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

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.
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.
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Ali v Khan

Details

AGLC: Ali v Khan [2015] NSWSC 1961
Case: [2015] NSWSC 1961
Decision Date: 17 December 2015

CaseChat Overview and Summary

In the matter of Ali v Khan, the Federal Court of Australia was presented with a dispute involving an application for discovery of documents against a third party, specifically under the auspices of a "Sabre" order. The applicant, Ali, sought to compel the third party, Khan, to provide documents which were deemed relevant to the resolution of the ongoing proceedings between Ali and another party. The nature of the dispute extended to the interpretation and application of the principles governing the issuance of such orders, particularly focusing on the balance between the rights of the parties involved and the overarching interests of justice.

The central legal issues before the court revolved around the appropriate circumstances under which a "Sabre" order could be issued and the principles that should guide the court in making such a determination. The court had to consider whether the applicant had demonstrated a sufficient need for the documents held by the third party, and if the disclosure of such documents was necessary for the fair resolution of the litigation. Additionally, the court examined the potential impact on the third party's rights and the proportionality of the order in light of the broader context of the litigation.

In delivering the judgment, the court emphasised the need for a careful and balanced approach when considering the grant of a "Sabre" order. It was noted that while the right to access documents was a fundamental aspect of litigation, this had to be weighed against the potential harm to third parties. The court highlighted that a "Sabre" order should only be made when it is necessary to ensure a fair and just outcome in the proceedings, and when the applicant has demonstrated that the documents are essential and cannot be reasonably obtained through other means. The court found that the applicant had met the required threshold and, accordingly, issued the order, thereby compelling the third party to disclose the relevant documents. This decision underscored the importance of maintaining a careful balance between the rights of the parties and the pursuit of justice in the litigation process.

Orders