DAVRIDGE PTY LTD v COMMONWEALTH BANK OF AUSTRALIA SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL PRIESTLEY JA and SHELLER JA 12 August 1996 [1996] NSWCA 145 Priestley JA. This is a summons for leave to appeal against a decision of Mr Justice Rolfe, in which he dismissed on a summary basis, proceedings brought by the present claimants to have set aside a judgment of the Court on the ground of fraud. Mr Justice Rolfe dealt in his reasons with the case asserted by the claimants in a very thorough way. In support of the application for leave in this Court, the statement of the nature of the case required by the rules sets out at length and very clearly the basis upon which leave is sought to appeal against what because of its summary nature was an interlocutory decision. At the end of the statement, the questions involved are set out, of which there are three. The first of these is a question which does not present any leave point unless one or other of the following two grounds for leave should succeed. The first of these two grounds or questions sought to bring up an issue concerning what the claimants had to show in their proceeding to have the Court's judgment set aside on the ground of fraud. It was submitted that Mr Justice Rolfe had acted on a test of what the claimants had to show which was unfairly narrow and not justified by the nature of the proceedings. It was also submitted that the way in which he had dealt with this aspect of the case made it appropriate for this Court to consider statements in the judgment of Wentworth v Rogers that dealt with cases of this kind. We do not think that a leave point is involved in what happened in the present case. In his reasons, Mr Justice Rolfe set out in a paragraph in the middle of page 17, which appears at page 118 of the application papers, what, in his opinion, the correct approach would be in the case of fraud so far as what was required of the parties asserting it in order to succeed. We do not think that there is anything exceptionable in the statement in that paragraph and we are also of the view that in the detailed discussion and reasons which followed, Mr Justice Rolfe adhered to what he had described in that paragraph as being the correct approach. The final question which was said to be involved as justifying the grant of leave related to some subpoenas which had been issued and were returnable before Mr Justice Rolfe and which he set aside. The claimants here today submitted that he was wrong in doing that. The submission was linked with whether or not the test dealt with under the second question of the threeraised in the nature of the case statement were wrong, and it seems likely that the third point would not be successful unless the second were. But in any event the basis upon which Mr Justice Rolfe acted in taking the steps he did in regard to the subpoenas was founded upon the long standing decision of this Court in the Commissioner for Railways v Small. It was not contended in support of the leave application that the law as stated by Chief Justice Jordan in that case is not still the law. The reference to the subpoena 2 UNREPORTED JUDGMENTS situation, therefore, doesn't involve any matter of principle, in the way the claimants put their case, requiring re-consideration by this Court. In addition to other reasons which he gave for taking the decisions about the subpoenas which he did, Mr Justice Rolfe pointed out that the subpoenas were not directed to seeking documents which would be relevant to any issue which the claimants were seeking to raise in the proceedings as they had explained them to him. On the materials before us, there is nothing to indicate he was wrong in that view. It follows then that the matters which have been suggested to the Court as justifying the grant of leave in the present case are not made out and we therefore dismiss the summons with costs. Orders accordingly.