RUSSELL LEGAL PTY LTD AS TRUSTEE FOR THE RUSSELL LEGAL TRUST AND TIPLADY LEGAL PTY LTD AS TRUSTEE FOR THE TIPLADY PRACTICE TRUST AND MCLEOD LEGAL PTY LTD AS TRUSTEE OF THE MCLEOD LEGAL TRUST AND CRAIG LEGAL PTY LTD AS TRUSTTE FOR THE BENNICK CRAIG FAMILY TRUST AND STUDACH LEGAL PTY LTD AS TRUSTEE FOR THE STUDACH TRUST AND ANDREW SUTHERLAND AND WJ LEGAL PTY LTD AS TRUSTEE FOR THE WJ LEGAL TRUST AND CAROLINE ELIZABETH SNOW AS TRUSTEE OF THE SNOW LEGAL TRUST, AND ESTJ HOLDINGS PTY LIMITED AS TRUSTEE FOR THE S&G FAMILY TRUST AND VIRGINIA JANE WATERHOUSE AS TRUSTEE OF THE WATERHOUSE HWL PRACTICE TRUST AND PAUL RICHARD MCCANN AND MATTIUSSI LEGAL PTY LTD, TRADING AS RUSSELLS ABN 38 332 782 534
File Number:
SYG 2836 of 2017
Judgment of:
Judge Barnes
Hearing date:
17 September 2018
Delivered at:
Sydney
Delivered on:
16 August 2019
REPRESENTATION
Counsel for the Applicant:
Mr Howell
Solicitors for the Applicant:
Michael Doherty Legal
Counsel for the Respondent:
Mr Darams
Solicitors for the Respondent:
Russells
ORDERS
The following paragraphs or parts thereof in…
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
AGLC
Zaki v Russells [2019] FCCA 2236
Case
[2019] FCCA 2236
Decision Date
CaseChat Overview and Summary
In *Zaki v Russells*, the applicant, Mr Zaki, sought to set aside a subpoena issued by the respondent, Russells, in proceedings before the Fair Work Commission. The dispute concerned allegations of bullying and harassment.
The primary legal issue before the Commission was whether the subpoena, which sought documents from a third party, had a legitimate forensic purpose. The applicant argued that the subpoena was an abuse of process and was sought for an improper purpose, namely to harass the applicant and to gain an unfair advantage in the proceedings.
The Commission considered the principles governing the issue and setting aside of subpoenas, particularly the requirement for a legitimate forensic purpose. It noted that a subpoena will have a legitimate forensic purpose if the documents sought are likely to be relevant to a matter in issue in the proceedings and are not sought for the purpose of oppression or an ulterior motive. The Commission found that the documents sought by the subpoena were relevant to the applicant's state of mind and credibility, which were central issues in the proceedings. Therefore, the subpoena was considered to have a legitimate forensic purpose.
The Commission dismissed the application to set aside the subpoena.