Douglas v Mikhael [2024] NSWCA 61 | Case summary

Court of Appeal (NSW)|2024-03-19|Before: Payne JA, Richmond J

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

JUDGMENT

On 19 March 2024, I published my reasons dealing with all but one of the grounds in a notice of motion filed on 15 March 2024 by the appellant, Mr Douglas. The history of that motion and steps in preparation for the appeal listed to be heard on 2 April 2024 are set out in that judgment: Douglas v Mikhael [2024] NSWCA 60. Following that judgment, the sole issue raised which remained outstanding was the application by Mr Douglas for leave to issue subpoenas. As I explained in my 19 March 2024 judgment, Mr Duc of counsel (who has recently been retained by Mr Douglas to appear on 2 April 2024) was not in a position on 18 March 2024 to address the application for leave to issue subpoenas. Given the imminent hearing date, the matter was stood over for hearing to 4pm on 19 March 2024. On that occasion, Mr Duc appeared for the appellant and Mr Munro for the respondent.
At the conclusion of the hearing on 19 March 2024 I made the following orders: 1. Leave to issue subpoenas refused. 2. Proposed order 3 of the appellant's notice of motion dated 15 March 2024 dismissed. 3. Costs of the motion dated 15 March 2024 be costs in the cause. 4. Reasons reserved.

Application for leave to issue subpoenas

Because he is not represented by a solicitor, Mr Douglas requires leave of the Court before issuing a subpoena: Uniform Civil Procedure Rules 2005 (NSW) r 7.3. Proposed order 3 of the notice of motion seeks: Leave from the Judge and the Court to Subpoena documents that are extremely important evidence related to the 2015 agreement between the Plaintiff and the defendants …
The evidence on the motion was in two parts. The first was the affidavit of Mr Douglas of 15 March 2024 which I admitted subject to a limitation under s 136 of the Evidence Act 1995 (NSW), the effect of which is that the contents were received as submissions and statements of Mr Douglas' belief and not the truth of any assertions therein. No draft of any subpoena was filed with the motion. The second part of the evidence on the motion was a draft of three subpoenas provided electronically to me minutes before 4pm on 19 March 2024. I marked those subpoenas as Exhibit 1 on the motion. The exhibit comprised: 1. A draft subpoena to be issued to the proper officer of the Commonwealth Bank of Australia, seeking all documents for the period 1 July 2014 to 1 July 2016 "relating to": 1. Dale and Waters (ABN 87 093 051 838); 2. The Trustee for FBM Trust (ABN 87 093 051 838); 3. Mary Karborani; 4. Fadi Mikhael. 1. A draft subpoena to be issued to the proper officer of the Australia and New Zealand Banking Group Ltd, seeking all documents for the period 1 July 2014 to 1 July 2016 "relating to": 1. Dale and Waters (ABN 87 093 051 838); 2. The Trustee for FBM Trust (ABN 87 093 051 838); 3. Mary Karborani; 4. Fadi Mikhael. 1. A draft subpoena to be issued to the proper officer of the Commonwealth Department of Home Affairs, seeking any documents "relating to" any container or shipment arriving at Perth between 1 July 2014 and 1 July 2016 and addressed to any of the following: 1. Dale and Waters (ABN 87 093 051 838); 2. The Trustee for FBM Trust (ABN 87 093 051 838); 3. Mary Karborani; 4. Fadi Mikhael.
In oral submissions, Mr Duc conceded that each of the subpoenas sought material relevant to the alleged 2015 Agreement. So much was clear from the terms of proposed order 3 of the appellant's notice of motion.
I refused leave to issue the draft proposed subpoenas for the following reasons.
First, the appeal was filed in November 2023 and was listed for hearing more than three months ago. The appeal is set down for hearing in less than two weeks' time. Leave to issue subpoenas was sought for the first time only on 15 March 2024. The delay in seeking leave to issue subpoenas was not explained in the evidence. No adequate explanation has been given for why the appellant did not seek leave to issue subpoenas before now, when the appeal has substantially been prepared, including the exchange of written submissions. There is nothing to suggest the appellant only recently became aware of the possible existence of the material he seeks. Even if short service of the subpoenas were granted, the hearing is so close (and Easter intervenes) that the hearing on 2 April 2024 will as a matter of near certainty have to be adjourned if leave to issue subpoenas were granted. I reject the submission advanced from the bar table that an unidentified officer of the Department of Home Affairs had informed Mr Douglas they could provide all documents sought "very quickly".
It is not consistent with the just, quick and cheap resolution of litigation to allow a party to delay in making an application for leave to issue subpoenas, such that an appeal hearing would inevitably have to be adjourned if leave were granted. Delay alone provides a sufficient basis to refuse leave to issue subpoenas.
Secondly, I find that the proposed subpoenas lack a legitimate forensic purpose. As I have said, Mr Duc conceded the subpoenas sought material relevant to the 2015 Agreement. He accepted that none of the appellant's grounds of appeal seeks to set aside the conclusion of the primary judge about the failure of the appellant to prove the alleged 2015 Agreement. Rather: 1. grounds 1-4 and 6 all relate to the alleged 1999 Agreement; 2. ground 5 relates to the conduct of a judicial officer, allegedly "entering the arena"; 3. ground 7 is not pressed; 4. grounds 8 and 9 deal with evidential issues.
Mr Duc submitted that if the subpoenas were allowed, the documents sought could be deployed in relation to ground 9 of the appeal, but accepted that they would be relevant only to credit unless an amendment to the notice of appeal were sought and granted. No proposed amended notice of appeal was in evidence. None of the grounds relate to the primary judge's conclusion that the 2015 Agreement was not proven. This is a further powerful basis on which to refuse leave to the issue the three subpoenas. The suggestion that, in support of this application for leave to issue subpoenas, an unidentified amendment would be sought at some time in the future to the grounds of appeal is a highly unsatisfactory state of affairs less than two weeks prior to the appeal hearing.
Further, even if the 2015 Agreement were in issue on the appeal, as stated by Bell P (as the Chief Justice then was) in Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145 at [68], "there is a plain difference between 'apparent relevance' and 'fishing'". From their breadth, seeking as they do "any documents relating to" various parties over a timeframe of some years, it is clear the proposed subpoenas amount to a fishing expedition. This conclusion provides another basis to refuse leave to issue subpoenas.
Thirdly, I am not satisfied that it has been shown to be a realistic possibility that the Court of Appeal will admit as further evidence any material obtained under the proposed subpoenas. In Akins v National Australia Bank (1994) 34 NSWLR 155 at 160, Clarke JA (Sheller JA agreeing) said the following about the circumstances in which the Court of Appeal's will admit further evidence: The Court is empowered to receive further evidence upon the hearing of an appeal (s 75A(7)) of the Supreme Court Act 1970) but pursuant to subs (8) of that section may not receive further evidence after a trial on the merits "except on special grounds". Although it is not possible to formulate a test which should be applied in every case to determine whether or not special grounds exist there are well understood general principles upon which a determination is made. These principles require that, in general, three conditions need be met before fresh evidence can be admitted. These are: (1) It must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial; (2) The evidence must be such that there must be a high degree of probability that there would be a different verdict; (3) The evidence must be credible.
The three conditions identified by Clarke JA in Akins are general precepts, rather than essential conditions to be applied as rules in every case: French v Bremner [2020] NSWCA 299 at [7]. In the present case there is no realistic possibility that any evidence meets the principal requirements set out in Atkins. In particular, this is a case where it is clear that evidence of the kind now sought could have been obtained with reasonable diligence for use at the trial, where Mr Douglas was represented by counsel. An appeal to this Court is by way of re-hearing. It is not, subject to the application of very stringent rules, an occasion to conduct a re-trial on different evidence.
Finally, it is generally undesirable that leave be granted to issue subpoenas in the Court of Appeal. The appeal from the orders of the primary judge is not a vehicle for a general investigation: Chandrasekaran v Western Sydney Local Health District & Anor (No 4) [2023] NSWCA 253 at [27].
For these reasons I made the orders set out at [2] above.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 20 March 2024

Douglas v Mikhael

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