Ali v Khan

[2015] NSWSC 1961

Supreme Court

New South Wales

Medium Neutral Citation:	Ali v Khan [2015] NSWSC 1961
Hearing dates:	17 December 2015
Date of orders:	17 December 2015
Decision date:	17 December 2015
Jurisdiction:	Equity
Before:	Young AJA
Decision:	The Notice of Motion be dismissed.  The costs of the Notice of Motion be costs in the cause.
Catchwords:	“Discovery” against third party – “Sabre” order – Principles to be considered
Legislation Cited:	Civil Procedure Act 2005 (NSW) Freedom of Information Act 1982 (Cth)
Cases Cited:	Bova v Avati [2009] NSWSC 921 Sabre Corporation Pty Ltd v Russ Kalvin’s Hair Care Co (1993) 46 FCR 428 Sogelease Australia Ltd v Griffin [2003] NSWSC 178 Spedley Securities Ltd (in liq) v Bank of New Zealand (1992) 6 ACSR 571 SPI Spirits (Cyprus) Ltd v Diageo Australia Ltd (No 2) [2006] FCA 931; (2006) 155 FCR 150 Suh v Cho [2013] VSC 491 Taylor v Santos Ltd (1998) 71 SASR 434 Theodore v Australian Postal Commission [1988] VR 272
Category:	Procedural and other rulings
Parties:	Mehenaaz Ramiza Ali (Plaintiff) Ramzan Khan (first Defendant) Rehana Begum Khan (second Defendant)
Representation:	Counsel: Ms P Lane (Plaintiff) Mr D Smallbone (Defendants)   Solicitors: Kalmath Lawyers (Plaintiff) Rajesh Chand and Associates (Defendants)
File Number(s):	2014/287663

Judgment

1. HIS HONOUR: This is a Notice of Motion filed this morning, though notice of it was given some time ago, for an order to compel the Plaintiff to take all appropriate steps to compel her father and mother to make an application under the Freedom of Information Act 1982 (Cth) to obtain information from Exchange Control Authorities and further to compel her father to produce his Fijian income tax returns and also income tax returns of any company of which he has an interest. Originally the orders sought were much wider than this but there have been admissions made which makes some of the earlier orders now otiose.

2. This is not an application for discovery. It is accepted by Mr Smallbone of counsel, who appears for the Defendants, that the discovery provisions do not extend so far as to reckon that documents in possession of a third party are within the possession and control, or possession and power, of the opponent. That proposition is established by cases such as Theodore v Australian Postal Commission [1988] VR 272 which was followed in this State in Spedley Securities Ltd (in liq) v Bank of New Zealand (1992) 6 ACSR 571, at 575.

3. However, as Mr Smallbone submits, the Court’s power under s 61(1) of the Civil Procedure Act 2005 (NSW) does empower this Court in a proper case to make an order that the opposing party take all reasonable steps to obtain documents from a third party and then to provide those to the opponent. That proposition is justified by cases such as Sogelease Australia Ltd v Griffin [2003] NSWSC 178 (Palmer J); Suh v Cho [2013] VSC 491 (Derham AsJ) and Sabre Corporation Pty Ltd v Russ Kalvin’s Hair Care Co (1993) 46 FCR 428. This sort of order is commonly referred to as a Sabre order because of the last cited case.

4. That view has not been universally accepted but it would now seem to me that it is sufficiently firmly supported by authorities for me to accept it and I did not understand Ms PM Lane, who appeared for the Plaintiff, to dispute the power. However, in the Full Court of South Australia in Taylor v Santos Ltd (1998) 71 SASR 437, at 437-8, Doyle CJ, with whom Prior J agreed, made it clear that the Court should be cautious in exercising that power.

5. In SPI Spirits (Cyprus) Ltd v Diageo Australia Ltd (No 2) [2006] FCA 931; (2006) 155 FCR 150, at [31]-[33], Edmonds J indicated that with a Sabre order the Court should strongly consider (a) whether there is a real likelihood that the party against whom the order is sought would be given access to the documents upon request; (b) there must be a likelihood that the documents sought are in fact in existence in the possession of the third party; and (c) the order must be restricted to require the person against whom it is made to take all reasonable steps to obtain the documents. That approach was followed in this Court by Ward J in Bova v Avati [2009] NSWSC 921.

6. In the instant case one of the principal transactions involved is a transaction that took place in 2010 where, according to the Plaintiff and her father, her father being the person, against whom it was said to hold these documents, the father provided funds to provide a bank cheque for $268,000 which he gave to the Plaintiff. He says this was “under my loan agreement with her” (paragraph 32 of Imdad Ali’s affidavit of 4 August 2015). The Statement of Claim says in paragraphs 27 and 28 that the Plaintiff obtained a loan of $268,000 from her father and that she obtained that amount by bank cheque payable to Albert Macri & Co Solicitors. This is one of the amounts which the Plaintiff seeks to recover. There does not seem at this stage to me to be any doubt that the Plaintiff paid money to the Defendants. One wonders why it is a core matter for the Defendants to show to the Court that the monies were loan monies or that they were paid on the behalf, not of the Plaintiff, but of her husband, or otherwise.

7. The order sought extends to companies of which the Plaintiff’s father has an interest. How, it might be asked, has that got any relevance to the transaction? Now one must not expect an answer to those questions in too detailed a fashion because cross-examiners, if they have documents, may well be able to show relevant material which casts doubt on the Plaintiff’s credit or on the whole transaction. But on the other hand, the rules relating to disclosure in the Equity Division of this Court require there to be a good reason shown why disclosure should be permitted; a fortiori where the disclosure has not really been made by the Plaintiff but by some third party.

8. Accordingly, in view of the caution that I should exercise, it seems to me that this is not a case where I should order third party discovery as the Sabre rule virtually gets to that result.

9. Ms Lane also said that there is no real evidence that the father would assist in providing the documents. On the balance of probabilities on this Notice of Motion I would not agree with that submission. The father has already shown his ability and willingness to assist the Plaintiff by giving an affidavit on her behalf. For the reasons that I have given earlier, I am not in favour of granting this order.

10. However, I should make it clear, as I think I did in argument, that it may very well be in the Plaintiff’s interest to request her father to provide these documents. The father, if his affidavit is to be read at the trial, will almost certainly come under vigorous cross-examination and that it would be suggested to him, I am quite sure, by Mr Smallbone, or any other capable advocate who is doing the cross-examination, in this way, “You knew that my clients wished to look at these documents for the very reasonable purpose of being able to test your claim. You refused to produce these documents. Why shouldn’t his Honour make the inference that they would not assist your case in any way?” It may well be to the interests of the Plaintiff to make sure that that sort of attack on the father’s credibility generally, and on the Plaintiff’s case generally, is not made, but that is a matter for the Plaintiff’s advisor and not for me.

11. The remaining provisions of the Notice of Motion have been dealt with by agreement. It would seem that there was justification in issuing the Notice of Motion and bringing it on at the end of this year because the trial is fixed for 29 February.

12. Accordingly, I dismiss the Notice of Motion. The costs of the Notice of Motion be costs in the cause.

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Decision last updated: 18 December 2015