed 18 June 2019, be set aside pursuant to r 33.4 of the Uniform Civil Procedure Rules 2005 (NSW). (4) The costs of the first respondent’s notice of motion of 10 July 2019 will be costs in the proceedings in this Court.
Catchwords:	CIVIL PROCEDURE – appeal – subpoenas – application to set aside – subpoena seeking evidence of capacity to enter deed – material not put before the primary judge – Court of Appeal unlikely to undertake a trial of evidence not previously considered
Legislation Cited:	Succession Act 2006 (NSW), ss 95, 96 Supreme Court Act 1970 (NSW), s 75A Uniform Civil Procedure Rules 2005 (NSW), r 33.4
Category:	Procedural and other rulings
Parties:	Sarah Jane Robinson (Appellant) Leigh Henry Robinson (First Respondent) Timothy John Robinson (Second Respondent)
Representation:	Counsel: Mr J E F Brown / Mr N Condylis (Appellant) Mr A F Stevens (First Respondent) Solicitors: Elizabeth Fleming & Associates (Appellant) Penmans Solicitors (First Respondent) Teece Hodgson and Ward (Second Respondent)
File Number(s):	2018/223271
Decision under appeal	Court or tribunal: Supreme Court Jurisdiction: Equity Division Date of Decision: 17 April 2018 Before: Pembroke J File Number(s): 2017/120274