Young v King (No 5)
[2012] NSWLEC 280
•17 September 2012
Land and Environment Court
New South Wales
Medium Neutral Citation: Young v King (No 5) [2012] NSWLEC 280 Hearing dates: 17 September 2012 Decision date: 17 September 2012 Jurisdiction: Class 4 Before: Sheahan J Decision: The Respondents' application to set aside the Applicant's subpoenas is dismissed
Catchwords: SUBPOENA: Applicant seeking to call the Respondents to give oral evidence Category: Procedural and other rulings Parties: Margo Young (Applicant)
Brendan King (First Respondent)
Kristina King (Second Respondent)Representation: Mr R Newell, Barrister (Applicant)
Mr M Wright, Barrister (First & Second Respondents)
L C Muriniti & Associates (Applicant)
Terence Stern (First & Second Respondents)
File Number(s): 40417 of 2003
Judgment
The applicant's notice of motion to have the Court's orders of February 2004 vacated has finally come on for hearing today, despite what can only be described as flagrant disobedience by the applicant of what I, as the trial judge, considered crucial pre-hearing directions.
As a direct consequence of those breaches, the Court has been asked to set aside subpoenas issued by the applicant, requiring the respondents to give oral evidence in the applicant's case.
The allegations the applicant makes against the respondents and others are serious, and, for that reason, I directed on 16 July that the applicant serve, by 23 July, a written statement as to the evidence the applicant expected to ask each respondent to give. That statement or outline was not provided to the respondents' solicitor until last Friday.
The respondents contend that, in those circumstances, pressing the subpoenas becomes an abuse of process, and they should be set aside or, if not, the hearing this week should be vacated.
Central to the applicant's position is that, as events have unfolded, the Court's 2004 orders have worked an injustice on her. However, in seeking relief against the respondents, no injustice should be worked on them either.
In making, after four years of case management, what were to be the final directions, I required the applicant to do essentially eight things within certain generous time limits.
Five of those eight directions were not complied with. Of themselves, those failures have already caused the respondents prejudice, and could derail this hearing, and their counsel argues that additional prejudice should now be avoided by setting aside the subpoenas.
The case for vacating the 2004 orders relies on other evidence already available to the Court, and should now proceed without delay.
I have decided not to set the subpoenas aside at this point, and not to vacate the hearing dates, but to order the applicant to argue her case, and hold back calling the respondents until the end of her other evidence.
The hearing has been set down for four days, with Friday as a reserve day if I require it. I will be extremely vigilant to ensure no injustice to either side, and there also remains the question about this Court's jurisdiction to grant the relief sought.
Clearly the respondents are entitled to more time to consider their own positions in respect of the outline provided, especially in view of the decision I have just announced, and I now adjourn the hearing till 2pm, at which time I will call on Mr Newell to open his case and lead his other evidence.
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Decision last updated: 28 June 2013
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