HARRIS/D-E PTY. LTD. V. McCLELLAND'S COFFEE & TEA PTY. LTD. & ORS. [1999] NSWSC 36

Reported Decision : [1999] 149 FLR 204

New South Wales Supreme Court CITATION : HARRIS/D-E PTY. LTD. V. McCLELLAND'S COFFEE & TEA PTY. LTD. & ORS. [1999] NSWSC 36 CURRENT JURISDICTION : Equity Division FILE NUMBER(S) : 2289/94 HEARING DATE(S) : Application heard on 3rd February 1999 during course of two week trial. JUDGMENT DATE : 5 February 1999

Harris/D-E Pty. Limited P McClelland's Coffee & Tea Pty. Ltd. 1D Ambassador Foods Pty. Ltd. 2D PARTIES : Phillip McClelland 3D Jim Banks 4D Eric Bellchambers 5D Steven Holder 6D JUDGMENT OF : Hodgson CJinEq;

COUNSEL : Mr. A. Sullivan QC with Mr. A. Spencer P Mr. R. Conti QC with Mr. T. Hancock D SOLICITORS : Holding Redlich P Deacon Graham & James 1-6D CATCHWORDS : Evidence - Subpoenas, Practice - Issue of Warrant; Witness served in Queensland with a subpoena to give evidence fails to attend. He was paid $140, advised that he could collect his air ticket at the airport, and that he had been booked into a particular hotel for which the party issuing the subpoena would pay. Two letters were provided from a doctor to the effect that he had a medical reason not to attend. Party issuing the subpoena seeks a warrant to have the witness bought to Court. HELD (1) that Pt.37 r.3(1) of the Rules and s.32(1) of the Service & Execution of Process Act require money for expenses to be tendered, but that money need not be tendered for expenses in relation to which appropriate assurance is given that such expenses will not be incurred at all; (2) even if a warrant may be issued under Pt.42 r.7(1) of the Rules where the requirements of s.194(1) of the Evidence Act are not satisfied, in the circumstances of this case it was necessary to satisfy those requirements; and (3) the onus of proving that the non-appearance was without just cause or reasonable excuse had not been satisfied. Service & Execution of Process Act 1992 (Cwlth) ss.32 37 Evidence Act 1995 s.194 ACTS CITED : Supreme Court Rules Pt.37 r.3(1) r.9 Pt.42 r.7(1). Castrucci v. ACT Electricity Authority (1990) 94 ACTR 1 DECISION : See par.40 of judgment