Background
In this restricted proceeding, the Court considered interlocutory issues concerning an application to adduce further evidence on appeal and requests for leave to issue subpoenas requiring production and attendance. The proposed subpoenas included subpoenas directed to colleagues and to a health assessor.
The application raised questions about the nature of the appeal. It also involved the meaning of “acting at the direction of” in s 467(2)(f) of the Legal Profession Uniform Law (NSW). The respondent belatedly undertook to produce a supplementary report from the health assessor.
The Court’s Holding
McHugh JA held that the application to adduce further evidence should not be determined by a single judge of appeal or as a preliminary issue. The application was stood over for determination at the hearing of the appeal.
Leave to issue the proposed subpoenas to colleagues was refused because the relevant evidence was required to be produced by affidavit. The issues concerning the proposed subpoenas to the health assessor, including whether the assessor was compellable, were stood over pending receipt of the supplementary report. The appeal itself was not finally determined in this decision.
Key Takeaways
- An application to adduce further evidence may need to be resolved by the appeal court at the substantive hearing when it depends on the nature of the appeal.
- Leave to subpoena colleagues was refused where the Court required the proposed evidence to be presented by affidavit.
- The Court deferred the health-assessor subpoena issues, including compellability, while awaiting the respondent’s supplementary report.
Why It Matters
The decision illustrates the Court of Appeal’s management of evidence sought for an appeal. Questions closely connected to the character and scope of the appeal may be left to the appellate bench rather than decided separately by a single judge.
It also underscores that subpoena procedure is not a substitute for complying with a direction to place evidence before the Court by affidavit, and that questions about compelling a health assessor may require separate consideration.