NSW Supreme Court Rejects Claimant's Request to Call Defendant's Solicitor as Witness

The NSW Supreme Court denied the claimant's application to call the defendant's solicitor as a witness, citing lack of proper notice and compelling reasons.

Supreme Court New South Wales

Medium Neutral Citation: [NAME] v State of New South Wales (No 2) [2013] NSWSC 995 Hearing dates: 23 July 2013 Decision date: 23 July 2013 Jurisdiction: Common Law Before: Beech-Jones J Decision: Application to call oral evidence from witness rejected. Catchwords: EVIDENCE - no question of principle. Category: Procedural and other rulings Parties: [NAME] (Plaintiff) State of New South Wales (Defendant) Representation: Counsel: [redacted] [NAME] (Defendant) Solicitors: [redacted] [NAME] (Defendant) File Number(s): 2012/300704

EX TEMPORE Judgment

Application to call solicitor for the defendant for cross examination 1Mr [NAME] has made an application for the solicitor for the defendant, [NAME], to be called to give oral evidence in his case. He has provided a list of questions that he proposes to ask her. 2At the outset it must be indicated that the court would be extremely reluctant to grant a party leave to call the solicitor for the defendant to a notice of motion seeking to punish a party for contempt, especially where no advance notice of that course has been provided. 3In this case one topic addressed by the questions [NAME] wishes to ask concerns the course of events at an earlier mention of the motion before Garling J on 17 July 2013. He seeks to ascertain whether or not [NAME] had in her possession a copy of a subpoena that was allegedly issued by some court or other in September last year and whether she provided it to the plaintiff. 4The circumstances are such that [NAME] is the person who was responsible for arranging the "issue" of that subpoena and its service, so that on its face the obvious source of any evidence to clear up the status of the subpoena is him. Further, he was present at the mention before Garling J and the transcript of the day is available. 5Further, during the course of argument this morning I made various inquiries of counsel for the defendant, who is instructed by [NAME], concerning the form of subpoena they had in their possession and they were answered. I have no reason to believe that any aspect of the instructions counsel received from his solicitor were incorrect. 6In those circumstances, there is no proper basis in my view for allowing [NAME] to be called to the witness box to answer questions concerning what occurred before Garling J on 17 July or the form of subpoena that she has in her file. 7The other set of questions proposed to be asked by [NAME] concern the compliance with the "subpoena" that I have referred to, as well as a further subpoena issued by this Court earlier this year. 8In so far as the questions concern the compliance with the subpoena issued in September 2012, it is not suggested [NAME] was the solicitor who attended before the [ADDRESS] when those subpoenas were returnable. In those circumstances, the strong likelihood is that any knowledge she has of those events has been acquired by reason of her retainer and is thus most likely the subject of legal professional privilege. 9In so far as the questions concern the subpoena issued by this Court it must be remembered that the onus of proof of all matters concerning count 4 of the charges that have been laid rests on [NAME]. In the absence of proper notice of this application having been given, I do not consider that he should be granted leave to fill any gaps in his case from the defendant's solicitor. 10Leave is refused.

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