DAVRIDGE PTY LIMITED v COMMONWEALTH BANK OF AUSTRALIA [1996] NSWCA 142

DAVRIDGE PTY LIMITED vy COMMONWEALTH BANK OF AUSTRALIA

SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

MAHONEY P 20 May 1996

[1996] NSWCA 142

Mahoney P. This is an application to the Court to vacate the hearing of an appeal from a decision of Mr Justice Giles given on 9 November 1995. The hearing of the appeal has been fixed for a date in June and the application is to stand the matter out of the list and that the appeal not proceed on that day.

Stated very generally the ground of the application appears to be that there are, it is said, police investigations proceeding with a view to determining whether, as the appellants allege, there was perjury in the course of the presentation of evidence before Mr Justice Giles.

The affidavits filed in Court contain, inter alia, a letter from the Director of Public Prosecutions indicating the practice that the Director follows in relation to investigations of that kind where there are civil proceedings pending. It is not necessary for me to detail what was there said.

In the circumstances as they have been adumbrated in the documents and from the bar table, I do not think that this is a case in which the appeal date should bevacated. In the circumstances as put before me, presumably it will be open to the appellants to subpoena the necessary evidence insofar as it needs to be subpoenaed or otherwise presented upon the appeal so that whether fresh evidence is admissible and if so what and the effect of that fresh evidence can be determined in the course of the appeal. I do not think that this is an appropriate case for vacating the date of the appeal.

Mr Hodgekiss has asked for leave to issue subpoenas in order to have the evidence available on the hearing date. No objection has been offered to the issue of the subpoenas. That does not mean, of course, that the evidence as and when produced will be available for inspection or tender; those are matters which have to be dealt with by the Court in due course.