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The appeal arose from a District Court damages award following a dog attack on 24 April 2020. The appellant, Melissa Carretero, owned the dog. The respondent was walking her dog, Lexi, when the attack occurred. The respondent suffered physical and psychological trauma, and Lexi suffered serious injuries ([2]). After a trial on 24 and 25 March 2025, the District Court awarded the respondent just over $100,000. The award included components for psychological trauma and interruption to her work ([3]–[4]).

One of the appellant's seven appeal grounds concerned asserted fresh evidence. She alleged that the respondent had misled the trial court about her capacity to work and psychological condition, and sought leave to adduce evidence under s 75A(7) of the Supreme Court Act 1970 (NSW) ([5]–[6]). The judgment records the appellant's recognition that she would need to satisfy the Court that the evidence was fresh, including that it could not have been obtained earlier through reasonable diligence ([7]).

The appellant's affidavit described pregnancy and postpartum circumstances, medical advice to disengage from proceedings, inability to monitor social media or news, and the respondent's alleged non-disclosure of business interests ([8]–[10]). Supporting material included letters from Tas Women by TasOGS and an email from a psychologist at Family Services Australia Psychology ([10]).

The respondent proposed subpoenas to those two treating organisations to test the appellant's account of her condition. A separate proposed subpoena to Veritas Law Firm, the appellant's former trial lawyers, sought material about research into the respondent and her business activities. The apparent purpose was to test whether the material now said to be fresh had in fact been obtained or researched at trial ([13]–[14]).

The urgency was partly a product of the timetable. The appeal hearing was eight days away when the judgment was delivered. The respondent had filed a security-for-costs motion in February, which was dismissed on 2 March. The Court noted that, had the subpoenas been pursued more promptly after that motion was resolved, there would have been no need for short service ([11], [19]–[20]). The ruling therefore addressed both the utility of the evidence and the practical fairness of the late timetable.

Why the court decided this way

The Court did not treat all three proposed subpoenas alike. Its reasoning turned on purpose, scope, recipient burden, timing and the possibility of privilege.

For the two medical subpoenas, the Court considered there was a legitimate forensic purpose. The appellant had herself relied on her health and psychological circumstances to explain why the evidence was not discovered or presented before judgment. The Court reasoned that her condition and capacity to conduct research were consequently in issue on the fresh-evidence motion ([8]–[10], [22]). The sensitivity of the medical records was expressly acknowledged, but the Court held it was not, in these circumstances, a reason to deny short service or the subpoenas ([21]–[22]).

The Court also considered the scope and practical capacity for compliance. TasWomen had indicated an immediate willingness to upload relevant documents once served with a formal subpoena. Family Services had acknowledged the inquiry and indicated it would respond if formally subpoenaed ([17]). The Court was satisfied that the medical subpoenas were targeted and readily capable of being answered within a short period ([24]).

The temporal limitation was important. The respondent's solicitor proposed limiting the documents to those created since 24 April 2020, the date of the dog attack. The formal order, however, specifies documents or records created since 20 April 2020 ([24], [28]). Those dates differ in the judgment. The operative wording reproduced in the orders is 20 April 2020, and this analysis does not resolve the discrepancy. It is a textual point that should be distinguished from the Court's discussion at paragraph 24.

The timetable also required balancing. The Court accepted the appellant's criticisms that the respondent had known of the fresh-evidence issue since November and had delayed seeking the subpoenas. It also accepted that the explanation for the delay was unsatisfactory, and noted that the respondent could have acted sooner after the security-for-costs motion was dismissed ([19]–[20]). Those matters weighed against the application. Against them, the Court placed the interest in relevant evidence being available to the parties and the Court, while requiring attention to unreasonable prejudice to parties and affected third parties ([23]).

The proposed subpoena to Veritas Law Firm failed that practical assessment. It had ten substantive categories and extended beyond identified documents to files, notes, correspondence and other material concerning searches or research ([13], [25]). The Court was concerned that compliance would require substantial searches and could not realistically be completed within the compressed period. It also considered that the subpoena would likely capture material one would expect to be privileged. Sorting privileged from non-privileged material would itself impose substantial work immediately before the appeal ([25]–[26]). These concerns led to refusal of short service for that subpoena ([27]).

The disposition was therefore divided: short service for the two medical subpoenas, with amendments; refusal of the application otherwise; and costs of the motion to be costs in the appeal ([28]).

Before and after state of the law

The judgment is a procedural ruling on a particular application, not a broad determination of the legal test for admitting fresh evidence. It records that the appellant sought leave under s 75A(7) of the Supreme Court Act 1970 (NSW) and that she understood she needed to establish that the evidence was fresh because it was not available at trial. It describes availability as including whether the evidence could have been obtained at that time through reasonable diligence ([5]–[7]). The substantive fresh-evidence motion was stood over for hearing with the appeal and was not decided in this ruling ([6]).

The court's decision concerns subpoenas and timing. It refers to the usual minimum of five days between service and return, and explains that compressing that period may create potential injustice for recipients ([16]). It does not purport to replace that usual timeframe with a general rule. Rather, it considers whether the circumstances justified a particular abbreviated timetable, having regard to the recipients' responses, the documents sought, the time available and potential prejudice ([16]–[27]).

The judgment also does not state a general rule that a party's medical records must be produced whenever health is put in issue. Its reasoning is tied to this case: the appellant relied on her condition and research capacity to explain the alleged lateness of the evidence, and the Court found that the proposed subpoenas had a legitimate forensic purpose and sufficiently confined scope ([8]–[10], [22]–[24]). It likewise does not decide any privilege claim. It identifies a likely privilege problem as a practical reason against short service for the broad subpoena to former solicitors ([26]).

Accordingly, the “before and after” account is limited. The ruling applies a case-specific balance to the proposed subpoenas; it does not announce a new statutory test or determine the substantive appeal or fresh-evidence application.

Key passages with plain-English translation

At paragraph 16, the Court notes that compressing the usual minimum of five days between service and return “may work a potential injustice” on recipients. In plain English, a subpoena recipient needs a fair opportunity to locate and produce the documents, and a shorter period can create unfair pressure.

At paragraph 22, the Court says there was “a legitimate forensic purpose” for the subpoenas to TasWomen and Family Services. The reasoning is linked to the appellant's own evidence about her health and her ability to research material before trial. The subpoenas were directed to evidence capable of testing that explanation.

At paragraph 23, the Court says it is in the interests of justice for relevant evidence to be available, “all other things being equal.” That qualification matters. The Court did not treat relevance as automatically decisive: it also considered whether the parties or third parties would be unreasonably prejudiced.

At paragraph 25, the Court identifies “real doubt” about Veritas Law Firm's ability to respond in time and says the burden weighed against the application. The point is not simply that the subpoena was inconvenient. Its breadth meant substantial searching was required during a very short period.

At paragraph 26, the Court explains that the Veritas subpoena appeared likely to capture material that would be expected to be privileged. It considered the process of determining what was or was not privileged to be burdensome for both the firm and the appellant in the days before the appeal. The judgment identifies this as a practical concern; it does not decide whether particular documents were privileged.

The orders at paragraph 28 give the concrete result. The two medical subpoenas were to have a 19 March 2026 return date and a production period beginning 20 April 2020. They were to be served on 16 March. The motion was otherwise dismissed, and its costs were reserved as costs in the appeal.

What fact patterns trigger this precedent

The decision is most directly relevant to an interlocutory request to shorten subpoena service or return time shortly before a hearing. The factual features that mattered here were that the appeal hearing was imminent, the proposed recipients had been contacted, at least one had indicated readiness to produce documents, and the documents were directed to an issue already raised by the appellant's evidence ([1], [16]–[18], [22]–[24]).

It is also relevant where one party's own evidence puts a personal circumstance in issue and the opposing party seeks records from treating organisations to test that evidence. The Court treated the appellant's reliance on her medical and psychological condition as supporting a forensic purpose for the medical subpoenas, while still acknowledging sensitivity ([21]–[22]). The ruling does not establish that medical records are automatically obtainable in comparable circumstances. Scope, timing, purpose and prejudice were all part of the decision.

The contrasting treatment of the subpoena to former solicitors may be relevant where a proposed subpoena is broad, requires substantial searches, or appears to encompass potentially privileged material. Here, the Court viewed the combination of breadth, short compliance time and privilege review as a significant practical burden ([25]–[26]). The ruling does not determine privilege or say that a subpoena to a former solicitor is necessarily inappropriate.

Finally, the ruling may be pertinent where an applicant seeks urgent relief after a delay that could have been avoided. The delay counted against the respondent, particularly because the Court considered that earlier steps after the security-for-costs ruling could have avoided short service ([19]–[20]). In this case, however, that factor did not outweigh the considerations supporting the narrower medical subpoenas.

How later courts have treated it

The judgment supplied for analysis contains no information about later judicial treatment of Carretero v Ioannidis [2026] NSWCA 34. It therefore does not establish whether later courts have followed, applied, distinguished, or otherwise considered this ruling.

The decision itself refers to Ioannidis v Carretero [2025] NSWDC 258 as the District Court proceeding from which the appeal arose ([2]). It does not discuss the reasoning of that judgment in this interlocutory ruling. The reference supplies procedural and factual context, rather than a stated precedent relationship relevant to the subpoena decision.

Any account of later treatment would require additional sources beyond this judgment. On the text provided, the supported conclusion is limited to the reasoning and orders made by Free JA on 16 March 2026.

Still-open questions

The substantive appeal and the appellant's application for leave to adduce fresh evidence were not decided in this ruling. They remained listed for hearing on 24 March 2026 ([1], [6]). The judgment therefore does not determine whether the proffered material was fresh, whether it could have been obtained earlier through reasonable diligence, or whether leave should be granted under s 75A(7).

Nor does it report what records the two organisations ultimately produced, whether the production occurred on time, or how the parties used those records at the appeal hearing. The ruling authorised short service and fixed an abbreviated return date; it did not determine the weight or admissibility of any particular record.

The judgment also leaves unresolved the precise reach of any privilege issue concerning the proposed Veritas subpoena. The Court considered that the subpoena would likely capture material one would expect to be privileged and that reviewing it would be burdensome ([26]). It did not make findings about specific documents or decide any privilege objection.

Finally, the date difference within the reasons and orders remains apparent on the text supplied: paragraph 24 refers to records created since 24 April 2020, while paragraph 28 orders production of records created since 20 April 2020. The judgment's formal order states 20 April 2020. The source text does not explain the discrepancy.

This is general legal information, not legal advice. Zoe can make mistakes. Before acting on this, relying on it, or using any draft, have a qualified Australian lawyer check it.