Bahonko v Sterjov & Ors

Applicant's Notice of Motion dated 27 October 2006 1 The applicant gave notice on 27 October 2006 that she would move the court on 6 November 2006 for leave to issue subpoenas for the production of documents and to give evidence upon the respondents and others. That notice was listed when the matter came before the court on 6 November 2006, but was not dealt with then. Rather, it was adjourned to 9 February 2007 on which date the proceeding was listed for directions. Recently, because of the volume of business which will be before the court on 9 February 2007, my associate contacted the parties and notified them that the hearing listed for that date would be brought forward by two days to today, 7 February 2007. 2 The applicant submits that because the matter was brought forward by two days she is in no position to support her Notice of Motion of 27 October 2006. I reject that submission. I assume, as I must, that she was in a position to move in accordance with her Notice of Motion on 6 November 2006. She was fully aware that the notice was adjourned to 9 February 2007, and the circumstance that the hearing of that notice was brought forward by two days is, in my view, neither here nor there. 3 The applicant also supported her application for an adjournment upon the basis of her intention to seek leave to issue subpoenas directed to the parties who might be, but have not yet been, joined as respondents in the proceeding pursuant to another Notice of Motion which she filed on 22 September 2006. Her submission in this regard was that the Notice of Motion of 27 October 2006 for leave to issue subpoenas would make more sense if it had already been determined whether there would be additional parties to the proceedings. Indeed, she went so far as to say that until she knew whether those parties were to be added she would not be in a position to proceed with her motion. 4 The Notice of Motion of 22 September 2006 dealt with a number of matters, one of which was that new parties be added to the proceedings. There appears to be some uncertainty as to whether that motion was supported by any affidavit, and because that notice has not been listed before me today, I will say nothing further about it. I do, however, propose to fix a date upon which that Notice of Motion will be dealt with by the court I will return to that subject later. What is important for present purposes is whether the resolution of that Notice of Motion should be regarded as bearing upon the applicant's application for an adjournment of her Notice of Motion dated 27 October 2006. Whilst I understand the applicant's point of view in this regard, I am not persuaded that it should. 5 The applicant, as with any party, is at liberty to seek leave at any time to issue subpoenas, and given that her stated position is that the question of subpoenas cannot satisfactorily be resolved until the question of the parties has been resolved, I think the appropriate course is to dispose of the Notice of Motion of 27 October 2006 by dismissing it and to deal subsequently, as I have foreshadowed, with the notice of 22 September 2006 for the addition of new parties. If it should transpire that other parties are joined to the proceeding then all the existing parties will of course have their usual rights in relation to subpoenas and other matters of procedure. I propose to dismiss the applicant's motion of which notice was given on 27 October 2007.