Photi v Target Australia Pty Ltd (No. 2) [2007] NSWDC 302

Reported Decision : 6 DCLR (NSW) 122

New South Wales District Court

CITATION: Photi v Target Australia Pty Ltd (No. 2) [2007] NSWDC 302

HEARING DATE(S): 25 June 2007 EX TEMPORE JUDGMENT DATE : 25 June 2007

JURISDICTION: Civil

JUDGMENT OF: Gibson DCJ

DECISION: 1. Application by defendant to issue a warrant pursuant to s.194 Evidence Act 1995 (NSW) refused.

CATCHWORDS: Tort - procedure - application for warrant pursuant to s.194 Evidence Act 1995 (NSW) for witness who fails to attend in compliance with subpoena

LEGISLATION CITED: Evidence Act 1995 (NSW), s.194

Briginshaw v Briginshaw (1938) 60 CLR 336 CASES CITED: Harris/D-E Pty Limited v McClelland's Coffee and Tea Pty Limited (1999) 149 FLR 204 Marsden v Amalgamated Television Services Pty Ltd [2001] NSWSC 510 McKenzie v Mergen Holdings Pty Ltd (1990) 20 NSWLR 42

PARTIES: Plaintiff: Julia Photi Defendant: Target Australia Pty Ltd

FILE NUMBER(S): 3364 of 2006

COUNSEL: Plaintiff: C Evatt / L Evans Defendant: M Barko

SOLICITORS: Plaintiff: Stephen Spinak Solicitor Defendant: McCabe Terrill

Judgment

1. At 2.30pm today, on the first day of hearing I received an application on behalf of the defendant to issue a warrant pursuant to s.194 Evidence Act 1995 (NSW).

2. Section 194(1) provides that:

"(1) If a witness fails to appear when called in any civil or criminal proceedings and it is proved that he or she has been duly bound by recognisance or served with a summons or subpoena, the court may: (a) order the witness to show cause at those or later proceedings why execution of the recognisance or an attachment for disobedience to the summons or subpoena should not be issued against the witness, or (b) if it is proved that the non-appearance is without just cause or reasonable excuse and that the witness will probably be able to give relevant evidence in the proceeding, issue a warrant to bring the witness before the court to give the evidence."