District Court
New South Wales
Medium Neutral Citation: Ahamed v North [2021] NSWDC 172 Hearing dates: 30 April 2021 Date of orders: 12 May 2021 Decision date: 12 May 2021 Jurisdiction: Civil Before: Scotting DCJ Decision: (1) Sub-paragraphs (a)-(d) and (f) of paragraph 2 of schedule to the subpoena to produce issued to the Proper Officer of Connect@Macquarie Pty Ltd as trustee for the Joint@Macquarie Trust filed on 18 November 2020 (the subpoena), are struck out.
(2) Time for compliance with the subpoena is extended to 5pm on 19 May 2021.
(3) The defendant is denied access to the documents produced by the Commissioner in packet 47 of the subpoenaed material held by the Court.
(4) The defendant is to pay the plaintiff’s costs of the Notices of Motion filed 28 January 2021 and 2 February 2021, on the ordinary basis, as agreed or assessed.
Catchwords: CIVIL PROCEDURE — Subpoenas — Application to set aside
Legislation Cited: Civil Procedure Act 2005
Uniform Civil Procedure Rules
Cases Cited: Attorney-General (NSW) v Chidgey [2008] NSWCCA 65
Southern Pacific Hotel Services Inc v Southern Pacific Hotel Corp Ltd [1984] 1 NSWLR 710
Trade Practices Commission v Arnotts Ltd (No 2) (1989) 21 FCR 306
Category: Procedural rulings Parties: S M Fahim Ahamed (Plaintiff)
Justin North (Defendant)Representation: Counsel: K Balendra (Plaintiff)
Solicitors: AJB Stevens Lawyers (Plaintiff)
W Reynolds (Defendant)
Moray & Agnew (Defendant)
File Number(s): 2019/137453 Publication restriction: None
Judgment
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The plaintiff seeks orders in two Notices of Motion to set aside subpoenas addressed to Connect@Macquarie Pty Ltd (Connect) as trustee for the Joint@Macquarie Trust (the Trust) and to the Commissioner of the New South Wales Police Force (the Commissioner).
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During the course of the argument, the orders sought by the plaintiff were refined to seek to:
limit the categories of documents sought from the Trust because they are of insufficient apparent relevance to the issues in the proceedings; and
deny access to the defendant to some of the documents produced by the Commissioner because they lack a sufficient apparent connection to the issues in the proceedings.
Evidence on the Notices of Motion
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The plaintiff read two affidavits of Qiming Zhou sworn 28 January 2021 and 2 February 2021.
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The defendant read two affidavits of Madeleine Graham sworn 15 March 2021 and 16 April 2021.
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No application was made to have either of the deponents cross-examined.
Background
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The plaintiff was injured in a motor vehicle accident on 27 October 2015. He was the driver of a vehicle that was stationary at traffic lights, when he was struck from behind by a vehicle being driven by the defendant. The force of the impact involved in the collision is in dispute.
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The plaintiff alleges that as a result of the injuries that he sustained in the collision that he has suffered economic loss. At the time, he worked as a taxi driver and as a construction worker. He alleges that after the collision he has been unable to return…
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- AGLC
- Ahamed v North [2021] NSWDC 172
- Case
- [2021] NSWDC 172
- Decision Date
CaseChat Overview and Summary
The court was required to determine whether the sub-paragraphs in question were valid and enforceable, and whether there were any grounds for extending the time for compliance with the subpoena. The court also had to consider whether the defendant should be denied access to certain documents produced by the Commissioner in packet 47 of the subpoenaed material held by the Court. The court had to balance the competing interests of the parties and determine what outcome would be just and equitable in the circumstances.
In its decision, the court found that certain sub-paragraphs of the subpoena were invalid and struck them out. The court also granted an extension of time for compliance with the subpoena, but denied the defendant access to certain documents produced by the Commissioner. The court found that the plaintiff had not demonstrated any grounds for setting aside the subpoena in its entirety, but that certain provisions were invalid. The court also found that the defendant was not entitled to access certain documents produced by the Commissioner, as they were not relevant to the proceedings. Finally, the court ordered the defendant to pay the plaintiff’s costs of the Notices of Motion filed on 28 January 2021 and 2 February 2021.
The court’s orders reflect its finding that certain provisions of the subpoena were invalid and that the defendant was not entitled to access certain documents produced by the Commissioner. The court’s decision balances the competing interests of the parties and ensures that the subpoena is enforced in a manner that is just and equitable. The court’s orders also provide clarity for the parties moving forward in the proceedings.
Orders
Orders of the court
(1) Sub-paragraphs (a)-(d) and (f) of paragraph 2 of schedule to the subpoena to produce issued to the Proper Officer of Connect@Macquarie Pty Ltd as trustee for the Joint@Macquarie Trust filed on 18 November 2020 (the subpoena), are struck out.
(2) Time for compliance with the subpoena is extended to 5pm on 19 May 2021.
(3) The defendant is denied access to the documents produced by the Commissioner in packet 47 of the subpoenaed material held by the Court.
(4) The defendant is to pay the plaintiff’s costs of the Notices of Motion filed 28 January 2021 and 2 February 2021, on the ordinary basis, as agreed or assessed.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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