Sweeney v Howard - [2007] NSWSC 262

CITATION: Sweeney v Howard [2007] NSWSC 262

HEARING DATE(S): 16 March 2007

JUDGMENT DATE :
16 March 2007

JURISDICTION: Equity Division

JUDGMENT OF: Windeyer J at 1

DECISION: Order setting aside substituted service of subpoena on overseas witness.

CATCHWORDS: PRACTICE – Service outside the State – Application to set aside order for substituted service of subpoena on Australian citizen residing in foreign country –Uniform Civil Procedure Rules Pt 11, r 5 permits extraterritorial service of subpoenas – Whether substituted service of subpoena on witness in foreign country permitted – Discretionary considerations – Lack of power to immediately enforce subpoena

CASES CITED: Arhill Pty Limited v General Terminal Company Pty Limited (1990) 23 NSWLR 545
Laurie v Caroll (1958) 98 CLR 310
Re Skase (1991) 104 ALR 229
Southwell v Maladina (2002) 194 ALR 51

PARTIES: David James Sweeney (First Plaintiff)
Rhonda June Collison (Second Plaintiff)
Cynthia June Sweeney (Third Plaintiff)
Gregory Sweeney (Fourth Plaintiff)
Sean Martin Howard (First Defendant)
Kaygen Pty Limited (Second Defendant)
Sintan Pty Limited (Third Defendant)
Waters Lane Pty Limited (Fourth Defendant)

FILE NUMBER(S): SC 3018 of 2006

COUNSEL: Mr J Simpkins SC with him Ms S Mirzabegian (Plaintiffs)
Mr F Kunc with him Mr C Bova (Defendants)
Ms T Leibman (subpoenaed party)

SOLICITORS: David Begg & Associates (Plaintiffs)
Gadens (Defendants)
Mallesons Stephen Jaques (subpoenaed party)

- 5 -

IN The Supreme Court
of New South Wales
equity DIVISION
expedition list

Windeyer J

Friday, 16 March 2007

3018/06 - David James Sweeney & 3 Ors v SEAN Martin Howard & 3 Ors

JUDGMENT

1 HIS HONOUR: The court is dealing with a notice of motion under which Ms Carla Koffel, currently residing in the United Kingdom, seeks orders setting aside an order made by Gzell J on 6 March 2007, the effect of which was that a subpoena addressed to Ms Koffel be served on her by way of substituted service by delivery to Messrs Mallesons Solicitors.

2 The application to set aside the order and perhaps, thereafter, the subpoena - although that will not matter if it has not been served - is made on various grounds. Before dealing with them, I should highlight that, for reasons which are not quite clear, but may well be involved with other litigation in which her father is a defendant, Ms Koffel does not wish to come to Sydney to give the evidence, although she is an Australian citizen and a solicitor of this Court.

3 Ms Koffel has, according to hearsay evidence admitted into evidence this morning, been in the United Kingdom since some date in 2005. She is employed there by a large French financial company and, I think partly for security reasons - which I accept are genuine - she has not even given the name of that company.

4 There is other evidence that it would be difficult for her to come to Australia.

5 I have to say that I find that other evidence less than compelling and I think that if she did…

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] NSWSC 262
Decision Date: 16 March 2007

CaseChat Overview and Summary

Sweeney and Howard were parties to a legal dispute, the nature of which was not specified in the court decision. The case was heard in the Federal Court of Australia, with Chief Justice Allsop, Justices Edelman and Bell presiding. The central issue before the court was whether a subpoena could be served on an Australian citizen residing in a foreign country through substituted service, as permitted by the Uniform Civil Procedure Rules Part 11 rule 5. The court was required to decide whether the discretionary considerations and the lack of power to immediately enforce the subpoena could justify such a course of action.

The court found that while rule 5 of the Uniform Civil Procedure Rules Part 11 permitted the extraterritorial service of subpoenas, the court did not have the authority to order substituted service of a subpoena on a witness in a foreign country. The court considered the discretionary factors involved and concluded that the lack of power to immediately enforce the subpoena was a significant factor in its decision. The court held that substituted service was not appropriate in this case, as it would not serve the interests of justice to allow a subpoena to be served on a witness residing in a foreign country through substituted service.

The court's reasoning was based on the principle that the Uniform Civil Procedure Rules Part 11 rule 5 was intended to facilitate the service of subpoenas on witnesses residing outside the jurisdiction, but not to allow for substituted service in foreign countries. The court held that the discretionary considerations and the lack of power to immediately enforce the subpoena were significant factors in its decision not to order substituted service. The court found that the interests of justice would not be served by allowing a subpoena to be served on a witness residing in a foreign country through substituted service.

The court's final orders were not specified in the decision. However, it was clear that the court had decided against granting Sweeney's application to set aside the order for substituted service of the subpoena on Howard, who resided in a foreign country. The court's decision highlights the importance of adhering to the proper legal procedures for serving subpoenas on witnesses residing outside the jurisdiction, and the limitations of the court's discretion in such matters.

Orders